Sukumia v Solomon Islands Plantations Ltd [1983] SBHC 8; [1982] SILR 142 (5 January 1983)

[1982] SILR 142

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No. 11 of 1982

SUKUMIA

v

SOLOMON ISLANDS PLANTATIONS LIMITED

High Court of Solomon Islands
(Daly C.J.)
Civil Appeal Case No. 11 of 1982

5th January 1983 (Argued in 1982)

Damages - quantum - appeal - new evidence - O. 60 r 15 - when court will alter award - assessment - applicability of U.K. precedents.

Facts:

The Appellant was awarded damages for a broken leg by the Magistrates’ Court. He appealed against the assessment and asked the court to hear new evidence not before the Magistrates Court.

Held:

In its discretion the court would allow the new evidence "for the furtherance of justice" in order to establish the assessment of quantum of damages on a firm footing. The Court on appeal on quantum would only interfere if the trial magistrate’s estimate was "wholly erroneous." Dicta in Davis v. Powell Duffryn Assoc. Collieries (1942) A.C. 601 applied. The court would consider ratios between awards made elsewhere but would decide what was appropriate in Solomon Islands. Appeal allowed.

Other cases referred to:

Every v. Miles (1964) (U.K.) C.A. No. 261
Longa v. Solomon Taiyo Ltd (1980-81) SILR 239

For Appellant: K. Brown
For Respondent: A. Nori

Daly CJ: This is an appeal on quantum of damages only.

On 16th September 1982 a Principal Magistrate sitting at Honiara gave judgment in relation to a claim for damages brought by the Appellant (Peter Sukumia) against the Respondent (Solomon Islands Plantation Limited). The claim arose out of an accident which occurred on the 19th March 1981 when the Appellant was in the employ of the Respondent. The Appellant was engaged in assisting in loading a truck with oil palm nuts and, as the learned magistrate duly found, suffered a fracture of his left leg when the wheels of the vehicle ran over it. For reasons which it is not necessary to set out the learned magistrate found the Appellant 75% to blame for the accident and the Respondent 25% to blame. No appeal is brought against his apportionment.

As to quantum the learned magistrate assessed the damages on the basis of full liability as $350.00 and therefore awarded the Appellant $87.80. It is against the assessment of $350 that this appeal is brought. It is said that this amount is inadequate and insufficient and should be increased, with a corresponding increase in the amount awarded to the Appellant on the basis of the Respondent’s 25% liability.

Reading the record of the trial there is a surprising paucity of evidence upon which to reach an assessment of damages. At the outset it was made clear to the court by counsel that the nature of the injury was not in dispute. It was said that the injury was "a closed fracture of the left tibia which has completely closed and there is no permanent disability". In evidence the Appellant merely said he was taken to hospital. The injury was touched on in closing in similar terms to the opening. No medical report was produced. There was no discussion of the injury or its incidents in the judgment before the assessment was reached.

In those circumstances counsel for the Appellant (who did not appear in the court below) sought to adduce further evidence in this court. By Order 60 Rule 15 of the High Court (Civil Procedure) Rules, 1964 this Court is given a discretion to allow new evidence "for the furtherance of justice". However advocates should be aware that where evidence is available at the time of hearing before the court below but is not called, the court will require substantial reasons before an application to call that evidence before this court will be acceded to. In this case, in view of the way the case developed in the court below and in view of the desirability to establish assessment of quantum on a firm footing in Solomon Islands I granted leave to adduce evidence as being "for the furtherance of justice".

That evidence shows that the Appellant, who appears to be in his middle twenties, was one month in bed at the hospital with plaster on his leg, followed by one month in hospital whilst he was able to walk about with two sticks. On leaving the hospital the plaster, which was from toe to thigh, remained in place for a further two months. During these four months when the Appellant was off work the Respondent, as a responsible employer, continued to pay the wages of the Appellant. On return to work the Appellant was given light work by the Respondent but subsequently left of his own accord and took employment elsewhere. On his own account this new employment is more favourable than his previous employment with the Respondent.

There was some suggestion by the Appellant that there was a residual disability arising from his injury that prevented him doing heavy work and playing football as he had in the past. But this was not a matter his counsel felt able to pursue in view of the terms of a medical report dated 2nd December, 1981. This states that on X-ray examination the union of the fractured left tibia bone was excellent and that the Appellant has "no permanent disability and should be fit for any type of work he was doing previously."

On that basis how should the question of quantum be approached? Counsel for the Appellant concedes that appeal courts have shown reluctance to upset the trial judge’s assessment unless –

"the judge has acted on a wrong principle of law, or has misapprehended the facts, or has these other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency." (Per Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd (1942) A.C. 601 at pp. 616 - 617).

The words "wholly erroneous estimate" are those which have been most used by appellate courts when interfering with awards of damages and these words have been described as applying when the award falls outside the bracket within which awards of the appropriate standard are contained (see Diplock L.J. in Every v. Miles (1964) C.A. No. 261 as set out in Kemp & Kemp Quantum of Damages 4th Edition pp. 16 - 21).

However, as I observed in Longa v. Solomon Taiyo Ltd (1980-81) SILR 239 ("Longa’s case") at page 251 we in Solomon Islands lack "a body of cases showing what is reasonable, moderate and conventional in.... (our).... jurisdiction" and therefore one’s task is first of all to assess what the bracket should be. In this case one is concerned with only head (5) of the various heads of assessment set out on pages 249 and 250 of Longa’s case, that is, "Pain and suffering and general inconvenience".

I must then in making my assessment take into account the three considerations as discussed in Longa’s case at page 251 et seq. These are summarised at page 257 as:

1. the need to be fair to the plaintiff as an individual;

2. the need to be fair in the eyes of the community; and

3. the need to be fair to plaintiffs generally.

If the assessment of the learned magistrate falls inside the same bracket as my own then I will not interfere with the judgment of the court below. If outside then I should substitute what I consider to be a correct assessment.

Counsel for the Appellant submits most helpfully that taking Longa’s case as a starting point we can reach a point for assessment of virtually all damages in Solomon Islands by a mathematical process. This, he suggests, is done by taking loss of an eye in Solomon Islands as $5,000 as established in Longa’s case. Then one looks at the English cases to see what amount is awarded for the injury under consideration as a ratio to what would be awarded in England for loss of an eye. In this case the researches of counsel show that the ratio in England’s 6:1 for loss an eye compared with a similar break to a leg to the one presently under consideration. It follows, counsel submits, that the Appellant should be awarded 1/6 of the $5,000.00 awarded to Longa scaled up by 12½% to allow for inflation since the Longa award (18th January 1982) to the date of this award (16th September 1982). This would result in a figure of $900.00. If such a figure is in the right bracket then the learned magistrate’s award of $350 is outside the bracket.

I am, as I say, indebted to counsel for the ingenious way he presents his argument and the research upon which it is based. There is however lurking in the argument the danger that, by accepting it, we would be merely applying in Solomon Islands a scaled down version of damages awarded in the United Kingdom with its vastly different standard of living and way of life to Solomon Islands. It maybe that Solomon Islanders would put a different ratio upon loss of an eye as compared to a broken leg and if they would do so one would not be observing consideration 2 ("the need to be fair in the eyes of the community") if one applied the ratio developed in the English Courts. It might have been additionally helpful if one had been referred to the ratio applied for example, in Papua New Guinea.

Considering all the evidence and doing the best one can, I consider that my assessment of the damages in this case on the basis of the evidence now adduced would have been $800.00. This figure I regard as being towards the low end of the scale for a broken leg of this kind based on full liability. That being so the amount of less than one half this sum reached by the learned magistrate must be outside the bracket for such an injury.

Therefore I set aside the award of damages made by the court below and substitute therefore an order that the Respondent pay to the Appellant 25% of $800.00 that is $200 together with costs in this court and the court below to be taxed if not agreed.