Jolly Hardware & Construction Co Ltd v Suluburu [1985] SBHC 12; [1985-1986] SILR 87 (26 July 1985)

1985-1986 SILR 87

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 34 of 1984

JOLLY HARDWARE AND CONSTRUCTION CO. LTD

v

SULUBURU

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 34 of 1984

24 July 1985 at Honiara
Judgment: 26 July 1985

Damages for personal injury - approach on appeal - problem of assessment in Solomon Islands.

Facts:

The appellant appealed the award of the sum of $12,000 in general damages to the respondent, a 30 years old man who suffered head injuries which resulted in a personality change, on the ground that the award was excessive and that $6,000 to $8,000 would have been proper.

Held:

1. Before an appellate court may interfere with an award of damages, it should be satisfied that the judge acted upon a wrong principle of law, or had misapprehended the facts or had, for these or other reasons, made a wholly erroneous estimate of the damage suffered. (Davies v. Powell Duffryn Associated Colleries Ltd. (1942) 1 All E.R. 657 per Lord Wright at p. 664 followed). (Davies also followed by the High Court in Sukumia v. SIPL (1982) SILR 142 and by the Court of Appeal in Cheung v. Tanda (1984) SILR 109).

2. Although it may be dangerous merely to apply in Solomon Islands a scaled down version of damages awarded in the United Kingdom in that Solomon Islanders may put a different ratio between various injuries (Sukumia v. SIPL (1982) SILR 142 per Daly C.J. at p. 143), given the almost total lack of precedent in Solomon Islands on the question of damages for personal injury, precedents from elsewhere provide a useful starting point.

3. In the closest U.K. case to the instant case the equivalent of $11,000 was awarded in 1971. Taking into account inflation since then and discounting the different standard of living and way of life in Solomon Islands, the award was not a “wholly erroneous estimate of the damages suffered”. (Longa v. Solomon Taiyo Ltd. (1980/81) SILR 239 followed for the proposition that the different conditions applicable in Solomon Islands must be considered).

Accordingly the appeal was dismissed.

Cases considered:

Davies v. Powell Duffryn Associated Colleries Ltd. (1942) 1 All E.R. 657
Sukumia v. Solomon Islands Plantations Ltd. (1982) SILR 142
Cheung v. Tanda (1984) SILR 109
Longa v. Solomon Taiyo Ltd. (1980/81) SILR 239
Hall v. John Thompson (Design and Contracting) Ltd. (1971) (found at Pt 11 para. 261 of Kemp and Kemp referred to below)

Also considered:

Kemp and Kemp Quantum of Damages Vol. 2 Personal Injury Reports

Andrew Nori for the Appellant
Kenneth Brown for the Respondent

Wood CJ: This is an appeal against the assessment of damages made by Mr Registrar Coventry on May 3, 1985 in the sum of $28,115.83 after a judgment in default had been obtained by the respondent. The only part of the assessment challenged by the appellant is the sum of $12,000 awarded for general damages. Mr Nori for the appellant has submitted that $12, 000 general damages is excessive and that a proper figure would be in the region of $6,000 - $8,000. Although I would agree that it is perhaps unfortunate that damages had to be assessed without the benefit of a full trial and observation by a Court of the respondent when it comes to fairness the issue of quantum could have been taken by the appellant before the learned Registrar.

The approach I have to take on appeal is set out in the following passage from the judgment of Lord Wright in Davies v. Powell Duffryn Associated Colleries Ltd. (1942) 1 All E.R. 657 at page 664:-

“In effect, the Court, before it interferes with an award of damages, should be satisfied that the judge has acted upon a wrong principle of law, or has misapprehended the facts, or has, for these or 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.”

This approach was followed by Daly CJ in Sukumia v. Solomon Island Plantations Limited (1982) SILR 142 and the Court of Appeal in Cheung v. Tanda, C.A. No.1 of 1983.

If Mr Nori’s figure of $6,000 - $8,000 is a correct one then this case would certainly be one in which the damages should be altered.

The facts in this case are that the respondent was painting rafters and a high wall inside a workshop standing on a ladder. The ladder slipped and he fell about 20 feet to the floor hitting his head. He was admitted to Central Hospital Honiara and remained unconscious for three hours. He suffered a linear fracture of the right parietal bone (skull) in consequence of which he has suffered severe irreversible brain damage and is totally dependent for his livelihood. He was about 30 years old at the time of the accident. In his affidavit the respondent’s brother has stated that the respondent is different since the accident in that he is now mentally slow and dull and appears to find it difficult to concentrate. He is also physically slower than he was. His personality has undergone substantial change in that whereas before the accident he was outgoing and cheerful he is now withdrawn and listless.

Damages for personal injuries appear to be surprisingly rare in Solomon Islands which results in there being very few decisions to guide me. Daly C.J. in the case of Longa v. Solomon Taiyo Limited (1980/81) SILR 239 has given a lengthy and learned essay on the problems of assessing damages in Solomon Islands which is of great interest but need not be repeated here. In the Sukumia case cited above Daly C.J. had this to say at page 143:-

“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 is 6:1 for loss of 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 award (19th 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 may be 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.”

However given the almost total absence of precedence in Solomon Islands on the question of damages in personal injuries cases I would have thought that such precedents as are available whether in England, Australia, Papua New Guinea or elsewhere at least provide a useful starting point otherwise one is indeed “grasping in the air”.

In Kemp and Kemp Quantum of Damages Vol. 2 Personal Injury Reports pt 11 paragraphs 261 to 264 are to be found four cases with some similarity with this case all being cases of head injuries caused through falls and resulting in personality changes. The damages, awarded over the period 1968 - 73, varied between £3000 and £7000 for pain, suffering and loss of amenities. This would equate roughly to $6,000 - $14,000 but in two cases the damages were the equivalent of $11,000. As there has been very substantial inflation since 1973 awards today would be very much higher. The case of Hall v. John Thompson (Design and Contracting Ltd. (1971) which can be found at paragraph 261 of Kemp and Kemp referred to above is closest to the case before me and the equivalent of $11,000 was awarded in that case for general damages. This at least gives me a starting point from which to work up or down.

Taking into consideration inflation over the past 14 years and discounting the different conditions applicable in Solomon Islands as envisaged and explained by Daly C.J. in the case of Longa I cannot see how I can possibly say that the learned Registrar has made a “wholly erroneous estimate of the damages suffered.”

I am therefore not prepared to say that the general damages of $12,000 awarded by the learned Registrar were in any way excessive and dismiss this appeal.