Kakaluae v Attorney-General [2000] SBHC 27; HC-CC 160 of 2000 (25 July 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 160 of 2000

LESLIE ASHLEY KAKALUAE

–v-

ATTORNEY GENERAL

High Court of Solomon Islands
(F.O. KABUI), J)

Hearing: 21st July 2000
Judgment: 25th July 2000

C Ashley for the Applicant
S Manetoali and Keniapisia for the Respondent

JUDGEMENT

(Kabui, J): The Applicant by Originating Summons filed on 17^th May 2000 asked the Court to make the following orders –

1. The Applicant is a police officer within the meaning of the Police (Injuries and Death Benefit) Regulations, (1993 Regulations) and is entitled to be compensated under the Schedule of the 1993 Regulations.
   
2. The Respondent is liable to pay to the Applicant the amount of $75,000.00 or in the alternative $50,000.00.
   
3. The Applicant is entitled to his costs to be borne by the Respondent.
   

The basis of the application are the provisions of the Police (Injuries and Death Benefit) Regulations 1993 (“the Regulations”) (See L.N. No. 79/93 at 247). The full text of the Regulations is in these terms –

“[Legal Notice No. 79]

THE POLICE ACT

(No. 6 of 1972)

THE POLICE (INJURIES AND DEATH BENEFIT)

REGULATIONS 1993

IN exercise of the powers conferred by section 72 of the Police Act, 1972, the Prime Minister hereby makes the following Regulations –

1. These Regulations may be cited as the Police (Injuries and Death Benefit) Regulations, 1993.
   
2. Where any police officer suffers injury in the course of duty, the Government shall be liable to pay such police officer compensation in accordance with the provisions of the Schedule to these Regulations.
   
3. Where any police officer suffers injury in the course of duty which results in the death of such police officer, the Government shall be liable to pay the dependents of such deceased police officer compensation in accordance with the provisions of this Schedule.
   
4. In these Regulations –
   

“injury” means injury which results in partial or total incapacity of a permanent nature.

SCHEDULE

Partial incapacity $ 50,000

Total incapacity $ 75,000

Death $100,000

Made at Honiara this twenty-third day of April, 1993

S.S. Mamaloni

Prime Minister”

The Facts

The Applicant was one of the members of the Police Force who were called up to investigate a disturbance at Tasimboko east of Honiara on the night of 14^th May 1999. Three men attacked the Applicant and caused an injury to his left ear. He was brought to the Casualty Department of the Central Hospital that same night and received medical treatment. A report prepared by Dr Kako of the Central Hospital dated 9^th June 1999 says that the injury was a deep wound 5cm long and 4 cm deep from the left orbital area to the left ear. The left ear was severed at the same level with the zygomatic bone fractured in two places. The wound was complicated with infection although the rest of the wound healed satisfactorily. There is no further medical report on the Applicant at the date of trial.

The Legal Position

The first thing that struck me is that the Regulations were made in pursuance of section 72 of the Police Act (Cap. 110) by the then Prime Minister, Mr Mamaloni at the height of the Bougainville Crisis. In my view, there is the thought that the Regulations may well be ultra vires the powers of the Prime Minister in section 72 of the Police Act. That is to say that the powers of the Prime Minister to make Regulations under the Police Act do not envisage providing for compensation payment of the sort provided for under the Workmen’s Compensation Act (Cap. 78). The preamble to the Police Act clearly bears this out. The restrictive words in section 72 of the Police Act are “for the carrying into effect any of the purposes or provisions of this Act.” Unfortunately, this is not the issue in this application. It was not raised by any of the parties in this case. I do not therefore wish to rule on it. It should be left for another time.

The issues in this case are twofold. First is whether or not the Applicant was a police officer within the meaning of the Regulations. Second is whether or not the Government was liable to pay compensation specified in the Regulations. I do not need to rule on the first issue because Counsel for the Respondent, Mr Manetoali, said in his submission that he accepted that the Applicant was a police officer. He also accepted that the Applicant had sustained injury in the course of duty. I therefore only need to rule on the second issue. Not so much on the question of liability but on how much compensation should be paid under the Regulations. Counsel for the Respondent, Mr Manetoali, argued that the crucial words for consideration in Regulation 4 of the Regulations were “partial or total incapacity”. He argued that the meaning of these words should be taken from the meaning given to them in the provisions of the Workmen’s Compensation Act. I think the authority for this is section 63 (2) of the Interpretation and General Provisions Act (Cap. 85). Subsection 2 states -

“(2) Except where the context otherwise requires, words and expressions used in subsidiary legislation have the same meaning as they have in the Act under which the subsidiary legislation is made.”

The problem in this argument is that the Regulations were made under section 72 of the Police Act and not under the provisions of the Workmen’s Compensation Act. No provision in the Police Act defines the words “partial or total incapacity” although the idea of compensating police officers on duty in the Regulations might have come from the Workmen’s Compensation Act or elsewhere. I cannot accept this argument on the basis it was put to me. Counsel for the Applicant, Mr Ashley, on the other hand, argued that the Regulations were specific in their intent and the provisions of the Workmen’s Compensation Act should not be used to qualify the intent and objective of the Regulations. I find that the word “injury” is not defined in the provisions of the Workmen’s Compensation Act whereas it is defined in Regulation 4 of the Regulations. An “injury” under the Regulations is of two kinds. The first is partial incapacity. The second is total incapacity of a permanent nature. In the Regulations, death stands alone. Compensation for death is $100,000. The Regulations provide no mechanism for the accurate determination of the extent of "partial incapacity or total incapacity of a permanent nature" in terms of a formula for calculation and providing medical evidence to support any calculation of the appropriate compensation in each case of incapacity. The Regulations seemed, at the time of their making, to have assumed that the general principles of compensation in industrial law should apply. Whilst this area of the law is governed by statutes of varying nature, the concept of “partial incapacity or total incapacity of a permanent nature” can be identified in all statutes in this area of the law. I can say here what I understand to be meant by the use of the words “partial incapacity”. In general, these words mean that the nature of the injury to any part of the body of the worker is such that the worker is not totally incapacitated permanently. In other words, the worker can still do light jobs or can still find work of some sort in the labour market despite being previously injured. Whereas the words “total incapacity of a permanent nature” mean that the nature of the injury is such that the worker is no longer capable of doing any work of the same nature with the result that the worker cannot possibly re-enter the labour market . The case of Karu-Kapapitae –v- The Administration of the Territory of Papua New Guinea [1971-72] P.N.G.L.R. 128 illustrates this. In that case, the worker was injured in the course of his duty. The nature of the injury was a fractured skull. The direct result of this was extensive brain damage causing partial loss of the use of an arm and a leg, memory deficiency and post traumatic epilepsy. The worker was totally and permanently incapacitated for work. There are numerous case reports on this sort of cases as in this case in other Commonwealth countries.

The Evidence

The medical evidence in this case consists of a medical report by Dr Kako of the Central Hospital. There is nothing in it to suggest that the injury sustained by the Applicant can be described as being “total incapacity of a permanent nature”. There is no recent medical report to suggest otherwise. The medical report prepared by Dr. Kako is however evidence of an injury sustained by the Applicant. The medical report is however general in nature. It says nothing about the extent of “partial incapacity” and the effect it would have on the prospect of the Applicant’s future employment. It also says nothing about whether or not the injury sustained does affect the hearing ability of the Applicant and if so, to what extent it affects the Applicant’s work as a Police Officer. The medical report is clearly lacking in these details.

Conclusion

Clearly, there is no case for total incapacity. There is simply no evidence to support a claim for the payment of the sum of $75,000 specified in the Schedule to the Regulations. There is however evidence of partial incapacity. The compensation money for partial incapacity is the sum of $50,000. As I have said in this judgement, the Regulations are silent on how to calculate the appropriate sum of compensation. That is to say what factors are to be taken into account in the calculation of compensation. This omission appears to me to be deliberate in that in the Regulations, all one needs to prove is partial incapacity or total incapacity of a permanent nature. Providing that proof is enough for one to be entitled to receive payment of either $50,000 or $75,000 whichever is the case. I am satisfied in this case that the Applicant suffered partial incapacity within the meaning of the Regulations. That is to say that he suffered an injury in the course of duty though that injury was not very serious so as to put him out of work permanently. There seems to be no room for the consideration of cases of lesser degree of partial incapacity with a lesser amount of compensation as can be the case under the Workmen's Compensation Act. In the result, the Applicant is entitled to be paid $50,000 forthwith. The Applicant is also entitled to his costs.

I do have difficulty in dealing with this case. The difficulty is that whilst the Regulations were made under the provisions of the Police Act, they do have in them concepts already embedded in the Workmen’s Compensation Act. Furthermore, the Regulations cannot amend the provisions of the Workmen’s Compensation Act. It would have been helpful if instead of the Regulations, an Act of Parliament was passed which would have had the effect of amending the provisions of the Workmen’s Compensation Act at least by implication. Alternatively, the Workmen’s Compensation Act would have been amended with the view to improving the compensation provisions therein. By standing alone and independently of the Workmen’s Compensation Act, the Regulations are indeed difficult to implement when one has in mind the provisions of the Workmen’s Compensation Act as being the normal compensation law for workers in Solomon Islands. In fact section 4 of the Workmen’s Compensation Act says that the Act also applies to Government employees which I believe includes police officers. The Police (Injuries and Death Benefit) (Amendment) Regulations 2000 attached to Mr Hiele’s affidavit filed on 21 July 2000 do contain slight improvements but they do nothing to remove this continuous unnecessary confusion. It is perhaps helpful if compensation for police officers can be re-addressed within the existing provisions of the Workmen’s Compensation Act in order to maintain consistency and clarity. Again, the Applicant is entitled to be paid $50,000 plus costs.

F.O. Kabui
Judge