Chow v Watts [2000] SBHC 84; HCSI-CC 174 of 1997 (28 March 2000)

CC 174 97 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 174 of 1997

DENNIS F. K. CHOW

V

RHODA WATTS, RICHARD BEDFORD AND THE UNITED CHURCH IN SOLOMON ISLANDS

High Court of Solomon Islands
(Palmer J.)

Civil Case No 174 of 1997

Hearing: 11th, 12th, August 1999, 20th, 21st September 1999
Judgment: 28th March 2000

G. Suri for the Plaintiff
A. Radclyffe for the First Defendant
Sol-Law (J. Sullivan) for the Second and Third Defendants

PALMER J.: The hearing of this case was completed in September 1999 but due to delays in having the transcripts of evidence typed up, final written submissions were not received until 14th March 2000.

The Plaintiff (Dennis F.K Chow) is the registered owner of the Fixed-Term Estate in Parcel No. 143-002-36, otherwise known as Lot 62, situated on Seghe Island, Marovo Lagoon, Western Province. The First Defendant (Rhoda Watts) is the equitable owner of the Fixed-Term Estate in Parcel No. 143-002-31, otherwise known as Lot 57 also on Seghe Island. Lot 57 is located east of Lot 62 and separated by an access road (see plan of the area contained in Exhibit 2). Plaintiff alleges in his Amended Statement of Claim filed 24th June 1998, that the Defendants had trespassed into his property, on or about 8th and 10th February 1997 and caused extensive damage to his land. He claims damages inter alia, for trespass, conversion and nuisance.

The Facts:

The First Defendant had intended to doze her land, Lot 57. It so happened that a bulldozer belonging to the Third Defendant (hereinafter referred to as the “United Church”) was located on site at its Church Head Quarters on Seghe. Naturally, she seized on the opportunity and entered into arrangements with United Church for the hire of its bulldozer. It would have cost her extra to bring a bulldozer over, especially in terms of transportation costs. The terms of the hire agreement which are not in dispute, included the following:

(i) the Third Defendant would hire the bulldozer, then at Seghe, to the First Defendant on a dry hire plus operator basis (that is the First Defendant would supply the operator and that the First Defendant would supply all fuel and oils);

(ii) the hire rate would be $150.00 per hour;

(iii) the bulldozer would be used to clear the First Defendant’s land at Seghe at the direction of the First Defendant or her agent, Bill Watts (husband of First Defendant);

(iv) the First Defendant would pay the operator’s return airfares from Munda to Seghe and provide food and accommodation for the operator while in Seghe. (see paragraph (3) of the Cross-Claim for Indemnity dated 11 August 1999).

It was also agreed the bulldozer would be operated by the Second Defendant (Richard Bedford). Bedford was also the Transportation Manager of United Church. He drove the bulldozer onto Lot 57, through Lot 62, on or about 7th February 1997 (see Transcript 202). Dozing commenced on or about 8th February 1997 and continued on 10th February. At all material times, Bedford received his instructions from the First Defendant and her husband, Bill Watts. He was told what to do and shown where the boundaries of Lot 57 were (though erroneously). Of crucial significance was the identification of the north western boundary peg (“B5”) of Lot 57. First Defendant and Bill Watts believed it was on boundary peg “A4”. That however was wrong. Boundary peg “A4” belonged to Lot 62 (the north eastern boundary peg).

It was the wrong identification of that boundary peg “B5”, that has given rise to the claim of the Plaintiff for inter alia, trespass. By the time First Defendant and Bill Watts realised they were mistaken, the damage had been done. Plaintiff’s crucial concern was the damage done to what he described as a natural hill located within Lot 62, which (and this is not in dispute) he had included in his plans for the construction of a reception/meeting hall (see Exhibit 9). He had included the design of that reception/meeting hall in such a way that it would be slightly elevated over the rest of the other buildings on account of that hill. Unfortunately, that hill had been virtually flattened. Parts of it were used to fill in depressed or swampy areas in Lot 57.

That a trespass had been committed is not in issue. What is in issue is the extent of the damage caused. A number of factual issues are in dispute that would need to be sorted out first. Of prime significance is the nature of the so-called hill itself (whether man-made or natural), its composition, size and height. The Plaintiff claims the hill was a natural hill. The Defendants say it was man-made and virtually unsuitable for construction purposes. They submit, its accidental removal, in any event by the Second Defendant would have made little difference to any assessment of damages that may be awarded in favour of the Plaintiff. Rather, it had been to the advantage of the Plaintiff, as he would have had to remove it in any event before he could consider building on it.

A NATURAL HILL OR MAN-MADE HILL?

Evidence from the Plaintiff’s side:

The Plaintiff claims the hill was natural and not man-made. He described its size as like a box (see Exhibit 5). Eddie Kotomae (PW2) and Egan Leketo (PW3) both also described it as a natural hill; the size they estimated to be about as big as Court Room No. 1. They described it as having sloping or gentle sides. Kotomae described the top as flat with some parts low and some high, whilst Leketo described the top as “a little bit oval”. Leketo drew a rough outline of the shape of that hill as banana shaped (see Exhibit 12).

PW4 (Jimmy Jorovolomo), who is a surveyor working with Gold Ridge Mining Limited, did a survey of the area after it had been dozed and produced a report, which included a contour plan of the site (see Exhibit 13). His survey picked points along the area dozed, various heights identified by the Plaintiff, and actual heights of certain portions of that hill after dozing. The highest point picked was about 3.8 metres. The contours drawn showed readings from about 1.0 metre to 3.0 metres. When calculating the approximate volume of ground removed from that hill, he used what he considered to be average heights of 1.5 metres and 3.0 metres. The measurements for the area used were taken from the total area on the ground dozed as observed by the bulldozer tracks. The total volume calculated came to 669.7 m3.

The next witness, Silva Dunge (PW5) was a qualified valuer from the Ministry of Lands and Housing. He did a valuation for the Plaintiff in 1996 (this was before the dozing had been done) for mortgage purposes, and so was aware of the existence of that hill in the Plaintiff’s land. He described the hill as “a small hill or a man-made hill.” When describing the height of the hill, he recalled standing beside the mango tree and observing its height from that position. Under cross-examination this witness made the following comments:

“Q. In 1996, you visited the site – you said a man-made hill?

A. Yes.

Q. What made you think that?

A. I would say it is a man-made hill because it is only situated on a small part of the area. I would say it is only a man made hill I would say dozing on clearing of the land during WWII. I presume it would have been left there during WWII.

Q. Possibly when they made the airstrip?

A. Yes.

Q. Jimmy described it as a heap in his report? Would that be fair?

A. If it is as a result of dozing in WWII or airstrip that would be correct. According to my observation the height would be about height of the bench (meant Judge’s bench in Court Room no. 1).”

Of the Plaintiff’s witnesses, only this witness gave a contrary view of that hill. This witness also pointed out during cross-examination by Mr. Radclyffe, that his valuation of the land in 1996 did not take into account that hill because he did not think it was of significance at that time.

The sixth witness, Casper Luiramo, was the architect that drew the plans for the proposed buildings the Plaintiff intended to put over Lot 62. In chief, he described the hill as undulating, high towards the back, with quite a steep gradient of about 350º – 450 º angle. He estimated its height at about 2½ metres and stretching across to the access road and a little over into Lot 57. His description of the hill was more oval shaped (see Exhibit 19). On examination of the first strata of the soil for purposes of determining the footing to be applied, he found it was fully humus. This led him to believe the hill was natural and not man-made. Under cross-examination, he pointed out there were tall shrubs and a few trees growing on that hill. He says a person can walk through it but it would be messy.

Evidence of the Defendants:

Both Rhoda Watts and Richard Bedford formed the view the hill was man-made. Rhoda described two small hills merging together. One located towards the centre of the road where a rock slab was identified by Bedford during dozing. The other was described as a heap consisting of gravel, debris, fallen coconut trees and bush, towards the location of a mango tree. Based on her personal and local knowledge of the area, she sought to explain that those hills were formed from gravel that had been pushed there when Seghe Airfield, located not far from the site further north, had been constructed. The airfield was constructed during the Second World War, but she recalled other instances, in 1964, 1970 and in 1980, when dozing and clearing of the airfield was done. A lot of gravel and debris were deposited over sites around the airfield and one of these included the area where the Plaintiff’s land was located. Rhoda Watts stated she could remember the incidents in 1964 well, because she used to walk around and play games around that area during that time. She was on boarding school at Seghe during that time and could recall at least two or three occasions when dozing occurred.

The second witness for the First Defendant was William Henry Watt (also known as “Bill Watts”), husband of First Defendant. He was of the opinion the hill located towards the rock slab was man-made. He formed this view from his observations of an old American road which went past that area as well. He thought the hill (mound) might have been formed during construction of that road, as well as the airfield. He also gave evidence of the composition of the material dozed from that hill as consisting of decomposed coral and sand. Under cross-examination from Mr. Suri, he maintained his view that it was a mound about 2 metres high, stretching from Lot 57 across the access road and some ten metres or so into Lot 62. Under cross-examination from Mr. Sullivan, this witness further explained that the tops of that stretch of mound was very broken, with steep slopes or sides. He formed the view this could only have been formed by a bulldozer.

The next witness who gave evidence was the Second Defendant, Richard Bedford. He confirmed in evidence in chief, the existence of a line of broken mounds stretching all the way from where the boundary peg “B6” was located, in a westerly direction towards the rock slab and beyond into Lot 62. He described its height as about 2.5 metres and width 7-10 metres. He also identified a separate stock pile of materials located beside the mango tree. This mound and the mound along the rock slab ran into each other forming an “L” shaped or banana shaped mound.

Under cross-examination, this witness was asked to draw a sketch of the stock pile (see Exhibit 23). He reiterated what the composition of the stock pile was at the mango tree; a mixture of stones and timber. When asked whether the mounds were undulating as described by PW6, this witness strongly disagreed, pointing out he wouldn’t view undulating where the sides were steep, pinnacle fashion and with sheer face. He described the material from the mango tree as consisting of a mixture of clay, sandy coral, rocks, logs, trees, tree branches, steel and glass (these were bottles from the period of the Second World War and stacked around survey peg “A4”). He described the logs removed from that mound as the most decayed of the lot. This witness also pointed out that the size of the stock pile next to the mango tree could be physically observed by the scars on the ground and on the sides of the mango tree.

FINDINGS OF COURT

Of all witnesses who gave evidence concerning the description of the hill, I find most reliable the evidence of Richard Bedford, Bill Watts and Silva Dunge. These witnesses were in a better position than the rest to describe more accurately what that hill was composed of. Richard and Bill were witnesses for the Defence whilst Silva Dunge was a witness for the Plaintiff. Silva Dunge however, I find to be an objective and honest witness. He had undertaken an earlier survey of Lot 62 in 1996, for mortgage purposes and had been able to take particular note of the surroundings of the land in Lot 62. When asked in chief what the contour of the land was, he replied without hesitation that it was generally flat with the exception of “a small hill or a man-made hill”. He went on to repeat his description of the hill as a small hill and pointed out that when he inspected the hill, he found small trees growing on it.

His evidence is consistent with the unchallenged evidence of Richard Bedford and Bill Watts that the hill was in fact a series of mounds extending out along a stretch of land in an “L” or “banana” shape and running into the mound at the side of the mango tree. Richard and Bill were physically present on site during dozing and therefore would have been better able, to ascertain the shape, size and composition of the hill. Of significant value, is the evidence of Richard Bedford. He of all the witnesses had direct and close contact with the so-called hill itself. He cleared the growth over the hill and the hill itself. He saw the composition of the hill as it was dozed and after. I find him to be a man of considerable experience and knowledge in this field of work and, reliable. His experience included submarine, gas and oil pipeline works to multi-storey buildings and constructions, civil engineering, and major excavation works. His qualifications included a certificate on explosives. I find no reason to doubt his evidence. His evidence under cross-examination too had not been discredited. This witness gave a liberal estimate of the total fill removed as amounting to 480 m³. Of this, about 200 m³ was estimated to be of reasonably good fill (see Transcript 215).

Rhoda Watts and Bill Watts evidence help to shed light and put into perspective the possible timing when those mounds could have been created. Rhoda Watts gave evidence of various periods when dozing took place on the airfield and how those mounds may have been created. Bill Watts gave evidence of an old American road running not far from the place and an old drainage system around that place as well. When these pieces of evidence are put together they only lend support and credibility to the physical evidence adduced by Richard Bedford and the observations of Silva Dunge.

In contrast, much of the evidence adduced by the Plaintiff is of a general nature, based more on observations of the hill from a distance. Only Casper Luiramo’s evidence is of a more specific nature, to the extent it consisted of the composition of the first strata of the soil, which on testing turned out to be fully humus. This meant in architectural terms, for purposes of design footings, that the soil composition was of a natural type rather than man-made. If it had been man-made, a slightly different type of footing it seems would have been designed. Whilst I accept to a certain extent this piece of evidence is supportive of the Plaintiff’s contention that the hill might be natural, it did not detract in my respectful view, from the general tenor of the evidence of Richard and Bill that there were reasonable good coral fill, mixed with poor quality fill around that site. In exhibit 23, Richard actually identifies a stretch of mound connecting the rock slab to the mango stock pile as consisting of reasonably good fill material (see Transcript 205). Again this would be consistent with the evidence of Silva Dunge and other witnesses that there were shrubs, small bushes, trees and small growth around that hill. This piece of evidence was brought out before this Court, but not highlighted in my respectful view. All witnesses who gave evidence on this confirmed it consisted of small growths of trees and shrubs. The Plaintiff described the growth as “a little bit of bush – like grass – small sticks, tress which can grow high”. Silva Dunge described the growth on that small hill as consisting of small trees. Casper Luiramo described the hill as covered with: “very tall shrubs, few trees”. I find with respect this piece of evidence on the type of growth on that hill to be consistent with the view that this was a man-made hill rather than a natural hill. The type of growth found on that hill is consistent with secondary growth. From the evidence before this Court, it is clear the type of growth located around the vicinity of Lot 62 and 57 is quite thick bush and very large trees consistent with first growth of trees and bush (see photographs no. 3, 4, 5, 7, 8, 9, 12, 13, and 15 of Exhibit 4; and Exhibits 8 and 11). This secondary growth found on that hill could perhaps have provided explanation to some extent of the composition of the first strata of the soil as found by Casper Luiramo.

Another crucial piece of direct evidence in support of the contention of the Defendants that the hill was man-made also came from Richard Bedford and Bill Watts. These consisted of the material excavated during dozing. The material dug up from the stock piles around the rock slab were described by Richard as including a collection of stumps, trees, coconut trees, reasonable quality fill and “foreign object steel.” Those dug up from the stock piles around the mango tree included composts, sand, glass, rocks, steel, and logs. Those logs were described as quite substantial in diameter and well decayed compared to other logs that had been removed also by Richard from Lot 57. Some of the glass removed included empty coca cola bottles dating back it seems to the Second World War. Some of those bottles can be seen stacked around peg “A4” (see Photograph No.2 of Exhibit 4). In my respectful view, the evidence in support of the Defendant’s case that the hill was man-made is simply overwhelming. I am satisfied on the evidence before me the hill referred to by the Plaintiff is man-made.

VOLUME OF GOOD FILL REMOVED

The next important question for this Court to determine is the best estimate of the volume of good fill removed by the Second Defendant during dozing. This is vital for purposes of determining the quantum of damages. Richard conceded there was some good fill removed from the mounds around the rock slab which extended out into Lot 62 and into the mound around the mango tree. His generous estimate of the volume of total fill that would have been removed is about 480 m³ (see Transcript at page 200). Of this, he estimated a maximum of 200 m3 (see Transcript at page 215) of reasonably good fill. That works out to approximately 42% [(200÷480) x 100 = 42%] of good fill.

The evidence adduced on behalf of the Plaintiff, by Jimmy Jorovolomo, calculated a figure amounting to 669.7 m³ of total soil that had been removed (see Exhibit 13). Interestingly this was based on the extent of the area shown in the contour plan to have been dozed by the bulldozer as evidenced by the tracks left on the ground during survey. Unfortunately, the evidence before me showed quite clearly that the area of the hill itself was confined only to a much smaller area, compared to the total area covered by the bulldozer. The total area of the hill itself therefore would have been much smaller than the actual areas used in the calculation of the total volume removed. This point however was not brought out during cross-examination. In my respectful view therefore, the figure of 669.7 m³ would have been slightly on the high side. Comparing this figure with the estimate of Richard Bedford, a more balanced figure in my view can be obtained by getting the average of those two estimates. This works out to a figure of 575 m³ of fill removed [(669.7 m³ + 480 m³) ÷ 2 = 574.85 m³]. According to the evidence of Mr. Bedford, approximately 42% is good fill. Whilst this has been virtually unchallenged, a more reasonable and fair figure in my view would be about 50%, taking into account the possibility that the estimate given might be on the lower side. The amount of good fill removed therefore works out to 287.5 m³ (50% of 575 m³).

It has been suggested in evidence before this Court by Mr. Luiramo that to return the soil to its original strength, compaction would have to be done. He calculated this at about 28% of the total soil removed that would have to be added (see Transcript at page 137). If this was to be accepted this would bring the total fill that would be required to 368 m³ [287.5 + (28% of 287.5)].

Mr. Sullivan however, has sought to submit that approximately 25% of the soil removed should be deducted, on the grounds that in the original plan of the Plaintiff, he had intended to use part of that mound to fill a small drain. That had been done during dozing and therefore should be deducted from the total volume Claimed. The figure of 25% was an estimate given by Silva Dunge (PW5) in his assessment of the value to be placed on having that small drain filled. This had not been challenged. I accept submission of learned Counsel and reduce the volume of usable fill by 25%.This brings the volume of usable fill removed to 216 m³ (287.5 x 75% = 215.625).

VALUE OF USABLE FILL REMOVED

Various rates and valuations have been suggested. Silva Dunge in his evidence before this Court apportioned the sum of $45,000.00 for severance and injurious affection and $25,000.00 for the cost of bringing back the soil to its original strength. The figure for severance and injurious affection included the cost of the damage done to the soil. This valuation was based on his experience as a land valuer and on the volumes contained in Jimmy Jorovolomo’s survey report; using the figure of 669.7 m³ as the total volume of usable fill removed. This works out roughly to the value of the soil removed at $67.00 / m³. This is similar to the rate used by Casper Luiramo at $60.00 / m³ (being the going rate in Honiara for soil of this type). This comes to about $40,182.00 (669.7 m³ x $60-00 = $40,182). Casper Luiramo however added 28% for compaction purposes on top of that, plus charges for technical services which he valued at $16,657.00, bringing the total cost of his assessment of damage to $68,091.00.

Russell Pitu from Concrete Industries Limited, called by the First Defendant, gave evidence of alternative rates for fill charged by the Company. This type of fill (mixed coral and sand) if bought from landowners, would cost them about $3.00 / m³. After processing, it would be sold at about $56.00/ m³

Mr. Bedford states in his evidence before this Court that gravel was sold by the Church at about $30.00 per load (about $5.00 / m³). I accept if gravel can be purchased around Seghe itself or surrounding islands, (say even from Munda, New Georgia) it would be at a much lower rate than the rates used in Honiara which range from about $3.00 to $60.00 / m³. I am not satisfied it had been shown to my satisfaction that the Plaintiff could not if he had made enquiries, obtained soil from Seghe itself or from neighbouring islands. Bearing in mind, that the rate of $56.00 / m³ given by Russell Pitu is based on after processed fill, and the figure of $60.00 / m³ given by Casper Luiramo is the rate used in Honiara, it is my respectful view that the most reasonable and fair rate must lie somewhere between the rates of $5.00 / m³ and $30.00 / m³ (half of $60.00 / m³). The average of these two rates comes to $17.50 / m³. This in my respectful view would be a fair rate taking into account the circumstances of this case. The value of the usable fill removed accordingly works out to $3,780.00 (216 m³ x $17.50 = $3,780.00).

DAMAGES FOR TRESPASS

It is not in dispute a trespass had been committed by the First and Second Defendants. What is in issue is the quantum of damages to be awarded for trespass. The Plaintiff has set out his claim for damages under three broad heads. The first head of damages in turn is listed under three sub-heads namely, (i) damage to land; (ii) loss of earth reserved for fillings of depressed areas; and (iii) destroying the architectural planning, totalling $45,000.00. The second head pertains to related costs, and the third to future losses. The latter two will be addressed in detail later in this judgment.

The law as to the proper measure of damages for trespass is summarised in the case of Jones v. Gooday [1841] EngR 510; (1841) 8 M. & W 146. Defendant in that case had trespassed into the Plaintiff’s property and removed soil. Plaintiff argued that the proper measure of damages would be to restore the land back to the condition in which it was before the commission of the trespass (note this is the same approach taken by the Plaintiff in this case). This was rejected by the Court. The Court held, that the proper measure of damages, was the value to the Plaintiff of the land removed; that is, all he was entitled to was to be compensated for the damage he had actually sustained. This is what is referred to as the amount of the diminution value of the land.

A number of situations however, were referred to by the learned Authors in Mayne & McGregor on Damages (12th) at paragraph 741, in which the measure of damages by cost of replacement or repair, had been approved by the court. The first situation referred to was where the cost of replacement or repair will frequently represent the measure of the diminution in the property’s value [see Marsden v. Colnbrook Trading Co [1954) C.L. Y 890 (C.A.); Rust v. Victoria Craving Dock Co., [1887] UKLawRpCh 61; (1887) 36 Ch. D. 113 (C.A.)]. The second situation included cases in which the cost of replacement or repair had been allowed less the amount by which the property as renewed or repaired is more valuable than it was in its condition before the tort (see Lukin v. Codsall (1795) Peake Add. Cas. 15). The third situation was where the cost of a partial or limited replacement may be awarded where it would have been unreasonable for the plaintiff to have incurred expense beyond this (see Lodge Holes Colliery Co. v: Wednesbury Corporation [1908) A.C 323). The learned Authors in Mayne & McGregor on Damages drew from those authorities, a test along the lines, that it should be based on the “reasonableness of the plaintiff’s desire to reinstate the property”, and that this would be judged in part by the advantages to him of reinstatement in relation to the extra cost to the defendant in having to pay damages for reinstatement rather than damages calculated by the diminution in value of the land. Mr. Suri for the Plaintiff submits this test should be adopted by the Court in this case.

According to my findings, the amount of the diminution value of the land removed comes to $3,780.00. The Plaintiff would have been entitled to this amount as of right. The question for determination before this Court is whether the test propounded in Mayne and McGregor can be applied in the circumstances of this case. Having thought long and hard on this matter, it is my respectful view that the test applied does have some relevance to the circumstances of this case. I am satisfied on the evidence before me, it had been satisfactorily demonstrated by the Plaintiff that he had a sincere and honest desire to have the property reinstated to its original state. He had had architectural plans drawn up which took into account the existence of the mound on his property. To that extent, part 1 of the test propounded in Mayne & McGregor would have been satisfied. I also take into account the fact that whilst the mound had been found on the evidence before me to be man-made, those mounds did contain good fill, which I take to mean would have been suitable in any event for purposes of construction works. Their removal therefore did affect the plans and desire of the Plaintiff to build on that land.

Part two of the test required the Court to consider the extra cost to the Defendant in having to pay damages for reinstatement rather than damages calculated by the diminution in value of the land. To deal with this issue adequately, it is necessary first to determine what that extra cost to the Defendant would amount to. In his evidence before this Court, Mr. Luiramo points out that to reinstate the soil removed to its original state, a further 28% of that volume of soil removed would have to be added for compaction purposes. On top of that there would be other related costs. These he defined under the head of technical services fees. They included costs under transportation, accommodation and fees. He calculated this as amounting to $16,657.00. This works out to about 40% of the value placed on the soil removed [that is, $16,657.00 out of $40,182.00 works out roughly to 40%]. Unfortunately this is based on figures calculated if the soil was to be brought in from Honiara. I had found there is no suggestion whatsoever that soil would not be available from the surrounding areas or from neighbouring islands. A more appropriate figure would be half of 40%; that is, 20% of $3,780.00; mainly to cover transportation costs. This works out to $756.00. The value of the soil that would be required for compaction purposes at 28%, comes to $1,058.40 ($3,780.00 X 28% = $1,058.40). Extra cost to the Defendant for reinstatement thus amounts to $1,814-40 ($1,058.40 + $756.00). This raises the next question as to the advantages to the Plaintiff of reinstatement of the property as compared to the extra cost to the Defendant in having to pay this amount as damages. Having considered carefully the submissions of the Plaintiff and those of the Defendants, it is my respectful view the extra cost to the Defendant for reinstatement should be awarded in favour of the Plaintiff. The extra cost is not excessive nor unreasonable. It would not also result in a more valuable property to the Plaintiff than what it was before the trespass. It is only about 48% more than what would have been awarded on the diminution in value of the land as calculated. If the totality of the evidence is taken into account, bearing in mind that the figures used were the best estimates given by responsible witnesses based on their observations of the site before, during and after dozing, the amount of $5,594.40 ($3,780.00 + $1,814.40 = $5,594.40) would more or less be on the same par as the amount of the diminution of the value of the land at any rate. I award damages in favour of the Plaintiff accordingly based on the cost of replacement or repair measure of damages, in the sum of $5,595.00.

DAMAGES FOR CONVERSION

Where the trespass complained of involved the severing and carrying away of things attached to the soil (in this case the trespass complained of included the removal of soil) the rule is that the Plaintiff may sue either in trespass, for the damage to the land (the amount of the diminution of the value of the land), or in conversion, for the value of the things severed in their character as chattels. Normally a plaintiff will elect the higher of the two, but he is bound by his election and cannot recover both (Clerk & Lindsell on Torts (15th) paragraph 22-44). The submission therefore in paragraph 10.2 of the written submissions of learned Counsel for the Plaintiff, for an award of $5,022-75 as damages for conversion, is misdirected and should be dismissed. Section 133 of the Land and Titles Act has little relevance to this case.

COSTS OF RESTORATION

I have considered carefully the submissions sought to be raised in support of the claim for damages under this head to the tune of $25,000.00. Unfortunately, this claim as submitted by learned Counsel for the Second Defendant at paragraph 30 of his written submissions (see written submissions filed 15th February 2000), is misconceived. The cost of restoration is already covered under the head of damages for cost of replacement or repair and duly dealt with. It is accordingly a double claim and should be dismissed.

DAMAGES FOR NUISANCE

The amount of damages claimed under this head is $1,000.00. The acts of nuisance complained of were the pushing of logs, bottles, debris and other waste materials onto the Plaintiffs land during dozing. This has not been denied. However, there is ample evidence to show that the First and Second Defendants did offer to have the logs and debris cleared off the land when the mistake was realised. This was rejected by the Plaintiff Mr. Chow states in his evidence he told the Defendants to remove the debris only after he had taken photographs. This was denied vehemently by the Defendants and Mr. Watt. Even if what Mr. Chow alleges in his evidence is true, the Defendants would not have been able to have those logs and debris removed because Mr. Bedford flew out of Seghe the same afternoon. I find the refusal by Mr. Chow to allow the Defendants to remove the logs and debris straight-away unreasonable. It would have made little difference to him whether the photographs were taken then or after. In fact it would have been to his advantage to have those logs and debris removed straight-away and to push back any gravel to his land. He would then be in a much better position to ascertain what remained to be done and can be claimed as outstanding damages and costs. It would have made little difference whether photographs were taken of the damaged site before repair work had been done or after. In fact it seems the photographs taken would have been as useful or more useful, in showing what actual damage remained to be addressed in his claim. In my respectful view, the claim for nuisance should be reduced by 50%. I allow $500.00 under this head for damages.

LOSSES INCURRED

The final head of damages claimed is for costs incurred as a result of the Defendants’ actions. These were pleaded under three heads:

(i) survey and valuation fees and other costs to assess damage and for replanning the master development planning ($3,858.50);

(ii) transport and accommodation costs for surveyors and valuers ($1,350.65); and

(iii) plaintiff’s own costs in travelling accommodation telecommunication filming and assessing damage from 12/2/97 to 16/4/97 ($2,239.65).

Learned Counsels for the Defendants have indicated that they wish to be heard on these matters. In my respectful view these are matters which come under the award of costs in this action and to be taxed before the Registrar if not agreed. Award costs of this action against the First and Second Defendants, to be taxed if not agreed.

INDEMNITY AND CONTRIBUTION

Who should pay the damages awarded to the Plaintiff? It is not in dispute the Second Defendant had been instructed by the First Defendant to doze Lot 57. This included clearing the land of trees, logs, debris, filling in low or depressed areas, levelling them and contouring. As far as the Second Defendant was concerned, he had simply done what he had been instructed to do. Where parties disagree is the pushing of logs and debris into Lot 62 and removing material in Lot 62 and using them to level off some depressed and swampy areas in Lot 57. Rhoda and Bill Watts both denied instructing Richard to push debris into Lot 62 and trespassing into it; though they did accept consenting to him approaching the rock slab from Lot 62, believing it was on the access road anyway. I am satisfied there is clear evidence to show that Richard Bedford was instructed by Rhoda Watts to carry out dozing work on her land and that this included clearing the land of trees, logs and debris, filling in low or depressed areas with gravel, levelling them and·contouring. Whilst I accept any intrusion into Lot 62 was never authorised by Rhoda Watts, the actual trespass and removal of the soil in Lot 62 was done with the consent of Rhoda under the mistaken view that it was land within the Government access road and not Lot 62. The mistake had been caused as a result of the Defendants not checking their boundary pegs properly before dozing. As a consequence they mistakenly held that boundary peg “A4” was the north western boundary peg of Lot 57. They did not even bother to find out how far out the access road was and where the boundary of the adjoining land (Lot 62) commenced. One would have expected any reasonable land owner and operator to have sorted out these basic facts first before embarking on any dozing activity; to avoid trespassing into another man’s land. Whilst Rhoda must bear the brunt of the trespass, the operator too must be partly to blame. He also had a duty to ensure that the information he was given was correct and accurate. Had parties taken the time to consult a plan of the area (Exhibit 2), the error would have been picked out almost instantly.

It is trite law that the principal is under a duty to reimburse and indemnify the agent against all liabilities incurred in the execution of his authority (see Chitty on Contracts (26th) paragraph 2624). The Law Reform (Married Women and Tortfeasors) Act 1935 (UK) (which remains in force in Solomon Islands under Schedule 3 to the Constitution) also provides for a statutory right of contribution. Section 6 provides:

“6. (1) Where damage is suffered by any person as a result of a tort (whether a crime or not) -

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise ...

(2) In any proceedings for contribution under this section the amount of contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent that of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution from any person shall amount to a complete indemnity.”

Taking all the evidence into account in this matter, it is my respectful view liability should be apportioned on a 90:10 basis. Under the head of damage for trespass this amounts to $559.50 (10% of $5,595.00). Under the head for nuisance, this amounts to $50.00 (10% of $500.00). Any costs to be awarded after taxation should also be apportioned on 90:10 basis.

OTHER MATTERS

A number of case authorities (C P. Homes Limited and Solomon Tropical Products Limited v. Zhong Xing Investment (IS) Limited Civil Appeal Case No. 5 of 1997 (CA); Mauriciale Taovia v. Success Limited HC-CC No. 126/96; and Stephen Sekovolomo v. Eagon Resources Development Company Limited & Others HC-CC No. 218 of 1992) were referred to by Mr. Suri in his submissions for comparative purposes as to the proper measure of damages to be adopted in this case. With respect the issues and facts raised in those cases are quite different and easily distinguishable to this case and hence of little assistance.

THE CASE OF THE THIRD DEFENDANT

The case of the third Defendant is fairly straight-forward. No issue or evidence has been adduced that would warrant the inclusion of United Church as a third Defendant and accordingly this claim should be dismissed with costs.

ORDERS OF THE COURT:

1 DECLARE THAT THE PLAINTIFF IS THE REGISTERED OWNER OF THE FIXED-TERM-ESTATE IN PARCEL ,NUMBER 143-002-36, LOT 62 OF LR 250 SITUATED AT SEGHE, MAROVO LAGOON, WESTERN PROVINCE.

2 AWARD DAMAGES FOR TRESPASS AGAINST THE FIRST AND SECOND DEFENDANTS FOR $5,595.00 TO BE APORTIONED ON 90:10 BASIS RESPECTIVELY (First Defendant to pay $5,035.50, whilst Second Defendant is liable only to pay $559.50).

3 DISMISS CLAIM FOR DAMAGES FOR CONVERSION

4 AWARD DAMAGES FOR NUISANCE AGAINST THE FIRST AND SECOND DEFENDANTS FOR $500.00 TO BE APPORTIONED ON 90:10 BASIS RESPECTIVELY (First Defendant to pay $450.00 and Second Defendant to pay $50.00 only).

5 AWARD COSTS AGAINST THE FIRST AND SECOND DEFENDANTS ON 90:10 BASIS TO BE TAXED IF NOT AGREED

6 DISMISS CLAIM AGAINST THE THIRD DEFENDANT WITH COSTS.

ALBERT R. PALMER

THE COURT