Motui v Maximus International Ltd [2007] SBHC 15; HCSI-CC 289 of 2001 (20 April 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 289 of 2001

AMBROSE MOTUI AND OTHERS

-v-

MAXIMUS INTERNATIONAL LIMITED AND OTHERS

Date of Hearing: 8th March 2007
Date of Ruling: 20 April 2007

Mr. James Apaniai for the Plaintiffs
Mr. Chris Hapa for the 1st Defendant
Mr. Philip Tegavota for the 2nd Defendant

RULING

REASONS

Brown, J: On the 1st September 2004, the Chief Justice found for the plaintiffs in a cause against both defendants finding trespass. The defendant had entered upon the plaintiffs land and taken logs which were later sold. The particular parcel of the plaintiff which suffered damage it was claimed was LR690. In the Chief Justice’s judgment at 9 he gives judgment for the plaintiffs for $266,000.83 representing some 250 logs illegally removed from LR 690. His Lordship also awarded interest at the rate of 5% pa. from the date of writ and continuing.

There is then no issue in relation to the conversion of logs. There has been a judgment given in the plaintiffs favour.

In fact that judgment affects Pogu Enterprises while a further judgment for $50,936.20 was given for conversion against Maximus. That judgment also attracted an award of interest of 5% pa from date of writ.

The Chief Justice directed that the damages for trespass were to be assessed. That is the matter presently before me for determination.

The plaintiff has filed an affidavit by one Joe Urokon the Deputy Director of the Department of Forests who has carefully carried out a survey of LR 690 and identified the damage to the environment caused by the loggers.

In his report he has, as annex I set out the environmental impact seen and in annex II after explaining his basis of economic valuation has set out activities and costs necessary to rehabilitate access roads, skid traces, loading yards, water course crossing, and structures; so that a total cost of rehabilitation of $4,220,000 is required.

Mr. Hapa says the report (and evaluation) is flawed for that it makes no attempt to apportion the responsibility for the damages seen between the two defendants who, it is agreed, were there logging for varying periods but at separate times. The plaintiff says that does not affect the value of the report which is directed to a proper evaluation of the damage suffered by the plaintiff.

Whilst the report speaks of rehabilitation there has no real argument to suggest that it is not a proper basis for compensation in this case. No other basis has been advanced. It would seem that the approach by the expert in this fashion should be adopted by the court as a correct approach when assessing damages for environmental degradation, and I propose to accept the report for that purpose. The logic used by the author of the report is plain.

Mr. Hapa’s other criticism, addressing the apparent failure of the Deputy Director to identify the defendants responsible for particular damage in the logging block cannot stand. The knowledge lies in the two defendants who have not sought to particularise their responsibilities for environmental damage for obvious reasons. That failure cannot now be attributed to a failure in the plaintiff to prove which defendant caused what damage to the land and timber standing.

The argument of the plaintiff also relied on the case of a replacement approach in Dennis Chow v Rhoda Watts (unreported cc 174 of 1997), but that case is off point. This is environmental damage.

I prefer to rely on the veracity of the experts report and the methodology used as a proper basis for assessment of environmental damage unless flaws have been shown in such methodology. Such is not the case here.

The plaintiffs preferred apportionment relies on the comments of the Chief Justice at 7 of his judgment. The Chief Justice placed emphasis on the actual periods of the trespass by the particular defendants.

But when I read that part it is plain the Chief Justice was directing his attention to the conversion of the logs and the responsibility for particular logs and that was the basis of his judgment for converted logs. In other words, the greater time spent logging could reasonably in the absence of other evidence, result in a greater log haul. Such an approach cannot be used to apportion environmental damage.

Mr. Apaniai did in his reply to Mr. Hapa’s submission, refer me to the case of Stephen Sekevolomo v Eagon Resources Development Co. Ltd (unreported cc 218/1992) where the court held that each defendant was responsible for damage and jointly liable for trespass.

Where it is impossible to particularise the damage caused by individual trespassers but such damage is clearly the trespassers fault, the law expects the trespassers to be severally and jointly responsible for the damage caused.

It is appropriate then to award damages for trespass against both named defendants severally and jointly liable and I order judgment for the amount of $4,220,000 against both.

I also award costs to be assessed or taxed on a solicitor/client basis.

I note that Mr. Apaniai has assessed his costs which include out of pocket expenses. He has sought to obtain an order in the amount claimed but it is appropriate to follow the Rules of Court and failing agreement, the plaintiffs costs will need be taxed on the solicitor/client basis. Delay will occasion greater expense to the defendants through interest and the plaintiff is entitled to claim interest on the amount of the outstanding costs from the date the assessment was first submitted if the plaintiff is successful in obtaining his greater percentage thus his costs of taxation.

There is then to be a judgment for the plaintiff against both defendants severally and jointly liable for $4,220,000 for trespass plus costs on a solicitor/client basis.

There is no need for me to deal with the earlier judgment of the Chief Justice which stands and moneys already released of course will go to the reduction of either or both judgments. I also order judgment for $72,159.76 to be added to the earlier amount, payable by both defendants for such award of damages represents the loss of standing timber felled and left in the bush. I give liberty to apply.

THE COURT