New World Ltd v Sivovilia [2019] SBHC 14; HCSI-CC 102 of 2018 (4 February 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	New World Ltd v Sivovilia
Citation:
Date of decision:	4 February 2019
Parties:	New World Limited v Silverion Sivovilia on behalf of deceased Bently Segovia, Attorney General
Date of hearing:	Written Submission Around 8 November 2018
Court file number(s):	Civil Case Number 102 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia PJ
On appeal from:	Magistrate Court
Order:	$72,200.00 in compensation is paid to deceased Segovia’s defendants. Appeal dismissed with costs against NWL on standard basis
Representation:	Mr E. Toifai for the Appellant Mr. R. Tovosia for the First Respondent Mr. A. Poa for the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Workmen’s Compensation Act, s 6
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 102 of 2018

NEW WORLD LIMITED

V

SILVERION SIVOVILIA ON BEHALF OF DECEASED BENTLY SEGOVIA
First Respondent

ATTORNEY GENERAL
(For Commissioner of Labor)
Second Resp0ondent

Date of Hearing: Written Submission Around 9 November 2018
Date of Decision: 4 February 2019

Mr E. Toifai for the Appellant
Mr. R. Tovosia for the First Respondent
Mr. A. Poa for the Second Respondent

DECISION ON APPEAL FROM MAGISTARTE COURT

1. The only issue to resolve in this appeal is: “Whether or not New World Limited (NWL), the appellant, lawfully deducted $72,200.00 from a compensation package it paid to the dependants of Segovia (deceased)?
2. The facts can be briefly stated. Late Bently Segovia (deceased) was an employee of NWL. Deceased was working for NWL on Santa Isabel, when he met his death. Deceased left behind dependants (Mr. Silverion and others). NWL, paid to the deceased’s dependants $108,098.20 in compensation as determined by Commissioner of Labour (COL). Compensation package was paid pursuant to the provisions of Section 6 (a) of the Workmen’s Compensation Act (Cap 78) (the Act). Before NWL could pay the compensation quantum determined by COL, using the formula under Section 6 (a), NWL had deducted $72,200.00. Deductions were monies NWL had paid out in expenditures relating to the death (burial expenses - transport, food, post-mortem etc.). NWL say it made the deductions on advice from COL. NWL say this was proper in law. Dependants of deceased and Attorney General (AG) says this is erroneous in law. By implication COL did not seek legal advice from the AG; Government’s principal legal advisor. For the AG is not submitting in support of advice COL made to NWL.
3. Let me go straight to Section 6 (a) of the Act. Section 6 (a) provides for the employer (NWL) to pay compensation to the dependants of a deceased employee (Segovia, deceased). Pre-requisite Section 5 requires that the employee must have died in the course of employment; before a compensation can paid to any dependants that the deceased employee left behind. There was no issue that Segovia died in the course of employment. There is no dispute that Segovia left behind dependants, who wholly dependent on his earnings. The only issue was whether the deductions NWL made on advice of COL, was lawful, under Section 6 (a) read with Section 6 (c) of the Act?
4. The pertinent and paramount question to ask is what is the purpose of Section 6 (a)? Employing a purposive approach to interpretation of Section 6 (a), court is of the view that, the law provides for a compensatory regime in favour of the dependants of a deceased employee, who died in the course of employment and had left behind dependants; who depend on his earnings^[1]. Compensation or damages its purpose is to restore the injured to the position, he/she was in, prior to the loss complained of. In here the compensatory regime and its purpose is to restore the dependants of the deceased employee, to the position they were in prior to the death of the deceased employee. That position we know in the context of Solomon Islands, is that the dependants were benefiting from the earnings of the deceased employee. The death of the employee had injured the dependants from that “dependant monetary beneficiary position”. And so the dependants must be compensated. The formula to use in the compensation quantum is in Section 6 (a). Any quantum arrived at using this statutory formula, will then be paid in compensation to the dependants of the deceased employee. There was no dispute on the quantum of compensation arrived at. The question is really “Whether any burial expenses incurred by NWL should be deducted?
5. The deductions made here were for burial related expenses and were paid to outside or third parties. Expenses noted by the Magistrate included: post-mortem charges; foods, flight charter and transport cost from Avu Avu airport to the village of deceased. Contrary to the purpose of Section 6 (a) these expenses were paid to third parties, and not the dependants. NWL felt obliged either by pressure from relatives or by moral obligations or for genuine humanitarian reasons to pay for these burial related expenses. But you cannot qualify these expenses as compensation payments to the dependants of the deceased Segovia under Section 6 (a). Therefore it is improper and legally unsound to deduct in respect of these burial related expenses from the quantum due and payable in compensation to the dependants of the deceased Segovia. The Magistrate was correct to have concluded that the deductions of $72,200.00 has no legal basis. There is no unjust enrichment because the expense monies were paid to third parties not the dependants.
6. The deductions certainly has no legal basis under Section 6 (a). Deductions have no legal basis under 6 (c) either. For Section 6 (c) read with Legal Notice No 74 of 2012 does not apply to the facts of this case; where deceased left behind dependants. Section 6 (c) would only apply to a case, where a deceased do not leave behind dependants. And the limit for deduction is $12,000.00 in lieu of reasonable burial and medical attendance expenses^[2].
7. Accordingly, the decision of the Magistrate should stand. Orders of the Court.
   • 7.1 $72,200.00 in compensation is paid to deceased Segovia’s dependents.
   • 7.2 Appeal dismissed with costs against NWL on standard basis.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Section 5 read together with Section 6 (a) of the Act.
^[2] Section 6 (c) read with Legal Notice No. 74 of 2012.