Helicopter Support Solomon Islands Ltd v Solomon Islands Ports Authority [2024] SBHC 13; HCSI-CC 2 of 2022 (4 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Helicopter Support Solomon Islands Ltd v Solomon Islands Ports Authority
Citation:
Date of decision:	04 March 2024
Parties:	Helicopter Support Solomon Islands Limited v Solomon Islands Ports Authority
Date of hearing:	20 November 2023
Court file number(s):	2 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	1. Cost of damages in terms of a new blade US$58,000.00, cost of shipment AUD5, 200.00 and cost of packing of USD639.00 be paid by the Defendant to the Claimant. 2. Cost of this hearing to be paid by the defendant to the Claimant on standard basis if not agreed upon.
Representation:	Mr A Radclyffe for the Claimant Mr G Suri for the Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Darbishire v Warren [1963] EWCA Civ 2; [1963] 1 WLR 1067, Sherson & Associates PTY Ltd v Bailey [2000] NSWCA 275, Driver v War Services House Commissioner [1923] 44 ALT 130at 134, TCN Chanel 9 PTY Ltd v Hayden Enterprises Pty Ltd [1989] 16 NSWLR 130

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 2 of 2022

BETWEEN

HELICOPTER SUPPORT SOLOMON ISLANDS LIMITED
Claimant

AND:

SOLOMON ISLANDS PORTS AUTHORITY
Defendant

Date of Hearing: 20 November 2023
Date of Ruling: 04 March 2024

Mr A Radclyffe for the Claimant
Mr G Suri for the Defendant

RULING ON ASSESSMENT OF DAMAGES

Faukona (DCJ): This is a case of assessment of damages after the Court had found the defendant was liable for the damages negligently done to the Claimant’s helicopter blade, by the Defendant’s servants or agents.

2. The claim for damages for tort of negligence is not new in this Court. The measure for damages is the loss directly suffered by the Claimant as a result of negligence.
3. The principle on measure of damages is defined as relevant by Lord Harman and Lord Pennycuik in the care of Darbishire V Warren[1], a case counsel Suri refers to in his submissions.
4. Lord Harmen states in general the measure of damages is the cost of repairing the damaged article, but there is an exception if it can be proved that the cost of repairs greatly exceeds the value in the market of the damage article.
5. Further, Lord Pennycuik also stated in the same case, that restitution can be affected by repair of the existing article or by the purchase of a comparable article possessing broadly similar attributes though not necessary identical.
6. In Flaming book on the Law of Torts 7th edition 1987, P. 224, paragraphs 3 states, “whether the property damaged or destroyed, the plaintiff is in the first instance entitled to restitution for the loss of the value to him, usually this loss”.
7. The Claimant’s case is that the blade was damaged by the defendant is beyond repair. Upon inquiry the cost of a new blade at the lowest is US$58,000.00. In addition are the cost of shipment and packing as embodied in the sworn statement of Mr. Hubbord. The Claimant therefore claims damages for USD58, 639.00 and AUD$5,200.00.
8. There is sign of repetition can be noted on page 2 of the defendant’s submissions. Paragraph 3 states, the Defendant gave evidence that the packing was insufficient for the journey from Brisbane to Honiara. This piece of evidence was confirmed by Mr. Osborne of Pacific Air Cargo whose profession is packing and freighting of cargoes.
9. By making reference to evidence meant we are going back to determine the liability of the defendant.
10. I am certain the trial Court had dealt with this issue and the Court did make the remarks contain in paragraph 2 of the defendant’s submission, that, if it was not sufficient why allowed to be packed in the container in that manner and shipped for the journey to Honiara.
11. The significant point is, after addressing the issue the Court finally determine that the defendant or its servants or agents are liable for the damages. The judgment did not mention the Claimant was contributed to the negligent so that value of damages be apportioned. Nor that the claimant be responsible is part because packing was done upon the instruction of the consignor.
12. That argument do not make any positive progress of the defendant’s case. The evidence which the court had decided upon was that the blade had arrived safely at Honiara wharf. It was damaged during the course of getting it out from the container. This require skillful forklift operator to handle, considering the circumstances, the blade was lifted out of the container in the early hours of the morning.
13. Whether the blade was strapped at the roof of the container or not, the question, how wide was the container to allow the fork lifter to remove the blade at its mid-point. Again its matter of skill and experience with no other disturbing circumstances.
14. On the issue of insure chattel I am so convinced that I have dealt with this issue already in the judgment on 2nd May 2023, when liability was at stake and which court had determined and ordered damages be assessed.
15. On the issue of mitigation in tort, the defendant attempted to push shared responsibility in negligence because the packing done in Brisbane was done on the instruction of the consignor (the Claimant). This issue was not raised in the trial proper even by the defendant, therefore capitalize on it to include the claimant as a contributory liable for damage done by negligence.
16. The defendant raised the issue pointing out the Claimant has a legal duty to mitigate its failure to do proper packing. /The defendant refer to the case of Sherson & Associates Pty Ltd V Bailey & Ors[2],
17. The above case refer to two decisions determined previously. One clearly stated that the plaintiff cannot be said to have really incurred any loss which might been avoided by his taking such steps as a reasonable prudent man in his position would have taken to avoid by his taking such steps as a reasonable prudent man in his position would have taken to avoid further less to himself, see Driver V War Services House Commissioner [3].
18. The second case states, the plaintiff cannot recover damages for losses, which he would not have occurred had he acted reasonably in the ordinary course of his business – see TCN Chanel 9 Pty Ltd V Hayden Enterprises Pty Ltd[4].
19. The tone of the two decision are almost the same. They refer to the Claimant failed to act or take reasonable steps to avoid further loss. Therefore he cannot incur loss or recover damages for the loss.
20. The question to pause is, in what areas had the claimant failed so that legal duty be placed on it to mitigate? The only area I noted is packing in Brisbane, was done according to its instructions which was done in a manner unsafe to remove from container.
21. In my respectful opinion the issue here should have been raised in the trial proper, it obviously geared towards determining the liability or shared liability. In the judgment the Court had determined liability and these was no shared liability for the damaged helicopter blame.
22. If the value of damages be shared on assessment it would have been made clear in the judgment. There was nothing and assessment of damages should abide and align with the judgment itself. There should not be any room for deviation.
23. On the issue of the market value of the blade, the defendant’s submission is drifted or otherwise mistaken by quoting the cost of repair of the blade as US$58,000.00. That is exactly wrong. The Claimant’s submission is clear without any ambiguity. It states the lowest cost of a new blade is US$58,000.00. It does not say that is the cost of repair.
24. With the narrations and reasons outline above I therefore award cost of damages pursuant to paragraph 4 of the Claimants submission against the defendant. There is no shared liability for the damages done by negligent.

Orders:

1. Cost of damages in terms of a new blade US$58,000.00, cost of shipment AUD5, 200.00 and cost of packing of USD639.00 be paid by the Defendant to the Claimant.
2. Cost of this hearing to be paid by the defendant to the Claimant on standard basis if not agreed upon.

The Court.
Hon. Rex Faukona.
DEPUTY CHIEF JUSTICE.

[1] [1963] EWCA Civ 2; [1963] 1 WLR 1067
[2] [2000] NSWCA 275.
[3] [1923] 44 ALT 130 at 134.
[4] [1989] 16 NSWLR 130.