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Liliau v Trading Company(Solomons) Ltd (No 1) [1983] SBHC 25; [1983] SILR 10 (26 January 1983)

[1983] SILR 10

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.20 of 1982

LILIAU

v

TRADING COMPANY (SOLOMONS) LIMITED (NO. 1)

High Court of Solomon Islands
(Daly C.J.)
Civil Case No. 20 of 1982

26th January 1983

Tort - employer’s liability - negligence - breach of statutory duty - Reg. 27(1) Traffic Regulation – damages - assessment - loss of an arm.

Facts:

The Plaintiff was employed by the Defendant as a bus driver. In an accident whilst driving a bus owned by the Defendant the Plaintiff lost his right arm. There was a dispute about the cause of the accident and there was an allegation of negligence in maintenance of the bus and breach of statutory duty. Quantum of damages was also in issue.

Held:

1. On the facts negligent maintenance of the braking system of the bus was established.

2. Regulation 27 (1) of the Traffic Regulations requires “two efficient braking systems”: This meant the system “must be good enough to be reliable in an emergency so as to avoid an accident” (Badham v. Lambs Ltd (1945) 2 All E.R. 295 followed)

3. Whilst damages might be assessed on a similar ratio between injuries elsewhere the ration applicable in Solomon Islands should be used (dicta in Sukumia v S.I.P.L. (1982) SILR 142 applied). Loss of an arm being more serious in Solomon Islands where manual ability is at a premium and where there are no facilities for the disabled should result in a higher ration. General damages of $21,000 awarded.

4. Although there was no specific future economic loss proved, a figure of $3000 should be awarded to recognize that some economic loss on the balance of probabilities would occur. Total award $24,000.

Other cases considered:

Cole -v- Young (1938) 4 All E.R. 89
Longa -v- Solomon Taiyo Ltd (1980/81) SILR 239
O.A.U.E. -v- Allardyce Lumber Co. (1980-1981) SILR 66

For Plaintiff: K. Brown
For Defendant: F. Waleilia

Daly CJ: On 27th October 1981 a bus driven by the Plaintiff (Michael Liliau) overturned on the Mount Austen Road. The bus was owned by the Defendant Company (Trading Company (Solomons) Limited). In the accident the Plaintiff had his arm severed above the elbow. He now claims damages from the Defendant for that injury. The Defendant operates in Solomon Islands a tour business which involves taking tourists to the sights in and around Honiara. Before this accident in 1981 the Plaintiff was employed by the Defendant as a driver in that business. His function was to drive a Hino bus (“the bus”) used to transport tourists. He was also a trainee tour officer. His immediate superior was Mr Jack Barley, the travel manager of the Defendant.

On 24th October 1981 a large tour of one hundred people from Japan came to Solomon Islands. Their main purpose was to attend the official opening of the War Memorial on Mount Austen, Honiara but a programme of other visits had also been arranged for them. The arrangements were made by Mr Barley who had discussed them with the two tour escorts or leaders of the Japanese group. Mr Barley produced in court as Exhibit D an itinerary for the group during their stay which he said he had reconstructed from telexes sent to the Japanese. This itinerary shows that on Tuesday 27th Oct. 1981 the group was due to go on a “full day battlefield tour of West and East Guadalcanal”. The ceremony at the War Memorial itself on Mount Austen took place on Sunday 25th October, 1981.

From the start on the Tuesday the arrangements did not go smoothly as the bus was having trouble with its starter motor. However this problem was sufficiently solved for the Plaintiff to drive it to the Mendana Hotel a little after the due time of 8.30 a.m. Already at the hotel were a number of other vehicles which belonged to or had been chartered by the Defendants to transport the Japanese tourists.

On this occasion the Plaintiff was not only driver of the bus but also the representative of the Defendant Company. Previously a Tours Officer had usually gone with a party but as the Plaintiff was a trainee tours officer, Mr Barley was content to give him the authority of “lead driver”. As to oral instructions given by Mr Barley to the Plaintiff about the details of the itinerary, there is some dispute. Mr Barley said he gave a very detailed itinerary to the Plaintiff. That consisted of a visit to Alligator Creek, a visit to Bloody Ridge and then an arrival at Vilu village on the far side of Honiara at 1200 noon sharp. The Plaintiff said he was told to go to Red Beach (which is regarded as the same as Alligator Creek) and then to Vilu for lunch. There is a strong dispute as to whether the Plaintiff was told there was no need to go up Mount Austen to which I shall return later in this judgment. I do not consider there is much importance in the difference in the locations to be visited. Both witnesses were agreed that the vital aspect of the itinerary was that tourists should arrive at Vilu village at 1200 noon to partake of a lunch prepared for them.

The group departed from Mendana Hotel for Red Beach. The order of convoy was first a special car belonging to the Manager of Solomon Taiyo. In this car was Japanese who the Plaintiff described as the ‘leader’ of the group. I shall adopt the same word although I bear in mind that the Defendants contend that it is not entirely appropriate. Then came the bus driven by the Plaintiff with some 45 or 46 passengers on board. The other buses and vehicles followed behind with the remainder of the tourists.

The convoy went to Red Beach. On its return towards Honiara, the convoy reached the fishing village when the car of the leader turned up the Mount Austen Road and stopped, the leader then signalled with his arm to the Plaintiff to turn up the Mount Austen Road. The Plaintiff, somewhat reluctantly, turned and followed. Whether he was right to do so is a matter in dispute in the case and to which I must return.

The convoy, following the leader’s car, then went up Mount Austen. It reached the Monument where the car stopped and the leader got out and told the Plaintiff to go to the higher part of Mount Austen. The leader got back in his car and the car followed by the Plaintiff and the other vehicles drove up to the top of the mountain. There everyone got out and looked at the view. When the tourists had seen the view the leader got back in his car and drove off followed by the Plaintiff. The time was then 11.15 a.m. It was on this descent that the accident happened.

The Plaintiff’s evidence was that on flat part of the road, knowing that the steepest part was ahead, he changed into second gear. He then started to go down applying gentle pressure on the footbrake. But the bus did not appear to slow down and the Plaintiff applied further-pressure. He said that about half way down the incline the foot pedal went all the way down without any result and was loose.

The Plaintiff then thought of using the hand brake operated by a hand lever but he knew that was not working.

He considered using what he called the airlock brake operated by a switch but was apprehensive that it might lock all four wheels suddenly. Nevertheless, as the bus was going fast he decided to operate it. He pushed down the switch. Nothing happened. The Plaintiff then decided that he would slow the bus down by putting its wheels in a drain which he thought existed at the side of the road. No drain was in fact there and, the bus running up the side of a small rise close to the road, it turned over. In the accident the Plaintiff suffered the injury to which I have referred.

The claims made by the Plaintiff are under two main headings. The first is a claim that the Defendant was negligent and therefore in breach of its duty as an employer to its employee. The second is that it was in breach of a duty imposed upon it by an Act of Parliament. Both claims turn upon the condition of the brakes of the bus. The Defendant contests those claims on the basis that it was not negligent or in breach of statutory duty, or in the alternative, if it was the Plaintiff caused or contributed to his own injuries by going up Mount Austen against instruction or that his handling of the vehicle at the crucial time was in itself negligent.

Let me start then with a consideration of the condition of the brakes of the bus. The bus was a HINO rear engined diesel bus brought to the Solomon Islands in 1978 or 1979 as a reconditioned bus. No one was able to give me its exact size but as a bus capable of carrying 50 passengers it was clearly of a substantial size. It had a number of braking systems. These were:-

(a) The service brake. This operated by air pressure built up on starting the engine. It was applied by pressure on the foot pedal and this in turn, by air pressure in the system, operated the linings against the drums on all four wheels. The evidence was that pressure on the pedal in such a system had to be steadily maintained and the brakes were not to be pumped as with a hydraulic system. This brake was the one described by the Plaintiff as the foot brake.

(b) The air auxiliary system. Again operated by air but in this case the air pressure kept the brake off by means of a valve and spring. Thus when the air pressure in this system was reduced the spring applied the brakes. This brake was activated by a small lever or switch on the dashboard and operates only on the brakes on the rear wheels. It is used mainly for parking but can be used in motion as an emergency brake. This brake was described by the Plaintiff as the airlock brake.

(c) The transmission brake. This operates by mechanical means only and is activated by a lever at the driving position. It consists of a metal band which, when the lever is put in the on position contracts around a drum mounted on the rear axle. It is intended as a parking brake and the evidence varies as to whether it could be used successfully as an emergency brake when the vehicle was in motion. This brake was described by the Plaintiff as the hand brake.

(d) The exhaust brake. One expert suggested, after reading the workshop manual which has only recently arrived in Solomon Islands, that the vehicle had a brake working on a mechanism in the exhaust mainfold which slowed the engine. However although he had at an earlier date inspected the vehicle, the expert could not say whether the brake was in the vehicle and certainly, even if it was, no one knew of its existence at the time of the accident and it therefore played no part in the events.

On the question of responsibility for the systems of the vehicle there is no dispute that responsibility for the maintenance of the mechanical systems including the brakes was placed upon the foreman of the workshop of Guadalcanal Garage operated by the Defendant and that the Plaintiff's responsibility was restricted to the interior equipment of the bus other than the mechanical equipment. The Plaintiff was under an obligation to bring to the attention of the workshop such mechanical defects of which he was aware in the course of driving the vehicle but he was not a mechanic.

These braking systems were not examined immediately after the accident but an inspection was carried out some six months later in April 1982 by Mr David Pond, the Senior Works Officer of the Public Works Department in charge of mechanical testing and Mr Robert Chairman the tractor manager for Guadalcanal Garage. Both witnesses had impressive qualifications and experience in the field of vehicle mechanics and I am grateful to them for giving the court the benefit of their opinions as well as their observations.

There was substantial agreement between these two experts as to their findings. As to the transmission brake (System (c) they both found that it was completely inoperative. Use of the hand lever resulted in no contact by the brake band with its drum. Both agreed that this was due to lack of adjustment which would be observable by a competent mechanic. The Plaintiff stated in evidence that he had brought this defect to the attention of the foreman and Mr Barley. The latter, in fact, drove the bus himself on occasions and therefore must have been aware that the transmission brake was not working. I find that the Plaintiff had in fact discharged his duty to bring this defect to the attention of the Defendant and that the Defendant Company was negligent in not remedying the defect.

I shall defer consideration of the extent to which this negligence contributed to the injuries of the Plaintiff until I have completed my conclusions in relation to the braking systems.

The service brake (system (a)) worked on all four wheels although the undisputed evidence was that on a rear engined bus of this size the most important brakes doing the larger part of the work were the rear brakes. Thus the rear brakes had shoes and drums of twice the size of the front wheel brakes. The air auxiliary (system (b)) worked as I have said on the rear brakes only. On inspection six months after the accident the linings and drums were in good condition and I find that they were in good condition at the time of the accident. In addition the air pressure system and its capacity to retain pressure were in good order.

At the inspection tests were carried out on these braking systems. The first test took the form of measuring the travel of the servo which activated the brakes by means of a lever on the brakes themselves. The travel of the servo was measured when the brakes were applied and the lever was connected. The lever was then disconnected and the servo travel measured again. This would give an indication of how much force could be applied on operating the brakes to the lever and hence to the brake shoes. On the front brakes there was significant difference in the travel of the servo connected and disconnected. On the rear brakes the travel was the same.

Both experts agreed that the fact that the bus had been standing for six months would not have any effect on these measurements and that therefore the bus was in the same condition as far as servo travel was concerned at the time of the accident.

Both experts also agreed that the conclusion to be drawn from these measurements was that the front brakes would have been in working order but that the back brakes were only working to a limited degree as the servo reached the end of its travel with the brake linings coming into contact with the drums. This contact would initially slow the bus but prolonged braking would lead to a decrease in the efficiency of the brakes as further pressure of the linings against the drums could not be obtained by continuing to apply the brakes. Mr Pond said that the effect would be that the contact would generate heat which would be dissipated into the metal drums. The drums would expand away from the linings but the linings would be unable to follow as no further travel could be obtained and the rear brakes would come off. Mr Chan was only prepared to say that prolonged braking would result b a loss of efficiency in the rear brakes.

A further test was made by Mr Pond with a Tapley meter which measures the decelaration of a moving vehicle to which the brakes are applied. Mr Pond drove the bus in April 1982 and on applying the service brake by means of the foot pedal the braking showed an efficiency of 40%. On applying the switch operated auxiliary brake which activated the rear brakes only the efficiency was recorded as 17%. Mr Charman was not present on this test but said that these readings would seem reasonable in the light of his observations and the tests he carried out.

These Tapley test findings are challenged by another expert, Mr Grundle, who is the Manager of Guadalcanal Garage Limited and is also qualified and experienced in the field of mechanics. Mr Grundle made two points. One was that the front axle of the vehicle was damaged in the accident and was driven on the test in such a condition. He suggested this would affect the result of the test. The second was that with the bus standing in a humid tropical climate for six months he would expect deterioration of brake linings and rusting of brake drums which might also affect the result. The difficulty with the points made by Mr Grundle is that he had himself at no time inspected the vehicle or its brakes and systems and therefore his opinion is not as valuable as it might have been if he could have given the details of the observations upon which it was based. As I have said the two experts who made the examination found on visual observations that the linings and drums looked alright. Mr Pond did not think much of the point as to deterioration although Mr Charman thought internal deterioration could be present. On the question of the axle Mr Pond, the independent expert, drove the bus and considered the test readings of value. Mr Charman said that they accorded with his observations. I find as a fact that the Tapley test readings are a useful indication of the braking efficiency of the vehicle at the time of the accident.

The conclusions of both the experts who made inspections are similar. Mr Pond said, of the two systems operating at this time, the service brake was in his view efficient but that the auxiliary brake was not efficient. Mr Charman went even further: he said that both the service brake and the auxiliary brake were inefficient. Both agreed that the inefficiency was due to a simple lack of adjustment of which the rear brakes were in urgent need and that this lack of adjustment would be observed by a normally competent mechanic who would be able to carry out the adjustment. In view of this evidence, the fact that the bus passed its government test on 19th October 1981 does not absolve the Defendants from responsibility for what was negligent maintenance.

The evidence also was that the defect in adjustment would not be noticeable to a competent driver in ordinary traffic conditions but would only become apparent on prolonged or emergency braking. There was some suggestion that the vehicle might dip to the front on braking but it is not suggested that this was sufficient to alert the Plaintiff or any other driver to the inefficiency of the rear brakes.

I find therefore that the braking system on this vehicle was negligently maintained in two respects: first by failure to adjust the transmission brake; second by failure to adjust the rear brakes. I further find that in providing a vehicle in this state for the Plaintiff to drive the Defendant Company was in breach of its duty to provide safe equipment for its employee the Plaintiff. In view of the clear evidence I reject the claim by the Defendants that these defects were latent and could not have been discovered by exercise of reasonable care, skill and diligence.

As far as breach of statutory duties is concerned, the Plaintiff relies upon Regulation 27 of the Traffic Regulation made under section 81 of the Traffic Act (Cap. 19). Regulation 27(1) reads -as follows:-

“27(1) Every motor vehicle when used on a road shall he equipped with two entirely independent and efficient braking systems, or with one efficient braking system having two independent means of operation, in either case so designed and constructed that the failure of any single portion of any braking system shall not prevent the brakes on two wheels, or, in the case of a vehicle having less than four wheels, on one wheel, from operating effectively so as to bring the vehicle to rest within the distance and under the conditions specified in paragraph (9)”

Regulation 27(9) reads: -

“The braking system on every motor vehicle shall be so constructed and maintained as to bring the motor vehicle to a stop in a distance of 25 feet when running at a rate of 15 miles per hour on level ground; in order to measure the adequacy of a braking system under this paragraph it shall be lawful for any police officer or inspector to use a Tapley meter or other instrument of the like function specified for the purpose by the Chief of Police, and any reading on such meter or instrument of less than 20 per cent shall be prima facie evidence of the inability of the brakes tested to conform to the requirement of this paragraph.”

Counsel for the Plaintiff submits that first one must simply look at the words in Regulation 27(1) “two ....efficient braking systems” and if I find that one or both of the systems in operation at the date of the accident was or were not efficient, then breach of statutory duty is established. There is no dispute that inefficient maintenance of brakes can render them inefficient for these purposes (Cole v. Young (1983) 4 All E.R. 89). The question of the standard to be reached is discussed in Badham v. Lambs Ltd (1945) 2 All E.R 295 where DuParcq L.J. said at p. 297:-

“It is of the highest importance that it should be understood that the brakes must be good enough to be reliable in an emergency so as to avoid an accident.”

The learned Lord Justice then found there was a breach of statute requiring brakes to be in “good and efficient working order” when they failed in an emergency due to oil on the linings.

In this case the evidence was all one way that at least, one of these systems (the air auxiliary system) was inefficient. I find that both systems were inefficient. This follows from the fact that in an emergency or on prolonged braking the brakes on the rear wheels would lose efficiency, to put it at its lowest. As the service system relied upon these rear brakes for the greater part of its retarding power that system too would be inefficient in an emergency. To this extent the Tapley meter reading of 40% in relation to this system under normal conditions braking from 20 m.p.h. is not in itself a sufficient guide to whether or not the brakes were “efficient. The clear evidence of the experts about what would happen in emergency with these ill-adjusted brakes is, however, quite sufficient to render a finding of breach of statutory duty, in my judgment, inevitable.

I turn now to what did happen in this particular emergency which faced the Plaintiff and his full load of passenger on the Mount Austen road in order to assess contributory causes and hence liability.

To go immediately to the heart of the matter I have no hesitation in finding that what happened as the Plaintiff started to negotiate the steep part of the descent from the peak of Mount Austen was that the prolonged nature of the braking required to slow the bus caused the rear brakes to lose efficiency due to their lack of adjustment. The front brakes alone were incapable of retarding the bus. The service brake therefore, properly applied by the Plaintiff, was ineffectual. As it was the loss of efficiency of the rear brakes which caused this failure of the service brake then application of the auxiliary brake was equally ineffectual as that worked only on the rear brakes. The transmission brake was not available.

I have given careful consideration to the evidence in relation to the transmission brake in seeking to decide to at extent the fact that it was inoperative contributed to this accident. The experts all agreed that it was intended as a parking brake and, to say the least, would need very careful application on a moving vehicle. It was constructed of a metal band contracting against a metal drum with no method of dissipating heat generated. Its gearing power, as it operated on the transmission, was considerable. I have come to the conclusion that if it had been available and operated, even cautiously, as the sole braking power on this vehicle, on the balance of probabilities the result would have been that the brake would have disintegrated or that it would have broken the rear axle shafts or snatched on suddenly causing loss of control. I do not therefore find that the negligent failure to adjust the transmission brake can be said to have contributed to the accident. The prime cause of the accident was the negligent failure to adjust the rear brakes.

How then it is said that the Plaintiff himself contributed to this accident? First it is said that he failed to check the vehicle before setting out. In fact there is no evidence that he failed to carry out the normal checks required of a competent driver. Even if there were such a failure the checks would not, as I have indicated, reveal the inefficient brakes.

Then it is said that he should not have gone to Mount Austen at all on the 27th October, 1981 as not only was such a journey not in his communicated itinerary but also the Plaintiff had been told not to go to Mount Austen. As to the latter instruction, this depends upon the evidence of Mr Barley. Initially, although invited to give the court details of what he said to the Plaintiff, Mr Barley gave evidence more than once which did not include any specific reference to Mount Austen. Finally, in cross-examination, he claimed that he did in fact say “There is no need to go to Mount Austen” as the tourists had already had two days there. I found Mr Barley an unconvincing witness on this point and I prefer the evidence of the Plaintiff that nothing was said about Mount Austen. It seems unlikely that it would be. All anyone was concerned about was that the tourists should have a good time and should arrive at Vilu at 12.00 noon for a lunch prepared for them. I cannot imagine anyone felt strongly one way or the other if they wanted to go to Mount Austen or not as long as the timetable was followed.

There was some suggestion that to go on the final stretch to the peak of Mount Austen was dangerous and should not have been attempted in the bus. Mr Charman, the Defendant expert, said however that the bus with brakes all working properly would have no difficulty at all in stopping on descent on the Mount Austen road. In fact the only scintilla of evidence that to go to the peak of the mountain was a dangerous course was from Mr Barley who again, after a number of statements that the only reason not to go past the monument was that that was the only “highlight”, finally said there was an element of danger. He then retracted this statement. I find therefore that there was no negligence in the Plaintiff taking the bus to the peak of Mount Austen. Having already considered the questions of express instructions not to go up Mount Austen and the departure from the tour itinerary it follows that I reject the allegations of contributory negligence contained in Particulars (b) and (c). Particular (e) which alleges that the Plaintiff drove outside the scope of his employment is abandoned. In any event it would be a denial of liability as an employer rather than a ground of negligence.

I turn now to the allegations that it was the Plaintiff handling of the vehicle that caused or contributed to the accident. I have already considered Particular (a) (Failure to check the vehicle before driving) and rejected it. Particular (g) alleges failure to report a defect. I have already found that the Plaintiff could reasonably not have been aware of the maladjustment of the rear brakes and that he did, indeed, report that defective transmission brake. This Particular is also rejected. As to Particular (h) (driving at excessive speed downhill) as I have found that the speed of the vehicle was due to the failure of the brakes to retard its forward motion and that failure was due to no fault of the Plaintiff, then this Particular is also rejected.

Particular (f) alleges that the Plaintiff failed to use reasonable care and skill in applying the vehicle’s brakes. The only suggestion that there might be substance in this particular comes in an inference to be drawn from the evidence of Mr Charman when he said that with 46 passengers and descending the Mount Austen road the brakes in the condition as seen by him in April 1982 would have “slowed the vehicle to a safe condition”. If I may respectfully say so, this statement was at odds with the tenor of the rest of Mr Charman’s evidence which was that the two operative brakes were “inefficient” and that the brakes on the rear wheels were in urgent need of adjustment and they would “lose efficiency” on prolonged braking. On this aspect I prefer the opinion of Mr Pond that the rear brakes would cease to function altogether on prolonged braking and find as a fact that his did happen on this occasion leading to a complete failure of all braking systems in retarding the bus. I also accept the evidence given by the Plaintiff of the manner in which he endeavoured to apply the brakes and find that this was, in the circumstances, a proper and reasonable course of conduct. Indeed there has been no direct evidence lead which suggested the contrary. Particular (f) is also rejected.

The only remaining Particular of negligence in the Defence is (d) which alleges that the Plaintiff changed gears when it was unsafe to do so. The Plaintiffs evidence was that he remained in 2nd Gear throughout and that the engine was “revving fast”. When the matter was put to him the Plaintiff was adamant that he did not attempt to change down from 2nd gear. He said in fact that one had to stop the bus to put it in First Gear. He had previously attempted to change down on a road when in motion but had not been able to do so and hence on this occasion he made no such attempt.

The Defendant Company relies upon the evidence of what the Plaintiff is alleged to have said after the accident when he was in hospital. This evidence comes from Mr Barley and Mr Gubbay, the Chairman of the Defendant Company. Mr Barley’s evidence was that he was visiting the Plaintiff when Mr Gubbay came in and questioned the Plaintiff about the accident. His recollection was that the Plaintiff said he made the attempt to put the vehicle in lower gear but round he could not do that by which time the vehicle had picked up tremendous speed and was out of control. In cross examination Mr Barley said that the Plaintiff said he changed gear before going down hill (my emphasis).

Mr Gubbay gave the conversation in greater detail having said initially that he arrived at the hospital with Mr Barley and another employee. His account of what the Plaintiff said included however not only a statement of an attempt to shift down from 2nd gear to 1st gear but also that the brakes were not functioning. The evidence of the Plaintiff was that Mr Barley and Mr Gubbay did not come and visit him together must and that at no stage did he say that he had attempted to change gear downwards at the crucial period.

Apart from the difference in the evidence given the Defendant’s witnesses about this conversation, I find both of them to be unsatisfactory witnesses in the evidence they gave. I have already mentioned other aspects of the case upon which I do not accept the evidence of Mr Barley and, his account of how Exhibit D came into existence was vague and inconsistent. Mr Gubbay frankly confessed that he did not have a good memory and that as a result he made notes in a diary of the conversation. He went to say that he had not, however, consulted the diary since writing in it nor had he brought it to court. Nevertheless he gave in great detail what he said were the words used at an interview which took place some 15 months before. In cross examination the witness said that it was because he remembered the salient points that he could, rely on this account despite his bad memory. Putting aside the witnesses’ tendency to respond with too much vehemence to what were proper questions put to him, I was impressed with neither the content of his evidence nor the manner in which it was given.

The Plaintiff on the other hand was an impressive witness and on some aspects of the case obviously taking great pains to be truthful where a devious man might have tempted to gloss over certain matters, for example, on the effect of the loss of his arm or his life. On these questions of what took place in hospital I prefer his evidence to that given for the Defendant and find that the conversation as alleged on the part of the Defendant did not take place. I also find that the Plaintiff did not attempt to change down from 2nd gear to 1st gear and reject Particular (d). I should perhaps add that the evidence as to the speed at which the vehicle’s engine would disintegrate in 2nd gear does not assist me greatly as I have been given no direct evidence nor expert estimate of the speed reached by the vehicle before it overturned.

I therefore find that the Plaintiff did not cause or contribute to the accident which caused his injuries in anyway and that the liability of the Defendant towards him is 100%.

I must assess the damages payable. The Plaintiff suffered a traumatic severance of his right arm above the elbow. The Plaintiff was previously a right handed man. The story of his suffering and recovery is a remarkable one which shows great credit to the Plaintiff for his courage and resilience in the face of adversity. As his counsel rightly observed in this case the Defendant is for once lucky that a Defendant must take his Plaintiff as he finds him. He is now aged 25 years.

After the accident the Plaintiff walked out through the front windscreen of the bus and was driven to hospital fully conscious and feeling no pain. After walking into the hospital he was given an injection and blood transfusion. An operation took place to put a skin flap over the wound. The Plaintiff left hospital after 14 days having in the second week been on what I might call day release. He then remained at home for 6 months.

On return to work he was offered by the Defendant company work as a security guard at $140 a month; the same pay as he earned as a driver. The Plaintiff remained in this work for 2 or 3 months, but found it uncongenial and left. It is accepted by him that the Defendant was prepared to so employ him until retirement.

The Plaintiff has now returned to work his family plantation. He supervises the work of the labourers and directs such matters as replanting. The figures I was given for production and so on were not particularly helpful in enabling me to ascertain what the Plaintiff could expect by way of financial return as not only were there imponderables such as market prices and growth rates of plantings but also there were unspecified number of other persons also entitled to a share in profits. The indications were that at present he could expect less than he had been earning in the employ of the Defendant.

Of the heads of damage set out on page 249 of Longa v.Solomon Taiyo Ltd (1980-1981) SILR 239 (Longa’s case) at page 249 I am asked to assess damages under heads (3) Economic loss in the future; (4) Inability to enjoy the usual amenities of life; (5) Pain and suffering and general inconvenience; and, (6) Disfigurement. I am then, asked to assess what are usually regarded as general damages.

Let me say something first of all about the assessment under head (3). In Longa’s case at page 250 this Court said:

“To some extent economic loss in the future (3) falls between the two categories of special and general as although the loss can be actuarially computed in some places, the resulting calculation remains a calculation founded on informed guesses as to the future. Thus future economic loss is more aptly placed within the general damage category.”

In this case no attempt has been made to compute future economic loss as it is impossible to compare earnings in the past employment of the Plaintiff with financial receipts in his present position. It is also right to say that the Plaintiff had an opportunity to continue in employment at the same rate as before. Counsel submits that no-one is obliged to mitigate his loss by accepting uncongenial work. Whilst this is clearly a factor to be taken into account in assessing future economic loss I do not consider it has quite the rigorous force in a society where there are not so many employment opportunity as elsewhere.

In this case, although I accept that the Plaintiff found the work of security guard boring as compared to that of a driver/trainee tours operator I consider that I must take into account the fact that he left well paid work of his own accord in assessing his future economic loss. On the other side, I also take into account that he is, with one arm, a man with far worse prospect of employment in Solomon Islands especially as a driver, his chosen trade. Despite is the fact that he now drives a motor car again, it is obvious of that in an employer’s labour market a man with one arm is not in a good position when it comes to application for work as at a driver. I also take the view, having observed the Plaintiff in the witness box and heard that he was a trainee officer with the Defendant, that he was a man likely to be a success in his employment and hence to receive promotion. By the same token it is probable that he will make a success of the management of the family plantation which he has now undertaken.

Assessing as best one can all these features I consider that, whilst there should be an element in the general damages to represent future economic loss it should in this case be in the nature of a notional figure which recognizes the fact that some loss on the balance of probabilities will occur, I propose to assess this figure as $3,000.00. I should add that on the normal burden of proof it is for a party who seeks to assert a loss to establish it upon the balance of probabilities and, therefore a party who seeks more than a notional figure for future economic loss should lay the evidential basis for such a claim.

On the assessment of general damages under Heads (4), (5) and (6). Counsel for the Plaintiff has made, as usual, his helpful submissions on quantum, relating past awards of this court to awards made in England and Wales and Papua New Guinea. In Sukumia v. Solomon Islands Plantations Limited ([1982] SILR 142; Civil Appeal Case No. 11 of 1982: Judgment given on 5th January 1983) this court discussed the question of ratio between awards and said in relation to a submission based upon a ratio between awards for loss of an eye and a broken leg in England at page 3:-

“There is however lurking in the argument the danger that by accepting it, we would be merely applying in Solomon Islands a scaled down version of damages awarded in the United Kingdom with its vastly different standard of living and way of life to Solomon Islands. It maybe that Solomon Islanders would put a different ratio upon loss of an eye as compared to a broken leg and if they would do so one would not be observing consideration 2 (“the need to be fair in the eyes of the community”) if one applied the ratio developed in the English Courts. It might have been additionally helpful if one had been referred to the ratio applied, for example in Papua New Guinea.”

Counsel has now been kind enough to extend his research to the Papua New Guinea authorities.
In this case we are dealing with loss of an arm which is a much more serious matter to a Solomon Islander than loss of an eye. In Longa’s case the evidence was that the Plaintiff had no difficulty in obtaining employment in the same work and at the same rate as that with his employer prior to the accident (see pages 250 and 251). There was also no evidence that he was unable to enjoy the usual amenities of life (see page 258). In this case it is clear that the Plaintiff will suffer considerable general inconvenience particularly in a society where reliance upon the ability to perform manual acts in the garden, in house building, in the plantation and in ordinary daily life is much greater than elsewhere in the world. There are, of course, none of the services and facilities which make possible for persons elsewhere to discount their disability. In particular, as is agreed in this case, there are no facilities for the Plaintiff to obtain and maintain an artificial limb. In those circumstances this seems to me to be a case where the ratio between loss of an eye and loss of an arm in Solomon Islands should be greater than it is in England and Wales.

My award therefore for general damages under heads (4), (5) and (6) is the sum of $21,000, which together with the sum awarded under head (3) of $3,000 makes a total of $24,000.00.

Although not pleaded, it is conceded that the Plaintiff has received $4,487.38 by way of Workmen’s Compensation and that, in accordance with section 27(1)(a) of the Workmen’s Compensation Act (Cap. 77) as interpreted in Official Administrator for Unrepresented Estates v. Allardyce Lumber Company 1980 81 SILR 66, that amount must be deducted from the damages awarded in these proceedings. There will therefore be judgment for the Plaintiff in the sum of $19,512.62 with costs.

I shall hear submissions on the question of interest.