HIGH COURT OF SOLOMON
ISLANDS<
Civil Case No. 045 of 2001
v
p class="MsoNormal" align="center" style="text-align: centecenter; margin-top: 1; margin-bottom: 1">
MEGA CORPORATION LIMITED AND
ATTORNEY GENERAL
Court of Solomon Islands
Before: F.O. Kabui, J
Civil Case No: 045 of 2001
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Hearing: 29th May
2001<
Judgment: 01st June
2001
C. Ashley for the Applicant
P. Tegavota for the 1st
Respondent
F. Waleanisia for the 2nd
Respondent
JUDGMENT
(Kabui, J):
By Originating Summons filed on 23rdrd
April 2001, the Applicant
seeks the determination of the following questions-
1. &nbssp;&nnbsp; Whether ther ther the 1st
Respondent, as employer of the Applicant's husband (now deceased), paid and
maintainployeiabilnsurance pursuant to and in accordance with
section 20 of the Empe Employmeloyment Acnt Act, and
2. & p;&nssp; Wsp; Whetherether under the
provisrovisions of section 6 of the Workmen's Compensation Act, the 1st
Respondent is only liable to pay to the Applicant the amount of $43,200.00
as instructed by the 2nd Respondent or the prescribed amount of
$80,000.00, for the death of the Applicants husband who died in the cause of
his
employment.
3. p;&nbbsp; Whether the the the 1st
Respondent, as the owner of the vehicle driven by the Applicant's husband
decea paidmaintained 3rd Party Insurance for the
said vehicle pule pursuanrsuant to t to the provisions of the Motor Vehicles (3rd
Party Insurance) Act.
4. &nbssp;&nnbsp; bsp; Whether under he
pr provisiovisions of section 5 of the Motor Vehicle (3rd Party
Inse) the 1st Respondent is exempted from paying a further
amount of $60,000.,000.00 for the death of the Applicant�s husband who died in
a
motor vehicle during the course of his employment.
By Notice of Motion filed on 28
May 2001, the 2nd Respondent, in response, see, seeks the following orders-
1. ;&nbssp; bn order to
to
to
strike out the Applicants Originating Summons in so far as it affects the
2nd Respondent
fn-comce wider 5the (Civil Procedure)
Rules, 1964 and/or,
>
2. & p;&nssp; Asp; An orde order to
strike out tout the 2nd Respondent from the proceedings pursuant to Order 17 r.11
of the (Civil Procedure) Rules, 1964.
3. & Cost Co/ts.
>
4. &nbssp; Any othy other orders
that the court deems necessary.
The effect of the 2nd
espondent's Notice of Motion is for an Order by the Court turt to strike out the
Applicant�s Originating Summons forthwith
or in the alternative, an Order to
strike out the 2nd Respondent as a party to the Applicant's
Originating Summons.
The Facts
The Applicant is the wife of
the deceased who died as a result of an accident which took on 18th
A April 1998 in the Isabel Province. The deceased was employed by the 1st
Respondent as a log truck driver whose total earning was $1,200.00 per
month. A report to the Commissioner of Labour
was completed and signed on 11th
May 1998. A return of the accident form was also completed and signed that
same date. A medical certificate of cause
of death had been completed and
signed on 20th April 1998. The deceased is survived by four
children and his wife. The assessment of compensation payable was done by
the Commissioner of Labour which came to $43,200.00. This amount was
forwarded to QBE Insurance on 23rd June 1998 and was paid to the
Magistrate, in Honiara, by a cheque dated 30th June 1998. The sum
of $8,000.00 was paid into accounts for the four children to be opened by
the Gizo Magistrate Court
and the balance was distributed amongst the
deceased�s relatives and the wife�s family. Funeral expenses were met by the
1st Respondent though the wife was not aware of the details of
these expenses.
The 2nd Respondent�s
Notice of Motion
Counsel for the 2
Respondent, Mr. Waleanisia, argued that in terms of Order 58, rule 2 of the
High Court (Civil Procedure) Rules 1964
(the High Court Rules), there could
be no case for the Applicant to bring to Court because the issues were of
facts rather
than being of law. That is to say, the issue in this case was
whether or not the sum of $43,200.00 was the correct compensation
for the
death of the deceased and nothing more, an issue of fact. Counsel relied
upon the case of Brownless Zaku and Others v Public Service Commission
and Joseph Harold and Others v Public Service Commission (Civil Cases
Nos. 063 and 079 of 1999). In my view, the cases cited by Counsel can be
distinguished on the facts. Palmer,
J. struck out the Originating Summons in
both those cases because the applicant�s cause of action lie in the writ of
certiorari and not under Order 58 rule 2 of the High Court Rules. This is
not the case here where the issues are whether or
not under section 6 of the
Workmen's Compensation Act (Cap. 78), the already paid $43,200.00 was the
correct amount of compensation and whether or not the sum of $60,000.00 be
further paid to the Applicant under the provisions of the Motor Vehicle
(Third Party) Insurance Act. These issues are contained in paragraphs 2 and
4 in the Originating Summons. They will involve the interpretation of
section 6(a) of the Workmen�s Compensation Act (Cap. 78) and the relevant
sections of the Motor Vehicle (Third Party) Insurance Act (Cap. 83).
However, I do agree with Counsel that paragraphs 1 and 3 of the Originating
Summons are questions of facts
rather than of law. I strike them out
accordingly. Paragraph 2 and 4 will remain part of the Originating Summons.
I will
not strike them out.
The other argument by Counsel
as that the 2nd Respondent be struck out as a party to the the Originating
Summons filed by
the Applicant. There was no affidavit evidence to support
this argument. The fact is that the calculation of the sum of $43,200.00
was
done by Mr Age on behalf of the Commissioner of Labour in accordance with
section 6(a) of the Workmen's Compensation Act. Someone would have to defend
the calculation of the sum of $43,200.00 and its correctness under section 6
of the Act.
If the Commissioner of Labour cannot do it personally, he would
have to instruct a Government lawyer to do it for him on behalf
of the
Government for the Labour Division is part of a Government Ministry, (see
the provisions of the Crown Proceedings Act (Cap. 8) ).
In my view, the
Attorney-General is a relevant party in this Originating Summons. In the
result, I must reject the 2nd
Respondent's Notice of Motion. The application
is dismissed.
The Applicant�s Originating
mons
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
As I have already ruled,
paragraphs 1 and 3 in the Originating Summons are no longer matters for
consideration by the
Court. Paragraph 2 in the Originating Summons requires
the consideration of section 6(a) of the Workmen's Compensation Act. The
relevant part of section 6(a) states-
�(6) Wherth
resultm fro ithe injury-
b>
if the workman leaves any
dependants wholly dependent on his earnings, the amount of compensation
shall be a sum equal
to thirty-six months' earnings or such sum as the
Minister may prescribe by order whichever is less:
Provided th no case
shall the amount of compensation under this this paragraph be less than such sum
as the Minister may
prescribe by order:
ass="Mss="MsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
Provided further that where
in respect of the samedent compensation has been been paid under the
provisions of section
7 or section 8 there shall be deducted from the sum
payable under this paragraph any sums so paid as compensation:
(bsp;
...................<....
(c) &nbbsp;&
........................�
<
class="MsoNoMsoNormal" style="mar="margin-tgin-top: 1op: 1; margin-bottom: 1">
Counsel for the Applicant, Mr.
Ashley, argued that in terms of Legal Notice No. 104 of 1996, the minimum
limit of compensation
payable under section 6(a) was $11,500.00. The
maximum, he said, was $80,000.00. He justified his argument by saying that
the sum of $80,000.00 being the maximum limit was covered by insurance cover
under section 20 of the Employment Act (Cap. 72). He said the correct amount
to be paid was $80,000.00. This argument completely disregards the 36 months
earnings
formula in section 6(a) of the Act.
Counsel for the 1st
ndent, Mr. Tegavota, however argued that there were two meto methods of
working out the correct sum of compensation.
The first, he said, was the
method of taking 36 months earnings of the deceased and multiplying that by
the rate per
month which in this case was the figure of $1,200.00 per month
giving a total of $43,200.00 (section 12 of the Act). Second,
he said, was
any sum prescribed by the Minister which in this case were $11,500.00 being
the minimum and $80,000.00 being
the maximum. However, he pointed out that
the amount to be paid was the lesser amount but must be within the limits
prescribed
by, Legal Notice No. 104 of 1996. In this case, he said, the sum
of $43,200.00 being the lesser amount was within range and
was the correct
compensation amount. Counsel for the 2nd Respondent took up the
same line of argument and agreed with Counsel for the 1st Respondent. My
finding is that section
6(a) of the Workmen�s Compensation Act remains
substantially the same as section 6(a) of the Workmen�s Compensation
Regulation 1952. In 1952, the compensation
range was between �600.00 and
�100.00 respectively. In 1964 the range was between �3,000.00 and �200.00.
In the Laws
of the British Solomon Islands Protectorate 1969, Volume V.
Chapter 77, the respective figures were $6,000.00 and $400.00.
By the
Workmen�s Compensation (Amendment) Act, 1979, section 6 was further amended
to say that such sum would be as prescribed
by Order of the Minister. By
Legal Notice No. 29 of 1979, the Minister prescribed under section 6(a) of
the Act $9,000.00
and $1,000.00 respectively. By Legal Notice No. 137 of
1991, these figures were increased to $60,000.00 and 2,000.00 respectively.
The current figures by virtue of Legal Notice No. 104 of 1996 are $80,000.00
and $11,500.00 respectively.
What then is the intention of
Parliament
No affidavit evidence was filed
y the Commissioner of Labour to explain the practice in then the implementation
of section
6(a) and other similar provisions in the Act. Such an affidavit
would have been filed by the Attorney-General thus making the
Attorney-General a necessary party in this case. In the absence of that
evidence, I have consulted the relevant Hansard
Report in 1964. One thing is
clear over the years. The 36 months earnings formula has remained unchanged
to date since
1952- 49 years today. Does it make sense to retain it today?
It perhaps does make sense if one takes as an example an employee
whose
monthly earnings is, say, $3,000.00. Applying the formula in section 6(a) of
the Act, the resulting sum would be
$108,000.00. Under this formula the
dependants of that employee would be paid the sum of $80,000.00 because it
is the
lesser sum. If, on the other hand, like here, the monthly earnings
was $1,200.00, the resulting sum was $43,200.00 being the
lesser sum. That
would also make sense because the sum payable would depend largely upon the
rate of pay per month for
each employee. Employees in senior positions with
higher rate of pay would be likely to attract higher compensation payments
subject to the limit imposed by the Order of the Minister. If, in this case,
the deceased was earning $2,200.00 per month,
the sum payable would have
been 36 months x $2,200.00 which would be $79,200.00. If he had been
receiving $2,250.00 per
month, the sum would have been $81,000.00 but
because of the effect of Legal Notice No. 104 of 1996, the sum would have to
be reduced by $1,000.00 so that only $80,000.00 would have been paid being
the lesser sum. The difference of rates of
pay is the factor that determines
the size of the compensation payable under Legal Notice No. 104 of 1996 to
the dependants
of any deceased employee within the meaning of the provisions
in the Workmen's Compensation Act. There is therefore a direct link between
the 36 months earnings formula and the limits specified in Legal Notice No.
104 of 1996. That is to say, the rates of pay per month is calculated by
this formula and then is measured against the yard
stick in Legal Notice No.
104 of 1996 and any future Legal Notice for that matter.
The minimum sum of $11,500.00
ascribed in Legal Notice No. 104 of 1996 caters for persons wons whose pays
are small per
month such as part-time employees or employees in the lower
wage bracket. Again, for example, if an employee whose monthly
pay is
$200.00 per month died in the course of employment, the formula as in
section 6(a) would be 36 x $200.00 which
yields the sum of $7,200.00. In
such a case, the defendants would receive the sum of $11,500.00 being the
minimum allowable
under the law. In this category of employees, the minimum
limit of $11,500.00 that matters and not the rate of pay. The flat
minimum
of $11,500.00 is considered to be the appropriate compensation for death in
the lower category of workers in
Solomon Islands. The Minister is now able
to adjust the maximum limits by making fresh Orders as circumstances change
in the employment sector. Previously, such adjustment would have had to go
to Parliament. Payments under section 6(a) and
other relevant provisions in
the Workmen�s Compensation Act are covered by insurance under section 20 of
the Employment Act (Cap. 72).
Paragraph 4 in the Originating
Summons also requires the consideration of section 5 of the Motor Vehicle
(Third Party)
Insurance Act (Cap. 83)
The relevant part of section 5
is subsection 2 which states
�5 nbsp; ........... ....
(a) .. .............
(b) .. ............
(2) &nbbsp; Tsp; The amount of iliability insured under a third-party policy, issued on or after 2nd
April 1984 may be limited to sixty thousand dollars in the of ae
cident or series of accidents arising out ofut of one
one eventevent.
(3) & p;
sp;
. ..................
(pt">(a) &
sp;
..................
(b)   &nbs;&nnbp; &
sp;
..................
0pt">(4) &(4) nbsp; p; &nbp; ..........
....span>span>
(b) &
sp;
..................
 an> : 1">
The fact is that the 1st
Respondent had not taken out a third party insurance policy cover for its
logging truck driven by the deceased on the
date the deceased met his death.
Counsel for the Applicant argued that the third party insurance policy cover
was a compulsory
requirement under section 3 of the Act except those
exceptions in (a), (b), (c) and (d) under that section. In pursuance of
section 23 of the Act, the Minister by Order (Legal Notice No. 71 of 1973)
restricted the operation of the Act to such
areas in Solomon Islands not
exempted under section 84 of the Traffic Act (Cap. 131). By virtue of Legal
Notice No. 81 of 1983, Parts 11 and 111 of the Traffic Act only applied to
the places specified in that Legal Notice. The Island of Isabel is not
specified in Legal Notice No.
81 of 1983. The implication is that the Island
of Isabel was exempted under section 23 of the Third Party Insurance Act.
Counsel for the Applicant however argued that even if the 1st
Respondent had not insured its log truck against third party risk under the
provisions of the Motor Vehicle (Third Party)
Insurance Act, that omission
would not remove liability at common law for negligence. Counsel for the 1st
Respondent argued that since the Island of Isabel was not included in Legal
Notice 81 of 1983, it followed that the 1st
Respondent was not required to
insure its log truck operating on the Island of Isabel on private roads
against third
party risk under the provisions of the Motor Vehicle (Third
Party) Insurance Act. However, Counsel conceded that liability at common law
could arise even in the absence of the existence of a third party insurance
policy cover for log trucks operating on the Island of Isabel. In
conclusion, Counsel maintained that the 1st Respondent was not
liable to pay the sum of $60,000.00 under section 5 of the Motor Vehicle
(Third Party) Insurance Act.
In my view, the 1st Respondent
was not obliged by law to take out a party insurance policy covy cover
under the provisions
of the Motor Vehicle (Third Party) Insurance Act
because the Island of Isabel is not listed in Legal Notice No. 81 of 1983.
The argument by Counsel, for
the Applicant that common lability was enough to make the lst
Respondent pay $60y $60,000.00
under section 5 of the Motor Vehicle (Third Party)
Insurance Act cannot be correct. The sum of $60,000.00 is the maximum
insurance cover subject to assessment of damages by the Court if assessment
is not agreed by the parties to the action for damages for personal injury
sustained in a road accident. The sum of $60,000.00
is not a lump sum
payment calculated by a specified formula so that it can be paid upon the
completion of such calculation.
As I have said, no such payment can arise in
this case for the reason I have stated above. In the result, I answer
paragraphs
2 and 4 in the Originating Summons in the negative. This case has
raised issues of common concern under the Workmen's Compensation Act and as
such they are of some public importance. I feel that in this regard the
parties must meet their own costs.
(F.O. Kabui)
Judge
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