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Journal of South Pacific Law - BOOK REVIEWS

Book Review 1 of Volume 2, 1998

BY JENNIFER CORRIN CARE

SENIOR LECTURER
SCHOOL OF LAW
UNIVERSITY OF THE SOUTH PACIFIC
BARRISTER AND SOLICITOR

Title: Guidelines for the Assessment of General Damages in Personal Injury Cases (3rd ed.)

Author: The Judicial Studies Board

Published by: Blackstone Press Ltd, London (1996)

ISBN: 1 - 85431 - 577 - 3

pp: 51

This book deals with one of the most difficult tasks facing lawyers involved in personal injuries cases: the assessment of quantum. How can money put a victim back in the same position as s/he would have been in had the injury not been suffered? Obviously, it cannot. Given that the courts do not have the power to turn back time to before the accident in question, they must do the best they can to place a value on injuries in monetary terms.

In Longa v Solomon Taiyo [1980/81] SILR 239, Chief Justice Daly considered that, in making awards, fairness to an individual plaintiff and fairness in the eyes of the community had to be balanced with the need to be fair to plaintiffs generally. An important part of achieving this end is the need to make similar awards for comparable injuries. Approaching this task through reading reported decisions and by ploughing through the case summaries and tables in Kemp & Kemp ('The Quantum of Damages') has always been a daunting prospect. This short book, (51 pages) is designed to make the task much simpler, by setting down standard guidelines for lawyers to refer to in particular cases. Like Kemp & Kemp, it goes beyond the source of reported cases, to take account of unreported decisions. It also takes into consideration settlements drawn to the attention of the authors. This will no doubt tend to balance the picture provided by reference to reported cases only, which concentrate to some extent on unusual cases.

The book is logically and clearly presented. It is divided into the following nine sections, each dealing with a particular category of injury: injuries involving paralysis; head injuries; psychiatric damage, injuries affecting the senses; injuries to internal organs; orthopaedic injuries; facial injuries; scarring to other parts of the body; and damage to hair. Most sections are divided into different types of injury within a category, and then sub-divided into degrees of seriousness. Some sections and sub-divisions commence with a short explanatory note, pointing out particular problems and issues. Each injury covered is briefly described and followed by a range of round figures within which an award of fair compensation should normally fall.

The text was compiled for the Judicial Studies Board by a working party of eminent lawyers, under the chairmanship of Judge Roger Cox. It is intended only as a reflection of the approach by those who assess damages. It does not contain any criticism of or opinion on the awards, which could be viewed as a missed opportunity.

If it is to fulfil its aim of providing current guidelines, a book of this nature requires frequent updating to keep up with the trend of awards. The fact that this is the third edition within four and a half years is a credit to the authors and a sign of commitment to the this objective.

As the source material used in this text is from England and Wales this text is of less value for South Pacific lawyers. Whilst the common law of England and Wales forms some part of the law in most countries of the South Pacific Region, its application is normally restricted to cases where it is appropriate to the circumstances prevailing in the South Pacific country from time to time (see for example, Sch 3, Constitution of Solomon islands, Schedule to the Solomon Islands Independence Order 1978 LN43/78). In relation to quantum, it is arguable that decisions of English courts will often be inappropriate, as they are made in an entirely different economic and social climate. This limitation has been expressly recognised in the region. For example, in Sukumia v Solomon Islands Plantations Limited [1982] SILR 142, Chief Justice Daly refused to assess quantum by reference to the ratio between awards in Solomon Islands, and awards for similar injuries in the United Kingdom. He pointed out that the danger in this was that it failed to take account the vast differences in standards of living and way of life.

Notwithstanding, it has also been recognised within the region that South Pacific jurisprudence is in its infancy and that there is a dearth of authority to which to refer. For this reason reference to overseas awards, is still of importance. As Wood CJ said in Jolly Hardware and Construction Company Limited v Suluburu [1985/6] SILR 87:

Given the almost total absence of precedents in Solomon Islands on the question of damages in personal injuries cases.... such precedents as are available whether in England, Australia, Papua New Guinea or elsewhere at least provide a useful starting point otherwise one is indeed "grasping in the air".

In this context, and subject to consideration of local circumstances, this book will be a most useful reference, until a similar work, based on South Pacific source material is available.

Obviously, no two personal injury cases will ever be the same, even where they do occur in the same country. The severity of the injury and the circumstances of the victim will still require consideration. Notwithstanding, as a means of assistance in preparing advice on quantum and discussing settlement this book provides a valuable starting point. Similarly, although judicial discretion will still play an important role, broad guidelines will assist in achieving consistency and certainty in courts' decisions. Without doubt, this is an excellent and time saving tool for all those involved in assessing damages for personal injuries.

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