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Tera'aka v Dunton [2025] SBHC 41; HCSI-CC 323 of 2023 (21 March 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 323 of 2023

BETWEEN

MARY TERA’AKA
Claimant

AND:

EVERLYN TINA DUNTON
Defendant

Date of Hearing: 19 February 2025
Date of Decision: 21 March 2025

Mr Andrew Radclyffe for the Claimant
No Appearance for the Defendant

JUDGMENT

Bird PJ:

1. Ms Mary Tera’aka (Claimant) filed a claim for damages for assault and battery. Mrs Everlyn Tina Dunton (Defendant) was not an active party after the filing her defence. Due to that fact and for continuously absenting herself from appearing, her defence was struck out. Judgment in favour of the Claimant was entered and assessment of damages was adjourned.
2. The assessment hearing was done on 19 February 2025. Even though the Defendant was served, she did not appear. She did not file any documents to state her position. Notwithstanding, I now deliver judgment.
3. The Claimant’s claim arose from a very serious assault on her by the Defendant. That assault occurred on 13 October 2022 between 1 and 2 am at the Point Cruz Yacht Club. The parties are related to each other. The Claimant was assaulted and beaten. As a result, she fell heavily on the cement floor and sustained injuries to her face and head. She was unconscious. She was taken to the National Referral Hospital and was admitted for a period of three weeks.
4. The Claimant was 57 years old at the time of the assault. She was working with Baoro and Associates as an Administration/Accounts Assistant. She has been working there since June 2010 to the date of assault. She was earning net salary of $1,770.00 per fortnight. She has not been employed since.
5. As a consequence of the assault, the Defendant was charged for the offence of grievous harm. She pleaded guilty to the charge and was sentenced to 22 months imprisonment. Eighteen (18) months of the sentence was suspended for a term of 2 years. In this judgment, I will take note of the discussions on sentence by the learned Magistrate in the court below. That sentence is annexed as AR1 to the sworn statement of Mr Radclyffe.
6. The offence of grievous harm under section 226 of the Penal Code (Cap 26) is a felony. To demonstrate its seriousness the maximum sentence for such offending is imprisonment for 14 years. One of the aggravating factors discussed by the learned Magistrate on sentence was the severity of the offence and injuries. There was bleeding on the right side of her brain due to trauma to the head. It was life threatening. The Claimant could have died.
7. The Claimant has obtained two reports from a Surgeon of the National Referral Hospital on her medical status. The first report was dated 5 July 2023 and a subsequent one was made on 25 November 2024. They are annexed as RJ1 to the sworn statement of Dr Rooney Jagilly.
8. The first report was a result of a review by the doctor on 30 June 2023. On that occasion, the doctor noted that although she was alert and orientated, the Claimant has a slight slow and slurred speech. She has a residual facial numbness. She has relative poor coordination on the right limbs and unsteady when she walks in a straight line. She was also unsteady when closing her eyes and her feet are together. She further has limited range of motions of her right shoulder causing some disability with some daily living functions.
9. The doctor went on to state that although she has had some improvements from the initial injury, she still suffers from residual effect of the trauma. These symptoms and signs still require care and for which she is unable to go back to work. It is difficult to ascertain whether or not the symptoms will resolve.
10. The doctor’s latest report was done on 25 November 2024. The Claimant was reviewed on 4 October. The doctor observed that she has made some improvement. She still has occasional headaches and has unsteadiness whilst walking. Her vision has improved to about 80%. The doctor further observed that the Claimant has slight unsteady gait and some imbalances when her eyes are closed. In summary therefore, she still has some residual signs and symptoms.
11. Following the review and on 7 October 2024, a CT scan was done on the Claimant. There was a marked improvement from the CT scan done soon after the injury. The follow-up scan showed residual gliosis (scarring) in the left temporal lobe of the brain. The scarring is permanent. The Claimant may or may not fully recover from her current residual symptoms. Only time will tell. The doctor’s observations and the CT scan results showed clinical improvements over time. Nonetheless, the Clamant has suffered a lot of pain, discomfort, inconveniences and mental stress during the time.
12. Apart from the above information afforded to the court, there is also the Claimant’s sworn statement. The effect of the injuries sustained from the Defendant’s attack on her had caused damaging effect on her way of life. She is unable to continue working from that day. Her fortnightly salary from her employment with Baoro & Associates has ceased.
13. The comments of the Magistrate in sentence and the contents of the two respective medical reports from Dr Jagilly correspond with each other. The assault on the Claimant was very serious and its effect on the Claimant were likewise very serious. It was life threatening and could have been fatal.
14. Initially, there was bleeding on the right side of the Claimant’s brain. She has nonetheless, made some improvements over a span of about 2 years. She has permanent scarring on the left temporal lobe of her brain. Notwithstanding the improvement, she still suffers residual symptoms including slight unsteady gait and some imbalances when her eyes are closed.
15. It is further noted that the Defendant has not shown any remorse over her action. There is also no record from the court’s sentence that she was remorseful. Her attitude towards the near fatal incident is made obvious from annexure marked MT2 of the Claimant’s sworn statement. I have had the opportunity to peruse the annexure. They contain very personal, damaging, hurtful and demeaning comments not only against the Claimant but also against her family members. The Defendant has a very arrogant and shameless character.
16. I have seen that the post contained in the annexure was send to 39 other users. Up to 47 people have reacted to it. That basically means that all those who saw and reacted to the post read the comments. The personal problem between the Claimant and the Defendant was brought to a public forum and members of the public could also have viewed it. That in my opinion have caused more emotional and mental stress on the Claimant.

Damages for assault and battery

17. The Claimant is seeking damages for assault and battery with interest, special damages and loss of income there is no dispute, the Defendant assaulted the Claimant on 22 October 2022 at Point Cruz Yacht Club in Honiara. She sustained very serious and life threatening injuries to her face and head. She can no longer work as a result. The injuries she sustained will definitely life time effect.
18. There is no case law to assist me in my assessment of the quantum of damages in cases of this nature. Mr Radclyffe of counsel for the Claimant put a figure of more than $50,000.00 for damages.
19. I have had some assistance from the judgment of this court in the case of Liliau v Trading Company (Solomons) Ltd (No 1) [1983] SILR 10. That case involves workman’s compensation. The principles used by the court on page 12 of the judgment are of essence in relation to general damages.
20. In that case, the sum of $21,000.00 was awarded for general damages. The Claimant had lost an arm in a motor vehicle accident. He lost his better paying job. His salary in his subsequent job was less than what he used to have received.
21. In this present case, the Claimant sustained injuries to her face and head. She will be 60 years old on 20 February this year. She was 57 years when she sustained injuries. She was earning $1,770.00 per fortnight. She has now lost her job.
22. The case of Liliau occurred in 1981. The assessment was done in 1983, some 42 years ago. Taking into account the value of money and the cost of living from then to this present day, the assessed value of $21,000.00 could have been higher.
23. In any event, I am of the view that the injuries sustained by the Claimant in this case are very serious. Notwithstanding that she has made some improvements, she will live with permanent scarring on her brain for the rest of her life. She will also live with the residual symptoms as observed by Dr Jagilly.
24. So with those observations and notwithstanding that in the Liliau case, he has lost an arm, the effect of the injuries sustained by the Claimant in this case could be seen to be similar in that regard. As alluded to in paragraph 22 above, the current assessed value could have doubled in value now. I will also take into account the observation of Dr Jagilly in the last sentence of paragraph 11 above.
25. In my assessment of general damages, I will also take into account the Claimant’s claim for special damages. The claim for special damages could include pain and suffering, inconveniences and or stress as Dr Jagilly has indicated in his second report.
26. Having said all of the above, I am of the view that the reasonable assessed value for damages to the awarded to the Claimant under general damages and special damages should be the amount of $35,000.00.
27. In relation to loss of income, the Claimant was receiving $1,770.00 per fortnight. I am not guided as to the age of retirement in the private sector. In the public service, the age of retirement is 55 years. The Claimant was 57 in 2022. She is now 60 years old. I am uncertain how much longer she could have been employed by Baoro & Associates. In that regard, I am unable to grant her the full value of loss of income to date.
28. I will nonetheless grant her claim for loss of income only for 8 fortnights. That length of time should have covered the period up till her 58^th birthday. That should give her an extra 3 years from the public service retirement age of 55 years. The assessed value for loss of income to the projected time is $14,160.00.
29. The total assessed value for damages including special damages and loss of income come to a total sum $49,160.00. The Claimant is hereby entitled to be paid the said sum of $49,160.00 together with interest and cost.

THE COURT
Justice Maelyn Bird
Puisne Judge