Nanotasi CS Ltd v Tito [2001] KIHC 41; Civil Case 09 of 2000 (16 May 2001)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 9 of 2000

Between:

NANOTASI CS LTD
Plaintiff

And:

EUROBA TITO
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Taoing Taoaba

Date of Hearing: 15 & 16 May 2001

JUDGMENT

Action for damages.

About noon on 3 July 1998 on the Dai Nippon Causeway, a station wagon belonging to the plaintiff collided with a 2-ton truck owned by the first defendant and driven by Tamuera, originally the second defendant in the action. The station wagon was being driven towards Betio: the truck in the opposite direction. The station wagon was so badly damaged as to be a write-off.

The writ, claiming $4,500 damages, was issued on 28 February 2000 and the Statement of Claim filed on 6 March. The Statement of Claim alleged the 2-ton truck was owned by the first defendant and driven negligently by the second defendant, an employee of the first defendant driving with the permission of the first defendant "and/or whilst in the course of his employment". The Defence of the first defendant, filed on 20 April, was a denial that the first defendant "gave permission for the second defendant to drive the car" and of any knowledge of the accident: further and alternatively that the plaintiff (sic) was guilty of contributory negligence.

The second defendant did not appear. Judgment against him by default was given on 27 June.

There were no other pleadings.

When the hearing began Mr Banuera Berina for the plaintiff, complained that he could not understand what the defence of the first defendant might be: he said he could not glean it from the Defence.

After discussion with Ms Taoing Taoaba for the defendant I made this note:-

The first defendant admits the second defendant was an employee but says that the second defendant was acting at the time beyond the scope of his authority and therefore the first defendant is not liable to the plaintiff.

The hearing proceeded.

For the plaintiff, evidence was given by its manager Mr Mwemwenikarawa Banimarawa who was driving the station wagon. The passenger, Ms Ranete Borauea also gave evidence.

Their accounts of the accident, which I accept, were that the truck coming in the opposite direction pulled out to pass a bus. In doing so it came on to its incorrect side of the road and crashed into their vehicle. Mr Banimarawa lost control and the station wagon then hit a third vehicle. The truck, owned by the defendant was carrying sacks of pig food. On this evidence Tamuera was solely responsible for the collision.

The only other witness for the plaintiff was Mr Naitoa Batiara, a mechanic employed by Neways Enterprises. Mr Batiara made a report, dated 2 December 1998, on the station wagon. He assessed the value at $4,500 but recommended that it be written off. I accept Mr Batiara's evidence and the accuracy of the contents of his report.

The defendant, Euroba, has a business at Temaiku. He owns an egg farm. That is his main business. He sells eggs and also pig food and chicken food. He said that he had known nothing of the accident until later in the day when the police told him of it. Tamuera had no authority to drive any vehicle: he did not have a driving licence. He was employed as a carpenter. Tamuera had not sought permission to drive the truck. The keys were in the vehicle which was left about 100 metres from his house at Temaiku. Tamuera was dismissed for taking the truck.

Tamuera gave evidence. He said he has had a driving licence for four years (thus contradicting Euroba). He said he took the truck without permission to go looking for his wife in Betio: she had run away. While he was in Betio he picked up eight bags of pig food which he had been offered by an employee of Bobotin Kiribati Ltd which was having a sale of pig food: he paid $5 or $6 per bag: he spent around $40. The pig food was for his own use, to feed his own pigs and he took it to his own house at Temaiku.

As for the accident:-

At accident I was on my way back to my place. Tail of truck suddenly swaying around. I was going at around 25 kph. Not sure how accident happened. This car came very fast. When vehicle started to swing I stopped in centre of road: I did not go across on to incorrect of the road. Car hit side of truck, driver's side. No cars in front of me, going towards Temaiku. The vehicle was doing about 70 kph.

In other words, Tamuera said he was stationary on his correct side of the road and the station wagon going at quite high speed, came across on to its incorrect side and hit the truck.

I do not believe a word of it. I found both Euroba and Tamuera to be evasive: they were not reliable witnesses. When their evidence is in contradiction to that of the plaintiff's witnesses I accept the plaintiff's witnesses.

The defence called two other witnesses as well, Eremwane Euroba, the wife of the defendant and Tewatu Tanea, in charge of the chicken farm. I have taken their evidence into account in setting out the defence case.

The accident was solely the responsibility of Tamuera.

The more hardly fought issue was whether Tamuera was driving in the course of his employment and with permission of his employer or whether he was on a frolic of his own.

Even during the case for the defendant I was wondering whether the real position might be that both Euroba and Tamuera were saying that Tamuera was acting outside the scope of his employment so that Euroba could avoid liability. Tamuera was driving his employer's vehicle, loaded with bags of pig food which Euroba sells in the course of his business. I was inclined to think, on the balance of probabilities, that Tamuera had made up the story about taking the vehicle without permission, going looking for his wife in Betio and taking delivery of the bags of pig food for his own use.

At the close of the defence case, Mr Berina applied to call evidence in rebuttal. This is an application seldom allowed: it usually means splitting the plaintiff's case. Mr Berina submitted that he had not known the case he had to meet until the hearing began: he had been taken by surprise especially by Tamuera's evidence about the pig food.

Of course Mr Berina need not have been taken by surprise. If he were puzzled by the defence he could, long before trial, have applied for further and better particulars. On the other hand it was not until we were in court that the main thrust of the defence was clear.

I allowed Mr Berina's application to call a witness from BKL regarding the pig food.

The witness was Mr Boubou Karotu. He has been employed by BKL since March 1998. BKL started receiving pig food from overseas only on Thursday 25 June 1998: it was released from the wharf and went on sale in the following week. At no relevant time was it on special sale. It has never been sold for $5 to $6 per bag: the usual price is about $22 or $23 per bag. That price was fixed by management and no BKL employee had authority to vary it. Kaiboboki whom Tamuera had said sold it to him was employed by BKL temporary as an assistant in the labour unit: he was not authorised to receive orders.

I accept Boubou's evidence. He was an independent witness whose evidence was not impugned. It quite undermines Tamuera's story about buying the pig food cheap. I reject Tamuera's evidence as to how he came to be driving the truck just as I reject his account of the accident. I reject the evidence of Euroba and his other witnesses that Tamuera had no authority to drive the truck.

I find, on the balance of probabilities, that Tamuera had taken delivery of the pig food on the truck on behalf of his employer. He was driving the truck in the course of his duties as Euroba's employee. Accordingly Euroba is vicariously liable to the plaintiff for the damage to the truck.

Ms Taoaba argued that the assessment of value of the station wagon, $4,500, was unreliable. It is the only evidence of value I have. I see no reason not to accept it.

There will be judgment for the plaintiff against the defendant for $4,500.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE