Tokataam v Tirae [2005] KIHC 157; 40-05 (22 November 2005)

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

High Court Civil Case No. 40 of 2005

Between:

VERONIKA TOKATAAM
AUKITINA TANENTOA (IRO ESTATE OF KAURIRI TEBOTOA)
Plaintiffs

And:

TEIETA TIRAE (IRO ESTATE OF IOANE TEITIA)
CHAIRMAN SANTO BAURO
Defendants

For the Plaintiffs: Mr Glenn Boswell
For the Defendants: Mr Banuera Berina

Date of Hearing: 16 November 2005

JUDGMENT

On 13 May 2004 during the day, a dreadful accident occurred on the causeway between Bairiki and Nanikai. Two trucks, one blue, one white, going in opposite directions, collided, either head on or one side swiped the other. After the accident both drivers were dead.

The plaintiff is the sister of the late Kauriri Tebotoa, the driver of the blue truck which was going towards Nanikai. She has made claims under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Acts. The claims arise out of her dependency and that of members of her family on Kauriri. She also claims damages for the loss of the truck which was a write-off.

The defendants are the widow of the late Ioane Teitia the driver of the white truck which was going towards Bairiki and Santo Bauro (there is no need to be more specific – it is the Church or Parish of Santo Bauro, Betio) the owner of the truck.

I heard first the plaintiff’s evidence and then, on the facts of the accident, two witnesses, Arieta Teiwaki called by the plaintiff and Tebungai Teorea, called by the defendant. These gentlemen were eye witnesses.

Arieta was walking along the causeway, on the beach on the ocean side, towards Nanikai. He saw the white truck coming from the direction of Nanikai. He gave its speed as “70-80 kph”. I do not set much store by the actual estimate but interpret it to be that the truck was going fast. He saw it veer across the road on to its incorrect (lagoon) side and “bumped against the side of” the blue truck. Afterwards both vehicles were on the lagoon side. He recognised Ioane, the driver of the white truck: “looked like Ioane would die”.

Tebungai Teorea was a passenger in the blue truck. He had hired the truck and they were on the way to Teaoraereke:-

I was in front. Kauriri driving. Accident on causeway Bairiki/Nanikai. On our way vehicle from other side – Santo Bauro – coming close. Saw a person lying on steering wheel of blue truck – 100m. Told Kauriri to drive towards sea – I told Kauriri to go to the lagoon – other truck coming across road towards us. Driver was doing nothing, lying down with his head on the wheel. Kauriri did nothing – did not move over towards sea. Crash.

After Arieta had given evidence it seemed that the driver of the white truck was grossly negligent – going too fast and veering on to the incorrect side of the road. Tebungai’s evidence quite changed that. It is probable that Ioane had some kind of sudden seizure – a heart attack, a stroke perhaps – and was no longer in control. The vehicle, out of control, came across the road and the accident happened. Ioane had not been negligent.

Mr Boswell argued strongly and doggedly that perhaps Ioane’s employers had sent him out driving when he should not have been: that they are vicariously liable through working him too hard and causing him to have the seizure. There is no evidence at all of this. I am not prepared to assume that Ioane suffered other than a sudden and unexpected seizure of some kind, probably after he had driven safely through Nanikai village.

Mr Boswell argued that once the plaintiff has made out a prima facie case of negligence there is a reverse onus and the defendants must prove they were not guilty of negligence. He cited Hunter v Wright (1938 2 All ER 621 @ 625 per Goddard J), 28 Halsbury (3rd edition) at paragraph 75 and 33 Halsbury (4th edition) at paragraphs 664-665.

Any onus on the defendants was amply discharged through the evidence of Tebungai. A man who becomes suddenly and unexpectedly unconscious and incapable of controlling the vehicle which he is driving cannot be said to be guilty of negligence.

On the balance of probabilities neither the deceased driver, Ioane nor Santo Bauro was guilty of negligence.

This was a double tragedy, two men dead. I feel great sympathy for the plaintiff but the claim must fail.

There will be judgment for the defendant.

Dated the 22nd day of November 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice