Tukutau v Masoe [2001] TOSC 23; C 0381 2000 (7 June 2001)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

NO.C.381/00

BETWEEN:

SITALAMU TUKUTAU
Plaintiff;

AND:

SIMOTE MASOE
Defendant.

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Veikoso for the plaintiff and
Mr 'Etika for the defendant.

Dates of hearing: 29, 30 and 31 (part day) May 2001.
Date of judgment: 7th June 2001.

JUDGMENT

At about 7 a.m. on the morning of Saturday 11 September 1999, Sitalamu Tukutau, the plaintiff in this case was driving his Toyota mini van in an easterly direction along Ha'amoko Road, Ma'ufanga. His two-year-old daughter was seated alongside him on what appears to have been described as a raised seating area situated in between the passenger seat and the driver's seat.

While the plaintiff was crossing the intersection of Ha'amoko Road and Heikoni Street a car driven by the defendant, Simote Masoe, travelling north along Heikoni Street collided with the front right hand side of the van pushing it a distance of some 6 metres into a rock fence outside one of the neighbouring homes.

Fortunately, no one was seriously injured in the accident. Just before the impact the plaintiff realised what was going to happen and pushed his daughter back behind the front seats hoping to protect her from the collision but she, nevertheless, suffered some minor trauma when she was thrown forward and her right shoulder struck the dashboard of the van. Both drivers suffered shock.

The plaintiff alleges, and there seems to be no serious dispute over the allegation, that his van was damaged to such an extent as a result of the accident that it could not be economically repaired and had to be written off. He claims that the pre-accident value of the van was $5200 and he brings this action against the defendant seeking to recover that sum together with $1400 for the loss of 7 months use of the van and $5000 for "loss of reputation" making a total damages claim of $11,600.

The plaintiff brings his claim against the defendant based on breach of contract, breach of statutory duty and in tort based on negligence. The contract is alleged to have been partly oral and partly in writing. The oral part is said to have arisen immediately after the accident when the defendant apologised and offered to pay for the repair costs. The written part is said to consist of an invoice from "Si'i Kae Ola Motor Part" which set out the pre-accident value of the vehicle at $5200.

In my view, the action based on breach of contract is misconceived. Although circumstances can arise where a forbearance to sue may constitute valuable consideration, there was no submissions made to that effect in this case and, in any event, the evidence simply does not support the existence of any type of contract.

The plaintiff was on much stronger grounds in his traditional type of pleading for motor vehicle accidents based on negligence. He alleged that the defendant had failed to stop at a compulsory stop sign, that he had failed to keep a proper lookout and that he had been travelling at a speed which was excessive in the circumstances. The accident was investigated by the police and the defendant was charged with negligent driving contrary to section 25 (1) of the Traffic Act (CAP. 156). He pleaded guilty and on 9 April 2000 was convicted and fined $45.

On the evidence, I am satisfied that although there was a compulsory stop on both sides of Heikone Street, sometime prior to the accident the stop sign on the southern entrance to Ha'amoko Road had been moved and only the pole was in place at the time of the accident. Counsel for the plaintiff nevertheless submitted that if the defendant had been driving with due care and attention he should have realised that he was approaching a compulsory stop. I agree with that submission. The pole standing on its own should have alerted the defendant to the fact that it was a controlled crossing and, had he looked, the defendant would have seen the reverse side of the compulsory stop sign across the road and he should have been able to instantly work out that he was required to stop before entering the Ha'amoko Road intersection.

Unfortunately, it seems to be an accepted hazard of driving motor vehicles in Tongatapu that traffic signs can be defaced, moved or interfered with. Moreover, the authorities do not appear to be overly anxious to remedy the problem. The compulsory stop sign missing at the time of this accident on 11 September 1999 has still not been restored.

Apart from failing to stop at the crossing, the plaintiff has satisfied me on the balance of probabilities that the defendant was also negligent in travelling at an excessive speed approaching an intersection and in failing to keep a proper lookout. In cross-examination, the defendant admitted that he was travelling in excess of the speed limit of 40 kilometres per hour and I accept the evidence of police sergeant Alani Lomavita of the Traffic Department that the defendant had admitted to him that he was in the wrong and in explanation had told the officer that he had not had enough sleep the night before. The defendant told the Court that at the time of the accident he was driving home after dropping off someone who he had gone out with the night before.

Although some questions by defence counsel in cross-examination seemed to have been directed at establishing contributory negligence on the plaintiff's part, contributory negligence was not pleaded and, in any event, I would not have found any negligence on the plaintiff's part.

I, therefore, hold that the plaintiff has succeeded in establishing that the accident was caused through the negligence of the defendant in one or more of the respects outlined.

Turning to the question of damages, the variation in the pre-accident value of the van by the so-called expert witnesses called by either side was quite extraordinary. The plaintiff called a Mr Saia Kaitu'i of Si'i Kae Ola Motor Part. He produced an "Invoice" dated 20 September 1999 in which he had recorded the pre-accident value of the vehicle following examination at $5200.

The defendant called a Mr Juan Carlos Giles of Faleata Enterprises who produced a "Quotation" dated 21 September 1999 in which he recorded the pre-accident value of the van following inspection at $800.

The plaintiff's evidence in cross-examination was that he had purchased the van in New Zealand in 1998 for NZ $3000 and he thought that he had paid $1000 for freight and $800 for duties. No receipts were produced.

The Court's task in trying to reconcile the two pre-accident valuations has not been made any easier by the fact that counsel for the plaintiff failed to serve a copy of Mr Kaitu'i's "Invoice" on the defendant 7 days prior to the hearing as had been agreed between the parties so that defendant's counsel had no prior knowledge of the invoice and, for his part, the defendant's counsel failed to disclose Mr Giles's valuation report prior to the hearing nor did he put his pre-accident valuation figure to Mr Kaitu'i in cross-examination for his opinion or comment. Counsel always has a duty to "put the case" of his client, or at least the relevant part of the case, to the witness giving evidence. In this case, counsel for the defendant should have put to the plaintiff's expert witness the essence of the contradictory evidence that would be given by the defendant's own expert, Mr Giles. In particular, he should have put to Mr Kaitu'u the proposition that Mr Giles's had estimated the pre-accident value at only $800.00 and given him the opportunity of commenting on the figure or of trying to explain the very significant difference in the two valuations. He did not do so and counsel for the plaintiff did not seek leave to recall his expert. In the circumstances, I must now try and determine where the justice of the case lies.

Of the two so-called experts I preferred the evidence of Mr Giles who impressed me as being the more reliable. He is a very experienced engineer/mechanic and he also carries out panel beating work. He described the van from his observations as being "... in a very poor condition and rusting" at the time of the accident. He said that if the plaintiff had paid NZ $3000 for it the year before then he had paid too much.

Mr Kaitu'i, who was the plaintiff's expert witness, was asked after being sworn in whether he was a mechanic and he replied that he was a "sales representative". In answer to a question from the Court later on he explained that he was a spare parts salesman but the Court was not impressed when under cross-examination he was unable to give any estimate of the costs of a second-hand door or a steering wheel for the van after giving evidence that both of these items had been badly damaged in the accident. He did, however, say that he had been carrying out vehicle assessment work for some 12 years and that his evidence had been accepted in an earlier court case.

Counsel for the plaintiff submitted that Mr Giles's evidence should be rejected because he works for the insurance company that the defendant was insured with. I do not accept that statement as a correct reflection of the evidence. Mr Giles certainly carries out a considerable amount of assessment work for that insurance company but he works as an independent operator and his quotation book showed that he also carries out vehicle assessment and repair work for a variety of other clients.

I am prepared, however, to make some allowance for the fact that none of the details in Mr Giles's valuation report, apart from the pre-accident existence of rust, were put to Mr Kaitu'i in cross-examination and, notwithstanding the reservations I have expressed about his evidence generally, he may, if given the opportunity, have been able to persuade me to take a different view of some of the observations made by Mr Giles.

On balance, taking all these matters into account, I conclude that a fair amount to allow for the pre-accident value of the plaintiff's van is something in the order of $1,450 and that is the figure I am prepared to enter judgment for under this head.

The plaintiff's evidence in relation to his claim of $1400 for 7 months loss of the van was unsatisfactory in many respects. Virtually no evidence at all was led on the subject and most of the details only emerged during the course of cross-examination and then re-examination. The period of 7 months presumably was the time period in which it took the plaintiff to purchase a new replacement vehicle for the written-off van. I say "presumably" because even this evidence was unclear. The plaintiff said that the replacement vehicle had cost him $8600 and that he had paid a deposit of $3000. He explained that he had not been able to afford to purchase a replacement vehicle any earlier. For a period of 3 months immediately after the accident he had apparently been able to have the use of his father's van for carting produce from his allotment to the markets. It is not clear from the evidence whether he had the use of some other vehicle for the remaining 4 months or indeed whether he even needed a vehicle during that period.

In cross-examination the plaintiff told the Court that he used his father's van everyday during the initial 3 month period and that there was no expense because his father had given him the use of the van. In re-examination, however, he said that in return for the use of the vehicle he had given his father's household a supply of various produce twice a week for the entire 3 month period and each supply was worth $100 or, in other words, a total of $200 per week. It was this expense that apparently formed the basis for his claim of $1400 although he was quite unable to explain why the claim was for only $1400 for a 7 month period if he had, in fact, outlaid $200 per week for the first 3 months of the period. The $1400 claimed in his statement of claim for the 7 month period is equivalent to $50 per week but in re-examination the plaintiff said that the claim he was making should have been for $50 per day. If this evidence was true then it should have been led as evidence in chief because it would have been an important part of the damages claim. In all events, I did not believe this part of the plaintiff's evidence and I reject it.

The plaintiff would or should have been aware shortly after he received the "Invoice" from Si'i Kae Ola Motor Part dated 20 September 1999, only nine days after the accident, that his van was a write-off. As part of his duty to mitigate, he should then have set about making reasonable efforts to obtain a suitable replacement vehicle. He was not entitled to simply sit back and wait 7 months until he could afford to purchase an obviously superior vehicle and then claim for loss of use of the van during the intervening period. In all events, he cited no authority in support of any such proposition and the claim is inconsistent with the accepted legal position as summarised in Charlesworth & Percy on Negligence, 8th ed, para 4.83:

"Consequential loss. . . . does not include any extra damage, occasioned by the impecunious position of the injured party, whereby the lost chattel could not be replaced within a reasonable time."

I, therefore, reject the claim for 7 months loss of the van.

The other part of the plaintiff's damages claim of $5000 for "loss of reputation" remains a mystery. Simply no evidence at all was led on the matter and so I reject the claim totally.

Notwithstanding my observations about the plaintiff's evidence on quantum, I accept as a matter of law that even if there has been no loss of profits and no expense in replacing the chattel temporarily, damages may still be recovered for the loss of use of the van and I am also prepared to accept that the plaintiff probably did give his father some produce for the use of the van although nothing like the quantity he claimed in Court. He is entitled to reimbursement of his outlay in this regard for a reasonable period of time pending acquisition of a new van.

Having regard to all the factors I have mentioned, I am prepared to allow the sum of $850 under this head. The plaintiff, therefore, has succeeded in establishing liability and is entitled to judgment in the sum of $2300 together with costs to be agreed or taxed. I am not prepared to allow the plaintiff's interest claim of 10 percent from the date of the accident.

NUKU'ALOFA: 7^th June, 2001.

JUDGE