Maile v Tonga Cooperative Federation Company [2004] TOSC 31; C 0054 2004 (17 June 2004)

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

NO. CV. 54/2004

BETWEEN:

TEMALISI MAILE
Plaintiff

AND:

1. TONGA COOPERATIVE FEDERATION COMPANY
2. ‘AIVENI TU’AKALAU
Defendants

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Kengike for the plaintiff and
Mr Kaufusi for the defendants.

Dates of hearing: 5, 6 and 7 April 2004 (at 'Eua) and 12 May 2004 (at Tongatapu).
Dates of written submissions: 26 May, 7 and 15 June 2004.
Date of judgment: 17 June 2004.

JUDGMENT

On the Island of 'Eua there is one main road which runs for some 6 kilometres between the village of Ha'atu’a in the south and the main township of 'Ohonua to the north. It does not have a name. The locals simply refer to it as the main road. There are many side roads running off the main road. This case is about a motor vehicle accident that occurred at the intersection of one of those side roads, although the exact point of impact is in dispute.

The plaintiff claims that on the morning of Friday 2 December 2003, her Mitsubishi Delica four-wheel-drive van was written off when it was struck by a Toyota delivery truck owned by the first defendant ("TCF") and being driven by the second defendant, 'Aiveni Tu'akalau. The defendants dispute both liability and quantum. They deny that the van was a write-off and claim that the plaintiff's repair estimate is excessive.

The plaintiff, Temalisi or "Tema" as she was referred to throughout the hearing, gave evidence that at about 8:30 a.m. on the day in question, she was driving two of her children and a neighbour's child to school. It was the final day of school for the year, prize-giving day, and the children did not have to be present until 10:00 a.m.

Tema and her husband operate a guesthouse in Mata'aho which is a village towards the south end of the main road. As Tema was driving in a northerly direction along the main road heading towards 'Eua High School, she noticed a woman standing by an intersection at 'Esea holding a baby. She recognised the lady as 'Upi Manukeu ("Upi"). Tema told the court that she thought she heard 'Upi call out to her to stop as she drove past and then her eldest son called out to her to go back and pick the lady up.

Tema said that at the same time she recollected her mother had asked 'Upi to make a lei for her daughter and she thought that that was probably why 'Upi had called out to her. She, therefore, decided to return to see what 'Upi wanted. At the village of Futu she turned the van around and drove back in a southerly direction towards 'Esea where 'Upi was still standing.

Along this particular stretch of the main road the villages are close together and they almost meld into one another. The distance, for example, from the Angaha primary school south to the village of Futu and then further south to the village of 'Esea covers a distance of only 200 -- 300 metres. It is all a built-up area. The speed limit is 40 kilometres per hour.

Tema explained in her evidence in chief that as she was driving back towards the intersection where 'Upi was standing, her speed would have been approximately 40 kilometres per hour and then she slowed down approaching the intersection and turned on her indicator to indicate a right-hand turn into the side road. Tema said that as she then commenced to make the turn into the side road, she was surprised when the TCF truck ran into the righthand side of her van. She described to the court her feelings at the moment of impact: "at that point in time I thought that it would be my last day on this earth." Tema said that she could not control her van. It was pushed forward by the truck and it eventually came to a stop inside an api on the far side of the intersection.

As it turned out, Tema was unhurt but her daughter received injuries and was hospitalised in a critical condition for a period. A police officer arrived at the scene and carried out an investigation. Wisely, the officer suggested that Tema should arrange for someone to take photographs. A Peace Corp worker took black-and-white photographs which were produced in evidence.

Later that same day the driver of the TCF delivery truck called to see Tema and her husband, Vai, at their guesthouse. He apologised and said that they could take the van into TCF to be fixed or they could have it repaired and he would then pay the repair costs. The plaintiff elected to have the van repaired privately but, as it turns out, no repair work has yet been carried out.

On 5 December the van was taken across to Tongatapu by ferry and on 8 December it was inspected by Asco Motors. The assessor with Asco Motors, Pauliasi 'Alofi, estimated the pre-accident market value of the van at $12,000 and its value after the accident at $3000. Mr 'Alofi estimated the total repair costs at $12,600 and, because that figure exceeded the valuation, he recommended that the van should be written off.

The evidence given by the plaintiff's second witness, Nehoa Tu'itavake, was quite crucial and, not surprisingly, it was well tested by Mr Kaufusi in a searching cross-examination.

Nehoa told the court that on the morning of the accident he had been into town ('Ohonua) and later he proceeded to drive back to his home in a southerly direction along the main road. He said that at one point the TCF truck had overtaken him and then he had to drop off a passenger and he also had to pick up a tyre from a tyre repair shop. Although the point was not covered in evidence, the TCF truck presumably also had to make a stop or two along the way because the two vehicles caught up with each other again in the area of the Angaha Primary School. Nehoa said that at that point he noticed that the TCF truck was ahead of him. He continued in his evidence in chief:

"I was going to overtake the TCF truck and I think he looked and saw that I was going to overtake him and he accelerated as well."

Nehoa said that at that point he looked at his speedo and he was travelling at 60 kilometres per hour. He estimated that the TCF truck must have been travelling at "about 80 kilometres per hour" because it was getting further away from his own vehicle.

Nehoa said that he saw that the TCF truck was going to overtake Tema's van and he noticed that the van had its indicator light flashing indicating that it was about to turn to its right. Nehoa then witnessed the accident. He saw the TCF truck collide with the driver's side of the van. Afterwards, he pulled his car into the lefthand side of the main road just past the intersection. He told the court that when he looked back along the road he could see, what he described as, a brake mark on the road from one of the wheels on the TCF truck.

A subsequent witness, Sisi Ato'aki, who is a mechanic with the Ministry of Works, inspected the TCF truck at the scene and he measured the length of the brake mark in question. He told the court that it was 108 ft. in length.

Nehoa Tu'itavake was an impressive witness and his evidence was unshaken during a lengthy cross-examination. He was adamant that the TCF truck was speeding, that the van was not speeding, that the van had its indicator light on and, at the point of impact, the van was turning into the side road.

The only other witness for the plaintiff on liability was Halatoa Havea, a 14-year-old schoolboy, who was one of the passengers in Tema's van. He was also certain that Tema's van had its right-hand indicator on as it was approaching the side road at 'Esia.

The second defendant "'Aiveni" not only denied liability but he pleaded that the accident had been caused by Tema's contributory negligence in not giving any indication, by either indicator light or hand signal, that she was going to turn to her right. He also pleaded that the accident happened, not at the intersection itself but 30 to 40 ft. prior to the intersection and the truck then "dragged" the van up to the intersection where it came to rest. The significance of that particular allegation is that regulation 20 (6) (a) of the Traffic Regulations prohibits overtaking within 30 ft. of an intersection.

The defence called as a witness the lady who had been standing on the side of the road, 'Upi Manukeu. There had been some dispute as to where precisely she had been standing. Defence counsel, through some leading questions, was able to have her estimate the distance at approximately 30 ft. from the intersection but I did not find that evidence convincing. The witness was able to give the court a more accurate assessment by referring to one of the photographs. I am satisfied that she was positioned close to the north side of the side road and approximately 6 yards back in from the main road. In any event, I do not consider that her position is critical to the case. I am satisfied that wherever 'Upi was standing, Tema was intending to turn, and did in fact commence to turn, into the side road itself so that she could stop and speak to her.

'Upi said that she did not see the indicator lights on Tema's van as it made the turn. She admitted, however, in cross-examination by Mr Kengike that she would not have noticed whether they were on or not because she was looking at Tema. She also said that she had not noticed any indicator light going on the TCF truck.

The 22-year-old second defendant, 'Aiveni Tu'akalau, told the court that he has been employed by TCF for four years and he had been driving the company's delivery van for one year three months at the time of the accident. 'Aiveni said that he had been following Tema's van as it approached 'Esia and he noticed that it was going to pull to its left. He said that he could not make out whether it was going to turn because the van had no indicator lights on and Tema had given no hand signal.

'Aiveni told the court that at that point he flashed his head lights so as the driver of the Delica van would know what he was about to do and then he turned on his indicator prior to overtaking the van. He continued: "all of a sudden I bumped into the Delica van and it skidded onto the intersection." The point of impact, 'Aiveni said, was some 30 or 40 ft. before the intersection.

'Aiveni denied that he was speeding at the time of the accident but he did not dispute the conversation he had later that day at the plaintiff's guesthouse. He explained that he had apologised to the plaintiff because the police officer had told him that he had been in the wrong for overtaking a vehicle on an intersection.

The defence also called Lolo Lama who had been a passenger in the TCF truck. Much to defence counsel's obvious consternation, Lolo said in evidence in chief that the point of impact was "two feet" from the intersection. He reaffirmed that distance several times in the course of his evidence.

Lolo also said that the Delica van did not have its indicator going but it made a sudden turn in front of the TCF truck and that was the cause of the accident. In cross-examination, the witness was unable to explain why, if the van had made a sudden turn as he claimed, the TCF truck had left a brake mark 108 ft. long.

I did not find either 'Aiveni or Lolo credible witnesses. On the other hand, as I have already indicated, I found the independent witness called by the plaintiff, Nehoa Tu'itavalu, an impressive witness and I accept completely his description of the accident.

The plaintiff, therefore, succeeds on liability. She has more than adequately satisfied me that the accident was caused by the negligent driving of the driver of the TCF van in driving, in particular, at what I find to be a grossly excessive speed.

As already noted, the second defendant pleaded contributory negligence on Tema's part in two respects and I reject them both. In his written submissions, Mr Kaufusi seemed to raise another claim of contributory negligence, namely regulation 20 (3) of the Traffic Regulations which requires a driver approaching an intersection and intending to turn into another road to his right to "maintain his position to his left of the road out of which he is turning until he enters the area of the intersection."

Counsel submitted that the plaintiff turned across onto the right side of the road some 30 ft. before the intersection. The first point I make about that allegation is that it was not pleaded or put to the plaintiff in cross-examination. More significantly, however, the contention is simply not supported by the facts. The evidence satisfies me that the plaintiff was turning at the intersection itself.

The position regarding the damages aspect of the case is more complex. The only witness called by the plaintiff on this issue was Mr 'Alofi from Asco Motors. He has been a panel beater with the company for eight years. As already noted, he estimated the repair costs of the van at $12,600 and because that figure exceeded his assessment of the market value of the van, he recommended that the vehicle be written off.

In cross-examination Mr 'Alofi was asked for a cost breakdown of the necessary replacement parts but he was unable to provide such figures. He told the court that his pricing had been based on the costs of all new replacement parts from overseas and the figures making up his total of $12,600 had been supplied to him by the Spare Parts Section at Asco Motors. The estimated repair costs included all import duties, company markup and labour costs.

The witness's description of the van as a "write-off" was somewhat surprising. The evidence was that the van was driven home after the accident and then driven back down to the wharf a few days later to be taken by ferry to Tongatapu. In Nuku'alofa, it was driven from the wharf to Asco Motors. The plaintiff explained that during these trips the wheels were vibrating and the steering wheel was not functioning as well as it should but it was, obviously, still mobile.

Photographs produced in evidence reveal, and the evidence itself confirmed, that the principal damage was caused to the driver's door and the right side panels behind the driver's door. There was also some fairly minor mechanical damage but there was no damage to the engine or chassis. The description of the damage in the written "Repair Assessment" from Asco Motors dated 8 December 2003 simply stated: "Damaged (sic) to RH side panel".

I am satisfied that the van is repairable. The difficulty arises out of the significant disparity in the evidence relating to the likely repair costs.

As is noted in Halsbury Vol 12, para 1199:

"A plaintiff who alleges that he has suffered damage has the burden of proving (on the balance of probabilities) not only that he has suffered the damage, but also its extent or amount. Where, however, the defendant alleges that the plaintiff should have mitigated his loss . . . the burden of proving such matters rests upon the defendant."

A plaintiff has an obligation to take all reasonable steps to mitigate his or her loss. Quoting again from Halsbury, para 1194:

"He must act not only in his own interests but also in the interests of the defendant and keep down the damages, so far as it is reasonable and proper, by acting reasonably in the matter."

In the present case, as I have noted, the Asco Motors repair estimate was based on the costs of all new replacement parts being imported from overseas but the witness provided no breakdown of the parts required and so his estimate was not able to be tested under cross examination.

A mechanic from the first defendant company, 30-year-old Viliami Lomu, told the court that he could import new parts from overseas for a lesser amount than $12,600 or, as he expressed it, for "nowhere like that figure." When pressed by Mr Kaufusi, the witness gave his estimate for importing new parts at $9,000 but, as with Mr 'Alofi, he failed to provide a breakdown of the parts required and he had not made any effort to obtain precise quotations from anyone. To that extent, I found his evidence speculative and I do not accept it on this quite crucial issue.

Mr Lomu did explain that he carries out all the repair work on TCF vehicles in Tongatapu, 'Eua and Ha'apai and he estimated the repair costs of the van in question at $2500. Surprisingly, the witness was not challenged in cross-examination on this estimate but he explained to the court that it was based on obtaining second-hand used parts in Tongatapu and the figure included all necessary panel beating and mechanical work.

I have some reservations about Mr Lomu's evidence. He was, obviously, not an impartial witness for one thing. For another, the witness from Asco Motors was critical of the quality of the repair work carried out by TCF on its own vehicles and I accept that there is probably some substance in his criticisms.

Another witness called on behalf of the defendants was 40-year-old Saia Kaitu'u. He told the court that he is the sales manager with Si'i Kae Ola Motors. He has worked for that company for 15 years and he is in charge of carrying out vehicle valuations and repair estimates. Mr Kaitu'u estimated the repair costs of the van in question at $2,405.

The witness explained that his figure was based on panelbeating work including the use of fibreglass filler. He, quite frankly, accepted, however, that the value of the van would be lower if fibreglass filler was used for the repair work instead of new replacement panels.

The problem with the evidence relating to quantum is that none of the witnesses came along with a detailed breakdown of their estimated repair costs.

When quantum is in issue in a motor vehicle damages claim, it is not sufficient for a so-called expert witness to simply produce a gross dollar figure and say that that is his estimate of the likely total repair costs. The witness must be able to prove, and justify under cross-examination if necessary, the breakdown of his estimate.

In the present case, I accept that the damage to the van was significant but, in the absence of any reliable evidence as to the costs of the various parts and accessories needed to carry out the repair work and a breakdown of other expenses, I simply am not prepared to accept the $12,600 figure estimated by Asco Motors. No witness was called from the Spare Parts Section of the company to provide information on costings.

I make the same criticism in respect of the estimates given by the two defence witnesses. With them, there is the additional complication that their figures appear to have been based on the assumption that it is possible to obtain suitable spare parts for the van here in Tonga but the witness from Asco Motors gave evidence that his company had made inquiries and they had been unable to obtain suitable spare parts locally. The defence witnesses did not persuade me to the contrary.

The van in question was 10 years old at the time of the accident and the speedometer reading was 94,000 kilometres. I accept that the van was generally in good condition but, again, the estimates of its pre-accident value differed markedly. The Asco Motors pre-accident valuation figure was $12,000 whereas the Si'i Kae Ola Motor’s pre-accident valuation was only $6,000. The evidence was that the plaintiff had purchased the van from Lafi Motors some 16 months prior to the accident for $12,000. I suspect, therefore, that the real pre-accident valuation figure probably lay somewhere in between those two estimates.

Again, estimates of the salvage value of the van also varied. Asco Motor's valuation was $3000, Vili Lomu's figure was $5,000 and the Si'i Kae Ola estimate was $4000.

In his closing submissions, Mr Kaufusi carried out his own analysis of the various figures before the court and submitted that the costs of the repairs should not exceed $5,000. I consider his estimate to be on the light side. Based on the evidence before the court, the repair costs are likely to be in excess of $6,000.

In his submissions in reply, Mr Kaufusi carried out another helpful exercise comparing the pre-and post accident market valuations of the van. In this regard he noted, and appeared to accept, the statement by Mr Kengike in his final submissions that the pre-accident value of the van was $9,600. I accept that figure as a reasonable compromise between the Asco Motors's valuation of $12,000 and the Si'i Kae Ola figure of $6,000.

Mr Kaufusi then deducted from the $9,600 figure the sum of $4,000, being the average of the three valuations of the van after the accident, and he submitted that the balance of $5,600 should be the appropriate damages figure.

I am prepared to accept that submission. Although the market valuation figure is not precise, there is inevitably going to be an element of give and take in carrying out an exercise of this nature. Pearson LJ, in the English Court of Appeal decision of Darbishire v Warran [1963] EWCA Civ 2; [1963] 3 All ER 310, at p.316 expressed the relevant principles in relation to a damages awards in motor vehicle collision cases in these terms:

"In considering what reduction should be made it may not be appropriate to take the exact figure of the market price, which I understand to be the standard market price of an average vehicle of the make, type and age of the plaintiff's vehicle. There should be an element of flexibility in the assessment of damages to achieve a result which is fair and just as between the parties in the particular case."

In the same reported decision, Pennycuick J., after affirming that the basic measure of damages is restitution either by repairing the damaged vehicle or purchasing a comparable vehicle, said:

"Where the cost of repairs would exceed the market value of the (vehicle), and in the absence of special circumstances, the reasonable method (of measuring the damages) must be to purchase a comparable (vehicle)."

In the present case, I have concluded that the repair costs are likely to be something in excess of $6,000. In these circumstances, following the approach in the Darbishire case, damages should be assessed at the lesser figure of $5,600, which represents the plaintiff’s loss after taking into account the salvage value of the vehicle she still has in her possession.

The plaintiff also claims $600 as "loss of profit from rent of the van." It is not clear how that item is made up or what it represents. It certainly was not proven to my satisfaction and the claim is disallowed. There is another claim of $350 for shipping the van "to Tongatapu". The evidence is that the shipping costs were $180 and I, therefore, allow the claim in that sum. Interest is also sought at 10%. I am prepared to allow interest as from 2 January 2004. The first defendant has not disputed being vicariously liable for the second defendant's negligence.

Judgment is, therefore, entered for the plaintiff against the defendants in the sum of $5,780 together with interest at 10% from 2 January 2004 down to the date of payment. The plaintiff is also entitled to costs to be agreed or taxed.

NUKU'ALOFA: 17 JUNE 2004.

JUDGE