Folau v Ledger [2004] TOSC 34; C 0654 2002 (21 June 2004)

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

NO. CV. 654/2002

BETWEEN:

MAPA FISI FOLAU
Plaintiff

AND:

1. SIAOSI LEDGER
2. SHORELINE POWER CO. LT.D.
Defendants

BEFORE THE HON MR. JUSTICE FORD

Counsel: Mr Veikoso for the plaintiff and Mrs Vaihu for the defendants.

Dates of hearing: 14, 15, 16 and 17 June 2004.
Date of judgment: 21 June 2004.

JUDGMENT

One of the busy traffic spots in Nuku'alofa is the intersection of Salote and Tupoulahi roads in Fasi. Tupoulahi Road runs off Vuna Road by the waterfront in a southerly direction down towards Fanga 'Uta Lagoon. Salote Road runs in an east to west direction. To control the flow of traffic, there is a compulsory stop sign at the intersection on either side of Salote Road.

The plaintiff's case is that on Saturday 13 July 2002, as he was driving his van in a southerly direction along Tupoulahi Road, it was struck by another van that had failed to give way at the compulsory stop on Salote Road. That other van (the "Shoreline van") was owned by the second defendant and was being driven at the time by the first defendant who I shall refer to simply as "Siaosi".

The plaintiff brings this action in negligence against Siaosi and the second defendant "Shoreline" (as his employer) claiming damages. The defendants dispute both liability and quantum and they allege that the accident was caused by the negligence of the plaintiff, "Mapa" in driving at an excessive speed, failing to "either slowdown or give way" at the junction and failing to stop on time to avoid the collision. The second defendant has counterclaimed for damage caused to the Shoreline van.

The facts, as I find them, are that at approximately 12:30 p.m. on the Saturday in question Mapa was driving his Nissan van from the Nuku'alofa waterfront area in a southerly direction along Tupoulahi Road. He had a passenger with him who has since returned to Fiji.

At the same time, Siaosi was driving the Shoreline Toyota Hilux van in an easterly direction along Salote Road towards Ma'ufanga. There were three passengers in Siaosi's van. At the Tupoulahi Road intersection, Siaosi stopped his van momentarily at the compulsory stop. He then accelerated at speed and the front left corner of his vehicle collided with the right frontside of Mapa's van causing extensive damage to both vehicles.

The Shoreline van then veered off Mapa's vehicle and spun out of control in a complete U-turn movement finishing up facing the direction it had been travelling from. It came to rest on the grass verge outside the Civil Aviation property on the southwestern corner of the intersection.

As the Shoreline van was spinning out of control, it collided with the front of another van that was stationary at the compulsory stop on the eastern side of the intersection. That third van was being driven by a Mrs Vika Finau. She and her 13-year-old son, Tevita, were called to give evidence for the plaintiff. They were both impressive witnesses, particularly the young boy.

Immediately after the accident, the three passengers in the Shoreline van alighted from the vehicle and disappeared. Siaosi then reversed the van back onto the road and drove over to where Mapa's damaged vehicle had finished up on the southern side of Tupoulahi Road. He stopped and asked Mapa how he was and made a remark indicating that he was sorry for what had happened. He then drove off in his damaged van.

A police officer later arrived at the scene and he was called as a witness for the plaintiff. He took statements from both Mapa and Mrs Finau. Later the officer caught up with Siaosi at his home and took him back to the police station. The officer told the court that according to information he had received from Mapa and Mrs Finau, the driver of the Shoreline van had been drunk and so for that reason he arranged for tests to be carried out on Siaosi at Viola Hospital but they, in fact, proved negative for drunkenness.

The police officer added that Siaosi was charged with failing to comply with a traffic sign but that case is apparently still pending in the Magistrates' Court.

There was no persuasive evidence that the plaintiff, Mapa, was at fault in anyway. I find that he was not driving at an excessive speed nor was he negligent in any of the other respects alleged. He expected, and he was entitled to expect, that oncoming traffic on Salote Road travelling from both directions would give way to him at the compulsory stops.

Although I accept that Siaosi was not drunk according to the hospital tests, there was evidence that he had been drinking immediately prior to the accident and I am satisfied that the alcohol affected his judgment to the extent that he wrongly believed he could, by accelerating, cross the intersection before Mapa's van reached it. That was the cause of the accident. There was no contributory negligence on Mapa's part.

The plaintiff, therefore, succeeds in establishing his claim based on Siaosi's negligent driving. Shoreline fails in its counterclaim.

At the very end of her closing submissions, counsel for the defendant raised a surprising issue that did not appear to the Court to have been in contention up until then. Counsel submitted that the second defendant, Shoreline, could not be held vicariously liable for any negligence on Siaosi's part.

The Court immediately indicated concern that, as counsel was acting for both defendants, such an admission put her in a somewhat invidious position. Mrs Vaihu, however, did not accept that proposition and denied having any conflict of interests. She said that while there was no dispute that Siaosi was employed by Shoreline and he was "on-call" on the Saturday in question, at the time of the accident he was using the van for his own personal use.

Reported decisions indicate that the precise basis of liability under the doctor of vicarious liability is somewhat unclear. In general, however, an employer is liable whenever a servant commits a wrongful act in the course of his employment.

The actual principle most relevant in the context of the present case is that set out in Charlesworth -- Percy on Negligence, 8th ed, para 2-255:

"When a master's vehicle is entrusted to the servant to be driven or used in some way, the master is liable if the servant is negligent while using the vehicle either wholly or partly on the master's business or in the latter's interest . . . Deviation from the master's orders does not necessarily prevent the user from being for the master's purposes; it is a question of degree."

The first defendant, Siaosi, is a supervisor of linesmen for Shoreline Distribution. His exact duties were not explained to the court. Mrs Vaihu asked him in evidence-in-chief whether he was working on the Saturday in question. He answered: "Yes, I was on standby for any emergency."

As counsel was acting for the witness, she was not able to cross-examine him on that response. In other words, she was unable to put to him for his reaction and comments the proposition that she later advanced in her submissions, namely, that he was not, in fact, doing anything for Shoreline's benefit at the time of the accident but he was off on some jaunt of his own.

This was the conflict of interest situation the Court had expressed concern over. If Mrs Vaihu had been acting solely for Shoreline then she could have aggressively challenged Siaosi's statement to the Court and put it to him that what he was doing with the vehicle had nothing whatsoever to do with the business of Shoreline. As she was acting for both defendants, however, she could not do this.

Mrs Vaihu also called evidence from 'Alisi Tu'inukuafe, who is in charge of administration with Shoreline. She was not Siaosi's boss but she was asked in evidence-in-chief was Siaosi working at the time of the accident and she replied, "He was on-call". The witness explained that all the linesmen were on-call that day because it had been very windy. Siaosi was a supervisor.

Mrs Vaihu then asked whether the company had any policy on the private use of motor vehicles and the witness replied: "They are informed not to use vehicles for personal reasons, only for business reasons." It is that statement which Mrs Vaihu relies upon principally in support of her submissions that Shoreline should not be held vicariously liable for Siaosi's negligence.

Mrs Tu'inukuafe was asked by the Court to explain what she meant when she said that Siaosi was "on-call". She replied that, in case of emergency, he would need to remain in contact either by the radio telephone in his vehicle or mobile telephone.

This gives rise to the converse conflict of interest situation referred to above. Had counsel been acting only for Siaosi, she could have cross-examined the lady from Shoreline and put it to her that because Siaosi was a supervisor and he was on-call then it was in the company's interest that he used the vehicle wherever he went that day so that they could contact him immediately on the vehicle's radio telephone in the event of an emergency. At the very least, counsel could have been expected to have canvassed all these matters in detail with Siaosi in his evidence-in-chief. That, of course, was not done.

It seems clear to me that as counsel was acting for both defendants, she could not properly represent either in any issue relating to vicarious liability. It was a classic conflict of interests situation which should have been identified and sorted out long before the matter ever came before the court.

In relation to vicarious liability generally, Charlesworth states, para 2.250:

"In determining whether or not a servant's wrongful act is done in the course of his employment, it is necessary that a broad view of all the surrounding circumstances should be taken as a whole and not restricted to the particular act which causes the damage. There is no simple test which can be applied to cover every set of circumstances, so that it remains essentially a question of fact for decision in each case."

As it turns out, I accept that Siaosi was using the van principally for his own purposes but a sufficient nexus has been established between his use of the van and his employment to properly invoke the vicarious liability principal. In this regard, I am influenced in particular by such things as Siaosi's senior supervisory role with the company, his being on-call or standby because of the high wind situation and the requirement for him to remain in contact at all times throughout the day so that, in the event of an emergency, the company would be able to contact him on the vehicle's radio telephone.

The Shoreline witness did mention the other option of making contact by mobile telephone but there is no evidence before the court that mobile telephones were actually in use for that purpose back in July 2002. The witness's evidence on this point was speculative. I, therefore, find the defendants jointly and severally liable.

Turning to the question of damages, the plaintiff claims, first, the sum of $8,300 for damages to his van. Mr Veikoso produced a "Repair Assessment" form prepared by Sione Kaho of Asco Motors dated 16 July 2002. Mr Kaho advised that the vehicle had been damaged beyond repair and that it should be written off. He estimated its pre-accident value at $8,000 and it's residual value after the accident at $800.

Mr Kaho was called as a witness. He did not provide a breakdown of the repair costs but he spoke in very general terms of the main parts that needed replacing. He told the court, for example, that the van would need a new chassis and a new engine. He estimated that the chassis would cost approximately $10,000 and a new engine "$8,000 -- $10,000 plus".

There will be occasions when a vehicle can obviously be correctly categorised as a write-off and no one is likely to challenge that description. The more common situation, however, is when there can be genuine debate over the issue and in those cases the person putting forward the proposition must be prepared to prove the allegation in the usual way to the required standard of proof in civil claims.

On the plaintiff's own evidence, this case comes into the latter category. The second expert witness called by Mr Veikoso was Sailosi Tupa of PS Auto parts who presented an estimate for repair work to Mapa's van of $8,200 made up of "engine $1,700", other parts for the damaged front $4,000, welding $1,000 and labour $1,500.

Mrs Vaihu was critical of both witnesses called for the plaintiff. Apart from making the point that Mr Kaho had not provided any written breakdown of the replacement parts needed or their costs so as to enable a proper comparison to be made between the vehicle's pre-accident market value and the total repair costs, counsel highlighted the fact that in cross-examination Mr Kaho had conceded that he did not know the market value of the vehicle at the time.

That certainly was a strange admission for the witness to make bearing in mind that he had assessed the pre-accident value of the van at $8,000. I suspect that he may have been confused over the meaning of the term "market value" when it was put to him in cross-examination because he went on to explain to the court that the $8,000 estimate was his assessment of what people would buy or sell that particular van for and, of course, that, in reality, is the market value.

For his part, Mr Veikoso submitted that Mr Kaho's valuation is consistent with the evidence that the plaintiff had purchased the van in December 1999 for $12,000.

Despite the concession made by the witness under cross-examination, I accept that his valuation figure of $8,000 was probably a realistic assessment of the van's pre-accident market value.

In her criticism of Mr Tupa's evidence, Mrs Vaihu pointed out that the witness had not provided any breakdown of the replacement parts needed and their costs and she also noted that he had described himself as a salesperson who sold engine parts as distinct from a mechanic or panel beater and no evidence was given in relation to his experience and expertise in actually carrying out vehicle repair work.

Mrs Vaihu's criticisms were well founded. In another recent decision, Maile v Tonga Co-operative Federation Company (unreported) No CV 54/04, decision dated 17 June 2004, this court was critical of the standard of presentation of damages claims in motor vehicle cases. Unfortunately, that same criticism can be directed at the parties in the present case.

The defendants are not exempt from criticism. Mrs Vaihu called evidence from a Mr Shiu Prasad of R S Motors. He produced a written quotation, which he had presented to Shoreline for repair work to its vehicle which had totalled $2,918. The quotation contained an itemised breakdown of all the parts needed, their individual costs, together with labour and material costs. The evidence was that the repair work to the Shoreline van had been carried out by Mr Prasad for his quoted figure.

As it turns out, the second defendant has failed in its counterclaim and it is, therefore, unnecessary for the Court to refer any further to the quotation from R S Motors. Mr Prasad did, however, also carry out an examination of the plaintiff's van. He told the court that the manager of Shoreline had instructed him to inspect the vehicle to see if it could be repaired. He carried out his inspection and reported that it could be repaired but he did not hear anything further from Shoreline after that.

The witness also mentioned that at that same time he talked to Mapa about the matter but the latter made it clear that he did not want anyone to try and repair his van -- instead, he regarded it as a write-off and he wanted a replacement vehicle.

In answer to a question from the Court, Mr Prasad said that he thought his estimate of the repair costs to Mapa's van was "about $6,000". He said that he had never been asked by Shoreline, however, to provide the company with a written quotation.

Mr Prasad was an impressive witness and he obviously knew how to prepare and present evidence in a motor vehicle damages claim. Why, then, he was not instructed by the Shoreline manager to provide the company with a written quotation for repairing the plaintiff's vehicle is quite beyond me. Without being critical of the witness in any way, I found his answer to the question from the Court on his recollection of his repair estimate too speculative to be reliable.

In the absence, therefore, of any reliable counter-evidence from the defendants, I am prepared to accept Mr Kaho's conclusions that the plaintiff's van could properly be categorised as a write-off. Apart from the reservation already noted on the market valuation point, I found Mr Kaho a credible witness. He is the Supervising Panelbeater at Asco Motors. He told the court that he has had 22 years experience as a Panelbeater.

The plaintiff, therefore, has succeeded in making out his claim based on the pre-accident value of the van at $8,000 less $800 being the value of the wreck.

The plaintiff also makes an audacious claim of $51,520 for loss of use of the van at $80 per day from 14 July 2002 down to the first day of the hearing. The claim was not proved and I reject it out of hand. It also, obviously, overlooks the obligation on a plaintiff to take all reasonable steps to mitigate his or her loss. As noted in the Maile case (supra) a plaintiff 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.

The plaintiff could and should have purchased a replacement vehicle as soon as reasonably possible. He was cross-examined about his income and, if what he told the court is correct, then his annual income from the sale of kava products to the USA in particular is, in Tongan terms, substantial. There was also evidence that since the accident he had spent $5,000 doing up an old truck which has now broken down again. That money should more reasonably have gone towards the costs of a replacement van.

Mrs Vaihu submitted that the plaintiff should have been able to obtain a replacement vehicle within one month and a proper allowance during that period would be $40 per day rather than $80.

Mr Veikoso made the point that he had written to the defendants on 9 September 2002 enclosing the quotations from Asco Motors and P S Auto Parts but he had not even had the courtesy of a response to his letter. There is merit in the point Mr Veikoso makes. The plaintiff was entitled to wait a reasonable time for a response from the defendants before going ahead with the purchase of a replacement vehicle.

I am prepared, therefore, to allow the claim at $40 per day from 14 July 2002 until 9 October 2002, which gives a figure of $3,480.

The plaintiff seeks interest at 10% on the damages award from 13 July 2002 until the date of judgment. I allow the interest claim but only from 10 October 2002.

In summary, the plaintiff succeeds in his action and is awarded damages in the sum of $10,680 together with interest at 10% from 10 October 2002 until the date of judgment. He is also entitled to costs to be agreed or taxed.

NUKU'ALOFA: 21 JUNE 2004

JUDGE