Tauelangi v Tevita Misa Fifita & Sons Ltd [2008] TOSC 25; CV 402 of 2002 (21 October 2008)

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

NO. CV. 402 of 2002

BETWEEN

VILISONI TAUELANGI
Plaintiff

AND

1. TEVITA MISA FIFITA & SONS LTD
First Defendant

2. NATIONAL PACIFIC INSURANCE LTD
Second Defendant

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Mr Niu for the Plaintiff
Mr Tu'utafaiva for the first defendant
Mr 'Etika for the second defendant

Dates of written submissions: 11 and 25 August; 22 and 23 September 2008 (no submissions received from the first defendant)

Date of Judgment: 21 October 2008.

JUDGMENT

Introduction

[1] Once in a while a case will come to trial that reflects poorly on the legal profession or the Court administration. This is one of those rare cases that reflects adversely on everyone involved, not least of all, the parties themselves. It relates to events that occurred over six years ago. Memories have now dimmed and attitudes have hardened to the extent that counsel were unable to obtain instructions to have the matter referred by consent to mediation. Fortunately, under the Court's newly introduced case management system it is most unlikely that we we will see delays of this sort in future.

[2] The action arises out of a motor vehicle accident in February 2002 when the plaintiffs two ton Nissan motor truck, registration J3135, was struck on its left side around the passenger door by a car. The damage appeared to be confined to the cab of the truck. The vehicle is actually referred to in the pleadings as a "van" but a photograph produced shows that it has a cab with one door on either side and a large deck on the back and I believe that it should more accurately be described as a lorry or truck. The vehicle was one of those which had its motor positioned under the cab rather than protruding out the front. The truck was insured in the sum of $7,000 and the plaintiff duly made a claim against his insurance company, the second defendant. Quotations were obtained and the plaintiff was directed by his insurance company to take the vehicle to the first defendant for repairs. The thrust of the present claim against the first defendant is that the firm negligently failed to properly repair the motor truck and when the vehicle left the workshop it was in such a bad state of repair that it was unsafe to drive and should have been written off.

[3] The claim against the second defendant is based on a breach of an alleged duty of care the insurance company owed to the plaintiff to ensure that the vehicle was properly repaired but given the way the evidence evolved it became clear that, depending upon the Court's factual findings, the claim against the second defendant could, in the alternative, simply be based on damages in respect of the sum insured less the agreed excess.

[4] The plaintiff alleges that he expended time and money visiting the first defendant on a number of occasions to pick up his vehicle when the repairs were supposed to be completed only to find that the first defendant required the vehicle for a longer period. He claims damages for distress and humiliation and further damages for pain and suffering he alleges he suffered when he was assaulted by the staff of the first defendant. In his prayer for relief he seeks $13,000 for liquidated damages being the replacement cost of the van; $5,000 for loss of the use of the vehicle; $10,000 general damages and $800 for excess paid together with interest and costs.

[5] I need to record that in his original prayer for relief, the plaintiff claimed the general damages figure of $10,000 against the first defendant only but on 23 September 2008, well after the conclusion of the hearing, plaintiff's counsel made application to amend the relevant prayer to seek general damages of $10,000 against both defendants. Counsel for the second defendant was then given seven days in which to file any objection if the amendment was opposed but no such objection has been received. The amendment, therefore, although it comes very late in the piece, is granted.

The evidence for the plaintiff

[6] The 33-year-old plaintiff works as a farmer and grows crops. He purchased the truck in New Zealand in August 2001 for TOP $3300. He estimated that, after paying for freight and duty it would have cost him just over TOP $7,000 in total to purchase the vehicle and have it transported back to Tonga. He did not know the year of manufacture of the truck or its mileage. He told the Court that after the accident he thought that all the vehicle needed was a new cab. He made a claim against the second defendant and after obtaining quotations, he was advised by the insurance company to take the vehicle for repairs to the second defendant. His own preference would have been to have the repair work carried out by another firm, Asco Motors.

[7] In his statement of claim, which was drafted and issued by his first lawyer, Mrs Vaihu, the plaintiff detailed the drama that unfolded after the vehicle was taken to the first defendant company for repairs. The following extract is taken directly from his pleadings:

" 5. That on or about the 12th day of March 2002 the plaintiff took the van to the first defendant and he spoke with the manager a Mr Leimoni Fifita who agreed with the plaintiff to install a new cab on the van as paid for with the insurance claim. He was told to collect the van as the repair works will be completed on 15th day of March 2002.

6. That the plaintiff went to the first defendant's workshop on 15th March as he was told that the repair works to the van was not completed. He was told to return on the 19th March to pick up the van.

7. That on the 19th March the plaintiff went again to pick up the van and he was told the works is not completed and he will have to return for it on the 22nd March.

8. That on 22nd March 2002 the plaintiff went to the workshop and he was told the repair works is not completed and he will have to return to pick it up on the 26 March. The plaintiff complained to the Manager of the second defendant and he was advised to write a letter of complaint to the first defendant which he took a letter the same day. He was advised to pick up the van on the 29th March by Leimoni Fifita and he answered differently. He punched the said Leimoni Fifita and the matter was referred to the Court. The plaintiff was convicted for assault. He was told that day the repair will be completed on the 2 April 2002.

10. That the plaintiff went on the 2nd April 2002 and he was told to return on the 5th April 2002 and pick up the vehicle as a repair works is not yet completed.

11. That he turned up on the 5th April as he was instructed and whilst observing works already done on the van a staff member of the second defendant came up and asked him why he assaulted Leimoni. He attacked the plaintiff and about nine other boys employed by the workshop joined in beating him up. He did charge them for the incident. Leimoni Fifita told him to come back for the van on the 12th April.

12. That the plaintiff went there on the 12th April 2002 and he was told the work is not yet completed and he complained in person to Tevita Misa Tevita the owner of the business. He was told to give them two weeks to complete the work.

13. That the plaintiff went again on the 26th April 2002 and the van was not yet completed. He took an engineer with him and upon checking the van he was told by the engineer that the first defendant has installed the wrong cab because the one installed was a 1.5 tonne benzene cab. He complained about this and Leimoni told him he will install the old cab and repair whatever is required.

14. That the plaintiff was told to return on the 4th of May. He went there as advised and the repair work was not completed. He was told to return on the 6 May 2002. He went there but was told to come back on the 7 May as the vehicle will be taken to be inspected and looked at by the second defendant.

15. That on the 7th May 2002 the plaintiff went to the workshop and he was given the key to the van. He drove on the road and the steering wheel broke. The van was taken to the Ministry of Works workshop but they refused to inspect it because they had issued a clearance certificate for the van a few days beforehand and could not be involved in any vehicle to do with a Court case. The van was then inspected by Liu Auto Parts and Asco Motors. Both workshops were of the opinion that the van is unsafe to be driven in view of the fact that the front chassis is bent, steering system is broken amongst other major defects. Both workshops recommend van to be beyond repair and should be written off"

[8] I accept the chronology as outlined in the previous paragraph. The same details were included in a letter written to the manager of the first defendant by the plaintiff's lawyer on 17 May 2002. No objection was then taken by the first defendant or its lawyer to any part of the chronology.

[9] In examination in chief the plaintiff freely admitted assaulting Leimoni Fifita on 29 March 2002. In reference to the incident he said:

"When I went over that day Raymond (Leimoni) called the workers to come and fix the vehicle. I remained there 10 minutes. Raymond disappeared. I asked the employees where he was and they said in his office. I went over to his office. I said: "You told me to come back today and the vehicle would be finished." He said to me, "hold on because I am on the computer." I then punched him. I was charged, found guilty and fined $50."

[10] Referring to the same incident in cross examination, the plaintiff said that he was not certain how many times he punched Raymond but when he fell to the ground another person attacked him (the plaintiff) and so he punched him as well. He was asked, "And was Raymond holding his baby at the time?" The plaintiff answered, "That might be correct. I can't recall because I had pretty much lost my temper." When he later gave evidence, Raymond confirmed that he had been holding his six-month old son when he was attacked by the plaintiff and his son was hit with one of the punches. Raymond said that he fell to the ground having received "many punches" to the head. Mr Niu did not attempt to downplay the seriousness of this attack and, to his credit, he apologised to Raymond in open Court on his client's behalf.

[11] In reference to the subsequent attack on him on 5 April 2002, the plaintiff told the Court that he was in the first defendant's workshop bending down examining one of the tyres on his vehicle at the time and one of the workers came over and asked him if he was the person who had assaulted Raymond. He said that as he slowly stood up the man punched him and then nine other workers came over and surrounded him holding pieces of equipment.

[12] The plaintiff said that when he was given the keys to the truck on 7 May 2002 he turned the motor on and immediately the vehicle began shaking and when he touched the steering wheel it did not feel like it normally did. He told the mechanic about his concerns but the mechanic told him to go and drive the vehicle. The plaintiff explained that they had ended up, at his request, putting the old cab back on the vehicle and they had repaired the dents to the cab but it was still not operating properly. He said that at times the steering wheel would lock and he would have to struggle with it but at other times it would just keep on spinning and all the time the vehicle kept on shaking. With what would have obviously taken considerable effort he was able to drive the vehicle to the Ministry of Works but they refused to inspect it for him. He was able to arrange for it to be inspected by Sione Kaho of Asco Motors and Kitione Liu of Liu Auto Parts.

[13] In his report dated 7 May 2002, Mr Kaho said:

'This vehicle has been found. Damage already repaired but we recommend to written off (sic). It beyond repair, front/cab should be changed. Unsafety & front/RH/side chassis is bent. Estimated market value $13,000. Defects --front LH/RH mountings, air con, wire Engine Dash Board, horn, front RH/side chassis, front LH/Pillar. Preaccident value = $13,000. Salvage accident value $3000."

[14] In his written report dated 10 May 2002, Mr Liu said:

"This vehicle has been checked and been found that the front chassis bend (sic). Steering system broken inside the steering box. Cabin mounting bolts (welding) instead of installing bolts. Electrical connectors need installation (not safe) for using on the road. Cabin should shift to the LH side. Could be wrong cabin or wrong mounts. The above to be properly fixed otherwise, it is not qualified to run on traffic again, it's not safe. Estimated value: VALUE BEFORE ACCIDENT $12,400.00 VALUE AFTER ACCIDENT $3200.00."

[15] Both Mr Kaho and Mr Liu gave evidence for the plaintiff in support of their respective written reports. They were credible independent witnesses and although in some respects they had identified different defects with the vehicle, I am completely satisfied that when the plaintiff took delivery of his truck on 7 May 2002 from the first defendant's premises, it was not in roadworthy condition. The defects after the vehicle was allegedly repaired by the first defendant appear to have been significantly more serious than they had been before it had been taken in for repairs.

[16] The plaintiff told the Court that the vehicle remained at the Ministry of Works yard for approximately 2-3 months and then he paid $50 to have it towed to his parents' property at Pea. He said that his lawyer then instructed him to get it fixed so that he could use it and he arranged for a friend, Pahu Nonu, to work on it. In examination in chief he told the Court that Pahu did fix the vehicle and made it operational. The repair work took time. He said that he gave Pahu some money for his services but mainly he was paid with quantities of kava, yams, cassava and taro. He estimated that in monetary terms he would have given Pahu over $1000 for his work. The plaintiff said that after Pahu had made the vehicle operational again, he used it for carrying his produce around Tongatapu and over on the island of 'Eua and when it was not being used for that purpose he would use it as a taxi. That pattern continued until sometime in 2004 when the plaintiff said the alternator burnt out and he took the vehicle home where it has remained, unused, ever since.

[17] What the plaintiff did not tell the Court was that on 7 September 2003 the truck was involved in another accident. On that occasion the plaintiff was driving under the influence of alcohol and he collided with a vehicle at an intersection. He was subsequently charged with careless driving and driving under the influence of alcohol and convicted and fined in the Magistrates' Court. That evidence was presented to the Court in the form of a memorandum filed by Mr Niu following an inspection the Court had of the vehicle in question immediately after the hearing.

The evidence for the defendants

[18] The first defence witness was 38-year-old Leimoni Fifita. He told the Court that for the last 18 years he had assisted his father in operating the motor parts business of the first defendant. He said that his first contact with the plaintiff came through the manager of the second defendant insurance company. He described how he received a telephone call from that person asking him to take a look at the vehicle and give a quotation for finding a cab to replace the one that had been damaged. He said that he inspected the vehicle and gave a quote of $2800 for a replacement cab. He said that he found no fault with the chassis but if the chassis had been bent he would have recommended writing the vehicle off. Mr Fifita said in relation to the repair work carried out by his firm that the quality of workmanship was "very good" and it had passed an inspection by the Ministry of Works before it left his premises.

[19] Leimoni confirmed that the plaintiff had been unhappy with the new cab because he did not have enough leg room and so they had refitted the old cab back onto the vehicle. Leimoni denied any problems with the new cab that had been fitted and he denied any problems with the steering wheel or any other part of the vehicle when it left his workshop. In cross-examination Leimoni was asked whether, because the plaintiff had assaulted him, he had deliberately organised it so that the plaintiff would go away and still have problems with the vehicle. Leimoni denied the suggestion.

[20] Leimoni's father, 56-year-old Tevita Fifita, also gave evidence. He told the Court how he had been in Japan when he heard about the plaintiffs attack on his son. He said that he instructed Leimoni not to touch the vehicle again and he would deal with it when he returned from Japan the following week. He said he sent his son to New Zealand because he was deeply distraught over what had happened. Tevita said that when he met with the plaintiff he told him that he had behaved "very poorly". In relation to the repair work on the truck, Tevita said that the plaintiff told him that he wasn't satisfied and he wanted the new cab they had fitted removed and replaced with the old cab. He said this was done and he rang the manager of the insurance company who took the vehicle for a test drive before it was released to the plaintiff. The witness said he recalled something being wrong with the front of the vehicle about two days after it had been taken. His recollection was very vague but he thought there was a problem with the wiring. In cross-examination Mr Fifita was asked about the letter sent to his firm by Mrs Vaihu back in May 2002 which had as attachments a copy of the reports from Mr Liu of Liu Auto Parts and Mr Kaho of Asco Motors. The witness recalled receiving them and he thought that they had been given to his lawyer to deal with but, once again, his evidence on this aspect of the case was extremely vague.

[21] Mr Makalea, a panel beater with the first defendant gave evidence about fitting the new cab and painting it but he was not involved in refitting the old cab again. In cross-examination it was put to him that when the new cab was fitted it was not possible to line the bolt holes up with the holes in the chassis because the chassis had been bent and, therefore, the cab had to be welded on to the chassis. The witness denied that proposition but he was unable to speak about what happened when the old cab was refitted. Evidence was also given on behalf of the first defendant by a Ministry of Works employee, Maile Niulala, who told the Court that he inspected all new vehicles for the first defendant and on 6 May 2002 he had inspected the vehicle in question after its release from the first defendant company. In his brief report of the same day he said that he had test driven the truck and found it to be in good mechanical condition. I must say that I have some reservations about the objectivity of this witness's evidence because the Ministry refused to inspect the vehicle when the plaintiff later delivered it to their workshop with his complaints.

[22] Mr 'Etika, acting for the second defendant, called evidence from Sione Paongo, Manager of National Pacific Insurance Ltd. He told how quotations had been obtained for the repair work and then the tender from the first defendant had been accepted. His recollection was that after work on the truck had been completed, the plaintiff "repeatedly complained and contacted the manager at the time." In cross-examination, the witness attempted to resile from that statement and said to counsel, "I think I said this man had complained." My notes record that the former statement was the correct one. Later in cross-examination, the witness very fairly acknowledged that a bent chassis cannot be repaired in Tonga and if the truck's chassis had, in fact, been bent then the vehicle should have been written off by the insurance company. Mr Paongo confirmed that if the vehicle had been written off then, under the insurance policy, his company should have paid out $7,000 less the excess of $800, namely, $6,200.

Discussion

[22] After the conclusion of the oral evidence and at the invitation of counsel, I conducted an examination of the truck in question. It had obviously been disused for some years and was in a dilapidated state of repair. I record that all counsel were present apart from Mr 'Etika. What did emerge from my visual examination was that, as pointed out to me by one of the independent experts present, it could clearly be seen that part of the cab had been welded onto the chassis. I have approached this factual observation with some caution because I realise that no evidence was heard as to the nature of the damage suffered by the truck in the subsequent accident on 7 September 2003. What I concluded, however, from my observations was that the visual evidence of the welding was consistent with the evidence given by the independent experts, Mr Liu and Mr Kaho, that the truck 's chassis had been bent in the original accident. As I have indicated earlier in this judgment, I found the evidence of both these witnesses credible and reliable and they were not shaken in cross-examination. I find as a fact, therefore, that despite defence evidence to the contrary, the chassis to the truck in question had been bent in the accident back in February 2002 and that was the principal cause of the problem which the plaintiff later encountered with the repair work.

[24] It follows from my conclusions and from the concessions quite properly made by the Manager of the second defendant insurance company that the second defendant is liable to the plaintiff in the sum of $6,200. As it turns out, the sum the second defendant paid out to the first defendant for the repair work did nothing to compensate the plaintiff for the damage he had suffered. No claim for contribution or indemnity, however, has been issued by the second defendant against the first defendant.

[25] In relation to the plaintiffs claim against the first defendant, there is no doubt that the repair firm were negligent in not detecting the bent chassis and in not carrying out the repair work in a timely and proper workmanlike manner. The failure of the company, either directly or through its lawyer, to respond to the detailed allegations set out by Mrs Vaihu in her initial letter, accompanied by the reports of the two independent experts, was quite deplorable. A more responsible reaction at that stage could well have led to a prompt resolution of the whole case.

[26] It is difficult to make an assessment of the damage the plaintiff suffered as a direct result of the first defendant's negligence in this regard and, given the plaintiffs failure to tell the Court about the second accident, I am reluctant to accept all of his evidence about the inconvenience and disruption he subsequently allegedly suffered. Doing the best that I can on the evidence before the Court, I assess general damages against the first defendant in the sum of $2000.

Conclusion

[27] Judgment is accordingly entered for the plaintiff against the first defendant in the sum of $2000 and against the second defendant in the sum of $6,200. The plaintiff is also entitled to costs against the defendants jointly and severally (one set only) in an amount to be agreed or taxed by the Registrar.

[28] In his submissions on behalf of the plaintiff, Mr Niu also sought interest at 10% per annum on the damages awarded from the date of the statement of claim, namely 17 June 2002, until the date of payment on the grounds "of the long delay in having this matter finalised." It was up to the plaintiff to pursue his claim with reasonable diligence and he failed to do so. I am not prepared to encourage dilatoriness by awarding interest on such a basis. Nor was such interest claimed in the prayer for relief. The plaintiff is entitled to interest, however, on the damages awarded at 10% from the date of the release of this judgment until payment.

CHIEF JUSTICE

NUKU'ALOFA: 21 OCTOBER 2008