Coconut Oil Production (Vanuatu) Ltd v Terry [2007] VUCA 17; Civil Appeal Case 24 of 2006 (24 August 2007)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

CIVIL APPEAL CASE No. 24 of 2006

BETWEEN:

COCONUT OIL PRODUCTION (VANUATU) LTD. – COPV
First Appellant

AND:

ANDREW TAVOA
Second Appellant

AND:

PETER TERRY
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Ronald Young
Hon. Justice Edwin Goldsbrough
Hon. Justice Hamlison Bulu
Hon. Justice Christopher Tuohy.

Counsels: Mr. Abel Kalmet for the Appellants
Mr. Daniel Yawah for the Respondent.

Date of Hearing: 17 August 2007
Date of Decision: 24 August 2007

JUDGMENT

Introduction

1. This appeal arises from a judgment in the Supreme Court relating to a motor vehicle accident. The Judge concluded Mr. Tavoa was primarily at fault in the accident. Mr. Tavoa was at that time driving for his employer Coconut Oil Production Limited. The Judge also found that Mr. Rimel Obed, whom Mr. Terry employed as his driver, was also at fault in the accident. The Judge refused to order Mr. Tavoa and Coconut Oil pay any portion of the repair of Mr. Terry’s taxi. But he ordered Mr. Tavoa and Coconut Oil to pay a portion of Mr. Terry’s loss of business when his taxi was out of action being repaired.

2. The Appellant says the Judge erred in his understanding of the law of negligence. And the Appellant claims that damages for loss of business, with regard to Mr. Terry’s taxi, should not have been awarded.

3. The Respondent has cross-appealed. He says the judge erred when he refused to order that the Appellant pay a portion of the Respondent’s motor vehicle repair costs.

Facts

4. On 21 June 2004 Mr. Tavoa was driving his employer’s Hilux truck. Behind him was Mr. Rimel Obed driving Mr. Terry’s taxi. He had been following Mr. Tavoa for some time. Mr. Tavoa’s vehicle suddenly collided with the vehicle in front of him. Before the collision Mr. Tavoa gave no indication he was stopping or slowing down. As a result of that collision Mr. Tavoa’s vehicle was apparently shunted backwards.

5. Mr. Obed, driving behind Mr. Tavoa, was surprised by Mr. Tavoa’s sudden stop and the fact that Mr. Tavoa’s vehicle was shunted backwards towards him. Mr. Obed said he could neither swerve nor take other evasive action within time and he collided with Mr. Tavoa’s vehicle.

6. Mr. Tavoa was charged with, and pleaded guilty to, driving without due consideration. This charge related to his collision with the vehicle in front of him.

7. Mr. Terry issued civil proceedings against Mr. Tavoa and his employer alleging Mr. Tavoa drove negligently and Coconut Oil was vicariously liable for the actions of their employee. Mr. Terry claimed the cost of repairs of the vehicle being VT1,264,999 plus loss of business at VT7,000 per day from the date of the accident, 21 of June 2004, and continuing.

8. Mr. Tavoa and Coconut Oil denied the claim and counterclaimed alleging the fault in the accident was solely Mr. Obed’s. Coconut Oil and Mr. Tavoa claimed their repair costs of VT1,499,413. This counterclaim was abandoned before trial.

Judgment Appealed from

9. The Judge concluded that Mr. Tavoa had driven at an excessive speed and failed to keep a proper look out. As a result he found Mr. Tavoa drove negligently when he collided with the vehicle in front and therefore negligently in relation to Mr. Terry’s driver when he stopped so suddenly.

10. The Judge concluded the driver of Mr. Terry’s vehicle was also travelling too fast and also travelling too close to Mr. Tavoa’s vehicle when the collision occurred. And so the Judge concluded that Mr. Terry’s driver also drove negligently.

11. The Judge said that those driving on the road had a duty of care to other road users. He found both drivers were negligent. He assessed responsibility in the accident as to 70% with respect to Mr. Tavoa and Coconut Oil and 30% Mr. Terry and his driver.

12. As to quantum, Mr. Terry had an estimate for the repair of his vehicle. However, the vehicle was repaired and the Judge said there was no evidence before him of the actual repair costs. He was therefore not satisfied the Claimant had established any quantum of damages for the repair of the vehicle.

13. As to the claim for loss of income from the taxi business, the Judge awarded VT7,000 per day. He concluded that, although the taxi was not finally repaired and sold until August 2005, Mr. Terry had failed to mitigate his loss. The Judge said that six months was a reasonable period to allow for the repair of the taxi and therefore the loss from the business. He calculated this loss therefore at VT1,372,000 from which he deducted 30% to reflect his findings as to contributory negligence. He therefore gave judgment for the Claimant for VT960,000.

Ground 1.

14. We turn therefore to the Appellants’ appeal grounds. The first ground of appeal alleges the Judge misstated the law when he said in his judgment "there is no need for the Claimant to establish any relationship of proximity before claiming that the Defendants owed a duty of care" and "(requiring a relationship of proximity) would be too far reaching for Vanuatu and that cannot be accepted to be the law here."

15. In Caparo Industries v. Dickman [1990] UKHL 2; [1990] 2 AC 605 the House of Lords after a review of relevant authorities since Anns v. Merton London Borough Council [1977] UKHL 4; [1978] AC 728, in an attempt to provide a practical test to determine whether a duty of care is owed, said:-

"In addition to foreseeability of damage, necessary ingredients in any such situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of "proximity" or "neighborhood" and that the situation should be one in which the Court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other."

16. We adopt this practical test for Vanuatu. We consider therefore the Judge misapprehended the law of negligence when he rejected the idea that there need exist a proximity between the party owing the duty and the party to whom the duty is owed before a duty of care can arise.

17. However, in this case it is equally clear the Judge in fact correctly found that the Appellant did owe a duty of care to other road users. Indeed the same duty of care was owed by the driver of Mr. Terry’s taxi. Road users owe a duty of care to others to take care in the manner of their driving.

18. In summary therefore the Judge correctly identified a duty of care was owed here. That was owed by Mr. Tavoa to the driver of Mr. Terry’s vehicle and by the driver of Mr. Terry’s vehicle to Mr. Tavoa for both to drive to the standard of the competent prudent driver. We are satisfied the Judge applied that test. We therefore reject this ground of appeal.

Ground 2

19. The Appellant submits the Judge was wrong, when he said, in deciding whether Mr. Tavoa’s driving fell below the appropriate standard, that Mr. Tavoa’s conviction for driving without due consideration meant he did not have to look beyond this conviction.

20. While such a view is not an expression of the law (Sibley v. Kais [1967] HCA 43; (1967) 118 CLR 424), it is clear from the judgment that the Judge did not wholly rely upon the conviction for driving without due consideration. The Judge found that Mr. Tavoa drove negligently because he drove at an excessive speed and failed to keep a proper look out. There is nothing therefore to this appeal point. We reject it.

Ground 3

21. The Appellant submits the Judge could not have been satisfied that the Respondents had suffered a daily loss of VT7,000 on the evidence given. The Appellant submits that the Respondent provided no evidence other than his simple assertion that his loss of business was VT7,000 each day. The Appellant says the Judge was wrong to simply accept this evidence without some independent evidence relating to past turn-over of the taxi business and the profitability of it.

22. In his sworn statement of 27 August 2004 Mr. Terry claimed that he was losing business each day the vehicle was not on the road. In Mr. Terry’s Claim he alleged "loss of business at VT7,000 per day". In their reply Mr. Tavoa and Coconut Oil denied that claim.

23. Mr. Terry gave evidence at trial. In evidence in chief he simply confirmed his sworn statement which contained nothing about his business loss. In cross-examination he was asked about the VT7,000 per day claim. He accepted that the VT7,000 per day was the average a taxi would earn. He had no receipts to show what the particular taxi Mr. Obed was driving had been earning. He accepted that from VT7,000 per day he would incur costs for running the taxi including fuel of about VT1,500 per day, maintenance costs, registration, licence fees and road tax.

24. We agree with the Appellant that at the end of the case the Claimant had not proved any recoverable loss from his taxi business. The Judge did not know what Mr. Terry’s taxi was earning each day. The Court did not know what expenses Mr. Terry incurred in operating the taxi nor know which expenses were of a continuing nature and which expenses ended when the taxi was off the road being repaired (for example petrol).

25. In the pleadings the Claimant asserted the VT7,000 loss. The Defendant denied such a loss had occurred. It was therefore for the Claimant to prove on the balance of probabilities that such a loss, or a lesser sum, had occurred. The Claimant failed to call any evidence at or before trial to substantiate this loss. In cross-examination he offered no evidence that he had suffered any recoverable loss other than his assertion.

26. We therefore disagree with the Judge that the Claimant established business losses. The Judgment awarding damages for losses arising from the operation of the taxi business will therefore be quashed.

27. We do not therefore need to consider ground 4 of the appeal.

Ground 5

28. The Appellant submitted that the degree of contributory negligence by Mr. Terry’s driver should be increased given the "established facts of the case".

29. We disagree. It was open for the Judge to apportion responsibility as he did. The responsibility for the accident clearly mostly lay with Mr. Tavoa. He drove too fast and too closely to the vehicle in front. He saw the vehicle braking however he was unable to avoid colliding with that vehicle.

30. Mr. Terry’s driver was in a different situation. He was faced with an emergency stop. Mr. Tavoa’s vehicle did not brake therefore Mr. Terry’s driver had no immediate warning to slow. It was therefore well open to the Judge to apportion responsibility at 70% and 30% as he did. This ground of appeal is therefore rejected.

Cross Appeal

31. As to the claim for damages for the repair of the Respondent's vehicle we are satisfied the Respondent did prove his loss. In this we differ from the trial Judge.

32. In the original Claim the estimated cost of repairing the vehicle was VT1,264,989. This was said to be based on an estimate given by Asco Motors. At that stage the vehicle had not been repaired. In his sworn statement Mr. Terry attached a quote from Asco Motors. The vehicle had still not been repaired at the time of his sworn statement of 27 August 2004.

33. At the hearing a further quote was produced. This was dated 24 June 2004. It was from Maxim’s Side River Garage in Santo and was for VT1,085,125.

34. The vehicle was repaired between October 2004 and August 2005. Mr. Terry made no mention of the actual repair costs in his evidence in chief at trial.

35. However, he was asked this question during the course of extensive cross- examination.

"Q. How much cost of repair

A. It is over 1 million as new parts were filled – not quite sure as to amount"

36. The Respondent then said in evidence the repairs were actually carried out at Maxim’s Side River Garage. The Respondent was then shown a copy of Maxim’s quote for the repair. He confirmed this was the quotation he had accepted and the garage had proceeded to complete the repair. Mr. Terry said he relied upon this quotation.

37. We consider Mr. Terry’s evidence seen as a whole established:-

(a) The Respondent had obtained a quote from Maxim’s Side River Garage;

(b) The Respondent instructed the garage to proceed with the repair and it did so;

(c) The cost of the repair was in terms of the quote of VT1,085,125.

38. We are satisfied Mr. Terry did establish on the balance of probabilities that his vehicle cost VT1,085,125 to repair and therefore the Judge was wrong when he said this part of the claim was not proven.

39. From the sum of VT1,085,125, 30% must be deducted to reflect the Judge’s findings of contributory negligence. This reduces the damages therefore to VT759,588.

40. In summary therefore:-

(a) The Appellants appeal is allowed only to the extent that the finding that the Respondent was entitled to damages of VT960,400 for "loss of business" is set aside.

(b) The Respondent’s cross-appeal is allowed. The Respondent is entitled to damages from the Appellant of VT759,588 for the repair of his motor vehicle.

41. We consider the costs order made in the Supreme Court should be unaffected by this Judgment. Given both parties have to a degree succeeded in this Court there will be no order as to costs.

DATED at Port Vila, this 24th day of August, 2007.

BY THE COURT

Hon. Vincent Lunabek CJ
Hon. Ronald Young J.
Hon. Edwin Goldsbrough J.
Hon. Hamlison Bulu J.
Hon. Christopher Tuohy J.