Terry v Coconut Oil Production Vanuatu [2005] VUSC 92; CC 026 2004 (18 July 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 26 of 2004

BETWEEN:

PETER TERRY
Claimant

AND:

COCONUT OIL PRODUCTION VANUATU (COPV)
First Defendant

AND:

ANDREW TAVOA
Second Defendant

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Willie J. Kapalu for the Claimant
No Appearance by the Defendants.

Date of Hearing: 18th July 2005

JUDGMENT

Despite the Defendants non-appearance today the Court proceeds to hear evidence from the Claimant. The trial date was agreed by Mr Collin Leo on 7^th June 2005. At that conference hearing Mr Kapalu and his client were not in attendance. Yet they are the party present today for trial and they have paid VT15,000 as Hearing Fee in accordance with the order at paragraph 5. The Defendants have not paid their part of the fees. The matter was listed in advance of the other matter to which Mr Roper refers in his letter dated 5^th July 2005. At no time should matters in Vila be treated as more important then listings in Santo where dates were agreed to and listings made in advance.

It appears from the Court File that the Defendants have not filed any Defences. Mr Kapalu has shown the Court a copy but it appears to be unfiled. Even if such a defence exists, it appears from the Defence of the Claimant to the counter-claim dated 31^st January 2005 that there is not a good defence.

The Court therefore is of the opinion the matter should proceed to hearing. Mr Kapalu calls evidence from the Claimant, Mr Peter Terry, his driver at the time of the accident, Mr Rimel Obed, and Sargeant Vuro David, the Traffic Police Officer who investigated the accident and took statements. They all confirmed their sworn statements which were tendered into evidence. Two additional sworn statements of Zacchius Boe and Joel Paul were simply read into evidence as Mr Boe is currently overseas and Mr Paul is not available due to illness. At no time have the Defendants informed Counsel for the Claimant that they intended to cross-examine these witnesses.

From the evidence of Joel Paul who was the driver of the vehicle belonging to NISCOL, the Second Defendant drove at great speed and he was talking on Mobile telephone. The impact of the collision caused two passengers on his vehicle to lose balance and fall down on the cart. The sketch plan drawn by Sgt. Vuro David confirms that. The evidence of Rimel Obed the Claimants driver at the time shows that the second Defendant stopped suddenly without indications. Two things can be inferred: firstly that the Second Defendant was talking over a Mobile phone while at speed, and secondly the sudden stop was a result of the Second Defendant’s collision with NISCOL’s vehicle. This vehicle was dropping off an employee and its driver had its brakes on indicating it was slowing down to stop for the drop-off. At that point the Second Defendant collided into his vehicle (NISCOL’s). Either the Second Defendant did not see the brake lights or that he was traveling at high speed and talking on a Mobile phone is correct. The failure and neglect of care can, in those circumstances be only attributed to the driver of the First Defendant’s vehicle.

The Court is therefore satisfied on the evidence that the Second Defendant and the First Defendant are jointly and severally liable for the accident and the damage done to the Claimant’s vehicle on 21^st June 2004.

Accordingly I give Judgment in favour of the Claimant in the sum of VT1,264,989 being total costs of repairs. The vehicle is still under repair with Maxime Remy Garage. It has been there since 21^st June 2004.

Further the Claimant is entitled to loss of business at VT7,000 per day (except Saturdays) from 21^st June 2004 to the date of settlement of Judgment. By calculation the total number of days from 21^st June 2004 to 19^th August 2005 is 366 days.
Therefore VT7,000 multiply by 366 days = VT2,562,000.

The overall total claims of the Claimant are –

(1) Costs of repairs – VT1,264,989
(2) Loss of Business – VT2,562,000

Total - VT3,826,989

Further the Claimant is entitled to costs of and incidental to this proceedings.

The Defendants are jointly and severally liable to pay the Claimant the sum of VT3,826,989. They are ordered to pay these in full within the next 28 days (before 19^th August 2005). Failure to pay will result in the total amount increasing at 19^th August 2005 by VT7,000 per day until the Judgment is finally paid.

The Defendants are also ordered to pay the Claimant’s costs when the same have been submitted which costs shall be agreed, if not, taxed.

DATED at Luganville this 18^th day of July, 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge