Willie v Tapasongi [2006] VUSC 17; CC 056 2005 (27 February 2006)

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

Civil Case No. 56 of 2005

BETWEEN:

JOHNSON WILLIE
Claimant

AND:

SAMUEL TAPASONGI
Defendant

Coram: Justice Treston

Mr. Tavoa for Claimant
No appearance of Defendant but Mr. Leon Malantugun (not admitted) endeavours to appear as counsel having arrived late.

Dates of Hearing: 27 February 2006
Date of Decision: 27 February 2006

REASONS FOR ENTERING JUDGMENT AND SETTING QUANTUM

CLAIM

This was a claim for damages including repair costs and loss of business and special damages made by the Claimant against the Defendant consequent upon a motor vehicle collision which occurred on 24 April 2002. A Supreme Court claim was filed on 8 April 2005 and a defence was filed on 13 July 2005.

In the claim, the Claimant alleged that the collision of motor vehicles was caused by the negligence and the breach of duty of the Defendant who was allegedly driving under the influence of alcohol.

The particulars of the negligence were set out as follows:-

"i. Failing to make proper look out for vehicle coming in the opposite direction.

2. Failing to keep to the right when the Claimant's vehicle is coming in the opposite direction.
   
3. Failing to observe the speed limit.
   
4. Driving without due care and attention.
   
5. Driving without reasonable consideration for the Claimant who also was using the road at the time.
   
6. Failing to brake, slow down or stop his vehicle so to avoid the said collision."
   

The Defendant in his defence admitted the particulars of ownership of the respective vehicles but denied the details of the collision, the particulars of negligence and the fact that he was drunk. He denied the alleged injuries, loss and damage and contended that another person had disturbed the flow of traffic and should be made a party to the proceeding. The Defendant took no steps to join a third party.

THE COURSE OF THE PROCEEDING

The Claimant filed a sworn statement as to quantum and the Defendant filed a sworn statement. Counsel for the Defendant did not personally attend the trial preparation conference set for 8am on 8 December 2005 but faxed a letter to the Court proposing that the trial hearing of the matter be listed for 27 February 2006 at 9am. That trial and date for trial was duly allocated by the Court.

When the matter was called at 9am on 27 February 2006, the Claimant and his counsel appeared but neither the Defendant nor his counsel appeared. After orders had been made one Leon Malantugum entered an appearance indicating that he was representing the Defendant. The Court inquired whether Mr. Malantugum was admitted as a barrister and solicitor and he indicated that he was not. Counsel then endeavoured to make out that he was a Mackenzie friend on behalf of the Defendant in accordance with Clause 2 (i) of Practice Direction No. 1 of 2006 relating to Unadmitted persons Appearing and Acting as Barrister and Solicitors before the Supreme Court and subordinate Courts of Vanuatu dated 17 February 2006. Mr. Malantugum conceded that the Defendant was not present and had been unable to be located. The Court advised Mr. Malantugum that he could not b a Mackenzie friend in the absence of the Defendant nor could he act as counsel in accordance with the Practice Direction because he was unadmitted. Mr. Malantugum then left the Court.

It had earlier appeared that the Defendant had failed to pay his trial fee by 14 day before the trial date and I ordered pursuant to Rule 4.12 (3) (f) (i) that the Defendant not participate in the trial.

I also entered judgment for the Claimant against the Defendant and set the quantum of claim as far as I was able in the sum of VT640,504 repair costs and the VT50,000 for emotional pain, suffering and distress largely in accordance with sort of quantum that the Court of Appeal set in the case of VMA v Bani Timbacci [2005] VUCA 19 Civil Appeal Case No. 24 of 2005.

I was not satisfied on the balance of probabilities that the proof offered for loss of income was adequate and directed that the Claimant must file and serve a sworn statement as to his loss of income by 3pm on 14 March 2006.

I also ordered that the Defendant must pay costs to the Claimant on a standard basis as agreed or as determined by the Court.

Finally I directed that the Defendant must pay the final determined judgment which would be advised to his lawyers, by 3pm on 11 April 2006.

Dated AT PORT VILA on 27 February 2006

BY THE COURT

P. I. TRESTON
Judge