Puia'i v Jessop [1969] SamoaLawRp 1; [1960-1969] WSLR 214 (30 July 1969)

[1960-1969] WSLR 214

SUPREME COURT OF WESTERN SAMOA

LEMALU PUIA’I

v.

FRANK JESSOP

SUPREME COURT.
1968, 1969. 7, 8, 13, 28, 29, November; 30, July.
SPRING C.J.

Negligence – personal injuries following motor vehicle accident – special and general damages – assessment

1. There are no rigid rules that apply to all cases of special damages for personal injury, and each must be considered on its own set of circumstances, but special damages must be strictly proved and must not be too remote; and where special damages claimed is loss of earnings, the plaintiff is entitled to recover the loss which he sustained by reason of being unable to pursue his ordinary avocations, subject to the broad principle that in assessing damages for loss of income there will be deducted a sum equivalent to the amount of tax which would have been payable on the income if received by the plaintiff so that the final award represents his net financial loss.

The Greta Holme /1897/ A.C. 596 and British Transport Commission v Gourley / 1955/ 3 A.E.R. 796, referred to.

2. General damages for personal injuries are to compensate for results that have actually been caused, which may consist of both physical loss and of pain and suffering, loss of enjoyment of life and opportunities, and future needs, such as for special treatment; but the Court is not required to segregate and assess separately the heads of damage, they being only aids of guides in arriving at a fair and reasonable compensation; and, moreover, in considering an award of general damages, the Court is to have regard only to the social and economic conditions existing in Western Samoa, and not to be guided by awards given in other jurisdictions where different social, economic and industrial conditions obtain.

H. West and Son Ltd v. Shephard /1963/ 2 A.E.R. 625; Fletcher v Auto Car and Transporters Ltd / 1968/ 1 A.E.R. 726; Watson v Powles /1967/ 3 A.E.E. 721; Bird v Cocking and Sons Ltd (1951) 2 T.L.R. 1263; and Singh v Toong Fong Omnibus Co Ltd /1964/ 3 A.E.R. 925, referred to.

Judgment for Plaintiff.

ACTION claiming specific and general damages for personal injuries sustained by the plaintiff following a motor vehicle accident caused by the negligence of the defendant’s employee.

Clarke, for plaintiff.
Phillips, for defendant.

Cur. adv. vult.

SPRING C.J.: The plaintiff, a Western Samoan, claims the sum of $12,000 for general damages and $3,113.27 for special damages, making a total of $15,113.27 for injuries arising out of a motor accident which occurred on the 2 December 1965. The plaintiff was a passenger in an omnibus owned by the defendant and driven by his employee. As a result of the negligent driving of the defendant’s employee (which was admitted) the omnibus ran off the road and collided with a coconut tree. The plaintiff’s right leg was severely crushed which necessitated amputation of the right leg in the mid portion of his right thigh. He was admitted to the Moto’otua Hospital from the 2 December 1965 and discharged on 10 January 1966 but he attended the Hospital as an out-patient until 10 March 1966 when he was re-admitted for further treatment. He was discharged on the 15 March 1966. He attended the said hospital weekly thereafter as an out-patient from 15 March 1966 until 16 October 1966 when he left Western Samoa to attend the Artificial Limb Centre at Mt Eden, Auckland, New Zealand, where he was fitted with an artificial leg. While in New Zealand the plaintiff received treatment to his left leg at both the Middlemore and Auckland Hospitals. On 17 April 1967 the plaintiff was appointed by the Western Samoan Government to in-service training in New Zealand in dentistry. The plaintiff continued making visits to the Artificial Limb Centre, 2 or 3 times a week thereafter until he returned to Western Samoa on 8 October 1967. The plaintiff resumed employment at Noto’otua Hospital as a Dental Officer on 16 October 1967. The plaintiff was born on 6 June 1912. He commenced employment as a dentist in the Public Service in December 1937 and at the date of the accident, 2 December 1965, he was a permanent employee of the Western Samoan Public Service at a salary of £765 or $1, 530. When he was re-engaged on the 17 April 1967 (as an in-service trainee) he was employed as a temporary employee at a salary of £655 or $1,310. On 1 April 1968 the plaintiff’s salary was increased to £690 or $1,380 which at the date of hearing of this action was his current salary. The defendant admitted that the plaintiff suffered the injuries while a passenger in the defendant’s omnibus and that they were caused as a result of the negligent driving by the defendant’s employee. The defendant claimed however, that the plaintiff after the issue of proceedings but before the hearing of the action had accepted an ifoga in accordance with Samoan custom and tradition which amounted to a settlement of the claim thereby estopping the plaintiff from proceeding with his claim. An ifoga in the fa’a-Samoa arises when a person who has committed a wrong presents himself to the person wronged or injured and tenders gifts such as fine mats, money or goods and apologises for the hurt or injury and further virtually submits himself to that persons mercy. If the ifoga is accepted then it is claimed by the defendant that this would amount to a full settlement of the matter or trouble between the parties. In other words the defendant claims that if an ifoga has been made and accepted by the plaintiff then this amounts to a compromise of the action. The defendant did not apply to the Court for an order staying proceedings on the grounds that there had been a complete compromise which amounted to a valid and binding settlement of the plaintiff’s claim. It is stated in 30 Halsbury’s Laws of England 3^rd Edition, p. 408:

"If an action has been compromised and the action is proceeded with in spite of the compromise an order may be obtained for the stay of proceedings."

In Kontvanis v O’Brien [1958] NZLR 502 at p 505 Adams J says:

"It is true that a defendant who has paid an agreed sum by way of compromise of an action may, if he likes, avail himself of the agreement as a defence to the action instead of applying for a stay. (Edwards on the Law of Compromises and Family Arrangements (1925) 190). He must of course plead the matter if he wishes to defend on that ground but it rests with him to decide whether he will take that course or claim stay."

The defendant in this case defended the action on the grounds that an ifoga had been made by the defendant and the plaintiff had accepted same thereby constituting a valid and binding compromise in law to the claim of the plaintiff.

It is necessary for me to determine on the facts firstly whether an ifoga had been made and secondly, if there was such an ifoga, whether it was agreed by the parties to be in full satisfaction of the plaintiff’s claim.

From the evidence I conclude that representatives of the defendant lead by Mulitalo an orator, travelled to the home of the plaintiff at Lefaga towards the end of January 1968 for the purpose of presenting an ifoga to the plaintiff. A speech in accordance with the Samoan custom was delivered by Mulitalo, on behalf of the defendant which was replied to by Leaupepe an orator of the plaintiff’s family, on behalf of the plaintiff. Seven fine mats were presented to the plaintiff together with $50 of which $10 was handed to matais of the plaintiff’s family. The defendant claimed that the fine mats were valued at $240 although this figure was disputed by the plaintiff.

The plaintiff in giving evidence regarding the ifoga said at p. 39-

"Well as I explained earlier that soon after the other matais of my family arrived in the fale I then explained to them the position about these people coming to perform the ifoga and the Leau asked the other party to visit while we leave the fale to discuss what is to be done and it was at that discussion that the other matais of my family and I decided then that this ifoga is to be accepted solely on the understanding that is to keep the peace within the two sides and to maintain the dignity of the Lemalu and Namea title of Lofaga with the dignity of Tofacono and Tama of Vaiala and Moata’a, but as far as my claim is concerned I do not want to be withdrawn and that was to make it clear to the other side."

The plaintiff further stated at p.43-

"Q. And the speech as to the ifoga was, in effect, accepted?

A. Yes, on the understanding that it was accepted as I have explained and that my claim will not be withdrawn."

The plaintiff maintained that the ifoga was to be accepted by the chiefs and orators of his family but with the specific reservation that his claim would not be withdrawn.

The plaintiff called Leaupepe Fa’atoto who acted as his orator at the presentation of the ifoga and Leaupepe said in evidence - p. 61 -

"Lemalu Folima then once we were seated inside said that he would abstain from making a speech, but he will leave it to me to inform the other side of what we have decided that the ifoga has been accepted according to custom. I then made the speech on behalf of the Lemalu family and I directed my speech to Mulitalo on their side of course the traditional passages used in speeches of this sort are made to Lemalu on that this ifoga was performed because of the trouble that happened to Lemalu Puia’i. I then of course informed Mulitalo exactly what we have decided in the other fale that was told to him that their ifoga was properly accepted in accordance with the custom but as far as the claim of Lemalu and the law well that was the matter entirely to Lemalu if he wants to proceed with his claim. That was the purpose of my speech that their ifoga had been accepted in accordance with the custom, then Mulitalo made a speech."

Lemalu Folima was also called to give evidence on behalf of the plaintiff and the following is an extract from the record - p.66 -

"A. Leaupepe said in his speech that the claim of Lemalu Puia’i will be proceeded with because he does not wish to withdraw it.

Q. Anything else?

A. And as far as the ifoga is concerned it is accepted according to the custom and the matter of Lemalu Puia’i's claim that is left to Lemalu Puia’i to decide."

Finau Matagi was also called to give evidence and he said– p.71-

A. Leaupepe said that Lemalu agreed to accept the ifoga but as far as his claim is concerned he does not want to withdraw."

Mulitalo was called by the defence and he said in evidence- p.117-

"Q. In Leaupepe’s speech on behalf of the whole family, did he make reference to the claim which Lemalu had already filed in Court?

A. Leaupepe did not make any specific reference to the claim by Lemalu but Lemalu himself after Leaupepe’s speech made a speech telling us what their family had decided as was outlined by Leaupepe in his speech but as far as his claim is concerned he will have to think about it and he will let us know what he will decide about the claim."

Mulitalo also said he explained the position to the defendant who was not present at the presentation of the ifoga as follows - p.118 -

"Q. Did you report to Mr Jessop on the result of the ifoga which you conducted out there?

A. I did explain to Jessop when I met him.

Q. What did you tell him about the matter of the claim?

A. I told Jessop what Leaupepe and Lemalu said in their speech accepting the ifoga which we had performed at Lofaga and I also told Jessop that Lemalu said that he will have to think about his claim and that wait until he comes to Apia he will let us know what he has decided."

Evidence was given by the plaintiff that one Lisone Paleloi called to see him at the Dental Clinic at Moto’otua Hospital on four occasions after the presentation of the ifoga asking the plaintiff to withdraw his claim and on some occasions he asked the plaintiff to sign a paper to the effect that the ifoga had been accepted by him in full settlement of the claim.

The plaintiff stated in evidence that he refused either to withdraw his claim from Court or to sign any such paper.

The defendant in evidence said he gave Lisons Palelei $400 to be handed to Lemalu Puia’i if he accepted the ifoga. The plaintiff denied ever receiving any money from Lisons Paleloi apart from the $50 above referred to. Lisono referred in evidence that he went to the Dental Clinic to see the plaintiff, after the ifoga presentation, to give him approximately $300 and he further stated at p.125-

"Q. What did he have to say about the claim?

A. And he told me not to worry what he told us at the time of our ifoga that he will withdraw his claim."

I am satisfied that the plaintiff was a truthful witness and I accept his account of what took place in preference to the evidence of Lisono Paloloi. If the ifoga was accepted in full settlement of the claim as the defendant asserts, why then should Lisone Palelei go to the Hospital to see the plaintiff asking to have the claim withdrawn. I am satisfied on the facts, that the ifoga which was made by the defendant’s party to the plaintiff was not accepted by him in full settlement of his claim and his defence accordingly fails.

Having so found I am relieved from the necessity of deciding whether such an ifoga in the fa’a-Samoa would be a valid defence in law to a claim such as the instant one.

I turn now to consider the claims made by the plaintiff and it will be convenient to deal first with the items of special damage.

The plaintiff abandons his claim for medical expenses amounting to $64 and referred to in paragraph 6(b) of the third amended Statement of Claim.

The plaintiff also abandons the claim for $65.50 cost of transportation in New Zealand and referred to in paragraph (g) of the said Statement of Claim.

The plaintiff also abandons the claim for $329.02 being the cost of an artificial leg and referred to in paragraph 6(h) of the said Statement of Claim as apparently this item was paid for by the New Zealand Red Cross Society. The claim for $754.00 for air fares to New Zealand in respect of the plaintiff, his wife, and 2 young children and referred to in paragraph 6(f) of the said Statement of Claim is abandoned except to the extent of $188.50 which was paid by the plaintiff for his daughter Pamata's return air fares, Samoa to New Zealand.