Lam v Wendt [1999] WSDC 3 (8 October 1999)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN

FAASAVALA LAM
of Alafua, Businessman
Plaintiff

AND

JOHN WENDT
of Vaiusu-uta, Bus Operator
First Defendant

AND

LUI FAASA VALU
also known as IOSEFAPEPA TEO
of Sinamoga and Vaiusu, Driver
Second Defendant

Counsels: Mr Leung Wai for Plaintiff
Mr Fepuleai for 1st Defendant

Date of Hearing: 11.8.99
Date of Judgment: 8.10.99.

JUDGMENT OF VAAI, J

This is an action in Negligence arising out of a traffic accident at Vaimoso involving a motor van owned by the plaintiff and a bus owned by the first defendant and driven by the second defendant. The second defendant did not defend the action and took no part in these proceedings and the first defendant called no evidence at the hearing.

It was not disputed at the hearing that the motor van had the right of way as it proceeded through the roundabout at Vaimoso on the afternoon of the 29th January 1999 and the bus should have given way. And since the bus did not stop to give way to the van, the bus crashed onto the right side of the van resulting in extensive damage to the front door and the sliding door of the van. Sitting in the front passenger seat of the van was the wife of the plaintiff. She knows the second defendant very well as they are neighbours at Sinamoga and she has often seen the second defendant drive the same bus prior to the accident.

On the undisputed evidence .of the wife of the plaintiff, I hold that the second defendant was negligent when he failed to stop or slow down at the roundabout to allow the plaintiff's van to complete its passage along the roundabout at Vaimoso. The van was proceeding through the roundabout when the bus approaching from the right failed to stop thus crashing into the right side of the van. The Court is reinforced in this finding by the fact that the second defendant has not taken any steps to dispute the allegations of negligence alleged by the plaintiff in the statement of claim. Having made those findings it is therefore unnecessary for me to consider the case of Jorgenson v. News Media Ltd (1969) NZLR 1961 cited by Counsel for the plaintiff.

It is also denied by the first defendant that the second defendant was his agent or servant when he drove the bus through the roundabout and into the plaintiff's van. The evidence adduced by the plaintiff is that after the collision, the van was taken to the house of the brother of the plaintiff at Vaimoso. Repairs were done by the brother but the plaintiff was not happy and he went to see the first defendant at his home. The first defendant sent his mechanics to inspect the van and they took the van to the first defendant's home where repairs were undertaken. When the van was returned the plaintiff was disappointed with the standard of workmanship and he sought the assistance of another panel beater. I accept from the evidence that the second defendant has been driving the same bus for some time before the accident and I also accept that the first defendant accepted to repair the plaintiffs van. I therefore agree with counsel for the plaintiff that there is abundance of evidence to the effect that the second defendant was driving the bus at the time of the accident as the servant of the first defendant.

As to damages the plaintiff claims $5,784 for replacement parts and materials, $900 for labour and $204 travel expenses. Although the first defendant did carry out some repairs to the damaged van I am satisfied from the evidence of the plaintiff and of the Panel Beater Paul Wong Chiu that the so called repairs work done by the first defendant on the plaintiffs van were temporary, very disappointing and most unsatisfactory. In fact both the doors could not shut properly as both door frames were twisted, the broken glass of the sliding door was replaced with a dirty piece of aluminium; the broken glass of the front right door was not replaced at all and the overall workmanship was below standard.

Mr Paul Wong Chiu, an experienced panel beater and spray painter said the best way to solve the problem is to replace the doors because it is time consuming to try and straighten out the door frames and that cost of labour and materials will exceed the cost of two new doors. There is no evidence to the contrary and I therefore allow the claim of $5,784 for materials. I also allow the claim for travel expenses incurred during the time the vehicle was repaired.

On the claim for cost of repairs amounting to $900, counsel for the first defendant submits that the first defendant will be hit twice if he was to pay for cost of repairs as well as for materials. But repairs amounting to $900 were done after the first defendant himself has unsatisfactory did the repairs and $900 worth of repairs were incurred to make the vehicle roadworthy and to provide transport for the plaintiff, his family and his business. Accordingly, I allow the claim for repairs.

Judgment is given for the plaintiff against the first and second defendants in the sum of $5,988.00.

On the question of costs I am satisfied from the evidence that the plaintiff is entitled to costs. The accident was occasioned when the bus driven by the second defendant failed to give way at the roundabout and despite that undisputed fact the first defendant elected to plead no knowledge of and put the plaintiff to proof. Similarly the first defendant denied the second defendant was his agent or servant. He called no evidence to support his denial. And when the first defendant agreed to repair the damaged van (which is an acknowledgment that the second defendant was his agent and was negligent) he did nothing which could be described as repairs. The first defendant is ordered to pay costs of $2,000.

JUDGE