Chan Mow & Co Ltd v T&N Toleafoa & Co Ltd [2012] WSDC 2 (2 March 2012)

IN THE DISTRICT COURT OF SAMOA
Chan Mow & Co. Ltd v T & N Toleafoa Co. Ltd & Fetalai [2012] WSDC 2

Case name:	Chan Mow & Co. Ltd v T & N Toleafoa Co. Ltd & Fetalai
Citation:	[2012] WSDC 2
Decision date:	2 March 2012
Parties:	CHAN MOW & CO LTD (Plaintiff) v T & N TOLEAFOA CO LTD (First Defendant) & Laki Lino Fetalai (Second Defendant)
Hearing date(s):	13 February 2012
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata Keli Tuatagaloa
On appeal from:
Order:	Judgment is as follows: The Plaintiff’s claim is dismissed; The Defendants counter-claim in the amount of $1,000.00 is dismissed; Parties to pay their own costs to these proceedings.
Representation:	Mrs Kirstin Drake-Kruse for Plaintiff Mr Matafeo George Latu for Defendants
Catchwords:	vehicle accident – negligent driving
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

CHAN MOW & COMPANY LIMITED
a duly incorporated company carrying on business at Matafele
Plaintiff

A N D:

T & N TOLEAFOA COMPANY LIMITED
a duly incorporated company carrying on business at Fugalei and Fasitoo-uta
First Defendant

AND:

LAKI LINO FETALAI
of Fasitoo-uta, Bus Driver
Second Defendant

Counsel:
Mrs Kirstin Drake-Kruse for Plaintiff
Mr Matafeo George Latu for Defendants

Hearing: 13^th February 2012.

Decision: 2^nd March 2012.

DECISION OF DCJ TUATAGALOA

Introduction:

1. The Plaintiff Company owns the vehicle model Zoyte, Registration Number 17184 that was involved in a vehicle accident with a Toyota Bus Registration Number M/O 132 owned by the First Defendant but driven by the Second Defendant.
2. Counsels agreed that the only issue is that of liability as to who was at fault or negligent as to the cause of the accident. Counsels also agreed that it is purely a matter of facts based on the evidence presented in court.
3. The accident occurred on Tuesday, 5 April 2011 at around 9am in the morning.

The Issue:

4. The cause of action pleaded in both the Plaintiff’s claim and Defendants’ counter-claim is negligence. There is no disputing that whoever is found to be the negligent party in the circumstances of these proceedings caused the damage suffered by the other as claimed and counter-claimed.
5. The only issue therefore for the court to determine is whether the Second Named Defendant or the driver of Plaintiff’s vehicle was negligent. If the Second Named Defendant is found negligent then both Defendants will be found liable.

The Claims:

6. The Plaintiff is seeking from the Defendants the amount of $3,277.50 for repairs to the vehicle and general damages in the amount of $1,000.00 plus cost of the proceedings.
7. The Defendants deny any negligence on their part and counter-claim from the Plaintiff the amount of $1,000 for repairs to their bus. No evidence was provided by the Defendants to substantiate their amount.

The Facts:

8. Both vehicles were travelling towards Apia or were north bound on the Vaimoso Street. The Plaintiff vehicle travelled from an inside road off the Vaimoso Street heading to Apia. The Defendant’s bus was travelling from south heading north to Apia on the Vaimoso Street.
9. The accident said to occur when the bus stopped to pick up a passenger. The facts that are in dispute are as follow:
   • (i) The Plaintiff alleged that the bus stopped at the entrance of the side road. The Defendants said that the bus stopped 5 metres away from the entrance of the side road and on the side of the Vaimoso Street road.
   • (ii) The driver of the Plaintiff vehicle, Faapito Galuvao said she stopped for about 5minutes before going on to the Vaimoso Street road to overtake the bus. She said that she made sure that both sides of the road were cleared before she overtook the bus.

(iii) The Plaintiff alleged that when its vehicle was parallel the bus, the bus suddenly and without warning pulled on to the Vaimoso Street road and collided with the left front side of the Plaintiff’s vehicle.

(iv) The Defendants said that it was the Plaintiff’s vehicle which turned in to the bus and collided with the bus while it was still stationary on the side of the road.

(v) The Plaintiff driver said there were no other vehicles on the road when she overtook.

The Evidence:

10. The Plaintiff called 3 witnesses – Faapito Galuvao who drove the Plaintiff’s vehicle, Esoto Salatielu mechanic who worked on repairing the damages to the vehicle and Liki Crichton who works for Progressive Insurance.
11. Faapito Galuvao works for Lusia Chan Mow who runs a catering business. She was on her way to SOS at Vaimea next to Peace Chapel for shopping. The court believes that SOS is where you buy paper/foam cups and plates from amongst other things. The evidence was that Faapito was on her way at 9am in the morning to buy stuff from SOS for their catering of an office morning tea on the same day at 10.30am.
12. Her evidence was that when she got to the entrance of the side road to turn left on to the Vaimoso Street road the defendants’ bus had stopped and the back of the bus was blocking half of the side of the road that she was travelling on. She stopped for about 5 minutes before she then turned left on to the Vaimoso Street road after she made sure that both sides of the road was clear. It was when she was parallel with the bus almost passing the bus that the bus suddenly came back on the road without indicating or making sure that the road was cleared that it hit her vehicle in the front left side. As a result the front left side of the bumper was stuck on to the bus right front tyre. She said that as soon as her vehicle was hit the second named defendant called out “Po’o le a le mea ua tupu”. Her evidence was that she only saw one vehicle south bound when the accident happened.
13. Esoto Salatielu the mechanic who worked on repairing the vehicle said that the impact point of the damage was at the front left side of the bumper. He said the scratches alongside the said vehicle ending with a dent on the left side of the vehicle all originates from the damage to the front left side of the bumper. His opinion was the there would have been no scratches and dent if the plaintiff’s vehicle ran in to the bus while stationary.
14. Liki Crichton of Progressive Insurance tendered photographs which he took of the vehicle on the same day when the accident happened. These photos confirmed the damages to the vehicle in the front left side of the bumper, scratches alongside the left side of the vehicle ending with a dent towards the back. He also tendered the amount paid out by the insurance company for the repairs to the vehicle.
15. The Defendants called 2 witnesses – the Second Named Defendant and Kapilieli Asafo the driver of the Ia Malamalama School bus that said to be about 20 meters behind the Defendant’s bus when the accident occurred.
16. The driver of the bus Laki Lino Fetalai’s evidence was that his bus did not block the entrance to the side road but that he pulled to the side of the Vaimoso Street road and stopped 5 meters away or passed the entrance to the side road. He said the passenger has not sat down when the plaintiff’s vehicle ran into the bus on the front right side while still stationary on the side of the road. He said he did not see the plaintiff’s vehicle coming from inside on the side road but he heard a vehicle speeding down on the side road. The plaintiff’s vehicle went under the front right tyre of the bus.
17. The Ia Malamalama bus driver gave evidence for the defendants. He said he was travelling towards Apia on the Vaimoso Street road and was 20 meters behind the defendants’ bus. He said the defendants’ bus stopped past the entrance of the side road to pick up a passenger when he saw the plaintiff’s vehicle coming from inland or the side road turned left on to the Vaimoso Street road without stopping to overtake the bus and ran in to or hit the right front tyre of the defendants’ bus while still stationary on the side. He said if the bus had suddenly come back on the road and hit the plaintiff’s vehicle the bus would have taken the vehicle with it and the road would have been blocked. He said the road was not blocked and the accident did not reach the white lines in the middle of the road. He said he was still able to drive past. He said that from what he saw it was very dangerous the way the plaintiff’s vehicle came down the side road without stopping and was to him look like the driver was in a rush.

Conclusion:

18. On the whole the court prefers the evidence by the defendants especially that of Kapilieli Asafo the bus driver of the Ia Malamalama bus that was travelling behind the defendants’ bus.
19. The court finds that the plaintiff’s vehicle was in a rush at around 9am to get to SOS to buy stuff for an office morning tea that they were catering at 10.30 am of the same day. The plaintiff’s vehicle failed to stop when turning left on to the Vaimoso Street road where the defendants’ bus was stationary and as such ran in to the front right tyre of the bus because it came off the inside road on to the Vaimoso Street road without stopping.
20. The plaintiff has therefore not satisfactorily discharged the requisite onus of proof on them. The Defendants did not provide proof of the quantum they sought in their counter-claim.

Judgment:

21. Judgment is as follow:
    • The Plaintiff’s claim is dismissed;
    • The Defendants counter-claim in the amount of $1,000.00 is dismissed;
    • Parties to pay their own costs to these proceedings.
      

..............................................
Judge Mata Keli Tuatagaloa