Peseta v Siliato [2016] WSDC 53 (25 November 2016)

DISTRICT COURT OF SAMOA
Peseta v Siliato [2016] WSDC

Case name:	Peseta v Siliato
Citation:	[2016] WSDC
Decision date:	25 November 2016
Parties:	IVA PESETA v VITA SILIATO and IVOGA SILIATO, both of Tufuiopa.
Hearing date(s):	25 October 2016
File number(s):	.
Jurisdiction:	CIVIL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	JUDGE LEIATAUALESA DARYL CLARKE
On appeal from:
Order:	The Plaintiff’s Statement of Claim is dismissed. Each party are to bear their own costs.
Representation:	Plaintiff Self - Represented P. Mulitalo for first and second defendants
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	McEllistrum v. Etches, [1956] SCR 787, 1956 CanLII 103 (SCC)
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

IVA PESETA
Informant

A N D

VITA SILIATO and IVOGA SILIATO, both of Tufuiopa
Defendant.

Counsel:
Plaintiff Self - Represented
P. Mulitalo for first and second defendants

Decision: 25 November 2016

JUDGMENT OF JUDGE CLARKE

The Proceedings.

1. The Plaintiff filed a Statement of Claim dated 11 March 2016 claiming against the First and Second Defendants the sum of $1,570.00. The Statement of Claim sets out the claim purportedly on the basis as follows:
   • “being the outstanding amount of money owed by the Defendants to the Plaintiff for fixing his vehicle which the windscreen was broken by the defendant. Full particulars of which the defendant is aware of and refused or neglected to pay and costs of this action.”
2. Despite the inadequate state of the pleadings, the Defendants through their counsel nevertheless filed an undated Statement of Defence and Counter-Claim on 18 April 2016. The Defendants sought no further particulars in respect of the Statement of Claim including as to whether the proceedings were brought on the basis of breach of contract or tort. The Defendants Statement of Defence and Counter-Claim dispute the claim saying:
   1. there was no contract between the Plaintiff and the Defendants; and
   2. the First Defendant is a minor and could not enter into a binding contract; and
   100. the legal standing of the Defendants to be sued.
3. The Defendants through counsel were ready to proceed at hearing. Defence counsel following hearing confirmed that the claim has been defended both in contract and tort. This accords with how the proceeding was conducted by defence counsel. Whilst the Defendants Statement of Defence is termed and pleaded as a Statement of Defence and Counter-Claim, I am at a loss as to why it is pleaded as such as the “counter-claim” pleaded is for the matter to “be referred to mediation for settlement of the claim.” This is not a counter-claim and the Court therefore is not required to determine any counter-claim by the Defendants against the Plaintiff.

The Law:

4. “There is no defence of infancy as such known to the law of tort”^[1] to protect an infant from civil liability in tort. Whilst infancy is not a defence to a claim against an infant in tort, the question of the infants age will be relevant to whether he or she is of such age as he ought to have foreseen the consequences of his actions. In McHale v Watson, per McTiernan ACJ as he then was stated:

• “There is ample authority for the proposition that in cases dealing with alleged contributory negligence on the part of young children they are expected to exercise the degree of care one would expect, not of the average reasonable man, but of a child of the same age and experience. No Australian or English decision was cited relating to the standard to be applied where a young child is sued in negligence. The subject, however, is discussed in several textbooks and there seems to be a consensus that the age and experience of an infant should be taken into account when considering the reasonableness of his conduct.”^[2]

5. A similar approach was adopted by the Supreme Court of Canada in the earlier matter of McEllistrum v. Etches, [1956] SCR 787, 1956 CanLII 103 (SCC) where in delivering the decision on behalf of the Court, Kerwin C.J. stated:
   • “It should now be laid down that where the age is not such as to make a discussion of contributory negligence absurd, it is a question for the jury in each case whether the infant exercised the care to be expected from a child of like age, intelligence and experience. In the present case the trial judge so charged the jury.”
6. Also, prima facie, a parent is not liable for a tort committed by their child though if the child is their servant or agent or acts with their authority, the parent may be liable as their employer or principal.^[3] Furthermore, a parent who has ‘control’ and supervision of their child may be negligent in their control and supervision of their child if injury results giving rise to liability to the injured third party.^[3]
7. In this proceeding, defence counsel has appeared for the 2^nd Defendant as well as purportedly the 1^st Defendant who is an infant as defined under the Infants Ordinance 1960 as he is 14 years of age. There was no application in this case for separate representation of the 1^st Defendant nor any application by defence counsel or the Plaintiff for the appointment of a guardian add item or of a next friend for the First Defendant. No such application was also made prior to or during the hearing. Defence counsel was ready to proceed to a defended hearing and the matter proceeded accordingly.
8. In dealing with the representation of the First Defendant, the Magistrates' Courts Rules 1971 provides as follows:
   • “14. Infants, and persons of unsound mind - Infants and persons of unsound mind may sue and be sued by a guardian ad litem admitted for that purpose by the Court.”
9. There have been no reported cases identified by this Court that has considered the application of rule 14 of the Magistrates' Courts Rules 1971. Rule 14 in my view is discretionary in terms of the appointment of a guardian ad litem to bring or defend proceedings against the First Defendant. It uses the word “may” and not “shall” making it discretionary and permissive as to whether a guardian ad litem is appointed or not (see s. 8 Acts Interpretation Act 2015; Julius v Lord Bishop of Oxford (1880) 5 App. Cas. 214 (H.L) as to statutory interpretation). Given that the First Defendant was represented by counsel and that counsel also represented the Second Defendant being his mother, the matter proceeding without the appointment of a guardian ad litem is not fatal to these proceedings against the First Defendant.
10. In Donohue v Stevenson [1932] AC 562 cited in Clerk & Lindsell on Torts, Fourteenth Edition, Sweet & Maxwell 1973 at 861, Lord Atkin spoke of the duty of care and said this oft cited citation:
    • “You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought to reasonably have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.”
11. The “reasonable care” expected in the case of the First Defendant is that “degree of care one would expect, not of the average reasonable man, but of a child of the same age and experience”, ie a 14 year old infant. The legal obligation to take care to ensure that one’s neighbour is not harmed is well known. There are three elements to establish liability for the tort of negligence as follows:
    1. The existence of a duty of care;
    2. Breach of the duty of care by failing to take reasonable care; and
    3. The damage suffered by the Plaintiff being reasonably foreseeable and proximate to the breach.

The Evidence:

12. The Plaintiff gave evidence and also called 2 witnesses in support of his claim, these being Iakopo Tasi and Iosua Seve.
13. The Plaintiff is a 45 year old businessman who has a stall at the Taufusi market operated by Ah Liki. He says that sometime in November 2015 in the evening, he was at the Taufusi market at his poloka (block). He heard a noise, went to his car and saw that the front windscreen had been cracked. The First Defendant was near the car. His car is a 2001 Toyota Caia. He did not see the First Defendant throw the stone that damaged his car. The cost of repair to the windscreen by Johnny’s Smash Repairs was $1,550.00 including installation. The plaintiff tendered exhibit P1 being a quote for the repair which he says he paid.
14. The Plaintiff said that he was told by the Second Defendant that they would seek an engineer to get a tioata (windscreen) from an engineer. He waited from January to February, was told the engineer was busy but after he was stopped on the road by the LTA because of the damage to the windscreen, he then went and arranged for the new windscreen through Johnny’s Smash repairs. This was in early February. On 15 February 2016, the car was then re-registered.
15. Iakopo Tasi who is 34 years old and Iosua Seve who is 22 years old gave largely consistent evidence. Iakopo has a ‘poloka’ at the market whilst Iosua was present there at the time. They say the First Defendant was chasing with another child at the market and they saw the First Defendant throw a rock like object that was like a piece of concrete at the other child, missed the child it was aimed at and then hit the Plaintiff’s car. The other child ran away. Iakopo said that there was quite a bit of damage to the windscreen as a result.
16. The First Defendant gave evidence. He is 14 years old from Tufuiopa. He said he was playing at the Taufusi market when on a Sunday between 7pm and 8pm at night with another boy. That boy threw a rock at him, he ducked and he picked the same rock up and threw it back. When he threw it back, it struck the car windscreen. The car was parked behind the ‘poloka’. He did not intend to hit the car with the rock. He saw his mother so he ran to her. He said the Plaintiff chased him.
17. The Second Defendant also gave evidence. She is 40 years old and is the mother of the First Defendant. She said that on the 22^nd November 2015 sometime after 9pm, she went to the market. When she arrived, the First Defendant had been chased by the Plaintiff. She asked why and she was told by the Plaintiff because the First Defendant had cracked his windscreen. She apologized to the Plaintiff for what had occurred. She saw the crack 2 days after the incident, it wasn’t a large crack, she described it as a small ‘omo’ (hole). She offered to try and get a replacement windscreen but the Plaintiff refused the offer. She said that the cost of a replacement second hand windscreen was $500.00.

Discussion:

18. On the evidence, I am satisfied that the First Defendant’s actions resulted in a stone like object being thrown by the First Defendant missing the other child with whom he was playing then striking the front windscreen of the Plaintiff’s car. The cost of repairs to the Plaintiff’s car was $1,550.00 for a new windscreen including installation by Johnny’s Smash Repairs. The question for determination in this matter is:
    1. Was there an agreement reached between the Plaintiff and the Second Defendant for the cost of repairs incurred;
    2. Is the First Defendant liable to the Plaintiff in negligence; and
    3. Is the Second Defendant liable to the Plaintiff in negligence for alleged breach of supervision and control of the First Defendant.
19. Dealing with the question of whether or not a contract or agreement existed between the Plaintiff and the Second Defendant, in order for a contract to exist and bind the Second Defendant to payment of the windscreen, there must be (a) an offer and acceptance, (b) consideration and (c) an intention to create a legally binding relationship. It is obvious on the facts of this matter that no agreement was reached between the Plaintiff and the Second Defendant and for that matter, the First Defendant. I find that the Defendants are not liable in contract.
20. As to the First Defendant’s liability to the Plaintiff, the First Defendant is 14 years of age. He was playing ‘tuli’ with another boy in the area behind the Taufusi market where the Plaintiff’s car was parked. I accept what the First Defendant says that the other boy threw a rock like object at him, he picked that up and threw it back. He missed that boy but then it accidentally struck the Plaintiff’s car. This occurred on a Sunday night in November 2015 between 7pm and 9pm.
21. In the circumstances of this case, I accept that the Plaintiff was owed a duty of care by the First Defendant, that is, he had a duty to take reasonable care to avoid acts which could be reasonably foreseen to cause injury to the Plaintiff. In picking up the rock like object thrown at him and throwing it back at the other boy, the question is whether the First Defendant breached the degree of care one would expect of a 14 year old boy. There was no evidence adduced by the Plaintiff as to the distances between the car and the First Defendant, the location of the child at whom the object was thrown to the car and where the car was located to where the First Defendant was at. Whilst there is a prima facie case of negligence, the evidence in my view falls short of establishing negligence on the part of the First Defendant to the requisite standard.
22. In relation to the Second Defendant, there is no negligence on the part of the First Defendant. Accordingly, she cannot be liable to the Plaintiff in those circumstances. In any event, even if the First Defendant was liable to the Plaintiff, the Plaintiff’s claim fell short of proving any negligence on her part on balance of probabilities.
23. For completeness in determining this matter, I have also considered whether the doctrine of res ipsa loquitur applies to assist the Plaintiff. Despite the fact that this was not pleaded in terms of the negligence of the Defendants (nor any particulars pleaded at all), I have concluded that it does not apply. The cause of the accident, namely that the stone was thrown by the Defendant, makes the doctrine inapplicable (see Schellenberg v Tunnel Holdings [2000] HCA 18; 200 CLR 121; 170 ALR 594; 74 ALJR 743 (13 April 2000); Clerk & Lindsell on Torts, op. cit at 976).

Result:

24. For reasons mentioned, the Plaintiff’s Statement of Claim is dismissed. Each party are to bear their own costs.

JUDGE LEIATAUALESA D M CLARKE

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^[1] Clerk & Lindsell on Torts, Fourteenth Edition, Sweet & Maxwell 1973 at 179.

[2] McHale v Watson [1966] HCA 13; (1966) 115 CLR 199

2 Halsbury’s Laws of England, Fourth Edition, Volume 24 at 424; Smith v Leurs & Ors [1945] HCA 256.
[3] Smith v Leurs & Ors, op. cit.