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Taioalo v Chadwick [2017] WSDC 17 (15 August 2017)

THE DISTRICT COURT OF SAMOA
Taioalo v Chadwick Ors [2017] WSDC 17


Case name:
Taioalo v Chadwick


Citation:


Decision date:
15 August 2017


Parties:
TIME TAIOALO v TANYA CHADWICK and ANDREW CHADWICK both of Vaitele – uta, Taxi Owners First Defendants AND:
DAMIEN TUAI of Vaitele, Taxi Driver
Second Defendant


Hearing date(s):
18 May 2017


File number(s):



Jurisdiction:
Civil


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Alalatoa Rosella Viane Papalii


On appeal from:


Order:
The Plaintiff’s claim is successful.
She is awarded special damages in the sum of SAT$3130 for repairs and replacement parts.
She is also awarded consequential damage for loss of income over 2 weeks at $350 a week in the total sum of $700.
The parties are to file memorandums as to costs in 7 days.


Representation:
Ms D Roma for Plaintiff
Mr A Su’a for First Defendants


Catchwords:
Claim in Negligence for damages in the sum of ST$12,952.00 – tort


Words and phrases:


Legislation cited:
Apportionment of Damages Act No.34 1956 (South Africa);
Contributory Negligence Act 1964 (Samoa)
Evidence Amendment Act (No2) 1980 (NZ)
Evidence Act 2006 (NZ),
Evidence Act 2015 (Samoa)Law Reform Contributory Negligence Act 1945 (United Kingdom);
NZ Contributory Negligence Act 1947;



Sources cited:

Donoghue v Stevenson [1932] AC 532
Tanoai v Ah Kam & Ah Kam [1993} WSSC 15
Matautia v Schuster [1993] WSSC 15
Duffy v Young [2002] WSSC 16 (25 July 2002)
Corporation of the Presiding Bishop of Jesus Christ of Latter Day Saints v McLean [2006] WSSC 10
Dairy Containers Limited v NZI Bank Ltd [1995] NZLR 30
Austley v Austrust (1999) 161 ALR
Katopau v Samoa Breweries [2000] WSSC 36 (13 October 2000).
SNPF v Apia Construction Engineering Ltd [2017] WSSC
Imbree v McNeilly (2008) 82 ALR 1374 (HCA
Jorgensen v News Media (Auckland Ltd [1969] NZLR 961 (CA)
Autagavaia v King Construction [2009] WSCA 8 (9 October 2009
British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Rail Co of London [1912] UKLawRpAC 43; [1912] AC 673
Livingstone v Raywards Coal Company Co [1880] UKHL 3; (1880) 5 App Cas 25.
Czarnikow v Koufas (The Heron) [1969] [1969] 1 AC 350

AG v Geothermal Produce NZ Ltd [1987] 2 NZLR 348
Todds, S Ed The Law of Torts in NZ, 5th Edition (2009, Brookers Ltd, Wellington)



Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


TIME TAIALO of Papauta, Businessman
Plaintiff


AND:


TANYA CHADWICK and ANDREW CHADWICK both of Vaitele – uta, Taxi Owners
First Defendants


AND:


DAMIEN TUAI of Vaitele, Taxi Driver
Second Defendant

Counsel:
Ms D Roma for Plaintiff
Mr A Su’a for First Defendants


Hearing: 18 May 2017
Submissions: 09 June 2017
Oral Judgment: 15 August 2017
Addendum: 16 August 2017


JUDGMENT OF JUDGE VIANE PAPALII

PROCEEDINGS

  1. The Plaintiff brings this tort action in negligence claiming damages in the sum of ST$12,952.00 against the First Defendants arising from a collision involving two vehicles at about 5.30pm at Motootua on 18 September 2015 (“The Collision”)
  2. The first vehicle is a taxi registration no. T.2161 (“Taxi 1”) driven by a taxi driver employed by the Plaintiff namely, Matua Tuuamaalii (“Matua”). The second vehicle is also a taxi registration no. T.2296(“Taxi 2”) belonging to the First Defendants and was driven by the Second Defendant, Damien Tuai, a taxi driver they employed.
  3. The Plaintiff alleges the second defendant negligently drove taxi 2 thereby causing the collision and therefore the First Defendants as his employers were vicariously liable for damages incurred.
  4. The First Defendants in their Statement of Defence dated 31/10/16 (“The SOD”) denied liability and alleged it was Matua who drove negligently. They further alleged at paragraph 6 of the SOD that the Plaintiff was liable for his own loss and damages suffered due to the contributory negligence of Matua, as their employee.
  5. It is undisputed that at the time of the collision both drivers of Taxis 1 and 2 were acting in the course of their employment. There is certainly nothing in the SOD or evidence adduced to suggest otherwise. Even the submissions by Defence Counsel did not take issue with this. So I accept that vicarious liability is not alive issue in this proceeding.
  6. The issue for me to consider therefore comes down to negligence including, contributory negligence (if any) and damages. The burden of proof lies with the Plaintiff and the standard is on the balance of probabilities.
  7. As against the Second Defendant, judgment by formal proof was granted in favour of the Plaintiff on 8/11/16 in the sum of ST$12,952.00 inclusive of costs. A judgment summons order was subsequently granted on 7/02/17 where the Defendant as Judgment Debtor failed to appear and he was ordered to pay by instalment to the Plaintiff $100 per month in default 9 weeks imprisonment.
  8. As confirmed from the Second Defendant’s own evidence, he has not made any payment towards the judgment order.

LAW

Negligence

The law on negligence is well established in Samoa and has its foundation in the English case of Donoghue v Stevenson[1]. Lord Aitkin in that case described it as follows:
  1. The learned CJ Sapolu in Tanoai v Ah Kam[2] observed that to succeed in a claim in negligence the Plaintiff must prove four three elements and “if one of these four elements is absent, then an action in negligence must necessarily fail.”
  2. Firstly, that the Defendant owed a legal duty to the Plaintiff to take reasonable care. Secondly, the defendant breached that duty. Thirdly the Plaintiff suffered damages as a consequence of the breach of the duty of care; and fourthly, that the damage suffered is not too remote but a sufficiently proximate consequence of the breach of legal duty. This approach was adopted in a number of cases including Matautia v Schuster[3]and Duffy v Young[4]
  3. Legal authorities abound in other commonwealth jurisdictions adopting the four elements of negligence that a Plaintiff must prove. Todds on The Law of Torts in NZ[5] shares the same view but also notes that the categories of negligence is still developing. This is also echoed in the observations of the learned CJ Sapolu in the Corporation of the Presiding Bishop of Jesus Christ of Latter Day Saints v McLean[6] where he stated at paragraph 6:

Contributory Negligence

  1. Whether there is contributory negligence will in my view depend largely on the credible and reliable evidence I choose to accept.
  2. I remind myself that once upon a time at common law, contributory negligence used to be a complete defence to liability of a tortfeasor in negligence[7] and other torts. But this position has changed in a number of commonwealth countries such as UK, Australia, NZ and South Africa where apportionment legislations have been enacted abolishing the common law principle and allowing for the apportioning of damages between the parties where contributory negligence is established.[8]
  3. We have adopted the same approach in our Contributory Negligence Act 1964[9] (“CNA”).Section 3 (1) is relevant and provides as follows:
  4. “Fault” as defined in section 2 CNA:
  5. In Dairy containers Limited v NZI Bank Ltd[10] the learned Thomas J was confronted with the ‘prosaic’ argument that the Plaintiff’s fault must be the fault which causes the event which in turn causes the Plaintiff’s loss. It was argued that in an action by a company against an auditor, the company’s failure to protect its own interests is not regarded as fault requiring a reduction in damages. Unless the fault hindered the auditor in carrying out his or her duties.[11]
  6. Thomas J rejected the narrow view as:
  7. Of the test, CJ Sapolu in Matautia v Schuster[12] held that for a Defendant to succeed with the defence of contributory negligence, he or she must prove two(2) matters namely:

Damages

  1. The Plaintiff claims compensatory damages; more specifically special and consequential damages.
  2. It is for the Plaintiff to prove she suffered damage that is not too remote but reasonably foreseeable. Damage is the gist of the action and thus there is no liability without damage.[13] Where the Plaintiff establishes these on the balance of probabilities, the burden of proof is shifted and it is for the First Defendants to show that they have taken all reasonable precautions.[14]
  3. There will usually be no liability for damages in negligence if it can be shown that the Defendant acted in accordance with a reasonable reaction to some sudden and unexpected emergency which that defendant acted reasonably to avoid.[15]
  4. The way in which damages are calculated depends to a considerable extent on the type of loss the Plaintiff suffered.[16]

SUMMARY OF EVIDENCE

Plaintiff

  1. The Plaintiff called three witnesses, namely, Sauititi Taioalo (“Sauititi”), Matua and Owen Crichton, the mechanic (“Owen”).
  2. Sauititi’s affidavit evidence (“P1”) and oral testimony in so far as relevant establishes her ownership of taxi 1; her employing Matua as the driver of that vehicle at the material time of the collision; damage to taxi 1 from the collision which remained unrepaired to date; two quotes she obtained for the costs of repair one from John Papalii Mechanical Engineering for the sum of SAT$6992 (“Quote 1”) and another from Owen Crichton for SAt$7550 (“Quote 2”).
  3. According to Matua’s affidavit evidence (P2) & oral testimony, on the day in question, he had turned right from the TTTM hospital, Motootua (“The Hospital”) on to the main road heading towards the southern direction aiming for Ray’s Taxi stand at Tanugamanono where taxi 1was stationed. It was about 5.30pm and the road was busy as some people had just finished work.
  4. He followed taxi 2 going the same direction. Just before the 57 taxi stand (“57 Stand”) almost adjacent the entry to the old emergency unit of the hospital (“The Entry”), taxi 2 indicated to turn left and turned at the same time. But then taxi 2 suddenly u-turned on to the main road to the left lane he was travelling on.
  5. Matua testified there was no time as taxi 2 was right in front of taxi 1.He tooted the horn hoping it would catch the Second Defendant’s attention. He foresaw the collision would be inevitable. In an effort to stem the damage to both vehicles, he swerved taxi1 to the right lane as he saw it was clear from oncoming vehicles. But it was still too late. The front right fender of taxi 2 collided with taxi 1’s left front side. Then taxi 1 veered off the road hitting the post of the gate at the entry thereby sustaining extensive damage to the left tyre mud guard and windshield.
  6. He also consistently said that it was the negligence of the Second Defendant in not ascertaining that the road was clear before he u – turned which caused the collision. He did not sway from that position under cross examination.
  7. Owen gave evidence, taxi 1 was towed to his garage. He assessed the damage sustained by taxi 1 and saw it was fixable. The photo in exhibit A of Sauititi’s affidavit shows the damage sustained mainly to the windscreen and bonnet, & front left side by the tyre and mudguard. He estimated the total cost to repair taxi 1 to be SAt$7550.00. He also confirmed he did not obtain a quote from Spare Parts supplier and had looked around for second hand parts but none was available.

Defence

  1. Defence called 4 witnesses namely the Second Defendant, second named first defendant, Andrew Chadwick (“Andrew”), PenititoTumua (“Penitito”) and Pelenato Laulu (“Pelenato”).
  2. The Second Defendant gave evidence, he was heading south the Leufisa way aiming for the 57 stand. He was thinking of turning right at the entry to turn around properly to return to the side of the road where the 57 stand were parked facing the northern (Apia) direction. He indicated to turn right then turned but was shocked when taxi 1 collided into taxi 2. According to the second defendant Taxi 1 had overtaken his taxi 2 just when he turned right.
  3. He testified the point of impact on taxi 2 was the front right side tyre including the bumper. The point of collision was just outside of the middle lane. He confirmed that taxi 1 had veered off the road and hit the post at the entry.
  4. Penitito was on duty at the 57 stand at the time of the collision. His job is to answer calls and record taxi plate numbers returning to the stand. He saw Damien indicate to turn right. He also said he saw taxi 1 following taxi 2 about 6 metres behind. However, the front tyre of taxi 2 was just outside of the middle lane when taxi 1 collided into it. Soon after taxi 1 veered off the road and hit the concrete post at the entry. He saw smoke coming out of the engine of taxi 1.
  5. Pelenato is 52 years old and a taxi driver for one of the taxis at 57 stand. At the time of the collision his taxi was parked on the side of the road next to the hospital. His taxi was the last in the row of taxis from their stand so he was closer to the entry.
  6. He was wiping dirt off his taxi when he saw taxi 2 went past and indicating to turn right. He continued with dusting his taxi when he heard a loud bang and saw the collision; taxi 1 veering off the road, hitting the concrete post. He said the rear of the boot of his taxi was also damaged. As soon as taxi 1 collided with the post some parts of the engine alighted and he and others ran over with bottles of water to douse it.
  7. Andrew gave evidence him and his wife the first named First Defendant operates taxi 2 and employ Damien as its driver. I must say, the bulk of his evidence was hearsay. The only material fact was the reference to his asking Damien if he had seen the vehicle following from behind and Damien’s answer was no.[17]He said damage to taxi 2 was mainly to the front right fender including the bumper. It cost them more than $2000 to fix it. He confirmed they did not file a counterclaim.

DISCUSSION

Was there Negligence?

  1. I now turn to consider the evidence whether it establishes if there was negligence.
  2. In regards to the first limb it is settled law that there is a duty of care owed by a driver of a vehicle to other road users to drive with care.[18]The first limb of the elements of negligence is met. Was there a breach of that duty of care in the instant case? I consider this below.
  3. The evidence is undisputed in so far as the point of impact on both vehicles. It is also undisputed that the point of collision was on the right north bound lane for oncoming vehicles just outside of the middle line.
  4. But there is no question the evidence of the Plaintiff and Defence that are material to causation are poles apart. So it comes down to the issue of credibility and reliability of the evidence adduced.
  5. Having assessed the witness’ demeanor, totality of the evidence and all relevant circumstances & factors, I have decided to accept the version of the witness, Matua as more credible regarding what actually occurred at the material time of the collision.
  6. The stretch of road at Motootua running through the hospital is wide. The width from the middle lane to the side of the road is about 3 metres on each side. There is also space demarked on each side for parking and I would say it is less than 2 metres.
  7. The 57 taxi stand is not directly adjacent the entry. In fact if one is travelling from Apia heading south towards the Tanugamanono/ Leufisa direction you would firstly reach the small shed on the left where the 57 taxi stand is located before the entry on the right.
  8. On the side of the road closer to the hospital, 57 stand taxis queue there daily towards the evening to pick up passengers. The defence witnesses Pelenato, Penetito and the Second Defendant confirmed this in their oral testimony.
  9. According to the Second Defendant he indicated to turn right at the entry. He intended to go through the entry turn around properly with the intention of joining their taxis already stationed on the side of the road as described above.
  10. But I doubt the veracity of this part of the Second Defendant’s evidence. It is almost too incredible. It suggests that the he was to take the extra trip to the emergency unit just to turn around and park properly. Common sense tells me although this would have been the sensible thing to do, the Second Defendant did not intend this at all.Rather he chose the quickest option to enable him to park properly on the side of the north bound lane by u- turning. He did so speedily without checking that the road was clear. The fact he told Andrew he did not see the vehicle following behind further supports this.
  11. I do not regard the evidence by Penitito and Pelenato as credible. Their evidence is not independent and therefore unreliable. They did not impress me as witnesses. They were both stationed at the same 57 stand with the Second Defendant.
  12. Penitito was on duty answering calls. He said he was outside and saw the Second Defendant indicate to turn right. But taxi 1 overtook it causing the collision. How he managed to do all these whilst attending to his calls is beyond me. But he also said taxi 1 was following about 6 metres behind taxi 2.
  13. If I accept this was the correct distance between taxi 2 and 1 then really, there was no need for Matua to overtake. If the second Defendant had indicated to turn right then that distance would have given ample time to Matua to warn him that taxi 2 was turning and there was no need to overtake it.
  14. As for Pelenato, he admitted under cross examination he did not see the actual time of the collision as his attention was only drawn to it when he heard the loud collision.
  15. In my view, the Second Defendant made a manifest decision to indicate to turn left to allow him more space to affect the u-turn thus enabling him to park properly behind Pelenato’s taxi. Whether he did so absent mindedly I do not know. But it does not matter as it renders further support to his breach of duty of care.
  16. The point is, at the time the Second Defendant u - turned it was unsafe for him to do so. This is supported by the admission to Andrew when asked if he saw the vehicle following behind and his answer was ‘No’.
  17. I bear in mind causation is a factual issue and must be decided in accordance with common sense and the understanding of the ordinary person on the street.
  18. I have no difficulty in finding that the second limb of the test for negligence is met. The second defendant clearly owed a duty of care to other road users of the road he was travelling on. He breached his duty to drive with care and to keep a proper look out for vehicles that might be following him to ensure it was safe before he turned. His actions by turning left then suddenly u-turning on to the main road caused the collision.
  19. But even if I accept the defence’s version that Matua had overtaken taxi 2 when it turned left, I would still reach the same conclusion. The second defendant before turning has a duty to keep a proper look out for any oncoming vehicles and any other following from behind in the event it might overtake it, to ensure it was safe to turn. Whether it be to the left or right it does not matter. That duty rests with him at all times as a reasonable driver. But that did not happen here.
  20. I also venture to say that taxi 1 was following a short distance behind if one is to consider the emergency actions Matua undertook to avoid the collision. The point of impact and damage to each vehicle renders support to this as well.
  21. I also bear in mind that the Second Defendant was charged with careless driving in the FF Court and fined $100. I do not believe his explanation that the charge was not read to him and had pleaded guilty by mistake. I find it hard to believe that this took place at all in a well established court in our country. Had Police after their investigations concluded that Matua as the driver for taxi 1 was also at fault, they would have charged him with the offence as well. But they did not.
  22. The law is clear on the admissibility of a conviction in subsequent civil proceedings. In Jorgensen v News Media (Auckland Ltd[19] the NZ Court of appeal held that a conviction for an offence was not merely conclusive evidence of a finding of guilt, but also admissible evidence, while not conclusive, of guilt of the crime charged. Whether such evidence discharged the burden of proof at any stage was for the trial court to decide on the whole of the evidence tendered at that stage.[20]
  23. The principle in Jorgensen was later elevated to statutory expression in s.23 of the NZ Evidence Amendment Act (No2) 1980 (“NZEAA”) later replaced by s.47 NZ Evidence Act 2006.
  24. Our Evidence Act 2015 (“EA”)is based on the NZEAA so it is not surprising that the same provision is also mirrored in s.37 EA. Section 37 (1) provides that when a person has committed an offence relevant to an issue in a civil proceeding, proof that person has been convicted of that offence is conclusive proof that the person committed the offence.[21]Again this renders further support to the findings of fact I made above that there was clear negligence on the part of the Second Defendant. All three limbs of negligence have been met.
  25. I note the qualifications in subsection (2) (a) (b) EA which provides that despite subsection (1), the judge may in exceptional circumstances permit a party to offer evidence tending to prove that the person convicted did not commit the offence be determined without reference to that subsection. According to Todds the provision places the onus of disproof of the conviction on the Defendant[22]
  26. It is my view the First Defendants have not disprove the conviction of the second defendant and therefore the qualification in subsection (2) EA does not apply here.

Was there contributory negligence on the Plaintiff?

  1. The Defence argued there was contributory negligence on the part of Matua when he alleged overtook taxi 2 just when it was turning left. It was alleged the bulk of the damage sustained by taxi 1 was from when it veered off the road hitting the concrete post of the entry.
  2. As I understand the Plaintiff’s argument, it was the manner in which Matua drove and his inability to properly control taxi 1 after the initial point of collision which led to substantial damage to taxi 1. It is alleged that only minor damage was sustained to taxi 1 at the initial point of impact and even if I hold that the Second Defendant was negligent, the first defendants would only be vicariously liable to the initial damage from the first point of impact. Not the substantial damage later sustained when taxi 1 hit the post. With all due respect to counsel for the First Defendants, I disagree.
  3. As I found above, it was the Second Defendant’s negligent actions by turning left then deciding to u - turn on to the main road without firstly ascertaining that it was safe to do so which caused the collision. Subsequent efforts by Matua to avoid or stem the foreseeable collision and damagecan hardly be deemed as contributory negligence when in my view, it was a reasonable reaction given the emergency of the situation he was suddenly faced with.
  4. This is normally referred to as the ‘agony of the moment principle’ and exonerates a Plaintiff from any blameworthy. It was first considered by our Court of Appeal in Autagavaia v King Construction[23]where the learned justices said:
  5. Matua in my view was making split seconds decision faced with an emergency situation he foresaw unavoidable. He made the decision to swerve right in agony of the moment thereby colliding into the right front side of taxi 2 causing him to veer off the road, hitting the concrete post causing further damage to taxi 1. He cannot be criticized for doing so.
  6. Recited below to render further support to this is the relevant exchange between defence counsel and Matua from the transcript describing his reaction:[24]
  7. In light of the above discussions, I therefore reject the allegation of contributory negligence.
  8. I hold that the Second Defendant breached his duty to drive with due care on the road and the First Defendants as owners of taxi 2 and his employers are vicariously liable for his breach. I now turn to assess the damages claimed.

Damages

  1. There is no question in mind that the Plaintiff did suffer loss and damage that is directly proximate to the collision. The question to consider is the quantum and how it should be calculated.
  2. As I said above, the Plaintiff must prove that every item of loss for which she claims damages is connected to the First and Second defendants wrong in the sense that the wrong materially contributed to that loss.
  3. The Plaintiff submitted two quotes for fixing taxi 1. She also opted for the cheaper quote 1 totalling SAT$6992. There is no evidence to the contrary from the defence to disprove this but I must in my duty as judge assess if the damages claimed for each item should be granted.
  4. I note there is no direct quote from suppliers of the spare parts from which the two quotes are premised. I also note the two quotes vary in sums for similar items thus suggesting that the prices for the items in the two quotes are not entirely accurate. It also suggests that parts of taxi 1 that was damaged from the collision are do-able or fixable at the cheaper rate between the two quotes.
  5. I further note the substantial difference in the sums allocated by each mechanic for labour; Owen, quoted SAT$3000 in quote 2 and the same item on quote 1 is $680. Owen in quote 2 is cheaper for fixing the grille ($200), radiator (fan - $150 & radiator $200), windscreen ($600), front hood ($600) and bumper($700) whilst Quote 1 is cheaper for the left fender ($330), head lights ($410) and labour ($680). I also note that the front bumper sticking out of the front seat of taxi 1 as seen in exhibit “A” of P1 can be panelled without the need for a new one.
  6. I remind myself that the Plaintiff has a duty to take reasonable steps to mitigate her loss to minimize the damages the First Defendants will be required to pay. The classical statement is found in the judgment of Viscount Haldane LC in British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Rail Co of London[25]where he said:
  7. British Westinghouse[26] is a contract law case. But the learned CJ Sapolu in Tanoai[27] adopted the above principle of law saying it also applies in a tort case. The burden of proof is on the Defendant to show the Plaintiff failed to take reasonable steps to mitigate her loss.[28]
  8. As alluded to at paragraphs 64 and 65 above, the defence argued that the Court should only allow for damage to taxi 1 from the initial impact as any subsequent damage from hitting the concrete post is not the fault of taxi 2. I already said I do not accept that proposition simply because there was no contributory negligence. Also ‘but for’ the negligent manner the second defendant drove, the collision would not have happened in the first place and the Plaintiff would not be placed in this position.
  9. I also bear in mind that the guiding principle in the law of torts and award of compensatory damages deriving from Livingstone v Raywards Coal Company Co[29] requires that the Plaintiff be put in the position she would have been in if the wrong had not occurred.[30]
  10. From Owen’s evidence, I discern taxi 1 is hardly a new vehicle, but a 2004 Toyota Corolla. But I accept that some parts damaged from the collision may require new replacements if second hand parts are unavailable. I bear in mind that in this day and age it is much quicker to source and import parts from overseas if required.
  11. I have decided to adopt the cheaper cost allocated for each item in the two quotes to reach the quantum awarded as summarized below.
  12. For the grille, $200; radiator (including the fan radiator),$350;[31] windscreen, $600; headlights, $410; Left fender, $330. For the panel beating and paint work ($380 on quote 1) required on the bonnet, right bumper and possibly the left mud guard, I will grant 1/3[32] of the cheapest sum quoted for those items which totals $1680. Therefore $560 is awarded for those items. The labour costs awarded is $680 as per quote 1.
  13. There is no evidence the condenser (which I take to be for the air conditioning) was in good working condition at the time of the collision. The same with the airbags and upholstery which I note is missing from quote 2 yet Owen would have had more time to study the damage to taxi 1 given that to date, it is still garaged at his mechanical shop. So I will not allocate any award for those 2 items.
  14. The total special damages awarded in favour of the Plaintiff for repairmen costs and replacement parts for taxi 1 is SAT$3130.[33]
  15. There is also a claim for loss of income due to taxi 1 being chartered for income. According to Sauititi’s evidence taxi 1 was earning a turn in of $350 a week. Matua confirmed this. There is no other evidence to discredit this. At $350 a week it works out to be $50 a day including Sunday.
  16. The vehicle to date at nearly 23 months since the collision remains unrepaired. The Plaintiff however says she is only claiming 16 weeks totalling $5600.[34] In my view it is still a substantial sum given the Plaintiff has a duty to take reasonable steps to mitigate her loss. Obviously her inaction in fixing the taxi so it is operable again to generate its normal income infers there is no urgency in fixing it. The Plaintiff’s inaction is not in her favour as it also suggests she is content to forego the income taxi 1 was generating.
  17. In my view, it is unreasonable for the Plaintiff to claim 16 weeks when she did not take any positive actions to mitigate her loss. In the circumstances I will not allow the full amount sought for the 16 weeks.
  18. Given the damage to taxi 1 together with the advance technology and faster mechanical services we now have than we did in 1993 when Tanoai[35] was decided, I therefore take 2 weeks as reasonable time to fix taxi 1. I therefore hold that two weeks is reasonable compensation in the circumstances.
  19. The Plaintiff is entitled to consequential damages for loss of income and this is accordingly awarded in the sum of SAT$700.

CONCLUSION

  1. The Plaintiff’s claim is successful.
  2. She is awarded special damages in the sum of SAT$3130 for repairs and replacement parts.
  3. She is also awarded consequential damage for loss of income over 2 weeks at $350 a week in the total sum of $700.
  4. The parties are to file memorandums as to costs in 7 days.

JUDGE ALALATOA ROSELLA VIANE PAPALII


ADDENDUM added 16 August 2017

  1. Paragraphs 83, 85 and 92 notes total damages of $3130 which is $40 more than the sum read out in Court of $3090. The cheaper sum allocated for the radiator in the oral decision was $310 which is a typo error as it led to the wrong addition. After double checking quote 2, the actual sum should be $200 for the radiator and $150 for the fan radiator a total of $350 as opposed to $310. This has been corrected accordingly as now reflected in paragraphs 83, 85 and 92.
  2. I also note in the oral judgment read out in Court on 15/08/17 the reference to 16 days for the consequential damages sought by the Plaintiff for loss of income. This should have been 16 weeks as per the Claim it has been corrected accordingly in this written judgement but the award remains the same.

JUDGE ALALATOA ROSELLA VIANE PAPALII

[1]Donoghue v Stevenson [1932] AC 532
[2]Tanoai v Ah Kam & Ah Kam.[1993} WSSC 15
[3]Matautia v Schuster[1993] WSSC 15
[4]Duffy v Young [2002] WSSC 16 (25 July 2002)
[5]Todds, S Ed The Law of Torts in NZ, 5th Edition (2009, Brookers Ltd, Wellington) at 245
[6]Corporation of the Presiding Bishop of Jesus Christ of Latter Day Saints v McLean [2006] WSSC 10
[7] See supra n 5 for detailed discussions
[8] For instance: NZ Contributory Negligence Act 1947, South Africa- Apportionment of Damages Acts No.34 1956; Uk- Law reform Contributory Negligence Act 1945
[9] S.3 Contributory Negligence Act 1964
[10]Dairy Containers Limited v NZI Bank Ltd [1995] NZLR 30 at 114 later adopted in Austley v Austrust (1999) 161 ALR. Also see for more discussion Spisto, M and Arthur, L on Contributory Negligence: A comparison between South African, Australian and New Zealand Legal systems (Law School of Tasmania, 2000).

[11]Supra n 10
[12] Supra n 3; Also see, Katopau v Samoa Breweries [2000] WSSC 36 (13 October 2000).
[13]Supra n 5.
[14]Ibid
[15]Ibid. See SNPF v Apia Construction Engineering Ltd [2017] WSSC 11 where the learned CJ discusses damages in detail.
[16] Supra n 5 at 1118
[17] Transcript 18/05/17 at 46
[18] Supra n 5 at 377; also see Imbree v McNeilly (2008) 82 ALJR 1374 (HCA)
[19]Jorgensen v News Media (Auckland Ltd [1969] NZLR 961 CA.
[20]Todds, supra n 5 at 394
[21] Supra n 5 at 394.
[22] Ibid.
[23]Autagavaia v King Construction [2009] WSCA 8 (9 October 2009)
[24] Transcript 18/05/17 at 11
[25]British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Rail Co of London[1912] AC 673.
[26] Ibid
[27] Supra n 2 at 5
[28] Per CJ Sapolu in Tanoai, also see supra n 5
[29] Livingstone v Raywards Coal Company Co [1880] UKHL 3; (1880) 5 App Cas 25, 39; Adopted in Czarnikow v Koufas (The Heron) [1969] 1 AC 350,420 per Lord Upjohn (HL); AG v Geothermal Produce NZ Ltd [1987] 2 NZLR 348, 359, 370 (CA)
[30]Supra n 5 at 1113.
[31] See Addendum
[32] As per CJ Sapolu’s approach in Tanoai supra n 2.
[33] Refer to Addendum
[34] Refer to Addendum
[35] Supra n 2

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