Police v Fruean [2019] WSDC 5 (14 May 2019)

IN THE DISTRICT COURT OF SAMOA
Police v Fruean [2019] WSDC 5

Case name:	Police v Fruean
Citation:	[2019] WSDC 5
Decision date:	14th May 2019
Parties:	POLICE v ELSA LINDY FRUEAN, female of Vaipuna
Hearing date(s):	15th March 2019
File number(s):	D3805/18; D3806/18
Jurisdiction:	DISTRICT
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	JUDGE ATOA SAAGA
On appeal from:
Order:	I am satisfied that the Defendant is guilty of negligently driving causing injury although I am persuaded that the Complainant speeding contributed also to the severity of the damage to the vehicle and injuries. Since I have found the Defendant guilty of negligent driving causing injury, I will not consider the charge of dangerous driving which is an alternative charge and hereby dismiss that charge.
Representation:	K Komiti for Prosecution T Leavai for Defendant
Catchwords:	dangerous driving – negligence causing injury -
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960 s19A; s39(1)
Cases cited:	National Prosecutions Office v Chang [2017] WSSC 72
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

ELSA LINDY FRUEAN
female of Siusega
Defendant

Counsels: K. Stanley for Prosecution
T. Leavai for Defendant

Sentencing Decision: 14^th July 2017

DECISION OF JUDGE SAAGA

THE CHARGES

3. The Defendant has been charged with the following 2 charges:
   1. Negligence causing injury pursuant to Section 19A of the Road Traffic Ordinance 1960.
   2. Dangerous Driving pursuant to Section 39(1) of the Road Traffic Ordinance 1960.
4. The particulars of the charges are:
   1. At Vaitele Tai on the 21^st day of September 2018, the Defendant being the driver of a motor vehicle namely a Toyota Harrier white in colour registered number 3519 negligently drive such motor vehicle on a road namely Faleata Road and did thereby caused injury to Robinson Eteuati, male of Vaitele Fou and Faleula.
   2. At Vaitele Tai, on the 21^st September 2018, the Defendant being the driver of a motor vehicle namely a Toyota Harrier registered plate number 3519 on a road, namely Faleata Road in a manner namely fail to give way which was dangerous to the public having regard to all the circumstances of the case including the nature, condition, use of the road and the amount of traffic which might reasonably be expected to be on the road.
5. The elements of the offences are:
   1. Negligence causing injury:
      1. The Defendant
      2. Being the driver of a motor vehicle Toyota Harrier registered number 3519
      3. Negligently drive such motor vehicle
      4. On a road namely Faleata road
      5. Did thereby caused injury to Robinson Eteuati
   2. Dangerous Driving
      1. The Defendant
      2. Being the driver of a motor vehicle Toyota Harrier registered number 3519
      3. On a road namely Faleata Road
      4. In a manner failed to give way
      5. Which was dangerous to the public
      6. Having regard to all the circumstances of the case including the nature, condition, use of the road and the amount of traffic which might reasonably be expected to be on the road.
6. It is not disputed that the Defendant was the driver of the motor vehicle Toyota Harrier registered number 3519 and that she was driving on the Faleata Road. What is disputed was that she negligently caused injury to Robinson Eteuati and that she drove in a manner which was dangerous to the public, namely failure to give way having regard to all the circumstances of the case including the nature, condition, use of the road and the amount of traffic which might reasonably be expected to be on the road.
7. Prosecution bears the burden of proving beyond reasonable doubt that the Defendant is guilty of committing both offences.
8. Prosecution called 3 witnesses. Corporal Thor Tafunai from the Forensic division, the Complainant and an independent eye witness Iosefa Leaga. The Defendant opted to give evidence. She was the only Defence witness.

EVIDENCE

Prosecution Evidence

9. The Complainant was driving down Vaitele tai towards the Faleolo main road at 2pm. He was behind 3 other vehicles. It was only when he reached Metek when he saw the Defendant’s vehicle. It indicated once before it turned sharply in front of him resulting in the collision and his vehicle spinning next to the electric pole which split in half almost to the top.
10. The vehicle crashed into the right side of fence next to the Metek Store. The damage to the vehicle which spun facing the Vaitele tai road was extensive. The bumper was broken with pieces found a few meters in front of the vehicle and next to the electric pole. The engine was pushed in with the hood partly open. The doors on the right were severely dented and the impact created a gap between the engine and the front door as the front tyre on the right side twisted inwards.
11. The Prosecution witnesses maintained that it was the failure of the Defendant to give way that caused the accident.

Defence evidence

12. The Defendant was driving from the Faleolo main road towards Vaitele tai Road. She was on her way to Metek for some personal errands for her brother.
13. She started indicating to turn when she saw the roof of the Metek shop. She saw the Complainant’s vehicle just before the billboard which was an estimated to be 62 meters away. She calculated that she was a safe distance away and indicated three times before turning. She was shocked when the collision happened. She too did not know what had happened until she was asked by Iosefa if she was okay and was assisted out of the vehicle. She enquired about the Complainant and was shown that he was on the other side.
14. The Defendant maintained that she had indicated that she was turning way before she turned and that she had slowly progressed towards Metek before turning. It was also put to the Complainant that he was speeding down the road and that had caused the accident.

DISCUSSION

Negligent driving causing injury.

15. The test for the standard of care in negligent driving is whether in the circumstances the respondent drove in a reasonable and prudent manner.^[1] The Defendant indicated that she was turning to the right just when she saw the roof of the Metek shop. She saw the Complainant’s vehicle just behind the billboard which is located just behind the fence on the right side of Metek, the estimated distance between the electric pole and the fence on the right side of Metek is 52 metres. The billboard is located further behind the fence and the distance is estimated around 62 metres.
16. She calculated that the vehicle driven by the Defendant was a safe distance away and so she indicated and turned to the right. The Complainant saw her indicate once and turned. She did not stop before turning. The impact of the collision on the Complainant’s vehicle is on the front engine and the tire in the front on the right side and the doors on the right hand side of the vehicle. Compared to the Defendant’s vehicle which is showed on Exhibit P2 Photograph 1 and 4, the damage to that vehicle is minimal and the impact is shown mostly on the right side of the engine.
17. The conclusion that can be drawn from the evidence is that the Defendant’s vehicle hit the side of the Complainant’s vehicle upon turning to the right. The independent witness testified that the Complainant was speeding at the time of the incident.
18. Therefore, with the Defendant turning immediately after indicating to the right and the Complainant driving at moderate to high speed, upon collision, the Complainant’s vehicle was propelled in full speed towards the electric pole. The front side of the engine hit the left side of the electric pole which is ascertained by the dent directly in front of the engine. The dent is about the same size as the white marking on the bottom of the left side of the electric pole. The impact caused the vehicle to spin against the fence but the steel posts holding the fence albeit dislocated, were solid enough to hold the fence up and stop the vehicle from spinning further out. The split in the electric pole a few meters from the ground and above the white marking and the bumper shattered in pieces in front of the road near the electric pole further support this conclusion.
19. In answering therefore whether the Defendant was driving in a reasonable and prudent manner, I will answer in the affirmative that she did take precaution first by indicating that she was turning but because she failed to stop, she did not act in a reasonable and prudent manner. Rather she saw the vehicle at a distance and took a miscalculated risk to turn after indicating and as a result, the Complainant speeding down the road, collided with her vehicle as a result of her misjudgment. The Defendant should have considered that incoming traffic had the right of way and that the time that she had last seen the vehicle was when it was more than 62 meters away. Further up the road, she should have rechecked by stopping after indicating. I am persuaded beyond reasonable doubt that she was negligent in turning her vehicle without stopping to recheck the distance between her and the Complainant’s vehicle.
20. The second element of the offence disputed is that the negligent driving caused injury to the Complainant. Injury or bodily harm was defined in Police v Papalii,

“Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury need not be permanent but must be more than merely transient or trifling...it may include a momentary loss of consciousness; whether there is injurious, impairment to the victim’s sensory function, it is axiomatic that the bodily harm was actual.”

21. The Defendant left shoulder was grazed from the seat belt which held him secure in this seat. His groin was swollen as a result of the accident. To date, he still feels pain in his left shoulder. He made several visits to the hospital after the accident. There is no medical report or victim impact report from Prosecution. Notwithstanding, judging from the extent of the damage to the vehicle, I accept the Defendant evidence as to the injuries that he had sustained and that the injuries were more than transient or trifling
22. Having said that, I am persuaded that the speed in which the Complainant was driving his vehicle contributed to the significant impact and severity of the damage to his vehicle and to his injuries.

CONCLUSION

23. I am satisfied that the Defendant is guilty of negligently driving causing injury although I am persuaded that the Complainant speeding contributed also to the severity of the damage to the vehicle and injuries.
24. Since I have found the Defendant guilty of negligent driving causing injury, I will not consider the charge of dangerous driving which is an alternative charge and hereby dismiss that charge.

JUDGE ATOA-SAAGA

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^[1] National Prosecutions Office v Chang [2017] WSSC 72 para [