Duffy v Young [2002] WSSC 16 (25 July 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

TIMO DUFFY
of Tulaele, Public Servant.
Plaintiff

AND

GEORGE YOUNG
of Apia, Businessman.
Defendant

Counsel: AP Petaia for plaintiff
TRS Toailoa for defendant

Judgment: 25 July 2002

JUDGMENT OF SAPOLU CJ

This is an action which arose from the collision between two vehicles. One was a blue single cab Toyota pick-up vehicle and the other was a white double cab Toyota pick-up vehicle. The plaintiff as the owner and driver of the blue single cab Toyota pick-up vehicle at the time of the accident is suing the defendant who is the owner and was the driver of the white double cab Toyota pick-up vehicle at the time of the accident. The plaintiff is suing in negligence claiming for damages to his vehicle and for a personal injury. The defendant denies any negligence on his part and counterclaims in negligence against the plaintiff for damages to his vehicle and for personal injuries. He is also raising contributory negligence as a defence. In reply, the plaintiff denies the whole of the defendant’s counterclaim and the allegation of contributory negligence.

For convenience, I have decided to deal with this case in two parts. In Part A I will deal with the question of negligence which will also involve contributory negligence. In Part B I will deal with the question of damages.

PART A

Negligence

On Thursday night, 11 October 1998, and early Friday morning, 12 October 1998, between 12.30am and 1.00am, the plaintiff, who lives at Tulaele, was driving his blue single cab Toyota pick-up vehicle along the road at Tulaele to come to town to buy some barbecue at Fugalei. The plaintiff’s vehicle was travelling from inland towards the seaward direction on the right side of the road. Vehicles travelling in the opposite direction were, of course, to travel on the other side of the road. Every local knows that in Samoa if you drive a vehicle on the road, you drive on the right side of the road.

The road at Tulaele is flat at some parts; at other parts it has slight gradual slopes which will be "downhill" if you are driving from inland towards the seaward direction and "uphill" if you are driving from the opposite direction. Where the accident occurred is almost flat with a slight gradual slope. There is also a curving bend on the road close to where the accident occurred. If one is travelling from inland towards the seaward direction, then where the accident occurred is quite a short distance before one gets to the curving bend. At a distance from this bend, vehicles approaching from opposite directions during daytime will not be able to see each other until close to the sharpest point on the curve. It will of course be different at night time because the lights of vehicles will be turned on and that will forewarn the drivers of vehicles approaching this curving bend from opposite directions of oncoming traffic before such vehicles can actually be seen.

The plaintiff said in his evidence that when he was driving along the road at Tulaele heading in the seaward direction, he saw the lights of an on-coming vehicle around the curve on the bend. His vehicle which was travelling at about 20-25mph was at that time not far from the curve on the road and was approaching the curve. As the two vehicles were coming close to each other, and he was able to see the body of the on-coming vehicle around the curve, he observed that the on-coming vehicle was coming on the same side of the road as his vehicle was travelling. The lights of the on-coming vehicle were bright. The plaintiff said he then slowed down as if to stop, but the other vehicle kept coming on his side of the road. So he turned his vehicle to the other side of the road in an effort to avoid a collision. However, as the other vehicle did not stop it collided with the right or passenger side of his vehicle as he was turning his vehicle to the other side of the road to avoid a collision. The plaintiff’s vehicle was badly damaged. Photographs of the plaintiff’s vehicle were produced which show that the right or its passenger side, particularly the front wheel and mudguard, were badly damaged. It is indicative of the force that struck the plaintiff’s vehicle at the time of impact. The damage shown to the passenger side of the plaintiff’s vehicle also supports the plaintiff’s evidence as to how the accident happened. I have decided to accept the evidence given by the plaintiff as to how the accident happened.

The plaintiff also said that after the collision he came out of his vehicle and went to the driver of the other vehicle who, as he discovered, was the plaintiff. He found the plaintiff still in the driver’s seat with his head on the steering wheel moving forward and backward. He spoke to the defendant about what had happened and the defendant replied he will fix his (the plaintiff’s) vehicle. The plaintiff also said the defendant smelt strongly of alcohol and he was overly drunk.

The witness Lomiga Mariner who was called by the plaintiff testified that she lives at Tulaele on the western side of the road near where the accident happened. On the night of the accident, she was awake about midnight because of her baby. She heard a vehicle travelling on the road and going inland at great speed. She was able to see from her house that it was a white vehicle. Shortly afterwards she heard two vehicles collided. There is a lamp post on the road not far from her house. Police corporal Malo Faamau who investigated this matter said that he knows the witness Lomiga Mariner and she lives at Tulaele on the western side of the road not far from where this accident happened. He also said that when he visited the scene of the accident the following morning, he went into the house of the witness Lomiga Mariner and he could see the road from there. Much time was spent in cross-examination on whether Lomiga Mariner could have had a clear view of the road from her house. Despite the skill with which the cross-examination was conducted by Mr Toailoa, I have decided to accept the evidence of this witness that she was able to see the road from her house which is supported by the evidence of police corporal Malo Faamau.

The witness Lomiga Mariner also said that when the accident happened, she came to the scene with her husband and she saw the driver of the blue vehicle coming out of his vehicle to the driver of the white vehicle and spoke to him. The driver of the white vehicle responded not to worry he will fix his vehicle. Lomiga Mariner did not at the time know any of the two drivers but she said that the driver of the white vehicle smelt of alcohol. She also said that at that time the white vehicle was on the left side of the road going inland and the blue vehicle was on the right side of the road. That means both vehicles were on the wrong side of the road. She further said that when the police arrived, she saw one of the police officers took a bottle of beer from inside the white vehicle.

Police corporal Malo Faamau who was called by the plaintiff testified that he was on duty on the night of the accident and when the police received a phone call about an accident at Tulaele, he sent police officers to attend the call. When the police officers later returned to the police station, they brought the drivers of the two vehicles with them. Corporal Faamau said that the defendant smelt of alcohol and appeared to be under the influence of alcohol. When he asked the defendant what had happened the defendant said nothing. When he asked the defendant again whether he understood why he was brought to the police station the defendant said he did not. Corporal Faamau said he then told the defendant he was too drunk. The defendant was then taken to the hospital for medical examination and was later detained in police custody. Corporal Faamau said he also talked to the plaintiff at the police station and the plaintiff did not appear to be drunk or showed any sign of being under the influence of alcohol. At the time of this accident corporal Faamau had been posted to the traffic section of the police for eight years.

The next morning corporal Faamau questioned the defendant as to what had happened the previous night and the defendant replied "O ia ua matua le malamalama i lea po" (I was very unclear that night). The defendant was charged with drunken driving but later he was charged with careless driving and the charge of drunken driving was withdrawn. Why the charge of drunken driving was withdrawn is not clear At the trial the defendant was convicted of the careless driving charge.

The defendant testified that he was not drunk on the night of the accident. He said that prior to the accident he had drunk four small bottles of beer which he purchased from various places. He said no one gets drunk with four small bottles of beer. It takes ten small bottles of beer to get him drunk. He explained the condition he was in by saying he became unconscious when the two vehicles collided and he also suffered concussion.

I do not accept this part of the defendant’s evidence. I prefer the evidence given by and for the plaintiff. The evidence given by the plaintiff was that when he approached the defendant immediately after the collision, the defendant smelt strongly of alcohol and was overly drunk. When he spoke to the defendant the latter said he will fix the plaintiff’s car. The witness Lomiga Mariner said when she came with her husband to the scene of the accident, the driver of the white vehicle smelt of alcohol and she saw a police officer taking a bottle of beer from inside the white vehicle. Police corporal Faamau who had spent eight years at the police traffic section would, by training and experience as a police officer, be expected to be particularly observant of the condition of people involved in traffic accidents. He said when the defendant was brought to the police station on the night of the accident he smelt of alcohol and appeared to be under the influence of alcohol; he said to the defendant he was too drunk. The defendant was subsequently charged with drunken driving. Even though that charge was later withdrawn, it was not explained why it was withdrawn. I am satisfied the defendant was drunk on the night of the accident. And if, as he said, it takes ten small bottles of beer to make him drunk, then he must have drunk that number of beers, if not more, before the accident occurred.

Except for the defendant’s evidence that he was unconscious and suffered from concussion after the collision, there is no other evidence to show that he was unconscious or concussed. The evidence given by the plaintiff and the witness Lomiga Mariner was to the effect that the defendant was speaking almost immediately after the collision which contradicts the defendant’s evidence he was unconscious. And from the evidence of corporal Faamau, it is clear that the defendant was not unconscious when he was brought into the police station even though he appeared to be under the influence of alcohol. Even though the defendant told corporal Faamau at the police station the following morning "O ia ua matua le malamalama i lea po" (I was very unclear that night), I am satisfied from the circumstances of what happened that the reasonable inference to draw is that the reason why the defendant was not clear on the night of the accident was because of too much alcohol and not because of any concussion. The defendant also did not tell corporal Faamau the next morning after the accident that the reason why he was not clear the previous night was because of any concussion.

I am also unable to accept the defendant’s evidence that his vehicle was travelling on the right side of the road at Tulaele when he saw a vehicle coming downhill from the opposite direction. He said the on-coming vehicle was coming directly towards his vehicle. So he moved his vehicle towards the edge of the road to make room on the road for that vehicle to pass. But his vehicle was hit by the other vehicle.

If this evidence is true, then where the collision occurred was on the side of the road where the defendant’s vehicle was travelling, near the edge. The plaintiff should therefore be held guilty of negligence and the defendant acquitted of negligence. However, it was the defendant and not the plaintiff that the police decided to charge with careless driving after their investigation. And the defendant was convicted of that charge. It was submitted for the defendant that a defendant’s traffic conviction for careless driving is inadmissible in civil proceedings for negligence against him. In my judgment, a defendant’s previous conviction for careless driving is admissible in subsequent civil proceedings against him in negligence which arise from the same incident. Accordingly, the defendant’s conviction for careless driving is admissible in evidence in these proceedings brought by the plaintiff in negligence for damages to his vehicle and for personal injury.

The defendant in his evidence also said that after he was convicted of careless driving, he approached the plaintiff and offered him $4000 to repair his vehicle. The plaintiff refused the offer. The defendant also did not appeal his conviction. Subsequently, the plaintiff commenced the present proceedings seeking damages. I find the defendant’s conviction for careless driving, his not appealing that conviction, his offer of $4000 to repair the plaintiff’s vehicle, and the fact that it is the plaintiff and not the defendant who commenced these proceedings, to be inconsistent with the account given by the defendant putting the blame on the plaintiff as being the cause of the accident.

There were other factual matters raised at the trial of this case by the witnesses for the defendant. For instance, the evidence given by the witness Mareko Taulealo a relative of the defendant that he saw the plaintiff at the Mt Vaea nightclub on the night of the accident before the accident occurred. This evidence seems to suggest that the plaintiff himself might also have been drinking alcohol before the accident occurred. The plaintiff denied he was at the Mt Vaea nightclub on the night of the accident. I prefer his evidence which has the support of corporal Faamau’s evidence that when he talked to the plaintiff at the police station on the night of the accident, the plaintiff showed no sign of being under the influence of alcohol. I do not, however, consider that these matters and others will affect the conclusion I have reached that it is the defendant who was negligent and as a result his vehicle collided with that of the plaintiff. The plaintiff, in my judgment, was not negligent. The defence of contributory negligence must fail.

I will now turn to consider the question of damages in the light of my findings that the defendant was negligent and it was his negligence that caused the accident which has resulted in damages to the plaintiff, and that the plaintiff is not guilty of contributory negligence.

PART B

Damages

As a result of the collision between the plaintiff’s vehicle and the defendant’s vehicle, the plaintiff’s vehicle was badly damaged. The photographs which were produced by the plaintiff show the extensiveness of the damage to the plaintiff’s vehicle particularly on its right or passenger side. The motor mechanic and panel beater who was called as a witness by the plaintiff said that the plaintiff’s vehicle is a write-off. The costs of repairing the vehicle will be more than half the cost of the vehicle.

The plaintiff’s vehicle was ten years old by the time of the accident. Evidence given for the plaintiff shows that its estimated replacement value is between $15,000 and $18,000. I will take the middle figure of $16,500 as the vehicle’s replacement value. The estimated scrap value of the vehicle in its damaged condition was given as $3,800. The plaintiff will of course keep his damaged vehicle and he may use or sell its parts as spare parts. I will award $12,700 to the plaintiff for the damage to his vehicle.

I do not accept that the plaintiff should be awarded the sum of $18,200 which is claimed as the difference between the estimated pre-accident value of the vehicle given as $22,000 and its estimated post accident value given as $3,800. I say this for two reasons. The first is that I am not satisfied from the evidence that the pre accident value of the plaintiff’s vehicle was $22,000 because of insufficient satisfactory evidence to support that valuation. Secondly, the way in which this part of the claim is framed shows that the plaintiff is in effect claiming for the alleged diminution in the value of his vehicle as a result of the accident. The normal measure of damages for such a claim is the reasonable costs of repairs. But no detailed evidence was adduced to show what would be the reasonable costs of repairs to the plaintiff’s vehicle except evidence that the vehicle is a write off and the costs of repairs will be more than half the value of the vehicle. Looking at the photographs which show the extensiveness of the damage to the plaintiff’s vehicle, and considering the estimated difference between the pre-accident and the post-accident values of the plaintiff’s vehicle, the reasonable conclusion to draw is that it will be highly uneconomical to repair this vehicle. The vehicle is also a write off and seems to be beyond repair. Costs of repairs will therefore not be the appropriate measure of damages in this case. In my judgment, the replacement value of the vehicle less its scrap value is the appropriate measure of damages.

As the plaintiff’s vehicle was damaged and out of use because of the accident, the plaintiff claims as consequential loss $270 for taxi fares to move around during the week, come to work in Apia, and to return home from work. He also claims as consequential loss $550 for the hire of a rental car to move around during the weekends and to transport his elderly mother to church. I will allow the total amount of $820 claimed for consequential losses. But I make no further award under this part of the claim. The plaintiff has a duty to mitigate his losses and not to wait until the outcome of the case before he does anything to that effect. In fairness to the plaintiff, he did, however, use one of his employer’s vehicles on a reasonable basis to go to work and return home from work sometimes, and to that extent he did mitigate his losses.

The plaintiff also claims $2000 for exemplary damages on the ground that the defendant was driving his vehicle whilst under the influence of alcohol. I accept that exemplary damages may be claimed in an action for negligence where the negligent conduct of the defendant amounts to an outrageous and flagrant disregard for the safety of the plaintiff. In my judgment, the negligent conduct of the defendant in this case did not amount to an outrageous and flagrant disregard for the safety of the plaintiff. The defendant was, of course, under the influence of alcohol whilst driving his vehicle, but there is nothing in this case which takes it beyond the level of ordinary negligence. The claim for exemplary damages is therefore denied.

The plaintiff also claims for a minor personal injury. This claim should have been pleaded separately and not embraced together with the claim for exemplary damages. The nature of the alleged minor personal injury is not clear and there is no evidence to show whether the plaintiff sustained any pain and suffering as a consequence of that injury. The claim for personal injury is therefore also denied.

Award

The plaintiff is awarded damages in the sum of $12,700 for his vehicle and $820 for consequential losses.

Judgment is therefore given for the plaintiff in the total sum of $13,520. Counsel to file memorandum as to costs within seven days.

CHIEF JUSTICE

Solicitors:
Richard’s Law Firm for plaintiff
Toailoa Law Office for defendant