Galuvao v Toma [2003] WSSC 20 (24 October 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

EUINI GALUVAO
of Leauvaa, Taxi Operator
PLAINTIFF

AND:

NIKO VAVAE TOMA
of Apia, Businessman
DEFENDANT

Counsel: Mr S Toailoa for the plaintiff
Ms MVR Peteru for the defendant

Hearing: 8 April 2003
Decision: 24 October 2003

DECISION OF VAAI J

The plaintiff is the owner of a Subaru station vehicle which he operated as a taxi and the defendant is the owner of a motor van registered No. 0681. Both vehicles were involved in an accident at Leauvaa on the 29^th June 2002 while both vehicles were travelling westerly towards the Faleolo airport direction. At Leauva’a the plaintiff indicated to turn left, he did turn left and he was almost completely off the road when the defendant’s van travelling from behind and driven by one Tautaisau Fa’aaliga struck the rear left corner of the plaintiff’s taxi causing the taxi to turn back and face the direction it travelled from. After the accident the plaintiff said his taxi was on the grass and when he walked over and questioned the driver of the van why he drove in such a manner no reply was given. The plaintiff was then approached by another man who told the plaintiff that he was a policeman; he was driving directly behind the plaintiff and he witnessed the collision. The policeman testified. At Leauva’a the policeman was travelling behind the plaintiff’s taxi; the policeman saw the plaintiff’s left indicators blinking and as the taxi was turning left the defendant’s van travelling at very fast speed overtook the policeman’s pickup and struck the left rear corner of the taxi. The policeman ordered the van driver to go to the police station and from Faleasiu village the policeman reported the accident by telephone.

Initially the defendant denied negligence and his driver gave evidence. He frequently drives to the airport as the defendant’s van was hired by Polynesian Airlines to transport employees to and from the airport. On the day of the collision he was commuting eight passengers in the van. At Leauva’a he honked the horn and moved to the other lane to overtake the plaintiff’s taxi but the taxi signalled and turned left at the same time. Despite his efforts (swerving back to the right hand lane and braking) to avoid the accident he was unable to avoid hitting the rear of the taxi. There was no other vehicle between the van and the taxi and the pickup which was driven by the policeman was overtaken by him at the village of Tuanai (the village before Leauva’a when travelling east to west). Under cross examination he conceded that the passengers in the van were supposed to be at the airport by 12 noon and yet the accident happened at 12 noon or shortly afterwards. Two passengers who travelled in the van also testified to the effect that the van overtook the policeman’s car at Tuanai and secondly the taxi indicated at about the same time it made the left hand turn. But these two passengers were sitting at the very rear seat of the defendant’s 15 seater van and one of them was consuming food.

At the conclusion of the evidence I had no difficulty in arriving at my finding that the accident was caused by the negligence of the driver of the defendant by failing to keep a proper look out, failing to slow down and attempting to overtake the plaintiff’s vehicle which was making a left turn. The evidence of the defendant’s driver and the two passengers was completely destroyed under cross examination and as a result lacked credibility.

As a result of the negligence of the driver the plaintiff seeks to recover costs of repairs, loss of earnings and damages against the defendant as the employer of the driver.

Cost of Repairs

The plaintiff’s taxi as a result of damages occasioned from the accident was taken to the workshop for repairs. Invoice of costs of repairs totalling $4,689.00 was produced. The evidence of the mechanic as to repairs and parts was not challenged.

I accept the claim for costs of repairs of $4,689.00.

Loss of Earnings

The plaintiff says he earns an average of $70 per day. Normally he works 6 days a week so that the average weekly earnings if $420.00. To carry out the repairs the vehicle was with the mechanic until the 18^th October; a period of 14 weeks.

I accept that the $70.00 per day is before tax and further deductions should be allocated for fuel and maintenance. I allow $45 per day or $270 per week for the 14 weeks the vehicle was with the mechanic for repairs. $270 x 14 = $3,780.00.

General Damages for Inconvenience and Anxiety

Under this head the plaintiff claims $15,000 general damages for the inconvenience caused to the plaintiff when he was without his taxi and the unreasonableness of the defendant when he failed to promptly settle the plaintiff’s costs of repairs for his vehicle.

But I accept from the evidence that the defendant’s vehicle had a full comprehensive insurance cover and the defendant did report the accident to his insurers who in turn requested police report. Police reports were provided and given to the insurers. The delay in settling the plaintiff’s claim for costs and loss of earnings is not entirely the fault of the defendant. In my view the plaintiff has been compensated for the cost of repairs and loss of earnings and an order for damage sought is therefore not warranted in the circumstances.

Legal Costs

Counsel for the plaintiff has referred to the unreported decision of Bisson J in Tofilau Eti Alesana v Samoa Observer and Sano Malifa CP 42/97 16/9/1998. I agree that in appropriate cases the unsuccessful party may be required to make a reasonable contribution towards the costs reasonably incurred by the successful party. In the circumstances the plaintiff is entitled to costs which I fix at $1,200.00.

JUSTICE VAAI