Origin Energy Samoa Ltd v GM Meredith & Associates Ltd [2003] WSSC 37 (15 December 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

ORIGIN ENERGY SAMOA LTD
formerly known as BORAL GAS SAMOA LTD
a duly incorporated company carrying on business at Sogi
Plaintiff

AND:

G.M. MEREDITH & ASSOCIATES LTD,
a duly incorporated company carrying on business at Matautu, Apia
Defendant

Counsel: Mrs R Drake for the plaintiff
Mr TK Enari for the Defendant

Hearing: 19 September 2002; 19 November 2002
Submissions: 20 December 2002
Decision: 15 December 2003

JUDGMENT OF JUSTICE VAAI

This is a claim for damages arising out of a traffic accident in the early morning of the 30^th November 2001 in which the plaintiff’s motor vehicle was damaged. The plaintiff’s motor vehicle driven by its Manager was travelling along Falealili Street, heading south from Apia direction towards Motootua. It was raining heavily at the time and the headlights were dipped to avoid misty effect and to facilitate a better view of the road. At Lelata the plaintiff’s manager drove into a concrete pipe which he saw immediately prior to the accident but could not avoid hitting it. The concrete pipe prior to the accident was placed in front of a pile of dirt. Immediately behind the concrete pipe and the mound of dirt was a large hole, and the pipe, mound and hole were on the side of the road on which the plaintiff’s vehicle was travelling as he heads towards Motootua.

The defendant was at the time contracted to do road works at the area and it was the defendant that dug the whole and placed on the road the concrete pipes which the plaintiff’s manager drove into. There were no reflectors, lights or other forms of warning device to warn the travelling public of the hazard at the construction site. Although he did brake to avoid hitting the concrete pipe the heavy rain had caused the mud to flow onto the road so that the sudden braking caused the vehicle to skid. As a result the plaintiff’s manager could not avoid hitting the concrete pipe which broke and the plaintiff’s vehicle came to rest on the mound of dirt and suffered extensive damage to the front. Several people drove by, most of them knew the plaintiff’s driver; a couple Mr & Mrs Paul drove the plaintiff’s manager to his home before they proceeded on to the airport. They all confirmed that although it was not raining at the time they arrived at the scene, it had been raining earlier that night. Mr Paul said he could not recall whether it was raining when he and his wife left home. The accident was also reported to the police and police officer Tupai visited the scene and saw the plaintiff’s vehicle on the heap of dirt. He also saw three to four concrete pipes and a hole in the road. There were no warning or traffic devices at the scene.

The defendant called no evidence. By its Statement of Defence the defendant says that the road works it constructed at Lelata was surrounded by reflecting sheets to reflect headlights; placed warnings at the area, placed a night watchman to look after the project and took sufficient steps to draw the attention of traffic to the road works. It also alleges as an alternative defence that the plaintiff’s vehicle was travelling too fast in the circumstances and was therefore unable to stop or steer clear of the road works.

I cannot accept that there were reflectors and other warning devices at the road works prior to the accident because despite aggressive cross examination suggesting there were devices, the witnesses were adamant there were none. As a consequence I find that the defendant was negligent in that by creating a traffic hazard he failed to provide warning signs and devices visible at night and he failed to provide adequate precautious for the safety of road users.

In his written submissions counsel for the defendant suggests that the manner of the plaintiff’s driving and the speed in which he was driving was the cause of or contributed to the accident. For several reasons I cannot accept the defendants suggestions firstly because the evidence does not support the contentions by counsel. More importantly the accident would not have happened if the concrete pipe were not on the road in the path of the plaintiff’s manager. Had there been any warning devices of some sort the argument would probably have some sting. Any suggestion of contributory negligence on the part of the plaintiff is without foundation because the defendant did absolutely nothing to warn motorists of the hazard the defendant created on the road.

There is also the suggestion by the defendant that in law the Government through the Department of Works is the proper party with a duty of care owing to the road users. The defendant’s presence at the place of the accident is as an independent contractor. Counsel for the plaintiff made no mention whatsoever of this issue in her submissions understandably so because it was never mentioned or suggested in the pleadings and during the course of the trial. The terms of the contract for roadwork construction between the defendant and the government is unknown to the court and obviously the plaintiff. An order to join the government as a defendant or a third party was never sought and the submission lacks merit.

On the question of damages the defendant did not challenge the plaintiff’s evidence as to costs of repairs. In fact the documentary evidence of the plaintiff to support costs of repairs were produced with the consent of the defendant. I therefore allow costs and give judgment for the plaintiff in the sum of $28,994.86.

The defendant is ordered to pay plaintiff’s costs of $2,000.00.

JUSTICE VAAI