Moors v Tino [2004] WSSC 20 (1 November 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

BETTY MOORS,
of Taufusi, farmer
Plaintiff

AND:

GAIGA TINO,
Cabinet Minister, c/o Ministry of Justice & Courts Administration
Defendant

Counsel: Ms R Drake for the Plaintiff
Mr TK Enari for the Defendant

Judgment: 1 November 2004

JUDGMENT OF JUSTICE VAAI

The plaintiff in these proceedings is the owner of a pickup motor vehicle which on the 19th September 2003 was driven by the plaintiff’s son to deliver plantation produce in the island of Savaii. At the village of Avao as the plaintiff’s vehicle entered the main road and turned left to travel westwards it was struck by the defendant’s motor vehicle travelling from the west towards the east. Both vehicles were damaged. The plaintiff says that the collision was due to the negligence of the driver of the defendant’s motor vehicle while the defendants counterclaim that the collision was a result of the negligence of the plaintiff’s driver. The critical issue is to decide who was negligent.

The Plaintiff’s Case

The plaintiff’s driver testified that at Avao he turned left inland at Pusi’s shop to deliver produce. As he drove from the shop to the main road he stopped to check both the west and east before entering the main road and turned left to go west. To the east he cannot see past the blind bend immediately to the east of the shop and to the west the road was straight and he saw no vehicle. He then entered the road and turned left to travel westward but after he straightened up on his lane to proceed west on the main road he saw the defendant’s vehicle coming direct at his vehicle (on the plaintiff’s side of the road) and struck the front left side of his pickup, causing his pickup vehicle to spin clockwise to face the east. Sitting on the passenger’s seat alongside the driver was the driver’s cousin. He told the court that before their vehicle entered the main road they both checked for oncoming vehicle and there was none. He was told by the driver to check again. He did. They then proceeded to cross the road to their lane and turned left when he saw the defendant’s vehicle coming on their lane causing the collision. When he looked to the west before they crossed the road he could see the new bridge being built and there was no vehicle coming between them and the new bridge; some distance of about 300 meters (which he estimated to be between the court house and Mulivai Cathedral).

As a result of the collision the plaintiff’s load of produce worth about $700 was spilled on the road rendering them worthless. For the remainder of the load left on the plaintiff’s pickup a vehicle was hired to complete the delivery. As a result of the collision the plaintiff says her pickup vehicle was completely written off and she claims $17,000 as the pre accident value of the vehicle. She also claims $1,155 for taxi hires for herself and the children as well as for transport of the plantation produce from her plantation at Aleisa to the market. General damages of $3,500 is also claimed.

The Defendant’s Claim

The defendant’s vehicle was driven by his son Pati from the west travelling eastwards to deliver bread when the plaintiff’s vehicle entered the road from his right in front of him. In an attempt to avoid the accident the defendant’s son swerved to the left lane but the plaintiff’s kept on crossing resulting in the defendant’s car hitting left front side of the plaintiff’s car causing it to spin clockwise to face the east. Sefo Penei a student who was in the front passenger’s seat confirmed the evidence of defendant’s son that their vehicle moved to the left lane to avoid the plaintiff’s vehicle who entered the main road on their lane.

The oral testimony and the photographs of the plaintiff’s damaged car clearly indicates that the plaintiff’s car was hit from the side near the front which means that it was hit while it was crossing the road. This would explain why the plaintiff’s vehicle spun clockwise to face the east; the same direction the defendant’s vehicle was heading to. I therefore reject the evidence of the plaintiff’s driver and his passenger that the vehicles collided almost head on when the plaintiff’s vehicle was facing west on the right hand lane when it was struck by the defendant’s vehicle travelling from the west. Photographs of the damaged plaintiff’s vehicle clearly shows it was struck on the left side near the front and this is confirmed by the motor mechanic who testified for the plaintiff; he referred to the photograph of the plaintiff’s damaged vehicle and told the court it was hit from the left side. If the plaintiff’s driver and his passenger testimony is correct; namely that they stopped at the side of the road and checked before they entered the road they should have seen the defendant’s vehicle coming as they had an unobstructed view of more than 200 meters. I reject their evidence that they stopped to check and they did not see the defendant’s vehicle coming from the west. It is difficult to comprehend how a near head on collision as described by the plaintiff’s driver and passenger would have caused their vehicle to do a clockwise turn of about 180°. I prefer the evidence for the defendant to the evidence of the plaintiff and as a consequence I conclude that the collision of the two motor vehicles were caused by the negligence of the plaintiff’s driver when he failed to keep a proper look out and he failed to stop and give way to the defendant’s vehicle before entering the main road. The plaintiff is vicariously liable for the negligence of her driver.

Damages

As a result of my findings on negligence the plaintiff’s claim for negligence is dismissed. I now turn to consider the defendant’s claim for damages. Prior to the accident the defendant’s vehicle was engaged in the business for the delivery of bread to the defendant’s customers but as a result of the accident the vehicle was damaged requiring repairs. Cost of repairs is estimated at $4,180.00 according to the evidence of the motor mechanic who has yet to do the repairs. He has not been supplied by the defendant with a replacement radiator, grille, parking lights and bumper. The defendant is entitled to the costs of repairs claimed.

The defendant also claims that since the accident he has to hire a vehicle to deliver bread. One of the defendant’s bakery employees owns a pickup which the defendant has been hiring since October 2003. The defendant seeks $600 rental per week but the owner of the hired vehicle testified that the agreed rental was $600 per month from October 2003 to April 2004. I understand from his testimony that he claims rental for seven months of $600 making total rental claim of $4,200.

No reasonable explanation has been tendered by the defendant why he has not facilitated the mechanical repairs to his motor vehicle by supplying the required parts. He is obliged to mitigate his losses; he cannot sit back and await the outcome of his claim against the plaintiff. I estimate ten weeks as reasonable time within which his damaged vehicle should have been repaired and operational for the delivery run. I will accordingly allow ten weeks of rental which at $600 per month amounts to $1,350.

As to general damages I accept that the vehicle pickup was used not only for the business but by the defendant’s family as well for leisure, village and plantation obligations. I allow $500 general damages for the inconvenience caused by the loss of the use of the vehicle.

I give judgment for the defendant as follows:

Special Damages = $5,500.00

General Damages = $ 500.00

$6,000.00

The plaintiff is ordered to pay costs of $1,400.00.

JUSTICE VAAI