Corporation of the Presiding Bishop of Jesus Christ of Latter Day Saints v McLean [2006] WSSC 10 (21 February 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

CORPORATION OF THE PRESIDING BISHOP OF
JESUS CHRIST OF LATTER DAY SAINTS
a corporation sole created and existing under the laws of Utah in the United States of America and carrying on business at Pesega, Samoa and elsewhere.
Plaintiff

AND

DAVID HAMISH McLEAN
of Mulifanua, Electrician.
Defendant

Counsel: S Leung Wai for plaintiff
K Drake for defendant

Hearing: 12, 13, 14 October 2005 and 15, 18 November 2005
Submissions: 21, 25 November 2005
Judgment: 21 February 2006

JUDGMENT OF SAPOLU CJ

Introduction

For the purpose of clarity, I have decided to deal with this case in three parts. Part A will deal with the issue of liability; Part B will deal with the issue of damages; Part C will be the conclusions.

PART A

Proceedings

These proceedings arose from a collision which involved a Toyota Hilux double cab pick up vehicle and a Toyota Hiace van owned by the plaintiff and a trailer which was towed behind a Land Rover vehicle driven by the defendant when the trailer which was carrying a 44 gallon drum filled with petrol detached from the defendant’s vehicle and veered onto the opposite lane of the road on which the plaintiff’s pick up vehicle was coming from the opposite direction. The trailer collided with the plaintiff’s on-coming pick up vehicle and then rebounded and hit the plaintiff’s van which had been following behind the defendant’s vehicle and had arrived at the spot of the accident at the time the defendant’s trailer collided with the plaintiff’s pick up. In consequence, the plaintiff is claiming damages from the defendant in negligence for the damages to its pick up vehicle and van. The defendant has not only denied liability but also the quantum of damages claimed by the plaintiff saying that if he is liable in negligence then the plaintiff’s agent who was driving its pick up was contributorily negligent.

How the accident happened

On 2 September 2004 in the afternoon, the defendant picked up his children from school at Lotopa near Apia and drove them home in his Land Rover vehicle to Mulifanua about 21 miles away. Towed behind the defendant’s vehicle was a two-wheeled trailer carrying a 44-gallon drum. At Fasitoo-uta, a Toyota Hiace van (the van) belonging to the plaintiff was following at some distance, not far, behind the defendant’s vehicle. After careful consideration of the evidence relating to this part of the case, I have decided to accept the evidence of the witness Faresa Siaosi who is an employee of the plaintiff and was the passenger in the plaintiff’s van. According to Mr Siaosi, when he observed the defendant’s vehicle at Fasitoo-uta it was travelling at speed. He estimated the speed at which the defendant’s vehicle was travelling at the time to be 40mph. He also said that at Nofoalii the defendant’s vehicle overtook three vehicles and he saw that when the defendant’s vehicle overtook those vehicles the drum on the trailer was moving from side to side of the trailer causing the trailer to swerve. He also did not see the drum being tied to the trailer with a rope. This witness further said that at the curve on the road between Leulumoega and Fasitoo-tai leading on to the straight part of the road at Fasitoo-tai, he saw the defendant’s vehicle overtook a truck. The plaintiff’s van also overtook the same truck. He also said that when the plaintiff’s van was about 16 feet behind the defendant’s vehicle on the straight part of the road at Fasitoo-tai, he saw the trailer suddenly detached from the rear of the defendant’s vehicle. The V shaped metal tow bar of the trailer projected upwards and the trailer veered onto the inland lane of the road (the incorrect lane), where the plaintiff’s pick up vehicle was coming from the opposite direction. The trailer collided with the plaintiff’s pick up and then rebounded onto the seaward lane of the road and hit the front of the plaintiff’s van which had arrived at the spot of the accident. The road from Apia to Mulifanua is generally flat and where this accident occurred the road is flat.

According to the evidence of Mr Siaosi, who has had experience with securing trailers onto a towing vehicle, there should be a locking pin to secure the tow bar of the trailer onto the tow ball at the rear of the towing vehicle. However, after the accident he and the police officers who arrived on the scene looked at the trailer and he did not see any locking pin to secure the tow bar of the trailer to the tow ball of the defendant’s vehicle. He then remarked that no wonder that the accident had happened because there was no locking pin. He saw only electrical wires sticking out from the tip of the V shaped tow bar of the trailer which must have been used to tie the tow bar to the tow ball at the rear of the defendant’s vehicle.

The evidence of the witness Shan Tai Leung Choi is that on 2 September 2004 he had been in Savaii for the purpose of his work as minor project manager for the plaintiff church and was driving the plaintiff’s double cab pick up vehicle that was involved in the accident. He came back to Upolu by ferry from Savaii and when the ferry arrived at the Mulifanua wharf it was about 3.15pm in the afternoon. He then drove off from the ferry and with him in the pick up vehicle were a boy sitting in the back seat and the witness Aleki Fui who was sitting with him in the front seat on the passenger’s side. Mr. Leung Choi said he then drove to Apia at about 30mph talking casually with the witness Aleki Fui at times. When they arrived at Fasitoo-tai, they had ceased talking and he was sort of shocked when he heard a noise as if something had snapped. He described this noise to be like that of a stone hitting the roof of a house. At the time Mr. Leung Choi heard the noise, his pick up vehicle and the defendant’s Land Rover were passing each other on the road heading in opposite directions. Mr. Leung Choi said he then saw a trailer carrying a gallon drum with its tow bar tilted up coming on his lane of the road at an angle towards his vehicle at about 40mph. Mr Leung Choi also said that when he first saw the trailer on his lane of the road it was about ten feet from his vehicle. He based his estimation of the speed of the trailer on his twenty years of experience as a driver. He then held on to the steering wheel and stepped on the brakes and closed his eyes for fear of any broken glasses that might damage his eyes from what appeared an inevitable collision. The trailer then hit the front of the plaintiff’s vehicle causing extensive damage. Mr Leung Choi also said that he could not turn his vehicle off the road when he saw the trailer as there are stones and plants on the side of the road and even if he had tried to do so the trailer would have hit his side of the vehicle as the trailer was coming at an angle towards his vehicle. In any event, the accident happened so sudden.

The evidence given by the witness Aleki Fui is that before their double cab pick up vehicle driven by Mr. Leung Choi came to Fasitoo-tai, he and Mr. Leung Choi had been talking to each other but they were still facing the front. By the time their vehicle came to Fasitoo-tai they had stopped talking. Mr. Fui said their vehicle was travelling at 30mph as it is a policy of the plaintiff church that its vehicles should not be driven at a speed in excess of 30mph. As they were approaching Fasitoo-tai, Mr. Fui said he saw a Land Rover vehicle towing a trailer coming from the opposite direction about 40 to 50 metres away. He said that the Land Rover was speeding and was travelling at about 40mph. Mr. Fui also said that as their vehicle and the Land Rover were passing one another at Fasitoo-tai, he suddenly saw the trailer at about three or four metres away coming on their lane of the road towards their vehicle at about 40mph. He closed his eyes and bowed his head as he thought they were going to die. The trailer then hit the front of the pick up vehicle causing extensive damage.

I have decided to accept the evidence of the witnesses Mr. Leung Choi and Mr. Fui as to how the accident happened. They were eye witnesses to the accident and they had a close, direct and clear view of the trailer which had been towed behind the defendant’s Land Rover veering onto the inland lane of the road they were travelling on and coming towards their vehicle at speed and hit their vehicle. Their evidence on how the accident happened is also supported by the evidence of the witness Faresa Siaosi another eye witness to the accident. I have also decided to accept the evidence of the witness Faresa Siaosi that when he first saw the defendant’s vehicle at Fasitoo-uta until the accident happened at Fasitoo-tai it was travelling at about 40mph. The evidence of Mr Leung Choi and Mr. Fui that when they met the defendant’s Land Rover at Fasitoo-tai it was travelling at 40mph and that the detached trailer came towards their vehicle at 40mph is consistent with the evidence of Faresa Siaosi. I do not accept the suggestion from the defendant’s evidence that at those times his vehicle was not speeding.

The evidence of constable Iosefo Sala who arrived on the scene soon after the accident to investigate what happened is that when he arrived on the scene there were three vehicles on the scene and a 44 gallon drum filled with petrol lying on the inland side of the road. He also said he did not see any rope at the scene or around the 44 gallon drum. He also did not see any locking pin. However, he saw electrical wires that had snapped. Constable Sala further testified that when he interviewed the defendant at the Faleolo police post as to what had happened, the defendant replied “It’s his fault.” As it will appear when I come to the defendant’s evidence, he denies certain parts of the evidence of constable Sala. The police officer further testified that the defendant was subsequently charged with negligent driving causing injuries. However, the charge was dismissed when the case was called for hearing in the District Court and the police witnesses failed to turn up.

The evidence given by the defendant consisted of his sworn affidavit and oral testimony. According to the defendant, on 2 September 2004, he attached his trailer to the back of his Land Rover vehicle in the way he has always done by slipping the coupling attached to the tow bar of the trailer over the tow ball at the back of his Land Rover. There is then a latch that fits over the coupling and tow ball which is then secured with a locking pin as an extra precaution to stop the latch from lifting off the tow ball at the back of the Land Rover. The locking pin is not attached to the latch but secured to the latch with a piece of electrical wire so that it would not be lost. As an additional safety measure electrical wires are wrapped around the latch and locking pin. The defendant also said that when he attached the trailer to the back of his Land Rover on the day in question he did not see anything wrong with any of the connecting parts and that he connected the trailer to his Land Rover in the manner he has always done by using the locking pin to secure the latch and then wrapping the electrical wires around that for extra safety. The defendant further said that he securely positioned and tied a 44 gallon drum that was on the trailer to the body of the trailer.

The defendant, having connected the trailer to his vehicle and tied the drum with a rope to the body of the trailer then drove from his place at Mulifanua to Apia to pick up his children from school at Lotopa. One matter that was not explained is why it was necessary for the defendant to tow the trailer with the 44 gallon drum on it all the way from Mulifanua to Apia when according to his evidence he was coming to Apia to pick up his children from school. Obviously it was not necessary to tow the trailer with a 44 gallon drum on it all the way from Mulifanua to Apia for the purpose of picking up the defendant’s children from school. There must have been a reason for the trailer with a 44 gallon drum on it being towed to Apia. The evidence of constable Sala who arrived on the scene of the accident shortly after the accident had occurred is that he found on the scene a 44 gallon drum filled with petrol. From this I draw the inference that the trailer with the drum on it was towed to Apia for the purpose of filling up the drum with petrol. It follows that it is likely that the defendant did not drive back to Mulifanua straight after picking up his children from school. As already stated, I have decided to accept the evidence of the witness Faresa Siaosi who first saw the defendant’s vehicle at Fasitoo-uta and the evidence of the witnesses Mr. Leung Choi and Mr. Fui as to the speed the defendant’s vehicle was travelling and not the suggestion from the defendant’s evidence that given the time difference from the time when he picked up his children from school and the time of the accident he could not have been speeding.

While the defendant was driving with his children to Mulifanua, their vehicle was travelling on the seaward lane of the road. The defendant said when they were on a straight part of the road at Fasitoo-tai he heard a noise of metal grinding on the road which made him check his rear view mirror. He saw sparks from the back of his vehicle which were caused by the trailer having detached itself and because of the weight of the drum had dragged along the road causing the sparks. The tow bar at the front of the trailer had tipped up and the trailer veered to the left (i.e. the inland lane of the road) and was run into by a pick up vehicle. The defendant said it all happened so quickly and as soon as he realised what was happening he pulled his vehicle off the side of the road.

I have decided to accept the evidence of the witnesses Mr. Leung Choi and Mr. Fui that it was the trailer which suddenly appeared on their lane of the road and hit the pick up vehicle and not the pick up vehicle that ran into the trailer as stated by the defendant. According to the evidence of Mr. Leung Choi, as mentioned earlier, when he suddenly saw the trailer about 10 feet away coming on their lane at an angle towards their vehicle, he put on the breaks and closed his eyes for fear his eyes may be injured from what appeared to be an inevitable collision with the trailer.

In his evidence, the defendant confirmed that he did tell Mr. Leung Choi at the scene of the accident that he has insurance. However, the defendant said he did not tell anyone that the accident was his fault. The evidence by Mr. Leung Choi is that when he said to the defendant immediately after the accident that he was responsible for what happened the defendant replied he has insurance. The evidence by constable Sala, as also mentioned earlier, is that when he interviewed the defendant at the Faleolo police post concerning the accident the defendant said it was his fault. After careful consideration of this conflict in the evidence of the defendant and that of constable Sala, I have decided after observing the witnesses to prefer the evidence of the police officer who is an independent witness as far as this matter is concerned.

In relation to the locking pin, the evidence of the defendant is that after the accident he searched the surrounding area but he was not able to locate the locking pin which he said he had used to secure the latch of the trailer’s tow bar to the tow ball at the back of his Land Rover. The evidence of constable Sala is that he inspected the area of the accident, about 15 metres long and 15 metres wide, but he did not find any locking pin. The witness Faresa Siaosi who has had experience in securing trailers to towing vehicles using a locking pin also testified that after the accident he did not see any locking pin to secure the trailer to the defendant’s vehicle. These items of circumstantial evidence do not bear out the defendant’s oral testimony that before he left Mulifanua to come to Apia to pick up his children from school he had secured the latch of his trailer’s tow bar to the tow ball at the back of his Land Rover with a locking pin. In consequence, the circumstantial evidence does not inspire confidence in the defendant’s oral testimony.

The defendant’s evidence that he had tied the 44 gallon drum with a strong rope to the trailer is also inconsistent with the evidence of the witness Faresa Siaosi and that of constable Sala. The evidence of Faresa Siaosi is that when he saw the defendant’s Land Rover overtaking three vehicles at Nofoalii, the drum on the trailer was moving from one side of the trailer to the other causing the trailer to swerve, and that he did not see the drum being tied to the trailer with a rope. The evidence of constable Sala is that when he arrived on the scene of the accident, a 44 gallon drum filled with petrol was lying on the inland side of the road and he did not see any rope at the scene of the accident. This was in spite of the fact that he carried out an inspection of the scene of the accident.

In his evidence, the defendant also said that he had been using trailers for 25 years in New Zealand and Samoa without being involved in an accident with a trailer until this one. He said that in New Zealand the law requires safety chains for the purpose of attaching the tow bar of a trailer to the tow ball of a towing vehicle but there is no such legal requirement in Samoa and he has not seen a trailer with a safety chain in Samoa.

The defendant also said that he has not used a safety chain in the three years he has had his present trailer and has not experienced any mishap as a result. He also said in the year before the accident he had used his trailer more or less every day in connection with the work for the new hotel that was constructed at Mulifanua.

According to the defendant he was not negligent because he did not cause the trailer to come loose from his vehicle. In other words the defendant is saying that it was an inevitable accident due to a mechanical defect. However, under cross-examination the defendant admitted that in hindsight it would have been prudent and a good idea to have a safety chain installed to his trailer.

The witness Robert Tony Hill, a New Zealand qualified panel-beater and spray painter of twenty seven years experience who was called by the plaintiff, testified that he manufactures trailers and therefore has knowledge of trailers. He said that by the law of New Zealand every trailer has to have a safety chain to attach it to a vehicle. He also said that he would not recommend an electrical wiring to tie a trailer to a towing vehicle. To do so would be asking for trouble.

Negligence

The first question to be determined in an action in negligence is whether the defendant owed to the plaintiff a duty of care. Both counsel were in agreement that a driver, driving a motor vehicle on a road, owes a duty of care to other road users. If authority is required for that well established duty then I refer to Winfield and Jolowicz on Tort (1994) 14^th ed by WVH Rogers at p. 81 where it is said:

“Many duties of care have been established time out of mind (for example, the “duties owed by drivers to other road users and of employers in respect of the “safety of their workers.)”

And in The Law of Torts in New Zealand (1997) 2^nd ed by Todd et al it is said at p.158:

“In many cases the existence or ambit of a duty is well established and is not a “live issue. For example, there can be no argument about whether a driver “owes a duty to other road users to take care in his or her driving.”

As with a driver of a vehicle alone, a driver of a vehicle with a trailer attached to it should also owe a duty of care to other road users. For example, in the cases of Berkett and Futter v Middlebrook [1953] NZLR 292 and Acatincai v Insurance Commission of Western Australia [2003] WASCA 39, the driver of a vehicle with a trailer attached to it was held to be liable in negligence, applying the maxim res ipsa loquitur, when the trailer veered from the correct to the incorrect side of the road and collided with an on-coming vehicle from the opposite direction which implies that the driver owed a duty of care to other road users. Apart from precedent, the defendant in this case as a mater of policy should be held to owe a duty to other road users. The personal safety of road users is a major concern of the law. I hold therefore that the defendant owed a duty of care to other road users including the plaintiff when he was driving his vehicle with a trailer towed behind it on the road.

In respect of the second question of whether the defendant was in breach of his duty of care, the defendant’s evidence, as mentioned earlier, shows that before he left Mulifanua to come to Apia to pick up his children from school he attached his trailer to his Land Rover by slipping the coupling of the trailer’s tow bar over the tow ball at the back of his Land Rover. He then fitted the latch of the tow bar over the coupling and the tow ball and secured it with a locking pin. He then wrapped a piece of electrical wire around the latch and locking pin. The defendant said that was an additional safety measure.

The evidence of both the defendant and Mr Hill for the plaintiff is that it is required under the relevant statutory law of New Zealand that every trailer has to have a safety chain for the purpose of attaching it to a vehicle. Mr Hill is not only a qualified and experienced panel-beater and spray painter but he also manufactures trailers. He testified that to use electrical wires instead of a safety chain to attach a trailer to a towing vehicle would be asking for trouble. This must be more so if the trailer is also carrying a heavy load such as a 44 gallon drum filled with petrol as it happened in this case. Under cross-examination the defendant admitted that in hindsight it would have been a prudent measure to install a safety chain. In my view, the defendant had been aware for many years that a safety chain was a necessary safety measure for a trailer because according to his own evidence he had been using trailers in New Zealand for many years and he is aware of the requirement of the statutory law of New Zealand that every trailer has to have a safety chain.

In support of her submission that the defendant should not be held negligent, counsel for the defendant placed emphasis on the fact that there is no statutory requirement in Samoa making safety chains for trailers mandatory. That may be so but in L V L (1993) (unreported judgment delivered on 29 November 1993) this Court considered the provisions of an English statute by way of analogy to inform the common law of Samoa in dealing with the question of the rights of spouses to occupation of the matrimonial home for which there is no Samoan legislation and for which there had been no previous decision of the Court. On appeal, Cooke P in delivering the judgement of the Court of Appeal dismissing the appeal said that the working out or development of basic common law and equitable principles is well within the judicial function. Thus statutory law in my view may be considered to inform the development and evolution of the common law. Whether a foreign statute may be so applied is perhaps debatable at this stage.

We are presently dealing with the common law of negligence and in particular the standard of care required of a driver of a vehicle towing a trailer. It has been mentioned that in New Zealand there is a statutory requirement for every trailer to have a safety chain. Following L V L (1993) (supra), a statutory requirement may be taken into consideration to inform the development of the common law of negligence in Samoa. But as already mentioned, it is debatable at this stage whether a foreign statutory requirement may be so applied. Even though it is directed to the question of whether a duty of care should be recognised rather than to the question of what should be the standard of care, it would be helpful to further enlighten what is said here if I refer to The Law of Torts in New Zealand (1997) 2^nd ed by Todd et al where it is said at pp 172-173:

“A statute can have a bearing on whether a common law duty of care should be “recognised in more than one way. In the South Pacific case Cooke P noted “that the true interpretation of a statute may be that it covers the field to the “exclusion of the common law, or it may give rise to a cause of action for “breach of statutory duty. He also said that where the statute is not intended to “inhibit the Courts in developing the common law it can be a real help in “deciding whether there is a common law duty, and in particular its provisions “may encourage the Court to hold that certain interests warrant protection. In “South Pacific itself the provisions of the Private Investigators and Security “Guards Act 1974, giving third parties affected by the activities of licensed “private investigators the right to file a disciplinary complaint based on “negligence, was seen as a strong point in favour of recognition of a common “law duty. Similarly, the provisions of the Customs Act 1966 concerned with the “forfeiture of goods used to facilitate breach of the Act assisted the Court of “Appeal in imposing a duty on the Crown to take reasonable care in looking “after the forfeited good: Williams v Attorney-General [1990] NZCA 20; [1990] 1 NZLR 646. In “Invercargill City Council v Hamlin [1996] 1 NZLR 513 statute played a part in “helping maintain an already existing duty of care owed by a local authority to a “subsequent purchaser of a defective house. The Building Act 1991 laid down “a detailed code governing control by local authorities of building work, and in “so doing it clearly accepted that a duty was owed. Conversely in Murphy v “Brentwood District Council [1991] UKHL 2; [1991] 1 AC 398, where a duty was denied, the “House of Lords was influenced by the existence of a statute which provided for “only a limited duty and which was seen accordingly as leaving no room for any “common law obligation.”

Even though the passage just cited shows that a statute may be taken into consideration to inform the common law as to whether a duty of care in negligence should be recognised, it is only a small step to go on to hold that a statute may also be taken into consideration to inform what the common law standard of care should be in an action in negligence. See Charlesworth and Percy on Negligence (2001) 10^th ed, para 6.40 cited by counsel for the plaintiff which shows that a statute may be used to provide guidance as to what should be the standard of care in a particular situation.

Accordingly, I am of the view that a statute may, in the discretion of the Court, be applied to inform what the common law standard of care should be in a particular case. The evolution of the common law of Samoa is well within the judicial function.

Counsel for the defendant also submitted that if the common practice in Samoa is to use trailers without safety chains then the defendant should not be held to a different and higher standard of care. She further submitted that the defendant’s actions were those of a reasonable person having regard to the common every day practice of the use of trailers in Samoa. Counsel also submitted that it is common sense that there should be safety measures taken if a person is going to tow a trailer behind his or her vehicle, but if there are no legal requirements for a person to use a safety chain, then it would be unfair and improper to impose a higher standard of care on someone when there is no standard of care in the first place. Counsel for the plaintiff on the other hand submitted that the absence of a statutory requirement in Samoa for every trailer to have a safety chain as it is in New Zealand does not supersede the common law duty of care required of a driver of a vehicle towing a trailer.

I must point out that negligence is one of the most developing areas of the law and it continues to apply itself to novel situations which arise from time to time in society. Negligence does not simply live, it also develops. As Lord Macmillan once said in Donoghue v Stevenson [1932] AC 562 at p. 619:

“The categories of negligence are never closed.”

In respect of the submission by counsel for the defendant which suggests that it is common practice to use trailers in Samoa without safety chains, I am not so sure as to what is meant here whether what is referred to are trailers used on private roads or lands, or trailers used on public roads, or both. With respect, it is very uncommon, if not rare, to see a trailer towed behind a vehicle on a public road in Samoa. But if it is assumed to be a common practice for trailers without safety chains to be towed behind vehicles on public roads in Samoa, then I agree with counsel for the defendant that safety measures should be taken if a person is going to tow a trailer behind his or her vehicle. The safety of road users is a major and significant concern of the law.

Still on the issue of common practice, it would be helpful to refer to The Law of Torts (1992) 8^th ed by J G Fleming where it is stated at p. 120:

“All the same, even a common practice may itself be condemned as negligent if fraught with obvious risks. ‘If it is unreasonable to do absolutely nothing to one’s driveway in the face of clearly treacherous conditions, it matters little that one’s neighbours also act unreasonably.’ In the last analysis the standard of reasonable care is measured by what ought ordinarily to be done rather than by what is ordinarily done. Were it otherwise, an entire industry would be free, by maintaining careless methods to save time, effort or money, to set its own uncontrolled standard with no incentive to devise new and more efficient safety precautions. Accordingly, proper regard for the safety of others may require the adoption of some device only recently discovered, mindful however of the truism that while an omission to adopt a safety device is not necessarily answered by the argument that such an accident had not happened before, yet nothing is so easy as to be wiser after the event.”

If, as it appears from the submissions for the defendant, there is a common practice to use trailers on public roads in Samoa without safety chairs, then such a practice is fraught with obvious risks to other road users. This would be more so if the trailers are used to carry heavy loads. Such a practice should be held to be negligent. In any event, the defendant had been using trailers in New Zealand for many years. He is aware of the requirement under New Zealand law that every trailer should have a safety chain. When he came to Samoa he did not install a safety chain to his trailer. For him to say that he should not be held negligent because other people in Samoa with trailers do not use safety chains and there is no requirement under Samoan law for trailers to have safety chains is unacceptable. What is said in The Law of Torts by J G Fleming (supra) that if what one is doing is unreasonable then it matters little that one’s neighbours are also acting unreasonably, and that in the last analysis the standard of reasonable care is measured by what ought ordinarily to be done rather than by what is ordinarily done applies to this case. A reasonable man in the circumstances of the defendant would therefore have used a safety chain in addition to the other measures used, excluding the electrical wires, to attach his trailer to his towing vehicle.

For the foregoing reasons, I find that the defendant in not using a safety chain to attach his trailer which was carrying 44 gallon drum filled with petrol to his Land Rover which was driven at speed was in breach of his duty of care to other road users including the plaintiff.

There is another matter to be dealt with here. As earlier mentioned, the defendant in his evidence said that he has been using his trailer for three years and that last year he used his trailer once a week and then more or less every day when his trailer was used in the work for the construction of the new hotel at Mulifanua. He also said in evidence that the reason for his trailer having detached from his vehicle might have been that the locking pin broke due to metal fatigue. This is of course an assumption based on what the defendant said about how his trailer had been used previously for there is no direct evidence that the real reason for the trailer detaching from the defendant’s vehicle was because of the locking pin having broken due to metal fatigue. I would have been inclined in favour of the assumption suggested by the defendant if it was not for the evidence of the defendant, himself, that he searched the surrounding area of the accident and could not find a locking pin and the evidence of constable Sala that he inspected the area of the accident but did not find a locking pin. The witness Faresa Siaosi also testified that he did not see a locking pin. These items of circumstantial evidence suggest that the defendant did not use a locking pin to secure his trailer to his vehicle. I therefore cannot accept the assumption suggested by the defendant with the necessary degree of confidence. In consequence, I am not able to accept the defendant’s evidence that he did use a locking pin to secure the trailer to his Land Rover. Counsel for the plaintiff suggests in his submissions that if the cause of the accident is because the locking pin broke due to metal fatigue, then the defendant had failed to carry out proper maintenance of his trailer. He is therefore negligent on that basis.

During the evidence for the plaintiff I raised with counsel for their consideration the maxim res ipsa loquitur. Having heard the whole of the evidence including the evidence by the defendant, I will say no more about the applicability or otherwise of the maxim res ipsa loquitur to this case. However, in any future case of an accident which arises from a trailer towed behind a vehicle suddenly detaching itself and colliding with a vehicle coming from the opposite direction of the road, it is recommended that reference be made to the cases of Berkett and Futter v Middlebrook [1953] NZLR 292 and Acatincai v Insurance Commission of Western Australia [2003] WASCA 39 where such an accident occurred and the maxim res ipsa loquitur was held to apply on the facts.

On the question of damages, there is no doubt that the plaintiff’s pick up vehicle that was hit by the defendant’s trailer sustained extensive damages. The trailer also caused damage to the plaintiff’s van when it rebounded from the plaintiff’s pick up vehicle and hit the van.

The plaintiff has therefore established liability on the part of the defendant in negligence.

On the defence of contributory negligence raised for the defendant, I am satisfied on the evidence of Mr Leung Choi who was the driver of the plaintiff’s pick up vehicle and of Mr Fui who was a passenger in the pick up vehicle that Mr Leung Choi was not negligent in the way he was driving the plaintiff’s pick up vehicle when it was hit by defendant’s trailer. The defendant on the other hand did not really see the accident happened. The defence of contributory negligence therefore cannot succeed.

I move on now to the question of damages.

PART B

Damages to plaintiff’s vehicles

The plaintiff’s vehicles which were damaged in the accident were its pick up and van. I will deal first with the damages to the pick up and then with the damages to the van.

The plaintiff’s pick up was purchased on 19 July 2004 from Asco Motors at the price of $85,000. The accident occurred on 2 September 2004. At that time the pick up had clocked a mileage of 1990. So the pick up was still quite new at the time of the accident. Its pre-accident value is estimated at $80,000 after taking into account normal depreciation.

From the oral and documentary evidence, including photographs, for the plaintiff, it is clear that the plaintiff’s pick up was extensively damaged as a result of the accident. The bonnet and roof of the pick up were badly damaged and the windscreen was shattered. The radiator was also damaged. Other body parts of the pick up that were damaged and the full extent of the damage are set out in detail in the report of the witness Mr Hill, the panel-beater called for the plaintiff. I need not set out the report of Mr. Hill. Suffice to say that the defendant did not seriously dispute the extent of the damage to the plaintiff’s pick up.

Mr. Hill testified that he thought there was nothing wrong with the engine. In fact after the accident Mr. Leung Choi drove the pick up from the scene of the accident at Fasitoo-tai to Saleimoa which is a long distance. It was only at Saleimoa that the defendant’s Land Rover then towed the pick up to Apia because of the steam that was coming out of the radiator. Mr. Hill also said that he checked the chassis of the pick up and he did not find anything wrong with it. According to the evidence of the witness Lafaele Nauer, the mechanic called for the defendant, the steering system of the plaintiff’s pick up was also not affected.

Mr. Hill estimated the cost of repairs to the pick up, which includes spare parts and labour, at $42, 811.56. This is just more than half of the pre-accident value of the pick up which was $80,000. He then expressed the opinion that as the total cost of repairs exceed half the pre-accident value of the pick up, the pick up is a write off. Mr. Nauer for the defendant, on the other hand, estimated the cost of repairs to the pick up, which includes spare parts and labour, at $40,000. He then gave as his opinion that the pick up is not a write off. Both Mr. Hill and Mr Nauer were in agreement that the pick up is repairable. But they disagree on the total amount of the cost of repairs and on whether the pick up is a write off. Whether or not the pick up is a write off is one of the main issues in this case and I will deal with it now.

The evidence shows that some of the body parts of the pick up like the bonnet and the roof, were extensively damaged. The radiator was also damaged. But there was nothing wrong with the engine, steering system, and chassis of the pick up. The estimated pre-accident value of the pick up was $80,000. The estimated cost of repairs is about $40,000 according to Mr. Nauer for the defendant and about $42,811.56. according to Mr. Hill for the plaintiff, which is just more than half the pre-accident value of vehicle. Both Mr Hill and Mr Nauer were in agreement that the pick up is repairable. In these circumstances, I am of the opinion that the pick up is not a write off.

I have not been able to find from my own research any case which lays down as a matter of legal principle that if the cost of repairs to a damaged vehicle exceeds half the pre-accident value of the vehicle then the vehicle is a write off. Counsel for the plaintiff was also not able to refer to any such case. In the case of Australian Capital Territory v V Laden Vucetic [1991] ACTSC 104 the pre-accident value for the plaintiff’s vehicle which was damaged in a road accident was $13,000. The cost of repairs was estimated at somewhere between $7,000 and $10,800 which was more than half the pre-accident value of the vehicle. One of the issues for determination in that case was whether or not the plaintiff’s vehicle was a write off. At the trial in the ACT Magistrate Court, it was held that the vehicle was not a write off. On appeal to the Supreme Court of the ACT, Higgins J said at paras 25-26:

“’25. His Worship approached the task of assessment of damages as follows –

“’The onus is on the plaintiff of proving that a write-off was the most economical course. It has failed to do this. A reasonably prudent car owner would have obtained quotes for the cost of repairing the vehicle. As the evidence now stands, the plaintiff’s vehicle could have been restored to its pre-accident condition for as little as $7,000, perhaps less. We will never know. Neither the defendant nor the third party can be expected to pay the $10,800 which the plaintiff seeks, as if its decision to write the vehicle off was correct. That decision was patently wrong.’

26. If I may respectfully say so, I agree with His Worship that the ‘write-off’ method was not to be preferred in this case. Even on Mr Carmichael’s maximum assessment of cost of repairs ($10,000), it was economical to repair the vehicle. It was, after all, valued by him at $13,000.”

I refer now to two cases which involved vehicles damaged in road accidents that were decided in the Supreme Court of Tonga. The first of these cases is Folau v Ledger [2004] TOSC 34 which involved a van damaged in a road accident. The pre-accident value of the van was $8,000. Its residual value after the accident was $800. Thus the value of the wrecked vehicle was 1/10 of its pre-accident value. Ford J accepted that the plaintiff’s van could properly be described as a ‘write-off’. In the second case of Maile v Tonga Cooperation Company [2004] TOSC 31 which involved another van damaged in a road accident, a witness of the plaintiff testified that the plaintiff’s van was a write-off. In rejecting that evidence, Ford J said:

“The witness’s description of the van as a ‘write-off’ was somewhat surprising. The evidence was that the van was driven home after the accident and then driven back down to the wharf a few days later to be taken by ferry to Tongatapu. In Nukualofa, it was driven from the wharf to Asco Motors. The plaintiff explained that during these trips the wheels were vibrating and the steering wheel was not functioning as well as it should but it was, obviously, still mobile. Photographs produced in evidence reveal, and the evidence itself confirmed, that the principal damage was caused to the driver’s door and right side panels behind the driver’s door. There was also some minor mechanical damage but there was no damage to the engine or chassis... I am satisfied that the van is repairable.”

In that case, the pre-accident value of the van was estimated at $9,600 and its salvage value after the accident was estimated at $4,000. The van was not held to be a write off.

On the authorities I have referred to, the plaintiff’s pick up vehicle in the present case would not qualify as a write-off. It is still economical to repair it. There is one point to be noted. In the Australian case of Australian Capital Territory v V Laden Vucetic [1991] ACTSC 104, the damaged vehicle was not treated as a write-off because it was still economical to repair it. In Folau v Ledger [2004] TOSC 34 where the pre-accident value for the vehicle was $8,000 and its residual value after the accident was $800, one presumes that it was uneconomical to repair such a damaged vehicle so that the Court held that it was a write-off.

Having decided that the plaintiff’s pick up is not a write off, the next issue is what is the reasonable cost of repairs to the damaged vehicle. This will be the appropriate measure of the plaintiff’s loss. There is little difference between the evidence of Mr Hill for the plaintiff and Mr Nauer for the defendant as to cost of repairs. After careful consideration of the evidence by both witnesses I have decided to accept the evidence of Mr Hill that the appropriate cost of repairs is $42,811.56.

In relation to the plaintiff’s van which was hit by the defendant’s trailer when it rebounded off the plaintiff’s pick up after hitting that vehicle, the evidence given by the witness Faresa Siaosi who was a passenger in the van is that only the light and the “plastic part” of the van, which I understood to be the bumper of the van, were damaged. I have decided to accept this evidence. The evidence given by the defendant is that he could not believe that the trailer hit the van and he did not see the trailer hit the van. As the evidence shows, at the time of the accident the defendant was in the driver’s seat of his Land Rover. The accident happened so sudden behind the Land Rover. That might be the reason for the defendant not seeing the trailer rebound off the pick up and hit the van which was behind the Land Rover.

The evidence of the witness Cathy Ah Hoi, the finance accounts payable officer for the plaintiff, was that a cheque for $3,043.75 has been paid by the plaintiff to Asco Motors for the repairs to the van. She produced a copy of the receipt from Asco Motors for that payment. She also produced a “repair assessment” from the same company showing the total cost of repairs to the van as consisting of replacing the front windscreen, replacing the front bumper, grille and front door head lamp, spare parts and labour. This is at variance with the evidence of Mr Siaosi that only the light and the “plastic part” (bumper) were damaged. There was no mention by Mr Siaosi of the front windscreen or grille of the van being damaged. There is also no itemisation of the cost of repairs in the repair assessment produced for the plaintiff. What it shows is the total cost of labour and the total cost of spare parts “as per attached list” but there was no such list attached to the repair assessment provided to the Court. There is also a total amount of $343.75 shown for tax which I presume is VAGST. Thus the repair assessment does not show what was the cost of replacing the front bumper or the front door headlight.

One of the difficulties in this case is that while it is clear that the defendant’s trailer caused some damage to the plaintiff’s van, it is not clear what is the cost of repairing that damage. Here I have in mind only the damage to the bumper and the door head light as mentioned by Mr. Siaosi in his evidence. It is for the plaintiff to provide sufficient evidence of the damages that it claims. If it does not do so, it may well not receive a proper award. In Australian Capital Territory v V Laden Vucetic [1991] ACTSC 104, Higgins J said at paras 30-34:

“30. It may be assumed, as His Worship found, that there was insufficient evidence to fix a sum between the ‘approximately’ $7,000 minimum figure and the (approximately) $10,800 maximum figure. The question is whether His Worship was entitled to refuse to fix any figure.

“31. In Chaplin v Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786, the plaintiff lost an opportunity to be selected for the engagement of her services as an actress. It was, of course, impossible to say that she would have been selected. It was, in fact, urged that the chance was so speculative as to be incapable of warranting more than an award of nominal damages.

32. Vaughan Williams L.J. noted - 792:

’The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages for his breach of contract.’

33. An assessment of 100 pounds was upheld.

34. Certainly, if a plaintiff fails to bring evidence of loss, that plaintiff may well fail to receive a proper sum. (See, for example, Bonham – Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177, 178)

Higgins J then went on in his judgment to say at paras 37 – 42:

“37. Lack of precise evidence to enable accurate assessment of loss has not always led to a refusal of any damages.

38. In National Instruments Pty Ltd v Gilles (1975) 49 ALJR 349, the respondent had suffered a diminution in earning capacity but there was no evidence of the earnings he would have had. Barwick CJ held that no specific evidence was necessary. It could be concluded that the loss was considerable and damages could be assessed accordingly.

39. Smithers and Nimmo JJ, in Layton v Walsh (1978) 19 ALR 594, 607 noted that a failure to call evidence as to expenses incurred may lead to an inadequate award but their Honours did not suggest that no award for such expenses should be made.

40. Indeed in Government Insurance Office of New South Wales v Nguyen (1998) Aust Torts Reports 68, 108, Hope, Priestley and McHugh JJA went further (68,113):

’It cannot be too strongly emphasized that it is the duty of Courts in assessing damages to evaluate the evidence, make some assessment of each item of detriment, and make at least a provisional assessment of the amount of each head of damage. If the amount is incapable of precise assessment, an estimate must be made. To fail to carry out this duty in the circumstances of this case was an error of law’

41. Of course, the damages in that case were inherently difficult to quantify.

42. Such a difficulty can be so extreme that no assessment can be made at all (see, for example, Ashcroft v Guertin [1971] 1 WLR 1731).”

It must be pointed out here that even though the statement by Vaughan Williams LJ in Chaplin v Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786 that the fact that damages cannot be assessed with certainty does not relieve a wrongdoer of the necessity of paying damages is restricted to contract, it applies equally to tort: see McGregor on Damages (1988) 15^th ed para 344, footnote 5.

There is uncertainty as to what proportion of the total cost of labour, total cost of spare parts, and the VAGST stated in the repair assessment relates to the repairs to the bumper and the front door light of the van and what proportion relates to the repairs to the front windscreen and the grille because there is no itemisation of those matters in the repair assessment that was produced by the plaintiff. All I can say is that the major part of the total amounts stated in the repair assessment must have related particularly to the windscreen and to a lesser extent the grille.

I have therefore decided to award $1,200 for the repairs to the bumper and the front door light.

PART C

Conclusions

Judgment is given for the plaintiff as follows:

(a) The plaintiff is awarded damages in the sum of $42,811.56 for the cost of repairs to his pick up vehicle.

(b) The plaintiff is also awarded damages in the sum of $1,200 for the cost of repairs to his van.

(c) I make no award for general damages.

Counsel to file submissions as to costs within 7 days if they cannot reach agreement on costs.

CHIEF JUSTICE