Ausi v Isaako [2007] WSSC 38 (30 April 2007)

The plaintiff is a planter who operates a vegetable stall at Fugalei Market in Apia. He owns an Isuzu pickup license plate #7593. On or about 19th March 2003, the pickup being driven by the plaintiffs son Paulo Penisio was involved in an accident with the defendants car, driven by the defendant. There is no dispute the defendant is liable for the damage to the plaintiffs vehicle but there is a dispute as to the repair quantum and other costs claimed by the plaintiff.

The present proceedings were commenced on or about 17th May 2005. In it the plaintiff claims to recover:

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Cost of Parts:	front windshield	$1,420.00
	front bumper:	$2,240.00
	radiator	$ 759.00
	parking light (right)	$ 91.00
	parking light (left)	$ 91.00
	grill	$ 780.00	$ 5,381.00
Labour			(no figure specified)
Cost of alternative transportation ($30-$50 per day from March 2003 to May 2005)			$39,000.00
Solicitor-client costs			(no figure specified)

From these sums is to be deducted $200 which is the only money paid by the defendant to the plaintiff.

The plaintiff says his vehicle is a 1986 Isuzu pickup which he purchased in 1998 for $3,000. Two weeks before the accident, he spent $3,000 on repairs to the vehicles body. He says the engine was in good working condition; only the body needed work. These repairs used up all his excess cash and after the accident, he had no further funds to fix the vehicle. The vehicle remains unrepaired to this day.

That a 17 year old vehicle in our country would be in need of body work is not surprising. In fact the vehicle appears older because Exhibit "P-4" for the plaintiff (pro-forma invoice for replacement parts for the vehicle) shows the vehicle to be a 1982 not a 1986 model, hence the vehicle identification number commences with "J 82". The vehicle is therefore older than even the plaintiff realised. It is beyond doubt the vehicle is old and no evidence as to its exact pre-accident value was tendered.

The plaintiff says that following the accident, he met his son Paulo at the Police Station at about 11am. There he noted "substantial damages had been caused to my car" (paragraph 6 of his affidavit), the damage being "to the front bumper, the radiator, the front windshield, two parking lights and the grill front" (paragraph 7). He talked with the defendant and agreed to "accept $1,600 for the damage he had caused to my car" (paragraph 9). There was further agreement "that he would make regular payments of whatever amounts he could so that the said $1,600 would be paid off." Later that day the defendant paid the plaintiff $200 leaving a balance of $1,400.

The plaintiff subsequently went home only to discover that Paulo had not brought the vehicle home as he had instructed. He went to the workshop of Paulo’s mechanic friend Faafetai Tatupu and there found his car and Paulo. He says he "retrieved" his car, took it home and noted "that nothing had been done by Faafetai to repair my car" (paragraph 14 of his affidavit).

Nothing further happened until November 2004 when he followed up the matter with the Police resulting in the defendant being charged and convicted in the criminal courts. In December 2004 his son Paulo who had been working in American Samoa as a mechanic returned for a holiday and changed the engine of the car. This however did not render the vehicle usable and it was not certified roadworthy by the Ministry of Transport.

In February 2005, he obtained a quote from the local Isuzu suppliers Napa Samoa Limited for parts which he accepted in his evidence as representing the cost of brand new parts. These costs form the basis of his claim for $5,381. He says he has been waiting for the defendant "to honour our verbal agreement to receive the balance of $1,400 to fix my car" and the car has been "sitting unfixed as I could not afford to have it fixed" (paragraph 26 of his affidavit).

During the time the vehicle has been off the road, he says he has had to spend considerable funds on alternative transport for business purposes and for family needs. He has had to use "taxis and other vehicles from Monday to Saturday for our various and necessary errands including traveling to and from the market with our produce, having my children and grand children dropped off and picked up from school during the week, attending to family faalavelave and other daily matters" (paragraph 26 of his affidavit). The cost of this transport was $30 to $50 per day and $20 on Sundays for church travel. On this he spent for the period March 2003 to May 2005 the sum of $39,000. This expense has continued and from May 2005 to April 2007 he estimates a further $18 to $29,440 has been incurred.

In support of these matters, the plaintiff called a number of taxi and pickup drivers who confirmed that during this period, the plaintiff hired their vehicles to transport his family and sometimes his produce from his plantation at Tufulele or his home at Vaitele-tai to the Fugalei market. Daily charges for such trips varied with the frequency and distance of travel. No receipts were produced however and no evidence was given as to why the plaintiff was unable to utilize cheaper and more economical modes of travel such as by bus.

The plaintiff also called his son Paulo as a witness. He confirms the damage to the vehicle outlined in paragraph 7 of his fathers affidavit, but also says that post accident, he was able to drive the vehicle from the accident scene at Savalalo to the Police Station. There, he was told to take the car home which he did after straightening out the front bumper of the car as best he could. But the vehicle was leaking water and oil and he had to stop to refill the water tank three times on the way to Vaitele. At Vaitele-tai he tried to straighten the bumper again "but it needed more than one person to do that and I did not have the necessary tools" so he took the car to his mechanic friend Faafetai Tatupu "for the purpose of seeking Faafetais help to straighten out the bumper." (paragraphs 16 and 17 of his affidavit). He described Faafetai in his oral evidence as "my good friend" to whom he had gone "for help." When he arrived at Faafetais workshop he saw the defendants car was there but not the defendant. He says he and Faafetai "tried to straighten the bumper" when the plaintiff arrived and ordered the car be taken home, which he did, presumably by driving it away. In his affidavit Paulo says this was the extent of the work done by him and Faafetai but his oral evidence under cross examination is different. There he says he took the vehicle to Faafetai to straighten the bumper and to fix the radiator which was leaking badly, that Faafetai did do work on the bumper and that Faafetai procured a radiator from somewhere and installed it in the plaintiffs car so that the vehicle could be driven home. He denies however it was he who removed the radiator without permission from the defendants car.

The defendant accepts liability for the accident but says "the damages to my car and to that of the plaintiff were not substantial at all. In fact the plaintiffs car was still mobile and driven away right after the accident." (paragraph 6 of his affidavit). He says "the only damages that was incurred on the plaintiffs vehicle and confirmed by his son that very time and at the police station as well were:

(a) the dented (omo) front bumper which was still stuck to the plaintiffs vehicle after the accident;

(b) the grill (one half was broken but can still be held together with a string); and

(paragraph 7 of his affidavit). He discussed repairs with the plaintiffs son Paulo at the police station and their agreement was he would "fix the plaintiffs car at my expense" and he would meet "the cost of the grill of $400" (paragraph 17). He referred Paulo to his panel beater Faafetai Tatupu of Vaitele and towed his own vehicle to Faafetais shop. The plantiff was not at the police station and was never part of this arrangement. When he arrived at Faafetai’s he noted "the plaintiffs car was already there and Faafetai was already working on paneling the front bumper. I spoke with Faafetai who confirmed the parts that Paulo told him to fix at my expense. Not long after that the plaintiff walked there with his umbrella. I saw the plaintiff walked around his car examining it and then I heard him say that the front windshield also needed to be fixed. I was surprised but I decided not to say anything until our meeting at the Police station the next day. When I left to go home the plaintiff was still there. The next morning I went to Faafetai’s workshop. However when I got there, Faafetai told me that the plaintiff had taken my car’s water tank without my permission and used it for his car alleging that the water tank was also damaged. Faafetai also told me that the plaintiffs front windshield was cracked way before the accident. I never got my water tank back and I had to buy another one for my vehicle. I recall asking Faafetai about what was left to be done on the plaintiffs car and he said just the polishing and painting. But the plaintiff never brought his car back to Faafetai so he can complete his work. Later on that day I met with the plaintiff, Paulo and the IO Samu at the police station. At that meeting, the plaintiff suddenly came up with new damaged parts to his car alleging that it was a result of the accident. These included the front windshield, radiator and another parking light. I vehemently denied being liable for these additional items and told the plaintiff that the only parts that I was going to fix and pay for were those agreed upon by myself and Paulo the day before. I recall telling the plaintiff that I knew for a fact that his car’s front windshield was cracked half way before the accident and that I had a witness to confirm this. I remember that the plaintiff had gone all quiet and asked who my witness was and I told him it was Faafetai." (paragraphs 19 to 24 of his affidavit). He says he never agreed to a $1,600 settlement figure but confirms he paid $200 to the plaintiff towards the cost of the grill.

The defendant called the mechanic Faafetai Tatupu as a witness. He confirms that Paulo brought in the plaintiffs vehicle the morning of the accident and that there was damage to the grill, front bumper, radiator and parking light on the front right side. He says the grill was badly damaged and the best he would do was "so’oso’o" (stitch) it together, the bumper was bent and needed to be straightened but the vehicle frame needed to be straightened as well, the radiator was broken and needed extensive repairs, and the parking light required replacing. With Paulo helping he began the repair work immediately. After about 3 to 4 hours, the bumper and frame had been straightened, the grill patched together and the radiator from the defendants car had been removed by Paulo and inserted into the plaintiffs vehicle. Most of the work had been done and all that remained was to prep the body for painting but he did not get that far because the plaintiff arrived and instructed that his car be removed. This was at about 3 or 4pm that day. He estimates his total labour cost to be around $500 to $600 which was a special rate because he was friends with the plaintiffs son. He said the defendant had told him to fix the plaintiffs car first and that the defendant agreed to pay for the repair costs to the plaintiffs vehicle. To date however he has not been paid by anyone.

As for the windscreen, he says there was an old crack in the windscreen which he knew about having seen Paulo driving the vehicle previously. While he did not measure the crack, it appeared the same to him when the pick up was brought in post-accident. Paulo’s evidence in cross-examination was there was an old crack of 3" to 4" pre-accident but this was aggravated and enlarged by the accident impact. The plaintiffs evidence was to a similar effect.

There are several difficulties with the quantum of the plaintiffs claim. Firstly damages are only available on a compensatory basis and the guiding principle is that the plaintiff be placed in the same position as if the wrong complained of had not been suffered: if authority be needed for this basic proposition, see Livingstone v Raywards Coal Co. [1880] UKHL 3; (1880) 5 AC 25, 39: Czarnikow v Koufos [1969] AC 350, 420 per Lord Upjohn (HL). This is the principle reflected in the legal maxim referred to by Hardie Boys, J in Ansconbe v Paulo Christie Ltd [1999] 2 NLR 1976, 178 as follows:

"A plaintiff is of course entitled to restitution in integrum: to be put in the same position as if the damage had not occurred."

Numerous judgments of the Samoan courts have followed this as the basis for damages awards in motor vehicle accident cases. One such case is that cited by plaintiffs counsel, Duffy v Young [2002] WSSC 16 wherein the learned Chief Justice observed:

"The normal measure of damages for such a claim is the reasonable cost of repairs."

Here however the plaintiff claims the cost of brand new parts for a 21 year old vehicle. While a person who has suffered loss should recover for that loss, the principle means that he should recover or only be compensated for that which he actually lost, nothing more. There is no justification in allowing a plaintiff to profit from his loss. Neither can it be said that allowing the cost of brand new parts amounts to "the reasonable cost of repairs."

How then can the plaintiffs loss be properly quantified? The evidence of the defendants mechanic, who is also the good friend of the plaintiffs son Paulo and who was willing to give Paulo a discount for repairing the plaintiffs vehicle, was that second-hand parts can be scourced in Samoa for the plaintiffs vehicle. He gave as approximate costs the following:

The mechanic is experienced in his field and while he is not a second hand parts dealer, I am satisfied mechanics in this country such as Faafetai have a generally good and sound working knowledge of the availability of second hand parts, where to obtain them and at what price. It is as Faafetai noted in his evidence an essential part of their trade given our local conditions. In accordance with the principles referred to above I am of the view these amounts more properly represent what the plaintiff should recover.

Grill	I accept this was damaged beyond repair. Sum of $300 allowed.
Radiator	Based on the affidavit and oral evidence, it appears there are still ongoing problems with the defendants radiator, which the defendant did not consent to the plaintiff using in any event. However the plaintiffs evidence was that he had paid $300 for a second hand radiator for the vehicle pre-accident. Claim allowed but only in the sum of $300.
Front bumper	The mechanics evidence which I prefer where it is in conflict with the other evidence is this was fixed and all that remained was prepping and painting. I take this to refer to not only the bumper but also to the panels of the right front side which is where he says most of the damage was concentrated. Prepping would be part of the labour cost so $150 is allowed for paint and associated materials.
Windscreen	Given the age of the vehicle and the other damage caused by the impact, I accept the crack to the windscreen was exacerbated by the accident. The mechanics evidence to the contrary is on this one issue suspect as there is no reason why he would be particularly observant of cracks in the windscreen of the plaintiffs car. Claim allowed in the sum of $600.
Parking Lights	The evidence of the mechanic is impact damage was mainly to the front right side. Further that only a replacement light for the right front side is required. Claim of $91 allowed.

To this figure must be added an allowance for labour costs. As per the mechanics evidence, this is fixed at $600 being the discounted cost of repairs of his mates fathers pickup.

And from this figure should be deducted the $200 already paid by the defendant to the plaintiff leaving a revised total of $1,841, a figure which is close to the plaintiffs original estimate of his damage.

This has been raised by the defendant in answer to the plaintiffs claim for $39,000 for alternative transportation.

It is quite rightly raised because the law is clear and has been so since the locus classicus of Viscount Haldance LC in British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Rail Co. of London Ltd. [1912] UKLawRpAC 43; [1912] AC 673,689 (HL):

"The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps."

This was stated by Chief Justice Sapolu in Luteru v Accident Compensation Board [2003] WSSC 7 in the following way:

"It is the fundamental principle of the law of damages that a plaintiff should be restored as far as money can do to the same position he was in before the wrong was committed. But that fundamental principle is qualified by another which imposes on the plaintiff the duty of taking all reasonable steps to mitigate the loss consequent upon the commission of the wrong by the defendant and debars the plaintiff from recovering any part of the damage which is due to his neglect to take such steps."

It is to be noted that the plaintiff is not required to do anything more than what is "reasonable" in the circumstances; and in assessing whether this has been done the court will have regard to all the circumstances of the particular case: Clearlite Holdings Ltd v Auckland City Corporation [1976] 2 NLR 729.

The indisputable evidence in this case is that the plaintiff did nothing from March 2003 when the accident happened until May 2005 when the current proceedings were filed, to repair his vehicle or to otherwise try and mitigate his loss. He did not contact or seek out the defendant and only pursued criminal charges in November 2004 some 20 months post accident. What he did do according to the evidence was to religiously spend $30 to $50 per day six (6) days a week on taxis and pickups; perhaps he has not heard of that most common form of transport, the motor omnibus.

He is an astute businessman who according to his own evidence was earning an average of $1,000 per week from his market stall which he used for transport and to maintain his family. Again according to his own testimony, he was able to save about $200 per week by Saturday, $100 of which he then used on Sunday for his taulaga, transport to church and Sunday toona’i. That left him with about $100 a week excess of income. His suggestion that he had no means or funds to effect repair of his vehicle cannot stand up in the face of his own figures. It is quite clear that he chose not to do anything about repairing his vehicle being content to await payment by the defendant which proved not to be forthcoming. Of this the court in Duffy v Young supra said:

"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."

The plaintiff is entitled to some compensation for consequential loss but given the mechanics evidence that the car could have been fixed very quickly and was in fact well on the way to being fixed when the plaintiff withdrew it, he should not receive in my assessment any more than one at the most two weeks cost of alternative transport. I will award two weeks to allow for scourcing of parts and final repairs thus giving him under this head of damage by his own calculations somewhere between $400 and $640, which I fix midway at $500. His claim for $39,000 is pie in the sky stuff given his gross inaction and unwillingness to take reasonable and available steps to mitigate his loss. If anything he has contributed to his own misfortune.

The plaintiff has had to resort to court proceedings in order for the defendant to meet a liablility and obligation that he well knew was his. He admitted as much to the Police (paragraph 13 of his affidavit) and to the court. He should have made better efforts to meet these responsibilities. The plaintiff is entitled to costs but as he was only partially successful he should only receive partial costs, which I fix at $1,000 plus GST and disbursements as approved by the Registrar.

Repair costs:	$1,841.00
Consequential losses	$ 500.00
Legal costs:	$1,000.00 plus GST and disbursements

	$3,341.00

Grill	$300
Radiator	$400 to $450
Bumper	$450 to $600
Windscreen	$500 to $600

Supreme Court of Samoa

Ausi v Isaako [2007] WSSC 38 (30 April 2007)