Okesene v Rossi [2010] WSSC 92 (14 May 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

O/S. 1282/07

IN THE MATTER: of an Appeal pursuant to Section 70 of the District Court Act 1969

BETWEEN:

ATIGA OKESENE of Siumu, Farmer.
Appellant

AND:

GIOVANNI ROSSI of Vailele, Restauranteur
Respondent

Counsels: Mr R. Schuster for the appellant
Ms K Drake for the respondent

Judgment: 14 May 2010

JUDGMENT OF NELSON J.

[1] This is an appeal from the District Court against a written decision of Vaai, DCJ dated 19 June 2008 finding the appellant liable for damage caused to the respondents vehicle by one of the appellants cows wandering on to the main road at night. Section 70(a) of the District Courts Act 1969 allows appeals as of right when the amount involved exceeds $1,000.00. The claim here is for special damages of $6,815.05 and general damages of $1,500.00 plus costs.

[2] There was some dispute initially about whether the appeal had been filed within the time limit prescribed by section 72(1) of the District Courts Act but at the hearing the respondent conceded that affidavits filed by court staff indicated it was lodged within the prescribed time.

[3] The respondents written submissions also raised the matter of non-payment of security for costs as required by section 72(2) but counsel did not pursue this at the hearing and the court has received no notice from the Registrar under section 72(3) that such security has not been paid. I will therefore treat that matter as also resolved.

[4] The respondent has cross appealed seeking costs as the learned District Court judge declined to award these and also for general damages being the cost of alternative transport for the respondent while his vehicle was undergoing repair. This will be dealt with after I deal with the substance of the appeal.

[5] The facts as found by the District Court essentially were that on the night of 5 April 2007 at around 11pm while the respondent was driving from Siumu where he works to Apia where he lives, a cow suddenly crossed his path on the road. The relevant part of the courts judgment reads:

"Fifteen minutes out of Siumu before he reached Tiavi, he had an accident. His car ran into a cow on a gradually rising and straight stretch of road. He had just descended a slope on the road and was about to ascend another when the accident happened. In his evidence the plaintiff said that the road from his view in the beam of his car lights was clear. He was driving on second gear. He said he is a careful driver. There are no street lights at the scene of the accident. He said he was driving along when he saw sudden movement in front of his car. He realized in an instant it was a cow. It appeared to be moving on to the road crossing it from left to right. He could not stop his car in the time from when he realized what it was, and the time of impact. Inevitably his car hit the cow head on and almost immediately came to a complete stop a couple of seconds later. He said he was shocked. When he recovered a little while later, he got out of the car. Immediately lying in front of it on the middle of the road was the injured cow. It was still alive and appeared to have seriously injured one of its legs. The front of the plaintiff's vehicle suffered extensive damage especially on the driver's side. He said he could have been seriously injured from the collision himself but for the fortunate fact he was wearing his seat belt at the time. He looked for help but there was no one around or any other vehicles about. He turned on the car's emergency lights to forewarn other motorists. He then contacted by phone his employer at Siumu for assistance. When help arrived later that night he drove his car back to Siumu where it remained until it was driven for repairs at Hyundai Automotive at Vaigaga, a few days later. The total cost of repairing the damage to the car came to $6,815.05".

[6] Appellants counsel has invited the court to review some of the trial judges findings of fact on the basis that the inferences drawn by the judge had no reasonable or proper evidentiary foundation. This point can be conveniently dealt with at the outset.

[7] As recently stated by the Court of Appeal in Stanley v Vito [2010] WSCA 2:

"an appellate court will not interfere with credibility findings at first instance unless there are special reasons for doing so. No such special reasons have been advanced in the present case"

This restates the general law which is usefully summarized in the following passage from Cross 7th NZ edition page 130:

"The Court of Appeal will naturally be loath to disturb a finding of fact by the trial Judge, who has had the advantage of observing the demeanour of the witnesses, "their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial" (per Lord Macmillan in Watt v Thomas [1947] AC 484, 490). When the conclusion reached involves an estimate by the Judge of the quality or nature of evidence given by witnesses he or she has seen or heard, the burden on an appellant is to show that the Judge failed to use, or palpably misused, his or her advantage. The appellant must point to incontrovertible facts wholly inconsistent with the finding, or show that the finding was patently improbable (Williams v Kirk [1987] NZCA 132; [1988] 1 NZLR 452 and Hutton v Palmer [1990] 2 NZLR 260 both decisions of the Court of Appeal) or that "some palpable and overriding error" affected the Judge's assessment of the facts (Schwartz v R (1996) 133 DLR (4th) 289, 306 – Canadian Supreme Court.). The appellate Court must be satisfied that the Judge's finding was plainly wrong" (Rae v International Insurance Brokers [1998] 3 NZLR 190).

[8] These indicate that the threshold the appellant must meet is quite high. And in my respectful opinion there are no reasons in this case which would justify this court modifying or reversing the trial judges findings of fact. There is nothing to suggest he was plainly wrong or that his findings were patently improbable or were in clear error.

[9] Two other factors also operate against the appellants argument. Firstly, the appellants own photographs show the respondent was coming off a blind curve, this accident having occurred when vehicles were still driving on the right side of the road and while his vehicle which is a smallish type vehicle that sits very low on the road was descending or had just completed descending a slope in the road and was about to ascend the other side thereof. These factors are supportive of the respondents account of the accident. Secondly, there is no transcript of the trial evidence before this court neither has one been made available from the file. I can only conclude from that the evidence was not as it should have been, recorded and transcribed. There would then be a record of the testimony against which the trial judges conclusions could be tested. As a matter of practice the District Court should in appropriate cases especially those involving counsels at least record the evidence for transcription purposes and transcribe it should counsels so request or should the matter as here proceed on appeal.

[10] I am for these reasons not satisfied there is any basis for interfering with the factual findings of the learned trial judge and insofar as they are relevant, these will be adopted as the findings of fact for this matter. Likewise there has been no basis demonstrated for questioning the inferences drawn by the trial judge from the facts and these too insofar as they are relevant will be accepted for present purposes.

[11] Subject however to one modification: the appellants photographs produced into evidence show the state of the fences on both sides of the road in question. Accepting the respondents evidence that the soon to be deceased cow crossed the road from the respondents left to his right, this being consistent with his evidence as to damage to the left side of his vehicle and the fact of the impact occurring on the right side of the road resulting in the cow lying injured on the right side where it was discovered by the appellant the next day, the photographs show that the appellants fence and property was therefore situated on the left side of the road if travelling from Siumu which is the direction of photos A-F. Those photos clearly show the fence is not a proper cattle fence but a 2 possibly 3 strand barbed wire "gatae-type" fence, an inferior but traditional way of enclosing cattle in this jurisdiction. I will return to this aspect later in the judgment.

[12] The core of the appeal is the appellants argument that the learned trial judge erred in law by finding that the common law rule in Searle v Wallbank [1947] AC 341 (HL) that an owner or occupier of land adjacent to a highway had no legal obligation to highway users to maintain his hedges and gates so as to prevent his animals from straying on to the highway, was not applicable to Samoa because of sections 5 and 8 of the Animals Ordinance 1960 and sections 3(x) and 3(y) of the Police Offences Ordinance 1961. Furthermore that His Honour erred in finding that the appellant owed the respondent a duty to take reasonable care to prevent his stock from straying on to the highway and causing damage to the respondents vehicle.

[13] In relation to the first argument, the appellant submitted that the traditional common law rule enunciated in Searle v Wallbank applied in Samoa by virtue of articles 114 and 111(1) of the Constitution, the combined effect of which is to extend to Samoa the application of principles of English common law and equity insofar as they are not excluded by local law or custom. Article 114 relevantly provides:

"114. Existing law to continue – Subject to the provisions of this Constitution:

(a) The existing law shall, until repealed by Act, continue in force on and after Independence Day;

(b) All rights, obligations and liabilities arising under the existing law shall continue to exist on and after Independence Day and shall be recognized, exercised and enforced accordingly"

And by virtue of article 111(1):

" 'existing law' means any law in force in Samoa or any part thereof immediately before Independence Day;

and 'law' means law being in force in Samoa; and includes this Constitution, any Act of Parliament and any proclamation, regulation, order, by-law or other act of authority made thereunder, the English common law and equity for the time being in so far as they are not excluded by any other law in force in Samoa, and any custom or usage which has acquired the force of law in Samoa or any part thereof under the provisions of any Act or under a judgment of a Court of competent jurisdiction."

[14] The appellant argues these provisions means Searle v Wallbank is part of the law of this country and it has not been "excluded by any other law in force in Samoa". He disputes that sections 5 and 8 of the Animals Ordinance and 3(x) and 3(y) of the Police Offences Ordinance have modified that common law rule and points to Ross v McCarthy [1970] NZLR 449, a decision of the New Zealand Court of Appeal where an argument to that effect on equivalent New Zealand provisions was rejected. He submits the abrogation of any common law principle is rightfully the province of Parliament and it has not done so by enacting the local provisions referred to above. And he cautions against the court concluding otherwise after "hearing only two litigants without representations from the general body of the community who will be vitally affected" (per Turner J. in McCarthy) and argues against the court embarking upon what would be judicial lawmaking. He reminds the court of what McCarthy J said in McCarthy (presumably no relation):

"If any change is to be made it should be effected by the Legislature."

[15] The appellant concedes Parliament did subsequently intervene in both jurisdictions and pass legislation which had the effect in England of abolishing the rule in Searle v Wallbank and in New Zealand of severely watering down its effects, but argues that the absence of such specific intervention in Samoa means the traditional common law rule continues to apply. Notwithstanding these measures and the unpopularity of the rule which has been widely criticized (see generally Todds Law of Torts in NZ (3rd ed) at paragraph 5.10.2) and the fact that this House of Lords decision has not been followed in Scotland or in Canada and its effect has been abolished in many Australian states.

[16] In relation to the second limb of the appeal that the appellant owed a duty of care to the respondent to ensure his animals did not stray on to the highway and damage vehicles, the appellant submitted the respondent failed to prove there was a duty of care owed or that it had been breached. He says there was no evidence the appellants fence was inadequate or that the appellant was aware of roaming animals or should have been aware the particular animal in question had a propensity to roam. The appellant also questioned certain conclusions of the trial judge in relation to the evidence but as observed earlier, I accept the findings of fact made by the learned trial judge.

[17] The appellant also addressed the issue of res ipsa loquitor but as will be seen later this need not be examined further and his argument as to contributory negligence on the part of the respondent fails at the outset because the trial judge did not accept the factual basis of his claim for contributory negligence. This part was dealt with on page 4 of the judgment in the 2nd, 3rd and 4th paragraphs.

[18] All the aforesaid arguments were raised in the lower court where the respondent argued in favour of a general as well as specific duty of care owed by the appellant to road users. Respondents counsel reiterated those arguments in this court submitting that the District Court correctly applied the relevant legal principles and she also argued that Searle v Wallbank was no longer part of the law of Samoa as it had been by legislative reform abolished in the United Kingdom. The argument seems to be that because it is no longer part of the law of that country, it should therefore not be part of the law of this country.

[19] With due respect to counsels argument that is a misconstruction because what applies in this country by virtue of articles 114 and 111(1) is English common law and equity not English statute law. Searle v Wallbank is part of the English common law. Furthermore, what applies in Samoa is not the current English common law, it is English common law and equity as at Independence Day because the phrase "existing law" is defined in the Constitution as the law in force in Samoa "immediately before Independence Day". As such the common law that applies in this country is the common law of England as it existed at 1 January 1962 and not any subsequent time. Statutes passed in that country after that date do not have automatic application to Samoa by virtue of article 114 unless of course they are specifically applied to this jurisdiction by Parliamentary action.

[20] The framers of the Constitution obviously understood that our law as a newly independent nation would not be comprehensive and cover every situation. To fill any vacuum they provided for English common law and equity to apply until such time as local law could be brought to bear on the matter. As explained by Dr. Aikman as constitutional advisor to the 1960 Constitutional Convention Debates (see Part III Constitutional Convention Debates (Samoan Language) 01 October 1960 – 28 October 1960 at page 1252) when speaking about article 111 and the definition of "law":

"Article 111, definition of the word 'law' – you haven't got enough law to cover all the kinds of situations which will arise. You need some sort of reservoir of law when you strike a new and unusual case. Now the reservoir to which you will have to go in Samoa for many years to come, is going to continue to be the Common Law and equity as those have been developed particularly in the Courts in England.... This particular definition of law has a most fundamental importance from the point of view of the future law of Western Samoa and therefore, I felt that it was my duty to explain it to you in the detail I have used."

An explanation which was obviously understood by all as the Debates show the only queries raised were as to other aspects of article 111(1).

[21] Thus if Searle v Wallbank is held not to be part of the law of this country, it is not because it has been abolished in the United Kingdom but because our Parliament has decreed it to be so. And thus it is that principles of English common law and equity continue to be applied by the courts of this jurisdiction. There are many examples of this in our case law and this will continue until the particular law or principle at hand is excluded or modified or otherwise dealt with by Parliament.

[22] Which leads to the main question in this appeal, is Searle v Wallbank still part of the law of this country? There is no doubt that as at Independence day the principles espoused in that case formed part of the common law of England and therefore became part of the existing law of this jurisdiction by virtue of articles 114 and 111(1) of the Constitution. That much is clear. What is also clear is there has been no specific legislation passed imposing on owners of property adjacent to a main roadway an obligation to ensure their animals do not wander on to the roadway and harm road users or any law passed imposing on them a duty to take reasonable care that their animals do not so stray. The question is whether sections 5 and 8 of the Animals Ordinance and 3(x) and 3(y) of the Police Offences Ordinance have in their operation or by implication altered the existing law?

[23] In the lower court the learned judge found that it did. Sections 5 and 8 relevantly provide as follows:

"5. Impounding of cattle – (1) any person may impound any cattle which at any time of the day or night are found:

(a) Wandering at large in any public road or other place of public resort;

(b) Wandering or otherwise trespassing on the land of such person or land in his occupation or control, or land in the occupation or control of his principal or master.

8. Lien for damages – (1) Any occupier of land who impounds cattle found wandering or otherwise trespassing on such land and who has suffered damage by reason of such trespass shall acquire thereby a lien on such cattle for the amount of damages and costs which may be awarded by the (Magistrate's) Court in an action commenced for that purpose.
   

(2) The lien acquired under the last preseding subsection hereof shall lapse if the occupier of the land trespassed upon:

• (a) Fails to give written notice to the poundkeeper to whom he delivered the cattle within 24 hours from the time the cattle were so delivered of his intention to claim a lien;
  
• (b) Fails to commence an action in the (Magistrate's) Court to recover damages in respect of such trespass within 7 days from the time the cattle were so delivered or within such further period as the Court may allow upon an application made to it within the said period of 7 days."
  

And 3(x) and 3(y) relevantly provide as follows:

"3. Offences against public cleanliness and convenience - Every person commits an offence and is liable to a fine of up to $50 who:

(x) Permits any horse, bull, cow, pig or other animal to be tethered whether the same be tethered on private property or otherwise, in such a manner that the animal so tethered is enabled to encroach on any public road or public place; or

(y) Permits any horse, sheep, pig, goat, or cattle to wander or be at large in any public place or to trespass upon any land."

His Honour opined at page 9 of his judgment:

"The combined effect of the above sections is to place a legal obligation on the owner of any cattle not to allow it to wander on to any public place notwithstanding whether it is kept on land adjoining a highway or not, or whether it is tethered on private property or not, or whether such cattle is kept in a fence or otherwise."

And accordingly he found Searle v Wallbank had been modified by these legislative provisions to the extent that it no longer was law in Samoa. This had the added effect of reconciling the dichotomous approach of the common law which was to recognize a right of action for cattle trespassing on to ones land but not where cattle wandered on to a public highway.

[24] I am attracted to the reasoning of the learned judge but cannot agree with it. I accept the expression "law in force in Samoa" in the definition of "law" under article 111(1) includes statute law but do not agree that the provisions the learned judge referred to amount to a statutory exclusion of the Searle v Wallbank rule. I share the view expressed by North, P concerning this argument in McCarthy notwithstanding the eminency of the propounder of the argument:

"Then Mr Baragawanath finally submitted that the fact that the Impounding Act 1955 sections 33 and 34 and the Police Offences Act 1927 section 4(1) contained provisions which showed that the Legislature recognized the danger of wandering stock on roads was a matter of importance. Well, that may be so; no doubt the Legislature did think it desirable to create in the one case an impounding provision and in the other case an offence to try to reduce such happenings in the interests of users of the highway, but that is quite a different matter and does not, in my opinion, provide any justification for altering the law as to the legal duty of occupiers of properties adjoining the highway. I conclude then that Mr Baraqwanath's second submission, too, must be rejected."

[25] It is also to be noted that the only provision in the Animals Ordinance that deals with cattle straying on to a public road is section 5(1)(a) as the other provisions of the legislation relate to cattle wandering on to private lands. This is an important distinction and means that the conclusions of the learned judge are based only on section 5(1)(a) and sections 3(x) and 3(y) of the Police Offences Ordinance.

[26] I cannot agree that those provisions are clear enough to warrant a conclusion that Parliament thereby intended to exclude the common law immunity from suit of owners of properties adjoining public roads. Searle v Wallbank therefore in my respectful opinion remains part of the common law of Samoa. Section 12 of the Animals Ordinance that was also cited by the learned judge does not add anything to the argument. That merely preserves the common law rights of persons damaged by wandering cattle and as there is no common law right to sue a property owner adjoining a public highway for damages by virtue of the decision in Searle v Wallbank, section 12 has no application. The section is geared towards cattle trespassing onto neighbouring properties, cases which traditionally are a category in which the common law has always allowed actions to recover damages. An early example of this sort of case is MacDonald v Ululoloa Dairy Co. Ltd [1950-1959] WSLR 31, a decision of Chief Justice Marsack.

[27] However having said all that, that is not the end of the matter. The second basis upon which the learned judge founded liability was the tort of negligence. He found that the appellant as owner of a property adjoining a public road owed a duty to users of the road such as the respondent to ensure that reasonable care was taken to prevent his animals straying on to the road and causing damage. While no authority was cited by the judge this must have been based on the general duty of care championed by Donoghue v Stevenson [1932] AC 562 and the premise often stated that the categories of negligence are never closed. The duty here would be to exercise reasonable care to avoid an act or omission which would be likely in the view of the reasonable and prudent man to injure my neighbour and the answer to the question "who is my neighbour" would be those persons likely to be affected by my actions. In this case it would be those reasonably expected to make use of the road.

[28] In Searle v Wallbank the House of Lords rejected the suggestion that a duty of care was owed to road users by adjoining property owners. But Donoghue v Stevenson and the neighbour principle are very much also a part of the English common law and were imported into our law by articles 114 and 111(1) of the Constitution. And the notions and conditions that led the House of Lords in 1947 to decide in Searle v Wallbank that no duty of care arose in such cases in my respectful view no longer prevail. While it may have been correct. to say at that time that "Obviously road users cannot expect to have roads kept clear of animals" and that "It is obvious that the roadside owner who puts up no fence would not be under any duty to passers by on the roads as regards horses and cattle", in this 21st century the converse would be true. While in 1947 it would have been true to say "No one supposes that cattle and horses can be driven to market except on a road", the advent of heavy transportation and motorways in England such as the 'M-1' paints a completely different picture. Cattle on the road may have been the norm of yesteryear but these are not the days of yesteryear. Today I would venture to suggest a different result would be reached were the House to consider a case such as Searle v Wallbank.

[29] Whatever the case may be and notwithstanding their Lordships careful reasoning it is my humble opinion that what was decided in Searle v Wallbank is in conflict with the application of the ordinary principles of negligence as laid down by Donoghue v Stevenson and subsequent cases. And as these both form part of the common law of England and therefore the common law of this country, it is open to the courts of this country to decide which line of authority is to be preferred.

[30] In Olo v Police [1992] WSSC 1 (but which I believe was decided in 1980 or thereabouts) Chief Justice St. John said:

"The English common law as applied to Western Samoa is as declared by the courts. The only decisions absolutely binding on this Supreme Court are those of the Court of Appeal of Western Samoa. Decisions in superior courts of other countries are persuasive only. But obviously, where the courts of high reputation agree on the common law to be applied in particular circumstances, only a very bold judge would refuse to apply the same law in Western Samoa. In the case where inconsistent declarations have been made by courts of high reputations, it is for this court to determine which declaration is more sound as being consistent with established principle." (italics are mine)

For my part I am of the view that ordinary principles of negligence should be applied to cases such as the present one.

[31] Applying those principles and noting in particular:

1. the condition of the appellants fences as illustrated by his own photographs;
   
2. the proximity of those fences to the main highway that directly links Apia town to the south coast thus making the road an area of high traffic use by vehicles;
   
3. the fact that on his own evidence the cow in question was a "taanoa" that is a free range non-breeding animal being fattened specifically for the slaughterhouse and that is normally not tethered or confined to grazing in any particular area;
   

After giving these matters due consideration I agree with the conclusion reached by the trial judge that the appellant was in breach of his duty to take reasonable care that his stock and the particular animal in question would not escape the enclosure and wander onto the adjoining main road and cause damage to users thereof.

[32] The consequences of that breach were set by the trial judge at $6,815.00. There is no reason not to uphold that finding and judgment for the respondent in the sum of $6,815 in the lower court is confirmed. The appeal against that decision is dismissed. Having reached that conclusion there is no need to consider further the other arguments raised of res ipsa loquitor and the application of that doctrine.

[33] As to the respondents cross appeal on the question of the cost of alternative transport and the issue of costs: firstly, as to costs there is no reason not to follow the normal rule, costs should follow the event. Costs are awarded to the plaintiff in a sum to be determined. The proceedings are to be remitted back down to the lower court to fix the quantum of costs if they cannot be settled by agreement between counsels. Likewise the second issue of the costs of alternative transport is also further remitted back to the lower court for determination. Some allowance should be made for the respondents reasonable costs of alternative transport but during the repair period only. As to costs in this court the points of law involved in the case have been novel and important and I make no order as to costs in this court.

JUSTICE NELSON