Samoa Fire and Emergency Service v Keil [2011] WSSC 118 (25 August 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

SAMOA FIRE AND EMERGENCY SERVICEE
a body corporate established pursuant to the Fire and Emergency Service Act 2007.
Plaintiff

AND:

GEWIN KEIL
male of Motootua and Taufusi, Businessman.
Defendant

Counsel: Ms K Drake for plaintiff
Mr D Clarke for defendant

Hearing: 09 June 2011
Decision: 25 August 2011

ORAL DECISION OF NELSON J

[1] The plaintiff is the owner of a 2006 left hand drive Toyota hilux double cap pickup registered as "Fire 02". At all material times it was driven by its duly authorized employee and driver Mr Kirkpatrick Ioapo who is no longer resident in Samoa. Inside the vehicle as a passenger in the front passenger seat thereof was the Principal Disaster Management Officer Ms Filomena Nelson of the Disaster Management Office of the Ministry of Natural Resources and Environment. The evidence showed that all the vehicles emergency and other operating lights were in good working order and condition at all relevant times.

[2] The defendant is the owner of a left hand drive Isuzu dump truck, registration number then of 17373. The facts briefly are that in the afternoon of 04 July 2008, Fire 02 responded to an emergency chemical spill at the old Coconut Oil Factory at Vaitele. The emergency consisted of potentially hazardous chemicals leaking out of corroded storage drums in the factory yard. The evidence of the plaintiffs Commissioner was that Mr Ioapo was on standby duty. The relevant passage is found on page 5 of the transcript of evidence where he was asked: "Can u explain on what capacity he was involved?" And his answer was: He that is Ioapo "was just a standby driver and he was asked that day to turn up with Filomena to get some pallets." He was therefore responsible for driving Ms Nelson to attend the scene of the spill. The Commissioners further evidence was that all drivers of emergency vehicles received proper training in driving the said vehicles and that included Mr Ioapo.

[3] Mr Ioapo is no longer in jurisdiction but the evidence of his passenger Ms Nelson was that they were on their way to the Yazaki compound to uplift the pallets. Upon which they could place the leaking drums for relocation. En-route the accident occurred involving the plaintiffs and the defendants vehicles. She said they had left the Coconut Oil yard and were proceeding seaward down Gasu Street headed for the Yazaki rear entrance. The day was sunny and road conditions were fine. But there was an element of urgency in their journey and in fact they had headed inland after leaving Yazaki in order to avoid the main west coast road traffic by taking a shortcut to the Yazaki compound. She said their vehicle was going downhill at an estimated speed of 30 to 40 miles per hour. But she could not say it was not in excess of 40 to 50 miles per hour as suggested to her in cross examination.

[4] However, she was clear that the emergency beacon lights or bar lights on top of Fire 02 were on. The switch for this light is according to the Commissioners evidence on the dash board just below the steering wheel. But he said that in day light sometimes, these flashing lights are insufficient warning to other road users. So there are other emergency lights that the vehicle was equipped with. The vehicle also has flashing headlights the switch for which is on the side of the steering column. As well as hazard lights the switch for which is just above the switch for the beacon or bar light. In addition as with all fire emergency vehicles it was equipped with a siren. He thought that was probably located in the bar on the roof top where the beacon lights are. It appeared from the evidence that this is activated independently of the beacon or bar lights.

[5] Ms Nelsons evidence was at this stage of the journey only the beacon lights on top of the vehicle had been switched on by Mr Ioapo. She said as they were coming down Gasu Street they saw the defendants truck in front of them. They maneuvered to overtake the vehicle as the roadway was clear and there was no on-coming traffic. She said that at a distance of about 10 meters away from the truck Ioapo then activated the siren, the hazard lights and honked his horn. And that they were surprised when without warning the truck turned to the left and collided with their vehicle causing their vehicle to spin around and face inland from whence they had come. The impact caused substantial damage to the vehicles right hand side panels and doors as evidenced by the photographs of the vehicle produced as Exhibit "P-2" for the plaintiff. The right rear tyre also sustained some damage. All of which cost $9,514.90 in repair costs which the plaintiff seeks by the current action to recover from the defendant together with $1,500 in general damages and the costs of the action. There is no dispute as to the amount of the repair costs although there is a contest as to whether the general damages should be awarded.

[6] Ms Nelson was firm in her denial that the defendants truck did not signal with his indicator his intention to turn left and was equally firm that the siren in their vehicle was engaged about 10 meters from the truck and that it remained on during the period of the accident and it was only disengaged post accident when they exited their now inland facing vehicle. She also said the truck showed no motion to brake or stop and she did not see at any time its brake lights come on.

[7] The defendants evidence was that he was carting loads of scoria from the premises of Ott Transport at Vaitele to his home. The accident occurred at the entrance to the Ott Transport compound. Because he was carting loads the tailgate of his truck was up and he therefore could not see immediately behind the truck except through a narrow grill located behind the cab. In this regard he referred to photographs of the truck exhibited as Exhibit "D-1" for the defence.

[8] He said he came down Gasu Street and slowed down preparing to turn into the Ott Transport compound. He checked his side mirrors and saw no vehicle behind him. He put on his indicator and began his left turn. He was shocked by a loud bang as the pickup hit the left side of his truck. It is to be noted that this accident occurred prior to the famous or the infamous road switch depending on which way you look at it. So that his vehicle was on its proper side of the road namely the right side of the road engaging a left turn across the oncoming lane of traffic which was clear into the Ott Transport compound.

[9] The impact of the vehicle caused the pickup to skid around the front of his truck and it ended up facing toward the inland direction. He said his truck at the time was almost brand new and everything in it was in good working order and condition. He was adamant that he did not hear any siren or honking of a horn from the plaintiffs pickup before or after the impact. His also said his hearing and eye sight is fine and that he was an experienced truck driver.

[10] The defendant called two eye witnesses in support of his testimony. The first was one Petelo Lavatai who works in the yard next to the Ott Transport compound and who was walking back from having lunch further up Gasu Street. He said he was on the left side of the road namely the airport and was heading seaward. When he was about three metres from the turn into the Ott Transport yard which is also the turn into the yard that he works in, he heard a siren, turned back and saw the defendants truck with its indicator on turning into their yard. He stopped to give the truck room when the fire vehicle overtook the truck and hit the front bumper of the truck. He said that the truck by this time was into its turn and was half way across the oncoming lane of traffic. He heard the siren but said the siren was only on for about one second and as he demonstrated to the court the sound can be more accurately described as a "blurb" rather than a continuous "wail" of the siren. He said he heard no horn but confirmed that the top lights of the vehicle were flashing. He confirmed his evidence in cross examination and added that he remembered the incident quite clearly despite the passage of time because he could have been the one to get hurt if he did not stop and give way. He also expressed the view the fire pickup was travelling fast when it hit the turning truck.

[11] The second eye witness was Mr Harima Lesatele an employee of Ott Transport. He was taking a smoko break sitting on the top of the crusher hopper in their yard facing the road when this accident occurred. He was some distance from the accident scene but confirmed that the truck had its indicator on and was about to turn in when the pick up suddenly crossed its path. He also said the pickup was travelling at speed when it collided with the truck. He did not see the pickup lights on but he heard the sound of its horn only at the last minute prior to impact. Given the distance this witness was from the accident scene, where there are differences in their evidence I prefer the evidence of the closer to the accident scene Mr Petelo Lavatai.

[12] The preponderance of evidence favours the defendants account of the accident. His eye witnesses were independent and were in positions with a clear view as to the events unfolding before them. I am satisfied that what occurred was this. The plaintiffs vehicle was speeding downhill on Gasu Street in a effort to get to the Yazaki compound expeditiously to uplift the pallets to be used to transport the leaking corroded coconut oil mill drums to a safe location. The flashing beacon lights on top of Fire 02 were on but the siren and its front and hazard lights were not. The vehicle would have gathered speed coming down Gasu Street which is where a very substantial hill is located. The plaintiffs vehicle would have entered Gasu Street at the bottom half of the hill and then continued on down a moderately sloping seawards incline.

[13] The plaintiffs driver from that position would have seen the defendants truck as there was no other traffic in the vicinity. He possibly thought the truck was not going to turn but a reasonable and prudent driver of an emergency vehicle travelling at speed in such circumstances would have activated all his warning signals - front headlights, hazard lights and more especially turn on his siren to emit a continuous wail to notify the truck and any other road users of his intent to overtake the truck. These signals should have been activated well before he closed in on the truck and not 10 meters from it when he was at that time according to the evidence of his own witness travelling at least 30 to 40 miles per hour. Which equates to roughly 16 to 20 meters per second. At such a speed extremely quick reactions are needed.

[14] I am also not convinced by Ms Nelsons oral evidence as to the point the plaintiffs vehicle warning signals were activated. Because her written report to the plaintiffs Commissioner less than one week after the accident produced as Exhibit "P-1" for the plaintiff says the signals were only given "as we overtook the truck". This suggests they were activated only when the overtaking maneuver had commenced and not from 10 metres behind the truck. And unlike her oral evidence, that report makes no mention of hazard lights being on, only the beacon lights on top of the vehicle. I am more inclined to the view that the report more accurately reflects what happened and how this accident unfolded. That account is consistent with the evidence of the two eye witnesses.

[15] I am also satisfied from the evidence that the truck was signaling to turn left and was committed to its turn when the plaintiffs vehicle overtook . Either the plaintiffs driver failed to see the truck indicator or he saw it too late by which time he too was committed to his overtaking maneuver. His attempt to alert the defendant by a blurb of the siren and honking of the horn most probably all came too late to avoid the inevitable. The plaintiffs driver was negligent in this manner of operation of his vehicle given all these circumstances and I am of the view he also failed to keep a reasonable and proper look out. This probably also explains why the defendant was not charged by the police even though the matter was reported to them by the Fire Commissioner. I have no doubt that if they determined that a private citizen was to blame for an accident involving a fire services vehicle that private citizen would have had action taken against him. I do not accept the plaintiffs Commissioners evidence that he cannot recall what happened in this regard given that it involved one of their emergency vehicles.

[16] The plaintiff sought to produce into evidence pursuant to section 27 of the Evidence Ordinance 1961 the written report of its driver Mr Ioapo which contains his account of what occurred. At the trial this was objected to by defence counsel and I reserved the point for consideration in the final ruling. Section 27 provides as follows:

"Documentary evidence in civil cases – (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say:

(a) If the maker of the statement either:

• (i) Had personal knowledge of the matters dealt with by the statement; or
  
• (ii) Where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and
  

(b) If the maker of the statement is called as a witness in the proceedings:

PROVIDED THAT the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success."

[17] I have come to the conclusion the application must be disallowed. Section 27 is a most curious provision. It is based on section 3 of the Evidence Amendment Act 1945 New Zealand but with two very significant omissions. Firstly unlike its New Zealand counterpart there is no equivalent to section 3(3) which negatives the admission of any statement made by a person interested when proceedings are pending or anticipated and where such proceedings involve a dispute as to any fact which the statement might tend to establish. One would think such a rider essential otherwise section 27 can be used as a means to avoid calling a material witness such as in this case the plaintiffs driver and having his evidence tested by cross examination where the material witness is in the terms of the section 27 (b) proviso:

"if the maker of the statement is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success."

[18] The nett effect would be that in certain circumstances section 27 could be used to circumvent cross examination of a material witness which in the ordinary course of events would be required as part of the principles and approach to the conduct of a fair trial. The section can possibly operate unconstitutionally by infringing the article 9 fair trial requirement. As observed by the New Zealand Court of Appeal in R v Metcalf 24 June 2006:

" Fair trial considerations and the right of an accused to examine prosecuting witnesses assured by the New Zealand Bill of Rights are highly relevant in assessing whether reasonably practical step have been taken to obtain the evidence.

Reference can also be had to R v Gummer (NZDC) 27 October 2011. Both are cases on the current New Zealand equivalent of section 27. See also R v Bell (NZDC) 17 April 2008."

[19] However as the constitutional implications of the section were not explored by counsel, I do not make that ruling preferring to save that matter for another trial another day. Save to observe that the unfairness of the operation of the section would be exacerbated exponentially by the cruciality of the witnesses testimony to the central issues of aparticular proceeding. In this case there is no doubt the evidence of the plaintiffs driver is not only material but most essential to its case before the court.

[20] The second omission in section 27 is the absence of an equivalent to sub-section 3 (5) of its New Zealand counterpart which allows the court to reject such a statement "if for any reason it appears to be inexpedient in the interests of justice that the statement should be admitted." The witness in this case was available at previous callings of this matter but no effort was made by the plaintiff to depose him when it became apparent he was leaving for overseas before the pending trial. The consequences of this failure must fall squarely upon the head of the plaintiff and it would in my respectful view not be in the interests of justice to admit the statement of such a witness at a subsequent trial.

[21] Apart from all this the New Zealand counterpart on which our section is based has been criticised by various commentators. Some of these criticisms are referred to in the judgment cited to the court by counsel in Union Steamship Company Ltd of New Zealand v Wenlock [1959] NZLR 173, 188 a case where the identity of the person interested in the matter before the court whose report was sought to be produced was critical.

[22] There may well be cases where the admission of the report of an absent material witness may be justifiable. Either because it is not reasonable or practical to secure his attendance or because it has not been possible to track him down overseas. I would not however class the present case in that category as the witness was available in-country for a substantial period of time pre-trial and was not deposed by the plaintiff prior to his departure. I would in any event refuse admission of the statement because it would not be in the interests of justice or in the interests of a fair trial given the circumstances of the matter. For this reason the plaintiffs application to admit the statement of its driver under section 27 must be refused.

[23] All in all the plaintiff has failed to establish a case in negligence against the defendant. Its claim must be dismissed. Costs normally follow the event and I fix reasonable costs in this matter at $3,500 plus witness expenses and any other reasonable disbursements that are approved by the Registrar.

............................
JUSTICE NELSON