Autui v Valoaga [2011] WSSC 42 (23 March 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

FARAIMO AUTIU
of Falelauniu, Apia, Mechanical Engineer and Businessman
Plaintiff

AND:

MIKAELE VALOAGA
of Leauva'a, Driver
First Defendant

AND:

TEVAGA PESETA VAIFOU
of Vaitele, Businessman
Second Defendant

AND

ALDAN CONSTRUCTION LTD,
a duly incorporated Company having its registered Office at aitele
Third Defendant

Counsel: L Tamati for plaintiff
R Faaiuaso for defendants

Hearing: 10 & 11 September 2009
Submissions: 25 September 2009
Judgment: 23 March 2011

JUDGMENT OF THE COURT

1. As a result of a traffic accident at Toamua on the 24th July 2006 involving the plaintiff's taxi and the second defendant's ten wheeler truck, the plaintiff's taxi was damaged and considered a write off. The plaintiff claims from the second defendant damages for the value of the written off taxi and for loss of earnings.
   

Plaintiff's Claim

2. In the afternoon of the 26th July 2006 the plaintiff's taxi was approaching the main road from the southerly direction along a dirt road intending to turn right at the main road to travel towards Apia. Vehicles were then travelling on the right hand side before the road switch in 2009. The taxi stopped by the main road and while it was stationary it was struck by the second defendant's truck travelling from Apia direction towards the west. At the time of the accident the second defendant's truck was overtaking a stationary truck facing west and stopping directly opposite the dirt road.
   
3. Driver of the stationary truck told the court that he intended to turn left into the dirt road where the plaintiff's taxi was coming and there were oncoming traffic as well which compelled him to stop. While his truck was stationary it was overtaken by the second defendant's which struck the left side of the taxi and ran over the bonnet of the taxi.
   
4. Photographs of the damaged taxi were produced. A photograph of the scene of the accident (taken before the trial hearing) was also produced. The mechanic who inspected the damaged taxi and did the valuation report was not called. But the plaintiff who is also a mechanic testified that he bought the vehicle in 2005 for US$2,900. It was a 1995 – 1996 model. With freight and duty it would have cost the plaintiff about $15,000 to land the vehicle in Samoa. He adopted the same figure as the pre-accident value of the taxi. He estimated the cost of the wreck to about $3,000.
   
5. As to loss of income the plaintiff claims $400 per week from the date of the accident to February 2009 when the statement of claim was filed totaling $46,000. He explains the delay in filing of his action was due to the inaction of the police in pursuing the plaintiff's complaint and also the unwillingness of two other counsels he consulted to instigate his claim.
   

The Defendant's Defence

6. The first defendant concedes he was driving the ten wheeler truck with a full load of scoria towards the Mulifanua wharf to catch the 4pm ferry. As he was overtaking the stationary truck at Toamua the plaintiff's taxi came onto the main road and struck the truck. He denies he struck the left front side of the taxi and he denies driving over the taxi bonnet. He denies there were vehicles coming from the opposite direction. He was not in a rush to the wharf as it was only about 1:30 when the accident happened.
   

Discussion

7. It is common ground that the real issue here is the question of negligence as the defendants also allege it was the plaintiff's taxi driver who was negligent when he entered the main road when it was not safe to do so resulting in the accident.
   
8. If the evidence of the plaintiff's driver gives the accurate account of how the plaintiff's taxi was hit by the truck, then one would expect the left front side of the taxi to be severely damaged and given the size and the load carried by the truck, the front end of the taxi should have been pushed towards the west when it was struck. But the oral and documentary evidence does not support such a finding. In the first place the photograph of the damaged taxi tends to support the defendant's contention that it was the taxi which drove into the side of the truck as the bonnet of the taxi appears to have been pushed backwards. The damage shown by the photograph does not portray a picture of a fast moving heavy vehicle striking an insignificant little vehicle at the side. There is also the oral testimony of the taxi driver that his taxi moved a few inches to the west after it was struck which is consistent with the taxi being driven into the heavy truck heading west.
   
9. The testimony of the driver of the stationary truck is also difficult to comprehend given the weight of the loaded truck. He could not have seen the truck going over the taxi as the moving truck was between him and the taxi thus obscuring his view, and if the moving loaded truck did climb over the bonnet of the taxi common sense would dictate that the front end of the taxi would have been crushed or at least severely damaged. The photos do not support the testimony. If vehicles were coming the opposite direction they would have to stop to avoid a head on collision with the second defendant's truck. No such evidence was given.
   
10. Counsel for the plaintiff has in her submissions unceremoniously criticised the police for not actioning the plaintiff's complaint and accusing the police of favouring the second defendant who was a former policeman and a man of influence which probably stifled the investigation of the traffic accident. Police investigation and any prosecution if any which may follow are totally independent and unrelated to any civil claim which the plaintiff may have wished to pursue. Indeed two solicitors were instructed but they were reluctant to proceed with the claim. Obviously the evidence was stacked against the plaintiff. The litany of lies given to the plaintiff by his taxi driver was contradicted by the photographs. He should have known better. After all, the taxi driver who was approaching the main road and intending to enter the main road was obligated by law to check the traffic going east and west and to ensure that it was safe for him to enter the road. He entered the main road when it was not safe to do so. He was negligent. As a consequence the plaintiff's claim must fail.
    

Result

(i) Judgment for the Defendants
(ii) Plaintiff to pay costs of $2,000.

_____________________

JUSTICE VAAI