Speaker of the Legislative Assembly of the Independent State of Samoa v Mackenzie [2013] WSSC 54 (26 July 2013)

SUPREME COURT OF SAMOA

Speaker of the Legislative Assembly of the Independent State of Samoa v Mackenzie [2013] WSSC 54

Case name:

Speaker of the Legislative Assembly of the Independent State of Samoa v Mackenzie

Citation: [2013] WSSC 54

Decision date: 26 July 2013
Parties:
SPEAKER OF THE LEGISLATIVE ASSEMBLY OF THE INDEPENDENT STATE OF SAMOA (Plaintiff) v RODERICK MACKENZIE of Pesega, Apia, Samoa. (First Defendant) and SIAOSI UINI of Letogo, Apia, Samoa.(Second Defendant)

Hearing date(s): 07 June 2013

File number(s): CP 90/12

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:
Representation:
K Drake for plaintiff
R Schuster for first and second defendants

Catchwords:

Words and phrases:
Legislation cited:
Legislative Assembly Powers and Privileges Ordinance 1960

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

CP 90/12

BETWEEN

SPEAKER OF THE LEGISLATIVE ASSEMBLY OF THE INDEPENDENT STATE OF SAMOA

Plaintiff

AND:

RODERICK MACKENZIE of Pesega, Apia, Samoa.

First Defendant

AND

SIAOSI UINI of Letogo, Apia, Samoa.

Second Defendant

Counsel: K Drake for plaintiff
R Schuster for first and second defendants

Hearing: 07 June 2013

Submissions: 28 June 2013

Decision: 26 July 2013

DECISION OF NELSON J

Background

1. The plaintiff claims it is the owner of a 2009 Toyota Hiace van, registration plate number 20214. At all material times it was driven by one, Oloano Sauni, an employee of the Office of the Legislative Assembly. He has been so employed for five years.
2. On the morning of 06 January 2011, he drove six senior employees of their office to a funeral at Lalomanu on the other side of Upolu Island. He said in his evidence it was the funeral of “le tuaa a leisi tamaitai” (father of a girl). Presumably he meant it was the funeral of the father of a female member of the Legislative Assembly staff as there would be no justification in one, let alone six, senior employees leaving their place of work during office hours to attend the funeral of the father of a non-staff member. Presumably too this little jaunt had the approval of the Public Service Commission as employer of Legislative Assembly personnel. Oloano identified his passengers as being the Clerk of the Legislative Assembly, the Assistant Clerk and other senior members of the staff. Quite a high powered delegation.
3. It was on the return journey somewhere between 1:00 p.m. and 2:00 p.m. in the afternoon that the vehicle became involved in an accident which has led to the present proceedings. The accident occurred at Eva on the main north coast road. The vehicle came upon the first defendants excavator operated by the second defendant clearing mudslide debris off the road. The plaintiff alleges the accident was caused by the negligence of the second defendant and his helper who waved the vehicle through whilst the excavator was still engaged in its work. The cab of the excavator struck the rear left side of the vehicle causing $6,600.00 worth of damage. The plaintiffs insurers have paid damage repair costs pursuant to a policy of indemnity and have brought this action as they are entitled to do under the doctrine of subrogation and according to them in the name of the policy holder.
4. The defendants dispute the allegation and say the accident was caused by the impatience of the plaintiffs driver who had been instructed by the helper to stop but nevertheless tried to squeeze his way past the excavator on the very narrow road. The defendants counterclaim for $2,400.00 in damage caused to the coolant system of the excavator and $10,000.00 loss of earnings while the excavator underwent repair. All parties also seek their legal costs.

The plaintiffs case:

5. The evidence of the van driver was that at Eva they came across an excavator clearing debris from a roadside mudslide. It had been raining heavily that morning. The machine was in mid-road facing Apia scooping material from the inland side and dumping it on the seaward side. Only one lane of traffic was available viz the seaward lane. Debris was being dumped seaward of the seaward lane and was turning the seaward part of the road into a muddy morass. A young boy of about 20 years of age was standing behind the machine in the plaintiffs lane directing traffic. Two cars were in front of him and the boy waved them all through. His vehicle did not stop and he followed the cars slowly over the very bad part of the road. His evidence in chief on page 4 of the transcript:

“Wit o le taimi a lea na matou omai ai, e lua taavale lea oute folo atu ai tua. Ma o lea la oute vaaia le tama lea faasino auala o la e talo mai e o atu. O lea oute tolotolo atu ai foi i le lauleaga lea o le auala lea, ae le’i tu la’u taavale. O le taimi a lea aua o lea e alu atu malie a a’o la e talo mai e o atu. O lea la oute folo atu ai i tua.”

6. As half of his vehicle passed the machine it suddenly swung and the body of the machine scraped the rear left side of the vehicle. It broke the left rear windows. He pulled the vehicle over and confronted the young boy who blamed the excavator driver. He questioned the driver but he blamed the young boy. None of the van occupants were injured and another departmental vehicle, a pick-up that was behind them, transported his passengers to the Apia police station where they made statements.
7. The driver denied the suggestion in cross-examination that the two cars preceding him had passed the machine by the time he arrived and that the boy had signaled him to stop. But he nevertheless kept going resulting in the machine resuming its work and striking the van.
8. It also emerged from the drivers testimony that the distance between the machine and the van pre-impact was very close. He estimated it to be from the witness box where he was testifying to the dock located less than 1 meter away. The words he used were “e pipii lava iai” (almost stuck to it), “e latalata i le masini” (close to the machine). He explained that was because the seaward side of the road had become very muddy and he did not want the van to become stuck (“ona o le mea le e oso atu ai taavale ua fai si palapala, o lea oute popole mo le se’e i le pito i tai”): page 14 of his evidence.
9. Surprisingly the passenger seated beside the driver in the front seat was not called. Instead the plaintiff called Fuimaono Fereti a senior executive officer of the Legislative Assembly. He was seated immediately behind the driver in the first of the rear seats of the vehicle on the window (or right) side of the seat. His evidence on page 19:

“Schuster o lea e te alala i le nofoa lea ei tua mai o le ave taavale a, i tua tonu lava o le avetaavale pito i le faamalama?

Wit o lea lava.”

As such his view would have been obstructed by the drivers headrest as well as the backrest of the front seat – see the Exhibit “P-1” photographs of the van.

10. Fuimaonos evidence was they came across the excavator working on clearing the road at Eva. There were two cars in front of them. The boy waved them through. The two cars cleared the machine. But as they went past the machine inexplicably turned and struck the rear part of their vehicle. They pulled over and the driver exited and talked to the machine driver and the young boy. He denied the suggestion that they were signaled to stop and said their vehicle was bumper to bumper with the vehicles preceding them. Neither he nor the Legislative Assembly Chief Executive Officer seated in the front of the vehicle got out and talked to the excavator driver or the signaler. He also confirmed the distance between their van and the machine was minimal. And if the body of the machine had not moved they would have negotiated the machine safely.
11. The Assistant Chief Executive Officers further evidence was that the van did not belong to the plaintiff but was the property of the Office of the Legislative Assembly. Page 23 of his evidence:

“HH o le van ale ofisa o fono.

Wit o le van a le ofisa o le fono.

HH ae le’o se van ale fofoga fetalai?

Wit ua ou leai atu.”

12. The remaining two witnesses for the plaintiff related to the cost of repair of the van damage which was not disputed by the defendants and the terms of the insurance policy held by Progressive Insurance Company over the van. The Progressive officers testimony was the policy was in the name of the Office of the Legislative Assembly and premiums were paid by the Ministry of Finance. He also said in conversations and correspondences with the first defendant he never denied owning the excavator or raised the issue of compensation for damage caused to the machine or loss of income therefrom. The policy included cover of up to $50,000.00 for third party property damage but no claim for such was received from the defendants.

Defendants case:

13. The second defendant said he never saw the plaintiffs van. When all the cars had passed and he resumed work there were no vehicles waiting to pass through. He had a clear view as he was at the time facing the signaler Tausolia who was standing on the Falefa side behind the machine. He denied the van was bumper to bumper behind two other vehicles. He said all vehicles had passed by so he resumed working. He was surprised when the accident happened. And the van driver exited the vehicle and threatened to assault him. They all came to the police station and when they returned and restarted the excavator he discovered the cooling system and hoses were damaged. The machine was out of action for approximately one week while he and the first defendants engineer repaired it and scourced replacement parts.
14. The defence did not call Tausolia as he has left the jurisdiction. But they did call his 19 year old cousin Anetone Leota who was seated in a faleo’o on the seaward side of the road just down from where the accident occurred. He was not involved in the excavation work but was just loafing around watching the machine. His evidence completely contradicts that of the plaintiffs witnesses. He said the three vehicles were not bumper to bumper. The two small cars went through first and had passed the machine and disappeared from view when the van arrived. He said it was speeding. Tausolia signaled the van more than once to stop but it kept going. Next thing he heard the machine hit the vehicle. He and a friend of his from their church youth group who was also present ran to the scene together with Tausolia. Tausolia was accusing the van driver of disobeying his instruction and things were becoming heated. It was the second defendant who intervened and calmed everyone down. In cross-examination Anetone denied discussing his evidence with his cousin and maintained he was merely relating the truth.
15. The final witness was the first defendant. He confirmed that the impact caused the battery of the machine to become dislodged and penetrate the coolant hose and tubes. These took one week to be repaired and material and labour costs came to $2,400.00. He also claimed loss of earnings as the machine was not then available to hire out for this or any other jobs. He said he advised the insurance officer from Progressive of his costs and that each party should absorb their own. But decided to counterclaim when these proceedings were brought against him. Which is why he never filed a claim with the insurance company.

Preliminary issue: Identification of the proper plaintiff

16. There is a common misconception that Parliament and the Legislative Assembly are one and the same body. That is not so. Article 42 of the Constitution in establishing the Parliament of this country provides that Parliament “shall consist of the Head of State and the Legislative Assembly.” It is Parliament that is empowered by article 43 to make laws which is why every statute passed by the Assembly requires the assent of the Head of State. Membership of the Assembly is governed by article 44 which in 44 (4) provides that “Members of the Legislative Assembly shall be known as Members of Parliament.”
17. Article 49 provides for the office of Speaker. Sub article (1) provides that “The Legislative Assembly shall immediately when it first meets after a general election ...... elect a Member of Parliament to be Speaker of the Legislative Assembly.” Sub articles (2) and (3) go on to prescribe for the oath of office and how a Speaker may resign. Article 50 provides for the office of Deputy Speaker and article 51 says “There shall be a Clerk of the Legislative Assembly.” Article 55 provides for the Speaker or in his absence the Deputy Speaker presiding over sittings of the Legislative Assembly. There are succeeding constitutional provisions that provide for the conduct of the business of the Legislative Assembly including article 62 which says:

“The privileges, immunities and powers of the Legislative Assembly, of the committees thereof and of Members of Parliament may be determined by Act.”

18. The Legislative Assembly Powers and Privileges Ordinance 1960 defines the powers, privileges and immunities of members of the Assembly including the Speaker. Plaintiffs counsel argues that because under that legislation the Speaker has authority and control over the property of the Legislative Assembly that therefore he must also have control over office equipment and chattels including vehicles used “in the practical day to day running of the Assembly.” She claims rule 194 (1)(e) of the Standing Orders of Parliament reinforces this by providing that:

“(1) Subject to the right of the Government to control the expenditure with respect to the Legislative Department and the Estimates relating thereto, and to the provisions of any Act of Parliament, - (e) The control and administration of the whole of the parliamentary grounds and the buildings and other erections thereon shall be vested in Mr Speaker on behalf of the House, whether the House be in session or otherwise.”

19. The argument has two flaws. Firstly, unless the Legislative Assembly has expanded the precincts of the Assembly to include the village of Lalomanu, the vehicle in question was not at the relevant time being used in a matter that even remotely falls within the description “the practical day to day running of the Assembly.” Secondly, and with all due respect to the Honourable Speaker, while the legislation and the Standing Orders confers on him control over the use and administration of all Parliamentary grounds, buildings and structures thereon, it was not intended and it does not thereby vest legal ownership of these properties in the office of the Speaker. Such quite properly remains with the Executive as evidenced by the opening words of rule 194(1) reserving to the Government the right to control the expenditure and estimates of the Legislative Department as well as rule 194 (2) which provides:

“Further to duties of the Clerk itemised in Parts XI and XII of these Standing Orders, and those prescribed by Act, the Clerk ...... shall have the general direction and control of the Legislative Department and all officers employed therein.”

20. The Legislative Department now known as the Office of the Clerk of the Legislative Assembly is headed by the Clerk of the Legislative Assembly which is an office separately established by the Constitution. This regime is consistent with the other duties and functions allocated to the Clerk as head of the Legislative Assembly Office.
21. This organisational structure is recognised by the plaintiffs witnesses. The driver said the van belonged to the Legislative Assembly office. It was to them he reported the accident that afternoon. It was at the material time being used to transport members of the office. The Assistant Clerk of the Legislative Assembly agreed that the van belonged to the Legislative Assembly office. There was no suggestion by anyone that the van despite the fact that it carried private plates was the property of the Speaker in his personal capacity or otherwise. The evidence of the insurance officer was the vehicle policy was held in the name not of the Speaker but of the Legislative Assembly office.

Analysis

22. The proceedings have been brought in the name of the wrong plaintiff. The evidence establishes the van is owned by the Office of the Legislative Assembly. The administrative head of that office is the Clerk of the Legislative Assembly. He is subject to the overall direction of the Honourable Speaker who controls the administration of all Parliamentary grounds and buildings. But that does not make the Speaker the owner in law of the chattels and equipment of the Legislative Assembly office. This appropriately remains with the Government acting through the Clerk of the Legislative Assembly. By no stretch of the imagination does the office of the Clerk equate to the office of the Speaker of the Legislative Assembly. On this ground alone the plaintiffs claim must fail.
23. A similar fate awaits the plaintiffs case on its merits. The evidence of the driver is contradicted by that of Anetone Leota who was sitting in a faleo’o opposite the Seventh Day Adventist Church where the excavator was originally working before it embarked on its journey to clear the mudslide. It was clear from the courts scene visit that Anetone had a clear and unobstructed view of what unfolded. Even though Anetone is a cousin of the signaler Tausolia, I find it less likely that he would be partisan in his evidence. Compare that to the evidence of Fuimaono Fereti who according to his own testimony was seated immediately behind the driver and on the side of the vehicle furtherest away from the point of impact. The obstructions to his view are clear from Exhibit “P-1” and there would have been no reason for him to be paying particular attention to the goings on in front of the vehicle.
24. The person best situated to support the driver was the Legislative Assembly Clerk seated in the front seat beside the driver. He was not called by the plaintiff. I also find it curious that if what the driver says is correct why he as head of the office did not himself alight from the vehicle and confront or at least question the party alleged to be at fault. The evidence was neither he nor the next senior officer present the Assistant Clerk said anything or at any time left the vehicle.
25. I also note Anetones evidence is corroborated in some respects by that of the driver. It is consistent with the drivers evidence that there were two smaller vehicles in front of him and that the van did not stop but drove right through. Refer to the passage quoted supra where he said in evidence in chief “e le’i tu la’u taavale”. Anetones allegation of speeding also finds support in the fact that this convey from Lalomanu was separated by the time it reached Eva a point about halfway to Apia as the crow flies. From page 5 of the driver’s evidence:

“HH o lona uiga o le pikiapu a le ofisa lea sa mulimuli i tua o le tou taavale?

Wit leai e fai si mamao laititi o le matou va ma le vaega lea, ae tau mai o la e faaletonu le matou taavale.”

This indicates the van was returning at a speed greater than the supporting pick-up. No doubt because the occupants were keen to return to their duties.

26. Evidence of speed is also found in the nature of the damage sustained by the left rear side of the van. Obviously the impact broke the rear windows. But the lengthy scrape along the side indicates the vehicle continued to move post-impact.
    

Decision

27. The onus of proof in any civil proceeding rests on the plaintiff who brings the litigation. The standard required is proof on a balance of probabilities. I am not satisfied the plaintiff has met this standard in respect of ownership of the vehicle or the allegation of negligence on the part of the second defendant and thus vicariously the first defendant. I find the evidence for the defence as to how the accident was caused more cogent and plausible.
28. There is a further basis upon which the driver of the plaintiffs vehicle can be found negligent. This concerns the distance between the van and the excavator just prior to impact. The evidence establishes the seaward side of the road was muddy and the driver by his own testimony was afraid his vehicle would become stuck. So he drove as close as possible to the excavator. He estimated the distance to be less than 1 meter. In my assessment that was far too close without slowing down and ensuring there was no doubt that he had been seen by the excavator operator. He failed on both counts and the collision was the result. On this ground the plaintiffs case also fails.

The Counterclaim

29. The first defendant has counterclaimed for damage caused to the excavator. He claims $1,080.00 for materials and $1,320.00 for labour. But he produced no independent invoice receipt or other like document supporting his claim other than an account prepared by him. And the second defendants evidence was the first defendants employees undertook the repairs which according to the first defendant comprised welding the holes in the coolant tubes, installing new hoses and replacing the hydraulic fluid that had leaked out. I accept the damage had to be repaired but it was obviously not significant enough for the first defendant to make an issue of it either to the insurance officer or by way of recovery proceedings from the Legislative Assembly office and/or the Government. I therefore allow under this head only half of his claim i.e. the sum of $1,200.00.
30. As to his counterclaim for loss of earnings his evidence was the excavator returned to work on the Church project after it was repaired on site one week later. There was accordingly no loss of earnings as the excavator was billed out only for hours actually worked. And there is nothing to suggest the delay in completion of the job resulted in any damage to the first defendant. There is no basis for the claim of loss of earnings. That part of the counterclaim is dismissed.
31. The defendants are entitled to costs. Counsel to file his statement of costs within seven days for approval by the Court.

Result

32. The plaintiffs claim is dismissed. Judgment for the first defendant in the sum of $1,200 plus costs as fixed.

.........................

JUSTICE NELSON