Siania v Fualau [2017] WSSC 41 (28 April 2017)

IN THE SUPREME COURT OF SAMOA
Siania v Fualau [2017] WSSC 41

Case name:	Siania v Fualau
Citation:	[2017] WSSC 41
Decision date:	28 April 2017
Parties:	AVAU SIANIA of Saoluafata, Retired. (Plaintiff) AND PALOTA FUALAU of Nuu, Butcher. (Defendant)
Hearing date(s):	27 April 2017
File number(s):	CP 105/16
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	The plaintiff has established her claim to the courts satisfaction. Judgment will be entered for the plaintiff in the amount of $17,555 plus $3,500 in legal costs as this is a claim that should have not been defended. This is a claim Palota that you should have settled before you came to the court. The defendant can consider himself fortunate exemplary damages have not been pursued by the plaintiff.
Representation:	D Kerslake for Plaintiff Defendant unrepresented
Catchwords:	-
Words and phrases:	accepted responsibility – liability – negligent driving causing death – unlicensed driver - claim for recovery - exemplary damages
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

AVAU SIANIA of Saoluafata, Retired.
Plaintiff

AND:

PALOTA FUALAU of Nuu, Butcher.
Defendant

Counsel:
D Kerslake for plaintiff
Defendant unrepresented

Hearing: 27 April 2017

Decision: 28 April 2017

ORAL DECISION OF NELSON J

1. About 1:15 a.m. on Sunday, 11 January 2015, the defendant and the plaintiffs 22 year old nephew Hinemoa Toia together with his 59 year old handicapped father Toia Apineru were in the plaintiffs silver 2002 Mazda Station Wagon travelling from Saoluafata to Apia. At Toias request the defendant was driving even though he had no current license and was unfamiliar with the road. There was no evidence he was intoxicated or under the influence of any narcotics but he had told Toia he was very very tired and should not be driving.
2. Notwithstanding these factors, the defendant piloted the vehicle, failed to negotiate a bend in the road and plunged the vehicle over a steep drop into the sea. The defendant told the attending Police officers he fell asleep. The vehicle occupants not surprisingly were all injured and Hinemoa died of his injuries three weeks later. A horrendous and totally unnecessary accident. The defendant should not have been behind the wheel in the first place.
3. The defendant was subsequently convicted on his guilty pleas of inter alia negligent driving causing death and unlicensed driving but was surprisingly only fined by the District Court. Toia seemed to have recovered from his injuries although his brother-in-law Lupematasila Ioane who is the plaintiffs husband believes these contributed to his death some five months post-accident. The defendant is married to Hinemoas sister Mele and after serving a prison term because he could not pay his fines, now lives in Savaii at his wifes aiga with her and their four young children, the eldest two of whom are in school. He says he supports his family by way of a plantation.
4. The plaintiff is Toias sister who lives in Wellington New Zealand but travels regularly between Wellington and Apia. After purchasing her Station Wagon she left it in Samoa in the custody of her brother and used it only when she was in country. She is understandably distressed at the defendants failure to acknowledge to her his wrongdoing and the part he played in this accident which led to the death of her nephew and possibly her brother as well. Despite numerous opportunities the defendant has not rendered an apology either personally or in accordance with our tu and aganuu faa-Samoa.
5. The plaintiff has brought proceedings to recover the cost of the vehicle. There is no dispute as to its value of $17,555 or to the fact that it was a write-off. The plaintiff also claims the costs of these proceedings. This matter was referred to mediation by the Chief Justice in 2016 but the defendant failed to turn up for scheduled meetings. Had the defendant availed himself of the mediation procedure I have no doubt a different outcome would have been reached but his actions seem indicative of his entire attitude to this offending.
6. The matter accordingly proceeded to trial and I heard evidence from the plaintiff and her husband as well as the defendant. The defendant has no lawyer but elected to defend the proceedings arguing in his letter of defence firstly that he was coerced by Toia to drive the vehicle despite his misgivings and that somehow this absolves him from blame. That however overlooks the fact the defendant nevertheless took upon himself the responsibility of driving the vehicle. He could have refused to drive and insist a licensed driver familiar with the road and who was not exhausted be found. His decision to acceed to Toia’s request had grave and fatal consequences. He should not have been behind the wheel for all the reasons he gave to Toia. This was an accident that did not need to happen.
7. His argument also ignores the fact that he accepted responsibility for the accident by pleading guilty to the charges brought against him in the District Court. His argument does not free him from liability for the accident or the plaintiff’s loss.
8. His second ground of defence is the assertion that while in prison the plaintiff visited and forgave him and told him nothing further would occur including in relation to the vehicle. However, in response to questioning from the Court, he admitted that part of his letter of defence was wrong and that he never spoke to the plaintiff, only his wife did. This was therefore based on what his wife told him. The wife was not called as a witness but in any event I do not accept this part of his testimony as there would have been no reason why the plaintiff would specifically mention a court claim for recovery of the price of the vehicle at that stage.
9. The plaintiff vehemently denied making such a statement or even speaking to the defendant. I find her a truthful and credible witness. I am satisfied the plaintiff made no such promise to the defendant.
10. The defendant also raises his impecunity as a defence. If he had legal representation his lawyer would have told him that is no ground for resisting this claim.
11. In any event he admitted in evidence he is a qualified butcher who previously worked for Nuu Plantation and further that he earns money from his plantation which he uses for his familys upkeep and for his childrens education. This defendant is not as “makiva” as he tries to make out.
12. The plaintiff has established her claim to the courts satisfaction. Judgment will be entered for the plaintiff in the amount of $17,555 plus $3,500 in legal costs as this is a claim that should have not been defended. This is a claim Palota that you should have settled before you came to the court. The defendant can consider himself fortunate exemplary damages have not been pursued by the plaintiff.
13. O lona uiga o le faaiuga o le mataupu lenei ua faamaonia le tagi a le tina lea ua tuu mai i luma o le Faamasinoga $17,555 le tau o le taavale; $3,500 le tau a le loia. O le tulaga la lea ua faamaonia o le tagi a o le tulaga o le totogiina, taatia le mataupu na i le va o oe ma le ua tagi aua ou te talitonu Palota a leai sau galuega e fai iai i le tulaga lea, e toe aumai oe i luma o le Faamasinoga. A o le mea lena ia e taatia atu e pule lava lau susuga poo le a lau mea e fai iai. Faafetai ua maea le tou mataupu.
    

JUSTICE NELSON