IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO

Civil Appeal No 4 of 2010

BETWEEN:

BOBOTIN KIRIBATI LIMITED
Appellant

AND:

TION MEITA
Respondent

Before: Tompkins JA
Fisher JA
Williams JA

Counsel: Pauline Beiatau for appellant
Raweita Beniata for respondent

Date of Hearing: 13 August 2010
Date of Judgment: 19 August 2010

JUDGMENT OF THE COURT

Introduction

[1]	This appeal arises from a motor accident that occurred on 9 November 2007 between a large vehicle owned by the appellant and a four wheel drive sedan owned by the respondent. The claim for damages by the respondent for loss caused by the damage to his car came before the Chief Justice on 4 February 2010. Liability was admitted. Following a hearing limited to damages, the Chief Justice assessed the damages at $10,000 and entered judgment accordingly. It is from that judgment that the appellant has appealed to this court.

[2]	The sole ground of appeal is that the Chief Justice erred in restricting the witnesses to be called by both parties.

Judgment in the High Court 

[3]	In his judgment the Chief Justice preferred the evidence of the witness called for the respondent, Borau Teiora. He set out in detail the assessments of the damages the witness made and deductions he made under each heading. In the result, the witness arrived at a total assessment of $17,290.00 which the Chief Justice discounted by $9,910.00 to arrive at a figure of $7,380.00. Adding an allowance for depreciation resulting from the accident, he assessed the damages at $10,000.00.

The course of the trial

[4]	At the start of the hearing, counsel for the respondent indicated his intention to call three witnesses, the respondent and two mechanics. The respondent described the accident and the damage suffered. He then called Borau Teiora, a mechanic, who describe the damage and gave estimates of the cost of repair by producing his report setting out those costs. He did not call the third witness because the Chief Justice had told him that he could call only one witness in addition to the respondent.

[5]	When the appellant opened its case, the Chief Justice told counsel:

"I'm not going to allow you to call any other witness and if you want to call a witness you can call one but whether it will make any difference I don't know. But it may cause me to increase the figure I had in mind." 

[6]	Later he said:

"You can call one witness and one witness only or I can hear addresses and make a decision."

[7]	At a later stage he said:

"I restricted you to only one witness because I have already told Mr Beniata the he couldn't call his second third witness. You had the choice of who to call . . ."

[8]	The Chief Justice accepted the evidence of the mechanic called for the respondent who gave evidence of the damage and the likely cost of repair. Based on this evidence, the Chief Justice came to the following conclusion:

	Total Cost	Deduct	
1. Inspection and Identification of damages  	200	100	
2. EXTERIOR DAMAGES			
Body of vehicle (right			
			
2.1 smashed wall 	1,700)		
2.2 broken tail light 	600)		
2.3 broken side mirror 	250)	1,850	
2.4 broken windows 	1,200)		
Body of vehicle (left)			
2.5 cracked windows 	1,100)		
	4,850)		
			
3. INTERIOR DAMAGES			
			
3.1 Engine damages 	2,050)		
3.2 Leaking Oil 	1,740)		
3.3 Damaged crankshaft seals (right and left) 	300)		
3.4 Broken thermostat 	250)	1,930	
3.5 leaking oil pipe 	250)		
3.6 feed pump failure 	340)		
	4,930)		
			
4. SMOOTHENING AND BEAUTIFICATION			
4.1 1 big tin of Putty 	90)		
4.2 1 pink primer paint 	80)	50	
4.3 4 big tins of car paints (colour dark green) 	160)		
	350)		
			
(a) Garage Occupancy	140)	140	
			
5. OTHER DETECTED DEFECTS			
			
Loose parts in the chassis – make rattling noise	2,040	1,040	
			
FUTURE SERVICING	4,800	4,800	

Borau's total quote was $17,290.00: I have discounted it by $9,910 reducing the figure to $7,380.00. To this I propose to add something for depreciation. It is notorious that a vehicle having been damaged is never as good again as it was before.

Taking into account depreciation I assess damages at $10,000.00.

The case for the appellant

[9]It was the submission on behalf of the appellant that the Chief Justice erred in preventing the respondent from calling the witnesses it wished to call. The court had an obligation to hear all the evidence before the assessment was made. Had the court allowed the appellant to call the other witness it wished to call, there would have been evidence of where there had been no damage. As a result, the Chief Justice failed to consider evidence that the engine was not damaged, contrary to evidence given on behalf of the respondent. 

[10] For these reasons the appellant submitted that the case should be referred back for rehearing. 

The case for the respondent 

[11] The respondent accepted that it intended to call a further witness and the appellant intended to call two witnesses but the Chief Justice limited the number of expert witnesses to only one each.

[12] It was accepted that the appellant's wish to call any number of witnesses is inherent to its right to a fair trial, but submitted that the court's restriction on the number of witnesses permitted to be called was unlikely to make any difference to the evidence already called. There was sufficient evidence before the Chief Justice on which he could assess damages. The restriction on the number of witnesses led to no unfairness or injustice.

Conclusion

[13] We have reached the conclusion that the appeal should be allowed. The Chief Justice made his ruling that each party can call only one witness as to the damage and likely loss without exploring the nature of the evidence each party sought to call from the second witnesses. That evidence may or may not have had a significant bearing on the damages assessment. But without exploring the nature of that evidence, it is impossible to say. Then the comment that if the respondent insisted in calling the second witness the damages could be increased appears to be an attempt to intimidate counsel into accepting his ruling.

[14] The additional witnesses each side were proposing to call were not solely expert witnesses. We were informed from the bar that they were witnesses as to fact, that is to the nature of the damage apparently caused by the accident they saw when they inspected the damaged vehicle.

[15] As can be seen from the detail in paragraph 8, there was $2,050.00 claimed for engine damage that the Chief Justice accepted in full. So this was a live issue on which there would have been a conflict, had the appellant been able to call its second witness.

[16] We accept that in appropriate circumstances a court is entitled to make rulings concerning the nature of the evidence and the witnesses to be called. But that can only be done where the court is in the position to make a proper assessment of the relevance and probative value of the evidence sought to be called. There was no attempt to do so in this case.

[17] There is a saying, familiar to all lawyers, that justice must not only be done, it must also be seen to be done. If a party is forbidden to call evidence from a witness the party believes is relevant to the case without a proper consideration of the nature of the evidence the witness can give, that party can justifiably believe that it has not been given a fair hearing.

Result

[18] The appeal is allowed. The judgment in the High Court is set aside. The case is remitted to the High Court for rehearing.

[19] The appellant is entitled to costs to be agreed or fixed by the Registrar.

Tompkins JA
Fisher JA
Williams JA