In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 155 of 2008

Between:

Tion Meita
Plaintiff

And:

Bobotin Kiribati Limited
Tokaibure Keariko
Defendants

For the Plaintiff: Mr Raweita Beniata
For the Defendants: Ms Pauline Beiatau

Date of Hearing: 12 & 13 October 2010

JUDGMENT

About 1 o'clock in the afternoon of 9 November 2007, on the main road near the Chinese Embassy in Bairiki, a 4-ton delivery truck owned by the defendant, Bobotin Kiribati Limited and driven by an employee, ran into the back of a Mitsubishi van owned by the plaintiff, Nei Tion Meita and being driven by her son, Tawita Meita. The van was damaged.

The defendant BKL admitted liability. I have to assess damages.

The assessment has been hotly contested. The defendant arguing that the plaintiff's witnesses have exaggerated the damage caused and the plaintiff's estimate of the cost of repairs has been much inflated. Each side called a mechanic and several supporting witnesses but it really is a contest between the opinions of Borau Teiora, mechanic, for the plaintiff and Koura Teweti, mechanic, for the defendant. 

There are other claims, cost of hiring replacement vehicle and loss of earnings. 

Tawita Meita was driving the van:-

Back part on right pushed in etc. I drove it slowly to Bairiki police station. (Examination in chief).

Damage right across back of the car. Back wheel on right pushed in. (Cross examination).

I accept Tawita as a truthful witness and the account of the damage he saw as accurate.

Borau Teiora, mechanic, had been servicing the van before the accident and inspected it the day after. He gave a detailed report on the damage and estimated (Exhibits P3 and P4) the cost of repairs at $17,290. He recommended (Exhibit P2) that the van not be repaired but another vehicle replace it.

From my notes of his oral evidence:-

Side of van smashed in and wheel out of position on right side at back. Engine – lots had happened as it was leaking oil ….. I repaired car – 2+ weeks. [Dismantled] car and saw damage inside. Chassis joined to front – accident caused chassis to be out of position slightly. This caused damage at the front of vehicle: cause of damage to engine. Took me 2+ weeks working on body of car. Engine not affected until later: we (serviced) car before accident. It was in order. After repair car kept coming back: leaks – oil seal to gear box. Seal never be perfect again. Link between accident and leakage because body joined together with rear. Car now at Antebuka in rubbish dump. (Examination in chief).

I didn't see damage to engine before accident ….. P3 is my own assessment ….. I take responsibility for quote. A fair and reasonable quote for repairs ….. Chassis was affected and this affected the engine. Chassis pushed out of alignment, damaged and that is how engine damaged. Chassis moved from normal position. (Cross examination).

Ms Beiatau doggedly cross examined Borau trying to discredit him: in her closing address she attacked his truthfulness. I reject her submissions. I thought Borau honest and reliable. I accept his evidence although I shall discount some of his estimates. Even though he recommended not to repair the van he probably has quoted at the upper end of estimate for some items and I will not allow anything for future servicing. Borau has estimated that at $4,800. The van had been having and would continue to need regular servicing, accident or not.

Truman Safenga, another mechanic, supported the plaintiff's case. He had worked on the van in 2005 when it was in good condition. In his opinion the damage to the van was "beyond extreme". In cross examination:-

Only damage I saw caused by accident. Could see where it had been repaired. Saw rear axle had moved from normal position: drive shaft joined to transmission. Leakage from damaged seal. Chassis not damaged but moved out of position, moved and bent.

The first witness for the defendant was Teiete Tatabu, BKL employee who had been sitting next to the driver at accident. He described the damage to the van:-

Looked at damage – a cut on the side wall of the car – in the middle – much higher than wheel and further down. Only bent inwards. 
P1 – same as I saw it. Does not look as bad in photo as I remember it.

Exhibit P1 is a series of photographs shewing the damage.

Mweretaka Matang is another mechanic who said maybe in 2007 (he was not sure of the year or the month) he saw the van parked in front of MOEL. He did not see any damage to it. Afterwards he noticed oil on the ground where the van had been parked. I can place no reliance in this evidence. Mweretaka may have seen the vehicle before the accident or he may have seen it after. The oil may have dripped from the van or maybe from another vehicle.

Koura Tebeti, mechanic, was the witness upon whose evidence the defendant mainly relied. He gave a report (Exhibit D1). In examination in chief, going through Borau's quote (Exhibit P3) item by item, he came to $3,780:-

Inspected van ….. side hit. Windows damaged. Photos shew damage. Car can be put back as it was before. Use putty to cover up work done. No damage to axle or chassis ….. No damage to chassis or axle. If Borau had worked on chassis marks would shew. Saw damage to side and glasses. (Examination in chief).

Force applied to wheel would not be transmitted to the engine as the crank shaft would cushion the force. (Cross examination).

Koura disagreed with Borau on several points. The most significant was that no damage to the engine could have been caused by the accident. The only damage to the van was at the right back corner and along the right side.

Koura's evidence loses much of its force because he did not see the van until nearly two years after the accident. His report is dated "2/2/09". He has seen the van three times but, it seems, never for long. He did not work on it.

We have all had the experience or at least have heard of others having it, of finding damage which on the face of it looks slight, to be in fact more serious when the vehicle is examined. That is probably the case here. Further, it is notorious that a vehicle is never the same after it has been damaged as it was before. I may take judicial notice of those points. In particular I should make some allowance for extra depreciation as a result of the accident.

I have no hesitation in preferring the evidence of Borau to that of Koura and shall base my assessment on Borau's estimate. His estimate is $17,290. Excluding $4,800 for future servicing brings it down to $12,490. I discount that figure and, wielding the broad axe yet again, allow $9,000. 

On the eve of the trial Mr Beniata for the first time shewed Ms Beiatau documents on which he proposed to rely to prove a claim for the cost of hire of a replacement vehicle. Ms Beiatau rightly complained. 
Mr Beniata should have disclosed the documents long before. It was bad practice on his part. I had noted on 27 August that he had documents to file before the hearing. Mr Beniata applied to tender the documents. Ms Beiatau opposed the tender. I refused the application.

The plaintiff, Nei Tion, gave evidence in support of her claim of which the particulars given in the Statement of Claim were:-

(b)	The plaintiff has had to hire another vehicle to use whilst her vehicle is unable to be used due to the damage caused by the first and second defendants.

(c)	The total of these hiring costs thus far amounts to $5,317.00.

(d)	The plaintiff suffered loss of earnings, in that she was unable to hire out her van on an ad hoc basis.

(e)	The total of these lost earnings thus far is about $1,600.00.

There was no mention of the Fellowship of the South Pacific until 
Mr Beniata applied to tender documents during the trial. 

Nei Tion said in her evidence that while FSP had paid the cost of hire, her husband would be required to repay that cost to FSP. The reason for her claim.

I allowed Ms Beiatau an adjournment overnight to take instructions. The following morning she herself applied to tender the documents. They are Exhibit D2. She also called Nei Ruiti Uriano, in charge of Finance and Administration at FSP:-

Payment vouchers – all paid by FSP – no information about repayment. I don't know one way or the other whether FSP will require repayment from Meita.

There is no evidence that Nei Tion or her husband will ever be obliged to repay FSP. I disallow this claim.

Nei Tion supported the claim for loss of profits. She said the van was being used six days a week to take her husband to and from work and in between times was working as a bus, making $40 per day. It was "only a trial", she said. I allow $500 for loss of profit.

That means a total assessment of $9.500. I shall allow another $500 for extra depreciation caused by the accident.

There will be judgment for the plaintiff for $10,000.

Dated the 18th day of October 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice