IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
VAVA’U REGISTRY

CV 95/05

BETWEEN:

1. MR TUITU’U SIALE
2. MR ‘ELONE SIALE
PLAINTIFFS

AND:

MS ‘ELISAPETI FOKETI
DEFENDANT

BEFORE THE HON CHIEF JUSTICE WEBSTER

Heard at Neiafu, Vava’u on 11 & 12 May 2006.

RESERVED DECISION GIVEN ON 26 MAY 2006.

Counsel: Plaintiffs: Mr Vaipulu
Defendant: Mr Taufaeteau

Preliminary

This is a claim arising from a motor accident near Neiafu, Vava’u, on Thursday 29 April 2004.

The 2nd Plaintiff is Mr ‘Elone Siale of Holonga, who is the son of the 1st Plaintiff, Mr Tuitu’u Siale, also of Holonga, who was owner of motor car C 630.

The Plaintiffs allege that while the 2nd Plaintiff was driving C 630 in a northerly direction towards Neiafu, the Defendant, Ms ‘Elisapeti Foketi of Pangaimotu, was driving minibus L 7353 in a southerly direction from Neiafu towards Pangaimotu. It is alleged that she drove negligently and caused L 7353 to collide with C 630 on the 2nd Plaintiff’s side of the road.

The Defendant was the driver of L 7353 at the time, but denied that she drove negligently. She said that it was the 2nd Plaintiff who drove negligently and drove on the wrong side of the road and at a speed which was excessive in the circumstances, so as to come into collision on the Defendant’s side of the road. She also claimed in the alternative that any loss or damage suffered by the Plaintiffs was the result partly of contributory negligence by the 2nd Plaintiff because he failed to keep any proper lookout, failed to keep his motor vehicle under any, or any proper, control, drove at a speed which was excessive in the circumstances, failed to slow down or stop or swerve to avoid the collision, failed to steer or control the vehicle to avoid the collision, and failed to comply with Regulation 20(1) of the Traffic Regulations, as he failed to drive the vehicle as close as is practicable to his left of the road.

The Defendant admitted that on 29 May 2004 she pleaded guilty at Neiafu Magistrates’ Court to a charge of negligent driving and was fined $100 or 3 weeks imprisonment, but said that prior to that hearing she was advised by a Police officer [PC Hausia] to plead guilty so that the hearing would be short, as she was nervous.

The Plaintiffs sought damages of $3,120.00 for the repairs to C 630, which was a Mitsubishi Galant sent over from New Zealand by the 1st Plaintiff’s son in 1999; and also $1,000.00 general damages for the loss of use of the vehicle.

Evidence and submissions

The Plaintiffs each gave evidence themselves and led evidence from PC Siaosi Hausia of the Traffic Dept, Neiafu; and PC Katalimoni Moala, who attended the scene of the accident. The Defendant gave evidence on her own behalf. No documentary productions were filed or produced. At the close of the evidence submissions were made by Counsel in support of their cases.

Grounds of decision

The evidence showed that this accident happened at a sharp bend on the road from Neiafu to Pangaimotu, where it goes uphill just after crossing the causeway. It was morning and it was raining: the 2nd Plaintiff was on his way to drop a child off at school and the Defendant was returning from having done so. The 2nd Plaintiff was travelling downhill with the bend going to his left; while the Defendant was travelling uphill with the bend going to her right. The road is not in a town so the speed limit is 65 kph, though both drivers claimed in evidence that they were travelling at 40 kph just before the accident.

The Plaintiffs claimed in their Amended Statement of Claim that the Defendant was 'carrying her young child with one hand' and 'failed to have due care due to her carrying her child while driving', and that due to her care for her child she did not take into consideration other people using the road. The 2nd Plaintiff initially said in evidence that the child (who he said was 1 year old) was sitting in the Defendant’s lap, but then amended that in cross-examination to say that the child was standing beside the driver, not sitting in the front passenger seat. On that issue I preferred the evidence of the Defendant that the child, who was 2 at the time, was sitting in the front passenger seat (which was supported by the recollection of PC Hausia) and fell to the floor in the collision.

As to the side of the road on which the collision occurred, the 2nd Plaintiff said that the minibus was also in his lane, as all of a sudden the Defendant cut in front of him. PC Moala said that the vehicles had met right on the bend and had crossed over to the opposite lane, as shown by the tyre marks and the point of impact being on the 2nd Plaintiff’s side of the road; and PC Hausia said that in the Defendant’s statement to the Police she said she went onto the other side of the road. The Defendant however said in evidence that she kept to her side of the road but the 2nd Plaintiff’s car did not keep to its side but almost came into the middle of the road, but she also said that she could not really confirm where in the road the collision had occurred. Overall I preferred the evidence for the Plaintiffs on that issue and therefore found that the collision occurred on the 2nd Plaintiff’s side of the road.

Both drivers said in evidence that they were surprised to meet the other vehicle. The 2nd Plaintiff said it was very difficult to see an oncoming vehicle on the bend (which I found was an indication that his speed coming downhill was rather fast for the circumstances), it was very sudden and unexpected and he could not do anything, which I did not accept as there was no evidence that he had braked or swerved to try to avoid the collision. The Defendant said she did not notice anything about the other vehicle before the collision and only noticed it when it was very close to the minibus, but she knew it was travelling fast coming down the hill; and PC Moala gave evidence about tyre marks from her vehicle, with the inference that she must have braked.

On all that evidence I therefore found that both vehicles were travelling faster than appropriate for this section of the road on a sharp bend in rainy conditions; and that both drivers were not keeping a sufficiently good look out. To that extent each driver failed in his or her duty of care to other road users (including the other party) and so was negligent. Although only the Defendant was charged in the criminal courts with negligent driving and pleaded guilty to that, it is still open to a civil court such as this Court to find, as I do, that the other driver, the 2nd Plaintiff, was also negligent by the lower standard of proof of the balance of probabilities.

But as the collision occurred on the 2nd Plaintiff’s side of the road after the Defendant had crossed over to that side, it is the Defendant who was primarily responsible for the collision. 

However I also found that for those reasons the 2nd Plaintiff failed to take reasonable care of himself and thus contributed to the damage to his vehicle, so that it is just and equitable, having regard to his share in responsibility for the damage (which on the evidence I put at 25%), that the Plaintiffs’ claim should be reduced to that extent. (see Charlesworth & Percy on Negligence (8th Ed) para 3-03 etc; McGregor on Damages (15th Ed) paras 125-129)

Turning to the question of damages, the Plaintiffs claimed in their Amended Statement of Claim (a) $3,120.00, said to be the damages to the car C 630 according to 'an invoice from the engineer'; and (b) general damages of $1,000.00 for the loss of usage by the 1st Plaintiff of his vehicle.

Very regrettably there was no concise or adequate evidence about the first item; and no evidence at all to show how the second item was arrived at, except that by inference from the 1st Plaintiff’s evidence he was not able to use his car after the collision.

There was evidence from the Defendant that after she had been directed by the Magistrate in the criminal case to settle out of court, she went with her mother to the 1st Plaintiff and apologised, but he did not accept their apology and wanted payment of $3,000, which he then reduced to $2,000. The Defendant and her mother had asked for a week to think about that, but had then passed a message via the 1st Plaintiff’s daughter that they could not pay that money. The Defendant denied that they had agreed to pay $2,000, and I preferred her evidence on that to that of the 1st Plaintiff.

It is important that the tenor of the 1st Plaintiff’s oral evidence in Court was that the car could have been repaired at a cost of $2,000, but that was not done, by inference because he did not wish to or could not spend that money on doing so: the evidence was not that the car was a complete write off as a result of the accident. His evidence was also that the car would have been worth $3,120 if sold undamaged. The 2nd Plaintiff was only able to say in general terms in answer to me that the car was damaged at the front, the bonnet and the windscreen.

But the 1st Plaintiff said in evidence that he was not a driver, nor a mechanic, so that his evidence on these matters was in effect hearsay, and there was no documentary or other evidence of either the market value of the car or the cost of repairing it. The engineer who was stated in the Amended Statement of Claim to have prepared an invoice for $3,120 was not called to give evidence. Although the Defendant accepted in evidence that the 1st Plaintiff had asked for $2,000, she did not accept that amount, so that did not establish that that would have been the cost of repairs. The Defendant also accepted in her Statement of Defence that she had received the 1st Plaintiff’s letter enclosing the engineer’s invoice, but she was not asked about that in evidence; and I considered that mere receipt of the invoice did not amount to acceptance of the amount of the invoice or of its detail, as shown by her not making any payments to the 1st Plaintiff.

The 1st Plaintiff did say that he later sold the parts of the car 'not taken apart by kids', the engine for $400, 2 doors for $40 each and the remaining car for 'over $100'.

A plaintiff claiming damages must prove his case; and to justify an award of substantial damages he must satisfy the Court both as to the fact of damage and as to its amount. If he satisfies the Court on neither, his action will fail, or at the most he will be awarded nominal damages where a right has been infringed (which was not the case here). If the fact of damage is shown, but no evidence is given as to its amount so that it is virtually impossible to assess damages, this will generally permit only an award of nominal damages. On the other hand, where it is clear that some substantial loss has been incurred, if an assessment is difficult because of the nature of the damage (which again was not the case here) that is no reason for awarding no damages or merely nominal damages. (McGregor on Damages (15th Ed) paras 343-4,1779,1791)

'The plaintiff has the burden of proving both the fact and the amount of damage before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person's case the proof of such allegation falls on him. Even if the defendant fails to deny the allegations of damage or suffers default, the plaintiff must still prove his loss.'
McGregor on Damages (15th ed 1988) para 1779

But it was said by Devlin J in Biggin v Permanite [1950] 2 All ER 859,870 (KBD) & [1951] 2 All ER 191 (CA):

'Where precise evidence is obtainable, the court naturally expects to have it, [but] where it is not, the court must do the best it can.'

Generally difficulty of proof does not dispense with the necessity of proof: Aerial Advertising Co v Bachelors Peas [1938] 2 All ER 788,796 (KBD). Even if it is said that the damage must be proved with reasonable certainty, the word 'reasonable' is really the controlling one, and the standard of proof only demands evidence from which the existence of damage can be reasonably inferred and which provides adequate data for calculating its amount: Ashcroft v Curtin [1971] 1 WLR 1731, [1971] 3 All ER 1208, (CA). (McGregor para 344)

In Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177,178 (referred to in Ashcroft v Curtin at 1214), Lord Goddard CJ said that:

'Plaintiffs must understand that, if they bring actions for damages, it is for them to prove their damage; it is not enough to write down particulars and, so to speak, throw them at the head of the court, saying: 'This is what I have lost, I ask you to give me these damages'. They have to prove it.'

Nominal damages are to be distinguished from small damages and in England would be from £1 - £5 [or T$3 –10]: McGregor paras 396-405.

Unfortunately in this case it obviously would have been possible to obtain precise evidence of the amount of damages; and although the existence of damage can be reasonably inferred (despite the absence of specific evidence about the detail of the damage to the 1st Plaintiff’s car), no adequate data for calculating its amount was provided in evidence.

The same applies to the claim for loss of use of the vehicle. Clearly the 1st Plaintiff lost the use of his vehicle, but without any evidence at all about the loss that caused him, it is not the task of the Court to use some metaphorical crystal ball to divine what the amount of the loss might be.

Plaintiffs and their Counsel must understand that at a trial, even according to the lesser standards required under the civil law, the facts necessary to prove their case must be established in court by hard evidence. If that is not done, then a plaintiff will not be able to succeed.

It is with some regret that I therefore have to find that while the Plaintiffs succeeded in establishing that the Defendant was partly at fault in the collision, I cannot award anything but nominal damages of $10 to the 1st Plaintiff (and even that is scarcely justified by the circumstances in this case).

Turning to the question of costs, it is said that one purpose of nominal damages is as a peg on which to hang costs: McGregor para 404. But it is necessary to decide whether the plaintiff really has been successful, and a plaintiff who recovers nominal damages should not necessarily be regarded as successful, so that it is necessary to examine the facts of each particular case: McGregor para 405; Anglo-Cyprian Agencies v Paphos Industries [1951] 1 All ER 873,874 (KBD, Devlin J).

In this case in all the circumstances I do not consider that it would be reasonable to make any award of costs to either party.

R M Webster
Chief Justice