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Toafa v Talisi [2000] TongaLawRp 12; [2000] Tonga LR 53 (7 April 2000)

IN THE SUPREME COURT OF TONGA

Toafa

v

Talisi

Supreme Court, Nuku'alofa
Ward CJ
C 1539/98

31 March, 4 April 2000; 7 April 2000

Tort — trespass by pigs — owner liable for damage to crops

Damages — trespass by pigs — damages reduced where crop owner failed to fence

In July 1998 the plaintiff planted squash pumpkins on an 'api in Fua'amotu belonging to Tu'ifua Pauta. Although the 'api was fenced, a few pigs entered that month but caused only slight damage. Following that the fence was checked each week and, as the plaintiff lived in Tokomololo, Tu'ifua was asked to look after the plantation. By September when the squash were nearly ready to be harvested, the plaintiff went almost every day. Towards the end of the month, he found that pigs had entered and caused considerable damage to his crop. Identification of pigs was difficult. The plaintiff was successful in trapping some of the pigs and they were those of the second defendant and of the first defendant's wife and family. The plaintiff brought a claim for damages for trespass by pigs.

Held:

1. By common law the owner or keeper of domestic animals had a duty to confine them and was liable for any damage caused if they trespassed on another's land. The Court held that the first defendant performed actions that were consistent with him being the keeper of the pigs and therefore he was liable to the plaintiff.

2. The second defendant was also liable for the damage caused by his pigs when they were not properly confined.

3. The Court did not accept the proposition that anyone who planted crops on his land had any duty to fence the land to protect it except where some special law or custom dictated it should be done and no such exception was pleaded here.

4. A farmer who cultivated unfenced land with full knowledge that the land in question had been consistently foraged by pigs previously may be awarded reduced damages. The plaintiff, once the serious damage occurred near to harvest, could have taken more effective steps to prevent the pigs from continuing to enter and the Court, in consequence, reduced the award by 10%.

5. The defendants were liable for the damage caused by four out of a possible six pigs and the Court ordered the defendants to pay four sixths or $1180.00 of the special damages proved. The Court also awarded general damages of $500 based on the problems caused to the plaintiff by the actions of the defendants' pigs beyond the actual damage. Both those sums were reduced by 10% producing a total award of damages of $1512.00. Interest on the damages was to be paid at 5% from the date the writ was served, 26 January 1999, to the date of judgment and it was to continue until payment. The defendants were ordered to pay the plaintiff's costs.