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Church of Tonga v Pacific Trading Ltd [2002] TongaLawRp 44; [2002] Tonga LR 288 (12 September 2002)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 259/1999

Church of Tonga

v

Pacific Trading Ltd anor

Ford J
6, 7, 8 November 2001, 21, 22 March, 15, 16, 18 April, 15, 24 May and 14 August 2002; 12 September 2002

Negligence – no explanation - res ipsa loquitur applied
Costs – misgivings as to presentation of case - reduced costs accordingly

The plaintiff's vessel, the M V Siupeli Koula was tied up at the Tu'imatamoana wharf, Nuku'alofa, between two other vessels, the M V Alamea, a steel boat which was up against the wharf and the Tada III, a fibreglass hulled vessel, which was tied on its outside. It was alleged that while manoeuvring in the harbour on the morning of 30 October 1998, the defendants' vessel, the M V Pulupaki, negligently reversed into the Tada III and the Siupeli Koula suffered damage as it was then crushed between the Tada III and the M V Alamea. The plaintiff claimed the sum of $35,000 on account of damages allegedly sustained. The collision resulted because the Captain of the M V Alamea, the second defendant, was unable to disengage the vessel out of reverse gear. The defendants denied any negligence on their part.

Held:

1. In the absence of any explanation as to why the gear jammed, it was an appropriate case for the application of the res ipsa loquitur doctrine. Res ipsa loquitur was not pleaded by the plaintiff but it did not have to be.

2. The M V Siupeli Koula immediately prior to the accident was a "well worn vessel". The plaintiff was under a duty to mitigate its loss. It did not satisfactorily explained to the court why it did not accept the quotation from the Ministry of Fisheries for $8000 and have the repair work carried out back in 1999. Instead, the plaintiff waited until 2001 and then carried out the repair work in the course of a much larger overhaul and refit of the ageing vessel.

3. The claim for special damages of $8000 was allowed. In addition, the plaintiff made out a case for limited general damages of $1000.

4. There was an issue as to the legal status of the defendant. Counsel applied to change the name of the plaintiff to that of its individual trustees. The court allowed that application.

5. The court had misgivings as to the way the plaintiff's case was presented. Had the case been properly prepared the case should have been completed in four days (as opposed to eleven days). Therefore costs were awarded on the basis of a four day hearing.

Cases considered:

Bennett v Chemical Construction (GB) Ltd [1971] 3 All ER 822

Piukala v Fonohema (Court of Appeal, CA 13/2000, 23 July 2002)