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Wolfgram v Lakulu [2008] TongaLawRp 24; [2008] Tonga LR 114 (2 May 2008)

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

CV 191/2007

Wolfgram

v

Lakulu anor

Andrew J
27 and 28 March 2008; 2 May 2008

Negligence – both parties claim negligence of the other - court did not accept plaintiff's version – plaintiff's claim dismissed

David Wolfgramm, as plaintiff, claimed damages of $7,350 against the defendants following a motor vehicle accident on 19 January 2008. The plaintiff alleged that the accident was caused by the negligence of the first defendant who was driving a Ministry of Education van owned by the second defendant. The accident occurred as the plaintiff was in the process of driving out of a driveway onto Vaha'akolo Road. The plaintiff claimed that he saw the defendant approaching but he was about 80 meters away when he pulled onto the road. He alleged that impact resulted because the defendant had been travelling at a high-speed. The defendant alleged that the plaintiff came out of the driveway entrance and pulled out onto the road in front of him and he was unable to avoid the collision. The plaintiff had a passenger in his vehicle whose evidence supported that given by the plaintiff. There was an independent witness, however, working on the roof of a nearby building whose evidence supported the version of events given by the defendant.

Held:

1. The court accepted that the plaintiff was an honest man but it could not accept his version of what happened. His version was inconsistent with the known facts and the evidence of the independent eyewitness. The plaintiff misjudged the situation.

2. The accident was solely caused through the negligence of the plaintiff. The plaintiff's claim was dismissed and costs were awarded to the defendants. There was no counterclaim.

Counsel for the plaintiff : Mr Niu
Counsel for the defendants : Mr Kefu

Judgment

This is a claim for damages following a motor vehicle accident in which the plaintiff's vehicle and a vehicle driven by the first defendant and owned by the second defendant, collided on the 19th January 2008 at Vaha'akolo Road, Kolofo'ou.

The issue is the causation of the accident and the damages caused.

The Plaintiff claims that:

(i) On 19th January 2006 the first defendant drove negligently on VAHA'AKOLO Road causing a collision of the Ministry of Education van he was driving with a Nissan double-cab van driven by the Plaintiff.

(ii) The Plaintiff did not contribute to the cause of the collision between the vehicle driven by the 1st defendant and the plaintiff's van; and

(iii) The Plaintiff claims $7,350 in damages and costs.

The facts are not really in dispute apart from the facts of the cause of the collision.

The Plaintiff gave evidence as to the fact that he was driving out of a driveway and turning left on to Vaha'akolo road. He says he looked to his right and saw the defendant's van but it was a fair way from him. He turned left onto the road travelling. The defendant he says was coming in his direction; that is on the same side of the road, but he says it was about 80 meters away when he pulled onto the road. Very shortly thereafter he was hit from behind by the defendant's van on the right rear corner, bending the bull bumper forward into and denting the right corner of his van to the right. Then the defendant's van glanced off the right rear corner and collided with his right front wheel of his van which pushed his van to the left and off the road into an allotment and into a bush. He says he ended up 74 paces from the gate he had come out of. He says the defendant was travelling at high speed as evidenced by the fact that he had travelled over 80 meters in a very short time from the point of impact.

The defendant's version of what happened is very different. He says he had stopped at an intersection and had then turned to his left on to Vaha'akolo Road. He says that when he got to the southern gate of the Centenary Church he was in 4th gear and was driving around 40 to 50 kilometre per hour. He says that when he was close to the Helu allotment he saw the plaintiff come out of the driveway and stop briefly at the driveway entrance to the road. He says that the plaintiff then pulled out on to the road in front of him. He says he pulled to his right into the other lane to avoid the collision and he says he hit the front right of the plaintiff's vehicle. The collision, he says, occurred just in front of the Helu allotment from where the Plaintiff drove out from, into the road in front of him. He says that when he hit the front right wheel of the plaintiff's vehicle that caused the rear of the plaintiff's vehicle to swing to its right and it collided with the centre of his vehicle (on the passenger side) causing damage.

The plaintiff had a passenger in his vehicle, one Sean Uhi whose evidence supported the plaintiff and was in the same terms.

There is however an independent witness one Haofakitau Tulia. He was working on the roof of the building on the block where the Plaintiff drove out from. As such I am satisfied that he had a bird's eye view of the accident. This home that he was on is parallel to the road. He said the plaintiff drove out of the driveway and stopped at the entrance to the road. Then he moved into the road to turn left and then the collision occurred and the defendant hit the plaintiff's front wheel – the rear of the plaintiff's vehicle moved to its right and struck the middle of the defendant's vehicle. The plaintiff's vehicle continued to move forward to its left until it finished in the bushes. He said he ran to the plaintiff's vehicle and the plaintiff looked as if he had passed out. They were then able to assist him to walk.

He said that at the time of the collision the plaintiff had just ventured on to the road.

Of course this evidence, from an independent witness who appeared to have no axe to grind is completely consistent with the defendant's version of what happened. I am satisfied on all of the evidence that the defendants version of what happened is correct supported as I have said by independent evidence.

Moreover I think the physics of the situation supports what the defendant says.

• That is, the main point of impact on the plaintiff's vehicle which appears to have absorbed the main damage is at the front right wheel area. That is consistent with the plaintiff's vehicle having just ventured out of the driveway and still facing across the path of the on-coming defendant's vehicle. The damage to the rear of the plaintiff's vehicle is consistent with it travelling to the right and hitting the middle of the defendant's vehicle.

• If the plaintiff's vehicle had first been hit at the right rear it seems unlikely that the rear would swing to the right Common sense would say that it is more likely that the plaintiff's vehicle would be pushed to its left (the direction where it ended up) and the likelihood of it being hit at the right front would not be great.

• The fact that the plaintiff's vehicle travelled further down the road after the accident is consistent with the evidence that the plaintiff's foot had hit the accelerator at the time of the accident.

• The plaintiff suffered injuries and was dazed after the accident. He may have been knocked unconscious. He is not a young man. I am not convinced he has a clear recall of what happened.

• It seems to me that it is unlikely that the defendant could have reached 80 K.P.H. in the distance from the intersection to the allotment where the accused pulled out from. He faced a stop sign at the intersection. He then had to turn left. There is then a slight ascent. The distance to the allotment (the Helu Allotment) is not great. I think all of that is more consistent with the defendant, driving a van, having reached a speed of around 40 K.P.H. as he said he did.

• The plaintiff called his panel beater who attempted to give expert evidence. He was clearly not an expert witness in this area and he appeared anxious to assist the plaintiff and I could not accept his evidence.

On all of that evidence I am satisfied that the plaintiff did not give proper way under the circumstances but rather he turned into the path of the defendant's on-coming vehicle. In the circumstances he should have stopped and allowed the first defendant to pass.

I accept the Plaintiff as an honest man but I cannot accept his version of what happened. I think he misjudged the situation. As stated, he is not a young man and his powers of judgment may be diminished. His version is, I am satisfied, inconsistent with the known facts and not consistent with the evidence of the independent eye witness who had a near perfect position from which he observed the collision.

In those circumstances I find that it was solely the negligence of the plaintiff which caused the accident.

I dismiss the plaintiffs' claim and give judgment to the defendants.

There is no counter claim.

As costs should follow the event costs are awarded to the defendants.