IN THE DISTRICT COURT OF SAMOA
Talaivao v Galuvao & Ors [2019] WSDC 10 (25 February 2019)

Case name: 	Talaivao v Galuvao & Ors	
		
Citation: 	[2019] WSDC 10	
		
Decision date: 	25 February 2019	
		
Parties: 	TEILA TALAIVAO, of Tuana’i (Plaintiff) v LIALIAI GALUVAO, SUA PATI GALUVAO & WESTMERE GALUVAO, all of Tuana’i (Defendants)	
		
Hearing date(s): 	20 February 2019	
		
File number(s): 	D563/17	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Mata’utia Raymond Schuster	
		
On appeal from:		
		
Order:	Judgment for the plaintiff against the defendants jointly and severally in the proved total damages amount of SAT$10,050.

An award of punitive damages is appropriate in this case given the reckless disregard behavior of the defendants. This is not the case of the vehicle being damaged indirectly as a result of flying projectiles or what not but a deliberate act and intention on the part of the second defendant to damage the vehicle and the first defendant to just be present and encourage the actions of the second defendant. It is unfortunate, however, for the plaintiff did not claim punitive damages where if he had, I would have awarded punitive damages subject to an appropriate amount reflective of the defendants conduct.

Costs are also awarded to the plaintiff in a sum to be approved by the court if counsels are unable to reach agreement.	
		
Representation: 	T. Patea for the Plaintiff 
D. Kerslake for the Defendants 	
		
Catchwords: 	Claim for damages to vehicle.  	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Eletise v Lutuiloa [2018] WSSC 52;
Fiso v Reid [2000] WSSC 51;
LIP Investments Pty Ltd v Howard Chia Investments Pty Ltd. (1990) 24 NSWLR 499;
Tutuila v Punitia [2012] WSSC 107.	
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

TEILA TALAIVAO of Tuana’i

Plaintiff

AND:

LIALIAI GALUVAO, SUA PATI GALUVAO AND WESTMERE GALUVAO all of Tuana’i

Defendants

Hearing:		20 February 2019
Decision:		25 February 2019
Representation:	T. Patea for the Plaintiff 
			D. Kerslake for the Defendants

DECISION OF DCJ SCHUSTER
The plaintiffs case 
1. 	This case is about the Plaintiff, a 49 years old male of Tuana’i self-employed one-man band entertainer, claiming damages to his 1994 Toyota Landcruiser (hereinafter referred to as the Vehicle) committed by the First, Second and Third Defendants at Tuana’i on the 2nd February 2017. The First Defendant is a 65 years old female of Tuana’i and the mother of the Second and Third Defendants. The Second Defendant is 41 years old, male of Tuana’i and is a taxi driver and carpenter by trade. The Third Defendant has since passed away and the Plaintiff through counsel at the commencement of the trial sought leave to withdraw and strike out the Third Defendant from these proceedings. There was no objection from the defendants and the application was granted by the court.
2. 	The plaintiff says that on the evening of the day in question, he was visiting Vaiana Saena whom he treats as his mother at Tuana’i. Upon his arrival to Vaiana’s home, he witnessed a boundary dispute between Vaiana and the First Defendant where he saw the First Defendant’s children running over to Vaiana’s land. The defendants are adjacent neighbours with Vaiana Saena and are related. The Plaintiff says that he tried with Vaiana to calm the First Defendant and her children but the Second and Third Defendants went over to where the Plaintiff’s vehicle was parked and started to physically damage the vehicle with rocks and an iron bar. 
3. 	The Plaintiff claims that he asked the First Defendant as to why they are damaging his car as he had nothing to do with the dispute but the First Defendant said only said to her children: “Oo e fai - o le mea lena e sau so’o ai le ta’avale lea.” The Plaintiff says the actions of the Defendants were all recorded on his phone. But the First Defendant slapped the phone from his hand and it fell down but the phone kept recording the audio and what was said. The Plaintiff’s counsel for whatever reason did not seek to produce the recordings on the Plaintiff’s mobile phone. 
4. 	The Plaintiff testified that the Second Defendant used a large rock and threw it at the front wind screen. He then used an iron bar to damage the right side view mirror, the right front door window, the right backdoor window, the right side cabin window and the left front door window as well as evident scratches to the right side front panel above the front right tyre. The Plaintiff tendered by consent of the defendants Exhibit P1 which was 11 pages of photographs taken showing the damages to the Vehicle.
The Claim
5. 	The Plaintiff claims negligence on the part of the Defendants in the damage to his vehicle. As a result of the damages, the Plaintiff suffered an estimate of about SAT$10,000 to repair his vehicle based on two quotes the Plaintiff obtained from DMD Loibl Motors of SAT$10,050 (Exhibit P2) and Mavaega Hunt of SAT$10,000 (Exhibit P3).
6. 	Furthermore, the Plaintiff claims that his family’s cocoa plantation business suffered a financial loss for two years since the incident. The Plaintiff however under oath offered no supporting evidence as to the value of such loss. The Plaintiff also claims that not being able to use his vehicle meant that he was unable to transport his musical instruments to functions where he generates his main revenue in Upolu, Savaii and sometimes in America Samoa. However, the Plaintiff was not able to produce any evidence as to the value of such loss nor did he testify orally under oath as to what that amount might be. The only evidence that the Plaintiff produced as cost to him of alternative transport Exhibit P4 is a signed agreement between the Plaintiff and Taeipo Aiolupotea, the daughter of Vaiana, for the use of Taeipo’s motor vehicle from 2nd February to 2nd June 2018 at a cost of SAT$150 per week to a total of SAT$3,600 for the period agreed. The Plaintiff testified that as of the date of the hearing, this money has not been paid to Taeipo but had used Taeipo’s car.
7. 	Under cross examination by Mr Kerslake, the Plaintiff confirmed that the First Defendant did not physically damage the vehicle. However, the Plaintiff went on to respond that the First Defendant only instructed the First and Second Defendants to damage the vehicle by saying: “Oo e fai!” Mr Kerslake further put to the Plaintiff that the First Defendant stood between him and her sons protecting him from her sons. The Plaintiff denied this and said that it was only the First Defendant’s daughter that came over and told them not to damage the vehicle. The Plaintiff also confirmed that he was paid SAT$3,000 from the Courts monies ordered against the Second defendant to pay as reparations to the complainant in the criminal hearing.
8. 	The Plaintiff further testified under cross examination that he used the $3000 to buy parts for the vehicle that he repaired himself and a friend named “Tusi”. He purchased a slightly cracked windshield from “Faaolotoi” and the rear passenger window right side was replaced. The rest of the damage remains unrepaired as he does not have the money to pay Loibl Motors. The Plaintiff disputes the defendants assertion that the market value of his vehicle is $5,000 but $20,000. Neither the defense nor the Plaintiff offered any real evidence as to the value of the vehicle as well as the relevance of such evidence to the dispute.
9. 	Mr Kerslake further put to the Plaintiff that the Second Defendant offered to fix his vehicle. The plaintiff accepted that he was offered that but he did not trust the second defendant after what they did. Mr Kerslake also put to the plaintiff that it was unlikely that he would be pressed to pay $3,600 for the use of Taeipo’s car given that his relationship with Vaiana is like a mother and son but the plaintiff countered that the agreement reflects the intention that he was given a significant discount compared to the normal rental rates. Mr Kerslake finally put to the plaintiff that their family had no cocoa plantation prior to the date of the incident. The plaintiff re-affirmed that they had a growing plantation but neglected since the incident given the damage to the vehicle.
The case for the Defendants
10. 	The first and second defendants gave evidence. The Second Defendant gave evidence first and confirmed that he damaged the Plaintiff’s vehicle but only the front windscreen by using a large rock. He then used an iron bar to damage the right side side-view mirror, the right side back door window and the right side cabin window. The second defendant denied damaging the right side front door window and the left side front door window attributing that to the third defendant. The second defendant further denied that he was responsible to the scratches above the right side front wheel panel. 
11. 	The second defendant further testified that he was convicted in the district court of intentional damage, insulting words, armed with a dangerous weapon and throwing stones (Exhibit D1 tendered by the defendants). He was convicted of intentional damage and ordered to pay $3,000 for reparations and to re-appear in court within 12 months. He was convicted and discharged of the other four (4) charges. The second defendant testified that the first defendant never said a word and did not participate in the destruction of the plaintiff’s vehicle. In fact, the second defendant testified that it was the plaintiff who said “Oo e fai” not his mother. Mr Kerslake was reminded that this evidence was not put to the plaintiff.
12. 	As to the quotes, the second defendant testified that he was given the two quotes by the plaintiff. However, he went himself to Asco Motors and obtained a quote for three parts of the vehicle that he claimed he himself damaged (Exhibit D2) totaling $3,278.17.
13. 	Under cross examination, Mr Patea put to the second defendant and confirmed that he used a large rock and an iron bar to damage the plaintiff’s vehicle. Mr Patea put to the second defendant that he was following instructions from the first defendant to damage the vehicle and it was not for him to disobey the first defendant’s instructions. The second defendant denied that his mother instructed them to damage the vehicle. He further responded that he only damaged those parts that he admits to.
14. 	The first defendant testified that the only time she was involved was when she stepped in between to stop her son who was walking towards the plaintiff. She then slapped the phone from the plaintiff’s hand when he yelled out to her son: “Oo e fai”. This evidence of what the plaintiff is alleged to have said was not put to the plaintiff. Under cross examination, Mr Patea put to the first defendant Exhibit D1 that her conviction for assault as well as her son’s conviction was evidence that they all intended to damage the vehicle of the plaintiff. The first defendant accepted she was convicted but she was not involved in the damage. 
Analysis 
15. 	The evidence that I heard in this case featured various conflicts, and therefore it cannot all be correct.  The divergence in the evidence simply does not allow for that to occur.  I have looked at all the evidence with the aim of being objective, careful, impartial and dispassionate in my assessment of the evidence.  
16. 	It has been necessary for me to consider the honesty, reliability and credibility of each witness.  I do not have to accept everything that a witness says or reject anything that a witness says.  I am entitled to accept and reject parts of what a witness said in their evidence. 
17. 	I also emphasize that in reaching a decision in a Judge alone trial, it is neither necessary - nor am I required - to articulate findings about every item of the evidence.  My role is to determine whether the plaintiff has proven the elements of the alleged claim on the balance of probabilities. Upon meeting the basic elements of the claim, the burden then shifts to the defendants to establish a legal defense and/or counterclaim against the plaintiff. The defendants in this case however offer no legal defense nor a counter-claim but puts the Plaintiff to proof of all the factual allegations comprising of the negligence. This is well established law for which no authority is necessary.
18. 	The plaintiff claims negligence on the part of the first and second defendants. In Tutuila v Punitia [2012] WSSC 107 (21 June 2012), Justice Slicer as he then was stated in paragraph 67:
	67. Act and omission both give rise to duty (Home Office v Dorset Yacht Club Inc [1970] AC 1004, Sunderland Shore Council v Heymon [1998] 192 CLR 330, Brownie Wills v Shrimpton [1998] 3 NZLR 320). Here, once the Plaintiffs were wrongly evicted from the land, the Fono was required and had a duty to protect the vacant property. The Defendants held both a personal responsibility, as ones who had decided on the eviction, and the collective body through the doctrine of vicarious liability.
	68. In ANS v London Borough of Merton [1975] AC 728, the House of Lords stated that the issue of duty was to be approached in two stages, namely;
	“...whether as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.” 
19. 	The evidence of the defendants and Vaiana’s family living side by side as well as the fact that they were related was not disputed. The plaintiff from the evidence was known by the defendants as a person who frequents Vaiana’s premises. The second defendant’s testimony was uncontroversial in that he openly admits that he damaged the vehicle except for the right front door window, the left front door window and the scratches on the side panel above the right front wheel. The second defendant offered no excuse or defense as to his actions but just to casually say “The plaintiff is involved” in response to cross examination question as to what reason damage was done to the plaintiff’s vehicle and yet the plaintiff was not involved.
20. 	Despite the second defendant suggesting that his brother Westmere (the third defendant) also participated in the damage, Exhibit D1 produced by the second defendant contradicts this assertion as it shows Westmere was only convicted of insulting words and not of intentional damage in the District Court criminal division. Having not to speculate on the investigation by police, the court can only draw the inference that the second defendant was solely responsible for the physical damage to the plaintiffs vehicle.
21. 	As to the second stage of the approach to the question of duty of care, the second defendant offered no legal defense to negative or reduce or limit the scope of the duty but merely put the plaintiff to proof of the factual allegations. Such a response weighs heavily against the second defendant given the expected but unnecessary costs of such matters coming before the courts to the parties involved.
22. 	As to the first defendant, her evidence was doubtful and unconvincing. Notwithstanding her testimony that she was not involved in the damage to the vehicle nor encouraged it, the circumstances surrounding the incident speaks otherwise. I accept the evidence of the plaintiff in that the first defendant did encourage the second defendant by damaging the vehicle by saying to “Oo e fai mea lena e sau soo ai le taavale lea”.
23. 	Applying evidence of convictions pursuant to section 107 of the Evidence Act 2015, she was convicted of assault arising out of the same incident relying on Exhibit D1 when she assaulted the plaintiff. Her mere presence and her inactiveness or omission to act to stop the actions of the second defendant damaging the vehicle suggests that there was no intention to do so and her only purpose was to exact her own justice upon the family of Vaiana and whoever else was with them.
24. 	In the Tututila case, notwithstanding the fact that the plaintiff nor the defendants did not specifically plead vicarious liability, Justice Slicer found the Alii and Faipule of Tanugamanono who made the decision to banish the plaintiffs were vicariously liable to the subsequent actions of the taulelea’s who burnt the plaintiff’s premises. In particular, the Alii and Faipule involved in the banish decision whose children were implicated in the arson:
	71. Here the Court is satisfied on either test that each Defendant, with the exception of Atoa Kisona, namely the Alii and Faipule as representatives of the Fono (whose decision was unanimous) and as an individual owed a duty of care to the Plaintiff to protect the Plaintiff’s property from damage. The question of principle or policy consideration embraces or can be replaced by the custom of Samoa of matafaioi.
	72. The reasons include:
	(1) the land on which the destroyed property was situated was on customary title;
	(2) the land had long been held by the Plaintiff’s family by custom;
	(3) the Alii and Faipule were responsible to the land as a whole;
	(4) the Fono, comprising the Alii and Faipule, had been granted power by the Constitution and an enactment of the Legislative Assembly to maintain peace and good governance within the village;
	(5) it had banished the Plaintiff at short notice and prevented them from protecting their assets;
	(6) it stood in the position akin to a trustee or bailee to protect the assets;
	(7) it provided, by omission, no protection for the safety of the assets;
	(8) in preventing re-entry it prevented the Plaintiff, her family or agents from taking steps to preserve the property; and
	(9) the Defendants, by their acts or omissions, permitted others to destroy the property, steal the livestock and permit others to remove the plantations. 
	……….
	Vicarious Liability
	77. Vicarious liability arises where one person or institution is held to be liable for the tort committed by another even if the liability does not arise from a particular act committed by the defendant. The most common application of the doctrine is the relationship between employer and employee, or the state and its agencies.
	78. Redress through vicarious liability requires answers to three preliminary questions, namely
	(1) has a tort been committed;
	(2) what is the relationship between the person who committed the tort and the person who is alleged to be vicariously liable for it; and
	(3) what connection exists, if any, between the tort and in the relationship in question.
	79. The relationships can vary and the tort committed outside of the normal terms of that relationship (Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555; Janata Bank Ltd v Ahmed [1981] 1 SCR 791; F v Attorney General [1994] 2 ERNZ 62). International or ‘wilful’ tortuous acts such as assault and trespass may attract vicarious liability when committed within the scope of the relationship (Peterson v Royal Oak Hotel Ltd [1948] NZLR 136; Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187.
	80. Here the Defendants, both individually and collectively, had a special relationship through family, custom and the Act itself, with the members of the village and especially the young untitled men. The relationship can be described by custom as ‘matafaioi’ as used in the term: …..
25. 	Applying the same principle, the first defendant (given their family relationship with Vaiana and any other person who frequented at Vaiana’s premises) had a duty of care to the plaintiff not to harm or damage the plaintiff’s vehicle. The plaintiff was known to the first defendant. There was no evidence to suggest that the first defendant was present at Vaiana’s property for the sole purpose to prevent the actions of the second defendant. The first defendants evidence that she stepped in between the plaintiff and her son to stop her son from assaulting the plaintiff is not believable and also consistent with her conviction on assault of the plaintiff (Exhibit D1) as well as the chronology of the incident. The first defendant assaulted the plaintiff after the damage to the vehicle had already come to an end.
26. 	I am satisfied that the first and second defendants are responsible for the damage to the plaintiff’s vehicle. 
27. 	I now turn to the issue of consequent damages relating to the plaintiff’s one-man band business, cocoa plantation and costs of alternative transport. In considering these claims, I bear in mind that the plaintiff has a duty to mitigate his damages as stated in Eletise v Lutuiloa [2018] WSSC 52 (6 April 2018) where Justice Nelson stated:
	44. A further hurdle facing the plaintiff is the well known duty on plaintiffs to mitigate their damage. The locus classicus being found in the judgment of Viscount Haldane L.C. in British Westinghouse Electric & Mfg Co Ltd v Underground Electric Rail Co of London Ltd [1912] AC 673 at 689 (HL) where he said that the law:
	“imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.”
28. 	In considering these aspects of the claim, I also bear in mind that the court “… should assess the compensation in a robust manner, relying on the presumption against wrong-doers, the onus of proof, and resolving doubtful questions against the party whose actions have made an accurate determination so problematical - see LIP Investments Pty Ltd v Howard Chia Investments Pty Ltd. (1990) 24 NSWLR 499 at 508 cited in Justice Wilson’s in Fiso v Reid [2000] WSSC 51 (14 July 2000)).  As indicated earlier, there was no evidence by the plaintiff in support of the costs or value of his cocoa plantation revenue affected because of the damage to the vehicle. The plaintiff claims that as a result of the damage, there was no way he was able to regularly visit the plantation and harvest his cocoa for sale. There being no evidence in support of this claim, it is difficult for the court to resolve as to what amount is being claimed under testimony. There being no evidence of what that amount was, even a robust consideration by the court not having any evidence to rely on would be unjust. This claim is therefore untenable.
29. 	The same fate applies to the plaintiff’s claim that his livelihood as a one-man band was affected as there was no vehicle to transport his musical instruments. The plaintiff offered no evidence as to what regular earnings he received from his enterprise. The plaintiff further testified that he used Vaiana’s daughter’s car from January to June 2018 for his personal use. This evidence contradicts the assertion that his one-man band enterprise suffered financial inactivity due to having no transportation. Having obtained alternative transport, the plaintiff would have been able to continue with his enterprise within the period from 2 January to 2 June 2018 as per the hire agreement Exhibit P4. There is no evidence that the Plaintiff had mitigated his loss after 2 June 2018 to date nor the fact that if he sustained a loss what was the actual or estimated value of that loss. There being no evidence as to the actual or estimated value of the alleged financial loss via his one-man band enterprise, this claim is also untenable.
30. 	Alternatively, the plaintiff tried to mitigate his earnings loss from 2 January to 2 June 2018 by hiring Taeipo’s car. The cost claimed by the plaintiff in Exhibit P4 is the associated cost for transport at $150 per week amounting to a total of $3,600 for 24 weeks. The plaintiff testified that he had not paid this amount to Ms Taeipo. On a robust consideration of this amount notwithstanding the fact that this amount has not been paid to Ms Taeipo, it was quite a generous agreement from the plaintiff’s position considering the common knowledge of the value of a rental vehicle to be from between $80 to $200 tala per day depending on the type of vehicle one may hire.
31. 	I accept that as a consequence of the damage to the plaintiff’s vehicle, he had to decide on alternative transport to continue on with his livelihood. This led him into a contractual relationship Ms Taeipo. I find that the amount claimed by the plaintiff from the period 2 Janaury to 2 June 2018 is very reasonable and generous to the defendants. However, there being no testimony by the plaintiff as to the period after 2 June 2018 to date, I am left with Exhibit P4 to make this determination. I am satisfied that that the plaintiff is entitled to this amount claimed of $3600 to fulfill his contractual agreement with Ms Taeipo arising out of the damage to his vehicle by the defendants.
32. 	It is also to be noted that the plaintiff confirmed that he received $3,000 from the courts as payment for reparations ordered by the court. I do not accept the contention from the second defendant that that was the total amount in the judgment of Judge Roma appropriate to the value of the damage. It is clear form Exhibit D1 that this was one of the parts of the sentence for the payment of reparations but did not represent evidential proof of the estimated or actual value of the damage to the vehicle. That is the domain of the civil jurisdiction of the District Court and the plaintiff has correctly sought that avenue in the present claim. 
33. 	However, as correctly pointed out by Mr Kerslake and agreed to by Mr Partea, such amount must be deducted from the plaintiff’s claim. The plaintiff mitigated his loss by using the $3,000 to purchase some of the material and repairing some of the damage himself with the assistance of his friend Tusi. 
Conclusions
34. 	Given the low quality of the evidence as to fixing the quantum, the court can only draw inferences and base findings of fact on the quality of the evidence adduced. Having said this, I am mindful that the court must still “… assess the compensation in a robust manner, relying on the presumption against wrong-doers, the onus of proof, and resolving doubtful questions against the party whose actions have made an accurate determination so problematical”.
35. 	As against the first defendant, I find that I accept the evidence of the plaintiff that the second defendant on the principle of vicarious liability by not taking action to prevent or discourage the second defendant from damaging the plaintiff’s vehicle. The first defendant owed a duty of care to ensure that the plaintiffs vehicle was not harmed or damaged. Her conviction of assault on the plaintiff on the day and time the incident occurred and her omission to act to prevent or discourage the second defendant from damaging the vehicle is circumstantial evidence upon which the court can draw the only inference that the first defendant did not care less as to the property of the plaintiff.
36. 	The case against the second defendant is straight forward. He readily admits to the damage to the said vehicle and was deliberate as to his actions. The second defendant only disputes that he was not responsible for all the damage to the vehicle attributing that to his deceased brother Westmere. However, this is contrary to Exhibit D1 tendered by the second defendant himself which goes to prove that he was the only person charged with the criminal intentional damage charge to the vehicle. Westmere was only charged with insulting words. The only inference I can draw from that piece of evidence is that the second defendant was solely responsible for the physical damage to the vehicle.
37. 	As to quantum in relation to the damage to the vehicle, I accept Exhibit P2 and Exhibit P3 as indicative of the estimated cost of damage to the plaintiff’s vehicle both dated 7 February 2017. That being over two years now, it is reasonably expected that specific item costs may be slightly more expensive than it was two years ago. However, given that this was not pressed by the plaintiff and no evidence adduced, the court will take the highest quote in Exhibit P2 and deduct the $3,000 paid by the second defendant which leaves an amount of $7,050.
38. 	As to the consequent costs of alternative transport for the one-man band enterprise, I accept the Exhibit P4 as a reasonable consequence eventhough the value is quite generous so far as it affects the first and second defendants. Being the only evidence that the plaintiff relied on, the first and second defendants are liable for this consequence and cost.
39. 	The claim as to the financial loss of the cocoa plantation produce is not proven and therefore struck out. 
Decision
40. 	Judgment for the plaintiff against the defendants jointly and severally in the proved total damages amount of SAT$10,050.
41. 	An award of punitive damages is appropriate in this case given the reckless disregard behavior of the defendants. This is not the case of the vehicle being damaged indirectly as a result of flying projectiles or what not but a deliberate act and intention on the part of the second defendant to damage the vehicle and the first defendant to just be present and encourage the actions of the second defendant. It is unfortunate, however, for the plaintiff did not claim punitive damages where if he had, I would have awarded punitive damages subject to an appropriate amount reflective of the defendants conduct.
42. 	Costs are also awarded to the plaintiff in a sum to be approved by the court if counsels are unable to reach agreement.

DCJ SCHUSTER