IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

ETUALE IOANE
of Moamoa, Public Servant
PLAINTIFF

AND:

TAI TAULAGA
of Vaivase-tai, Businessman
DEFENDANT

AND:

TOALUA MALIVAO
of Toamua, Driver
DEFENDANT

Counsel: Mr P. Fepuleai for the Plaintiff
Mr S. Toailoa for the Defendants

Dates of Hearing: 26 & 27 October 1999
Date of Ruling: 30 June 2000

REASONS FOR A DECISION OF WILSON J.

This is a civil action in negligence brought by the plaintiff, the owner of a Mitsubishi pick-up vehicle, against the owner (the first defendant) and the driver (the second defendant) of a bus which collided with the pickup in a collision which occurred on 2 July 1998 on Beach Road, Apia near a junction which is adjacent to the Courthouse in which this civil action has been heard.

It was the plaintiff’s case that the driver of the plaintiff’s pick-up, one Maselino Ioane, had been travelling in a westerly direction along Beach Road when, after stopping at red-lights that were showing at the junction for traffic travelling west, the plaintiff’s pick-up was struck from behind by a bus which had also been travelling in a westerly direction. It was the plaintiff’s allegation that the second defendant, for whose tortious conduct the first defendant is vicariously liable, inter alia failed to exercise due care and attention and failed to stop, slow down or swerve so as to avoid the collision. The plaintiff claimed that the pick-up was severely damaged in the collision and that the damage caused cost him ST$6,188.00 to repair. The plaintiff also claimed that the plaintiff, on behalf of his wife and himself and his children, incurred taxi expenses totalling ST$660.00 to enable his family to get to work and school respectively for three weeks whilst the pick-up was out of action being repaired. A claim for ST$5,000.00 general damages was not pressed.

The defendants denied that the second defendant had driven negligently and said that the accident was due to the negligence of the driver of the plaintiff’s pick-up by changing lanes suddenly without due regard for vehicles travelling along the seaward lane of the right-hand carriage-way of Beach Road and by failing to exercise due care and attention.

With reference to the claim for damages for loss sustained, the defence alleged that "the particulars of damage …. have been exaggerated" and that "he was not given an opportunity to inspect the vehicle and to verify the damages as claimed." The defence denied "that the cheaper of two quotes obtained by the plaintiff for carrying out these repairs" was the amount claimed, and made some allegations, none of which alleged facts, if true, were contended would constitute a legal defence. I construe some allegations of fact set out in paragraph 8 of the defence as constituting inter alia an allegation of failure to mitigate the plaintiff’s loss. The defence disputed the claim for general damages and alleged that a plea of guilty by the second defendant to a charge of negligent driving causing injury, if entered by the second defendant (which was not admitted), "does not constitute sufficient proof of negligence." By way of further defence the first defendant alleged that the accident was caused by the negligence of the driver of the pick-up "plus a sudden failure in the brakes of the first defendant’s bus."

The witnesses who gave oral evidence were Maselino Ioane, the plaintiff’s brother and driver of the pick-up on the day of the collision; the plaintiff himself; Sonny Mahdar, the mechanic who undertook the repairs to the pick-up; Tai Saletele, the first defendant; and Leilani Saletele, the wife of the first defendant.

The documentary evidence comprised the plaintiff’s motor vehicle license (exhibit P1), some photographs of the pick-up (exhibits P2 to P5), the invoice/statement/receipt for the repair costs (exhibit P6), and a sample of hand-writing (exhibit D1).

It is not necessary for me to analyse in any detail the credibility of the witnesses. It will be sufficient for me to indicate that I was not impressed by any of the defence witnesses, but I was impressed by each of the plaintiff’s witnesses. The driver of the pick-up, Maselino Ioane, gave a convincing account of how the accident occurred and of the negligence of the bus-driver, the second defendant. The evidence was circumstantial as to the second defendant’s lack of attention and his failure to manoeuvre to avoid the collision. There was no independent eye-witness who told of seeing the second defendant not looking ahead as the bus was approaching the junction or his slowness in reacting to the pick-up, from behind which the bus was approaching. However, there was circumstantial evidence comprising, first, the evidence of the driver of the pick-up himself who denied any last-moment change of lane; secondly, the objective evidence of the photographs (exhibits P2 to P5) which revealed that a largely rear-end impact occurred as opposed to an angular impact, which was to be expected if the impact was caused by the pick-up changing lanes and necessarily crossing into the adjacent lane at an angle; and, thirdly, the evidence by way of an admission against interest made by the second defendant when he pleaded guilty to a charge of causing bodily injury by negligent driving.

This circumstantial evidence in its totality, all of which I accept, satisfied me on the balance of probabilities that the second defendant was indeed negligent in the manner alleged by the plaintiff. The hypothesis relied upon by the plaintiff is, in the circumstances, the more probable. The hypothesis relied upon by the defence seemed to me to be in the realm of conjecture and surmise [see Nominal Defendant v Owen 22 ALR 128, Luxton v Vines (1952() 25 CLR 352 and Chamberlain v R (1984) 153 CLR 521 per Mason J (as he then was) at p.535].

The plaintiff was entitled to rely on the plea of guilty as an admission. It was not necessary for the plaintiff to rely upon the second defendant’s conviction on the charge of causing bodily injury by negligent driving. Even had it been so necessary, the rule in Hollington v Hewthorn, upon which Mr Toailoa relied in his final submissions, is no longer the law in New Zealand [see Jorgensen v News Media (Auckland) Limited (1969) NZLR 961] and is not, I think, a part of the law of Samoa.

Whatever may authoritatively be held to be the law in Samoa regarding the admissibility of a conviction of a traffic offence involving negligence in a civil trial in which an allegation of negligence is relied upon, the plea of guilty is admissible evidence of an admission. I simply did not believe the second defendant when he asserted that he, albeit as an unrepresented defendant before the Court which heard and determined a charge of causing bodily injury by negligent driving, did not understand the charge and believed that he was only acknowledging having contributed to the damaging of another vehicle.

I was not at all impressed by the first defendant’s evidence as to the quantum of the damage caused to the pick-up. Although he is qualified to assess the cost of repairing a damaged vehicle, he clearly had a purpose of his own to serve; he was not a neutral witness; and he made his assessment upon the basis of an examination of photographs. Through no fault of his own, he had not examined the actual vehicle in its damaged state. I agree with Mr Fepuleai that, for the defence to have had a realistic chance of succeeding in refuting the alleged repair costs, the defence ought to have called an independent panel-beater or loss assessor.

There is no substance in the defence contention that the plaintiff failed to mitigate his loss. The expenses incurred for alternative transport for the plaintiff and his family for the first three weeks of the time during which the pick-up was being repaired were fair and reasonable. I find that the particulars of the plaintiff’s damages were not exaggerated.

I find that the second defendant was negligent as alleged. The first defendant is vicariously liable for the damages to which the plaintiff is entitled. I assess the plaintiff’s damages for damage to the pick-up at ST$6,188.00 and for travelling expenses at ST$660.00. There will be judgment for the plaintiff against the first defendant in the sum of ST$6,848.00.
I will hear counsel as to the question of costs.

JUSTICE WILSON