IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

TUSIPEPA LUI
(also known as Lotufa'avae Tusipepa Lui)
widow of ATONIO LUI, Deceased of Moamoa.
Plaintiff

AND

LEIFI APINERU TOLEAFOA
of Fasito'o, Bus Owner
First Defendant

AND

MALUELUE AFUALO
of Fasito'o and Tufutafoe, Savai'i, Driver.
Second Defendant

Counsel: M Leung Wai for plaintiff
Mr Toailoa for first and second defendants

Hearing: 4, 5, 6 May 2004
Judgment: 11 May 2004

JUDGMENT OF JUSTICE A E GASKELL

[1] Antonio Lui died when the van he was driving collided with a bus at Puipaa on the 8th of May 1999. He was 47 years old. He was the sole breadwinner for his family at the time. His widow now claims for herself and her two dependent daughters, an award of damages under the Fatal Accidents Act 1974.

[2] Such a claim requires proof that the death of Antonio Lui was caused by a wrongful act, specifically the negligence of the bus driver, the second defendant. It is not disputed that if that were proved, then the first defendant, the owner of the bus, would be vicariously liable if the driver was his employee and was driving in the course of his employment.

[3] The defendants accept that Mr Lui died as a result of the collision. The Court must determine whether the second defendant's driving was negligent; whether there was any negligence on the part of Mr Lui, and, if so, the extent to which it contributed to the collision; and assess the damages, if any, that should be awarded to the plaintiff.

The Facts:

[4] At about 6.00 am on Saturday, 8 May 1999, the plaintiff's husband was driving his employer's van from the airport, heading towards Apia. The road was two lanes wide. The van, if it had been in the correct lane, would have been on the inland side of the road. The weather was fine. Although the sun was not up, it was light enough for vehicles to travel without their headlights on.

[5] Travelling in the same direction as Mr Lui, but some distance behind him, was a vehicle driven by Mr Tuala. Mrs Tuala was a passenger in that vehicle. Travelling in the opposite direction were two buses. The first was a bus driven by Falevaai Ah Kuoi. He had Mr Faaoso with him as supercargo, and two passengers, Mr Sapau and Mrs Sauaga. The other bus, which was being driven by Maluelue Afualo, the second defendant, was named Queen Poto. The bus belonged to his employer, Leifi Apineru Toleafoa.

[6] On 8 May, Mr Afualo left the Fugalei markets at approximately 5.40 am to drive to the Mulifanua wharf, to connect with the 8.00 am ferry for Savaii. The trip usually takes about an hour. Because the following day was Mothers' Day, the bus was crowded. The maximum number of passengers the bus could carry was 33. On this day there were, on the driver's estimate, 50 or more people on board.

[7] It is not necessary to examine in detail the evidence of each of the nine witnesses who were present at the time of the accident because they all ascribe to one or other of the two versions of events that are before the Court.

[8] I find that the van driven by Mr Lui travelled in the correct lane as it was approaching the bus driven by Mr Ah Kuoi. That first bus, when it pulled to the side of the road, did so for a purpose unrelated to the van. As Mr Lui was about level with the first bus, the Queen Poto bus moved into Mr Lui's lane at an angle, so as to get past the first bus. Mr Lui attempted to avoid a collision by swerving inland. The Queen Poto bus kept coming until it was completely in Mr Lui's lane. To get there it had crossed the double unbroken lines marked on the centre of the road. The bus collided with the van on the shoulder of the road, beyond the outer edge of the inland lane. The front corner of the van, on the driver's side was extensively damaged by the impact. The front of the bus was damaged, slightly to the driver's side of centre. The damage shows that the bus was head on to the van at impact. The version of events I have accepted is entirely consistent with the objective evidence of the photographs.

[9] The general speed limit in the area is 35 mph. The speed limit that applies when a vehicle is passing any stationary bus or other vehicle which is taking on, or letting off passengers is 15 mph. The only witness for the plaintiff who was able to give evidence about the second defendant's speed was Mr Faleono who was travelling in the second defendant's bus. He said that when the second defendant changed gear to overtake, he was doing about 40 mph. Mr Faleono's evidence about speed was not challenged in cross-examination. However when the second defendant gave evidence, he told the Court that he was travelling at 25 mph when he overtook the other bus. The defence witness, Mr Misipati, supercargo on the second defendant's bus, initially said that the bus was not speeding. He said it was doing 30 mph. He accepted that in a statement he made on the day of the accident, he said that he had worked as supercargo on the bus every day for 7 years so he could tell whether it was going fast or slow. He said in his statement that he knew the bus was travelling fast. He confirmed in evidence that the bus had been speeding. I find that the second defendant was travelling at a speed greater than the general speed limit of 35 mph.

[10] It is implicit in my findings of fact set out above, that I accept the evidence given by the plaintiff's witnesses, particularly Mr and Mrs Tuala, and that I reject the evidence of the defence witnesses insofar as it is inconsistent with it. The defence version of events was that the van travelled along the road entirely or almost entirely in the lane on the seaward side of the road, so it was heading directly at oncoming traffic, and in particular at the bus Mr Ah Kuoi was driving. He said that he began slowing down and that he sounded his horn to warn the van driver. When the van continued towards him, Mr Ah Kuoi said he moved towards the side of the road and tooted his horn repeatedly. Mr Ah Kuoi and two of his passengers told the Court that the van driver was asleep. It was their evidence that just before the two vehicles were about to collide the van driver came to and swerved to the other side of the road at what was estimated to be an angle of 45 degrees. While the van avoided hitting the first bus, its trajectory across the road, according to the defence evidence, brought it into the path of the Queen Poto bus that had just moved into the inland lane where the van was, to overtake the first bus as it pulled over. The second defendant and his supercargo, Mr Misipati, gave evidence that the inland lane was clear when the driver moved out to overtake the first bus. Defence witnesses from the first bus told the Court that there were no vehicles, apart from -the van, in the inland lane. The Queen Poto bus could not stop in time to avoid colliding with the van.

[11] If there were to be any prospect of the defence version of events being believed, there would have to be a credible explanation for the van's being driven on the wrong side of the road. Mr Ah Kuoi, his supercargo, Mr Faaoso, and his passenger, Mrs Sauaga, provided an explanation by saying the van driver was asleep.

[12] All three demonstrated that he was holding the top part of the steering wheel with both hands and that his head was against his hands. I do not accept that if someone fell asleep while driving, he would be in such a position. It would be surprising if his whole torso fell forward in the way demonstrated by the witnesses. It would be far more likely that his head would drop or fall forward so that his chin was against his upper chest.

[13] Another reason why I disbelieve the evidence that the van driver was asleep is that there was no suggestion that he was driving in anything other than-'a straight line and within the marked traffic lane. On the distances Mr Ah Kuoi gave when explaining his sketch, his bus was 50/60 metres from the bend. One can assume that the van driver was awake when he rounded the bend. Mr Ah Kuoi demonstrated that the van was about 7 metres from his bus when it swerved away into the other lane. On that evidence the van driver had a maximum of 43-53 metres in which to fall so soundly asleep that he could not be woken by the noise of the loud bus horn when it was initially tooted. In the absence of a credible explanation for the van driver being on the wrong side of the road and driving on a collision course with oncoming traffic, the defence version of events is implausible and I reject it.

[14] Support for the conclusion I have reached as to how this accident occurred comes from the objective evidence of the photographs, which are consistent with the plaintiff's version of events. From photos D2 and D3, I find that the point of impact was at the outer edge of the van driver's lane, the inland lane. If the defendants' version of events had been correct, then the point of impact would have been in the middle of the inland lane, which is in fact where Mr Ah Kuoi marked it on his sketch. Given the extensive damage to the van, I do not believe that it would have travelled under its own power beyond the point of impact. The bus could have shunted it on impact, but given the angle of the bus as depicted in photos D2 and D3, if it did shunt the van, it would have been backwards rather than on an angle from the middle of the road to the edge.

[15] The position of the damage on the vehicles is consistent with the van taking evasive action by swerving inland to avoid a collision. The damage to the bus is almost directly to its centre front, indicating that the bus was head on to the van at the point of impact. That is consistent with the second defendant taking no evasive action.

[16] 'The witnesses from the first bus heard rather than saw the accident, because it happened behind their bus. If the accident occurred behind the first bus, and I accept that it did, that means that the van had travelled the full length of the bus without incident. That is not consistent with the defence theory that the van suddenly swerved out from behind the first bus and into the path of the Queen Poto bus.

[17] I note that the conclusion I have reached is consistent with the conviction of the second defendant for negligent driving causing death in the District Court in July 1999 and with the subsequent dismissal of his appeal against conviction by the Supreme Court. The fact of that conviction has no bearing on the conclusion I have reached. I made my own assessment of negligence purely on the evidence I have heard in this case.

[18] I do not intend to comment at any length on the credibility of various witnesses, as the conclusions I have reached on the facts depend largely on the independent evidence of the photographs and on the inferences I have drawn from uncontested facts. I do wish to record that I found Mr and Mrs Tuala to be impressive witnesses. I found them to be truthful, reliable, and credible. Their evidence was inherently consistent and plausible. They were not shaken in cross-examination on any matter of significance. Mr Toailoa made much of Mr Tuala saying on oath that he was about 40 metres behind the deceased's van, and on another occasion saying he was about 30 metres behind it. The witness explained that his distance behind the van was not constant as he was gaining on it. Whether it was 30 or 40 metres away is of little moment, as long as he could see what was happening. Some defence witnesses would have had the Court believe that the Tualas were not at the scene, but I have no doubt that they were following the van and were in a good position to see what happened. I have rejected the defence version of events as untrue. I do not intend to speculate about the reasons why some of the defence witnesses lied on oath.

The Law:

[19] The plaintiff, as widow of the deceased, claims damages for herself and the deceased's two daughters under The Fatal Accidents Act 1974 against the second defendant for negligence causing the death of her husband in a motor vehicle accident. If he is found to be negligent as alleged, then it is accepted that the first defendant, his employer, will be vicariously liable for his employee's negligence. The defendants deny that the second defendant was negligent, but accept that the collision was the cause of the deceased's death.

[20] There is no dispute that the plaintiff is entitled to bring a claim under s 3 of the Act, as her husband would have been entitled to sue the defendants in negligence if he had not died as a result of the accident.

[21] Counsel accept that the plaintiffs claim is not barred by The Accident Compensation Act 1989 which states, in s 65(2): "that any person entitled to proceed under The Accident Compensation Act may proceed both under the Act and independently of it".

[22] Counsel for the defendants submitted that the second defendant would not owe a duty of care to the van driver if he were travelling in the wrong lane in the face of oncoming traffic. It is not necessary to rule on that as I have found that the plaintiff was travelling in his correct lane. Mr Toailoa accepts, on that finding of fact, that the second defendant owed the deceased a duty of care.

[23] The issue is whether the second defendant breached that duty of care. In the Statement of Claim, the plaintiff lists the heads of negligence on which she relies. On the facts as found, I am satisfied that the plaintiff has established that the second defendant was negligent in driving at an excessive speed; in failing to keep a proper look out; in commencing to pass or overtake another vehicle when the way was not clear to do so; in failing to see the deceased's van; in driving into the path of the deceased's van; and in failing to stop, steer clear or otherwise avoid a collision with the deceased's van.

[24] The second defendant also breached certain traffic laws. He crossed double unbroken centre lines when he was neither leaving the road or entering it, in contravention of clause 17 of The Road Traffic Orders 1994. I do not accept Mr Toailoa's submission that it was not reasonable to require the second defendant to wait until the first bus was ready to move on.

[25] The second defendant also fell below the standard of care expected of a prudent driver when he overtook the first bus, after it had pulled to the side of the road, at a speed in excess of the 15 mph set by Reg 109(2)(c) Road Traffic Regulations 1961. Mr Toailoa submitted that there was no breach as there was no evidence that passengers were getting on to or off the bus. While that may be so, the second defendant gave evidence that he believed that that was the reason why the first bus pulled over, and therefore he should have passed it at the reduced speed required by the Regulations. The plaintiff submitted that the second defendant was also negligent in a way that contributed to the death of the deceased by carrying well in excess of the maximum number of passengers allowed. I accept that the heavier the load on a vehicle, the longer it will take to stop but there is no evidence about whether the carrying of approximately 17 extra passengers affected the braking capabilities of the second defendant's bus. I cannot speculate about that.

[26] I am satisfied that the plaintiff has proved that the second defendant was negligent. The first defendant is therefore vicariously liable. The plaintiff, having established that the defendants are liable in negligence, is entitled to an award of damages against them.

[27] The defendants have failed to establish that there was any contributory negligence on the part of the deceased.

Damages:

[28] The assessment of damages under the Act is based on the amount of pecuniary benefit which the surviving dependants of the deceased might have expected to derive if death had not occurred: s 5.

[29] There is no statutory direction as to how the Court, in assessing damages under the Act, should treat any amount received as a result of the death. There is little assistance on that issue in the cases that counsel have referred me to.

[30] It is acknowledged that any assessment of damages under the Act is an artificial exercise based on conjecture and speculation, as Lord Diplock said in Cookson v Knowles [1979] AC 556,568.

[31] The factual basis on which the assessment in this case is to proceed is agreed. The deceased was born on 3 April 1952 and was therefore 47 at the date of death. His widow was 39 at the time and their daughters were 10 and 8 respectively. The deceased was in good health. It was expected that he would contribute to the NPF until aged 55; that he would continue to work until aged 65 (that is for a further18 years); and that he would receive the Senior Citizens' benefit from then until the age of 71.8 years, which is the average life expectancy of a Samoan male according to a recent census.

[32] I attach a schedule setting out the calculations by which I have arrived at an assessment of damages to be awarded to the plaintiff. I will endeavour to explain my approach. I have considered pecuniary loss in three separate periods:

1. The first period comprises the four years when the plaintiff received weekly compensation from the Accident Compensation Board (ACB).

1.1 The plaintiffs entitlement under that Act is greater than it would be under The Fatal Accidents Act because it is not subject to deductions, such as for the husband's share. The defendants submit that the full amount of the weekly payments paid to the widow by the ACB should be deducted from the damages awarded to her. It is arguable either way. The defendants would, if a deduction were allowed, benefit from the widow's entitlement to receive the ACB compensation. I accept that there would be an element of double recovery if no such deduction were made. On the other hand, s 5 of the Act makes no mention of how such sums should be treated in assessing damages. There is nothing to say that they should be taken into account in favour of a defendant who is liable to pay damages. It is also relevant to note that the ACB is empowered by s 65(3) of The Accident Compensation Act to ask the plaintiff for a refund of any damages she is awarded. It is a matter for the ACB's discretion. In case such a request is made of the plaintiff by ACB, I wish to make it quite clear that the deduction from the award of damages of the full amount of the weekly ACB compensation paid to the plaintiff, means that the plaintiff is not recovering any sum from the Court in respect of the first four years after her husband's death.

2. The second period is the year between the cessation of ACB weekly payments and the date of trial.

2.1 This year is to be treated differently from the first period because there is a deduction to be made from the amount of the assessed pecuniary loss. It is necessary to deduct a sum for the husband's share. In the cases to which I have been referred, the husband's share has been set at 33%. In a family of four, as here, I accept that the husband's share would be at least 25%. On an income of $80 per week, I imagine a family of four would have little or no discretionary spending. I therefore think it appropriate to fix the husband's share at 30%.

2.2 It is unnecessary in this period to deduct any sum against the prospect of the widow's remarrying or of the early death of herself or either daughter, as the period is complete and those eventualities did not occur. Such deductions will be made in the period that follows.

3. The third period is from the date of trial until the time when the deceased would have reached the age of 71.8.

3.1 Mr Leung Wai helpfully calculated what the deceased's contributions to NPF and what the compounding interest would have amounted to if the deceased had contributed to the Fund until he was 55. Mr Toailoa accepts the calculation. The starting point for the calculation was the amount standing to the deceased's credit in the Fund at the date of his death. That sum will be deducted from the total pecuniary loss to avoid double counting.

3.2 Deductions will be made for the husband's share as explained above. It is usual to deduct an amount to recognise the possibility of the widow remarrying or dying early, or either of the daughters doing so.

Appropriate figures to recognise those risks in the present case are:

2% against the risk of remarriage,
5% against the risk of the widow's early death and 
3% against the risk of the early death of one or both children.

3.3 Another issue that arises in regard to this period is the treatment of the lump sum paid to the widow by the ACB. The issues are the same as those discussed above in paragraph 1.1, except there is not the same apparent element of double payment as with the weekly compensation payments. If the ACB lump sum were deducted, that would benefit the defendants, but it might significantly disadvantage the plaintiff because if the ACB tried to recover the money from her she would not have in fact received it and the defendants would have reaped the benefit of her ACB entitlement. If it were not deducted from the pecuniary loss figure, at least the widow would have received both the lump sum and damages. On that analysis it would be unfair to allow the lump sum payment from ACB to be taken into account in the assessment of damages.

4. Funeral Expenses

4.1 The plaintiff claimed a total of $4,900 for the costs of grave, casket, hearse and lauava. She did not produce receipts for any of the expenses she claimed. I questioned whether the evidence established that she had incurred the expenses, so as to entitle her to claim damages under s 11 of the Act. Mr Toailoa told the Court he took no issue on either point. On the basis of his concession, the figures to be awarded are as claimed.

4.2 Mr Toailoa accepted that money the plaintiff received towards funeral expenses could not be deducted from the damages award, on the authority of Suemalo v Western Samoa Trusts Corporation (No 2) WSLR [1980-1993] 167.

4.3 Again there is an issue as to whether the sum paid to the plaintiff by ACB towards the cost of funeral expenses should be deducted from the award of damages. The ACB payment was for a specific expense. In that way, it is similar to the payment of weekly compensation discussed in paragraph 1.2 above. Not to deduct it appears to allow double recovery for a specific item. Given the defence concessions as to quantum and as to the plaintiffs entitlement to claim the funeral expenses under s 11, there is no unfairness to the plaintiff to allow the sum to be deducted from the award.

Conclusion:

[33] There will be judgment for the plaintiff against the first and second defendants in the sum of $48,838.

[34] By consent the plaintiff is awarded costs according to scale against the first and second defendants.

Gaskell J

SCHEDULE

1. Loss of wages May 1999 - May 2003 –

$80 x 52 x 4	=	16,640			
Deductions -	
1	ACC weekly payments	=	16,640		$	
			$00.00	(1)	00.00	
2	No other deductions as ACB ' paid full weekly wages without deduction. All 3 dependants remained alive and widow did not remarry					

2. Loss of wages May 2003 - May 2004 (date of trial) –

$80 x 52 	=	4,160			
Deductions -	
1	Husband's share at 30%	=	1,386		$	
2	No other deductions as all 3 dependants remained alive and widow did not remarry.					
		=	$2,774	(2)	$2,774.00	

3. May 2004 to date when husband would have been 71.6 years –

(i)	Loss of wages (to 65)					
	$80 x 52 x 13 
	=	$54,080			
(ii)	NPF - total entitlement					
	(to age 55)	=	$12,000			
(iii)	Husband's senior citizen's					
	Benefit	=	$ 8,160			
		=	$74,240			
Deductions -	
(i)	NPF sum paid to widow	=	$ 3,970			
		=	$70,270			
(ii)	Husband's share (30%)					
(iii)	Widow's remarriage (2%)					
(iv)	Widow's early death (5%)					
(v)	Dependants early death (3%)					
	Total: 40%	=	$28,108			
		=	$42,162	(3)	$42,162	

4.	Funeral Expenses		$4,900			
	Deductions	
	(i)	ACB contribution		$1,000			
			=	$3,900	(4)	$3,900	
				TOTAL:		$48,838