IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

TITO SIMO’O TE’O
of Vaie’e, Safata
PLAINTIFF

AND:

MAIAVA VISEKOTA PETERU
of Ululoloa, Solicitor as Administratrix of the
estate of LEVAULA SAMUELU KAMU late of Apia Deceased.
Defendants

AND:

H.T. RETZLAFF
of Apia, Barrister & Solicitor
THIRD PARTY

Counsel: Mr TS Toailoa for the Plaintiff
Mrs MV Peteru for the Defendants

Date of Judgment: 11 February 2004

JUDGMENT BY FORMAL PROOF

1. The plaintiff was seriously injured in a traffic accident on the 27th January 1986 while he was driving a Mazda pick up which collided with a truck travelling the opposite direction. He was hospitalised for almost a whole year, and despite a number of operations he became paralysed from the waist downwards. At the time of the accident the plaintiff was 27 years of age, employed as a Primary School teacher (on probation) at an annual salary of $3,895.

2. Approaches were made by the plaintiff’s sister and mother to the law practice of the Third party in January 1987 who at the time employed the defendant and her late husband as staff solicitor. A deposit of $125 was paid on behalf of the plaintiff into the trust account of the third party on the 22nd April 1987 as legal fees to commence legal proceedings.

3. In July 1987 the defendant and her late husband left the employ of the third party and set up their own legal practice. At that time the defendant’s late husband had not commenced legal proceedings on behalf of the plaintiff. The plaintiff’s file remained with the office of the third party pursuant to a letter dated the 21st July 1987 from the third party to the defendant and her late husband which reads:

"Dear Leva and Kota,

Office Files

As you were employees of this office, all office files remain my property.

If you intend to continue practice in Apia, any clients who wish to remove their files will require a letter to me according to procedures laid down in our ethics.

If you have removed any files I shall require their return immediately.

I look forward to your co-operation in this matter.

Yours faithfully,

H.T. Retzlaff"

4. Before the defendant and her late husband left the employ of the third party the plaintiff’s sister and mother did from time to time follow up on the plaintiff’s claim. The plaintiff himself on several occasions telephoned and talked to the defendant’s late husband who assured the plaintiff that his claim was in order. At no time was the plaintiff advised of the provisions of the statute of limitations.

5. It was not until sometimes in 1988 that the plaintiff’s family discovered that the defendants have set up their own practice and after consulting firstly with the defendant and subsequently with the defendant’s late husband it was agreed that a fresh file be made for the plaintiff’s claim upon payment of $250. On the 11th August 1988 $250 was paid into the defendant’s trust account as deposit on fees re claim. Subsequently a copy of a Statement of Claim purporting to be the claim by the plaintiff against the owner of the other vehicle involved in the traffic accident was given to the plaintiff and his family.

Proceedings were commenced on the 21st April 1989 and were struck out on the grounds that they were statute barred and costs of $400 awarded against the plaintiff.

6. In September 1992 the plaintiff commenced action against the defendant’s late husband for breach of contract in that he failed to promptly file proceedings within time and was negligent in failing to do so. The defendant then moved to issue third party proceedings. In March 1994 the Court of Appeal dismissed the appeal by the third party from a judgment of this court which granted leave to the defendant to issue and serve third party notice. Parties were then engaged in interlocutory motions and applications and before the action proceeded to a hearing the defendant’s late husband passed away in 1999 resulting in the defendant being sued as the administratrix of the estate of her late husband. Present counsel for the plaintiff filed other proceedings citing the third party as the only defendant but those proceedings were subsequently discontinued and present proceedings filed in 2000.

7. In any event the present proceedings after several adjournments was set down for hearing on the 16th October 2002 and on that date the defendant did not come to court and after hearing submissions from counsels for the plaintiff and for the third party I was satisfied that the defendant was aware of the action coming to a hearing. I then dismissed the claim against the third party with costs and ordered the plaintiff to file affidavit of formal proof.

8. On the 18th October 2002 I was given a memorandum of costs filed by counsel for the third party as well as a letter from the defendant to the registrar wherein the defendant alleged that she was not advised of the hearing date and requested 14 days to make submissions. I then ordered the deputy registrar to place both documents in the file and to refer the file back to me when the defendant has either filed her so called submissions or after 14 days whichever happens first. It was not until counsel for the third party wrote towards the end of 2003 that the file was brought back to me. Both the plaintiff and third party owe an apology by the court. The defendant did not file submissions and Mr Toailoa for the plaintiff filed affidavit of formal proof in November 2002.

9. When the defendant and her late husband left the employ of the third party in July 1987 nothing was done to facilitate the claim by the plaintiff since January 1987 when legal assistance was sought and engaged. The simple truth of the matter is that it was never entertained in the mind of the defendant’s late husband that the claim was statute barred after two years. In fact in August 1988 after the claim was statute barred the defendant’s late husband agreed to take fresh instructions and accepted a retainer of $250. Indeed it appears to me that he did not even consider filing an application with the court for leave to bring the action out of time and within six years. The irresistible conclusion is that the defendant’s late husband may have been mistaken about the time limitation and was therefore negligent when he did not promptly file proceedings for the plaintiff, or to file within the two year period or apply to the court for extension of time. As a consequence of his failure and breach the plaintiff was denied the opportunity to bring a claim against the driver and owner of the other vehicle involved in the traffic accident for damages for the injuries sustained.

10. At the time of the accident the plaintiff was 27 years of age employed as a schoolteacher at Sa’anapu Primary School at an annual gross salary of $3,895. As the usual retirement age for public servants is 55 years he therefore had 28 years of service before retirement, but due to the accident he was no longer able to work and has lost income he would otherwise have earned 28 years totalling:

28 years x $3,895				=	$109,060.00
5% National Provident Fund contributions	=	$ 5,453.00
							$114,513.00

The plaintiff also claims $12,000 for the value of the vehicle he was driving and which was written off as a result of the accident.

11. I will dispose first with the claim for the loss of the vehicle and lastly with the claim for personal injuries. I have had the benefit of perusing the file composed for the plaintiff when the defendant was instructed in January 1987 while under the employ of the third party. That file shows that the vehicle was purchased second hand in or about 1983 in American Samoa at a value of US$3,000. When the defendant was instructed in 1987 the estimate pre-accident value by the plaintiff was $7,000 and the defendant properly noted the file that the value of the vehicle needs to be realistic. I have nothing before me to indicate the realistic pre-accident value of the vehicle. The claim for $12,000 is outrageous when compared to the purchase price in 1983 of US$3,000 as a second hand vehicle. The claim for the vehicle is dismissed.

12. I shall now deal with the claim for personal injuries which is the main thrust of the claim and this claim will be dealt with under the three traditional categories:

(a)	Pain and suffering

The plaintiff says that as a result he suffered severe spinal and limb injuries; was hospitalised for about a year and also had to undergo of operations and consequently he had to weather a great deal of pain, suffering and psychological anguish.

I accept that with the spinal injuries he suffered at the time of the accident the plaintiff suffered several pain, and after the operations the plaintiff did experience severe pain. He has not made a specific claim for damages for pain and suffering although he has claimed $1,200 for worry anxiety and inconvenience. But as I have accepted he suffered pain and distress and anxiety I am prepared to make an award of damages under this heading. I accept of course that the human body has a natural capacity to adjust as the healing process advances so that the pain progressively disappears. I bear in mind that the purpose of an award under this head is to cover pain and suffering from the instant of the accident for the rest of one’s life. The plaintiff does not say how long he experienced pain for but I do accept he was in hospital for 12 months in 1986 and experienced pain during that time. In the circumstances I award $2,500 for pain and suffering.

(b)	Loss of Amenities

Again the plaintiff does not claim damages specifically under this head but as I have indicated above I will examine the claim for damages for personal injuries under the three traditional categories. It need not be said that it is very difficult to measure in monetary term the loss of enjoyment of life. And it seems to me that the plaintiff’s lifestyle centred round his teaching career and nothing more, but even if that is the correct view of his lifestyle I must accept that fulfilling one’s occupation especially as a school teacher is a source of pride; carries substantial responsibility and perpetuates self esteem. Being confined to a wheel chair at the age of 27 is a permanent loss of amenity. His lifestyle has materially changed from being independent to being a dependant; his prospect of finding a marital partner has virtually if not totally disappeared. He is now 45 years of age. His inability to walk is a permanent loss of amenity. I consider that the reasonable amount for an award under his heading is $20,000.00.

(c)	Loss of Earning Capacity

Under this heading the plaintiff claims what he would have earned had he continued working as a teacher until the retiring age of 55 years. The total amount claimed is $109,060.00. That is:

28 years x $3,895.00		=	$109,060.00

So that at the time of the accident the plaintiff was earning a gross fortnight salary of $149.80 or a weekly gross of $74.90.

The plaintiff says he is claiming $109,060.00 because he is no long able to work for the rest of his life. And he can no longer work because he is paralysed from the waist downwards and can only move around with the aid of a wheel chair.

It appears from his affidavit that the plaintiff left the teaching profession voluntarily and his last salary as a teacher was paid on the 3rd April 1986. I find it difficult to accept that he cannot continue to teach for the reason that he relies heavily on the wheel chair for mobility but at the same time I do accept he will rely heavily on transport to commute. In any event I accept that there is a loss of earning capacity. In assessing damages for loss of earning capacity I take into consideration the comparative awards given in other personal injury cases like Western Samoa Shipping Corporation v Iosefa Feagai (1994) CA 6/93 unreported judgment 22 March 1994; E PIHL & SONS and A/S RORBYG v Oli Manufotu CA 7/02 unreported judgment 2/12/02; Toilolo Egelani v Board of Trustees of the Methodist Church (unreported judgment of Sapolu CJ 5 April 2002).

At the age of 27 the plaintiff had a working life of 28 years and most probably more and because of his physical disability his employment opportunities will be limited drastically. With his pre-accident gross earnings of $74.90 there is very little scope for saving or making any accumulation of capital out of such an earning capacity. On the other hand there is the possibility that he will earn increased wages and bearing in mind also the ordinary risks of life such as ill health, dismissal incapacitation or redundancy, based on his pre-accident weekly earnings of $74.90 I think it is reasonable to average his loss of earnings over his anticipated working life at say $30 per week so that his loss of earning capacity for 28 years amounts to $43,680. But this figure of course needs discounting for very obvious reasons but the affidavit of formal proof and the statement of claim itself as well all the materials on file provide no assistance for the calculation of a realistic final figure to represent the loss of earnings capacity. In my view the best estimate is to reduce the amount of $43,680 to $30,000.

13. The plaintiff claims $400 being costs granted against the plaintiff when the claim was struck out on the grounds it was statute barred. The claim for $400 succeeds.

14. The plaintiff claims interest on the award amount at 14% from the 21st June 1991 to the date of judgment. I accept that the plaintiff has suffered financially as a result of the delay in the hearing of his claim against the defendant; but that delay cannot be attributed entirely to the defendant. It is difficult to trace with accuracy from the notations on the files the history of these proceedings, but there have been changes in solicitors, changes in proceedings and parties which all contributed to the delay. In the circumstances I think it would be unreasonable to grant the claim for interest and it is accordingly denied.

15. Judgment is given for the plaintiff as follows:

Special Damages		=	 $400.00
General Damages		=	$52,000.00
Costs for the plaintiff to be fixed by the Registrar.

JUSTICE VAAI