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Wansowicz v Palepoi [2011] WSSC 105 (8 April 2011)

CP - 82/10

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

ITELE WANSOWICZ
female of Tulaele, Domestic
Plaintif

AND:

VA PALEPOI trading under the style
SAMOA CAR WASH
of Saleufi, Businesswoman.
First Defendant

AND:

ANGIE PALEPOI of Tulaele,

Car Wash Clerk/Manager.
Second Defendant

Counsels:Mr F K Ainuu for plaintiff
Ms R Drake for first and second defendant

Hearing: 08 March 2011
Submission: 08 April 2011
Judgment: 19 August 2011

ORAL DECISION OF NELSON J

[1] The plaintiff is the registered owner of a 2001 Isuzu Rodeo sports utility vehicle. It is a left hand drive car and was purchased second hand from the United States of America in 2003. The first defendant owns and operates a car wash business at Savalalo in Apia trading as Samoa Car Wash. A business that washes, dries, vaccums and cleans the exterior and the interior of motor vehicles. The second defendant is the daughter of the first defendant and at all material times was acting as a servant and agent of the said Samoa Car Wash. She was the manager of the said business according to her testimony.

[2] On 5 September 2009 at about 10 am in the morning the plaintiff took her car to be washed at Samoa Car Wash. Her evidence was she agreed to the price quoted to wash and vacuum her car and parked the vehicle where indicated by the first defendants brother Joe who is also an employee of the business. She went to a nearby tent and sat there waiting for her car to be processed and talking with one Seumanutafa whose vehicle was in front of hers in the queue.

[3] Her car was washed and was awaiting drying and vacuuming when she saw the second defendant enter the vehicle. She heard the engine being reved, in her evidence she described it as being reved in preparation for a race. ("o le ola pei e sauni e tau tutu'u") and she also heard the second defendant call out something to her but she was unable to decipher what the second defendant was saying as her speech was not clear because "e ma'i le teine." (The girl was sick). She deduced the car which is an automatic drive vehicle was in neutral gear and that the second defendant was having difficulty placing the gear stick into the drive position. She was walking over to the vehicle when suddenly its tyres squealed and the car took off and hit the vehicle in front of it pushing both vehicles into a ditch in front of the car wash. She said that if Joe who had been polishing Seumanutafas vehicle had not jumped out of the way, he would have been injured.

[4] The accident shocked both her and Seumanutafa and she returned to the tent and sat down speechless. The second defendant remained in the vehicle for some time before getting out and coming over to the two of them and saying she would call a tow-truck for both vehicles to be taken to their mechanic . She waited for some time at the scene for the first defendant owner but was told that the first defendant was not available that day as she was attending a funeral. After a wait of some two hours she left the scene.

[5] The second defendants evidence was that she works in the family car wash and according to her affidavit exhibited as Exhibit "D-3" for the defence as a manager for the family business together with her uncle and two other workers. She had been working there for almost 10 years. Their duties involve the washing, drying, vacuuming and cleaning of the inside and outside of each motor vehicle brought in. She said that some car owners leave their motor vehicle with them to clean and they come back later while others wait while their car is being serviced.

[6] She said that on the day in question the plaintiff brought her car in and she noticed that the plaintiffs vehicle was too close to the side of another vehicle so she got into the plaintiffs vehicle to try and position it correctly. She said when she turned the ignition on and shifted the gear stick to the drive position the car did not move. She then called out to the plaintiff and told her this and the plaintiffs reply was that the car can move. The plaintiff said to just move the gear. She then put the gear into the reverse position then back into drive and the car moved forward and hit another customers car causing damage to the plaintiffs car as well as the car of that customer.

[7] She said that the plaintiff then screamed and said to her that she had just finished fixing the gear and she told the plaintiff that something was wrong with the gear but the plaintiff said she had just finished getting the gear repaired. She apologized and told the plaintiff that they would repair the car and she said in her affidavit she then went to a mechanic by the name of Francis Uhrle and asked if he could repair the damage to the plaintiffs motor vehicle and that Mr Uhrle replied yes and his tow-truck came and towed the plaintiffs vehicle to his workshop. By that I took her to mean that she did not personally visit Mr Uhrle but she probably called him and made this arrangement by telephone.

[8] The plaintiff in her evidence denied that she told the second defendant anything about fixing the vehicles gear or gear box or that she had just finished getting the vehicles gear fixed. She also denied telling the first defendant the same thing. There is no other evidence before the court suggesting or confirming that the vehicle in question required such repairs before the accident. And if the defendants are correct as to what they said the plaintiff told them, why then would they subsequently apologise to the plaintiff and give her their vehicle to use as alternative transport while her vehicle was undertaking repairs. I have considered the matter as there was some argument on this issue but I prefer and accept the evidence of the plaintiff that there were no repairs required or indeed made to the vehicles gear stick or gear box prior to this accident occurring.

[9] The evidence of the first defendant was that the second defendant is her daughter and she works in the family car wash business with Joe. It is a small family business owned by her and designed to cater for the financial needs of their aiga. She confirms her absence that day from the business but she obviously learnt subsequently about the accident. She also said that she instructs the business employees and that the second defendant is in fact assistant manager to her. She says that the second defendant is primarily the cashier while her brother Joe looks after the manual aspects of the operation. She also said that contrary to what the second defendant said, she does not allow the second defendant to drive any of the customers vehicles.

[10] I accept this evidence of the first defendant because the second defendant is clearly a physically challenged young lady. She was hit by a car as a child I am told and as a result has obvious physical limitations. These from my observations also extend to some extent to her speech. But I was impressed by her fortitude and obvious desire to be an independent and self sufficient young woman at 36 years of age. However, given her obvious limitations no prudent employer would put her behind the wheel of a car. Which is why I am sure her mother said that she is not allowed to handle customers vehicles notwithstanding it is within the car wash yard. I am sure she was only trying on this day to help but that has led to disastrous consequences for all concerned. She was also probably not aware that in older model automatic vehicles from the United States there is a button on the side of the gear that needs to be engaged before changing the gears to different positions in particular before changing it to the 'drive' position.

[11] I am satisfied from all this evidence that the defendant should be held liable for the plaintiffs damage. The first defendant herself recognized this by going to the plaintiffs home on Tuesday 08 September 2009 a few days after this accident occurred, Monday 07 September 2009 being a public holiday for the famous Samoa road switch, and apologizing to the plaintiff for what had happened and offering the plaintiff her vehicle for the plaintiffs use while awaiting repair of her car. The real argument in this case I believe is as to the costs to be allowed to the plaintiff for the damage she is alleged to have suffered.

[12] In respect of that the plaintiff claims the following sums for the vehicle damage. In accordance with paragraph 8 of her statement of claim she claims the sum of $5,420 for the grill and lights. Secondly $1,000 for a fan clutch, bonnet repair and a paint set and $3,800 for labour and materials for the panel beater. In addition to that she claims a number of miscellaneous items: an antenna, a 4 ton jack, a spare tyre, a license sticker and a battery which she claims went missing from the car while it was under the care and control of the first defendants mechanic. The total amount claimed in this regard is the sum of $11,354.00 which together with VAGST at 15 percent adds up to a grand total of $13,057.10.

[13] The plaintiff also says that she suffered further damage as a result of unavailability of her vehicle and she was required to hire a vehicle and take taxis to transport her daughter to and from school as well as to attend to some of her normal daily chores. That although the first defendant assisted her in the beginning by providing her with transportation she soon realized that she was the victim of the arrangement because she was having to adjust her schedules to accommodate the first defendants. As a result she claims in paragraph 11 of her statement of claim further costs being car rental cost and taxi hires from the period 22 October 2009 to 03 May 2010, 22nd October being the date upon which she commenced using other transportation and being the date that the first defendant no longer supplied transportation for her use.

[14] In relation to the vehicle damage the plaintiffs evidence was that there was damage to the hood, grill, front lights and radiator. Post accident the vehicle was towed to the premises of the defendants mechanic a Mr Francis Uhrle at Lotopa. And although the plaintiff said she was initially quoted by Mr Uhrle the sum of 17 to 18 thousand to repair her vehicle she accepted in cross examination that a written repair quote was subsequently given to her by Uhrle exhibited as Exhibit "D-1" for the defence for the much lesser sum of $7,850.00 for the said repairs. She said her vehicle stayed at Uhrles yard for about 3 months awaiting parts and she regularly checked on it and became concerned at the delay in progress in getting the vehicle back onto the road. At various time she was told it was awaiting parts or awaiting payment for parts. As a consequence of this eventually she removed her vehicle from Uhrle and turned it over to her own engineer a Mr Mandy Chadwick who lives next door to her.

[15] She said at that stage only the vehicle hood had been repaired. There were no replacement lights, grill or radiator and the vehicle had to be repainted. All these repairs were undertaken by Mr Chadwick who then rendered an account to her for $11,354.00 ex VAGST. Which account included the cost of replacing parts or items that had gone missing from the vehicle while it was in Uhrles custody. She now therefore claims from the plaintiffs the sum of this repair plus VAGST making a total of $13,057.10.

[16] Her engineer Mr Chadwick gave evidence confirming these charges and producing as Exhibit "P-1" for the plaintiff his invoice. He also confirmed the items that had gone missing were in the vehicle when it was serviced by him in June 2009 prior to the accident. And he said that all work on the vehicle had been completed and that he was still awaiting payment for his services. He said it took about 4 weeks to carry out the repairs and the relevant parts were all sourced and supplied to him by the plaintiff. The plaintiff in her evidence confirmed she had scouted out the parts and that there was difficulty in obtaining some of them. No doubt because the vehicle was an American import. Some parts such as the grill the plaintiff said had to be purchased from the United States.

[17] The first defendant disputes the costs of the replacement parts as no receipts have been provided by the plaintiff proving the fact of purchase or the amounts paid. I note however that the total amount claimed for repairs is only some $2,000 different to the quote rendered by the first defendants own mechanic. I have in that calculation disallowed the $300 claimed for a clutch fan as there is no evidence that the damage caused by the accident extended to the clutch. It is also not referred to in Uhrles quote and no evidence was tendered by the plaintiff to show if this is the same as the radiator fan mentioned in Uhrles quote. I also keep in mind that at least one major part for the American import namely the grill had been sourced from the United States of America.

[18] I therefore accept the validity of the plaintiffs claim as to the cost of these replacement parts. As to the labour charge this to is a comparable amount to that quoted by the first defendants engineer but of course engineers have different charge out rates just like counsels. The plaintiffs evidence was that when she removed her vehicle the hood had been repaired but had not been properly aligned and as the majority of the damage in this case would have been to the front of the vehicle, in particular to the front panels of the vehicle (see Uhrles quote which refers to the front bumper and right fender) and would have been to an area in the front where these replacement parts would have had to have been installed as opposed to the hood, I agree with the submission by counsel for the first defendant that there must be some adjustment to the labour costs chargeable by the plaintiffs engineer. In respect of this I make a deduction of $1,000 from the amount charged by the plaintiffs engineer for his services.

[19] As to the missing items claimed there were also no receipts produced for these by the plaintiff although Mr Chadwick confirmed in his evidence that these parts were missing and had been in the vehicle in June 2009 when he serviced the vehicle. In the absence of receipts the evidence does not establish when these parts went missing or the cost of replacement parts. The plaintiff cannot expect to recover the cost of purchase of replacement parts without establishing with some degree of certainty when these parts went missing and without producing any substantiating documentation. I am not prepare to allow this part of the claim and the costs for the missing items are disallowed.

[20] Under this head the damages allowable are:

[21] In relation to the claim for alternative transport the plaintiff has submitted a claim for $14 thousand odd tala. It is common ground in this case that the first defendant voluntarily undertook responsibility for the plaintiffs transport arrangements post accident and this continued for the period 05 September 2009 when the accident occurred up until 21 October 2009. A period of some 46 days. It appears that at that point differences arose between the parties which I do not propose to go into or review and the arrangements that had continued satisfactorily ceased and the plaintiff therefore claims as from 22 October 2009 the cost of a rental car and taxis up to May 2010. The plaintiff is to say the least optimistic if she believes that the cost of alternative transport for a 4 week repair job is claimable for 7 months post accident.

[22] If her counsel has not explained to her the law clearly is that the plaintiff is under a duty to mitigate his or her damage and resort to a rental vehicle is not necessarily in keeping with such a duty in the ordinary course of events. Unless there be some compelling reason that a rental vehicle is necessary and for such cost to be allowed. No such compelling reason arises from the evidence I have heard in this case. But I do accept that the delay in repairing the plaintiffs vehicle is not all of the plaintiffs making and some cost of alternative transport is therefore recoverable. It is no defence for the defendants to claim that the arrangement for alternative transport are to be determined in accordance with the needs of the defendants or at the defendants discretion. Were it not for the second defendants action as agent and employee of the first defendant the plaintiff would not have been in the position she found herself to be in.

[23] I will allow the cost of alternative transport for a period subsequent to 21 October 2009 when the arrangement as to alternative transport ceased. Bearing in mind the plaintiffs evidence as to the transport requirements of her and her family which her vehicle would normally have provided, I fix these costs at the sum of $50 per day which I consider commensurate and reasonable with the circumstances as outlined by the plaintiff in her evidence.

[24] As to an appropriate period to allow for the repair of the plaintiffs vehicle, normally taking into account the engineer Mr Chadwicks evidence that it took 4 weeks to repair the vehicle, a two months total period to cater also for the sourcing and shipment of parts for an overseas import would probably be reasonable and sufficient. This case however involves an American import and I accept that at least one significant replacement part needed to come from the United States of America I will therefore extended that period to 3 months and allow the plaintiffs claim for alternative transport for that period. The net result of all this is as follows:

[25] Judgment will accordingly be entered for the plaintiff in the sum of the original repair costs of $10,258.00 plus $2,2000.00 costs of alternative transport. To that must be added a reasonable contribution to costs as the plaintiff is entitled to costs in this matter. This is assessed on a one day defended hearing basis including time taken for preparation and for submissions. I fix that at $2,500.00. The total of these sums is $14,958.00. To that can be added any reasonable disbursements as approved by the Registrar as having been incurred by the plaintiff in this matter.

............................
JUSTICE NELSON