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Agita v Aluta [2008] SBHC 14; HCSI-CC 495 of 2005 (1 April 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 495 of 2005

ERIC AGITA

-V-

TOMMY ALUTA &
JEREMY ALUTA

(Palmer CJ.)

Date of Hearing: 22nd August 2007, 20th September 2007;
Date of Judgement: 1st April 2008

Jame Apaniai Lawyers (J. A. Keniapisia for the Plaintiff)
Bridge Lawyers for the Defendants

Palmer CJ.:

The plaintiff, Eric Agita ("Agita") is the owner of a taxi with registration number AB340 ("Taxi 340"). He comes to court to claim damages for the loss of his vehicle and subsequent loss of income of his taxi business up to 90 days thereafter as a result of an accident in which his taxi was severely damaged by another taxi ("Taxi 948") owned by Tommy Aluta ("Aluta") and driven by his son, Jeremy Aluta ("Jeremy").

He avers that at the time of the accident Jeremy was negligent in that he:

(i) drove taxi 948 whilst under the influence of liquor;
(ii) failed to keep any, or any proper, look out for, or to give way to, on-coming traffic and in particular taxi 340;
(iii) failed to keep to the left-hand side of the road whilst on the road; and
(iv) was driving too fast and in a manner which was dangerous in the circumstances.

The accident occurred on 11th November 2004 in the evening along the Tandai Highway. That accident involved both vehicles and resulted in extensive damage caused to Taxi 340.

The defendants deny that Jeremy was drunk at the time of the accident. Whilst they concede he was negligent they aver contributory negligence from the driver, Jeremy Sam ("Sam") of Taxi 340.

(i) Was Jeremy under the influence of alcohol at the time of the accident?

The crucial evidence on this came from Billy Abae ("Abae") who owns a fleet of taxis called United Taxi Service. Aluta was a member of Abae’s fleet at the time of the accident. Part of the service Abae provides is to maintain radio link communications with his fleet of taxis daily. Taxis which are available and working on the road report to his base regularly regarding their movements each day enabling him to monitor and coordinate their movements etc.

On this particular evening, he had received information that an accident involving Taxi 948 had occurred. He drove straight to the scene. On arrival he noticed that Jeremy appeared drunk. He made this conclusion based on his observation of his mannerisms as he stood on the side of his vehicle and when he was talking to others. He says Jeremy was trying to appear normal in his behaviour but that he could see through this as he was a drinker himself. He says there was a strong smell of liquor from Jeremy as well as from his vehicle.

In his defence, Jeremy said nothing about this fact in court. Although he had not been charged for driving while under the influence of liquor, I am satisfied from the evidence of Abae that there Jeremy was affected by alcohol.

I find Abae to be a frank, sincere and honest witness. He had reason to conceal the fact that Jeremy was drunk but chose to be honest about his observations. He is a credible witness who gave his evidence in a straightforward manner. He did not want to hold back or hide anything regarding what he observed at that time. I accept his evidence as credible and reliable. I am satisfied on the balance of probabilities Jeremy was affected with alcohol at the relevant time.

(ii) Did Jeremy fail to keep any, or any proper, look out for, or to give way to, on-coming traffic and in particular taxi 340, and did he fail to keep to the left hand side of the road whilst on the road?

The plaintiff relies on a conviction recorded in the Magistrates Court, in which Jeremy pleaded guilty to a charge of dangerous driving, contrary to section 39(1) of the Traffic Act, as well as evidence from Sam and his passenger, Young Fisher ("Fisher") and Jeremy himself.

Jeremy was convicted and fined $250.00 by the Magistrates Court. He was also disqualified from driving for 12 months.

The facts presented in the Magistrates court showed that as he drove on a westerly direction along the Tandai Highway, he drove out suddenly onto the opposite side of the road and collided with Taxi 340 on the eastbound lane. The accident occurred when he attempted to overtake a vehicle in front of him.

These facts coincide with the oral evidence adduced in court. Fisher and Sam confirmed that when they came past a sharp bend at Tandai Highway, a speeding vehicle on the westbound lane suddenly drove out onto their lane and straight towards them. It was trying to overtake a vehicle in front of it but was traveling at high speed towards them. Both said everything happened so fast. Sam said he was in a dilemma. If he swerved to the left to avoid the fast approaching vehicle he risked ploughing straight into a deep ditch and most likely having them all killed or seriously injured. A site visit confirmed the existence of a deep drain on the side of the road, consistent with Sam’s evidence. Sam told the court that he felt the only viable option open to him was to swerve to the right to avoid a head on collision and thereby minimise damage and potential injuries to himself and his passengers. If he did neither, he felt a head on collision was inevitable with disastrous consequences for them.

Jeremy told the court that he decided to overtake a vehicle in front of him when he thought the road was clear. On realizing that a vehicle was on the opposite lane, he decided to accelerate in the hope of completing his maneuver before the oncoming vehicle reached him. As he turned towards his lane, the oncoming vehicle also turned in the same direction resulting in the collision. Jeremy escaped with minor injuries but the driver and passengers in Taxi 340 suffered serious injuries. Fortunately they all made good recovery.

I am satisfied on the evidence before me that it is entirely consistent with the allegations raised against Jeremy that he failed to keep any proper look out for, or to give way to, on-coming traffic and failed to keep to the left hand side of the road whilst on the road. The fact there was a bend in front of him naturally meant his vision to see further in front of him would be impaired and that he ought not to have undertaken any overtaking maneuver at that point of time.

In their defence, the defendants allege that the driver of Taxi 340 was speeding. They also say he was busy telling stories and therefore was not concentrating on his driving. It was also alleged that Taxi 340 was tinted in the front screen and therefore would not have given him clear vision of the road ahead and of the oncoming vehicle in time to avoid the collision. By turning inwards towards the right lane he acted negligently and thereby caused the accident. Had he slowed down and remained on his side of the road he would have avoided an accident.

On the issue of over-speeding, there is simply no evidence to support such allegation. Sam told the court that he estimated his speed at that time to be around sixty kilometers per hour (60 km/h). That is clearly within the allowable speed limit at such stretch of the road and therefore cannot by any standards be considered as amounting to over-speeding. I reject this assertion.

On the issue of being distracted because he was busy telling stories with his passengers, there is also no evidence whatsoever to support such allegation. In cross examination, Sam denied telling stories with Fisher or the other passengers in his car. He told the court that it was the passengers who were telling stories and he was merely listening to them. He denied being distracted in his driving. This allegation is mere speculation and must be rejected.

On the issue of the tint in the front wind screen of the vehicle, Sam told the court that the tint was only at the top part to block out the sun’s rays. It did not go right down to the bottom part of the wind screen. I accept his evidence that there was no tint in front of him which would have affected his view. This allegation must also be rejected.

I find no or little evidence to support the allegations raised against Sam that he was negligent in some way in his driving at that time.

(iii) Was Jeremy driving too fast and in a manner which was dangerous in the circumstances?

The evidence adduced is consistent with the claim that Jeremy was driving too fast and in a dangerous manner. The fact he was affected by alcohol would not have helped for it would have contributed to impairing his ability to make reasonable and sound judgments in the circumstances.

It is clear from the evidence that he should not have made the decision at that point of time to overtake a vehicle in front of him, especially as he was approaching a bend. This is basic common sense and safe driving practice for his view of oncoming vehicles would have been restricted, apart from the fact of his intoxication as well, which would have affected his vision and movements. His ability to make appropriate judgements in the circumstances would have been impaired. And so instead of slowing down or aborting his overtaking maneuver when he realised there was an oncoming vehicle, he accelerated thinking he could complete the maneuver before the other vehicle reached him. This was clearly bad driving, irresponsible and dangerous.

Conclusion.

I am not satisfied Sam was negligent and dismiss the allegation that he contributed to the accident. I am satisfied on the other hand on the balance of probability that Jeremy was at fault for causing the accident due to his failure to keep any proper look out for, or to give way to, on-coming traffic and failed to keep to the left-hand side of the road whilst on the road. I am satisfied on the balance of probability that he was driving too fast and in a manner which was dangerous in the circumstances.

I am satisfied Agita is entitled to judgement for damages for his vehicle that was involved in the accident.

Claim for Damages

The normal measure of damages in this instance is the cost of putting the vehicle in the same condition as it was in before the accident[1]. It is that measure of damages "that the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation...."[2]. See also Victoria Laundry v. Newman[3] per Asquith L.J. "It is well settled that the governing purpose of damages is to put the party whose rights have been violated in the same position, so far as money can do so, as if his rights had been observed."

In the case where the vehicle is destroyed or written off, the normal measure of damages is the market value of the goods destroyed at the time and place of destruction[4]. The owner of the goods is said to be entitled to "restitutio in integrum" (restoration or restitution to the previous condition). This maxim is based on the principle of putting the owner in the position he would have been in had the accident not happened[5]. In Liesbosch Dredger v. S. S. Edison[6], Lord Wright stated the rule to be that the measure of damages was "the value of the ship to her owner as a going concern at the time and place of the loss." In this case it is the value of the vehicle to the owner at the time and place of the accident.

Agita obtained three valuations for the repair of his vehicle. These were $40,000.00, $78,646.38 and $56,214.00. It is clear that the cost of repair of the vehicle would be more than what was its estimated market value at the time of accident.

When Agita bought the vehicle, the purchase price was $35,000.00. He says however this was at a reduced price as it had been bought from his brother in law. The actual value according to Stephen Hoahanikeni ("Hoahanikeni") was $40,000.00. No other evidence has been adduced to suggest otherwise that this figure is inaccurate or should not be relied on. I accept the evidence of Hoahanikeni and Agita on the valuation of that vehicle. The accident happened only some three months after he had bought the vehicle and used it as a taxi.

I am satisfied accordingly that the value of $40,000.00 should be adopted as the market value of the vehicle at the time of purchase and to be used as the basis on which the amount of damages claimed for the value of the vehicle at the time of the accident is to be calculated.

Should depreciation be applied and if so at what rate?

I do not think it can be denied that depreciation affects the value of a car from the moment it is driven out of a motor vehicle dealer’s shop. The amount of depreciation will normally be greater for a brand new vehicle as it is driven out of the vehicle dealer’s shop. In this case Taxi 340 was a used car. In that regard depreciation may not be as large as say for a brand new vehicle, though the depreciation will be at a higher rate in this case where it was used as a taxi. In this regard, I accept submissions of the defendants that the value of depreciation for a privately owned and used vehicle will be much less than one which was used as a taxi or for public transport.

Having carefully considered the submissions of the defendants in this case that depreciation at the rate of 35% should be applied to the value of the car as at the time of accident and bearing in mind the condition of our roads etc., I accept that this would be a fair rate to adopt in this case.

The amount of depreciation therefore to be deducted from the purchase price for three months comes to $3,500.00 [($40,000.00 x 35%) ÷12 x 3 months]. The value of the vehicle therefore, as at time of the accident is $36,500.00. I grant damages for this amount.

Loss of Income.

The law permits claims for loss of profits and interest to be claimed in the event where the vehicle is destroyed[7]. I am satisfied in the circumstances of this case that Agita is entitled to claim for loss of profits as a consequential pecuniary loss in view of the abrupt cessation of his taxi business.

Agita claims for loss of income at $300.00 per day limited to ninety days. He says that his earnings per day were around $300.00.

Abae places daily earnings as fluctuating between $200.00 and $400.00. Jeremy also says that only on good days would he expect to get about $300.00. On bad days he would get about $200.00 and even as low as $150.00.

I find on the evidence before me that the amount of daily takings should be fixed at $200.00. I accept that the wages of the driver is normally paid at 40% of the takings. The amount of earnings received per day therefore comes to $120.00. I award consequential loss of profit at $120.00 per day.

Agita claims that the loss of profits to his business should be calculated for a period of ninety days. No basis for using this period has been provided other than that it was a claim for "future loss of expected earnings".

It is not in dispute that Taxi 340 was being used as a taxi at the time of the accident. Had the accident not happened, Agita would as a matter of certainty have been earning money through his business. The damage to his vehicle resulted in losses to his expected profits.

At the same time, he is required to mitigate his losses. Loss of profits is normally allowed where there is some contractual arrangement in place and therefore certainty of loss. In this instance the question of loss of future profits is more speculative than that from a specific contract. Also the loss of profits normally would be limited to the period when the vehicle is expected to be repaired and may include the expenses incurred in obtaining a substitute vehicle for use as a taxi. No evidence of any such expenses or loss has been provided. In this case there is no specific contract on which the calculation for loss of profits is based upon. All that has been relied on are the past records of daily earnings that the taxi had been earning. The claim is based on future speculative profits that are expected.

Having said that I accept on the other hand that had the vehicle not been damaged it would have been expected to continue working as a taxi and would have been expected to continue making earnings of about $120.00 per day for the owner. In the circumstances I allow nominal damages for loss of profits to be confined to a period of fifteen days only.

I also award interest at 5% from date of judgment to date of payment.

The plaintiff is entitled to claim his costs in this case.

Orders of the Court.

1. Award damages in the sum of $36,500.00.

2. Award damages for loss of future profits at $120.00 per day limited to fifteen days only.

3. Award interest at 5% from date of judgement.

4. Award costs of the plaintiff in this action against the defendants.

The Court.

[1] McGreor on Damages 15th edition, paragraph 1247.
[2] (ibi) paragraph 10.
[3] [1949] 2 K.B. 528, 539 (C.A.)

[4] McGregor on Damages (ibid) paragraph 1283.
[5] Liesbosch Dredger v. S. S. Edison [1933] A. C. 449, 459.
[6] (ibid)

[7] McGregor on Damages, 15th edition, paragraph 70; The Soya [1956] 1 W.L.R. 714 (C.A.)