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Toki v Simiki [2009] TOLawRp 12; [2009] Tonga LR 119 (27 February 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 59/2008

Toki anor

v

Simiki

Shuster J
18 February 2009; 27 February 2009

Damages – formal proof after collision – claim properly made out and damages awarded

On 10 August 2007 there was a collision between the defendant's three-ton truck and the plaintiff's van. The defendant was convicted in the Magistrates' Court of careless driving and was ordered to pay $200 compensation to the plaintiff. Compensation was paid on 18 December 2007. The plaintiffs made a claim for damages. The defendant did not respond within the time period therefore judgment by default was entered on 28 August 2008 with the formal proof hearing to be held. The plaintiffs' claimed damages as follows: loss of vehicle, $13,000; injuries pain and suffering by the second defendant, $10,000; injuries pain and suffering by the daughter HEFA, $4,000; injuries pain and suffering by the daughter ANA, $1,000; and costs.

Held:

1. The Court was satisfied that the claim made by the plaintiffs against the defendant was properly made out. The claim was properly evidenced in Court by both testimony and documentary evidence. The Court was satisfied the defendant had knowledge of all of the dates of the proceedings and fixtures.

2. The Court ordered judgment for the first plaintiff in the sum of $13,000, being the cost of the damage caused to the plaintiffs van L9797, for its replacement; judgment for the second plaintiff in the sum of $10,000 (to be adjusted to take into account the $200 awarded as compensation by the Magistrates Court making a total of $9,800); judgment for the plaintiffs in the sum of $4,000 damages in respect of the injuries to Hefa Fatongia Ola 'Ana Tonga Ta'e'iloa Tutanekai TOKI; judgment for the plaintiffs in the sum of $1,000 damages in respect of the injuries to 'Ana Tohu'ia TOKI; judgment for the plaintiffs in the sum of $2,016 being the hire of a replacement vehicle for one year from 10-08-07 - 10-08-08 as evidenced by Exhibit P-9; and costs against the defendant, which were to be taxed by the Chief Registrar.

Rules considered:

Supreme Court Rules 2007

Counsel for the plaintiff : Mr Edwards
The defendant did not attend the hearing

Judgment

This case is a claim for damages in respect of the loss suffered by the plaintiffs, and their two daughters, arising from a collision between a three-ton truck registered number J5774 (the truck) driven by the defendant, and- the plaintiffs 1993 Delica motor van registered number L9797 (the van) driven by HEFA FATONGIA 'ANA TONGA TA'E'ILOA TUTANEK.AI TOKI.

The said motor vehicle accident occurred at the intersection / roundabout of Tupoulahi and Salote road on the 10th August 2007.

The plaintiffs statement of claim indicates at paragraph 5, that the defendant was prosecuted in the Magistrates Court at FASI under case number 2151/07 on 6th December 2007 for careless driving. The Magistrate's court records indicate the defendant was convicted- and was fined $100 and he was ordered to pay compensation of $200 to the victim, and he was disqualified from driving from the 6th December 2007 the date of the court hearing. The conviction for an offence of careless driving in the Magistrate's court on the 6th December 2007 proves liability on behalf of the defendant.

According to the court records compensation of $200 was paid by the defendant on l8th December 2007 against receipt number R#88170 and I have seen proof of payment. Because the defendant has in fact paid the Magistrate's order for compensation in the sum of $200, then that amount must of necessity be deducted from the assessed damages by the Supreme Court.

An Ex-Parte Application Notice was served on the Supreme Court on 22 August 2008 at 2.18pm by the plaintiff's lawyer, asking for Judgment in Default under Order 14 Rule 1 of the Rules of the Supreme Court 2007, and for damages to be assessed upon hearing formal proof, on the grounds that the defendant has failed to file a statement of defence. The timing for the filing of a statement of defence- had expired at close of business on the 5th August 2008.

Judgment in default was entered on the 28th August 2008 in reliance upon Order 14 Rule l of the Supreme Court Rules 2007 with a date to be notified for formal proof of the plaintiffs claim. The Court Order was served personally on the Defendant on the 5th September 2008. A date was subsequently set for formal proof of the damages claimed by the plaintiffs, for 14.00 on the 18th February 2008.

The Claim for Damages

The plaintiffs claim for damages is as follows:-

1. Loss of vehicle - $13,000

2. Injuries pain and suffering by the second defendant - $10,000.00

3. Injuries pain and suffering by the daughter HEFA - $4,000.00

4. Injuries pain and suffering by the daughter ANA - $1,000.00

5. Costs of and incidental to these proceedings/action

6. Such further or other relief as the court deems just

Chronology

• A writ of summons was issued in the Supreme Court 2nd July 2008

• The formal Notice of Directions, writ of summons and the statement of claim were properly served upon the defendant on the 9th July 2008

• A certificate of service was served on the court on the 14th July 2008

• The time for filing a defence expired on the 5th August 2008

• No defence to the action was filed by 5th August 2008-the expiry date

• An Ex-parte application for judgment by default was issued and dated 19th August 2008

• Judgment by default was entered by the Court on the 28th August 2008

• A certificate of service regarding the Court Order and Bill of Costs was served on the defendant on the 5th September 2008

• Fixture request for date to hear formal proof of damages 19th January 2009

• Plaintiff bundle of Documents served 18th February 2009 Exhibits P1-P9

Evidence Both Documentary and Testimonial

• Evidence of the Marriage certificate of Viliami Tokai and Kalonikali Tutanekai certificate 22916 was adduced in evidence P-1.

• Evidence of the birth certificates of HEFA TOKI born 01-01-1988 was adduced by certificate 089121 P-2.

• Evidence of the birth certificate of ANA TOKI born 15-01-1997 was adduced by certificate 015510.P3.

• Evidence of the existence of the registration of the motor vehicle L9797 was adduced by production of form 1A a certificate of registration P4.

• Evidence of an Asco motor repair quotation number 1996 and evidence of its authenticity was adduced by the writer as Exhibit P5.

• Evidence of the injuries and the time Mrs. Kalonikali TOKI D of b 26-06-1964 spent in hospital was adduced by a doctor's report signed and dated 14th December 2007 by Dr Kolini VAEA -P-6.

• Evidence of the injuries and the time Mrs. Lesieli TOKI D of b 01-01-1988 spent in hospital was adduced by a doctor's report signed and dated 14th December 2007 by Dr Kolini VAEA- P-7.

• Evidence of the injuries and the time Ms 'ANA TOKI D of b 15-01-1997 spent in hospital was adduced by a doctor's report signed and dated 14th December 2007 by Dr Kolini VAEA- P-8.

• Evidence of the use of a taxi hired by the plaintiffs from the l0 August 2007 to the l0 August 2008 as transport to replace their vehicle is exhibited by receipt No 0136518 dated 10th August 2008 in the sum of $2016.00 and given in evidence by the first plaintiff Exhibited P-9.

Damages and Relief Sought

Having heard evidence on oath from both the plaintiffs, in the absence of the defendant, and studying the plaintiffs bundle of documents dated 18th February 2009 which are EXHIBITS P 1-9- I am satisfied that the claim made by the Plaintiff's in this case- as against the defendant is properly made out. I am satisfied the claim has also been properly evidenced in court by both testimony and documentary evidence. I am also satisfied the defendant had knowledge of all of the dates of the proceedings and fixtures.

Order

I assess and award the plaintiff damages as follows,-

1. Judgment for the first plaintiff in the sum of $13,000.00, being the cost of the damage caused to the plaintiffs delica van L9797, for its replacement.

2. Judgment for the second plaintiff in the sum of $10,000.00 however this figure, has to be adjusted — to take into account the $200 awarded as compensation by the Magistrates Court in December 2007, making a total of $9,800.00.

3. Judgment for the plaintiffs in the sum of $4,000.00 damages in respect of the injuries to Hefa Fatongia Ola 'Ana Tonga Ta'e'iloa Tutanekai TOKI.

4. Judgment for the plaintiffs in the sum of $1,000.00 damages in respect of the injuries to 'Ana Tohu'ia TOKI.

5. Judgment for the plaintiffs in the sum of $2,016.00 being the hire of a replacement vehicle for one year from 10-08-07 - 10-08-08 as evidenced by Exhibit P-9.

6. Costs against the defendant, which are to be taxed by the Chief Registrar.