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Tonga Water Board v Fua [2009] TOLawRp 21; [2009] Tonga LR 227 (22 May 2009)

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

AM 26/08

Tonga Water Board

v

Fua anor

Shuster J
22 May 2009; 22 May 2009

Appeal against Magistrate's decision – no reason to disturb Magistrate's findings – appeal dismissed
Motor vehicle accident – appeal against Magistrate's findings – dismissed

On 24 January 2008 a two vehicle motor vehicle accident occurred. The Magistrate found that the van belonging to the Tongan Water Board caused the accident by not giving way at the intersection and that the cost of the damage was $8,000. The appellant appealed the decision on the grounds that the decision was lawfully erred and was not in accordance with the witnesses.

Held:

1. A Higher Court would only interfere with the factual findings of a lower court in the clearest of cases. For example where the appellant court was able to conclude the Magistrate's decision was unsound, or that the Magistrate clearly came to the wrong conclusion.

2. It was impossible for the Court to say the learned Magistrate erred in any way shape or form when he considered the facts of the case. There was no basis to overturn the Magistrate's findings.

3. The appeal was dismissed.

Case considered:

Pa'ila vMa'u [2002] Tonga LR 114

Counsel for the appellant : Mr Fakahua
Counsel for the respondents : Ms Vaihu

Judgment and Ruling

This Appeal concerns a ruling in the Magistrates Court at Fasi, concerning civil case no. 86/08. The case is a civil dispute, concerning a motor vehicle accident which occurred on 24-01-08, and the subsequent assessment of the quantum of damages by the Magistrate sitting at Fasi.

It is not disputed that a two vehicle motor vehicle accident occurred on the 24-01-08 (as per the police report) dated the same day. What was in dispute is - who caused the said accident?

Court records indicate the substantive hearing took place on the 17-07-08 at Fasi Magistrates Court. The plaintiff claimed a global sum of $10,000.00 plus court fees and legal fees in the amount of $800.00 - as damages.

At the conclusion of the hearing of the case at Fasi, and after considering all the evidence which has been clearly documented; the Magistrate justified his reasons for his findings of facts- to be as follows:-

I Quote

1. I believe that the vehicle C 10927 was on his right side of Taufa'ahau road, and it was right that the Vaha'akolo road must give way to the main road.

2. The C 10927's indicator's light was not on.

3. That the Water Board's truck did not stop.

4. That the vehicle crashed the left front part of the car and the right front part of the van on the left side of Taufa'ahau Road.

5. That the pre-accident value of the car is $8,000.00.

6. That the van was not insured and when the accident took place then they made it up.

The Magistrate stated:-

• I do not believe the witnesses — (of the appellants)

• It was hard to make the witness speak out.

• Their evidence was the same - as if they were working on their evidence – to be the same.

• There was no evidence from the Water Board that the vehicle was insured, before, and after the accident even during the trial - unless I asked Pesalili if the van was insured and he answered me that the van was not insured.

• I believe that when the incident took place they realized the van was not insured, and that's when they tried to make up something to hide the truth.

• Other expenses brought before the Court such a paying taxis and renting cars etc — the Magistrate said was not proved.

The Magistrate further stated and I quote:-

The law and the witnesses, although it was Katoni who drove the car C10927 - he used it under the care (custody and control) of the plaintiffs.

• The plaintiffs are road users and the first respondent had a legal duty - with vicarious liability of the Water Board to perform a reasonable (high duty of care) duty of care to them. (and to all other road users)

• It was proven that the first respondent had failed — in his duty by not giving way at the intersection.

• By not giving way at the intersection, he thus caused this accident - thus causing damage (to the motor vehicle) C10927

• The cost of the damage are $8,000.00 as Sione Kaho, gave evidence on.

The Magistrate's Order Was-

• I grant the $8,000.00 claim

• I do not grant the other claim for the taxis and the rental cars.

• Cost of the plaintiff $600.00

The Appeal

Notice of Appeal against the learned Magistrate's ruling was issued on behalf of the appellant and the Notice of appeal was duly served upon the Supreme Court.

The file was received in the Supreme Court Office on 01-12-08. The file record indicates it was forwarded to the Chief Justice 14-04-09 and to me the same date.

I set a date for hearing on 14-04-09 — as the 22-05-09 - had I noticed the delay then, I would have heard the appeal much earlier.

I wish to place on record, I do not know why this appeal has been delayed so long, or who delayed it and I will bring the question of the delay in this case to the attention of the Chief Registrar - as soon as is practicable.

There are Seven Grounds of Appeal

1. The decision was lawfully erred and was not in accordance with the witnesses.

2. That the Respondent's Counsel had submitted that Paelata Fua had no lawful relevance to file this claim as of the defence of the second respondent.

3. It was clear from Kelepi Paea, he Lotu Tau's evidence that he saw the indicator's light of the car that Katoni Johansson was driving on, was on, but he did not turn on the intersection, thus causing the crash in the respondents truck. In support Viliami Tu'a Puaka also gave evidence and said that the indicator's light was on but he did not turn thus causing the crash in the respondents truck and also the car's driver smelled liquor.

4. Katoni Johansson had confirmed that his driver's licence here in Tonga was not yet renewed.

5. The $8,000.00 is the value from the Asco Motors, there was no foundation, the model of the C10927 is 1988 and if it will be depreciated it will be cheaper than $8,000.00.

6. Pesalili Kailahi, the Public Relations Officer but the former head of Traffic for 4 years gave evidence for the respondent saying that according to Katoni Johansson's drivers licence number 39910 it was expired and was not renewed at the time of the accident. Based on that he is entitled to be charged for driving without a licence.

7. Katoni gave evidence saying that he was not drunk and he did not turn on his indicator's light, but Kelepi Tau and Viliami Tua Puaka assured that his indicator's light was on and that he drank liquor from his behaviour at the time.

Supreme Court Ruling

I heard oral argument from both the appellant and the respondent in this matter on the 22-05-09 and reserved Judgment to 14.00.

I have considered carefully all that was said in the Supreme Court and considered the paperwork submitted from the lower Court.

I have also considered the case of Pa'ila v Ma'u (2002) Tonga LR 114 - which clearly says - that a Higher Court will only interfere with the factual findings of a lower court in the clearest of cases - For example - if the appellant court was able to conclude the Magistrate's decision was unsound- or that the Magistrate clearly came to the wrong conclusion.

• In this case I can find no reason whatsoever, to disturb the findings of the lower court.

• The Magistrate has very clearly set out his findings of fact.

• The Magistrate observed the witnesses as they gave evidence and,

• Importantly, the Magistrate stated he did not believe certain of the witnesses who gave evidence before him on behalf of the appellants.

• The Magistrate said that - in open court and he made his decision on the facts of the case - based upon the evidence which he accepted.

• I accept - as the Magistrate accepted the plaintiff - did have proper standing to bring this case.

• It is impossible for this Court to say the learned Magistrate erred in any way shape or form - when he considered the facts of this case conducting the trial.

• There is clear documentary evidence the value of the motor vehicle C10927 was pre accident $8,000.00 - and post accident $100.00 as per the Asco repair assessment quote num her 364 dated 24—10—08. There is also a photograph of the vehicle on file depicting accident damage.

• The issue of the non renewal of a driving licence — lies with the police to prosecute or not, non renewal of a DL —does not prove guilt via a MVA.

• The Magistrate must have considered the allegation of drunkenness and dismissed the allegation as must the police.

• The Magistrate chose to believe the witnesses for the defendants, and he did so at the same time recording in the court record the words — he did not believe the appellants witnesses.

• In my view there is no basis for this Court to overturn the Magistrates findings in this case.

Accordingly

1. This appeal is dismissed.

2. I reaffirm the decision of the Magistrates Court.

3. Costs of today's hearing will be paid by the Appellant within 14 days.