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Murdoch v Willie Hang Kum Kee [2008] KIHC 16; Civil Case 73 of 2003 (29 April 2008)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 73 of 2003

Between:

Glen T Murdoch
Plaintiff

And:

Willie Hang Kum Kee
Defendant

For the Plaintiff: Ms Botika Maitinnara
For the Defendant: Ms Taoing Taoaba

Date of Hearing: 28 April 2008

JUDGMENT
(Ex Tempore)

Between three and four in the morning on Saturday 13 September 2003 Mr Charlie Murdoch was driving a saloon car belonging to his nephew, Mr Glen Murdoch on the main road from Betio towards Bairiki. There was no other traffic on the road. In evidence Charlie estimated his speed at 60 to 62 kph as he approached on his left the side road coming from the Captain’s Bar.

When he was about 50 metres away a truck driven by the late Mr Willie Kum Kee came out from the side road. Charlie dipped his lights. The truck kept coming. Charlie moved to his right. The truck kept coming. The front of Charlie’s car hit the middle of the right side of the truck.

No one was injured but there was damage to the car.

Each driver asked the other what happened. Willie said, "I didn’t see you".

A vehicle coming out of a side road on to a main road is under an obligation to give way to a vehicle on the main road approaching on his right. Willie failed to give way. He (or rather his estate) must bear most of the blame.

Ms Taoaba has submitted that Charlie’s mode of driving contributed to the collision. Her first submission is that Charlie was driving too fast. In the Traffic Act, Road Rule 5:-

Maximum speed limits

If there is no speed limit sign applying to a length of road, the speed limit applying to a driver for the length of road is:

(d) for a length of road in a built-up area – 40 kilometres per hour; and

(e) for any other length of road – 60 kilometres per hour.

Counsel have agreed that the accident happened in a built-up area. Charlie was exceeding the speed limit. Perhaps if he had been going slower he may have been able to avoid colliding with Willie: perhaps at least the damage would have been less.

The Court must always take the circumstances of each accident into account. It was early morning when one does not expect much traffic. There was none (apart from Willie) but there was a speed limit imposed by the Road Rule. Charlie broke it. He took the risk of driving above the limit. The unexpected happened: Willie came out on Charlie’s left. Charlie is guilty of a small degree of contributory negligence. I fix it at 10%. [This is rather smaller than I would have fixed for another time of day in a more heavily built-up area.]

Ms Taoaba made another submission: that Charlie was drunk. Charlie denied that he had been drinking but there is some evidence from Nei Ruitita Wanikaie that Charlie smelt of alcohol and looked drunk. The evidence goes no further than that. The maxim, "If you drive, don’t drink: if you drink, don’t drive" does not (yet) apply in Kiribati. There is no evidence that Charlie’s condition, whatever it was, affected the way he was driving. I reject the second submission of Ms Taoaba.

Glen Murdoch had the car repaired. The repairs and their costs are set out in his affidavit sworn on 29 November 2006. Ms Taoaba cross examined Glen. I am satisfied that the affidavit accurately reflects the repairs carried out and their cost.

After Willie’s death Glen abandoned the claim for vehicle hire for a month. The claim is for $2,812.70, the cost of spare parts ordered from Fiji. Neways Motors, using the spares, charged another $1,511.95 to fix them and generally repair the car. A total of $4,324.65. I assess the cost of repairs at that figure.

Having found Charlie to be 10% responsible I deduct 10% from $4,324.65.

There will be judgment for the plaintiff for $3,892.18.

Dated the 29th day of April 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice