Durst v Petroleum Products Supplies Ltd [2007] WSSC 64 (27 July 2007)

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CHRISTIAN DURST
and BARBARA DURST
of Ululoloa, Restaurateurs.
Plaintiffs

PETROLEUM PRODUCTS SUPPLIES LIMITED
a duly incorporated company carrying on business at Sogi.
Defendant

Hearing: 20, 21, 22, 23 February 2007 and 2 & 5 March 2007
Submissions: 13 April 2007
Judgment: 27 July 2007

On the morning of the 19th January 2005 the plaintiffs who were travelling in their Ford Bronco vehicle towards their restaurant situated on main beach road Apia stopped at the traffic lights at the Malifa intersection about 400 meters north of the Apia Police Station. Whilst stationary at the traffic lights their vehicle was struck from behind by the defendant’s petrol tanker which pushed the plaintiff’s vehicle across the intersection and eventually declared a write off. The police arrived and took the plaintiffs to hospital, they were both x-rayed and immediately discharged as they suffered no physical injuries. They were taken to the police station where they both gave written statements before they went to their restaurant about two hundred meters away. The defendant’s truck did not stop at the scene of the accident; it continued on and stopped a few meters before the police station; it was later the same day driven away by an employee of the defendant.

The plaintiff Mrs Durst started to experience pain at the back of her neck the day after the accident; she also developed a fever. Then Mr Durst also felt pain in the neck and they both consulted their doctor who other than prescribing medications also referred the plaintiffs to the only psychiatrist in Samoa. Both were seen by the psychiatrist, Doctor Parkin, on the 7th February 2005 and again on the 11th, 21st and 25th February 2005. On the 25th February 2005 the psychiatrist wrote a report addressed to "To Whom it May Concern". He diagnosed both plaintiffs suffered symptoms consistent with Post Traumatic Stress Disorder and concluded:

"My best guess at present is that they have a 50/50 chance of overcoming this disorder and returning to their previous level of function".

On the 1st December 2006 Doctor Parkin wrote another report addressed to the plaintiff’s solicitor and he concluded:

"There has been little change in their symptoms now over the last two years. This leads me to conclude that they are unlikely to have a major improvement in their condition at any time in the future. They will most likely need to be taking fluoxetine or an equivalent for the rest of their lives. They will most likely benefit from ongoing conselling, again for the rest of their lives".

The plaintiffs say that it was through the negligence of the driver of defendant’s petrol tanker which damaged the plaintiff’s vehicle and caused both plaintiffs to suffer the post traumatic stress disorders. As a result of the stress disorders the plaintiffs have suffered loss of earnings and will continue to suffer loss of earning capacity for which they should be compensated; they have also needed medications and will continue to take medications the costs of which should be the responsibility of the defendant. I shall deal with the causes of action and the separate claims of damages later in this judgment.

Although it was conceded during the hearing, the defendant’s truck struck the plaintiff’s vehicle from behind while the plaintiffs’ car was stationary the defendant denied negligence. It is also alleged that the collision and any loss suffered as a consequence thereof was caused by the plaintiffs contributory negligence namely:

It is also alleged that the plaintiffs are illegal immigrants whose permits to live and work in Samoa expired well before the traffic accident in January 2005 and as illegal immigrant they are not entitled to the damages sought. In its counterclaim the defendant seek to be reimbursed for the hire of rental cars they provided to the plaintiffs immediately after the accident for five weeks at $700 per week and the cost of towing the plaintiffs’ wrecked car away from the scene of the accident.

It is convenient that I shall deal with the counterclaim first simply because I concur with counsel for the plaintiffs that it is outrageous and lacking in substance. Immediately upon hearing about the accident the defendant’s Chief Executive Officer visited the plaintiffs at their restaurant and offered them a rental car. It was a gesture and a voluntary act of good will by the defendant to offer replacement transport for the plaintiffs. About four different vehicles were provided but none was satisfactory to the plaintiffs. A replacement vehicle was also offered but rejected. The defendant did not contemplate any reimbursement from the plaintiff; indeed the immediate offer of rental vehicles and a replacement vehicle can be viewed as admission of negligence by the defendant. The counterclaim for the use of rental cars for five weeks must fail and is dismissed.

Similarly the claim for towing charges of $315 must also fail. After the accident a towing company was instructed by the plaintiffs to tow away the wrecked car. The plaintiffs did not request the defendant, so if the defendant did tow it away (it is irrelevant to determine who actually towed away the wreck) it was not on instructions of the plaintiff. In any event the defendant sold the wreck for $1,000 and kept the proceeds to cover its expenses.

Defendant’s submissions did not deal with the defence of contributory presumably because the evidence adduced did not in any way suggest any negligence on the part of the plaintiffs. No testimony was given that the plaintiffs were not wearing seat belts; or their vehicle was structually unsound; or that the plaintiff Christian Durst failed to properly steer or control their motor vehicle. As their motor vehicle was stationary at the intersection awaiting the green traffic lights it cannot be said as suggested in the counterclaim that they were neither alert nor concentrating and that they failed to keep a proper look out. It can be confidently stated that the plaintiffs’ only duty at the time while they were stationary and before they were struck from behind, was to await the green light and to proceed ahead when it was safe to do so. As the counterclaim was not pursued in the evidence and in the submissions the allegation that the plaintiffs were contributory negligent must fail and accordingly dismissed.

The defendant’s truck was driven by Pisa Alofa, aged 23 at the time of the accident. He was originally employed as a depot hand and mechanic in October 2004 and a driver trainee towards the end of the same month. Documentary records of his work and training were produced as exhibits. On the 9th December 2004 he was issued with a driver’s licence. On the day of the accident, the 19th January 2005, just over one month after he was issued with a driver’s licence, he drove by himself to deliver fuel to a petrol station just north of the Malifa intersection. It was on his return trip that the accident happened. He told the court he drove out of the petrol station onto the main road in first gear; he then changed to second gear and as he travelled the slight bend approaching the lights he saw the red lights; he also saw the plaintiffs’ car in the outside lane and a taxi on the inside lane. He applied the brakes which failed. He estimated his speed at the time to be 15 miles per hour and the cable hand brakes were ineffective. He considered several options including the possibility of an explosion if he drove into a tamaligi tree. He was in a dilemma and elected to drive into the back of the plaintiffs’ vehicle after which his truck continued almost 400 yards on the same second gear until it stopped just short of the police station. It must be said now Mr Alofa’s evidence cannot be accepted. If he struck the plaintiff’s vehicle while travelling in second gear at about 15 miles per hour it would be impossible for the truck to cruise some 400 yards on virtually flat road after the collision. On the other hand if his evidence is to be treated as correct it is evidence of negligence on the part of the defendant for operating a heavy duty vehicle to cart heavy and volatile goods without providing emergency braking system in the event of failure of the truck’s normal braking system.

Mr Alofa also told the court that before he delivered the fuel on the morning of the accident he personally checked the truck and signed the check list record as a routine procedure before the truck was loaded with fuel. He did not check any other vehicle or sign the check list for any other truck that morning. But the check list for the defendant’s trucks on the 19th January 2005 produced by the defendant’s general manager blantantly reveal that Mr Alofa had signed the check list not only for his truck but for six other trucks as well, certifying all trucks to be road worthy for that day. Naturally when this document was given to him, Mr Alofa made no response and his evidence that the truck he drove into the plaintiffs’ vehicle was fit as roadworthy must be treated with suspect. The immediate response by the Chief Executive Officer of the defendant to offer rental cars and a replacement vehicle for the plaintiffs immediately after the accident is an acknowledgment of negligence by the defendant of either authorising an unaccompanied, inexperienced driver to drive a fuel tanker or allowing a truck without proper and safely emergency braking system to be used as a fuel tanker. The defendant is liable in negligence.

As a result of the accident caused through the defendant’s negligence the plaintiffs were diagnosed to be suffering from a mental disorder known as Post Traumatic Stress Disorder (PTSD) the essential feature of which is:

"the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate. ..........

Traumatic events that are experienced directly include, but are not limited to military combat, violent assault, ... severe automobile accidents ...."

See: page 424 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition DSM – IV.

PTSD is a form of nervous shock which has been the term used in many earlier cases. As Lord Parker remarked in the English Court of Appeal decision in:

"I have used the expression "nervous shock" at the outset because it has been used in many earlier cases. It is however necessary at once to point out that that which attracts damages is not the shock itself but any recognisable psychiatric illness or disorder resulting from the shock which in appropriate cases has that effect. It is nevertheless convenient to use the term nervous shock as a term embracing both elements which have, amongst others, to be established in order successfully to ground a claim of this type."

English cases such as Mchoughlin v O’Brian [1982] UKHL 3; (1983) AC 410 recognised that, at common law, a claim for damages for nervous shock caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself. So that a plaintiff who suffered shock after witnessing the aftermath of an accident, involving a spouse or child, could successfully sue for damages as in Hambrook v Stokes Brothers 1925) 1 KB 141; Boardman v Sanderson (1964) 1 WLR 1317; by adopting the foreseeability test and adopting a formula not merely for defining but also for limiting the persons to whom duty may be owed and the consequences for which a defendant may be held responsible. The approach can be traced back to the neighbourhood principle stated by Lord Atkins in Donoghue v Stevenson (1932) AC 562 at 580:

"Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected. ..."

As the plaintiffs here were directly involved in the accident, a duty of care was inevitably owed by the defendant and as a consequence of breaching that duty of care the plaintiffs suffered loss and ought to be compensated.

The defendant is firmly of the view that the plaintiffs have intentionally produced and displayed false or grossly exaggerated physical or psychological symptoms motivated by external incentives. And the incentive for the plaintiffs were clearly for monetary gain. Two approaches were employed by defendant’s counsel to explore the allegation of malingering against the plaintiffs. The first one was the refusal by the plaintiffs to be examined by the defendant’s medical team on the 17th, 18th and 19th February 2007 before the commencement of the trial on the 20th February 2007. The request was made by faxed letter by counsel for the defendant to counsel for the plaintiffs on the 1st February 2007. The medical team were due to arrive on the morning of the 17th February 2007. A memorandum also dated the 1st February 2007 was filed by counsel for the defendant seeking a court order for the plaintiffs to be examined by the defendant’s medical team when they arrive. The date that memorandum was filed is unknown, but a copy of the faxed letter of the 1st February 2007 which accompanied the memorandum is dated by the deputy registrar on the 5th February 2007. It is also apparent that the memorandum filed went no further than the deputy registrar’s table. According to plaintiffs’ counsel she did not receive the memorandum until the 8th February 2007. The plaintiffs refused to be examined to avoid the risk of being subjected to further stress before the trial. It is a reasonable refusal given the fact on the 24th November 2006, I made an order in response to the defendant’s application for the plaintiffs to be examined by the defendant’s psychiatrist. The defendant did not utilise that order. The plaintiffs consented to be examined then. The suggestion therefore that the plaintiffs’ refusal to be examined was inspired by fear of unfavourable and negative report cannot stand.

The second method adopted was to instruct a psychiatrist and a clinical psychologist to critique the report by Doctor Parkins. Criticisms by the clinical psychologist who is not a medically qualified person shall be ignored simply on the basis that as he is not qualified to be a psychiatrist his criticisms of the diagnosis of a qualified psychiatrist would obviously and logically lack credibility and acceptance. Doctor Weeks is undoubtedly a reputable psychiatrist whose integrity as a doctor and a witness I shall and will never doubt. She qualified in medicine in 1984; accepted as a Fellow of the Royal Australian and New Zealand College of Psychiatrist in 1994; practiced privately in 1995; a Consultant Psychiatrist for several Health Boards in New Zealand and has appeared as an expert witness in the NZ Courts, to name a few of her duties, functions and achievements. She was instructed by counsel for the defendant to provide a critical assessment of Doctor Parkin’s reports and to consider the possibility of malingering. She referred to the plaintiffs’ refusal to be examined by her and gave her fair honest opinion.

"It may be that ... they are so distressed by what happened that they are attempting to avoid re-traumatisation by talking about the accident again. However, there is also the possibility that they are concerned a negative evaluation may be made in this situation."

On the issue of malingering one of her major area of concern was the lack of independent corroboration of any of the historical details of the plaintiffs which the plaintiffs gave to Doctor Parkin; the report is somewhat brief in some areas which she considered important; some areas like family psychiatric history, medical history, forensic history and much more, which are normally included in a psychiatric report were not explicitly covered in the report; the prognosis that the plaintiffs are unlikely to improve is highly premature and the treatment prescribed is far from exhaustive. Mere specifically she said of the reports by Doctor Parkin:

"... The problem in this litigation situation, though, is that no consideration is given to other possible diagnostic considerations, or the presence of any degree of malingering Doctor Parkin is the Durst’s treating Psychiatrist".

Doctor Parkin was the only psychiatrist in Samoa. Admittedly he was the treating psychiatrist for the plaintiffs but I do not doubt his honesty and I confer to him the same view which I held of Doctor Week’s testimony. They are both (despite their age differences) experienced, dignified psychiatrists. Doctor Parkin did admit in his report that he had to rely solely on the accounts of the plaintiffs of their symptoms and historical details. Both plaintiffs are immigrants from Germany. Although Doctor Parkin did not use the word malingering in his report he did express concern under the heading:

"I do not have independent corroboration of any of the historical detail given to me. However, I do not doubt the veracity of what they say as they both express emotions consistent with their histories. Their accounts have been consistent over time."

Despite her criticism of Doctor Parkin’s report Doctor Weeks did concede that on the balance of probabilities Doctor Parkin’s diagnosis was correct. It must be said however that although I accept from Doctor Parkin’s reports that the plaintiffs suffered PTSD there were matters in evidence which lead me to conclude that some of the plaintiffs responses during their testimonies and some of the informations they gave to Doctor Parkin were exaggerated and designed in my view to gain sympathy if not maximise their damages. I shall deal with those matters when I determine damages.

It is alleged by the defendant that the plaintiffs cannot seek and are not entitled to damages as they are illegal immigrants, and as such, they should not be operating a business. This defence, known as the maxim ex turpi causa non oritor actio, means no right of action arises from a shameful cause. In the Law of Torts in New Zealand 3rd edition page 1075 it is said:

"The principle is based on public policy. Its purpose is not to protect a defendant from the consequences of his or her conduct but in an appropriate case to withhold relief from an undeserving plaintiff.

The authors then proceeded to discuss the approaches adopted by the courts in Australia, England and Canada. The plea is understood to have very limited effect. In the circumstances here the plea cannot be considered simply because the plaintiffs were not illegal immigrants and have never been illegal immigrants. In 2003 they applied for permanent residence and handed their passports to the Chief Executive Officer of the Immigration Division; they were not prohibited from operating a restaurant; the authorities granted them yearly business licences to operate the restaurant. Their failure to obtain a Foreign Investment certificate pursuant to the provisions of the Foreign Investment Act 2000 and the Business Licence Act 1988 does not label them illegal immigrants. The testimonies of the inferior officers of the Immigration Division and of the Ministry of Labour Industry and Commerce who prowled on the plaintiffs at the instigation of the defendant did nothing to advance the defence of illegality. An inquiry to the Chief Executive Officer of the Immigration Division could have saved the time. In any event the defence of illegality does not protect the defendant from the consequences of allowing a faulty vehicle to be driven by an inexperienced driver. The plaintiffs were lawfully in their own vehicle observing road rules when they were struck by the defendant’s truck. The plea of illegality fails.

Before dealing with the separate heads of the claims for damages I shall deal first with the testimonies of the plaintiffs and my impression of their evidence which in turn affect the award of damage. Doctor Parkin stated in his second report page 3 that:

"Any reasonable person would experience a sense of threat of death if hit from behind by a fuel tanker travelling at speed."

The tanker travelling at speed must have been relayed to Doctor Parkin by the plaintiffs. But the tanker could not have travelled at speed because firstly it had just entered the road after leaving the petrol station about 200 meters away from the traffic lights; it was naturally in first gear when it entered the road and soon after changed into second gear when the red lights and the plaintiffs vehicle were spotted. Secondly the damage to the plaintiffs’ vehicle as seen on exhibits P1 and P2 would have been a lot worse and the plaintiffs would probably have been injured if the tanker was travelling at speed. A fuel tanker travelling at speed would have crushed the plaintiffs’ car.

At page 11 of the same report under the heading Business Doctor Parkin stated:

"Their business has deteriorated markedly. Barbara is hardly ever there and they have had to employ staff to replace her. Christian pays less attention .... He estimated that they might be $3,000 a month down on what they were making before the accident."

This is a deliberate lie if not an excessive exaggeration because the plaintiffs were not even making $3,000 a month from the restaurant. Their accountant in his written report estimated their joint monthly income at $1,662.

In their evidence in chief the plaintiffs told the court that they lost interest in the business; Mr Durst did the shopping, took it to the restaurant, then went home and slept. The cooking which he normally did before the accident was left to the workers. Mrs Durst was virtually absent and not serving; she could not cope with noise and was scared of making mistakes or dropping dishes. But their responses to cross examination indicated that the opening day and hours of the restaurant remained the same before and after the accident, that is Monday to Friday. The only change after the accident was the one extra staff who was hired after the accident. And despite his evidence that he was nervous to drive after the accident he was very particular with the rental cars which he was given; in a space of five weeks he was given four rental cars. They wanted rental cars for the business despite his assertion that they have lost interest. They resorted to using taxis for transport when the rental cars were taken away and not only are they now claiming reimbursement for two return trips to the restaurant Monday to Friday, they are also claiming reimbursement for return trips to the restaurant on Saturday and Sunday when the restaurant was not opened. When the immigration officer went looking for Mrs Durst after counsel for the defendant raised with the authorities the issue of the plaintiffs’ immigration status, the officer obviously as he did, went to the plaintiffs place of business to inquire about their permits to remain in Samoa and to operate the business. He saw Mrs Durst and she was serving customers before the officer interviewed her.

It was also the overall impression of the plaintiffs’ evidence that their social and family life has been totally and virtually disrupted. In particular Mrs Durst was scared to move out of the house to socialise in case she fainted as well as her inability to cope with noise; since the accident they stopped inviting friends for dinner; they were virtually confined to their home. But they were seen and on camera at the horse races, weightlifting competition, shopping mall, all of which can be comfortably termed noisy avenues. If they were not seen at those places as brought out under cross examination, the court would have been inclined to believe that the plaintiffs’ social life was non-existent since the accident. And with the income they were receiving they were obviously not in a position to invite friends regularly for dinner. With those observations I now proceed to consider the separate claims for damages.

The plaintiffs have been operating the restaurant since 1995. Mr Durst was 53 and Mrs Durst was 48 of age at the time of the accident. Their accountant Mr Wilson, prepared a report, based on informations and records given by the plaintiffs to assess the loss of future income earnings sustained by the plaintiffs due to the traffic accident. From the records of income and expenses he calculated the total annual gross for the year 2004 to be $19,950 or $1,662.50 per month. But he did not calculate the loss of earning capacity on the strength of the company records as he was of the view it was too low. He then calculated the annual gross earnings based on the plaintiffs outgoings which came to $26,640 or $2,220 per month. Mr Wilson told the court the difference between the $19,950 from the business records and $26,640 based on outgoings is probably made up by remittances and other sources – this information could only have come from the plaintiffs. Based on the $26,640, the individual gross earning of each plaintiff was projected at $13,640. A further 50% was deducted because Doctor Parkinson projected the plaintiffs earning capacity to be reduced by 50%, so that for 2005 the individual plaintiffs’ earnings were calculated at $6,600. Mr Wilson then explained how he calculated the annual adjustment factor to compensate the plaintiffs against future rising costs and after considering all the relevant economic indicators available he arrived at an annual adjustment factor of 5% which I consider fair and reasonable; so that for 2006 the plaintiffs’ individual earnings will rise by 5% from $6,600 to $6,993. As Mr Durst’s remaining working life was estimated at 15 years his future loss of earnings was calculated at $130,527 while that of Mrs Durst who had 21 years working was calculated at $256,445. A total of $386,972.

I respectfully differ with Mr Wilson. In the first place if the plaintiffs were receiving remittances on top of their business earnings, Mr Wilson should have used the business earnings as the basis for calculating income as the plaintiffs despite their conditions resulting from the accident will continue to receive those remittances. There is nothing before the court to suggest that they will not continue to receive them. Using the business figures, the individual plaintiff’s annual income amount to $9,975.

$9,975 less 50%	=	$4,988 for 2005 per plaintiff
Plus 5% annual adjustment	=	$5,237 for 2006
Future loss of Earnings for Mr Durst	=	$97,749 for 15 years
Future loss of Earnings for Mrs Durst	=	$187,555 for 21 years

But Doctor Parking did not say in his report that the plaintiffs’ earning will be reduced by 50%. He specifically stated in his first report attached to Mr Wilson’s report:

"It is difficult at this early stage to be accurate about what is likely to happen with this couple. They are certainly significantly affected at this stage with marked reductions in their ability to function socially and occupationally. My best guess at present is that they have a 50/50 chance of overcoming this disorder and returning to their previous level of function."

The restaurant hours and days of opening has remained the same and one extra staff was employed after the accident. A significant factor to bear in mind is that the restaurant has been in operation for about 10 years since 1995 and was only earning gross earnings of $19,950 in 2005. Both plaintiffs as I have previously adverted to have continued to be involved in varying degrees, with the operation of the restaurant after the accident and accordingly I consider reduction by 50% as too low. I would deduct a further 30% bearing in mind also the employment of the extra worker so that their estimated loss of earnings should now read:

MR DURST	$ 97,749
Less 30%	29,325
	$ 68,424

MRS DURST	$ 187,555
Less 30%	56,267
	$ 131,288

To arrive at a final figure for loss of earning capacity I cannot escape a further deduction to account for future contingencies or vicissitudes of life; the ordinary risks of life such as ill health, accident or other incapacity. I must also consider that with lump sum payments, interests will be earned. In the case of Mr Durst I make further deduction of 20% and 35% in the case of Mrs Durst. So that the final amount to be awarded under this head shall be:

MR DURST	$68,424
Less 20%	13,684
	$54,740

MRS DURST	$131,288
Less 35%	45,950
	$ 85,338

I reject Mrs Durst claim for gymnasium costs. She did not impress as a witness; her antics in the witness box and especially from the back of the courtroom did very little towards her credibility. She obviously felt no need to attend to her usual gymnasium classes during the five days this litigation was conducted.

I accept that the plaintiffs have been on medication and will continue to take medication for the rest of their lives. The plaintiffs should be compensated for $1,264.80 they have spent on medication. As for cost of future medication I accept $30 per month per plaintiff or $360 per year per person. At the same I must make some deductions for the ordinary risks of life, and interests which I discussed under the heading Loss of Future Earning Capacity. I shall deduct 30% in the case of Mr Durst and 35% for Mrs Durst so that the total amount shall be:

MRS DURST	$10, 800
Less 35%	3,780
	$ 7,020

Total cost of future medications	$12,564.00
Costs of past medications =	$ 1,264.80
	$13,828.80

As from the 1st March 2005 when the rental cars were withdrawn and the plaintiffs’ refused the offer of a replacement car the plaintiffs resorted to using taxis to make two return trips to the restaurant during week days and twice during the weekends. Total taxi fares to December 2005 were $9,084.00. Taxi fares from January 2006 to June 2006 when the plaintiffs purchased their car amounted to $7,800, so that the total taxi fares claimed amount to $16,884.

I consider twelve months as more than sufficient and reasonable time to obtain a replacement vehicle and accordingly allow claim for taxi fares to December 2005 of $7,800. But if the plaintiffs had their own car they would have had expenditures like maintenance and petrol to pay and I deduct 30% to allow for those expenditure and award $6,332 as cost of alternative transport.

The plaintiffs wrecked car was a 1989 Ford Bronco bought second hand by them. How much they paid for the car is unknown but when it was damaged in January 2005 it was insured for $10,000. The insurance company has paid the plaintiffs $10,000 at that time. For the plaintiffs to claim $30,000 through counsel’s submission as a replacement cost for a vehicle worth $10,000 makes no sense, legal or otherwise and is rejected.

Mr Wilson’s costs have been paid by the plaintiff and the plaintiffs ought to be compensated. The claim of $3,000 for the accountant’s cost is allowed.

There was nothing in the conduct of the defendant after the accident which justifies consideration of the claim for punitive damages. Immediately after the accident the officers of the defendant, in particular its Chief Executive Officer, did their best to provide rental cars for the plaintiffs to assist with transportation of running of the business. But the plaintiffs, especially Mr Durst, was in a way demanding, and not prepared to give and take, preventing any possible amicable arrangement suitable to both parties.

Indeed the defendant has been taken to great expense to secure the services of overseas psychiatrist as the only psychiatrist in the country was engaged by the plaintiffs. Conduct of counsel for the defendant may have been of concern and problematic for the plaintiffs and their counsel, but counsels are obliged to conduct themselves and perform in a way they consider best in the interest of their client, which include filing various applications and pre-trial motions including last minute motions or memorandums, even if those motions and memorandums are considered by the other party as improper or delay tactics. This is an action arising out of a traffic accident and the conduct of the defendant does not invoke the consideration of an application for exemplary damages. The claim for exemplary damages in accordingly dismissed.

MR DURST	$ 7,920
Less 30%	2,376
	$ 5,544

Supreme Court of Samoa

Durst v Petroleum Products Supplies Ltd [2007] WSSC 64 (27 July 2007)