Anthony Payne Plaintiff v Kwame de Bourg Sharon de Bourg Defendants [ECSC]

• Jurisdiction: Grenada
• Judge: JUSTICE CHARMAINE PEMBERTON
• Judgment Date: 10 October 2002
• Judgment citation (vLex): [2002] ECSC J1010-1
• Court: Supreme Court (Grenada)
• Docket Number: CIVIL SUIT NO. 2001/0308
• Date: 10 October 2002

[2002] ECSC J1010-1

IN THE SUPREME COURT OF

AND THE WEST INDIES ASSOCIATED STATES

IN THE HIGH COURT OF JUSTICE

CIVIL SUIT NO. 2001/0308

Between

Anthony Payne

Plaintiff

and

Kwame de Bourg

Sharon de Bourg

Defendants

Appearances:

Mrs. C. Edwards and Mrs. N. Byer for the Claimant

Mrs. P. Hannibal for the Defendants

DECISION

JUSTICE CHARMAINE PEMBERTON

1 By Summons dated and filed on 15^th May 2001 and heard on 14^th November 2001, judgment was entered on behalf of the Claimant against the Defendant with damages to be assessed, with costs of the action to be awarded to the Claimant. The date for the Assessment of Damages was set as 31^st January 2002. On that day, the Court gave directions for the filing of affidavits, and the matter was adjourned to 14^th March 2002. The hearing of the assessment continued on 2^nd May 2002 after which both Counsel made submissions in writing outlining their respective clients' legal positions, together with authorities.

2 This action was born of a motor vehicle accident which took place on 1^st April, 2001 between vehicles owned and/driven by the parties hereto. A Specially endorsed Writ of Summons was filed on 27^th April, 2001 in which the Claimant claimed Special Damages under the following heads:

Pre accident value	$55,000.00
Less value of wreck	$20,000.00
Loss sustained	$35,000.00
Towing Charges	$ 250.00
Police Report	$ 100.00
	$35,350.00

The other claims were for general damages, interest, further and or other relief and costs.

3 The Claimant filed an affidavit in support of the application for assessment to which he exhibited proof of his claim for towage charges and the Police Report. He exhibited as well copies of the Police Report, a Vehicle Damage Survey carried out by Antillies Loss Adjusters and Surveyors, which was unsigned, a survey Report done by Mr. Robert Miller dated 6^th May, 2001 and a Survey done by Mc Intyre Bros. dated 18^th April, 2001. The Defendants filed a joint affidavit in which they prayed that the assessment of damages should be based on the basis of cost of repairs instead of replacement value of the motor vehicle. In support of the Defendants exhibited a Survey Report dated 4^th May, 2001 prepared by Mr. Monte S. Ponton on behalf of Antilles Loss Adjusters and Surveyors.

4 The writers of the Reports were cross-examined by both Counsel. Thereafter, Counsel for the Plaintiff and Counsel for the Defendants were invited to present written submissions to the Court, which were filed on May 14, 2002 and June 17, 2002 respectively. Counsel forthe Claimant presented the Court with two alternatives, that the assessment should be based on a total loss basis or on a repairs basis. Mr. Christopher Franics, the Service Manager at Mc Intyre Brothers Limited, and who submitted the report referred to above as exhibited to the Claimant's affidavit, was of the opinion that since the frame of the vehicle was twisted it could not be repaired and should be replaced. He advocated that the vehicle should be regarded as a total loss. This view did not find much support from the evidence of Mr. Monty Ponton, Loss Adjuster or Mr. Robert Miller, Surveyor. In Mr. Miller's report, he opined that after an inspection of the vehicle, he was of the opinion that "…this vehicle can be satisfactorily restored, provided the forementioned parts are replaced…". The Court accepts this evidence and will proceed on the basis that the damages to be assessed should be done on the cost of repairs basis.

5 GENERAL PRINCIPLE

The general principle in assessing damage to chattel is captured in the maximrestitutio in intergrum. IN DERBISHIRE v WARREN [1963] 1 All E.R. 310, Pennycuick J. had this to say at page 317:

…it may happen that restitution can be effected either by repair of the existing article or by the purchase of a comparable article, …In such a case the measure of damage is restitution by whichever method it would be reasonable for the owner of the chattel to adopt in the particular circumstances…

6 USE OF ESTIMATES

The Court must turn its attention to the estimates provided by the parties. It is instructive to deal with the concept of estimates. The authors ofMC GREGOR ON DAMAGES 12^th ed. Paragraph 655 state:

The fact that the repairs have not yet been executed before the hearing of the action, or will never be executed at all, does notprevent the normal recovery.

No evidence was led by the parties to indicate whether the repairs had been done at the time of the action or have since been done. The parties presented estimates of the cost of repairs and that is the evidence that the Court will work with to arrive a figure to award as compensation to the Claimant.

7 Mr. Ponton submitted estimates of the cost of replacement parts for the damaged vehicle. His estimate stood at 11,826.48 depreciated at the rate of 20% to be $9,454.48. Under cross-examination as to the reason for the deduction, he found a "legal basis" in "indemnity". This Court is not aware that the basis of indemnity can be used in this way. Counsel for the Defendants conceded that that principle has no proper application to the law of tort. Dr. Lushington inTHE GAZELLE (1844) 2 Wm and Rob 279 at 281 had this to say:

The right of the wrongdoer is forrestitituo in intergrum, and this Restitution he is bound to make without calling upon the party injured to assist him in any way whatsoever.

This view was endorsed in the later cases ofHARBUTT'S PLASTICINE LTD v WAYNE TANK AND PUMP CO. LTD. [1970] 1 All E. R. 225 and in BACON v...