The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 23 of 1997

 

Joseph Horsford Appellant

v.

Bernard Jarvis Respondent

 

FROM

 

THE COURT OF APPEAL OF ANTIGUA AND BARBUDA

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 30th October 1997

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hutton

Lord Saville

Mr. Justice Gault

  ·[Delivered by Mr. Justice Gault]

 

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This appeal is against the amount awarded to the appellant in damages arising out of a motor accident.

The appellant's vehicle, an American GMC 4 wheel drive pick-up, custom-made in Detroit, was involved in a collision with the respondent's vehicle, a Nissan pick-up, at a road junction in Antigua on 15th December 1989.  Both vehicles sustained damage.  The respondent admitted liability.

 

1. The appellant's vehicle had not been repaired prior to the trial.  He was not able to obtain replacement parts.  Some work was done in an effort to repair the damaged parts but they proved unsuccessful and the vehicle was not usable.  In that condition it suffered further damage which gave rise to some difficulty in identifying at trial the damage resulting from the first collision.  The appellant purchased another vehicle though not, on his evidence, as a replacement for his damaged pick-up.  He took delivery of that on 5th February 1990.  The matter was tried before Benjamin J. in the  Supreme Court of Antigua and Barbuda on the single issue of the measure of damages to which the appellant was entitled.

 

2. The appellant's claim as amended was formulated as follows:-

(1)Difference between pre-accident value and salvage value of Plaintiff's truck

($51,000.00 - $20,000.00)31,000.00

Alternatively

(i)Repairs to Plaintiff's truck

($14,295.00) and

(ii)Depreciation to Plaintiff's truck

($11,500.00)

Total25,795.00

(2)Alternative transportation for

7 weeks @ $100.00 per day4,900.00

(3)Haulage transportation3,570.00

(4)Towage200.00

(5)Overseas telephone calls760.68

(6)Inspection costs300.00

(7)Overseas travel costs3,570.00

(8)Unexpired duty and tax1,650.00

(9)Bank Charges66.00

(10)Unexpired insurance and licence fees61.36

 

3. In his judgment delivered on 28th November 1994 Benjamin J. rejected the primary claim for the difference between the pre-accident value and salvage value, finding on the evidence that the vehicle was not so badly damaged that it was beyond repair and that replacement parts could have been obtained.  On the alternative basis of claim the Judge awarded the amount of $14,295.00 claimed for repairs but rejected the claim for depreciation.  That had rested on evidence that even after repair the vehicle would be of reduced value because the front portion was twisted so as to affect the alignment and wear of the tyres.  The Judge expressed himself as unimpressed with the evidence on the point.

 

4. The Judge allowed the other heads of damage except for the last four items listed in the claim.  Of these the one of present relevance is for overseas travel costs of $3,570.00.  This comprised amounts paid by the appellant to his cousin in reimbursement for expenses incurred on two visits to Florida  during  which  he  sought  for the appellant, though

without success, vehicle parts or a replacement used pick-up.  The Judge was not satisfied that replacement parts were not obtainable with reasonable efforts.  He noted that there was no evidence of any attempt to contact the manufacturer of the vehicle in Detroit.  He disallowed the claim for these expenses as not reasonably incurred.

 

5. The judgment was for $24,025.68 by way of special damages with interest on the said sum at the rate of ten percent per annum from the date of the writ to the date of judgment and thereafter at the statutory rate of five percent per annum until paid.

 

6. The appellant appealed unsuccessfully to the Court of Appeal of Antigua and Barbuda.  Although he had been represented by counsel at the trial, he appeared in person in the Court of Appeal as he did before their Lordships.  In the Court of Appeal his grounds of appeal raised the issue of compensation for loss of use of the vehicle.  This was not a specific head of his claim as amended before the trial Judge although there was some evidence directed to it at the trial.  It was argued in the Court of Appeal, apparently without objection.  The appellant sought an amount calculated by reference to the cost of $240.00 per day for hiring an equivalent vehicle for the period from the date of the collision to the date of the judgment less the specific sums that had been awarded for alternative and haulage transportation.  Plainly this depended upon a successful challenge to the Judge's findings that replacement parts could have been obtained and the vehicle repaired by 5th February 1990.

 

7. The Court of Appeal, in the judgment of Sir Vincent Floissac C.J., with whom Singh and Matthew J.J. agreed, held that a claim for loss of use of the vehicle was recognised as available at law but determined that the evidence of loss did not go beyond the cost of hire of a substitute vehicle for the nine week period during which the Judge held the pick-up could have been repaired.  That had been compensated in the Judge's award.

 

8. Similarly the claim for depreciation was accepted as available at law.   But the Court of Appeal held that the appellant had failed to prove by appropriate evidence that the market value of the truck had been reduced notwithstanding the repairs for which the claim had succeeded.

 

9. The third point dealt with by the Court of Appeal under the heading "Mitigation of Loss" was the claim for the expenses reimbursed to the appellant's cousin for his attempts to find parts or a replacement vehicle in Florida.  It was held that the finding of the Judge that these expenses were not reasonably incurred because reasonable steps would have secured replacement parts without the need for the cousin's efforts was open to him and should not be disturbed.

 

10. Before their Lordships Mr. Horsford presented argument on the same three issues that had been considered by the Court of Appeal.  In his written case, which has been carefully considered, some additional matters were raised.  It was submitted that the respondent was under a duty to facilitate the acquisition of replacement parts for the appellant and that the Judge erred in awarding interest on the damages assessed only from the date of issue of the writ rather than from the date of the collision.  Their Lordships are satisfied these additional matters are without merit and need not be addressed further.

 

11. It will be only in special circumstances that their Lordships' Board will review matters of fact on which there have been concurrent findings in the courts below.  In this case the three issues raised in the course of the hearing were questions of fact on which the trial Judge had made material findings.  These were reviewed and affirmed by the Court of Appeal.  Mr. Horsford contended that certain findings should not stand because they were without any basis in the evidence but that cannot be accepted.  In particular his submission that there was no evidence that replacement parts were obtainable is inconsistent with the evidence of the mechanic Mr. Shaw that he could get parts for any American vehicle within two or three days.  Although the Judge did not accept aspects of Mr Shaw's evidence it was open to him to accept that.  Further, the assumption underlying the evidence of the appellant's mechanic, Mr. Wiltshire, as to the costs of repair was that replacement parts were available.

 

12. Mr. Horsford also submitted that there was no evidence to justify the rejection of Mr. Wiltshire's assessment of the depreciation in the value of the vehicle.  That appeared in his report dated 29th December 1989 in which he expressed the opinion that the vehicle had a pre-accident value of $51,000 and an estimated salvage value of $20,000.  However his opinion  was given in light of his view that the engine bay of the vehicle was twisted and the Judge did not accept his evidence of that.  It was of course open to the Judge who heard and saw the witnesses to accept or reject any parts of their evidence.

 

13. The claims for loss of use of the vehicle and for the expenses incurred in the searches in Florida for replacement parts or a replacement vehicle failed on the same factual findings that replacement parts could have been obtained and the vehicle repaired within the nine week period specified by the Judge.  The claim for depreciation was held not to have been proved by acceptable evidence.  Those were crucial findings.  They were considered and affirmed by the Court of Appeal.  No sufficient reasons have been advanced for them to be further reviewed by their Lordships on a second appeal.

 

14. For the reasons given their Lordships will humbly advise Her Majesty that the appeal should be dismissed.  The appellant must pay the respondent's costs before their Lordships' Board.

 

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