Tina Papies v Clive James

• Jurisdiction: Saint Kitts and Nevis
• Judge: Ellis JA
• Judgment Date: 11 May 2023
• Judgment citation (vLex): [2023] ECSC J0511-2
• Docket Number: SKBHCVAP2019/0019
• Court: Court of Appeal (Saint Kitts and Nevis)

Between:

Tina Papies

Appellant

and

Clive James

Respondent

Before:

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mde. Vicki Ann Ellis Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

SKBHCVAP2019/0019

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil Appeal — Motor vehicular accident — Assessment of damages — Special damages — Diminution in value — Jurisdiction of an appellate court to interfere with an award of damages — Whether the mastclaim.red in awarding special damages in the sum of $39,845.92 representing the cost of repairing the respondent's vehicle — Whether direct loss or diminution of value should be pleaded as a claim for general damages or special damages — Whether the reasonableness of repair to chattel must be judged with reference to the claimant's position or his insurer's position — Proof of value — Loss of income — Whether the master erred in finding that three weeks was reasonable to begin repairs in calculating loss of profits — Pre-judgment and post-judgment interest — Whether failure to comply with 8.6(4) result in automatic failure to be awarded interest — Rule 8.6(4) of the Civil Procedure Rules 2000 — Whether delay in the delivery of judgment disturb the award of interest in a claim.

Summary judgment on liability was entered against the appellant in a negligence claim in which a motor vehicle driven by the appellant collided with the respondent's hire bus. The matter then came up for assessment of damages before the learned master in the court below.

After considering the evidence of the respondent, the master accepted the approved costs of repairs from the respondent's insurers in the sum of $39,845.92. She considered that the approved sum (reduced by deductibles) would have placed the respondent at a disadvantage as only $31,879.82 was disbursed by the insurance company. The respondent was therefore awarded the sum of $39,845.92.

Under the head of damages for loss of income/loss of use, the respondent sought loss of income from the date of the incident (17 ^th March 2017) to the date of filing the claim (12 ^th June 2017) and continuing from the date of filing to 6 ^th September 2017. The award for loss of income/loss of use was assessed at $47,196.80.

The master awarded the sum of $300.00 to the respondent for the costs of obtaining a demand letter from his lawyer and the police report despite the lack of evidence to substantiate the claims. Finally, the master awarded pre-judgment and post-judgment interest at a rate of 2.5% and 5% respectively rejecting the respondent's claim for pre-judgment interest at a rate of 6%.

Dissatisfied with the master's decision the appellant filed a notice of appeal on 21 ^st March 2019. The appellant took issue with the master's calculation and award of special damages under the following general headings: (i) cost of repairs to the vehicle, (ii) loss of income and (iii) pre-judgment interest.

Held: allowing the appeal in part; affirming the master's award in respect of pre-judgment interest in the court below; setting aside the master's award in respect of loss of use (loss of profits) and substituting the sum of $46,248.99 as the award for loss of profits; setting aside the master's award in respect of damages to the vehicle and remitting this head of damage to the court below for assessment; and making no order as to costs, that:

• 1. For an appellate court to interfere with an award of damages, it must first be satisfied that in assessing damages, the trial judge applied a wrong principle of law or made an award so inordinately low or so unwarrantably high that it represents an entirely erroneous estimate of damages to which the claimant is entitled and as such could be said to be plainly wrong. If the award is reasonable, after considering all the elements of loss/damage, it is not appropriate for an appellate court to disturb the judge's award because of a mere difference in opinion on the amount awarded.

  Saffron Limited v Angel Estates Limited ANUHCVAP2012/0045 (delivered 1st February 2019, unreported) applied; Alphonso and Others v Deodat Ramnath [1997] 56 WIR 183 applied.

• 2. The normal measure of damages is the amount by which the value of the goods damaged has been diminished. In the case of goods, the cost of repair has become established as prima facie the correct measure of a claimant's loss. The cost of repair must also be reasonable to put the chattel in the state it was in before it was damaged. Further, a direct loss or diminution in value should be pleaded as a claim for ‘general damages’ and not ‘special damages’. This distinction is important as special damages consist of out of pocket expenses and must be pleaded and proved with proper particularity.

  Coles v Hetherton [2013] EWCA Civ 1704 applied; Ruth Dubois et al v Francis Maurice SLUHCVAP2013/0007 (delivered 18th May 2018, unreported) applied.

• 3. Documents such as the invoice for the cost of repairs undertaken are no more than evidence of the diminution in value which can be used to make a good claim. The cost of repairs is not itself the loss suffered. Therefore, generally, a claim for loss of use is a claim for general damages. On the other hand, if the chattel concerned is one that is normally used in the hope of making a profit (such as a hire bus in this case), then a claim for the profits lost because the chattel could not be used for that purpose would constitute special damages. Those damages have to be specifically pleaded and proved.

  Coles v Hetherton [2013] EWCA Civ 1704 applied.

• 4. Where a claimant's insurer has arranged repair, the reasonableness of the repair charge must be judged by reference to what a person in the position of the claimant could obtain on the open market and not what his or her insurer could obtain on the open market. It would be an error of law for a judge to rely on correspondence detailing what costs of repair the insurance could obtain on an open market. It was therefore not open to the learned master to consider or apply the correspondence detailing the position of the insurer. The master was instead obliged to consider the ample evidence before her and arrive at an award which represented the reasonable costs of repairs having regard to the estimates from both parties and any oral evidence adduced.

  Coles v Hetherton [2013] EWCA Civ 1704 applied; Parry v Cleaver [1970] AC 1 applied; Jones and another v Stroud District Council [1988] 1 All ER 5 applied.

• 5. The owner of a vessel (and motor vehicle) is entitled to the expenses of detention of his vessel and the amount of profit lost. However, these heads of damages are dependent on the relevant timing, so that the owner is only entitled to such period necessary allowing for reasonable dispatch. What constitutes ‘reasonable dispatch’ is dependent on the facts of each case. It is clear in the court below that the master determined that the three additional weeks for the repairs to begin was not unreasonable. The appellant provided no factual or legal basis to disturb that finding.

  Malcolm Joseph et al v Alison Charles GDAHCV2002/0077 (delivered 6th February 2003, unreported) applied.

• 6. Awards of interest are designed to compensate claimants for the cost of being kept out of their money. The purpose of CPR 8.6(4) is to ensure that the defendant is aware of the claim being made against him and on what grounds. The claim form clearly set out the type of interest claimed as well as the relevant rate and period. This was sufficient to bring the claim of interest to the appellant's attention. The fact that the respondent did not plead the statutory framework does not deprive the court of the jurisdiction to make an award in an appropriate case. Further, the delay in the delivery of judgment cannot be laid at the respondent's feet. In this case there is no basis upon which the respondent should not recover interest during the period where he continued to be kept out of his money.

  N.G.S.C Ltd v N.P.A (1990) 1 NWLR (Pt. 129) 741 considered; A.B. Kemp Limited and Ors. v Tolland (1956) 2 Lloyd's Law Report 681 applied.

Appearances:

Ms. Sonya Parry and Ms. Chauntelle Hobson for the Appellant

Mr. Hasani McDonald and Mrs. Natasha Grey-Brookes for the Respondent

Ellis JA

1 This is an appeal against the ruling on an assessment of damages by the learned master delivered on 8 ^th April 2019. The appellant takes issue with the master's award of special damages, in particular, damages to the vehicle in the sum of $39,845.92, loss of income in the sum of $47,196.80 and the master's award of pre-judgment interest at the rate of 2.5%.

Background

2 The matter in the court below concerned a negligence claim arising out of a motor vehicular incident in which a motor vehicle driven by the appellant collided with the respondent's hire-bus. Summary judgment on liability was entered in favour of the respondent and the matter came up for assessment of damages before the learned master.

3 In his statement of case, the respondent sought inter alia special damages in respect of: (i) damages to his vehicle in the sum of $44,971.65; (ii) loss of income from 17 ^th March 2017 (the date of accident) to 12 ^th June 2017 (the date of filing the claim) and continuing (aggregate of 25 weeks) at an average weekly rate of $2,550.00, which totalled in the sum of $63,750.00; and (iii) cost of the letter of demand ($250.00) and police report ($50.00) totalling $300.00. The respondent also claimed pre-judgment interest at a rate of 6%, post-judgment interest at a rate of 5% and costs.

4 The amount claimed in respect of damage to the vehicle represented the costs of labour, materials and parts. In support of his claim, the respondent produced an estimate of repairs from Mr. Wrenford Evelyn dated 30 ^th March 2017. That report set out an estimated cost of repair at $44,971.65 and the time for repairs at 15 days. In...