Greer v Alstons Engineering Sales & Services Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Sir Andrew Leggatt |
| Judgment Date | 19 June 2003 |
| Neutral Citation | [2003] UKPC 46 |
| Court | Privy Council |
| Docket Number | Appeal No. 61 of 2001 |
| Date | 19 June 2003 |
[2003] UKPC 46
Present at the hearing:-
Lord Hope of Craighead
Lord Lloyd of Berwick
Lord Rodger of Earlsferry
Sir Andrew Leggatt
Sir Philip Otton
Privy Council
[Delivered by Sir Andrew Leggatt]
Twenty-five years ago the appellant, Carlton Greer, bought a JCB backhoe from the respondents, Alstons Engineering Sales & Services Ltd. He lived in Tobago: the respondents carried on business in Trinidad. In April 1982 the appellant took it back for repair because its gearbox was making an unaccustomed noise. The respondents repaired it at a cost of $20,342.27. The appellant claimed that it was still defective. After several inspections by the respondents it was returned to them in May 1983 for further repair. When the appellant went to collect it on 16th January 1984, an impasse developed, because he refused to accept it unless he was allowed to test drive it, and the respondents refused to allow him to do so unless he paid the outstanding sum of $20,342.27 for the first repairs. There was a charge of $11,646.57 for the further repairs. The appellant declined to pay, and so went away empty-handed; and in May 1984 he began the present proceedings for damages for breach of contract and negligence.
It was not until 4th October 1995 that the action came on for hearing before Madam Justice Sealey, who gave a reserved judgment on 29th November 1995. The appellant had been permitted to amend his pleadings so as to claim in detinue or alternatively in conversion in respect of the period from January 1984 during which the machine had remained in the respondents' possession. It is still in their possession. The judge found that there had been two contracts: the first for the repair of the gearbox and the second for the repair of the gearbox and the differential. Both were properly completed. She held that the respondents wrongfully detained the machine by unreasonably demanding payment for the initial repairs before they would release the backhoe. The appellant was entitled to recover the value of the backhoe at the date when detention took place, which the judge put at February in mistake for January 1984. The appellant's claims in breach of contract, negligence and conversion failed. The judge also gave judgment for the respondents on their counterclaim in the sum of $20,342.27 with interest at the rate of 6% per annum from 1st March 1984 until payment, but she dismissed the respondents' claim for $11,646.57 under the second contract on the ground that the appellant had never received a statement or invoice for that work. The appellant appealed.
The parties have accepted the interim judgment of the Court of Appeal dated 22nd February 2001 (de la Bastide CJ, Jones and Lucky JJA) by which they concluded that the respondents were liable in contract to the appellant for failing to repair the backhoe properly at the first attempt and were accordingly liable to the appellant for damages for loss of use during the period between the return of the backhoe after the first repairs in July 1982 and the wrongful refusal to return it in January 1984. The respondents were also liable to the appellant in detinue for damages for loss of use of the backhoe for six months after that date. The respondents were not entitled to an order for the payment to them by the appellant of the sum of $20,342.27 representing the cost of the first repairs, but were entitled to set that sum off against such amount (if any) as they might be ordered to pay to the appellant representing the value of the backhoe.
The Court of Appeal ordered that the sum of $5000 be paid to the appellant as nominal damages for the loss of the use of his backhoe for the period from July 1982 to July 1984, thereby allowing the appellant a period of six months between January and July 1984 in which to have mitigated his damage by replacing it. The Court also ordered the value of the backhoe to be assessed by a Master as at the date of judgment. They ordered the respondents to pay to the appellant the assessed value of the backhoe less the sum of $20,342.27, with interest on that balance at the rate of 12% per annum from the date of judgment. Finally, having dealt with it by way of set-off, the Court of Appeal quashed the judgment in favour of the respondents for that sum. The Chief Justice said that interest at the rate of 12% per annum approximated a commercial rate and was therefore appropriate in the context of the case.
Against that judgment the appellant now appeals, claiming substantial instead of nominal damages for loss of use of the backhoe from July 1982 to July 1984. On his behalf Mr Marcus SC also argued that the respondents were not entitled to recover any sum for the repairs because they were not properly carried out, and that interest should be awarded to the appellant on the value of the backhoe for the whole of the period from the date of its detention until the date of judgment.
In the Court of Appeal Mr Justice Jones JA, with whom the Chief Justice and Mr Justice Lucky JA agreed, explained at pages 128-129 of the Record the decision to award $5000 by way of nominal damages –
"The appellant claimed damages for loss of use of the backhoe in negligence in respect of the period from July 1982 to January 1984 and in detinue for a period of at least 6 months thereafter. A claim for loss of use of an income-earning chattel is a species of special damages. The onus is therefore on a claimant to prove strictly not only his loss but also the quantum of it. The learned trial judge held that the appellant had not given cogent evidence to support his loss. She described his evidence as vague and generalised. Indeed his evidence was that the daily rate for the backhoe in 1982 was $500.00 increasing in 1983 to $600.00, and by 1984 the figure was $800.00 per day or $100.00 an hour. He failed to produce any documentation in support of these claims and furthermore these sums were all gross.
In order for net loss to be assessed, there must be evidence about the expenses incurred in...
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