| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GORDON -v- FOTI [2010] WADC 3 CORAM : MARTINO DCJ HEARD : 13 JANUARY 2010 DELIVERED : 20 JANUARY 2010 FILE NO/S : APP 76 of 2009 BETWEEN : BRADLEY GORDON Appellant
AND
DINO FOTI
Respondent
Catchwords: Assessment of damages - Evidence - Expert evidence Legislation: Nil Result: Appeal dismissed
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Representation: Counsel:
Appellant : Mr T McPhee
Respondent : Mr C Fraser
Solicitors:
Appellant : M J McPhee
Respondent : Effective Legal Pty Ltd
Case(s) referred to in judgment(s):
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Pollock v Wellington (1996) 15 WAR 1
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1 MARTINO DCJ: On 3 March 2008 the appellant, Mr Gordon, and the respondent, Mr Foti, were involved in a motor vehicle accident. Mr Foti's motor vehicle and spectacles were damaged in the accident. Mr Foti commenced an action against Mr Gordon in the Magistrates Court claiming damages for damage to his property. On 22 June 2009 Mr Foti obtained judgment as to liability. A trial as to the amount of damages took place on 7 September 2009, before her Honour Magistrate Boon. On 18 September 2009 her Honour delivered judgment, assessing Mr Foti's damages at $9,634.75, made up as follows:
2 Mr Gordon appeals against the assessment of damages. 3 At the trial Mr Foti gave evidence and adduced evidence from Mr Ralph Walter Morley, a motor vehicle valuer. Both witnesses gave evidence by affidavit and gave oral evidence at the trial. Mr Foti's affidavit was sworn on 21 August 2009. Mr Morley's affidavit was sworn on the same day. 4 Mr Gordon's grounds of appeal are: (Page 4)
d. The assessment of a 'write off' was based solely on the opinion of Mr Ralph Walter Morley, an expert, in circumstances where there were no facts proved as to the basis of that opinion. In light of the findings above her Honour ought to have ruled that there was no evidence of the cost of repair, and therefore the Plaintiff could not prove his loss in respect of the vehicle in question."
Mr Foti's evidence 5 In his affidavit Mr Foti deposed that following the accident the vehicle was towed to AAAC Towing in O'Connor, where it was stored while enquiries were conducted as to the identity of the other driver in the accident, whether that person was insured and, if so, what the insurer's instructions as to the vehicle were. On 27 March 2008 AAAC Towing wrote to Mr Foti's wife, giving notice that if towing and storage fees of $816.75 (and accumulating at $22 a day) were not paid by 4 April 2008 AAAC Towing intended to sell the vehicle. On 11 April 2008 RW Morley & Associates examined the vehicle and provided Mr Foti with an assessment of the value of the vehicle in which he assessed its pre-accident value at $8,000, advised that the vehicle had been written off in the accident and that it could be sold for scrap for $300. Based on the information provided by RW Morley & Associates Mr Foti instructed AAAC Towing to sell the vehicle. The total towing and storage costs incurred by Mr Foti were $1,212.75, from which was deducted the salvage sum of $300.
Mr Morley's evidence 6 In his affidavit Mr Morley deposed that he has worked in the motor vehicle industry for approximately 48 years, that he was worked in the motor vehicle repair trade, has owned and run motor vehicle repair businesses and has performed motor vehicle valuation work. He has been registered as a motor vehicle valuer since 1988 and since that time has conducted the business of RW Morley & Associates. In his capacity as a motor vehicle valuer he carries out valuations of damaged motor vehicles for insurance companies and private individuals, valuations of imported vehicles for WA Customs, acts as agent for people purchasing motor vehicles and provides advice to those persons as to the value of motor vehicles and performs motor vehicle valuation work for WA Police. On or around 11 April 2008 he inspected a 1992 Lexus ES300 motor vehicle owned by Mr Foti, which had been damaged in an accident. (Page 5)
Upon inspecting the vehicle Mr Morley formed the view that its pre-accident value was $8,000, that the vehicle was a write off and that the accident had a post-accident salvage value of $300. When he inspected the vehicle Mr Morley prepared a "Vehicle Particulars" form. Mr Morley deposed that his opinion that the vehicle was a write off and as to its post-accident salvage value were based on his many years of experience as a motor vehicle repairer and a motor vehicle valuer. A copy of the vehicle particulars form completed by Mr Morley was annexed to the affidavit. That form contained the vehicle's make, registration number, model, year and transmission type. He recorded that the body, paint and trim were good and that the tyres were 70 per cent. In the space for comments Mr Morley had written: "The above vehicle appears to have been well maintained prior to claim." In the space for kilometres Mr Morley had written "160,000?". 7 In cross-examination Mr Morley's evidence was that when he looked at the vehicle the speedo reading wasn't coming up, but there was a service sticker on the vehicle's window, so he took the kilometrage from that. The kilometrage was irrelevant to the valuation. Mr Morley acknowledged that there was no figure in his report as to the cost of repairing the vehicle. 8 Mr Morley did not identify the damage suffered by the vehicle in the accident in his affidavit or his oral evidence.
The trial magistrate's reasons 9 The learned trial magistrate identified three issues in the case: "1) Was the affidavit of Mr Morley admissible? 2) If the affidavit of Mr Morley was admissible, is the evidence provided on behalf of Mr Foti sufficient to determine his actual loss? 3) In the absence of a quotation for the cost of repairs to his vehicle, has Mr Foti mitigated his loss?" 10 Her Honour held that Mr Morley's opinion was not based on inadmissible hearsay evidence and inferred that in stating that the vehicle was a write off, Mr Morley had formed the opinion, based on his examination of the vehicle and on his many years of experience, that the cost of any repairs to the vehicle would be greater than its pre-accident (Page 6)
value. Her Honour was satisfied that the pre-accident value of the vehicle was $8,000 and that it would have cost more than that amount to repair. 11 Her Honour found that Mr Foti had acted reasonably in selling the vehicle for scrap when he did. He had incurred a considerable amount of storage costs and those costs were accruing daily and it was reasonable for him to rely upon the judgment of Mr Morley. It was not necessary for Mr Foti to obtain a detailed quote for the cost of repairs when Mr Morley was able to judge from examining the vehicle that it was a write off.
The submissions of counsel for Mr Gordon 12 On the hearing of this appeal counsel for Mr Gordon submitted that the evidence of Mr Morley ought to have been ruled inadmissible or alternatively of no weight as a result of the failure to lead evidence as to the facts upon which the opinion was based. In his outline of submissions he described as the "key point" that there was no evidence as to the cost repairing the vehicle. He submitted that in the absence of that evidence a key factual plank of Mr Morley's opinion was not in place and that, as a result, his evidence was a mere assertion without the foundation for the assertion being explained. 13 In the course of his oral submissions counsel for Mr Gordon moved from that position. This occurred at the end of his submissions when I asked for his submissions on a hypothetical case where a vehicle that had been purchased for $1,000 had been flattened by a heavy truck. Counsel for Mr Gordon submitted that evidence of the cost of repairing the vehicle would be helpful, but not essential, in such a case, but that evidence of the damage suffered in the accident would be required before an expert could give evidence that the vehicle was a write off.
Admissibility of expert evidence 14 For evidence tendered as expert opinion evidence to be admissible, it must be agreed or demonstrated that there is a field of specialised knowledge, there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert, the opinion proffered must be wholly or substantially based on the witness' expert knowledge, so far as the opinion is based on facts observed by the expert they must be identified and admissibly proved by the expert, and so far as the opinion is based on assumed or accepted facts, they must be identified or proved in some other way, it must be established that the facts on which the opinion is based form a proper foundation for it and the expert's evidence must (Page 7)
explain how the field of specialised knowledge in which the witness is expert and on which the opinion is based applies to the facts so as to produce the opinion – Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]. 15 Expert opinion evidence must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it – Pollock v Wellington (1996) 15 WAR 1 at 3.
Was Mr Morley's opinion evidence admissible? 16 Mr Morley gave opinion evidence as to three matters of significance: that the pre-accident value of the motor vehicle was $8,000, that as a result of the damage it sustained in the accident it was a write off and that the scrap value of the damaged vehicle was $300. The term "write off" is a commonly used term to describe motor vehicles that have been damaged. In my view the learned trial magistrate was correct in finding that Mr Morley's evidence that the vehicle was a write off was evidence of his opinion that the cost of any repairs to the vehicle would be greater than its pre-accident value. 17 It is well established that the field of the valuation of property is a field of specialised knowledge. Mr Morley gave evidence as to his experience in the field of the valuation of motor vehicles and the bodies for whom he carries out valuations of motor vehicles. He established that by his experience he had become an expert in that field. In my view he was qualified to give an opinion as to the pre-accident value of the vehicle. He inspected the vehicle and identified its details in his report. His evidence therefore established the basis of his opinion as to its value. 18 A significant aspect of Mr Gordon's case on this appeal is that in the absence of evidence as to the cost of repairing the vehicle Mr Morley's opinion evidence that the vehicle was a write off was a mere assertion without the foundation for the assertion being explained. I do not accept that submission. It may be that in some cases where the cost of repairing a vehicle may be close to its pre-accident value that a detailed assessment of the cost of repairs must be made before a conclusion can be reached that the cost of repairs would be greater than its pre-accident value, but I do not accept that such evidence is always necessary. In some cases, where the cost of repairing the damage would clearly exceed the pre-accident value of the vehicle, it would be completely unnecessary and unrealistic to require that a quotation be obtained. Mr Morley has experience in the repairing of vehicles as well as the valuation of them. (Page 8)
In my view he was qualified to reach the conclusion, after inspecting the vehicle and observing the damage that it suffered in the accident, that the cost of repairing the vehicle would exceed its pre-accident value, without obtaining a quotation for those repairs. 19 Nor do I consider that Mr Morley was required to identify the damage suffered in the motor vehicle to give evidence as to the conclusion that he did. Again, it seems to me, factors can vary and in some cases it may be necessary to identify the damage before expressing a conclusion that a vehicle is a write off. However in other cases it may be quite clear that the vehicle is a write off and, in such a case, to require there to be detailed evidence as to the nature of the damage suffered in the accident would be unrealistic. In view of his experience it is my view that Mr Morley was qualified to reach the conclusions that he did, after seeing the vehicle and its damage. 20 In my view Mr Morley adequately explained in his evidence the basis for the conclusions that he reached. He gave evidence that he had observed the vehicle after the accident. It was on the basis of that inspection and his experience that he reached his conclusions. On the facts of this case his evidence was an adequate explanation of the basis of his opinion. 21 Having concluded that the vehicle was a write off Mr Morley was qualified to give an opinion as to its salvage value. The basis of that opinion was adequately explained – it was given after an inspection of the vehicle. 22 I conclude that Mr Morley's evidence was admissible.
Was the trial Magistrate entitled to rely upon Mr Morley's evidence? 23 Mr Morley's evidence was not contradicted by any other evidence. He gave oral evidence and was cross-examined. In those circumstances the learned trial Magistrate was entitled to accept his evidence.
Conclusion 24 I conclude that Mr Morley's opinion evidence as to the pre-accident value of the vehicle, that it was a write off and as to its salvage value was admissible and that the learned trial Magistrate was entitled to accept that evidence. The appeal will be dismissed.
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