Groves v Clark

[1987] TASSC 92

Serial No B22/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Groves v Clark [1987] TASSC 92; B22/1987

PARTIES:  GROVES
  v
  CLARK

FILE NO/S:  1200/1984
DELIVERED ON:  13 May 1987
JUDGMENT OF:  Wright J

Judgment Number:  B22/1987
Number of paragraphs:  10

Serial No B22/1987
List "B"
File No 1200/1984

GROVES v CLARK & ANOR

REASONS FOR JUDGMENT  WRIGHT J

13 May 1987

1. This is an assessment of damages following the entry of interlocutory judgment. The plaintiff is the widow and administratrix of the estate of Stanley Lewis Groves, who at all material times operated a business as a firewood merchant.

1. The plaintiff claims damages for towage, loss of profits, and the cost of repairs arising out of a motor vehicle accident on 28 February 1984 in which the deceased's diesel powered Acco International truck was damaged.

1. The cost of repairs, claimed at $2,630 is not in dispute. A claim for towage of $100 was not proved and cannot be allowed. The real contest concerned the claim for loss of profits. No books of account, business records, or taxation returns were produced to show the profitability of the deceased's business. At the time of the accident he owned two Acco International trucks each with a carrying capacity of about 8½ tonnes. These vehicles were used to obtain wood from Buckland and Nugent to supply the deceased's business. The diesel Acco was obtained apparently to assist with the business as it expanded, but as the other petrol powered vehicle began to give mechanical trouble, its use was phased out to some extent and during the month or two before the accident, the diesel Acco alone was in use.

1. Reasonable attempts were made by the deceased, his son and a family friend, Mr W G A Arnold to secure a replacement either by way of hire or purchase. A suitable substitute could not be found and the deceased, rather than utilising the petrol Acco with its attendant uncertainty of performance, resorted to using 2 smaller vehicles, referred to as Dynas in evidence, each of which had a 2 tonne capacity, to go into the bush areas to cart timber back to the timber yard at Mornington. The Dynas were normally used to cart timber from the yard to the homes of purchasers but as their use for this purpose was curtailed by reason of the new demands being placed upon them, and as timber supplies at the yard became exhausted as a consequence of their combined decreased carrying capacity, many orders for wood had to be cancelled.

1. No evidence was given to establish the overhead and running costs of the various vehicles and a very insubstantial basis for assessment of damages was provided. This threshold problem was further complicated by the inescapable conclusion that the deceased's loss was due in part to the unavailability of his regular contractor, Mr Montgomery who was apparently quite seriously injured in the same accident.

1. Mr Montgomery had been delivering timber to the deceased's business at the price of $22 per tonne. Mr Montgomery claimed not to have been an employee of the deceased's business. Out of the $22 per tonne which he received for wood delivered to the business, he apparently paid the royalty and running expenses for the vehicle. The deceased sold the same timber at $44 per tonne on average but there was at best, very meagre evidence upon which this gross profit could be translated to nett profit. No evidence was given which would have shown the cost of running the two Dynas when used on home deliveries, or the wages paid to the driver who drove the vehicles for this purpose. The cost of storing the wood was not given and general overhead expenses were not mentioned. I think that I would be quite unjustified in concluding that there was a nett profit margin of more than approximately $10 per tonne.

1. The evidence so far as it went suggested that the business was probably reduced in capacity from about 50 tonnes per week to about 20 tonnes per week during the relevant period and a nett loss to the business therefore of about $300 per week.

1. It was plain I think from Mr Foxton's evidence that the diesel Acco was off the road for an unreasonably long time. Allowing for the nature and extent of the repairs I am of the opinion that 6 weeks would have been a reasonable time from the date of the accident until the vehicle resumed work. A great deal of the initial delay from 28 February to 12 April, appears to be explainable only on the basis of dilatoriness by the deceased or his solicitors.

1. I make no deduction for the 10 loads that Mr Montgomery was able to provide by using the petrol Acco during his slow return to good health, simply because it seems to me that he did that work during the latter part of the period for which loss of profits have been claimed and as already indicated, I have reduced the period over which I will allow lost profits from 3½ months to 6 weeks.

1. I assess damages as follows:

1)   Cost of Repairs                  $2630.00

2)   Loss of Profit

     

6 weeks at $300

     

per week  $1800.00

$4430.00