Hameed v Hanssen - [2015] SADC 145

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
HAMEED v HANSSEN
[2015] SADC 145
Judgment of Her Honour Judge McIntyre
27 October 2015
DAMAGES - GENERAL PRINCIPLES
The appellant sought review of a magistrate’s decision to award judgment in default of appearance. Appellant admits damaging the respondent’s car but denies that he is responsible for the full extent of the damage. In the circumstances the default judgment was set aside, evidence was heard and damages assessed.
Held:
1.    The respondent has failed to establish that the appellant was responsible for the full extent of damage to his car.
2.    Damages assessed at $390.00.
3.    Judgment for the respondent in the sum of $510 inclusive of costs.
Magistrates Court Act 1991 s 38, referred to.

HAMEED v HANSSEN
[2015] SADC 145

By application dated 5 February 2015, Mr Hameed sought a review by this Court of a Magistrate’s decision in a minor civil claim under s 38 of the Magistrates Court Act 1991.
The learned Magistrate awarded default judgment against Mr Hameed for non-attendance on 13 December 2014.
Procedural matters
Mr Hameed requires an extension of time within which to bring this application. He did not bring it within time because he was unable to pay the filing fee for the appeal. In all of the circumstances I consider it appropriate to grant him an extension of time within which to lodge his application.
Section 38(6) of the Magistrates Court Act provides that the District Court may, on the application of a party dissatisfied with a judgment given in the minor civil action review the matter. The decision of the District Court on such a review is final and not subject to appeal. The procedural rules applicable to a review are set out in s 38(7) of the Magistrates Court Act. The District Court may inform itself as it thinks fit and is not bound by the rules of evidence. In hearing and determining the review the Court must act with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The learned Magistrate did not hear evidence in this matter owing to Mr Hameed’s non-attendance. Mr Hameed says that he mistook the date of the hearing. Whilst his explanation is not entirely satisfactory some of the documents that he attached to his application for review caused me concern about the quantum of the respondent’s claim. In those circumstances I considered that the interests of justice required that I proceed to hear evidence from both parties.
Mr Hameed attended with his wife. The respondent, Mr Hanssen, appeared but in effect this application is brought by his insurer, RAA Insurance Company, pursuant to its rights of subrogation under Mr Hanssen’s insurance policy.
Background
This is a claim for the cost of repairs to Mr Hanssen’s motor vehicle, a Nissan Dualis, arising out of what could colloquially be called a “carpark rage incident”.
The basic facts are not in dispute. The main issue is the amount claimed for the repairs.
On Sunday, 22 September 2013 Mr Hameed and Mr Hanssen were at the Gepps Cross Markets, Main North Road, Gepps Cross. Both were looking for a car parking space. Mr Hameed says that he had been waiting for a carpark and that Mr Hanssen parked his car in that space. Mr Hanssen says he did not see Mr Hameed. In any event, Mr Hameed says that he was very angry and decided to damage Mr Hanssen’s car. The extent of the damage he inflicted is in dispute. What is not in dispute is that Mr Hameed used his key to scratch at least the left hand door panel. The police were called and Mr Hameed was arrested.
Mr Hameed was subsequently charged with property damage. He entered a plea of guilty in the Magistrates’ Court on 27 November 2011. He was placed on a good behaviour bond for a period of 12 months in the sum of $500 to come up for conviction and sentence if called upon. Mr Hameed was also ordered to pay costs in the sum of $663 and compensation of $500 to Mr Hanssen by way of fortnightly payments of $20 commencing on 1 May 2015.
The current proceedings were instituted in Mr Hanssen’s name by his insurance company, RAA Insurance. The statement of claim filed on 26 June 2014 sought damages in the sum of $3,551.64 for repairs to Mr Hanssen’s vehicle.
Mr Hameed did not attend court on the day set for hearing and so default judgment was entered against him. In support of the claim for damages Mr Hanssen’s insurer provided the learned Magistrate with an invoice from Supreme Crash Repairs dated 29 January 2014 which set out the cost of repairs in the sum of $3,066, inclusive of GST, together with a car hire bill for $763.64 for 14 days at $60 a day. In addition to these amounts the learned Magistrate awarded $60 costs for the assessor who attended the hearing. Judgment was entered for $3,939.64.
The Review Hearing
Before me, the RAA representative indicated that they did not seek the GST component on the invoices. The claim was therefore $2,788 for the repairs and $763.64 for the car hire.
The insurance assessor Mr Economou gave evidence, saying that he assessed the vehicle at the premises of Supreme Crash Repairs at the request of RAA Insurance on 30 September 2013. Before he did so he was provided with a description of the accident. This told him what damage had been caused and where it had been caused. In particular, he was told that both sides of the car were damaged. He inspected the vehicle and said it was evident that all four doors of the car were scratched. He said that the scratches looked uniform, fresh and consistent. He said that the photographs taken by the crash repairer and tendered as Exhibit R2 were consistent with his observations. The photographs show extensive scratching on the driver’s side and the passenger side of the vehicle. All four doors appear to have significant and obvious scratches.
Mr Economou said that the Dualis was a black metallic vehicle. Whilst only two doors were damaged, as a trade standard it was necessary to blend the colour into adjacent panels so that it looked uniform. This explains why the invoice relates to areas such as the boot trim, rear bar and mud flaps because it was necessary to remove these items for this painting and blending process. Mr Economou assessed the invoice before it was paid by RAA Insurance. He considered it to be reasonable.
Mr Economou said that if there was only one scratch on one door of about 50 cm that he thought it would cost approximately $600 to $700 to repair because it would be necessary to blend the paint with either panel on either side. He considered that this would be a three to four day job.
Both Mr Hanssen and Mr Hameed gave evidence about the circumstances in which the Dualis was damaged. Mr Hanssen gave evidence with the assistance of an interpreter Mr Hameed had the assistance of his wife.
Mr Hanssen says that he did not see Mr Hameed prior to seeing him scratch his car. He denied any argument over the car park before he went to do his shopping at the Sunday market. He said that as he came back to his car park he saw Mr Hameed scratching the right side of his vehicle with a key. Mr Hanssen got his mobile phone out to take a photograph. By the time he was able to take a photograph Mr Hameed was on the left side of his car. Accordingly Mr Hanssen recorded what Mr Hameed did on the left side but could not photograph the right side. He said that he saw Mr Hameed start from the end of his car on the left side and move right to the front of the car.
The photographs were tendered as exhibit R1. These clearly show Mr Hameed scratching the left-hand front door of Mr Hanssen’s vehicle. Mr Hameed does not dispute that this is the case. Mr Hanssen identified exhibit R2 as photographs of his car. He says that the scratches shown on those photographs are consistent with the damage caused by Mr Hameed. In other words there were scratches on both sides of the car and on the front and rear doors.
The police apprehension report relating to this incident gives a slightly different version of events to that given by Mr Hanssen in Court. He is recorded as telling police that, as he attempted to drive into a car parking space, Mr Hameed, driving his car from the opposite direction, tried to pull into the same car space. Mr Hanssen told police that they argued over the car park. After this he parked, then walked away towards the market. Mr Hameed left walking in the opposite direction. Mr Hanssen is recorded as telling the police that he returned a short time later and saw Mr Hameed walking alongside his car, dragging a key along the left-hand door panel, causing a deep scratch to the paintwork. He took a photo on his phone and approached Mr Hameed. He then telephoned police and had Mr Hameed wait with him until the police arrived. Mr Hameed was arrested but declined to answer any police questions.
The police observation contained in the apprehension report is that “the left-hand door panel had a visible deep scratch approximately 50 cm long running along the length of it”. The police officer assessed the damage at about $500.
The contents of the police report were put to Mr Hanssen. He says he told the police about the other scratches. He denies telling the police that they had an argument over the car parking before the scratching incident.
Mr Hanssen did not know any details about compensation being awarded to him in the criminal proceedings against Mr Hameed but agreed that he had received some $20 cheques through the Court. He was uncertain how many $20 cheques he had received.
Mr Hameed gave evidence that he had been at the car park waiting for a Chinese girl to leave a car park space. Mr Hanssen drove into the car park from the opposite side. He said he got angry and scratched the left-hand side front door of Mr Hanssen’s vehicle. He denied causing any other damage to the car. He says he attended court on the criminal charge and pleaded guilty. He was ordered to pay $500 compensation to Mr Hanssen in installments of $20 per fortnight. He was unable to tell me how much he had paid but I infer that he has not paid the full amount.
Conclusion
There is no issue in this matter as to liability. Plainly Mr Hameed deliberately damaged Mr Hanssen’s car scratching it with a key. The question is the extent of the damage.
I am faced with two contrasting versions of events. Mr Hanssen says that Mr Hameed scratched all four doors. Mr Hameed maintains that he scratched only one.
The independent evidence is equivocal. Mr Economou saw scratches on all four doors and the photographs taken by the crash repairer confirm that all four doors were scratched. Mr Economou however did not see the vehicle until some 9 days after the incident in the car park. The photographs taken by Mr Hanssen show Mr Hameed scratching the left-hand side passenger door. They do not show any other damage. The police report refers to only one scratch on the left-hand door panel. It further suggests that Mr Hanssen only pointed out one scratch although I note that he denies this. The police estimated the damage at about $500. The other scratches are plainly visible in the photographs taken by the crash repairer. I find it difficult to accept that the police would not have observed at least the other scratches on the left-hand side of the vehicle and further, I find it difficult to accept that the police officer would have assessed the damage at only $500 had he seen the other scratches.
The respondent bears the onus of proving the loss on the balance of probabilities. I am uncertain where the truth lies. In those circumstances I am not satisfied that the respondent has established that Mr Hameed scratched all four doors. I will therefore assess damages for scratching one door. Whilst the police officer assessed the damage at about $500, Mr Economou suggested that the cost of repairs would be in the order of $600 to $700. Mr Economou as a qualified loss assessor is better placed to assess the cost of repairs to a vehicle. I therefore assess the cost of the repairs in the sum of $650 being the mid-point of Mr Economou’s range. I further note his assessment that it would have taken up to four days to complete the work. Mr Hanssen would have required a car during this period. I therefore assess damages for car hire at $240. This makes a total of $890. From this must be deducted the $500 that Mr Hameed has already been ordered to pay Mr Hanssen. The repayment or otherwise of that amount is an issue between Mr Hanssen and his insurer.
Accordingly, I rescind the judgment entered in the Magistrates Court and substitute an award of $390 for damages. In addition Mr Hameed must pay the costs awarded against him in the Magistrates Court and in this Court being the cost of the assessor’s attendance on two occasions that Mr Hameed failed to attend for hearing. These costs were fixed in the sum of $60 on each occasion. This brings the total judgment to $510.
I award judgment for the respondent in the sum of $510.