Hamood v Tones

[2010] QDC 422

DISTRICT COURT OF QUEENSLAND

CITATION:

Hamood & Anor v Tones [2010] QDC 422

PARTIES:

David Semmy Hamood and Paula Jane Hamood
(Appellants)
v
John Tones
(Respondent)

FILE NO/S:

BD 998/10

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Toogoolawah

DELIVERED ON:

11 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2010

JUDGE:

Samios DCJ

ORDER:

Appeal allowed

CATCHWORDS:

Damages – Appeal – Assessment of Damages

Fink v Fink (1946) 74 CLR 127
J.L.W. (VIC.) Pty Ltd v Tsiloglou & Ors (1994) 1 VR 237
The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Wheeler v Riverside Coal Transport Co Pty Ltd & Ors (1964) Qd R 113

COUNSEL:

Mr T Matthews for the appellants
No counsel for respondent

SOLICITORS:

Mason Black Lawyers for the appellants
The respondent appeared in person

1. The appellants own a 1200 acre property on the Kilcoy Murgon Road, Kilcoy (the property).

1. The respondent conducts a furniture manufacturing business on a neighbouring property to the property (the neighbouring property).

1. On 30 August 2004 a fire damaged some fencing on the property.

1. The appellants sued the respondent for the damage.

1. After a hearing in the Magistrates Court before the learned Magistrate the respondent was found liable for the fire.  However as to the damage the learned Magistrate said he was not satisfied the appellants had on the balance of probabilities established the loss claimed.

1. This is an appeal by the appellants against the learned Magistrate’s decision not to award the appellants damages.

1. The learned Magistrate found there was damage caused to internal and boundary fences on the property.  However, it was the assessment of the cost of damage that caused the learned Magistrate the most difficulty in the matter.

1. A number of witnesses gave evidence for the appellants and the respondent on the issue of the quantum of the damage.

1. The male appellant said the fencing over the property was predominantly older fencing, but it was certainly sound and stock proof.  It did vary in condition but predominantly it was barbwire fencing and timber posts.  He said regarding the fences that were affected by the fire the property was a rectangular shape.  The fire started on one side boundary and had literally come out into a funnel fashion and spread right across the property.  He said the fire thrust into the property as a funnel and then just opened up and literally gone in all directions.  Regarding the affect of the fire he said some fences were absolutely non-existent.  There was just wire left on the ground in places.  The internal fencing that had just gone completely and utterly gone.  A lot of the boundary fencing had been totally lost and there were a lot of posts that were burnt off at the ground that were just suspended on wire.  It was just a chaotic mess.

1. A little later in his evidence he said the effect of the fire had been total devastation.

1. He also said the damage was assessed by the insurance company and after applying a pro rata calculation the appellants were paid out around $32,000.

1. He also said that the fences had been replaced to the extent that they are stock proof again.

1. Regarding the payout from the insurance company he said the appellants utilised the money because it certainly did not come up to what the damages were.  They utilised the money to employ the services of a contractor to drive posts, provide materials and reinstate the damaged fences.  They had a lot of fencing material that they had bought just prior to this event and that they were in the process of going to cut up extra paddocks and do a lot more cell grazing.

1. The male appellant then through cheque butts verified payments made for fencing materials.  The male appellant said that the appellants did a lot of the work themselves and had other employees and family members do the work.  They also used their own machinery.  The cheque butts add up to $27,703.18.  However, not all the items can be claimed in these proceedings because the proceedings between the appellants and the respondent was for fencing only.  The cheque butts include $1,800 for 200 bales of lucerne hay and $266.99 for replacement of a poly pipe.  The total therefore is $25,636.19.

1. The male appellant also said that they acquired a lot of fence strainers.  The male appellant’s father in law also organised fence posts.  And they used a lot of their own time to do the work. 

1. When cross examined the male appellant said the fire that went through pretty well all the boundaries however, he accepted there was some boundary fences that were not affected at all.

1. Regarding the appellants records the male appellant said that the appellants have moved home and shifted out of the house and moved into a new place and the cheque butts were all that they could find at the time of the trial.

1. The appellants also called the loss adjuster Mr Doughty.  His expertise was admitted.

1. He said he conducted a visual inspection of the property.  His report that was tendered in evidence would indicate that was on 5 September 2004. 

1. He said in his evidence the scope of the work in his report identifies what is required to reinstate the damage.  He said in this case it was to remove and replace which meant that it was beyond repair.  New fencing was used to replace the old fencing. 

1. He also obtained two quotes.  One was for $64,245 and another was for $70,000.  However, he assessed the total value of fencing on the property to be $94,500 and applied a pro rata calculation to this to arrive at a figure of $75,600.  He then multiplied that by the repair cost as assessed and this made the full repair cost $45,360.  He said there was a deduction made for some of the damaged property which was owned by neighbours and shared boundary fencing.  Therefore the insured namely the appellants were only responsible for half those costs on those fences.  Then the multiplier was used to come to a figure for settlement value of $32,400. 

1. Although the loss could be said to be $45,360 the appellants were only claiming the $32,400 that was paid to them by the insurer.

1. Mr Doughty also considered the price quoted in the lowest quote namely $9.45 per linear metre for the repairs was fair and reasonable in the circumstances.

1. When cross examined Mr Doughty agreed that his approach did not take account of the depreciative value of the fencing that was in situ and damaged.  He agreed what was being sought in the proceedings before the learned Magistrate was the amount the insurer paid.

1. The male appellant’s father in law also gave evidence.  He said to do the repairs a lot of the posts came from his place.  He had a stock pile of posts there.  They also had some at his son-in-law’s place and they had bought more as well.  He also had some droppers and he took them there.  There was three or four hundred steel posts.  He had some barbwire but they had to buy more.  He had some tyre wire but they had to buy another roll of that or two or three rolls actually.  He also supplied quite a few strainers and there would have been 40 or 50 at his place that they would have gone over to his son-in-law’s place.

1. When cross examined he agreed that one of the fence lines was simply untouched by the fire.  He did not agree that most of the fence line between the property and the water board lease was untouched by fire.  He said about half of it was burnt.  He agreed the fences on the appellant’s property were old.  However he said they were serviceable.

1. The defendant also gave evidence.  Regarding the age of the fences he said they would have been at least 48 years of age.  Regarding the fence between the neighbouring property and the property he said the amount of the fence damaged by fire would have been minimal.  Regarding damage between the property and Mr Webster’s property he said there was not so much damage to that fence. 

1. The respondent also called Mr Kunde.  He attended the fire as the first officer with Hazel dean Rural Fire Brigade.  He drove along the boundary fence between the neighbouring property and the property.  He noticed the fence had wooden posts.  There were posts burnt out at different stages not completely burnt out right through, and where the posts were burnt out the wire was still holding in the fence line.  When asked was it the case that there were fence posts burnt sporadically he said “Yeah”.  He said the whole fence line was not burnt out.

1. When cross examined Mr Kunde agreed that when the wire is burnt the galvanizing is burnt off and the wire will rust through. 

1. Mr Webster also gave evidence.  He is a neighbour of the appellants.  He said as a result of the fire a number of his fences were damaged.  That included the fence between his property and the property.  Regarding the condition of that fence prior to the fire he said it was stock proof but very old.  It would have been about 40 something years old.  A little later he said another fence on his property would be older than the one between his property and the property.  However he said it was still a stock fence but quite ancient.  Later in cross examination he agreed that the fence between his property and another neighbour’s property was old but was stock proof.  He said he replaced 48 posts in the fence between his property and the property.

1. Regarding the assessment of damages Brooking J in J.L.W. (VIC.) Pty Ltd v Tsiloglou & Ors (1994) 1 VR 237 gathered a number of the decisions. At p. 241 he said:

“A plaintiff cannot recover substantial as opposed to nominal damages unless he proves both the fact and the amount of damage:  The Commonwealth v. Amann Aviation Pty Ltd (1991) 174 C.L.R. p. 64; 104 A.L.R. 1, at C.L.R. p. 80, per Mason C.J. and Dawson J., at C.L.R. p. 99, per Brennan J., at C.L.R. p. 118, per Deane J. and at C.L.R. pp. 137-8, per Toohey J. If he proves the fact of the loss but does not call the necessary evidence as to its amount he cannot be awarded substantial damages (McGregor on Damages, 14^th ed., pp. 190 and 222): he must put the tribunal in the position of being able to quantify in money the damage he has suffered: Watts v. Rake (1960) 108 C.L.R. 158, at p. 159, per Dixon C.J. So juries in personal injuries cases are often directed that the plaintiff must prove to their satisfaction what he has suffered and will suffer and what is fair and reasonable compensation in respect of that. It is often said that the amount of the damage must be proved with certainty, but this only means as much ‘certainty’ as is reasonable in the circumstances: Ratcliffe v. Evans [1892] 2 Q.B. 524, at pp. 532-3. Where precise evidence is obtainable, the court naturally expects to have it; where it is not, the court must do the best it can: Biggin & Co. Ltd. v. Permanite Ltd. [1951] 1 K.B. 422, at p. 438; The Commonwealth v. Amann Aviation Pty. Ltd., at C.L.R. p. 83, per Mason C.J. and Dawson J…”.

“…It all depends on the circumstances.  Where a vessel was damaged by negligence and there was evidence that it was impossible to make a reasonably accurate estimate of the cost of repairs, the Full Court of Queensland upheld a direction that in estimating the cost of repair the jury must do its best on what seems to have been the exiguous material before it: Wheeler v. Riverside Coal Transport Co. Pty. Ltd. [1964] Qd. R. 113.”

1. On the hearing of the appeal I was also referred to Fink v Fink (1946) 74 CLR 127 where at p. 143 Dixon J and McTiernan J said:

“Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages.”

1. I was also referred to Wheeler v Riverside Coal Transport Co Pty Ltd and Others (1964) Qd R 113 at p. 124 where Philp A.C.J. said:

“As to ground (a) there was no evidence of the probable cost of repair of the launch.  The onus was on the plaintiff to prove the quantum of damages and it might be said that he could have proved it by showing the diminishing market value of the damaged launch or by showing the probable cost of repair … But where the circumstances are such that a reasonably certain estimate cannot be given the court must assess the damages as best it can.”

1. Finally I was referred to The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 where at p. 83 Mason CJ said:

“The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can.  Indeed, in Jones v. Schiffmann Menzies J. went so far as to say that the ‘assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation’.  Where precise evidence is not available the court must do the best it can.  And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.”

1. In the course of his reasons the learned Magistrate was critical that no plan or map had been tendered to the court.  He said the court had to continually interpret phrases such as “the back of the property”, “the water board lease fence”, “Dinner Road fence”, and various other abstract references to places relevant to the litigation.  He said the provision of a plan of the property and a map showing surrounding properties would have greatly assisted the court in understanding the evidence.

1. He also said the appellants had put forward a number of bases justifying and quantifying the amount of the claim.  These included the evidence of the male appellant as to the condition of the fences damaged by the fire, the evidence of his father in law who saw the fences after the fire and assisted in the repair both manually and by supplying materials.  The learned Magistrate said there was also the report of the loss adjuster Mr Doughty and the male appellant produced copies of cheque butts. 

1. Regarding the cheque butts he said as they were unsupported by paid invoices, receipts or bank statements they can be regarded as no more than notes made either contemporaneously or at some time soon after the event.  He said there was no corroboration by way of evidence from the contractors or the businesses from which the material was purchased. 

1. Further the learned Magistrate said the appellant’s case was not assisted by the friend who helped giving evidence.  Also the appellant’s son had helped in the repair but he was similarly not called. 

1. The learned Magistrate then in his reasons said certainly while there is clearly evidence of damage and commonsense dictates that there will be some damage the overall evidence of that damage is vague and lacking specificity.  He also said there is evidence of the respondent and the independent evidence of Mr Webster who said that the appellants affected no repairs to the particulars fences that they were concerned with and supplied no materials. 

1. The learned Magistrate did say there must be of course some vigilance maintained in assessing the credibility of the respondent in view of his admitted untruthful statement to the police officer however save for his guarded comments as to how the fire originated and his somewhat embellished description of the fire break the learned Magistrate did accept his evidence as given frankly and accurately to his recollection.  The learned Magistrate says the evidence of the respondent and Mr Webster being inconsistent with evidence given in the appellant’s case calls that evidence into closer scrutiny.

1. The learned Magistrate then said notwithstanding the vagueness of the evidence of damage given in the appellant’s case it could be sufficient if supported in some physical way.  In the absence of any physical corroboration, more especially as some material claimed was purchased before the fire, there was no evidence upon which satisfied him on the balance of probabilities that the amount or value of the materials spoken about in the appellants case was used in the application of the repair or replacement of those fences as claimed.

1. Further the learned Magistrate is critical in his reasons of the ease with which the appellants could have supplied a plan of the property and then from a physical inspection of the property and internal fences given evidence of the repairs and the accurate number of posts including strainer posts and star pickets used.  He says the evidence clearly indicates that the fences previously in place were old and replacement fencing would have been relatively easy to distinguish and qualify. 

1. Accordingly the learned Magistrate was that being unable to quantify the appellant’s loss the claim will be dismissed for the reasons stated when the matter next came before the court.

1. The claim was subsequently dismissed.

1. Notwithstanding the criticisms the learned Magistrate makes about the evidence in my opinion the male appellant gave evidence of what he and his wife spent on materials to reinstate the fences.  The male appellant explained why the appellants did not have other documentation.  That explanation seemed in my opinion reasonable.  Further, as the insurer paid only part of the loss the appellants it was to be inferred set about to repair the damage as cheaply as they could with the resources they had.  Those resources included materials they had on hand and which the father in law supplied.  It was therefore not surprising precision was not available to calculate the loss.

1. There was another alternative to assessing the loss being the one suggested by the learned Magistrate.  That was to report on what can now be seen to have been replaced.  However, to not have approached the matter in that way does not in my opinion disqualify the appellants.  Further, the attempt by the appellants to prove as much of the loss as possible does not mean Mr Doughty’s evidence could be ignored as it seems the learned magistrate did.  If anything, the male appellant’s evidence based on the cheque butts gave some weight to Mr Doughty’s evidence.

1. Indeed, although the path taken by Mr Doughty to arrive at the figure of $32,400 seemed difficult, his expertise was accepted and there was no challenge to the approach he took to assessing the loss.

1. Even the respondent and Mr Webster for that matter could have drawn a map or plan showing the thrust of their evidence.  Those maps or plans could have been put to the male appellant and Mr Doughty for their comment.  That was not done. 

1. It appears the thrust of the respondent’s case was that the fencing was quite old and further that not all the fencing required replacement.  The appellants did not dispute some fencing was not damaged by the fire.  In my opinion the appellants’ case was to be understood as a case that what was repaired was damaged.

1. However, comparing the weight of the evidence as to the extent of damage in my opinion it makes the respondent’s own evidence doubtful when he said the extent of damage to the fencing was minimal.  There was also the respondent’s lie as to the cause of the fire.  That in my opinion would tell against the respondent significantly compared to the criticisms the learned Magistrate made about the evidence led by the appellants.

1. The learned magistrate did not expressly reject the male appellant and Mr  Doughty as untruthful witnesses.  Rather he had a number of  criticisms of the  evidence  which in my opinion are insufficient to lead to the  result he reached on the evidence.  In the circumstances in my opinion the learned Magistrate was required to make the best assessment of damages he could on the evidence.  In my opinion that task would have led the learned Magistrate to conclude the loss was $32,400.

1. I allow the appeal.  I set aside the judgment entered by the learned Magistrate against the appellants in favour of the respondent. I give judgment for the appellants who were the plaintiffs in the proceedings below against the respondent who was the defendant in the proceedings below for the sum of $32,400.  I vacate the order for costs made by the learned Magistrate.  I will hear the parties on the question of interest and the proper order for costs in the circumstances.