King v Benders Pty Ltd
[1987] TASSC 41
•22 June 1987
TASSC A35/1987
CITATION: King & Anor v Benders Pty Ltd & Anor [1987] TASSC 41; A35/1987
PARTIES: KING & ANOR
v
BENDERS PTY LTD & ANOR
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 3649/1981
DELIVERED ON: 22 June 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Cosgrove J
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: TASSC A35/1987
Number of paragraphs: 9
Serial No A35/1987
File No 3649/1981
KING & ANOR v BENDERS PTY LTD & ANOR
REASONS FOR JUDGMENT COSGROVE J
22 June 1987
This is an appeal from an assessment of damages made by the Master consequent upon entry of a consent judgment as to liability. "The appeal is by way of re–hearing with the judge exercising his own discretion" (per Chambers J in Electrolytic Zinc Company of Australasia Ltd v Emmerton TASSC 103/1971; and see In re K R Wood & Co [1962] Tas SR 227 and Butler v Electrolytic Zinc Company of Australasia Ltd [1975] Tas SR 9). The only materials before me are the notes of the Master and the exhibits tendered before him. No transcript or tape recording is available. The notes are somewhat cryptic, and I have endeavoured to ensure that any inferences which I have drawn from them are plainly correct, particularly where such inferences favour the appellants or suggest some error on the part of the Master. I have also borne in mind the advantage enjoyed by the Master by reason of the fact that he heard evidence live whereas I have merely the record to guide me. However, the Master did not overtly criticize the crucial witnesses, and credibility does not appear to have played a large part in the resolution of the issues which are now the subject of this appeal.
As the effective appellants and respondents are those first named, and as the first appellant was a witness, I shall hereafter for convenience refer to the appellants and respondents in the singular.
The damages to be assessed were those flowing from a collision between a truck owned by the first respondent and an excavator owned by the appellant. No direct evidence was given of the physical damage to the excavator. Instead, the evidence was in the form of a narrative of the steps taken by the appellant (actually the appellant's insurer) to repair the vehicle. A job list was tendered, as was a computer print out of parts purchased. Oral evidence was given of labour expended and the hourly rate charged. The Master considered this evidence in detail, making specific deductions for unnecessary labour and for work not arising out of the collision, but in the result, put it all aside and (in broad terms) accepted an assessment made by the respondent's loss assessor. The essence of the appellant's submission is that this was an incorrect method of assessing damages and resulted in injustice. I turn now to the history of the machine's repair.
The machine was damaged on the Basstyan dam site at Tullah. The full extent of the damage to it could not be assessed on the site, so it was taken to the workshop of Ogden Engineering at Tullah. This move was activated by the appellant and concurred in by Mr Ikin, the loss assessor for the appellant's insurer. Mr Ogden dismantled the machine, and presented Ikin with a bill for $4,980. Ikin wished to take the machine away from Ogden to William Adams Tractors Pty Ltd for repairs. Ogden exercised his repairer's lien, and Ikin elected to pay him the full amount in order to get possession of the machine. It was common ground between the parties that Ogden's account was excessive, although there were differences as to the extent of the excess. The respondent's assessor, Mr Young, contended that it was unnecessary to remove the vehicle from the site for dismantling and inspection, but the Master rejected this and held "that the right decision was made to move the excavator to a place where there were proper workshop facilities". However, the Master found that Ogden's charges were excessive, and himself assessed a reasonable charge, in the process preferring Ikin's evidence to Young's. He said "In the result, I accept a figure of $2,820 as proper for dismantling the excavator". Mr Ayliffe for the appellant contended, not I thought with his usual enthusiasm that the appellant should have been allowed the full amount of Ogden's bill. I disagree and accept the Master's assessment.
William Adams Tractors Pty Ltd (hereinafter called "Adams") repaired the excavator and returned it to the appellant at Somerset. There it was found that the hydraulic system which had been damaged in the collision, was defective and lacked power. Adams repaired this system. That company's initial bill was $29,783.88. For the hydraulic repair, it charged $2,530. Ikin's fee was $2,500.
The Master found Ikin's fee to be not unreasonable, and his finding is not challenged. However, he was not satisfied on the balance of probabilities that the defect in the hydraulic system could be traced to the collision. He said (correctly) that it could have been caused by a shortage of oil in the system or the introduction of foreign matter into the pump and apparently concluded that one of these circumstances occurred in some manner dehors the collision train of causation. I have come to a different conclusion. The machine was evidently working in a satisfactory manner before the collision. There was damage to the system. When first put to work thereafter, it performed unsatisfactorily and internal damage was found. In the absence of evidence as to the cause of the damage, I would not regard speculation as to some other possible cause as outweighing the fairly obvious conclusion that the defect was, in some not precisely identifiable way, causably connected with the collision.
Adams' first bill was attacked on 3 separate bases.
AIkin allowed Adams to do the work on a "do and charge" basis and accepted an hourly rate of $27 for labour. It was said that it was unreasonable to accept "do and charge", and that $27 per hour was in any event an unacceptably high rate, and that repairers being known to negotiate special hourly rates for big jobs, some negotiation should have been carried out.
The machine was a Mitsubishi machine, and parts for it were at that time very hard to come by. There were 2 major repairers in the State for machines of this kind. Mr Atkinson of Adams, defended his charges as fair and reasonable, and was supported by Ikin. Mr Niewenhysen, commercial manager of Malcolm Moore, Adams' competitor, was called by the respondent. He said that the hourly rate in 1981 was "certainly not less than $24", in 1982 "may have been $25" and in 1983–84 "was $26". He said that it was and is possible to negotiate a special hourly rate for big jobs. Mr Anning from the same company estimated the cost of repair in late 1981 on the basis of a list of "all observable damage" made by his serviceman. The estimate was $16,000–$20,000, but he said that his company would not have committed itself to that without a further inspection. Both he and his serviceman agreed on the possibility of internal damage. He said that the hourly rate in July 1982 was $22–$24.
Mr Young made an assessment of $16,858.11. He said that it included an unspecified component for unforeseen damage. He spoke also of an allowance of $2,000 for "wear and tear" but it is not clear that he made this allowance in his estimate. I will return to this in category C. He was critical of "do and charge" arrangements and counsel told me that he alleged that, when such arrangements are made, companies charge up idle time to the account. It was not alleged that Adams had done so, and the suggestion was not put to Atkinson. In those circumstances, I would not have found, as the Master did that the arrangement "inflated (Adams') costs, whether intentionally or otherwise, for the reasons given by Mr Young".
In the light of the uncertainty as to what work was required and the unavailability of parts, it was not unreasonable, in my opinion, for Ikin to enter into a "do and charge" arrangement. However, I do regard $27 an hour as too high a rate. A reasonable rate over the repair period (September 1982 – September 1983) would have been not more than $25.
BThe Master found that the following work and materials charged for by Adams were unrelated to the collision:
(a) A work shop tool charged out at $58.26
(b) Track assembly – 12 hours at $27 = $324.00
(c) Re–welding of cracks
(d) Repainting of the whole body
There is no challenge to (a), (b) and (c). As to (d) I disagree with the Master. Given that the evidence revealed that 50% of the body paintwork was affected by the collision, the only reasonable repair was to re–spray it all. Patching would have been unacceptable, in my view.
C"Wear and Tear" - This might be better described as "new for old". The Master found that, because new parts were used in repairing damage (second hand parts being unavailable) and the machine was repainted, the machine was in better condition after repair than it was before the collision. He deemed it necessary to make some allowance for this - apparently of the order of $1500 or so, although I cannot be sure of the sum which he had in mind. In my opinion, once it was accepted that the use of new parts was unavoidable (or reasonable), then, in the absence of any evidence of a choice or decision to improve rather than repair, the respondent was not entitled to any allowance on the basis of "new for old" (see McGregor on Damages 13th ed ch 1, par14; Harbutt's "Plasticine" Ltd v Wayne Tank & Pump Co Ltd [1970] 1 QB 447 particularly at 468, 473 and 476; and generally, Ward v Cannock Chase District Council [1985] 3 All E R 537). Whether some allowance ought to be made is no doubt a matter of judgment, but judgment can only be exercised on a sound evidentiary basis.
The Master, having analysed the evidence to this point, in effect put it all aside as incapable of leading to an acceptably accurate conclusion. He accepted a figure of $20,000 which Mr Young had described as the "absolute maximum", added to it $2500 for assessor's fees and gave judgment for $22,500. With respect, I think it would have been preferable to have discounted the actual repair costs. It was not impossible to do so. In the view I take of the evidence and in view of the different conclusions which I have reached on some aspects thereof, I would assess damages as follows:
Ogden (as found by the Master) $ 2820.00
Ikin (as found by the Master) $ 2500.00
Adams' primary bill after deduction of
(a) work shop tool $ 58.26
(b) track assembly $324.00
(c) welding $400.00
(d) reduced hourly rate
including hydraulics $1500.00 say $27,500.00
$2282.26
Adams' secondary bill (already) labour
discounted in (d) above $ 2530.00$35,350.00
The appeal will be allowed and judgment entered for $35,350 in lieu of the existing figure.
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