Smith v Wickham No. DCCIV-00-731

SMITH v WICKHAM
[2002] SADC 65
Judge Rice
Civil
Introduction - some matters resolved, others still in dispute

This is an action by the plaintiff, Cheryl Smith, claiming the payment of various sums of money said to have been loaned to the defendant. The monies said to have been advanced to the defendant did not arise from a commercial relationship. The relationship involved in this case was a developing personal relationship during which the plaintiff alleges the loans were made. Not all the sums originally claimed are now the subject of dispute.
Initially, the plaintiff claimed, as one of the loan amounts, an amount of $5,500.00. Counsel have informed me that the defendant admitted that loan and it had been completely repaid (by instalments) shortly before trial. That amount is not now pursued.
The parties have asked that questions of interest and costs be reserved until the end of the proceedings.
Secondly, a loan of $4,900.00 is admitted by the defendant. That amount remains unpaid. It is agreed that, at the very least, that amount should be the subject of a judgment against the defendant.
Thirdly, an amount originally claimed of $20,000.00 has been amended to $19,913.00. Whether there had been a loan of that amount remained the subject of dispute. I refer to this in detail below.
The remaining claim by the plaintiff is for general damages arising from an unspecified number of assaults upon her by the defendant. This is the subject of very strong dispute and requires findings by me.
Factual background
The plaintiff met the defendant in late 1997. Over a period of some months their relationship progressed to the extent that they discussed getting married, having children and building a house. She spent much of her time at his place. It was in the context of that developing relationship that monies were loaned or, at the very least, advanced.
Prior to any involvement with the defendant, the plaintiff was saving to buy her own home. The plaintiff did not advise the defendant of her financial circumstances, although he was aware she was saving to buy a house. Prior to these events, and during some of the time covered by them, the plaintiff was living with her parents. She had bought herself a small car (Ford Laser) from her savings. She had also saved about $30,000.00 to put towards the house she had intended to buy for herself. This money was originally in a passbook account that was later converted to a keycard account.
The advances/loans
$5,500.00 loan
The first loan was for $5,500.00. According to the plaintiff’s evidence, the defendant said he needed to borrow some money. She agreed because he said he would pay the money back. As I observed earlier, the defendant admitted that loan and has since repaid it.
Commodore
The next alleged loan relates to the purchase of a Commodore Sedan in January, 1998. The amount claimed is $19,913.00 and remains in dispute.
The plaintiff and defendant have given evidence of conflicting accounts surrounding the purchase. There is no doubt the Commodore was purchased using the plaintiff’s money from her savings. The difference between the two is the circumstances surrounding that purchase.
According to the plaintiff, the purchase of the Commodore was first raised by the defendant. He had seen it in a car yard. He then discussed it with her in the context of their future. He said that her car was not big enough for the family. The plaintiff says that the defendant asked her to pay for the Commodore because he would be paying for the house or most of the house. Apart from emotional pressure that was brought to bear upon the plaintiff, she also says that she agreed to the purchase when he said that if anything happened between the two of them he would repay her every cent. She said this in examination-in-chief (transcript pp.13-14):
“Q.How did you feel about paying that money for the vehicle.
A.To me it was a lot of money. That was my savings for my house, but I did it on the condition that he paid me back if we ever split up.”
The defendant’s case was put this way in cross-examination of the plaintiff (transcript p.56):-
“Q.You regarded this as a family car or a family car for the future and you were quite anxious to proceed with its purchase.
A.No I wasn’t.
Q.At no time did Mr Wickham say to you ‘You’ll buy it if you love me’. Nothing like that was ever said.
A.Yes he did.
Q.And at no time did he say to you ‘I’ll pay you back if we split up’.
A.Yes he did.
Q.What he said to you afterwards was ‘If we split up, this is your car; you paid for it’.
A.No he didn’t.”
And later (transcript p.68):-
“Q.I take it you don’t want the car back now.
A.I just want what’s owing to me. That’s what the agreement was between me and him, that if we ever split up he would keep the car and he would pay me back every cent for it.
Q.This $10,000, you acknowledge that he put $10,000 to you.
A.Yes, he did.
Q.But you say, no, you don’t accept that.
A.No, that’s right.
Q.The reason being you regard this transaction as a loan, is that the case.
A.What’s that, the car?
Q.Yes. You want to be repaid the full amount.
A.If we ever split up, yes.”
A deposit of $100 was paid on 10th January, 1998 and the balance was paid on 16th January, 1998. Although the plaintiff paid for the Commodore, it was purchased in the name of both of them and became registered in both their names. Initially, the defendant wanted it in his name alone.
It is agreed that the Commodore was used by the defendant and remains with him to this day.
The balance of the plaintiff’s evidence on this topic relates to the period after the two separated in about November, 1998. It was not until about January, 2000 that the plaintiff approached the defendant about the Commodore. The plaintiff claimed that she was scared of him but, nonetheless, eventually gained the courage to go and speak with him. She took a friend with her, Lynn Haleme.
The events of that occasion are confusing. Little was in fact said about the Commodore although something was said about $10,000.00, but the context is inconclusive.
As to this occasion, Lynn Haleme says that, after small talk, she and the plaintiff said that they were there about the Commodore. Her memory is that the defendant offered to pay the plaintiff $10,000.00 because he had spent money on registration, tyres and other things. Ms Haleme suggested he produce receipts to prove what money was spent on the car and that they could go from there. Nothing was produced and they left. Both the plaintiff and Ms Haleme say there was no agreement to accept $10,000.00 for the Commodore.
Returning to the plaintiff’s evidence, she says that, a few days after the visit to the defendant’s home, she received a telephone call from him asking that she come and discuss the Commodore. She attended at his home and remained for about five minutes. Essentially, he offered to pay her $10,000.00. She, on her evidence, rejected this offer and left. She denied that he ever offered to drop the car off at her parents’ place or anywhere else.
The defendant’s account is somewhat different. On his account, they were together on a particular day and stopped to look at cars in a car yard on North East Road. The Commodore caught his eye because it represented good value at the asking price. He was not interested in that type of vehicle for his business as a contract painter because it was the wrong type of vehicle and would not have offered sufficient taxation concessions. He says she agreed that it was a nice car. Nothing more was mentioned about it at that time.
On his account she mentioned the Commodore a few days later. She suggested that they buy it. His reply was to the effect that if she wanted it, that was up to her, but it was not suitable as a work vehicle for him. There the matter remained for a few more days when it was referred to again in much the same vein by both parties.
On his account she was persistent about it. He says that it was eventually agreed that the Commodore would be bought, but only after she agreed “...that if anything was to happen it’s her vehicle, it’s nothing to do with me”. He says she suggested that it be in both their names and that he went along with that even though none of his money was to be used and it was to be her vehicle in the event they separated. He says the address on the contract was his and that that also was her suggestion. As has already been observed, the Commodore was registered in both their names and was used by him.
I make the observation that the defendant appears to have done well out of a car he did not want or pay for.
Upon their separation, it is his account that she insisted he keep the Commodore. On two occasions he spoke with her by telephone about wanting to deliver the Commodore back to her, but on each occasion she refused to take it back. The defendant suggests that was because she did not want her parents to discover she had used her house money to buy a car. I observe that, if the car was to be hers, in that situation it could have been sold by him and the proceeds given to her. On the second of those occasions he says that she said he could keep it. Also as to that second occasion, the defendant says an employee of his, Sean Norris, was present at his end of the conversation.
Mr Norris said in evidence that he heard portion of a telephone conversation after they had separated. He said he overheard the defendant talking to a person Cheryl (that being the Christian name of the plaintiff) about the defendant dropping a car off at the plaintiff’s parents’ place or somewhere else. That is all he heard. In my view that evidence was too vague to assist in a determination of the issue.
Returning to the defendant’s account, he said that, after her refusal to accept the car, he retained the Commodore. He agrees that, in early 2000, the plaintiff and Lynn Haleme arrived unannounced at his home. This was about a year after the refusal. Basically, on the defendant’s account, the plaintiff said she did not want the car but wanted the money; she wanted him to make an offer. Nothing was resolved and they left.
The defendant agrees he invited her to his place a few days later to discuss an offer for the Commodore. On that occasion, he says she accepted an offer of $10,000.00. The matter was meant to be formalised by a letter but the plaintiff contacted a lawyer and these proceedings were eventually initiated. In any event, the defendant says the plaintiff rang and reneged on that agreement.
A little needs to be said about the present approach of the parties to the Commodore.
The plaintiff does not want the Commodore; she says it is now the defendant’s and that she advanced the money to buy it, but that it only became repayable if their relationship came to an end.
The defendant does not suggest the Commodore be returned to the plaintiff. He says she agreed to accept $10,000.00 even though the evidence revealed that, as of August, 2001, its retail value was between $11,000.00 to $12,000.00. He says there never was a loan and that he held the vehicle on a constructive trust for the plaintiff. In that situation, the defendant suggests that I order the plaintiff’s interest in the vehicle be transferred to the defendant upon payment to the plaintiff of $10,000.00.
I make the following findings.
I accept the plaintiff’s account as to how the Commodore was identified and purchased, particularly that the defendant agreed to pay to her an amount equivalent to the purchase price in the event that their relationship ended. Having regard to what the plaintiff said in the witness box, it did not seem that she had any particular interest in cars. The defendant seemed to have that interest and I have little doubt that he alone first identified the car and that it represented good value at the price. His father was a mechanic (transcript p.140). I find they separated in about November, 1998, the car having been bought in January of that year.
I find that about a year plus a few months passed before the plaintiff had sufficient courage to approach the defendant about the car, but that at no stage did she accept an offer of $10,000.00 for it. She did not use it and it is clear that the defendant used it extensively for private purposes.
Clearly, the Commodore was bought for him by the plaintiff and was intended, by both, to be used by him. She did that because of her love for him at that time and an expectation that they would remain together. However, she was only prepared to accept that arrangement provided they remained together but that, if their relationship ended, he would keep the car and she would be repaid its purchase price.
As I have said, the purchase price of $19,913.00 became payable upon their separation. I award that amount.
Upon payment of the amount of $19,913.00 and interest (possibly to be the subject of further argument), any interest of the plaintiff in the car will cease and she will execute the necessary documentation to transfer her interest in the car to the defendant.
Alleged assaults
The remaining aspect of the claim is for unspecified damages for assaults upon the plaintiff by the defendant.
The plaintiff says that, after the purchase of the Commodore, there was a deterioration in their relationship. The assaults allegedly commenced with an argument in the street arising from the plaintiff being out until about 2.00 a.m. at a time when she was living at her parents’ place. The defendant had been endeavouring to locate her and the plaintiff arrived home when the defendant was also at her parents’ place. I accept the plaintiff’s account that he punched and kicked her, inflicting pain and leaving her sore that evening and also the next day. Apart from that, the evidence is too imprecise as to what further injury was the consequence of that assault.
As mentioned, those events marked the beginning of a deterioration in their relationship. The plaintiff described that, thereafter, there were good times and bad times. The bad times apparently involved the defendant becoming angry and then hitting, kicking and pushing the plaintiff. The plaintiff described how she was hurt and upset by these alleged assaults. She described pain in the arms, stomach and back. She also described a final assault that finally led to the end of their relationship.
Not only is the evidence imprecise about any significant injury following the first alleged assault, the same can be said of the subsequent alleged assaults. Although she visited two doctors, no disclosure of the assaults was made to them and no medical evidence was called.
Further, any assessment of damages for these alleged assaults is partially dependent upon the number of them. Again, the evidence is imprecise. The plaintiff could not even give an approximation of the number. Her evidence was punctuated with expressions that the assaults occurred “a lot of times”, “many” times (p.22), “quite a bit” and “on a regular basis” (p.25).
The defendant denies that any assaults took place. He acknowledges that there was a deterioration in their relationship that led to an eventual separation, but says that was a consequence of arguments and no more.
The plaintiff called a number of witnesses to provide support, by inference rather than direct evidence, for her allegation that she had been assaulted. The first of those was Ms Haleme who has already been mentioned on a separate topic. On this topic Ms Haleme gave evidence that, on several occasions during the course of this relationship when the plaintiff had come to see her, the plaintiff was seen to have bruises on her. On one occasion she described seeing a couple of bruises on the arm. On another occasion, the plaintiff was sore around the wrist, but the injuries she mainly saw were in the form of bruising. In conjunction with those occasions, the plaintiff was very scared, shook up and emotional.
Two other witnesses gave evidence on this topic. Ms Dianne Cluse gave evidence of knowing the plaintiff for about ten years. They worked with each other. Although the plaintiff would go out for drinks on a Friday night with her work companions prior to her relationship with the defendant, the plaintiff’s attendance stopped, or was very occasional, once that relationship commenced. Further, once the relationship with the defendant started, the plaintiff commenced to visit in a very distressed state and on a “few times” had bruises on her wrists and arms. She would visit “quite often”.
The remaining witness was Ms Gloria Mayman. She also worked with the plaintiff and has known her for thirteen years. During the plaintiff’s relationship with the defendant, the plaintiff visited her regularly and, on one occasion, she noticed bruising on the top part of her arm.
As I have already indicated, I accept the substance of the plaintiff’s account as to the first incident when the police attended. I found her to be forthright, honest and frank. I also accept her evidence that she was assaulted many other times in a similar vein by the defendant. I find the defendant to be unconvincing on this point. I have already found him to be an unsatisfactory witness in relation to the Commodore. Further, the evidence of the other three women to which I have referred confirms or supports the view that I otherwise came to.
Therefore, I find, on the balance of probabilities, that the defendant unlawfully assaulted the plaintiff on many occasions during the course of their relationship. I cannot, on the evidence, be any more precise about the number of such occasions. Similarly, apart from the first occasion, I cannot make any detailed findings about the degree of harm or injury. All I am able to say in that regard is that, on some occasions, those assaults caused bruising.
Assessment of damages for assault
A little needs to be said about the nature of these assaults apart from the physical features. The defendant was not acting in any way in self-defence; he was exerting power and domination. He was physically much stronger. He could not control his anger and resorted to gratuitous violence.
No medical, psychiatric or psychological evidence was called by either side. No disability has been suggested. I have assumed the bruising is only of a comparatively minor nature and temporary.
Comparable judgments are difficult to find. Awards in personal injury cases for injuries such as these are very minor. Awards in Criminal Injuries Compensation Act cases are approached in a different manner.
Doing the best I can, I award the plaintiff $5,000.00 by way of general damages against the defendant.
There will be judgment for the plaintiff for $29,813.00 made up as follows:-
Agreed loan  $4,900.00
Commodore  19,913.00
Assaults      5,000.00
$29,813.00
I will hear the parties as to interest and costs.

[2002] SADC 65

24 May 2002