Trestrail and Trestrail v Briggs (No 2) No. Scgrg-99-566 Judgment No. S444

[1999] SASC 444

TRESTRAIL AND TRESTRAIL v BRIGGS (NO 2)
[1999] SASC 444

Full Court:  Doyle CJ, Debelle and Wicks JJ

1. DOYLE CJ.                 The Court has now heard further submissions on the matters identified in my earlier reasons as requiring further consideration.

2. The District Court Judge awarded Dr Briggs damages of $28,500 on her counterclaim.  In my earlier reasons I concluded that on the Judge’s own approach he had made a mistake, and should have awarded damages of only $24,000.  There appeared to be an error in a deduction that the Judge had made from the estimated cost of work which an expert, Mr Coombe, had advised should be carried out.  Mr Randle, counsel for Dr Briggs, now concedes that the Judge did make a mistake, and that the damages should be reduced to $24,000.  There is no need to say anything more about this matter.

3. Of the award of $24,000, the sum of $3,500 is attributable to the cost of closing off the driveway wrongly constructed by the Trestrails.  If that is deducted, one is left with an amount of $20,500 as the amount assessed for the cost of constructing a new driveway more or less as originally agreed between the Trestrails and Dr Briggs.

4. In my earlier reasons I pointed to the substantial difference between that amount and the amount of about $4,500 originally quoted by the Trestrails.  I was not able to satisfy myself as to how the Judge had arrived at the figure awarded.  I was concerned that he might have awarded damages including the cost of work that was, in any event, intended to be the responsibility of Dr Briggs.

5. Having heard further submissions, I am now satisfied that the amount awarded should stand, subject to one adjustment.

6. Mr Coombe, the expert upon whose evidence Dr Briggs’ counterclaim was based, arrived at his estimate of the cost of constructing a new driveway by reference to the quantities of earth to be cut and moved.

7. Mr Trestrail gave evidence before the Judge that, based on his estimate of time required, the new driveway proposed by Mr Coombe would cost about $10,000.  In cross-examination by Mr Meyer, Mr Coombe made estimates of the time that would be required.  Applying Mr Trestrail’s hourly rates to Mr Coombe’s times, Mr Meyer arrived at an estimated cost of about $12,000.  His submission was, implicitly, that making every allowance in favour of Dr Briggs, the amount awarded should not exceed $12,000, and that the imputed award of $20,000 for the cost of constructing a new driveway was excessive.

8. However, Mr Randle made two telling points.  First of all, as he submitted, Mr Coombe’s preferred approach was to estimate the cost based on the quantity of soil involved.  Mr Coombe was an independent expert.  The time estimates that Mr Coombe gave were made on the run, in the course of cross-examination.  As well, in cross-examination Mr Trestrail agreed that his own estimate might be low, and that on his approach the cost of carrying out the work might conceivably be as high as $15,000.

9. In the light of that, it was open to the Judge to act on Mr Coombe’s evidence, and to accept his estimate of the cost of constructing a new driveway.

10. However, the imputed figure of $20,500 for the cost of the new driveway includes the cost of spreading rubble.  I am not satisfied that this is a cost that was included in the Trestrails’ original quote.  I consider that the cost of this element of the work should have been excluded from the damages.  There is no precise evidence on the cost.  Doing their best, counsel provided us with some estimates.  On the basis of those estimates I consider that a further deduction of $2,000 should be made from the damages awarded ie a deduction of $2,000 from the corrected figure of $24,000.

11. Accordingly, I would reduce the total damages awarded to the sum of $22,000.  That figure reflects the correction of the error made by the Judge, referred to earlier, and the exclusion of the estimated amount for the cost of spreading rubble.  I would not interfere with the Judge’s award in any other respect.

12. I mention that once the cost of spreading rubble is excluded, the difference between Mr Coombe’s estimate and Mr Trestrail’s estimate becomes even less significant.

Conclusions

1. I would allow the appeal.  I would reduce the amount of damages awarded to Dr Briggs on her counterclaim to the amount of $22,000.  To that end, I would vary par 3 of the judgment of the District Court by substituting the amount of $22,000 for the amount of $28,500.  Paragraph 4 of the District Court order should be set aside, counsel having agreed before us that that paragraph was included by mistake.  I would not otherwise disturb the orders made by the District Court.

2. DEBELLE J.               I agree with the substance of the reasons of the Chief Justice and with the orders he proposes.

3. WICKS J.  I agree.