Wayne Gorski v Brenton Miller No. SCGRG93/608 Judgment No. 4335 Number of Pages 8 Tort Detinue

[1993] SASC 4335

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Tort - detinue - total claim of $7,079 for variety of personal property - $1,000 awarded - adequacy of evidence as to quantum - appeal allowed and award increased to $3,872. Ley v Lewis (1952) VLR 119; McGregor on 'Damages' 15th Ed at pp 214-215; J and E Hall Ltd v Barclay (1937) 3 All ER 620; Carter and Harland 'Contract Law in Australia' 2nd Ed at p 714; Aerial Advertising Co v Bachelors Peas (1938) 2 All ER 788 and Graham v Voigt (1989) 95 FLR 146, applied. Armory v Delamirie (1722) 1 Stra 506; 93 ER 664, distinguished.

HRNG ADELAIDE, 7 December 1993 #DATE 17:12:1993
Counsel for appellant:     Ms G M Gardner
Solicitors for appellant:    Legal Services Commission of SA
Counsel for respondent:     Mr M Randle
Solicitors for respondent: Randle and Taylor

ORDER
Appeal allowed.

JUDGE1 MATHESON J The appellant successfully sued the respondent in the Magistrates court in detinue for the failure to deliver up his property. That property was itemised as follows (the value opposite each item being the value claimed by the appellant):
    " VALUE $
     KITCHEN EQUIPMENT 20 piece dinner set 45 6 imported dinner
    plates 60 6 imported side plates 72 8 coffee mugs 71 4 saucepans
    55 2 frypans 30 1 baking tray 10 4 service trays (2 plastic, 1
    glass, l marble) 40 3 mixing bowls 20 l cooling rack 12 2
    cutlery sets 50 1 steak knife set 30 7 glass storage jars 28 20
    drinking glasses 120 Various kitchen utensils (tongs, whisk,
    spatulas etc. 100 4 chefs knives 120 1 sharpening steel 30 2
    vases (l glass, l marble) 50 1 kettle 30 2 handmade goblets 45
     LINEN and FABRICS 6 tea towels 18 6 bath towels 90 2 pillows
    30 2 pillow cases 25 3 double sheets 150 1 bed satin sheet 80 l
    piece clothing fabric 45 2 nylon net curtains 30 l handpainted
    ceiling fabric 175 l handpainted door curtain 100 2 handpainted
    leaf curtains 175 2 bean bags 100
     UNIFORMS and CLOTHING 2 chef's pants 60 2 chef's jackets 70 l
    chef's bandana 5 1 chef's hat 6 3 pairs shoes 210 2 pairs of
    jeans 140 l pair of dress pants 140 3 shirts 180 4 T shirts 80
     ARTWORKS l pencil face sketch 75 l acrylic abstract 300 2
    handpainted clock faces 110 4 latex masks 120 2 plaster castings
    100 l framed print 100 40 art photographs 80
     RECORDS and CASSETTES 20 LP Records 320 50 cassettes 600 20
    singles 45 rpm 140 l picture disc 30 ART MATERIALS Paper (A4
    sheets) 14 Pencils (Various sketching and colour) 30 Brushes 40
    Paint (acrylic and water) 50 Latex 21 Modelling tools 70 Plastic
    stones 20 Theatrical make-up (base grease and powder)45
     CAREER MATERIALS Video recording 15 Taped interview 6 Photo
    Folio of produced exhibitions and work 225 Portfolio of
    newspaper articles 10 Promotional articles Personal paperwork
    (references, diplomas, trade award) Personal photographs 375
     MISCELLANEOUS Port shelves 40 2 umbrellas 30 6 books (various
    novels) 60 12 magazines (various) 60 Talking Led clock 150 Cane
    blind 25 2 cane baskets 30 3 crystals 45 Ornaments 90 $6,579" In addition the appellant claimed $500 damages for detention of his property. 2. The only evidence as to the value was given by the appellant himself. His examination-in-chief contains the following passage:
    "Q. Would you have a look at the list I now produce to
    you. Does that list consist of the goods that were stored in
    the chests.
     A. Yes.
     Q. You will see values beside those goods.
     A. Yes.
     Q. Will you tell the court, please, how you came to value
    those goods and the way in which those values are arrived at.
     A. Yes. With kitchen equipment I went back to stores that I
    had bought goods from, a lot of the kitchen equipment is
    industrial ware, they are bought from industrial catering
    places. Some of the dinner sets were given to me. Some of the
    cutlery came from David Jones, with the linen, and fabrics, they
    too came from department stores. Uniforms and clothing were
    bought - the uniforms were bought through Neat 'n' Trim Uniform
    Specialists, the shoes, the jeans and the clothings were bought
    from the department stores and specialty stores.
     Q. How did you then assess their value.
     A. By remembering how much I paid for certain items, halving
    their value (w)ith items that I could not remember the value of,
    I returned back to stores and priced similar objects or articles
    and halved their value. The art works, some were bought, some
    were given, some were created. At that point in time in
    Adelaide I was working in art field and I was dealing with a lot
    of artists who valued the art that I had. Records and cassettes
    - well, some of them are just ordinary off-the-rack records and
    cassettes. A lot of them were collectors items. They were
    pieces that cannot be obtained any longer. Their value has gone
    through the roof. Art materials are what I used to work
    with.These came from all sorts of different places like rubber
    distributors, art shops. I merely went in and priced identical
    items and halved them once again. Career materials, with these
    I've come to the value of - with photos and personal
    photographs, I've put down the cost of film and development,
    video recordings. Things like the taped interview is tape value
    and the taping value. The video recordings were done at Channel
    10. They were broadcast quality. They were part of my
    background as to work that I had done and they were to be used
    to find employment. The remainder I have just priced through
    department stores, walking around and seeing the value on
    things, halving them where appropriate, some things have not
    lost value at all. Some things I can not put a value on.
     Q. So you believe you've done what you could to create the
    right value.
     A. Yes, I see them all to be correct." 3. The cross-examination contains this passage:
     "Q. These values that you've put down in this piece of
    paper that was shown to you, do I take it to be the case that in
    some instances you ascertained the retail price of the items in
    question either from your memory or from going to a shop and
    looking at a comparable item, correct.
     A. This is correct.
     Q. And in some cases you have halved that value, have you.
     A. In cases of - in cases of items that would decrease in
    value.
     Q. Then in relation to some of the other items you have not
    halved it at all.
     A. No. Pieces of art work would not have decreased in value.
    They would have merely increased and the prices that I have set
    in here were prices that I wrote out about two and a half years
    ago when this all began. That was their current value then.
     Q. How do you know that.
     A. Pieces of art work are we talking about or just -
     Q. Yes.
     A. Because I was working organising art exhibitions and
    events, I had a lot of - I was working a lot in the fields of
    artists, a lot of art pieces that I had came from events and
    their values were put on the items at the time that the events
    were produced.
     Q. The purchase price was put on the items.
     A. Sorry, the purchase?
     Q. The purchase was put on the items in galleries and events,
    is that what you are saying.
     A. When the events are produced and the items of art are up
    for sale, they are then curated and valued.
     Q. You are not a qualified valuer, I take it, of art works.
     A. No.
     Q. Or of anything.
     A. My own personal works of art.
     Q. You have some qualifications in valuing those, do you.
     A. Yes. I have worked in arts.
     Q. What about household goods, you have got no particular
    valuation qualifications in relation to those, have you.
     A. Merely that I know what my goods were.
     Q. We have heard your evidence on that. I am just asking
    have you got any valuation qualifications.
     A. Like what?
     Q. Member of the Australian Institute of Valuers, for
    instance.
     A. No.
     Q. Or nothing like that.
     A. No, I am not a professional valuer." 4. His Honour dealt with the quantum of damages quite briefly. He said:
    "Miss Gardner (counsel for the plaintiff/appellant
    submitted) ... that I could proceed purely on the plaintiff's
    evidence as to the quantum of damages involved ... Mr. Randle
    (counsel for the defendant/respondent) says that the plaintiff
    was always in a position to adduce expert evidence of the values
    involved in these goods and that was never done. The plaintiff
    has given some evidence of his familiarity with the goods and
    the prices and the like but the evidence in my view lacks any
    air of independence and the evidence in fact, I think, is quite
    short on specifics, particularly it is short on specifics when
    one examines some of the items in the claim where the question
    of value is a very subjective thing. Examples of this occur in
    the heading of 'Artworks' and 'Records and Cassettes' and
    'Career Materials'. I certainly am not prepared to proceed on
    the plaintiff's assessment of those items. There are, however,
    some items that I think might properly form the basis for the
    type of decision that was made in Graham v Voigt and I think its
    simply a matter of me doing the best I can on the available
    evidence. Those areas where I think I can proceed in a general
    way and then make a substantial discount are the categories of
    the 'Kitchen Equipment', 'Linen and Fabrics', 'Uniform and
    Clothing'. Having regard to the items specified and having
    regard to the fact that (they) are all second-hand in nature, I
    think an appropriate assessment is the sum of $500.00. In
    addition there should be judgment for a further $500 for the
    Wrongful Detention of the items. Accordingly, there will be
judgment against the deft Miller for the sum of $1,000,00." 5. The appellant now appeals from his Honour's assessment and against his decision on costs. 6. Counsel referred to a number of authorities, the first in point of time being Armory v. Delamirie (1722) l Stra. 506; 93 ER 664. In that case the plaintiff, being a chimney sweeper's boy, found a jewel and carried it to the defendant's shop to find out what it was and delivered it into the hands of the apprentice, who under the pretence of weighing it, took out the stones, and called out to his master that it came to three-halfpence. The master offered the boy the money who refused to take it, and insisted on having the jewel back again, whereupon the apprentice gave him back the socket without the stones. The plaintiff sued the master, and the case was heard by Pratt CJ. As to the value of the jewels, several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth. The Chief Justice directed the jury that unless the defendant did produce the jewel and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewel as the measure of their damages; which they accordingly did. 7. I do not think this case is really applicable to the case at bar, and in that regard refer to what was said about it in the joint judgment of O'Bryan and Dean JJ in Ley v. Lewis (1952) VLR 119 at p 122, namely: "The principle of that case is that where a person who has wrongfully converted property will not produce it and the plaintiff is thereby deprived of the opportunity of proving an adequate description of it or its condition, it shall be presumed as against him to be of the best quality and condition. Such a principle is not applicable to a case like the present in which there is evidence of the condition and the description of the converted property. Here, the plaintiff was quite able adequately to describe the tanks and their condition and if he failed to do so we think that His Honour was not in error in assessing their value on a general basis of average quality." 8. The leading English text on the topic is perhaps McGregor on "Damages", 15th Edition, where the learned author says at p.214-215 (although not focussing on the measure of damages for detinue in particular):
    "A plaintiff claiming damages must prove his case. To
    justify an award of substantial damages he must satisfy the
    court both as to the fact of damage and as to its amount. If he
    satisfies the court on neither, his action will fail, or at the
    most he will be awarded nominal damages where a right has been
    infringed. If the fact of damage is shown but no evidence is
    given as to its amount so that it is virtually impossible to
    assess damages, this will generally permit only an award of
    nominal damages ... On the other hand, where it is clear that
    some substantial loss has been incurred, the fact that an
    assessment is difficult because of the nature of the damage is
    no reason for awarding no damages or merely nominal damages. As
    Vaughan Williams LJ put it in Chaplin v. Hicks ((1911) 2 KB
    786 (C.A); facts at para 362, infra.), the leading case on the
    issue of certainty: 'The fact that damages cannot be assessed
    with certainty does not relieve the wrong-doer of the necessity
    of paying damages.' Indeed if absolute certainty were required
    as to the precise amount of loss that the plaintiff had
    suffered, no damages would be recovered at all in the great
    number of cases. This is particularly true since so much of
    damages claimed are in respect of prospective, and therefore
    necessarily contingent, loss. Of course, as Devlin J. said in
    Biggin v Permanite (1951) L K.B. 422, 438: 'Where precise
    evidence is obtainable, the court naturally expects to have it,
    (but) where it is not, the court must do the best it can.'
    Generally, therefore, although it remains true to say that
    'difficulty of proof does not dispense with the necessity of
    proof,' (Aerial Advertising Co. v. Bachelors Peas (1938) 2 All
    ER 788, 796, per Atkinson J.) the standard demanded can seldom
    be that of certainty. Even if it is said that the damage must
    be proved with reasonable certainty, the word 'reasonable' is
    really the controlling one, and the standard of proof only
    demands evidence from which the existence of damage can be
    reasonably inferred and which provides adequate data for
calculating its amount." 9. One of the leading English cases as to the relevant measure of damages is J. and E Hall Ltd. v. Barclay (1937) 3 All ER 620. To quote from the headnote:
    "The respondent company did work for the appellant in
    erecting and testing a pair of experimental davits. The davits
    and testing apparatus were then dismantled and kept by the
    respondent company for several years. A dispute arose over the
    non- payment of part of the appellant's account for work done,
    and a writ was issued. The appellant counter-claimed for
    damages for detinue or conversion of his davits and testing
    apparatus, which it transpired that the respondent company had
    sold as scrap. The judge awarded the appellant the scrap value
    of these articles as damages." It was held on appeal that the appellant was entitled to the value of the articles converted, which was ordinarily the price of similar articles in the market. As there was no market in the articles concerned, the measure of damages was the cost of replacement. 10. At pp.623-624, Greer LJ said:
    "In my judgment, it is an undoubted fact that there are
    two rules with which we begin in ascertaining how the damage
    should be ascertained. The first is this: A plaintiff who is
    suffering from a wrong committed by a defendant is entitled, so
    far as money can do it, to be put into the same position as if
    he had not suffered that wrong. That is what is referred to as
    restitutio in integrum. The second principle which is accepted
    is that what he is entitled to, as damages for conversion or
    detention in respect of the article so detained or converted and
    not returned, is the value of that article. Then the question
    is, what is the meaning of 'the value of that article'? When you
    are dealing with goods which can be readily bought in the
    market, a man whose rights have been interfered with is never
    entitled to more than what he would have to pay to buy a similar
    article in the market. That rule has been acted upon over and
    over again, and that, I think, means that, where there is a
    market, the man whose rights have been interfered with is bound
    to diminish the damages by going into the market and buying the
    goods in the market, so as to put himself in the position in
    which he is entitled to be put, namely, the position in which he
    would have been if he had not suffered any wrong at all ...
    Now, if there had been a market for the davits, to which the
    appellant could have gone on the day after he was wrongfully
    deprived of his davits, and bought them at an agreed price,
    however much lower that might be or however much higher it might
    be than what he had originally paid for them, he would have been
    entitled to the cost of replacement by getting them in the
    market. But, if he cannot get them in the market, what is his
    position? He must do that which is analogous to getting them in
    the market, namely, he must go to the only people from whom he
    can get goods to put him into the same position as he would have
    been in if his davits had never been taken away from him, that
    is to say, he must go to the manufacturer and see for what price
    the manufacturer will supply him with similar goods. That test
    would give him 220, and he was entitled to ask the judge to say,
    and entitled as of right, in my judgment, to say, 'I want my
    goods. If you do not give me back my goods, then you must pay
    me what I would have to pay in order to put myself into the same
    position as I would have been in if you had complied with my
    demand for the goods. I want them for the purposes of further
    experiments, in order that I may satisfy myself that the design
    of these davits, and possibly the design of improved davits, may
    be improved upon.' He not having had the davits returned to him,
    I think the test of their value, and the sum that he is entitled
    to recover for having failed to get his davits back again, is
    the 220 which he would have to pay, according to the undisputed
    evidence of Mr. Small, in order to get davits similar to those
    of which he had been deprived. The measure given by Mr. Small
    is the cost per ton. That is the usual way of estimating in
    engineering matters, and at the price per ton stated by Mr.
    Small he would have had to pay 220 for these things, and in my
    judgment, he is entitled to recover 220 in respect of the davits
    ..." 11. I also refer to Carter and Harland, "Contract Law in Australia", 2nd. Ed., where the learned authors state at p.714:
    "... it is well-established that difficulty of assessment
    is not a bar to recovery, provided, of course, that the
    difficulty does not arise from the fact that the plaintiff has
    produced no evidence of loss or damage. As was explained
    earlier, the absence of such evidence means that the plaintiff
    will be restricted to a nominal sum. Where damages are
    difficult to assess because the plaintiff has produced evidence
    which, while establishing loss or damage, does not permit the
    court to make as reliable an assessment as should have been
    possible, the plaintiff cannot complain if the court's award is
    not as high as it would have been had reliable information been
produced." 12. The learned authors refer to the remarks of Atkinson J. in Aerial Advertising Co. v. Bachelors Peas (1938) 2 All.ER 788, where at p 796 his Lordship said:
    "I can only do the best I can, being very careful not to
    put it too high, and particularly for the reason that,
    although I appreciate the difficulty, I think that the

    defendants, if they had taken the trouble, could have given
me more reliable figures." 13. Finally, I refer to Graham v. Voigt (1989) 95 FLR 146. At p 154, Kelly J. said:
    " Mr Rabey, a retailer of tableware, china, glass, silver
    and cutlery for some 15 years, gave evidence of the present
    replacement costs of the glass and crystal ware that were not
    returned to the plaintiff. I accept that evidence but I cannot
    accept that the figures given represent the value of those items
    in the hands of a private owner. In the absence of any other
    basis upon which I might proceed it seems to me be fair to take
    one half of the value (really the replacement cost) ascribed to
    the items by Mr Rabey and to assess that fraction as the value
    of the goods in question. On that basis, taking, where a range
    of figures was given, the median figure, I assess the value of
    the glass and crystal ware not returned at $878. I assess the
    value of the Tupperware not returned at $60." 14. At the outset, a point must be made in the appellant's favour, namely, that he had not seen his property between September, 1990, when it was delivered to the respondent's premises, and 7 December, 1993, when he gave evidence. If the property had been available for inspection by an auctioneer or a secondhand dealer and the appellant had not called evidence from any such person, the position of the appellant would have been weaker than it is in fact now. 15. Next, I am bound to say that the cross-examination of the appellant was not probing. For example, he was not asked about the date of acquisition of the various items, or cross-examined about their condition. He was not pressed as to which items he valued by relying on his memory for the cost, or as to which items he valued by going to a shop and looking at a comparable item. He was not pressed as to which items he considered would decrease in value, and for which he halved the value. The cross-examination did establish that the appellant was not a professional or qualified valuer. In saying what I have just said, I do not overlook the fact that the appellant had an onus to prove his case. 16. Whilst I sympathise with the difficulties facing the learned Magistrate, I have no hesitation in concluding that the assessment of $500 was clearly an erroneous assessment. My task then is to assess afresh, having regard to the evidence and the authorities discussed. Kitchen Equipment, Linen and Fabrics 17. His Honour indicated that portion of the $500 assessed related to these items. I refer back to what the appellant said in his examination in chief about these items. He did not say he had halved their replacement cost. I propose to allow one half the amounts claimed, namely $1,050. Uniforms and Clothing 18. The appellant said that he had halved the replacement cost and I propose to allow the sum of $891 claimed. Artworks 19. The appellant has claimed $885 for these items. I think the appellant could have called someone in the art field in which he says he was working at the relevant time, and he did not do so. Taking a broad axe approach, I will allow $500. Career Materials 20. The principal items are "Photo Folio of Produced Exhibitions and Work" and "Personal Photographs" together totalling $600. The appellant's only evidence thereto relating was as follows: "I've put down the cost of film and development". He was not cross-examined on this statement, and I see no reason for rejecting it. The other small items appear reasonable. I award the amount claimed of $631. Miscellaneous 21. The appellant's evidence was confined in the following passage:
    "The remainder I have just priced through department
    stores, walking around and seeing the value on things,
    halving them where appropriate, some things have not lost
    value at all. Some things I can not put a value on." 22. Wielding a broad axe, I award $300. The total to be awarded is $3,872 ($1,050 + $891 + $500 + $631 + $300 + $500 for exemplary damages). 23. The appeal is allowed by substituting the sum of $3,872 for $1,000. I will hear the parties on the questions of the costs of the trial and of the appeal.