Toman v Sharkway

[2006] NSWLC 33

Local Court of NSW|2004-11-05|Before: Companions Naviera J

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Court

Local Court of NSW

Decision date

2004-11-05

Before

Companions Naviera J

Source

Original judgment source is linked above.

Judgment (49 paragraphs)

[1]

CITATION: Toman v Sharkway [2006] NSWLC 33 JURISDICTION: Civil Raymond Daniel Toman PARTIES: Hossam Sharkway Therese Sharkway FILE NUMBER: 6955/05 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 08/21/2006 MAGISTRATE: Magistrate M Quinn CATCHWORDS: Civil claim - Motor vehicle accident damage claim - Expert evidence LEGISLATION CITED: Evidence Act 1995 Kirch Communications Pty Ltd v Gene Endineering Pty Ltd (2002) NSWSC 485 Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No.3) (2001) 1 WLR 2337 Fagenblat v Feingold Partners Pty Ltd (2001) VSC 479 Collins Thomson v Clayton [2002] NSWSC 366 ASIC v Rich (2005) 218ALR 764 Commonwealth Development Bank of Australia Pty Limited & Anor v Claude george Rene Cassegrain; Gerald Cassegrain & Co Pty Limited & Ors v Commonwealth Development Bank of Australia Pty Limited & Ors (2002) NSWSC 980 Barak Pty Limited v W T H Pty Limited Trading As Avis Australia (2002) NSWSC 649 Makita v Sprowles (2001) NSWCA 305 CASES CITED: National Justice Companions Naviera SA v Prudential Insurance Co Ltd ("The Ikarian Reef') (1993) 2 Lloyd's Rep 68 Quick v Stoland (1998) 1200 FCA; 157 ALR 615 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) FCAFC 157 Darbishire v Warran (1963) 1 WLR 1067 The "Pactolus" 116 ER 1079 (1856) British Westinghouse Electric and Manufacturing Company Limited v Undergrounds Electric Railways Company of London Limited [1912] AC 673 Payzu Limited v Saunders [1919] KB 581 Dunkirk Colliery Company v Lever [1878] 9 Ch D 20 Koon Shuen Young v Waters. Dare LCM 6/10/05 Mr Gower - Solicitor REPRESENTATION: Mr manion - Counsel CKB Partners - Solicitors ORDERS: Judgment for the plaintiff against the second defendant in an amount of $7,983.62. The plaintiff's action against the first defendant be dismissed. The second defendant to pay the plaintiff's costs as agreed or assessed. The plaintiff to pay the costs of the first defendant as agreed or assessed.;

[2]

[36]

The Evidence Act 1995 does not contain a provision that reflects the common law rule that the admissibility of expert opinion depends upon proper disclosure and proof of the factual. As stated in Quick v Stoland (1998) 1200 FCA; 157 ALR 615 at 617 :- "The Act does not contain a provision which reflects the common law rule that the admissibility of expert opinion depends upon proper disclosure and proof of the factual basis of the opinion. This is not an accidental omission. The ALRC considered no such pre-conditions to admissibility of expert opinions should be imposed." It is clear that the determination of this issue of admissibility should not be made until all the evidence is complete. In ASIC v Rich (2005) NSWCA 152 at 136 Spigelman CJ quoted the following paragraph from Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) FCAFC 157 at 16: 55 IPR 254 at 359: "The requirement than an expert opinion be wholly or substantially based on the witness's specialised knowledge is not, in my view, intended to require a trial judge to give meticulous consideration, before ruling on the admissibility of the evidence of the opinion, to whether the facts on which the opinion is based form a proper (in the sense of logically or scientifically or intellectually proper) based for the opinion. Were the position otherwise the smooth running of trial involving expert evidence could be expected to be interrupted by the need to explore in detail, the context of admissibility, matters more properly considered at the end of the trial in the context of the weight to be attributed to the evidence. It is sufficient for admissibility, in my view, that the trial judge is satisfied on the balance of probabilities on the evidence and other material before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge. (see discussion also in the Judicial review 7 (2006) 329 'Expert Evidence, the Honourable Frank Marks). A Court must first consider the degree of reliability of the application of the field of expertise to the particular issue in question. Mr Wild's qualifications and experience as a loss assessor are sufficient to bring him within the exception to s.79 of the Evidence Act 1995, that is, opinion evidence is inadmissible unless the person has the relevant experience. In evidence, Mr Wild stated that has he own business "P & R Assessments South". Prior to that time he was motor vehicle loss assessor for Royal Sun Alliance Insurance for twenty-two years. He performs some 25 vehicle assessments per week. It is clear Mr. Wild has specialised knowledge on which to base an opinion.

[47]

In Darbishire (supra), it was found that the car was not an irreplaceable article. While the particular car was not available, similar or other suitable vehicles were. The court stated that, as the costs of repairs greatly exceeded the value of the car by more than twice, it should be treated as a constructive total loss. The measure of damages was its value ₤80 plus hire of a vehicle during repairs plus $5 for expenses. The Court in Darbishire (supra) also said that the market value of a vehicle may not always be the true measure of damages. There may be exceptional circumstances which justify a higher value eg when a vehicle may be unique. The plaintiff does not claim that the vehicle was unique. It is clear that a plaintiff is entitled to be as extravagant as he/she pleases but not at the expense of a defendant. The defendant's representative referred the Court to other cases that supported the application of the law in Darbishire (supra). One case, The "Pactolus" 116 ER 1079, decided in 1856, concerned damages for the repair of a ship. The dispute related to the inclusion of iron plates and bolts in the repair following a collision that seriously damaged a new ship. It was said that the owners of the ship took the opportunity to strengthen the ship with iron plates and bolts not on the ship prior to the collision. In an initial assessment, excessive shipwrights charges were disallowed "by the opinion of persons conversant with the trade" as was the substantial amount charged for the strengthening work. That work was allowed at a subsequent hearing. The best evidence the Court said was "the evidence of those who saw the vessel after the collision and deposed to the necessity of repairs" (1081 at.5). In the matter before this Court there were more than two days of evidence from witness regarding the time estimates, the rate applied to particular items and, whether or not new or replacement parts referred to in the MAR amended assessment were purchased and/or used un the repair to the vehicle. The difference in the costs estimates were generally very low, eg $3 and in relation to parts in one instance a maxim of $120. As the Court said in 1856 in the Pactolus "it is a very arduous task to decide when opinions are conflicting," (p 1081), and "If persons best acquainted with the whole subject matter and with the course of the trade in that great emporium of commerce cannot come to agreement on these matters, I must necessarily conclude that great doubt and uncertainty prevail as to the questions."

[48]

On balancing the weight of the evidence, I am satisfied that the plaintiff's figure for repairs should be accepted. Mr. Wild was the person who saw the car immediately after the accident and prior to repair. In my view, he was the best person competent to say what repairs were required. Mr. Nunn's comments, as stated, were made after repair. Mr. Nunn's view that the vehicle value should be reduced so greatly to account for the excess kilometres as to make it almost worthless is not supported in his report. That is, the person he telephoned or this fact is not mentioned in the report. Putting aside any kilometres reduction, the difference in the estimates for repair amount to approximately $2,000. In Darbishire (supra) the costs of the repairs were double that of the pre accident value also listed in a Glasses Guide. There was no evidence of any action by the plaintiff to indicate that the repairs were carried out for his own "personal interest". Furthermore I have not accepted evidence that the repairs were uneconomical. As noted in Darbishire (supra) there "should be an element of flexibility in the assessment of damages to achieve a result which is fair and just as between the parties in the particular case". Mitigation A plaintiff must do all that is reasonable in order to mitigate loss. I was referred a decision of Magistrate Dare in Koon Shuen Young v.Waters, 6 October 2005, amongst others, which sets out in full the law in relation to mitigation. Both parties agree I am not required to follow that decision however, it provides an examination of the law on mitigation. The test outlined refers to requirement for a prudent person to do all that is reasonable in order to mitigate loss. The criterion for "reasonableness" is that a plaintiff is not "under any obligation to do anything other than in the ordinary course of business". The question is whether or not the Plaintiff acted reasonably in all the circumstances. (see British Westinghouse Electric and Manufacturing Company Limited Undergrounds Electric Railways Company of London Limited [1912] AC 673 at 689; Payzu Limited v. Saunders [1919] KB 581; Dunkirk Colliery Company v. Lever [1878] 9 Ch D 20 at 25.) In my view all reasonable steps to mitigate the loss consequent upon the damage were taken. The plaintiff was provided with a quote for repairs and that assessment was sent to Mr. Wild for an independent assessment. What more was the plaintiff expected to do? It would be unreasonable to expect a motorist to be aware of the Glasses Guide, which is used by dealers, or even make reference to it, before a determination on whether or not to rely on assessments provided by specialists or experts in the motor repair industry. Much of the evidence regarding the vehicle was directed at whether or not the repairs actually performed were fair and reasonable. I have made note of Mr. Nunn's report and to the different opinion he holds in relation to the repairs and to some items in Mr. Wild's report. After reading the evidence it is clear that assessments are just that. Items of time and cost may be undervalued and the cost of a repair item also may differ depending on where it is obtained. Mr. Nunn did not see the vehicle prior to repair and had no disagreement with many of the items assessed. In any event, these matters cannot be taken as evidence that the plaintiff failed to mitigate his loss in the ordinary course of business. The plaintiff is not MAR but the owner of a vehicle who has suffered a loss as a consequence of the defendant's admitted wrong. Unlike the plaintiff in Darbishire (supra), he was not advised that the repair was uneconomical. He was not extravagant in proceeding with the repair. The burden of proof lies upon the defendant. That burden has not been met. In the circumstances of this case the plaintiff took all reasonable steps to mitigate his loss. I have determined that the repair assessment was not excessive or exaggerated and therefore on the balance of probabilities the plaintiff must succeed against the second defendant. As against the first defendant, the owner of the vehicle, there was no evidence. The plaintiff cannot therefore succeed against this defendant and the claim must be dismissed against that defendant. I accept that a hire car was necessary and provided in the circumstances of this case where the plaintiff gave evidence that he travelled long distances from Danger Island to near the city to work. I accept also that the assessment fee of Mr. Wild forms part of the damages claimed given that his assessment was prepared prior to and not for the purpose of litigation. Orders made 21 August 2006 I make the following orders:

Judgment for the Plaintiff against the 2nd defendant in an amount of $ $7,983.62
The plaintiff's action against the 1st defendant be dismissed.
The second defendant to pay the plaintiff's costs as agreed or assessed.
The plaintiff to pay the costs of the first defendant as agreed or assessed. A question in relation to interest on the judgment debt was considered on 24 August 2006. As the plaintiff has not paid any amount for repair of the vehicle, he has not suffered any loss. Following the reasoning in Screenco Pty Ltd v. R L Dew Pty Ltd & Anor [2003] NSWCA 319 (14 November 2003) I make no order for interest on the judgment debt. The plaintiff to pay the defendant's costs as agreed or assessed for appearing on 24 August 2006 for one hour only.