Swiss (Fiji) Divers Ltd v Shell Fiji Ltd [2015] FJHC 344; HBC140.2006 (12 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 140 of 2006

BETWEEN:

SWISS (FIJI) DIVERS LIMITED
a limited liability company having registered office at PA Matei, Taveuni.
Plaintiff

AND:

SHELL FIJI LIMITED
a limited liability company having its registered office at Rona Street, Walu Bay in Suva.
Defendant

Appearance: Mr O'Driscoll of O'Driscoll & Co. for the Plaintiff
Ms S Deven of Neel Shivam Lawyers for the Defendants

Date of Judgment: 12 May 2015

JUDGMENT

[1] The Trial in this matter was taken up before Justice Jitoko and concluded on 14 August 2007 and the Judgment was on notice which was not delivered.

[2] When the matter was referred to me and mentioned on 17 November 2011, Ms Deven S of Neel Shivam Lawyers appeared for the Defendant. The Plaintiff was not present and no counsel appeared on its behalf. Both parties have filed their written submissions in this case on conclusion of the trial and it was decided to deliver the Judgment with the available proceedings. In this regard, I considered the following:

1. The Pleadings

2. Pre-trial conference minutes

3. Exhibits

4. Judge's notes

5. Written submissions.

[3] Background

3.1 On 26 February 2006, the Defendant delivered 2 drums of fuel to the Plaintiff to use in its 225 HP 4 Stroke Yamaha outboard engine. The Defendant had admitted the delivery of the fuel. The Plaintiff had stated the said fuel was contaminated which was denied by the Defendant.

3.2 The Plaintiff claimed by using the said contaminated fuel resulted repairs to the engine of the said Yamaha Outboard engine and had to spend $12,280.73 for repairs and it was breach of the provisions of the Sales of Goods Act and the Defendant was negligent in supplying contaminated fuel.

3.3 The Plaintiff had particularized the special damages, general damages, interest and costs.

[4] The issues to be decided in this case are:

4.1 As to whether the fuel supplied by the Defendant was contaminated which led to damage of the Plaintiff's Yamaha Outboard engine and as to whether it was breach of the provisions of the Sales of Goods Act Cap 230?

4.2 If the answer to the above issue is YES and as to whether the Defendant is liable to pay special damages, general damages and costs?

[5] Brief Chronology

24th February 2006 – Two drums of fuel are delivered to the Plaintiff's premises in Matei by the driver Rohit.

25th February 2006 – The Plaintiff's boat developed engine trouble and has to be subsequently repaired.

February to March 2006 – Various correspondence between the Plaintiff and the Defendant is exchanged related to the Plaintiff's allegation that the fuel supplied by the Defendant had led to the problem with the Plaintiff's boat engine.

[6] Now I will consider the evidence in this case.

6.1 Dominique Egerter (PW1), the director of the Plaintiff gave evidence on this case. The fuel was delivered to the Plaintiff's premises for storage of the same for the boat's engine was filled from detachable fuel tanks and which damaged engine. He stated that the fuel was delivered on 24th February 2007 at around 5.30pm at the premises.

Upon delivery a delivery docket was signed by both the Plaintiff's representative the co-partner of the business, the wife of Dominique and the Defendant's representative. The Defendant had argued that by signing this, the Plaintiff accepted the fuel was in good condition, however, this court's view is that there is no evidence with regard to condition of the fuel; it is only the proof of the delivery.

I don't agree that the e-mail dated 24/3/2006 was an admission of the contamination of the fuel. The fuel was taken from the boat engine and the said e-mail states the traces of salt and water have been found, (e-mail on page 10 of the agreed bundle). However, during the cross-examination the witness admitted that drums were not checked all the time when those were delivered. On 24 February 2006 drums were not checked since tourists were waiting for a trip in the morning. The drums were sealed and the visual inspection of the drums is limited to the inspection of the seal and the condition of the drum. If there is a hole in the drum it can contaminate the fuel.

Mr Egerter also confirmed that one Isimeli from the Defendant had taken a sample of fuel, which was subsequently tested and confirmed as being contaminated.

It was revealed that one of the employees of the witness and his wife co-partner of the witness accepted the delivery of the drums and the witness was not there. Delivery note was signed by the wife of the witness and there is no evidence in this case whether the drums in question are inspected by the employee or the witness's wife. In absence of the evidence from a witness to state the drums delivered were inspected, this court cannot conclude there was any hole in the drum which resulted the contamination.

6.2 The witness PW1 had tendered three bottles of samples which were supposed to have been obtained from the drums in question which were alleged to be contaminated. However, there was no report of an analysis of an expert and no evidence to establish that the samples were taken from the drums and those samples were contaminated (PW25, 26, 27) which caused damage to the subject outboard engine.

6.3 There was no evidence led by the Plaintiff to challenge the evidence of the Defendant how the fuel drums were stored at Taveuni stores.

6.4 Invoices for repairs were tendered in the evidence by the Plaintiff (pages 6, 7 and 8 of the Agreed Bundle) totaling to $17,097.99. There was no evidence to establish that the amount of $15,607.36 or $17,097.99 was paid. Invoices should be supported by evidence of payment and there is no such evidence before this court to establish the payment, for the fuel drums supplied.

6.5 Considering the evidence, it was established that the Yamaha boat engine was repaired two weeks prior to 24 February 2006 for mechanical defects of the engine. In such situation and taking all the evidence available for the court, I conclude the Plaintiff failed to establish that the fuel supplied by the Defendant was contaminated and it resulted the repairs to the 225HP 4 Stroke Yamaha Outboard Engine.

Accordingly, I determine the Plaintiff failed to prove his case on balance of probabilities and submissions made on law with regard the Sale of Goods Act Cap 230 is not relevant.

ORDERS of the Court:

1. The Plaintiff's case dismissed.

2. No order for as to costs.

Delivered at Suva this 12th Day of May 2015.

C. KOTIGALAGE
JUDGE