In the High Court of Fiji
At Suva
Civil Jurisdiction

Civil Action No. HBC 296 of 2016

Devendra Prasad
Plaintiff
v 
Rakesh Chetty
Defendant

                                   Counsel:                 Mr A.Chand  for the plaintiff
      Mr K.Singh  for the defendant 
                                   Date of hearing:           4th October, 2018
                                   Date of Judgment:  12th September, 2019

Judgment
1.	The plaintiff engaged the defendant, a building contractor to carry out tiling, ceiling, gib fixing, plastering, finishing and extra works on the top floor of his house on a labour contract, for a sum of $19,600. The plaintiff, in his statement of claim states that the defendant’s work was unsatisfactory and incomplete. He claims a sum of $22,700.00, damages for mental stress, pain and suffering suffered by his daughter, aggravated damages, interest and costs.

2.	The defendant, in his statement of defence states that that all works were completed to the satisfaction of the plaintiff and progress payments made. The tiles were aligned properly. The paints supplied by the plaintiff were faulty. The works took time to complete, as he was trying to rectify the defects left behind by the plaintiff’s former contractor. 

3.	The plaintiff, in his reply states that he made payments on the trust that the defendant will rectify all the untidy tiles and complete the works. The paints provided were of the best quality. The fallen plaster and grout left by the contractor has to be cleaned by him. 

The determination                                     
4.	The question for determination is whether the works carried out by defendant were unsatisfactory and incomplete.

5.	The statement of claim  itemizes “the following unsatisfactory and incomplete job(s): 
i.	Tile laying is untidy, where some tiles laid are not in one line and many tiles are up and down in the edges; 
ii.	Grout incomplete and untidy;
iii.	Grout not cleaned on the tiles; 
iv.	Bottom of the step not plastered; 
v.	Plaster not cleaned from the terrace and from the steps; 
vi.	Bathroom water not draining properly; water gets collected in the middle causing the water to enter underneath the Tile and causing all the tiles to soak the water; 
vii.	Untidy ceiling painting; 
viii.	Untidy wall paintings; 
ix.	Untidy skirting paintings; 
x.	Untidy grouting; 
xi.	Washroom tile grout not cleaned; 
xii.	Side plaster on the terrace extension is untidy; 
xiii.	Incomplete painting; 
xiv.	Rubbish all laying here and there. Work site not cleaned properly”. 

6.	The plaintiff, in evidence in chief said that the defendant commenced work in May, 2016. His written quotation of 1st June, 2016, provided as follows: tile laying-$3,800/; ceiling, gib fixing, plastering and finishing works -$ 4,800/. 

Tiling
7.	The plaintiff said that the defendant’s tiling was untidy and unsatisfactory. It was not lined nor glued properly. It was “up and down”. The grout was not cleaned. Off cuts of tiles were left on the floor. He said that “About quarter of .. tiles were pulled out (and)..the tiles beside”. He produced photographs of the tiling. He had to lay new tiles, which cost him $10,000. The defendant failed to provide a fall in the toilet, which caused the water to clog on the tiles, as depicted in a photograph. 

8.	The defendant said that he carried out his work professionally, except for 8 or 10 tiles. It is a minor task to clean grout with water and a sponge as well as remove bits of tiles left over. The plumbing works in the toilet caused the water to remain on the tiles. There was no grating in the toilet for the water to flow. The plumbing was done before he started his works. 

9.	With regard to a wide space between a dark and light tile as depicted in one of the photographs, Mr. Singh, counsel for the defendant put it to the plaintiff that a photograph taken from a close angle can depict an enlarged picture. The plaintiff replied that he could not recall the distance between the tile and his camera. It was also pointed out that it was possible that dirt had accumulated on the tiled steps, due to dust and rain water over a period of two months, not grout, as contended. The defendant left the site in August, 2016. The photographs were taken in October, 2016.

10.	I find that the photographs produced by the plaintiff do not depict that the entire tiling was unsatisfactory, except in one particular area, which was admitted by the defendant. The Court was not apprised of the cost of replacing those tiles. 

11.	The plaintiff did not produce an independent report on the tiling works. He did not establish that he spent $10,000.00 on removing and laying new tiles. 

12.	It follows that the plaintiff is not entitled to claim the costs of a complete replacement of tiles and the labour costs paid to the defendant for the tiling works. 

13.	Special damages must be identified, valued and proved per Basanayake JA in New India Assurance Co Ltd v Lal,[2013) FJCA 25; ABU 0059.2008(13 March,2013).

Plaster
14.	The plaintiff said that the defendant did not finish the plaster work. The back and side step was not done.  The plaster work he did, was cracking. He claims the sum of $1400 he paid to the defendant as labour costs.

15.	The defendant said that the plaster was crooked, as the wall which was built with blocks was not straight. He explained to the plaintiff’s foreman that cracks will result. The block work was not done by him. He was not contracted to plaster the side of the steps. It was not contained in his quotation.

16.	The plaintiff, in cross examination, said that he was not a builder and cannot answer as to whether there was possibility that the block wall was not constructed properly. 

17.	In this instance too, the plaintiff did not provide an independent report from an expert as to the reason there were cracks on the plaster on the wall.  

18.	In my judgment, the Court is not in a position to make a finding on the plaster works.  

19.	The claim of $ 1400.00 is declined.

Painting
20.	The plaintiff said that the painting of the ceiling and external walls was unsatisfactory. There were roller marks on the ceiling. He had to repaint the ceiling and walls. He claims a sum of $4000.00, which he states that he spent on the purchase of paints and the labour costs of $3500.00 he paid the defendant.

21.	The defendant said that the undercoat paint supplied by the plaintiff for the ceiling was not of good quality and was replaced by the plaintiff. The plaintiff, in cross examination admitted that the paints he initially supplied to the defendant were defective and he provided a replacement. It was put to the plaintiff that only the undercoat paints were replaced. He said the finishing paints were replaced. No documentation in support was produced. 

22.	The plaintiff,  in cross examination  said that only a builder could tell if the brush marks on the ceiling were a result of defective paints.  It transpired that he was not present when the painting was done. He said that he did not scrap all the paint applied by the defendant. He put another layer on top. He agreed the entire amount he spent on paints did not go to waste and that there should be a deduction for the work correctly done by the defendant.

23.	The plaintiff did not produce a report from an expert on the painting works. The Court is not in a position to ascertain the defendant’s works.

24.	In my judgment, the plaintiff’s claim for $ 7500 cannot be maintained and is declined.

Ceiling 
25.	The plaintiff said that the joinery of the gib board had cracked and the ceiling was wavy, as the defendant had not lined the gib board correctly. 

26.	In cross examination, he said that he purchased the best quality treated timber for the suspended ceiling from Vinod Patel & Co. The defendant should have ascertained whether the timber was wet.  

27.	The defendant said that he placed the gib board on the rafters. He explained to the plaintiff’s foreman that the rafters were wet and not lined correctly, which resulted in cracks and gaps in the gib board.

28.	The defendant did not establish that he informed the foreman of the condition of the rafters. 

29.	The plaintiff has not established the extent of the defective ceiling works and the cost of rectifying the defects.

30.	In the circumstances, the claim for damages is declined.

31.	The plaintiff claimed that he was mentally stressed and depressed, when he saw the defects. The defendant did not respond to his calls and he was worried about his “dream house”. He produced copies of text messages he had sent to the defendant. He did not get medical treatment. 

32.	Ralph Gibson LJ  in Watts and another v Morrow,[1991] 4 All ER 937 at pg 955 stated:
As to the law, it is, in my judgment, clear that the plaintiffs were not entitled to recover general damages for mental distress not covered by physical discomfort or inconvenience resulting from the breach of contract.

33.	In my judgment, the claim for mental stress was not established and is declined.

34.	The plaintiff also claims damages for pain and suffering suffered by his daughter. He said that she sustained injuries to her toe when she knocked into a space left between tiles. 

35.	In support, he produced a photograph of a little girl crying and holding her leg and a photograph of a toe with an abrasion. In my judgment, neither establish that his daughter was injured, as alleged. In any event, a claim for pain and suffering cannot be made on behalf of another.

36.	The plaintiff has not pleaded nor set out the facts in support of his claim for aggravated, damages. That claim too fails. 

37.	Orders
(a)	The claim for a sum of $ 22,700 is declined.
(b)	The claim for damages is declined.
(c)	The claim for aggravated damaged is declined.
(d)	I make no order as to costs

                                                       A.L.B.Brito-Mutunayagam
                                                                          Judge
12th September, 2019