National Marketing Authority v Yasin [1977] FJSC 50; Civil Action 108 of 1976 (9 September 1977)

Fiji Islands - National Marketing Authority v Yasin - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

CIVIL JURISDICTION

ACTION NO. 108 OF 1976

BETWEEN

NATIONAL MARKETING AUTHORITY
(a statutory bocorporated under the National Marketing Authority Act)
Plaintiff

AND

MOHAMMED YASIN
(son of Abdul)
of Samabula, Truck-proprietor
Defendant

JUDGMENT MENT AFTER APPEAL

Judgment in this action after trial by this Court, was taken on appeal to the Fiji Court of Appeal which allowed the appeal and directed that the case be remitted to the Supreme Court for dismissal of the counterclaim with costs and for judgment with costs to be entered in favour of the plaintiff for such sum by way of damages as the Court finds to be proved.

In compliance with the Fiji Court of Appeal's directions the defendant's counterclaim against the plaintiff is dismissed with costs to the plaintiff.

On the question of damages, it was admitted by the defence that the plaintiff paid to the dependants of its deceased employee, Taitusi Kaunilagilagi, under the Workmen's Compensation Ordinance, the sum of $3000.50. This employee was killed in the accident involving the plaintiff's and the defendant's vehicles which accident was due to the defendant's negligence. This sum of $3000.50 paid by the plaintiff is loss arising out of the accident and I so find. I allow this sum by way of damages.

The plaintiff also claimed of $3388.29 for damages sustained to its vehicle. This sum was made up as follows:

Original cost of vehicle AM443 .............................$ 4112.45
Less depreciation at 20% per annum for 4 months...... 274.16
..............................................................................$ 3838.29
Less realised from sale of vehicle ................................450.00
..............................................................................$ 3388.29

Mr. Isaia Vakabua the plaintiff's accountant gave evidence about loss incurred as regards the damaged vehicle.

I am satisfied from his evidence that the vehicle purchased on the 7th November 1973 for $4034.45 and that registration of the vehicle cost $51 and the sum of $27 was paid for fitting safety belts. These sums total $4112.45.

The accident happened on 1st March 1974 roughly four months after the vehicle was purchased. Approximately one third of the annual licence had expired and the plaintiff's claim must be reduced by the one third of the $51 registration fees that is $17.

I also accept Vakabua's evidence that the wreck was sold for $450 and consider that 20% per annum depreciation for four months amounting to $274.16 is reasonable.

I find as a fact that the plaintiff suffered loss amounting to the sum of $3388.29 claimed less the deduction of $17 I have referred to above namely the sum of $3371.29 and this sum is allowed by way of damages.

The plaintiff at first claimed the sum of $330 for loss of use of the vehicle but at the hearing amended its claim by deleting this claim and substituting a claim of $829.75 for cartage charges incurred by the plaintiff as a result of the loss of use of the vehicle from 1st March 1974 to 13th April 1974.

Documentary evidence established that the plaintiff had paid the sum of $829.75 over the period alleged for hire of vehicles and cartage. Mr. Vakabua's evidence disclosed that the damaged vehicle was used for cartage around Suva from the date of purchase until it was involved in the accident. The receipts and vouchers produced indicated that some of the items related to cartage of produce out of Suva. Mr. Kapadia requested that three items totalling $113 referred to in one invoice be deleted from the claim.

In answer to a question from the Court Mr. Vakabua stated that the plaintiff's contracts with customers included cost of cartage. It follows from this admission that the plaintiff when selling and delivering produce takes into account the cost to the plaintiff of cartage and the contract price covers that cost.

As to what that cost would have been due to the plaintiff for the period covered by the invoices indicating the plaintiff had paid out $829.75 for cartage charges I am unable to determine. The only evidence given by Mr. Vakabua was that petrol for two vehicles for a month cost $200 and wages $50 There was no evidence to indicate on what basis the plaintiff charged customers for cartage by its own vehicles nor indeed whether customers contracts were for a period of time say one year or whether the contract arose on each order and delivery. If the latter conceivably the plaintiff could have adjusted the contract price to cover cartage by a cartage contractor.

It was for the plaintiff to establish what extra cost was involved in hiring vehicles instead of having its own vehicle available to deliver produce but did not do so.

There was in addition undue delay in my view in purchasing a replacement vehicle. Mr. Vakabua stated that it was not practical to call a meeting of the plaintiff Board after the 1st March 1974 any earlier than it did to get authority to purchase a replacement vehicle.

It was seven weeks after the accident that the replacement vehicle was obtained and the delay is said to be because the Board could not meet any earlier than it did. I see no reason why the Board members could not have been contacted by telephone or otherwise to get verbal approval to purchase another vehicle and for the Board later to formally approve the purchase.

I hold that the plaintiff has not established that it suffered any loss as regards the claim of $829.75 less the three items totalling $113, which I have referred to.

In the outcome the plaintiff has established loss totalling $6371.79 arising out of the accident which was caused by the defendant's negligence.

There will be judgment for the plaintiff on its claim for the sum of $6371.79 and costs.

R.G. Kermode
JUDGE

Suva,
9th September 1977.