Charan v Suva City Council [1995] FJSC 3; CBV0006.1994S (24 November 1995)

Fiji Islands - Charan v Suva City Council - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

AT SUVA

ON APPEAL FROM THE FIJI COURT OF APPEAL

CIVIL APPEAL NO. CBV 0006/94
(Fiji Court of Appeal Civil No. 3/92)

:

SURESH SUSHIL CHANDRA CHARAN
ANURADHA CHARAN
Appellants

AND:

SUVA CITY COUNCIL
Respondent

Coram: The The Hon. Sir Timoci Tuivaga, President
The Rt. Hon. Sir Robin Cooke
The Hon. Sir Anthony Mason

Hearing: 22 November 1995
Judgment: 24 November 1995

Counsel: Appellant in person
R. Gopal for Respondent

JUDGMENT OF THE COURT

This is an appeal from a judgment of the Court of Appeal (Sir Mari Kapi, Ward and Thompson JJ.) delivered on 24 May 1994 on appeal from a decision of Scott J. delivered on 3 January 1992. The parties had been lessor and lessees. On 29 June 1985 the defendant, now the respondent, caused distress to be levied by a bailiff on chattels on the demised premises, where the first plaintiff carried on a restaurant business, on the basis that rent was owing from December 1984 to 30 June 1985. It has become established that this distress was unlawful, as the defendant had given notice to quit expiring on 1 January 1985 and in the following month had commenced proceedings to recover vacant possession.

The High Court judgment in question was concerned with the assessment of damages. The judgment includes the following observations:

On 17 September 1985 judgment in default to defence was entered with damages to be assessed. The melancholy history of what thereafter ensued is fully set out in the Reasons for Decision published by Palmer J. on 3 February 1989 and need not here be repeated. Suffice it to say that in view of all that had occurred before and in an effort to reach some resolution of the dispute I decided to assess the damages myself. Hearings took place on 25 February 1991 and thereafter over some 10 days up to 28 August 1991.

A huge mass of material was placed before me by the 1st Plaintiff running into hundreds of pages. The 1st Plaintiff also gave evidence. Much of the material was repetitive unclear and confusing. I heard impassioned argument on every conceivable aspect of the matter including the number of servings of chicken curry that might be expected to be made out of a single bird. I took 109 pages of notes. But essentially the issue between the parties is the measure of damages to which the 1st Plaintiff is entitled as a result of the illegal distress.

It is apparent that the Court of Appeal experienced similar difficulties in dealing with the case, and the hearing in this Court followed a similar pattern. Scott J. awarded the plaintiffs a total of $14,461 and interest. The Court of Appeal added a further $2000 by increasing the Judge's award of exemplary damages from $1000 to $3000 (with interest). The main contention of the plaintiffs on the appeal to this Court is that they should have been awarded much more.

An application was made to us to admit affidavit evidence to amend part of the record of the evidence given in certain other proceedings in 1988, which record was put in evidence in the High Court in the present case. The figures sought to be amended were mentioned in the course of the Court of Appeal's judgment but were not mentioned by the High Court Judge when he made a finding that on the evidence before him he was not at all satisfied that the first plaintiff's business was in fact making $120 per day net profit or anywhere near that amount. There is no ground on which this Court could be justified in amending the 1988 record at this very late stage. The application must fail.

A wide range of matters have been canvassed by the first appellant in person in his written and oral submissions in this Court, but we have been unable to detect any significant error of fact or law on which the Supreme Court would properly interfere with the trial Judge's assessment, endorsed as it has been on review by the Court of Appeal subject only to the increase in the exemplary damages. If a clear and material error of law on the part of the Court of Appeal had been demonstrated, this Court could properly interfere, but it is often difficult to establish as much when an award of damages is in question; and the appellants fall far short of surmounting the difficulty.

Without of course treating the passage as a comprehensive statement of the relevant law, we regard as apposite to the present case the following words of Lord du Parcq in Monarch Shipping Co. Ltd v. A/B Karlshamns [1949] 1 All E.R. 1, 19:

"I do not doubt the wisdom of the judges who, in Hadley v. Baxendale (1854) 9 Exch. 341 and the many later cases which interpreted or explained that classic decision, have laid down rules or principles for the guidance of those whose duty it is, as judges or jurymen, to assess damages. When those rules or principles are applied, however, it is essential to remember what my noble and learned friend, Lord Wright, and Lord Haldane in the passage cited by him have emphasised - that in the end what has to be decided is a question of fact, and therefore, a question proper for a jury. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and not too rigidly applied. It was necessary to lay down principles lest juries should be persuaded to do injustice by imposing an undue, or perhaps, an inadequate, liability on a defendant. The court must be careful, however, to see that the principles laid down are never so narrowly interpreted as to prevent a jury, or judge of fact, from doing justice between the parties. So to use them would be to misuse them. It is interesting to find a judge of the experience of Wilde B., six years after Hadley v. Baxendale (supra) was decided, expressing a doubt which may well have been widely shared. He said in Gee v. Lancashire and Yorkshire Railway Co. [1860] EngR 1133; (1860) 6 H. & N. 211, 221:

"For my own part I think that, although an excellent attempt was made in Hadley v. Baxendale (supra) to lay down a rule on the subject, it will be found that the rule is not capable of meeting all cases; and when the matter comes to be further considered, it will probably turn out that there is no such thing as a rule, as to the legal measure of damages, applicable to all cases."

The observations of Lord Haldane to which reference has been made show the wisdom of this forecast."

We do not regard the wisdom of Lord du Parcq's observations as confined to Hadley v. Baxendale type cases. In this case we have no sense that any injustice has been done between the parties. The appeal is accordingly dismissed with costs.

Sir Timoci Tuivaga

Sir Robin Cooke

Sir Anthony Mason

Solicitors:

Office Solicitor, Suva City Council, Suva, for Respondent