Timi v Takiro [2003] KIHC 260; Civil Case 57 of 2002 (16 October 2003)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

HIGH COURT CIVIL CASE 57 OF 2002

BETWEEN:

TERETIA TIMI
PLAINTIFF

AND:

TEBUTI TAKIRO
DEFENDANT

FOR THE PLAINTIFF: MR BANUERA BERINA
FOR THE DEFENDANT: MS JACQUELINE HUSTON

DATE OF HEARING: 16 OCTOBER 2003

REASONS FOR ASSESSMENT OF DAMAGES

On 21 July this year I gave judgment for the plaintiff on liability.

On re-reading my Reasons I notice one error on page four. In the second to last paragraph, in brackets I say "(although she did not have taken away all the cement bricks nor any of the foundation)". This should read "(although she did not take away all the cement bricks nor any of the foundation)".

I have now heard evidence on the assessment of damages.

Paragraph 8 of the Statement of Claim:-

As a result of the destruction of the retail store by the Defendant the Plaintiff had suffered loss and damage in that she had lost out on the value of the building and her future income from the rental of the building.

Mr Berina led evidence only on the value of the building: no evidence on toss of future income. Accordingly the only damages of which I have evidence are on value of the building and the assessment is limited to that alone.

Mr Berina called Mr Kirikori Taake who has been in the building business since 1980. He built the store. Two months ago, from his recollection, from a plan of the building and from checking prices of materials with Kiribati Supplies Company, Kirikori prepared a list of materials used and labour expended, over 30 days, in building the store. The cost of the material he put at $4,907.20 and the labour at $4,443.30: a total cost of $9,350.50.

I accept Kirikori as a truthful and reliable witness. Ms Huston cross-examined him vigorously and at some length on various items but I accept the list prepared as substantially accurate.

I reminded counsel several times during the hearing that in an assessment of this kind, it is seldom that one can be precise. To use the well-worn, hackneyed perhaps, phrase, it is for the Court to "wield the broad axe".

The defendant gave evidence. She paid for the building. She withdrew $5,000 from her bank account and used "$4,000 something for materials". She said she had paid Kirikori (described in his own list as "leading hand") $40 per day. The labouring work (which Kirikori allowed $1.50 per hour) the defendant said was done by family members: apparently she gave them meals and clothes - she runs a secondhand clothing business - but paid them at no fixed rate. However and whatever they were paid the labourers were still, by their labour, adding value to the building. The only evidence is that of a going rate of $1.50 per hour. Kirikori in his list allows for eight casual labourers: the defendant said there were six to seven.

Kirikori estimated that the building took 30 days. The defendant put it at "more than a month".

In three respects the defendant confirms Kirikori's calculations - the cost of materials, the payment of Kirikori as leading hand and the time taken to build. I feel able to accept Kirikori's list as substantially accurate although I cannot follow the arithmetical calculations of the cost of labour. Kirikori allows "eight casual labourers $1.50 hrs in 30 days x $12 - $2,880". Assuming the "$12" is really 12 hours per day - I can think of no other significance of the "$12" and there is no mention of how many hours per day were worked - the total on my calculations is $4,320.

As I have said, I do take the list as precisely accurate but I use it as a starting point.

Mr Berina conceded that the foundations and some other bits and pieces were left when the store was pulled down. They could be used again. To assess the plaintiff's loss, the value of what is left should be deducted from the total value of the building.

As well, the store had been used for nine months. It was new but not completely new and some allowance should be made for depreciation.

Kirikori has the cost of 45 bags of cement, two truck loads of gravel and two truck loads of sand at $1390.00: the materials for the foundations, floor and brick laying. An allowance must be made for labour. There is no evidence but from my scanty knowledge and observations over a long time the labour in laying foundations and floor and bricklaying would have been a big part of the total labour cost.

My calculations are:-
Cost of labour and materials	$9,000.00
Less deductions for cost of materials and
labour for the foundation, floor and
Bricklaying	$4,000.00
Less allowance for depreciation	$500.00
	$4,500.00

That is an assessment based on the cost of the store less the cost of what is left and of what the plaintiff may make use - if she wishes. There was no evidence of that. The plaintiff may not wish to make any use of it: what is left may be of no use to her. I take that contingency into account in coming to my final assessment.

I have no other measure of value than the costs I have set out.

I assess damages at $5,000.

There will be judgment for the plaintiff for $5,000.

Dated the 20th day of October 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice