Kaiea v Attorney General iro Ministry of Linnix - Judgment [2005] KIHC 72; 34-04 (13 October 2005)

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

High Court Civil Case No. 34 of 2004

Between:

MANRAOI KAIEA
Plaintiff

And:

ATTORNEY GENERAL (IRO MINISTRY OF LINNIX)
Respondent

For the Plaintiff: Mr Banuera Berina
For the Respondent: Ms Pauline Beiatau

Date of Hearing: 10 October 2005

JUDGMENT

The plaintiff was the Minister for the Line & Phoenix Islands Development at the time and remained so until the Government lost office in March 2003. He was also, in his private capacity, the owner of a fishing boat. The specifications of the boat are not in evidence but paragraph 1 of the second Amended Statement of Claim alleges it to be “a 16-foot wooden boat ....... powered by a 40 hp outboard engine ......... used for commercial fishing.” Although not admitted in the Defence, my impression from the evidence is that this is an accurate description.

Some time in 2002 the Ministry of Linnix needed a boat for use by a watchman on MV Quanjing, under repair at the wharf in Betio. The plaintiff agreed that the Ministry should have the use of his boat at $70 per day until the repairs to Quanjing were completed. It was an oral agreement between the plaintiff and some officer (probably the Permanent Secretary) of the Ministry. I shall, for brevity, refer to “the defendant”.

The boat was used by the watchman and the plaintiff was paid at the rate of $70 per day until it was so severely damaged that it could no longer be used. The defendant took it to the Shipyard for repair and used another boat instead. At the time the boat was damaged it was in the custody and under the control of the defendant. Until last Monday, the day set for hearing, the defendant has denied liability. Finally as the hearing was to begin Ms Beiatau accepted liability. All I need do is assess damages.

The plaintiff gave evidence. He was the only witness. The defendant did not call evidence. I accept as accurate on the balance of probabilities what the plaintiff told me.

The Shipyard charged $1,758.60 for repairs. When repairs were completed the plaintiff went to take possession of the boat. Shipyard refused to release it until the bill was paid. The plaintiff has not had the money to pay for it. The defendant has refused to pay. The boat is still at the Shipyard.

Ms Beiatau cross examined the plaintiff as to his ability to find the money. The plaintiff owes the Development Bank of Kiribati over $50,000. He owns a bakery which is struggling financially and another business, Temakin Engineering. I find on the balance of probabilities that the plaintiff did not, has not been able to find the money, to pay.

Why should he have to pay? The defendant, it seems, wrongly regarded the agreement to hire the boat as at an end once it had been damaged. The agreement was that the defendant should have the boat until repairs to Quanjing were complete. They still had not been finished when the Government went out of office in March 2003 and the project to repair Quanjing was abandoned. A term of the contract for the hire of the boat may be implied that it be returned in good condition. The defendant was under an obligation for the boat to the plaintiff until March 2003 and thereafter to return it to him in good condition.

The plaintiff was in a somewhat delicate position. In his private capacity he was the owner of the boat. In his public capacity he was the responsible Minister. The plaintiff chose not to use his authority to oblige payment for the repairs. He left the matter in the hands of the Permanent Secretary. The plaintiff is not to be blamed or penalized for making that choice.

Before hiring it to the defendant the boat had been used for fishing. The plaintiff said it had brought in, on average, $50 per day, six days a week.

Ms Beiatau in her submissions emphasized the duty of a plaintiff to minimize his loss. She argued that the plaintiff should have found the money from somewhere to pay the Shipyard. The onus was on her client to shew that the plaintiff could have and should have mitigated his loss. Despite her cross examination of the plaintiff and in the absence of any other evidence to the contrary I have concluded that the defendant has not discharged that onus.

The duty to mitigate loss rests not only on a plaintiff. Each case depends on its own facts but as a rule all parties, be they plaintiff or defendant, owner or hirer, a ministry or a private person, has a duty to mitigate. In this case the defendant had not only a duty to mitigate but a duty by law to pay for the repairs to the boat damaged while in its custody and under its control.

Neither plaintiff nor defendant has had the use of the boat from the day it was damaged until now.

The plaintiff must be recompensed. He is entitled to $70 per day from the last payment to him which he said was in August 2002 until the project of repairing Quanjing was abandoned. The exact day in August is not given but I shall assume he was paid until the end of August 2002. Likewise the date the Quanjing project was abandoned, unfinished, was some time in March 2003. I shall use the 15^th March - halfway through the month – as the cut off date. On my calculations that is just over 27 weeks. At $70 per day ($490 per week) that comes to just over $13,230. I assess damages for the rest of the contract period at $13,230. I can see no reason to deduct anything for contingencies.

Had the boat been available to the plaintiff since then he could have used it for fishing. I have no figures but his own upon which to base calculations. I use $50 per day for six days - $300 per week. The period is two years and seven months. That comes to $39,600. That figure should be discounted for contingencies – bad weather so that the boat did not go out, deciding to have a day off from fishing, damage to the boat needing repair for some time and so on. I allow $20,000 for loss of use since mid March 2003 until the present.

From 1^st September 2002-15^th March 2003 $13,230

From 15^th March 2003-13^th October 2005 $20,000

TOTAL $33,230

Finally the Shipyard must be paid: add $1,758. Grand total $34,988.60.

I shall invite counsel to check my arithmetical calculations before making an order.

Dated the 13^th day of October 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice