Shoreline Power Ltd v Vakasiuola [2003] TOSC 31; AM 016 2003 (2 July 2003)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU’ALOFA REGISTRY

NO. AM.16/03

BETWEEN:

SHORELINE POWER LIMITED
Appellant

AND:

KELEPI VAKASIUOLA
Respondent

BEFORE THE HON JUSTICE FORD

Counsel: Mrs Vaihu for the appellant and
Mr Fakahua for the respondent.

Date of hearing: 1 July 2003.
Date of judgment: 2 July 2003.

JUDGMENT

The appellant appeals against a judgment given in the Magistrates' Court at Mua on 12 March 2003.

The facts, briefly stated, are that the records of the appellant power company wrongly showed that the respondent had failed to pay his current electricity account and so on 7 October 2002 the supply of electricity to the workshop on his tax allotment was disconnected. On that same day the respondent was proposing to weld a gate to the fence of his cow paddock. When he found out that the power had been disconnected, he was put to the inconvenience of having to abandon his gate welding plans and arrange instead for the erection of a temporary barrier in place of the gate.

The respondent had, in fact, paid his electricity account on 26 September 2002. He contacted Shoreline and explained the position to the receptionist. He telephoned her back later in the day and she advised that the company records showed that no payment had been made. He then instructed his solicitor who wrote to Shoreline on 8 October 2002 advising that the account had been paid and demanding, not only reconnection of the electricity supply, but also compensation in the sum of $500.

Electricity was duly restored to the workshop on 8 October after receipt of the solicitor's letter but the respondent did not find out that it had been reconnected until two days later.

After considering all the evidence, the magistrate upheld the respondent's claim awarding him $150 damages and costs of $200 together with court fees of $21.

Although the appeal is against the magistrate's findings on both liability and quantum, Mrs Vaihu, very properly, conceded during the hearing that the appeal on liability could not be sustained. Counsel accepted that a duty of care was owed by the appellant to the respondent in both tort and contract. If a plaintiff can establish his cause of action in tort without recourse to a contract then the action is one in tort, even though there may be a contract in which a duty of care is implied -- Halsbury 4th edition, Vol 12, para 1172.

Liability for damages in tort is based on the concept of foresee ability. Counsel for the appellant accepted, again quite properly in my view, that the consequences of the appellant's negligence, of which the respondent complains, were foreseeable in terms of the established tests but she takes issue with the figure awarded of $150 and claims that it was excessive.

On an appeal from a decision of the Magistrates' Court against the quantum of an award of damages, it is not sufficient if this Court may have awarded a different sum. The award will not be varied unless it is clear that the magistrate has acted upon some wrong principle of law, misapprehended the facts or fixed a total award which is a wholly erroneous estimate.

Applying these principles to the facts of the present case, I am unable to conclude that the magistrate's award of $150 was radically wrong and the appeal on quantum is, therefore, dismissed.

The costs award of $200, at first glance, does seem to be significant but it was explained from the Bar that the appellant initially had a different counsel acting and she had sought and obtained three adjournments of the case before the hearing finally took place. On each occasion, counsel for the respondent had to travel to Mua for the abortive hearing. In those circumstances, the award of costs seems entirely reasonable and the appeal on that ground is also dismissed.

The respondent is entitled to costs on this appeal to be agreed or taxed.

NUKU'ALOFA: 2 JULY 2003.

JUDGE