Frank v Tasso [2004] VUCA 5; Civil Appeal Case 02 of 2004 (9 June 2004)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 02 of 2004.

BETWEEN:

DANIEL FRANK
TERRA DAVID
SAM WILLIE
PETER MANSEN
Appellants

AND:

WILFRED TASSO
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver Saksak
Hon. Justice Hamlison Bulu

Counsel: Mr. Stephen Joel for the Appellants
Mr. George F. Boar for the Respondent

Date of Hearing: 4th June 2004.
Date of Judgment: 9th June 2004.

JUDGMENT

This is an appeal against a judgment delivered by Justice Treston on 19^th February 2004 when his Honour assessed damages as follows:-

(a) First, against Daniel Frank and Terra David for an injury to the respondent’s arm in the sum of VT256,750.

(b) Secondly against Terra David, Sam Willie and Peter Mansen in relation to damage to the stock and business of the respondent, in the sum of VT265,900.

On this appeal, the Appellants contend that:-

1. Treston J. erred in including Terra David as an assailant with Daniel Frank causing injury to the respondent and/or was alternatively wrong in ordering that they be equally responsible.
   
2. Treston J. erred in assessing damages for loss of stock and business in the sum of VT265,900 when there was no evidence before the Court to support the award.
   

The brief history of the matter was that on 25^th February 2002 the respondent filed a Writ of Summons and Statement of Claim under the old rules claiming damages for assault and trespass to his person in 24 November 2001 in the sum of VT3,500,000. In the same proceedings the respondent claimed damages for loss to his business in the sum of VT1,000,000 arising from an incident in (sic) November 2002.

In relation to the so called November 2002 incident the appellants Terra David, Sam Willie and Peter Mansen filed responses denying the claim for loss to the respondent’s business but admitting responsibility for temporarily disconnecting the electricity supply to the respondent’s house and denying him access by digging a hole on the road leading to the respondent’s business.

The appellant Daniel Frank filed a defence and counterclaim but it was struck out as a result of failure to comply with the directions of the Court. The Orders were issued on 24^th July 2002, 26^th August 2002 and 5^th June 2003. In the result both matters proceeded to hearing for assessment of damages only.

Quantum was assessed on the basis of sworn statements of the respondent dated 13^th August 2003, 5^th September 2003 and 21^st January 2004, and sworn statements of the appellants dated 16^th June 2003.

Counsel for the appellants clarified for this Court that in respect of the first ground of appeal the appellants were not challenging the quantum but rather the apportionment of the damages between the Daniel Frank and Terra David. In the Supreme Court no submissions were made by counsel about apportionment between them, and there was no pleading between them seeking apportionment.

In the respondent’s pleadings dated 25^th February 2002 he claimed jointly and severally against both Daniel Frank and Terra David alleging that they acted in a concerted enterprise as joint tortfeasors.

The appellants contend that in these circumstances the Judge should have held both appellants liable for the full amount of the damages jointly and severally. There was no occasion to specify what amount either of the appellants should pay and on the pleadings that should have been left to Daniel Frank and Terra David to sort out between themselves. We agree.

We have reviewed the calculations of the assessing judge and discovered that the sum of VT250,750 awarded against Daniel Frank and Terra David is incorrect. In accordance with the Judge’s reasoning the sum should be VT253,375 made up as follow:-

Full assessment of damages for injury VT500,000

Costs of two x-rays VT6,750

VT506,750

Reduced by one half for reasons given by trial judge VT253,375

VT253,375

The appellants Daniel Frank and Terra David informed the Court that they only sought the setting aside of the apportionment order between them, and entry of a judgment against them both for VT253,375. The respondent accepted those variations, and there will be an order accordingly.

On the second limb of the appeal, Mr. Joel first submitted that this Court should consider a letter dated 4 February 2004 written by Mr. Mark Traverso on behalf of Boucherie Traverso.

That letter was obtained by the appellants the day after the hearing before Treston J., and was immediately sent to the Registrar. It suggested there was doubt about the accuracy of an invoice tendered in evidence at trial. Counsel for the appellants contends that Treston J. should have taken the letter into account and disregarded the invoice tendered in evidence. We are not persuaded by that argument. No application was made after trial to reopen the case and call further evidence. The letter was never made part of the evidence.

In any event the evidentiary value of the letter is uncertain and it is not clear that it positively asserts that the appellants never purchased any stock from Boucherie Traverso.

Secondly Mr. Joel submitted that there was no evidence by the respondent to support an award of VT200,000 as Treston J. specifically held that no loss of profits had been proved. Mr. Joel further submitted that the only sum that was proved was the amount of VT65,900 awarded for lost stock. We are satisfied that there was no evidence to support an award of VT200,000 over and above lost stock.

Regarding the sum of VT65,900 that was awarded for lost stock, we accept that there was an arithmetical mistake and the correct amount to have been awarded was VT68,900 made up of the sums appearing in Annexure WT2 to the respondent’s affidavit, being a letter dated 16^th June 2003, indicated by ticks. It excluded the costs of ice-cream, fish, mixed juices and electricity charges, but included VT20,000 as costs of vegetables.

The only other head of damage in the pleadings was for “loss by way of non-usage of the driveway” and both counsel agreed this was not established.

This appeal needs to be allowed on this aspect, and the judgment against the three appellants namely Terra David, Sam Willie and Peter Mansen reduced to VT68,900. They are each jointly and severally liable for this sum.

On the question of costs, we think the most efficient way of concluding the proceedings between the parties is to set aside the order for costs of the trial made in the Court below in favour of the respondents, and fix one lump sum that reflects on the one hand that the respondent has succeeded to some extent on his claims but for amounts much less than he claimed and on the other hand that the appellants have succeeded to some extent on the appeal. We fix a lump sum that takes into account both the respondents disbursements and VAT. The lump sum will be VT160,000 in favour of the respondent, apportioned broadly between the two limbs of the proceedings according to the amounts of the judgments. On the first limb costs in favour of the respondent for VT120,000 and on the second limb VT40,000.

Accordingly we make the following Orders:-

1. Appeal allowed.
   
2. The judgment in favour of the respondent against the appellants Daniel Frank and Terra David is set aside and in lieu judgment is entered in favour of the respondent jointly and severally against Daniel Frank and Terra David for VT253,375.
   
3. The judgment in favour of the respondent against Terra David, Sam Willie and Peter Mansen is varied by reducing the sum awarded to VT68,900.
   
4. The orders for costs in the Supreme Court are vacated.
   
5. The costs of these proceedings including the trial and this appeal are fixed at a lump sum of VT160,000 which sum is awarded as to VT120,000 against the appellants Daniel Frank and Terra David, and as to VT40,000 against Terra David, Sam Willie and Peter Mansen.
   

DATED at Port Vila, this 9^th day of June 2004.

BY THE COURT

Hon. Vincent Lunabek CJ.
Hon. Bruce Robertson J.
Hon. John von Doussa
Hon. Daniel Fatiaki J.
Hon. Oliver Saksak J.
Hon. Hamlison Bulu J.