Upon this statement of claim
this Court enter a default judgment for reasontated on the judgment
dated the 8th April 1999. Assessment of damages followed on
thereafter and judgment to the amount of VT3,610,236 Million was granted to
the plaintiff on the 1st July 1999. On the 14th March
2000 the Order of the 1st July 1999 was set-aside on application
by the defendant and the matter was then brought to trial.
Before the trial started the
plaintiff filed an amended statement of claim.
class="MsoNormal" style="mle="margin-top: 1; margin-bottom: 1">
Amendatement of Claim
On the 19th
September the Amended Statement of Claim was introduced by the plaintiff
which states out again the nature of negligent
as follows:-
1. &nsp; &
p; The air condiconditioner was not working.
2. Chassis alignment.
The right side of the chas chassis alignment was longer than the left side. The
right front lower arm mount was pulled
too far forward. The rail was not
pulled to its correct specification and 10 mm shorter on the right than to
the left.
3. The left front chassis rail
was damaged.
4.
/ Tpanenge e wan not not sitting square. The engine is sitting in engine
mount but is under tension.
lass=ormalle="m-left0pt; margin-top: 1; margin-bottom: 1">
p class="MsoNoMsoNormal" style="text-indent: -18.0pt; margin-left: 54.0pt; margin-top: 1; margin-bottom: 1">
5. &nbs; &nbbsp;&
p;
Tpan>The steering wheel was not centred.
cl
6.   &nbssp;&n p;
Tpan>There were no gap between the right front guard and the right sill.
7. ;&nbssp;
Tpan>The right front chassis rail and the inner guard show signs of
heating. Heating is a bited of sthengthening.
n lang="EN-GB" style="font-size: 12.0pt">
8. &nsp; &
9.ot;">
Wheel alignment.
The wheelbase measures 3-mm
diffe from the left to the right.
Admission
The defendant admitted that in
March 1997 the plaintiff deed to the defendant the Toye Toyota starlet Reg.
No. H345 and
the plaintiff gave instruction to the defendant mechanic to
carry out all necessary repairs including panel beating and to
restore the
vehicle to roadworthy condition. The defendant did carry out the necessary
repairs and replace parts in accordance
with the agreed quotation and upon
completion of works on instruction and return the said vehicle to the
plaintiff.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Issue
The defendant denied nent
act on his part for major steering defect, improper alignment, and failure
i in not examining
the vehicle before delivered to plaintiff.
Evidence
In Adam’s evidence, which I
accept that the vehicle was a rental vehfrom Avis Rent a Car. DurinDuring
the period of the
incident the vehicle was rented out to Elvis, who work for
Santo Meat. The vehicle hit a post at Asco Motors and the impact
area was
the right hand side of the vehicle. The front windscreen was cracked in the
middle, the front bumper was bent
backward as far as the wheels, and the
engine cover was cramp. In his opinion the vehicle may have hit hard
concrete.
On Adam’s learning of the accident he asked Deou Motors to tow the
vehicle to their garage, which they did.
In April he started to talk
with Deou Motors for quotation of the ve and later got the quotatiotation.
The quotation was
for VT639,290. He sent them a fax to Deou Motors to start
work on the vehicle, and sign that quotation authorizing Deou Motors
to do
the work on the vehicle. The parts listed were as follows: front windscreen,
1 windshield rubber, 1 front right
door, 1 front bumper, 1 front head lamp
R/hand, 1 front right signal lamp, 1 rim 143 x 13, 1 knickle arm, one
complete
shock absorbers, 1 inner short panel, 1 front finder R/H, 1 tire
all totalling the sum of VT409,270 for parts only.
In addition to these there were
also costs for workshop ials at VT30,000, painting, labour VT40,000,
Panel lael layout
VT80,000 and Mechanical labour VT30,000. In addition was
VT50,000 for engine repair. Total costs at VT639,270. The plaintiff
paid
this amount with two lots of payments on cheque drawn on Bank of Hawaii.
That vehicle H345 the owner was
Airtrade Vanuatu Limited, and the Managing Director ofrade (Vanuatu)
Limiteimited is George
Adams himself.
In September he inspected the
vehicle on completion of work est driven the vehicle with with the mechanic,
previously
employed by Deou Motors. On that test drive he experienced very
bad movement to the brake, clutch and air condition was not
working, and the
fan blower was making a lot of noise. He then wrote a letter dated 27th
September 1997 requiring those areas to be looked at and completed for him
and to be picked up the following week. He
followed up the 27th
September 1997 letter by his 30th September 1997 letter.
By his letter of 8th
October 1997 he made another inspection on the vehicle with the air blower
was rectified but the air condition was still
out.
Collection of vehicle
By this time George was
overseas and his wife, who was the Operation Manager collected the vehicle.
She was not
called to give evidence, however her letter, which I accept as
evidence in this case, written on the 21st November 1997 to Deou
Motors. On her letter she expresses that when she drove the vehicle on a
delivery run on the 26th October 1997, she could have caused two
accidents. She return the vehicle to Deou Motors on the 27th
October and was returned to her again the same day at 4.30 p.m. She then
test driven the vehicle and found the steering
when turn right it did not
come back but continue to turn in that direction. She took the vehicle to
Gerald De Gaillande
Garage for mechanical inspection and Gerald with his
friend identified fault that one side of the vehicle was shorter than
the
other side.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Gerald was not called to give
evidence, nevertheless, the problem was identified which Adams can rely on
for Deou Motors
to find the fault on inspection and explain to him.
Thereafter, Adams explained to
Deou Motors of toblem. Then a meeting was convening in Henry Ouchida
office and he
explained to them the problem. He suggested that Deou Motors
would have to find a new chassis and not to put in a steel bar.
Chris, a
mechanic who was present at that time suggested that Adams could find a
chassis, which Adams say he will try.
Even Adam was asked to find a new
chassis possibly in Fiji. Adam did not find one and that's where the matter
ends.
In that meeting there was no
clear ment reached by the parties what to be done to the chassis.ssis. In
cross examination
Adam admitted that the chassis was not part of the
original agreement that he sign but stated that if there were any damage
to
the front of a vehicle in an accident than Deou Motors should straighten up
the chassis.
I find that all parties were
some how were aware the chassis was not in order and the vehicle
required ired a new chassis
or a good second hand one to rectify the problem.
However, if there were any agreement reached by the parties then it did not
came to be any agreement reached for new quotation for new work to be done
for continue repair of the chassis. Nevertheless,
Adams did not want any
steel bar to be put in. On Adams' letter of the 27th of September
he expressed that he was satisfied that all work carried out satisfactorily
except the air conditioning
which was not part of the work paid for as per
quotation.
/b>
The twist came about when
Maggie Adams tested the vehicl discovered that the wheelsheels did not come
back to the centre
when the vehicle was turned to the right. When this
occurred, Adams brought in a specialist, John Greacen from New Zealand
to do
structural inspection of the said vehicle and inspected the chassis of the
vehicle, H345 and also gave evidence
in this matter.
I accept John Greacen as an
e in structural parts of the vehicle. He conducted inspectioection on the
vehicle between
the 25th August to 30th August 2000.
And his report of the 20th September 2000 outlines his finding in
that report.
He reported that from that
accident the vehicle had extensive structural damages to the front of the
vehicle. For the
chassis finding, I accept that the front right hand of the
chassis was shorter than the left-hand side by 5 centimetre. By
this
shortening it affected the lining of the chassis and also the wheels
alignment. Alignment here is what I understand
to be the perfect lining of
any component of a vehicle on factory production, tested and authorized for
usage. If the
alignments are affected one way or the other then surely it
will affect the outcome performance. I find that the chassis was
not aligned
to correspond to its actual factory structural position on production after
the accident.
He test driven the vehicle and
when the vehicle was turn to the left the wheels will return back to the
centre and that
was proper, but when the wheels were turned to the right
they could not come back to the centre. He noticed also that, the
front
wheels showed out rather than in straight line.
Basically his report was over
the chassis alignmen wheel alignment as part of structural damages. I
acc accept from his
evidence that the chassis of the said vehicle was not
properly aligned to factory standard and affected the wheel base lining
causing the front wheel to show out and the right side shorter than the left
side, making the wheels when turn to right
they cannot come back on their
own to the centre. This confirms what Maggie experienced where she almost
causes two accidents
and corresponds to Garage de Gaillande findings on
shortening of one side of the vehicle.
The other area of finding was
over heating. In heating, ept that the right front chassis and the
inner guard uard were
heated or welded, which should not have been done, but
parts or new or good second hand parts should have been placed in instead
of
welding, which means that the right chassis rail, the right inner guard, the
suspension tower and the engine mount
should all have been replaced. All
these were not part of the actual agreement as per quotation. If this was
the case
then the plaintiff should pay additional money to the defendant for
such additional work apart from the agreed quotation. Further,
the alignment
was not properly aligned and the bolting positions were also affected making
bolting cannot be done and
welding was the only cause taken by the defendant
in rectifying the shortening problem. I find that the defendant did their
best to rectify the shortening problem as complained about by the plaintiff
in restoring the vehicle to a roadworthy
condition. However, on John's
evidence this did not conform to Toyota manual requirement, which only need
new parts or
writ off the vehicle and made the vehicle still not road
worthy.
I accept from John's evidence
that Toyota prohibit heating in high strengtheninel. In that heating
p process the crush
zone was also removed. Crush zone places an important part
if there is collision. That is crush zone part fitted in the car
is for the
protection of car users when there is a collision and it is built into the
right hand chassis and the inner
guard. I find the modification done by the
defendant was not done in accordance with Toyota manual requirements of
which
new parts have to be fitted in including a new chassis requiring new
quotation for payment of those new parts and chassis.
Lastly which I accept that
there was a home made cross membr that was made from angle ngle iron bottled
to the left and
right chassis rails. Clearly Adams was against fitting in of
steel bar but for total replacement of the chassis. Again this
was not
allowed with Toyota manual to be done. Furthermore, it was not a Toyota
part. Because of these additional works
done it alters the required
specification of the chassis alignment and affected the general lining of
the said vehicle.
From the evidence of John Greacen I find that there were
substantial repairs beyond what was quoted pursuant to their agreement
as
per quote and I find this was resulted to Adams complaint over shorten of
the right side of the said vehicle and those
were beyond what was required
of the defendant to perform pursuant to that agreement. And that is evidence
of the fact
that the defendant did what best he can do in rectifying the
problems, but not in accordance with Toyota manual repair.
These were the conclusions
re by John Greacen:-
1. &nbbsp;
The saidcvehicle damage could only be rectified and made safe for use
if the guide line e repair manual for Toyota was followed
on repairing
the vehicle (which required new new Toyota parts) or;
2.
The othtr altirnative was to writ off the vehicle.
lass="Mso="Mso="MsoNormaNormal" stl" style="yle="margimargin-top: 1; margin-bottom: 1">
With these conclusions, for the
vehicle to be on the road again, total new parts have to be paid for,
including a new
chassis and to be fitted in, to rectifying the structural
damages arising from that accident by using Toyota parts in accordance
with
Toyota manual. This means, the plaintiff is to pay for those additional
parts requiring new quotations and further
if a new chassis was put in to
replace the damage one could solve a lot of those problems, as the vehicle
sustained extensive
structural damage on that impact.
Agreement
I find that the only agreement
reached by both parties was upon the said quotation and that was for
specific works as
per quotation, however for chassis replacement there were
no specific agreement reached and accepted by both parties and additional
parts. If there were, then it requires additional costs, which the plaintiff
has to authorize just like the quotation.
As this was not the case than
there was no agreement reached for those additional works and repair.
Negligent
Particulars of negligent
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The particulars of negligent
from paragraph (a) to (i) be not contractuligation reached by the
e
parties as per quotation.
The word to bring it to roadworthy condition was
quite more then the quotation itself which means that if additional work to
be done then additional parts has to be paid for. The amount of VT639,270
paid for was for specific work to be done as
per agreement or quotation.
However, if the amount was a deposit to get the vehicle up to roadworthy
then the defendant
will be contractually responsible to pay for additional
parts and the plaintiff to pay the balance.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Plaintiff's counsel submitted
two cases in support of the type of neglias he referred to:-
1.
Stennett -v- Hancock C [1932] A. C. 562.
In the above case the owner of
the said vehicle instructe motor repairer to re-assemble his wheel
again after fter it
came off. In which he did, and when it was used the same
wheel came off and injured the female person. It was held in this
contractual negligent that the repairer was held liable to the female person
who suffered injuries to the repairer negligent.
lass="MsoNoMsoNormal" style="text-indent: -18.0pt; margin-left: 54.0pt; margin-top: 1; margin-bottom: 1">
2n style="font:7.0pt "Times New Roman""> &nbs; &nbbsp;&
p;
Hpan>Herschfol -v- Stewart Anden Ltd. [1940] I. K. Y. 155.
cl
This case where the supplier of
re-conditioned vehicle who sold vehicle to the plaintiff and when the
plaintiff used the
vehicle and a wheel came off and he was injured. It was
held that the defendant owes a duty to the plaintiff to take reasonable
care, that the car, which was intended, or they knew for his immediate use,
should be in a safe condition and that they
were liable for negligent. The
Court went ahead and ruled that the principle in Dangue -v- Stevenson
[1972] A. C. 562; applies not only to manufacturers, but also to
suppliers on repair of goods.
The plaintiff advances that the
defendant owes a duty of care to the plaintiff and the defendant breached
that duty. In
applying the principle in the above cases to this case the
defendant had the duty to repair the vehicle in accordance with
contract as
per quotation and any negligent arises from such duties the defendant will
be liable. Hakwa advances that
most of the things that Adams and John
Greacen complained of were matters not agreed upon for the defendant to do.
He
advances that the defendant performed his duties in repairing the vehicle
in accordance with the quotation and brought that
vehicle into roadworthy
condition. He advances too that they called Raymond Vallette and gave
evidence to prove that
the vehicle was road worthy at that time accept some
disability in the right turning which need adjustable. Raymond’s letter
of
inspection the vehicle was restored to roadworthy condition at that time,
and before Mr. Greacen structural inspection.
This was sufficient for the
defendant to rely upon for the purpose of the legal requirement of section
32 of the Road
Traffic Control Act. Section 32 states:
"A condition in which the
le or any other parts there off does not constitute a dangedanger or could
caused danger."
By operation of Sect2 the
finding by John Greacen, after the vehicle was return to the plaintiff, will
ll
amount to
the vehicle as not road worthy for reasons of shortening. If this
was the case than the plaintiff should have authorize the
defendant’s to
attend to it and for new parts to be put in including, a new chassis as
previously discussed which required
new quotations to rectify the problems.
Otherwise, the act of negligent cannot be attached to the act of the
defendant,
as the duty he performed was in accordance with the quotation,
which he completed.
I find that the only course for
the tiff to take was for him to take his vehicle and put it in t in another
garage to
rectify the problem or authorized the defendant to rectify the
problem with new quotations to be agreed upon by the plaintiff
or for the
plaintiff to buy a new chassis or otherwise writ off as concluded by John
Greacen. To be writ off in John’s
conclusion, in my view amount to the
vehicle was not worthy to be on the road. As it stands it continue to be not
roadworthy.
The buying of a new chassis and additional parts cannot be
passed on to the defendant.
The important of having another
contract for a nessis and additional parts was that, when the plaintiff
fails to
pay for the extra costs and labour then there will be a basis for
the defendant to exercise his right to recover his money.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Hakwa advances that the
plaintiff has not red any damages at all. On this advancement the
evideevidence shows that there
were no physical damage suffered as a result to
the work done as per quotation apart from loss of hiring, replacement and
refund.
The vehicle was four years
and sustained heavy structural damages on the front right side. What Mr.
Greacereacen arrived
at which I find to be a proper conclusion that new parts to
be put in including a new chassis or writ off. This indicated that
the
vehicle was quite extensively damaged and as such it is not easy to repair
structural damages to factory specification.
In my view if a new chassis or
a good second hand chassis was put in to replace the damaged chassis and
additional new
parts were put in, the lining would have come to order and
would solve the problem for other components to correspond making
lining
more perfect to factory standard.
clas class="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Return of VT639,279
On this cthe defendant
completed the repair as per quotation except for the shock absorber, whr, which
was discovered
by Greacen on structural inspection. There was no reason why
the defendant was not entitled to be paid for costs of parts and
labour and
for the defendant to replace a new shock absorber as per quotation. No
evidence to show that he refuses to
replace if asked to replace and he must
replace.
Loss of hiring
The vehicle was completed and
the piff was at liberty to pick up the vehicle. If works were nore not
completed pursuant
to the quotation then the plaintiff had all the right to
return the vehicle for completion for repairs according to the quotation.
The shock absorber replacement cannot be used for not taking the vehicle, as
that was only discovered at the time of
structural inspection.
Fose reasons the case is
dismissed with costs to the defendant to be taxed if not agreeagreed.
Dated at Port Vila, this 9th
day of February 2001.
p>
R. MARUM MBE
JUDGE
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