Sooialo v Tuuu [2003] WSSC 19 (24 October 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

FEETAU LEMIGAO SOOIALO
of Vailima, c/- Beeper Electrical Limited, Electrician,
and ANA SOOIALO
of Vailima, Taxi Driver
Plaintiffs

AND:

MCKAY TUUU
of Vaimoso Mechanic
Defendant

Counsel: Mrs R Drake for the Plaintiffs
Mrs MVR Peteru for the Defendant

Hearing: 17 April 2003; 30 May 2003; 5 June 2003
Decision: 24 October 2003

DECISION OF VAAI J

The plaintiffs, a married couple are the registered owners of a 1981 motor vehicle which they operated as a taxi. In May 2002 the plaintiffs delivered their vehicle to the defendant to do certain panel beating works and to repaint the whole vehicle. Materials required for the repair and repainting totalling about $1,200.00 in costs were also provided by the plaintiffs together with a deposit of $200 for the labour costs.

In July the defendant issued the following invoice dated the 26^th July 2002 to the plaintiffs for payment by the 31^st July:

Fixing all things no good plus

(power and water) = $500.00

Painting = $400.00

Labour = $800.00

$1,700.00

Already used 200.00

Balance = $1,500.00

The plaintiffs objected and refused to pay the $1,500.00. They were prepared to pay $800 for the labour and nothing more and this message was relayed to the defendant when the first named plaintiff Mr Sooialo met with the defendant who on the other hand insisted the payment of his invoice. It was contended by the plaintiffs that since they have supplied at their own costs all the materials required for the repair and repaint works they should only therefore pay for the labour costs of the defendant.

But the defendant says he had to purchase extra materials to complete the necessary work on the vehicle as the materials given to him by the plaintiffs were not sufficient. He did on several occasions tried to contact the plaintiffs but was unsuccessful, so he went ahead and purchased the extra materials. He did admit he was given the plaintiffs home and mobile telephone numbers. He denied telling the plaintiffs when the car and materials were delivered that the materials were more than sufficient for the needed repairs.

But the invoice given by the defendant does not specify or mention which materials, if any, he did purchase. When he was asked to explain what is meant by fixing all things no good in his invoice he simply said he had no answer to the question. He did admit however that it was his wife who wrote the invoice and he did tell his wife what to write in the invoice. And when he was asked what he told his wife to write on the invoice he answered $800. The following questions were put to him under cross examination:

Question: Explain all things no good plus power and water?

Answer: For the use of power and use of tap.

Question: What about things no good?

Answer: I have no answer to that.

Question: Did you write up the invoice?

Answer: No my wife did. I told her what to write.

Question: So what do things no good mean?

Answer: I can’t answer.

Question: What about painting?

Answer: My wife wrote it down.

Question: What told wife to write on bill?

Answer: $800.

Question: What is $800 for?

Answer: Time spent on taxi.

Question: $800 is for total labour costs?

Answer: Yes.

Question: Why charged $1,500.00.

Answer: No answer.

Given the admission by the defendant that he was given the plaintiffs telephone numbers including the mobile number, I do not accept his evidence that he was unsuccessful in contacting the plaintiffs by phone when he wanted more materials. The simple fact is that he did not require and therefore did not purchase any materials for the work he did on the plaintiffs vehicle. When he did contact the plaintiffs as he admitted in his evidence in chief, it was to request the plaintiffs for monies ($400) for his wife’s trip to American Samoa. And the request was made before the invoice was issued.

As a result of my findings of facts the obvious conclusion is that, the defendant did not purchase any material for the purpose of repairing and repainting the plaintiffs vehicle and the only expenditure he can charge as originally agreed to with the plaintiffs is the labour costs which according to the invoice amounts to $800.

Since August 2002 when the defendant gave his invoice to the plaintiffs for payment, the plaintiffs negotiated unsuccessfully not only with the defendant but also with the defendant’s solicitor for the release of the plaintiff’s vehicle upon payment by the plaintiffs of the labour costs stated in the invoice, and for the balance of the invoice to be contested in court. But the defendant was adamant that he will only release the vehicle upon payment in full of his invoice, even when the plaintiffs increased their offer to payment of $1,000. As from the second week of September 2002 it appears from the documentary and oral evidence that the dialogue between the plaintiffs and the defendant ended.

The plaintiffs however say that while they were denied from operating their vehicle as a taxi, the defendant was seen on numerous occasions driving the said vehicle within and outside of the Apia town area with people inside the vehicle. It is suggested by the plaintiff’s evidence that the defendant was operating the vehicle as a taxi while the plaintiffs were being denied the benefit of earning an income from operating their taxi. The plaintiffs say that since March 2001 they have been operating the vehicle as a taxi and earning $80 nett per day. The vehicle sustained damage in March 2002 to the front right side when it brushed against a hedge causing dents to the front fender and front door. When the vehicle was taken to the defendant in May it had not been operating as a taxi since the March incident. Other than the repairs to the two dents caused by the March incident, the plaintiff requested the defendant to do other necessary panel beating to the body of the vehicle to facilitate the repainting of the whole vehicle. Since the plaintiffs were denied the use of their taxi they say they lost income of $80 per day. They accordingly claim $21,840 being loss of earnings of $80 per day from the 1^st August 2002 to the 30^th April 2003 when the vehicle was returned.

The defendant says he has a possessory lien over the vehicle until his claim for repairs has been satisfied and his invoice of $1,500 for labour and costs of materials supplied has not been paid. In law the defendant has a valid lien so long as his claim for repairs remains outstanding and the plaintiff does not dispute the existence of such a lien. But as the plaintiff (correctly in my view) points out the defendant has lost that lien for several reasons. In the first place the defendant as I have already ruled has claimed payment of an amount from the plaintiffs in excess of the amount due and owing when he claimed for the cost of materials which he did not purchase. In the second place since the defendant has specified in his invoice the cost of his labour and the plaintiffs have tendered payment of those costs upon the release of their vehicle, the defendant has terminated his right to retain the vehicle.

Because the defendant has unlawfully retained the plaintiff’s vehicle, the plaintiffs are entitled to be compensated for the loss of earnings from their vehicle. They say the vehicle was operated by one of the plaintiffs (Mrs Sooialo) and it brought in $80 clear per day so that their total loss of income from the 1^st August 2002 to the 30^th April 2003 is $21,840. Although I agree that the plaintiffs should be compensated for their loss of earnings I do not accept the quantum of their claim for their loss of earnings. In the first place the vehicle is a 1981 model and as such would be in constant need of repairs. In fact when the vehicle was given to the defendant for the needed repair and repaint work it had not been operated as a taxi since March. Indeed I accept it could not be operated as a taxi because it had no warrant and no licence to run as a taxi since warrants expire on the last day of March and September of each year; and with a vehicle of that make the plaintiffs would probably be struggling every six months to obtain a taxi licence; so that when the plaintiffs requested the defendant to do other panel beating works necessary to facilitate the repainting of the whole vehicle it reflects the condition of the vehicle and the need by the plaintiffs to obtain a current licence and warrant. And because of the make and condition of the vehicle it will be off the road from time to time for repair and maintenance. In the second place although the plaintiffs did say that one of them, namely Mrs Sooialo operated the taxi, they did call as a witness one Litara Toleafoa who testified that he did drive the taxi for the plaintiffs. It will mean therefore that the $80 clear per day which the plaintiffs say they earn excludes taxes, wages and other statutory deductions like National Provident Fund and Accident Compensation deductions.

It is generally accepted that there is no general or defined accounting formula or rule of thumb capable of universal application when determining loss of earnings of this kind but it is important to recognise that the correct answer will be found by attempting to assess the real loss to the plaintiff and a method of approach that is likely to be fair to both the plaintiff and the defendant.

A number of claims have come before this court for loss of earnings to taxi vehicles involved in accidents and the standard wages paid to drivers is 30 cents from every dollar earned. Using that as a guideline I consider it reasonable to deduct 50% for wages, tax and other statutory deductions. I make a further deduction of 15% to represent a figure when the vehicle is put off the road for periods of maintenance. I therefore allow loss of earnings of $6,644.00.

As to the defendants counterclaim for the unpaid invoice I have earlier ruled that the proper costs to be charged is $800.00 less $200.00 for the deposit paid by the plaintiffs. But as the defendant had admitted to using the plaintiff’s vehicle and considering the manner in which the plaintiff’s vehicle was detained by the defendant, the defendant should not benefit from his wrongdoing and the balance of his invoice of $600.00 shall be forfeited to the plaintiffs for the use of the vehicle.

Judgment is therefore given to the plaintiff in the sum of $6,644.00.

The plaintiff is also entitled to costs for both the claim and the Application for a Writ of Detinue. I fix costs for the plaintiff against the defendant of $1,800.00.

JUSTICE VAAI