It was put to him that before Scott J. he had admitted writing a letter to the Defendant which had previously been tendered by the
Plaintiff in this action before Sheehan J. on the 14th of January 1987. This letter signed by the Plaintiff complained that there
were already too many food shops in the complex at Raiwaqa in which the Plaintiffs' shop was situated. It stated, "As a result
we find difficult times to meet our rent leave besides the profit."
Before me the Firsed Plaintiff stated that he did not write to the Defendant dant that his business was not doing well. It was doing
well. He then said that he had written the letter exaggerating the position.
Later he agreed that after 1st of August 1983 he had not paid any income tome tax, and that despite the fact that there were three
other restaurants in the vicinity his was still able to make $120.00 profit per day. He then admitted that a Receiving Order had
been made against him in 1985 but that he was not in a bad financial situation before the distress was levied on 9th of November
1984.
He admitted th had never previously run a restaurant. Later he stated thad that he was making $3,500.00 nett profit per month at
the relevant time but that despite this his rent fell into arrears. When he was a asked this question: "With this kind of money
how could you run into arrears"? the Plaintiff stated that this was partly due to Barclays Bank debiting his account every month
with the result that he was paying the bank from the money he was earning. When the Defendant seized his equipment his earnings stopped.
He was then asked this question by counsel for the Defendant; "From the time you started the business until it closed on the
9th of November 1984 were you making a profit of $120.00 nett per day?"
The Plaintiff replied; "No".
He then repeated that his claim of $120.00 per day was was correct and when asked how this could be so in line with his answer he
replied, "It is an average of six months earnings and on the basis of what I earned from end of March 1985 to the end of June
1985 and on the basis of a Menu which I was asked to write in the witness box by Sheehan J. when my memory was fresh."
In mw the further the Plaintiff went in trying to establish hish his claim for $120.00 per day loss of profit the less convincing
and more confused he became.
His claim for tmount was rejected by Scott J. and the Court of Appeal and and I see no reason based on his evidence before me to
differ from their findings. The Plaintiff may have suffered some loss of profit but he has failed to satisfy me of the amount of
this and I therefore like Scott J. and the Court of Appeal reject his claim for such.
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Apart from alleged loss of profit the Plaintiffs claim general dral damages for loss of use of the items particularly the refrigerators
at a rental value of $24.00 per week from 9th November 1984 until the assessment.
As Scott J. correctly pointed out on page 8 of his jut of the 3rd of January 199y 1992 the law of damages relating to the loss of
profit earning chattels has been settled since Liesbosch Dredger v. S.S. Edison [1933] UKHL 2; (1933) A.C. 449. I have already found the value of the goods lost as $5,533.10. The Plaintiffs are not entitled to any additional damages for the
loss of use of these goods. There is nothing inconsistent in this statement with the Plaintiffs' quotation of paragraph 50 of McGregor On Damages 14th Edition:
"(a)Loss of use, profit, interest. Where the plaintiff's goods have been damaged he may be allowed damages for loss of profits
or, where no specific loss of profit can be shown, he may be awarded damages for general loss of use."
Indeednderlining the phrase "no specific loss of profit cfit can be shown" the Plaintiff in his submission appears to anticipate the possibility of at least not receiving any amount for loss of profit.
The Plaintiff cites the case of Strand Electric And Engineering Co. Ltd. v. Brisford Entertainments Ltd. (1952) 1 All E.R. 796 and quotes Lord Denning at p.800 as saying:
".... The rule there is that a wrongdoer who keeps the owner out of his land must pay a fair rental value for it, even though the owner would not have been able to use it himself or to let it to anyone else."
I make two comments about that case. First it concerned the wrongful detention anon and use by a Defendant of a chattel belonging
to a Plaintiff which the Plaintiff, as part of his business, hired out to users, and so is distinguishable on its facts from the
instant case.
Secondly the Cof Appeal held that in those circumstances the measure of daof damages in an action for the detinue of the chattel
is a reasonable sum for the hire of the chattel during the period of detention.
I accept that as the law and agree that the Plaintiff is entitled to somo some general damages arising out of the Defendant's action
on the 9th of November 1984.
The Plaintiff also claims a refund of $220.00 with interest representing the balance ance of the rent paid from the 9th of November
1984 to the 30th of November 1984. He says, and it is not disputed, that the Defendant was paid $1,500.00 to cover the rent up to
30th of November 1984. It follows therefore that the Plaintiff is entitled to a refund of this amount and I shall refer to this again
shortly when arriving at the total figure for damages for the Plaintiff.
I pass now to the question of damages. My observations of the First-named Plaintiff over the years I have been here convince me that
he is no tender plant deserving of any undue nurturing by the law. Rather he presents himself as a self-confident, articulate (although
not always intelligible) person, who I am satisfied recovered long ago from any shock or pain and suffering which he might have experienced
as a result of the Defendant's actions. In my judgment an award of $1,000.00 for general damages is adequate to compensate the Plaintiff
under this heading.
He is also entitled to exemplary damages for the reasons given by Scott J. and the Court of Appeal in Civil Action No. 659 of 1985,
Civil Appeal No. 3 of 1992. In the Court of Appeal judgment the Court noted at p.11 that it took into account the Defendant's unlawful
seizure of the 9th of November 1984 and then awarded the Plaintiff $3,000.00 for exemplary damages.
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> will therefore be judgment for the First Plaintiff in the the sum of $7953.10 comprising:
