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Su v Chang [2003] WSSC 28 (27 May 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

SAVELIO SU,
of Vailele, Taxi Operator
Plaintiff

AND:

FALANI CHANG,
of Fagalii, Motor Mechanic
Defendant

Counsel: Mr P. Fepuleai for the plaintiff
Mr Leung Wai for the Defendant

Hearing: 17 February 2002 and 25 March 2003
Decision: 27 May 2003

DECISION OF JUSTICE VAAI

The plaintiff is a taxi proprietor. He says that on the 24^th March 2002 one of his three taxi vehicles was involved in a traffic accident. On the 26^th March the defendant, a motor mechanic, inspected the said vehicle at the premises of the plaintiff and quoted $2,900.00 to repair the left front fender, left front door and replace the windscreen. Repairs would take 4 to 5 days and the defendant drove away in the said vehicle. A written quotation for $2,900.00 was given to the plaintiff and is produced as exhibit "P1" and payments totalling $1,000.00 was made a week after the defendant took the vehicle for repairs. When the defendant was unable to purchase the windscreen the plaintiff bought the windscreen at a price of $1,000.00 and took it to the defendant’s workshop with a further payment of $200.00. By July the defendant has still not completed the repairs and the plaintiff had to travel to Australia on the 29^th July to visit his sick mother and from Australia he sent $800.00 around about the 1^st week of August so that the total cash payments to the defendant then was $2,000.00. On his return to Samoa on the 23^rd October he saw his car outside the defendant’s workshop with no windscreen and a number of parts were missing including the car stereo, tyres, taxi sign, grille, front and back lights. The car seats were also removed. To replace the missing parts the plaintiff spent $1,717.00 to purchase the replacement parts. On Saturday the 2^nd November 2002 when the plaintiff wanted to fit the four new tyres he bought and drive away in his vehicle he was told to pay the $900.00 owing. He refused to pay the $900.00 because he has paid for the windscreen which was included in the quote of $2,900.00 and secondly the defendant has done other work to the car which the plaintiff never asked him to do. He denied requesting the defendant to patch up, panel beat, repair and paint the body of the vehicle, and he also denied asking the defendant to patch up and repair the interior floor of the vehicle. Moreover he said there was no need to repair the body or floor or do any other work to the vehicle because his vehicle has just been issued with a warrant of fitness before the accident.

Counsels accept and I take judicial notice that vehicles warrants of fitness expire on the 31^st March so that it was incumbent upon the plaintiff to obtain a warrant of fitness and a license before the 31^st March. On the 22^nd November 2002 an order was made for the release of the vehicle to the plaintiff on the condition that the plaintiff deposits with the Registrar of the Court the sum of $900.00. The plaintiff seeks against the defendant loss of income from his taxi vehicle for the period of 3 months at $60.00 per day and $1,717.00 for the costs of the parts he purchased to replace the missing parts as well an order for the return of the car stereo or its replacement value.

The defendant admits he gave a written quotation for $2,900.00 which included the replacement windscreen but he says there was another written quotation for $2,100.00 given by him on the 26^th March for the repairs to the left front door and left front fender which would take him 4-5 days to do. However subsequent to the 26^th March he was requested by the plaintiff to issue a quotation for $2,900.00 backdated to the 26^th March to include a windscreen replacement with the understanding however that the plaintiff will be responsible for the purchase of a replacement windscreen and the defendant will panel beat and repaint the whole car as well as repairing and repainting the rusted car floor. In July before the plaintiff left for Australia he purchased and delivered to the defendant the windscreen and $200.00 cash. From Australia the plaintiff wrote to the defendant telling the defendant that he has sent $1,000.00 through his wife to pay for the car repairs. Eight hundred tala was given by the wife in October when she saw the defendant for the first time since the plaintiff left for Australia in July. She told the defendant she has used $200.00 of the $1,000.00 that the plaintiff sent over.

The first issue to resolve from the conflicting evidence is whether the defendant was requested by the plaintiff to do other repair works to the plaintiff’s car other than those stated in the quote.

The plaintiff says he did not instruct the defendant to repair and repaint the body of the car or to fix the floor. In fact there was no need to as all vehicles were required to obtain warrants of fitness before the 31^st March and when the vehicle was involved in the accident it already had a warrant of fitness. To resolve the conflicting oral evidence for the plaintiff and for the defendant I must look at and consider the documentary evidence. It is not disputed that the plaintiff left for Australia at the end of July and it is also not disputed the plaintiff wrote to the defendant from Australia. It is blatantly clear from the tone of the letter and from his sworn affidavit that when the plaintiff left Samoa the defendant had completed repairing the left front door and fender. In fact the first two sentences of the letter requests the defendant to push through with the work on the car when the $1,000.00 he has sent through his wife arrive and it also requests the defendant to fix the taxi to obtain a license to run on the road. Now that is telling evidence that the plaintiff’s vehicle did not have a warrant for the period beginning 1^st April 2002 and its license expired on the 31^st March (7 days after the accident) and when the plaintiff left for Australia the defendant was working on repairs requested by the plaintiff. By the same letter the plaintiff also requested the defendant to tell the plaintiff’s wife where to buy brake linings for the back wheels of the vehicle which have apparently worn out. Several other requests were made in the same letter. I am therefore satisfied that the plaintiff did request further repair works other than those stated in the written quotation. In fact when the plaintiff arrived back from Australia and went to inspect his vehicle the seats had been removed thus confirming the evidence of the defendant that the floor of the vehicle were repaired as requested by the plaintiff.

The next issue to resolve is whether it was agreed between the parties that the plaintiff supplies the windscreen even though the written quotation of $2,900.00 includes the replacement value of windscreen. The defendant says his first quote for repairing the door and fender was $2,100.00 but several days after he took the car he was asked by the plaintiff to do another written quote backdated to the date of the first quote to cover the replacement cost of the windscreen. An invoice amounting to $2,900.00 was then written but the plaintiff told the defendant that the (the plaintiff) will buy the windscreen but the defendant will repair the body and the floor of the vehicle. The plaintiff denies there were two invoices. He says there was only one invoice amounting to $2,900.00 to cover repairs to the door and fender and to replace the windscreen. But the plaintiff did buy the windscreen because the week after the defendant took the car the plaintiff was told by the defendant that the delay in completing the repairs was because defendant had no money to buy the windscreen. The plaintiff in his affidavit said he bought the windscreen for $1,200.00 and in his oral testimony he got a $200.00 discount. If the evidence of the plaintiff is to be accepted it means he bought the windscreen in early April. Yet when he left for Australia in July the windscreen which he bought was not mounted although the door and fender have been fixed. There are several reasons. Firstly the windscreen was not bought by the plaintiff in April. I accept the evidence of the defendant that it was bought and delivered by the plaintiff in July before he departed for Australia. Secondly the plaintiff left for Australia without purchasing the weather strip for mounting the windscreen. In his letter from Australia the plaintiff requests the defendant to tell the plaintiff’s wife where to buy the weather strip for the windscreen so that he knew before he left he has not bought the weather strip.

By telling the defendant in his letter from Australia that he has sent $1,000.00 towards the costs of repairs is in my view a clear indication by the plaintiff on his part of the understanding between the parties that the quote of $2,900.00 does not include the price of the windscreen. That is because the total cash payments by the plaintiff including the $1,000.00 he sent from Australia now amounts to $2,200.00 and the plaintiff is still requesting further work to be done by the defendant. And if the value of the windscreen is $1,000.00 then the plaintiff has so far spent $3,200.00 on the vehicle. I bear in mind that the wife of the plaintiff gave to the defendant $800.00 and not $1,000.00 sent by the plaintiff so that total cash received by the defendant is $2,000.00. As a consequence of my finding of facts I conclude that the quote of $2,900.00 does not include the replacement value of the windscreen.

I now turn to consider the plaintiff’s claim for costs to replace the parts missing from his car while it was at the workshop of the defendant. The plaintiff says that on his return from Australia he went to see his car and found it outside the workshop in the rain with no windscreen, car seats were removed, stereo was missing, taxi sign and its mounting removed, back and front lights removed, front grille missing. Tyres were replaced by inferior and different sized tyres and hubcaps removed. Two receipts totalling $1,440.00 have been produced by the plaintiff as evidence of 4 tyres ($380.00) two back lights ($600.00), two front lights ($302.00) and a grille ($160.00) bought by the plaintiff to replace the missing parts. He acknowledges that the car stereo has been returned to him.

In response to the plaintiff’s allegation for the missing parts the defendant says that when the plaintiff returned from Australia the vehicle was inside the garage and not outside. I do not accept the evidence of the defendant simply because one of his own employee who worked on the vehicle told the court under cross examination that the vehicle was left outside without the windscreen so that the vehicle was exposed to the weather. Both the defendant and his employee confirmed that the vehicle accumulated further rusts during the plaintiff’s absence from Samoa.

In respect of the front and rear lights the defendant says those lights were not missing but the plaintiff wanted to replace them with new lights. The same reasons were given for the grille. All these items were bought by the plaintiff the day after he returned from Australia as evidenced by the receipt produced as exhibit "P4" which in my view tends to confirm the evidence of the plaintiff that these parts were missing when he saw his vehicle at the garage of the defendant. I therefore allow the plaintiff’s claim of $1,060.00 for those parts.

As for the tyres the defendant says they were old tyres when he took the vehicle and these old tyres were replaced by the new tyres which the plaintiff bought on his return from Australia. The plaintiff on the other hand gave two different versions as to the quality of the tyres. In his sworn affidavit he said that at the time the vehicle was taken by the defendant it had 4 brand new tyres as the vehicle has recently been given a warrant of fitness. I have earlier ruled that the vehicle could not have had a warrant of fitness because the plaintiff said so in his letter from Australia to the defendant. Secondly in his oral testimony the plaintiff said the tyres of his vehicle were not new but good. What good means is not important for my findings but important enough to deny his claim for the replacement tyres. For the same reasons and also for his failure to produce receipts I am also obliged to deny his claim for the other missing parts. Finally the plaintiff’s claim for loss of earnings from his taxi must also fail. The delay in completing the repairs to the vehicle must fall squarely on the plaintiff or his wife. In the first place if the defendant was only requested to repairs the damage occasioned as a result of the motor accident the dispute between the parties would most probably have not arisen. However the plaintiff wanted the faulty third party to pay for the badly needed repairs to his taxi vehicle causing the delay and giving rise to these proceedings.

In summary I find that the plaintiff has made cash payments totalling $2,000.00 to the defendant as well as spending $1,060.00 for the purchase of parts to replace the missing parts. I also find that the agreed repair costs for the plaintiff’s vehicle was $2,900.00 exclusive of the value of the windscreen.

As a result of my findings for and against both parties, I accordingly make the following orders:

1. The defendant is ordered to pay $160.00 to the plaintiff.
2. The $900.00 deposited with the Court by the plaintiff is to be returned to the plaintiff.
3. Each party to bear its own costs.
   

JUSTICE VAAI