Greer v. Alstons Engineering Sales and Services Ltd (Trinidad and Tobago)  [2003] UKPC 46 (19 June 2003)
ADVANCE COPY

	Privy Council Appeal No. 61 of 2001

Carlton Greer	Appellant
	v.
Alstons Engineering Sales and Services Limited	Respondent

	FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
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	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 19th June 2003
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	Present at the hearing:-
			Lord Hope of Craighead
Lord Lloyd of Berwick
Lord Rodger of Earlsferry
Sir Andrew Leggatt
Sir Philip Otton
		  	[Delivered by Sir Andrew Leggatt]
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1. 	Twenty-five years ago the appellant, Carlton Greer, bought a JCB backhoe from the respondents, Alstons Engineering Sales & Services Ltd.  He lived in Tobago: the respondents carried on business in Trinidad.  In April 1982 the appellant took it back for repair because its gearbox was making an unaccustomed noise. The respondents repaired it at a cost of $20,342.27.  The appellant claimed that it was still defective.  After several inspections by the respondents it was returned to them in May 1983 for further repair. When the appellant went to collect it on 16th January 1984, an impasse developed, because he refused to accept it unless he was allowed to test drive it, and the respondents refused to allow him to do so unless he paid the outstanding sum of $20,342.27 for the first repairs.  There was a charge of $11,646.57 for the further repairs. The appellant declined to pay, and so went away empty-handed; and in May 1984 he began the present proceedings for damages for breach of contract and negligence.

2. 	It was not until 4th October 1995 that the action came on for hearing before Madam Justice Sealey, who gave a reserved judgment on 29th November 1995.  The appellant had been permitted to amend his pleadings so as to claim in detinue or alternatively in conversion in respect of the period from January 1984 during which the machine had remained in the respondents’ possession.  It is still in their possession.  The judge found that there had been two contracts: the first for the repair of the gearbox and the second for the repair of the gearbox and the differential. Both were properly completed.  She held that the respondents wrongfully detained the machine by unreasonably demanding payment for the initial repairs before they would release the backhoe.  The appellant was entitled to recover the value of the backhoe at the date when detention took place, which the judge put at February in mistake for January 1984.  The appellant’s claims in breach of contract, negligence and conversion failed.  The judge also gave judgment for the respondents on their counterclaim in the sum of $20,342.27 with interest at the rate of 6% per annum from 1st March 1984 until payment, but she dismissed the respondents’ claim for $11,646.57 under the second contract on the ground that the appellant had never received a statement or invoice for that work.  The appellant appealed. 

3. 	The parties have accepted the interim judgment of the Court of Appeal dated 22nd February 2001 (de la Bastide CJ, Jones and Lucky JJA) by which they concluded that the respondents were liable in contract to the appellant for failing to repair the backhoe properly at the first attempt and were accordingly liable to the appellant for damages for loss of use during the period between the return of the backhoe after the first repairs in July 1982 and the wrongful refusal to return it in January 1984.  The respondents were also liable to the appellant in detinue for damages for loss of use of the backhoe for six months after that date.  The respondents were not entitled to an order for the payment to them by the appellant of the sum of $20,342.27 representing the cost of the first repairs, but were entitled to set that sum off against such amount (if any) as they might be ordered to pay to the appellant representing the value of the backhoe.  

4. 	The Court of Appeal ordered that the sum of $5000 be paid to the appellant as nominal damages for the loss of the use of his backhoe for the period from July 1982 to July 1984, thereby allowing the appellant a period of six months between January and July 1984 in which to have mitigated his damage by replacing it. The Court also ordered the value of the backhoe to be assessed by a Master as at the date of judgment.  They ordered the respondents to pay to the appellant the assessed value of the backhoe less the sum of $20,342.27, with interest on that balance at the rate of 12% per annum from the date of judgment.  Finally, having dealt with it by way of set-off, the Court of Appeal quashed the judgment in favour of the respondents for that sum.  The Chief Justice said that interest at the rate of 12% per annum approximated a commercial rate and was therefore appropriate in the context of the case.

5. 	Against that judgment the appellant now appeals, claiming substantial instead of nominal damages for loss of use of the backhoe from July 1982 to July 1984.  On his behalf Mr Marcus SC also argued that the respondents were not entitled to recover any sum for the repairs because they were not properly carried out, and that interest should be awarded to the appellant on the value of the backhoe for the whole of the period from the date of its detention until the date of judgment.

6. 	In the Court of Appeal Mr Justice Jones JA, with whom the Chief Justice and Mr Justice Lucky JA agreed, explained at pages 128-129 of the Record the decision to award $5000 by way of nominal damages – 
“The appellant claimed damages for loss of use of the backhoe in negligence in respect of the period from July 1982 to January 1984 and in detinue for a period of at least 6 months thereafter.  A claim for loss of use of an income-earning chattel is a species of special damages.  The onus is therefore on a claimant to prove strictly not only his loss but also the quantum of it.  The learned trial judge held that the appellant had not given cogent evidence to support his loss. She described his evidence as vague and generalised.  Indeed his evidence was that the daily rate for the backhoe in 1982 was $500.00 increasing in 1983 to $600.00, and by 1984 the figure was $800.00 per day or $100.00 an hour.  He failed to produce any documentation in support of these claims and furthermore these sums were all gross.  

In order for net loss to be assessed, there must be evidence about the expenses incurred in earning that income.  In this case there was evidence that whenever the backhoe was rented out, it was rented out with a driver.  There was, however, no evidence as to what the cost of that driver was to the appellant, nor was there evidence of the amount spent on fuel and oil or maintenance or any other incidental expense necessary for the operation of the backhoe.  

In the light of this state of affairs, I hold that the learned trial judge was correct in refusing to award the damages claimed. ...

When such evidence is not provided, however, it is open to the trial judge to give consideration to an award of nominal damages.  In McGregor on Damages 13th ed at para 295 it is stated:
‘Nominal damages may also be awarded where the fact of a loss is shown but the necessary evidence as to its amount is not given.  This is only a subsidiary situation, but it is important to distinguish it from the usual case of nominal damages awarded where there is a technical liability but no loss.  In the present case the problem is simply one of proof, not of absence of loss but of absence of evidence of the amount of loss.’”

7. 	Mr Marcus contended that whatever the difficulty of computing special damage the appellant was entitled to general damages, which should be substantial.  He cited The Owners of No 7 Steam Sand, Pump Dredger v The Owners of SS “Greta Holme” (The “Greta Holme”) [1897] AC 596 and The Owners of the Steamship “Mediana” v The Owners, Master and Crew of the Lightship “Comet” (The “Mediana”)  [1900] AC 113, in each of which a sum was awarded by the House of Lords for loss of use of a vessel damaged by the defendants’ negligence.  At page 116 of the second case Lord Halsbury LC said that “the term ‘nominal damages’ does not mean small damages”, while at page 605 of the first case Lord Herschell said after referring to out-of-pocket expenses – 
“... I think they are also entitled to general damages in respect of the delay and prejudice caused to them in carrying out the works entrusted to them.  It is true these damages cannot be measured by any scale; but that would be equally true in the case of damages in respect of the deprivation of an individual of a chattel which he had purchased for purposes of comfort and not profit.”

8. 	As a more modern example of such damages Mr Marcus referred to Dixons (Scholar Green) Ltd v JL Cooper Ltd [1970] RTR 222 in which the plaintiffs called no evidence to prove the loss incurred by the deprivation of a commercial vehicle for 11 weeks, and the English Court of Appeal substituted for the trial judge’s award of £2 an award of £450.  In the light of this, though he never hazarded a particular figure, Mr Marcus contended for an award substantially higher than the sum awarded.

9. 	Though the loss under this head was unquantified, it is the duty of the court to recognise it by an award that is not out of scale. The sum of $5000 may indeed be regarded as on the low side; but it is not so low as to be wrong in principle and to warrant interference by their Lordships.  

10. 	Mr Marcus argued that repairs were required on the second occasion only because they were not properly done on the first occasion; and that the respondents were therefore entitled to no remuneration for the first repairs.  But that disregards the fact that when the backhoe comes to be valued it has to be assumed that it was then in good working order.  For this purpose at least the second repairs must be taken to have been efficacious.  It may further be assumed, in default of any contrary evidence, that if the repairs had been properly carried out in the first place the respondents would have been entitled to recover the sum then charged.  The sum of $20,342.27 therefore represents the cost of putting the backhoe into the condition in which it is assumed to have been for purposes of valuation.  Accordingly, the Court of Appeal ordered that sum to be set off against the value of the backhoe.  With the original claim for the cost of the second repairs their Lordships are not concerned, because that claim has not been maintained following the judge’s rejection of it.  

11. 	In the Court of Appeal both parties accepted the order of the judge that the value of the backhoe should be taken as at the time of its detention.  But the Court, basing itself on the case in the English Court of Appeal of Rosenthal v Alderton and Sons Ltd [1946] KB 374, held (at p 132 of the Record) that the value of the backhoe should be taken as at the date of judgment.   Before the Board both parties accepted that the value of the backhoe should be taken as at the date of judgment, and their Lordships accordingly express no opinion as to the correctness or applicability of that case.  This left an hiatus from July 1984 until 29th November 1995, during which, although the backhoe was wrongfully detained by the respondents, the appellant received no compensation. 
12. 	For the respondents Mr Prescott submitted that the appellant was not entitled to be compensated for the period from July 1984 until judgment.  So far as damages were concerned, the appellant should have mitigated his damage by paying the sums demanded for the repairs and so recovered the backhoe at latest by July 1984. So far as interest was concerned, the Court of Appeal was entitled in the exercise of its discretion not to make any award of interest for that period, and their Lordships should not interfere with that conclusion.  

13. 	Section 25 of the Supreme Court of Judicature Act 1962 (Laws of Trinidad and Tobago, (1980 edition) Chapter 4:01) provides, as did its precursor, section 26 of an earlier edition of the same Act, that – 
“In any proceedings tried in any Court of record for recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment, ...”

14. 	Mr Prescott contended that a claim for interest must be specifically pleaded.  This requirement reflects the fundamental principle that the pleading should give fair notice to the opposite party of the nature of the claim being made against him, with the relevant facts relied upon, so as to enable him to meet such claim and to prevent surprise at the trial.  The argument, however, disregards the decision of Mr Justice Hassanali in De Souza v Trinidad Transport Enterprises Ltd and Nanan (No 2) (1971) 18 WIR 150, in which he said at page 152A – 
“A claim for interest need not be pleaded.  The discretionary power of the court under the provisions of s. 26 of the Supreme Court of Judicature Act 1962 is exercisable whether or not there is a claim for interest in the pleadings (Riches v Westminster Bank Ltd [1943] 2 All ER 725). Further, as Lord Denning, MR said in Jefford v Gee ([1970] 1 All ER at p 1211):
‘A claim for interest is not itself a cause of action.  It is no part of the debt or damages claimed, but something apart on its own.  It is more like an award of costs than anything else.  It is an added benefit awarded to a plaintiff when he wins a case ... ’”

The Court of Appeal (sub tit Trinidad Transport Enterprises Ltd and another v De Souza (1973) 25 WIR 511) upheld the judge’s decision without commenting on the pleading point.   

15. 	The same practice prevails in Trinidad and Tobago as in England: neither a claim for interest nor the facts and matters relied on in support of such a claim need be pleaded.  The respondents’ argument on this score therefore fails.

16. 	Before their Lordships the parties accepted that damages for detinue would be recoverable only for a period of six months from the date of detention expiring in July 1984, that the value of the backhoe should be determined as at the date of judgment, and that set-off of the cost of the first repairs should also be effected as at that date.  The result is that a period of well over 11 years has elapsed in respect of which under the order of the Court of Appeal the appellant derives no compensation for being deprived of his backhoe or for its depreciation.  

17. 	In the interests of seeking to mitigate this result their Lordships have no doubt that it is right as an exercise of discretion to award the appellant interest at a commercial rate of 12% per annum from the date of detention (16th January 1984) to the date of judgment (29th November 1995).  It will be payable on the balance remaining after deducting the cost of the first repairs from the value of the backhoe as at the date of judgment.  But the backhoe then was 17 years old.  Even if it was not used between 1984 and 1995, it would be surprising if by the end of that time it was worth more than $20,000.  In that event, the effect of the set-off will be to reduce to nil the sum recoverable for the backhoe and so also the award of interest. 

18. 	In parting with the appeal, their Lordships express their appreciation of the excellent submissions of counsel for both parties.

19. 	The appeal is allowed.  The order of the Court of Appeal will be varied by substituting 16th January 1984 for 29th November 1995 as the date from which interest is awarded on the balance between the value of the backhoe (assessed as at 29th November 1995) and the sum of $20,342.27.  The respondents must pay the appellant’s costs.