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Transam Samoa Holdings Limited v Meredith & Company Ltd [2009] WSCA 4; CA 17 of 2008 (1 May 2009)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

No: CA 17/08

BETWEEN:

TRANSAM SAMOA HOLDINGS LIMITED
Appellant

AND:

PETER MEREDITH & COMPANY LIMITED
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Hansen

Hearing: 30 April 2009

Counsel: P Fepulea’i for appellant
F P Meredith for respondent

Judgment: 1 May 2009

JUDGMENT OF THE COURT

Introduction

1. The appellant ("Transam") appeals against a judgment of the Chief Justice of 31 October 2008 awarding the respondent ("PMC") $77,591.92 and costs. The appeal is against quantum only.

Factual Background

2. PMC owned a two-storey office building at Matautu-uta. Transam owned the neighbouring property which it used for the storage of containers.

3. On 13 October 2005 Transam’s employee was moving an empty 40 foot container weighing 5.4 tonnes with a forklift. The employee negligently dropped the container against the fence and adjacent wall of PMC’s building which suffered damage in consequence.

4. PMC sued Transam for the cost of repairing the fence and building. At the trial before the Chief Justice liability was admitted. The sole question was the quantum of damages.

5. Damages were confined to the cost of reinstating PMC’s building and fence. On that subject PMC produced a report from a firm of civil and construction engineers, Tinai Gordon & Associates ("TGA"). The main TGA report prepared in November 2005 ran to 17 pages plus numerous photos, diagrams and calculations. It concluded that the whole wall of the affected building would need to be replaced. Along with repairs to the fence and consultancy fees, the estimated cost was about $103,000. For the trial in October 2008 TGA provided an updated report of 17 October 2008. This gave a revised estimate of $77,591.92 in the light of changes in estimated construction costs over the intervening three years.

6. In response Transam produced two documents. One was a one page fax from Fletcher Construction Ltd ("Fletchers") of 5 May 2008 quoting $5,238 plus VAGST but subject to a final inspection of the damage to the building interior. The other was a quote from Ah Liki Construction Ltd ("ALC") of 4 July 2008 for $20,000 plus VAGST but deferring commencement for several months.

7. The Chief Justice was asked to determine quantum of damages on the papers. Comparing the three reports, he adopted the TGA one because:

(a) The TGA report was much more thorough. It discussed damage, demolition, removal, replacement, temporary proppings, scaffolding and construction details, and was accompanied by photographs and sketches. The defence quotes provided no equivalent detail and did not itemise materials or labour.

(b) The TGA report was based on site visits. The Fletcher quote did not refer to any site visit and was expressly said to be subject to inspection of the interior

(c) There was a delay before ALC could commence work.

8. The Chief Justice adopted the TGA figure of $77,591.92 as the damages and gave judgment accordingly.

The Appeal

9. In this Court Mr Fepuleai advanced essentially five submissions.

10. The first was that all three reports "reflect the same remedial work". We cannot accept this. After a detailed analysis TGA concluded that the whole wall needed replacement. That was in stark contrast to the Fletcher quote which was confined to replacement of one window and the blocks immediately under it. The AKL description of work ("demolish [sic] of the affected area, prop up works and the reinstallation of a new concrete block wall") is so fleeting that the extent of the proposed work can not be reliably discerned.

11. Mr Fepuleai’s second submission was that the photographs showed that the damage was "very much localised or confined to a specific area". It would be quite wrong of us to substitute our own assessment of the damage for that of TGA, arrived at as it was after detailed site inspections and calculations.

12. Mr Fepuleai’s third submission was that although the Fletcher and AKL reports were brief, they were both reputable construction companies. We have no reason to doubt that submission. However the problem for the defence is to show that the defence quotes address the full extent of the repairs required. That is to be contrasted with the careful analysis of TGA on that topic.

13. Mr Fepuleai’s fourth submission was that priority should be given to the estimates of the builders who would do the work, rather than civil engineers who would not. We agree that all else being equal, a builder which commits itself to a quote to actually carry out the work should be preferred to an expert who is merely estimating what the market will require. But in this case there remains the problem that neither of the defence reports reliably addresses the full extent of the required work.

14. Mr Fepuleai’s final submission was that consultant’s fees should not be included in the damages figure. However the fact that PMC instructed a consultant was a direct and foreseeable consequence of Transam’s negligent act. Where there is damage to the wall of a two-storey office building of this nature, the owner can scarcely be criticised for engaging an engineer to assess the extent of the damage and the steps required to fix it. Nor is it unreasonable to ask the engineer to supervise the work he has proposed.

15. The lack of allowance for consultancy fees, and repairs to the fence, goes some distance towards explaining the marked difference between the three reports. But more fundamentally, the TGA report is the only one in which an expert has set out to assess the extent of the damage and the nature of the repairs required in consequence. It is scarcely surprising that that is the one preferred by the Chief Justice.

16. We see no grounds for interfering with the Chief Justice’s approach to damages. With respect, we would have arrived at the same conclusion.

Conclusion

17. The appeal is dismissed. The appellant must pay $1,500 to the respondent in costs.

Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Hansen