ST. GEORGE WEST COUNTY PORT OF SPAIN PETTY …webopac.ttlawcourts.org/LibraryJud/Judgments/Mag/singh/... · 2013-12-09 · GEORGE WEST COUNTY PORT OF SPAIN PETTY CIVIL COURT JUDGMENT

1 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited

ST. GEORGE WEST COUNTY

PORT OF SPAIN PETTY CIVIL COURT

JUDGMENT

CITATION: Alfred Pierre v. Sterling Service (Battoo Bros.) Limited

TITLE OF COURT: Port of Spain Petty Civil Court

FILE NO(s): No. 217 of 2013

DELIVERED ON: 29th November 2013

CORAM: Her Worship Magistrate Nalini Singh

St. George West County

Port of Spain Petty Civil Court Judge

REPRESENTATION:

Ms. Marvo K. Harper appeared for Mr. Alfred Pierre

Mr. Krishna Sukdeo appeared for Sterling Service (Battoo Bros.) Limited


TABLE OF CONTENTS

TABLE OF CONTENTS 2

PREFACE 4

PART ONE 5

INTRODUCTION 5

THE ISSUES 6

PART TWO 8

THE LAW 8

1. Whether the defendant company owed the claimant a duty of care 8

2. Whether the defendant company breached that duty of care towards the

claimant 14

1. How did the defendant company hold himself out as exercising reasonable

skill and judgment? 18

Advice to change the battery 18

The evidence of the claimant 18

The evidence of the defendant company 20

Analysis 23


Advice to change the alternator 29

The evidence of the claimant 29

The evidence of the defendant company 38

Analysis 43

2. Would a technician do anything differently from what was done in this case? 45

3. Whether the claimant sustained loss resulting from that breach 48

PART THREE 52

THE COURT'S FINDINGS 52

PART FOUR 55

INTEREST 55

COSTS 55

THE FINAL ORDER OF THE COURT 56

POSTSCRIPT 57


PREFACE

The trial into this matter commenced on the 7th

October 2013. Evidence in the case concluded on

the 23rd

October 2013 and counsel completed closing arguments on the 12th

November 2013.

The case was then adjourned for the Court's Decision.

These are the reasons for the decision of the Court. It is divided into four parts.

Part 1 contains an introduction and sets out the issues which arose in this case.

Part 2 addresses the law and the evidence considered by the Court before arriving at its decision

in this matter.

Part 3 sets out the facts as found by the Court in arriving at its decision in this case.

Part 4 relates to the manner in which the matter was eventually disposed of.


PART ONE

1.0 INTRODUCTION

1.1 This is an action for damages arising out of a motor vehicle repair which started on or

about the 19th

December 2012 at the home of the claimant; Mr. Alfred Pierre and was reassessed

at the garage owned and operated by the defendant company; Sterling Service (Battoo Bros.)

Limited in January 2013. The claimant pleads that the defendant company failed to service his

vehicle PBO 8045 in a good and workmanlike manner and as such was negligent. The crux of

the claim is that the defendant company repeatedly failed to carry out proper tests on PBO 8045

which resulted in a failure to diagnose the mechanical problem of PBO 8045 and because of this,

the claimant replaced parts which did not need to be replaced. Additionally, during the course of

time PBO 8045 was housed at the defendant company's compound, the claimant rented another

vehicle and this expense forms part of the claim.

1.2 The position of the Defendant company as outlined in the defence indicates that at all

material times they exercised due care and skill in dealing with PBO 8045.

1.3 The modern concept of tort of negligence was created in the landmark decision of

Donoghugh v. Stevenson [1932] A.C. 562 at page 580 where Lord Atkin of Aberdovey put the

matter in this way:

"The rule that you are to love your neighbour becomes in law, you must not injure

your neighbour; and the lawyer's question, Who is my neighbour? receives a

restricted reply. You must take reasonable care to avoid acts or omissions which

you can reasonably foresee would be likely to injure your neighbour. Who, then,


in law is my neighbour? The answer seems to be - persons who are so closely and

directly affected by my act that I ought reasonably to have them in contemplation

as being so affected when I am directing my mind to the acts or omissions which

are called in question" (emphasis mine).

1.4 Thus the components of the tort of negligence have been summarized at paragraph 1-34

of Walton, Christopher. Charlesworth & Percy on Negligence. 12th ed. London: Sweet &

Maxwell, 2010 as:

"1. the existence of a duty to take care, which is owed by the defendant

company to the complainant;

2. the failure to attain that standard of care, prescribed by law, thereby

committing a breach of such duty; and

3. damage, which is both causally connected with such breach and

recognised by the law, has been suffered by the complainant".

The learned author goes on to note at paragraph 1-35 that "(i)f the claimant satisfies the court

on the evidence that these three ingredients are made out, the defence should be liable in

negligence".

2.0 THE ISSUES

2.1 The following issues which therefore arise for determination in this case are:

1. Whether the defendant company owed the claimant a duty of care.

2. Whether the defendant company breached that duty of care towards the claimant.

3. Whether the claimant sustained loss resulting from that breach.


I turn now to the resolution of each of these matters.


PART TWO

3.0 THE LAW

1. Whether the defendant company owed the claimant a duty of care.

3.1 I understand the word "duty" to refer to a relationship by which an obligation is imposed

on one person for the benefit of another, to take reasonable care in all the circumstances.

According to Lord Wright in Grant v. Australian Knitting Mills Ltd [1936] 1 A.C. 85 at page

103:

"All that is necessary as a step to establish the tort of actionable negligence is to

define the precise relationship from which the duty to take care is to be deduced.

It is, however, essential in English law that the duty should be established: the

mere fact that a man is injured by another's act gives in itself no cause of action: if

the act is deliberate, the party injured will have no claim in law even though the

injury is intentional, so long as the other party is merely exercising a legal right: if

the act involves lack of due care, again no case of actionable negligence will arise

unless the duty to be careful exists" (emphasis mine).

In the case before me, the claimant is the owner of a Mercedes Benz and the defendant company

is the local car dealer for that vehicle. The question is whether on the facts of the matter at hand,

the defendant company owed a duty of care to the claimant.

3.2 There is body of law that has developed with respect to the duty of care that a repairman

owes to a customer. One such case which deals specifically with the repair of cars is Johnny

Delbrel v. Doenges Bros. Ford, Inc. 913 P.2d 1318 (Okl. 1996). Admittedly this is a case

which emanates from the Supreme Court of Oklahoma. At any rate I have found it to be


particularly instructive. The issue which confronted the court in that case was whether the trial

court had erred in dismissing a petition for failure to state a claim where the appellant, Johnny

Delbrel, alleged that the appellee, Doenges Brothers Ford, Inc., failed to repair a vehicle in a

reasonable and workmanlike manner, and that as a result of such negligent repair the appellant

was injured. The Court of Appeal was of the view that a lawsuit should not be dismissed for the

failure of the petition to state a cause of action unless it appeared beyond doubt that the plaintiff

could not prove any facts in support of the claim that would entitle him to relief. On this basis, it

was found that the petition was sufficient to state a claim against the appellee, and that the

dismissal of the petition by the trial court was an error. What is pertinent to the instant matter is

that in arriving at this conclusion, the Chief Justice of the State of Oklahoma; Alma Wilson made

the point in clear terms at page 1322 that a duty of care is in fact owed by repairmen to car

owners. This is how the matter was put:

"We hold, as a matter of law, that one who is paid to repair a car owes a duty of

care to both the owner of the car and to the general public to assure that the repair

is properly performed or the owner is warned of its dangerous condition, where

the dangerous condition is discoverable in the exercise of ordinary care"

(emphasis mine).

3.3 The duty of a care which is owed by a repairman to his customers is a concept which is

equally established in English case law. One such case is Haseldine v. CA Daw & Son Ltd.

[1941] 2 K.B. 343. On the facts of this case, engineers told the landlord that the rams of his

thirty-five year old lift were badly worn and ought to have been replaced by new rams. It never

entered their contemplation that the lift was dangerous to use. They doubted whether they could


obtain the necessary bars and tubes for the replacement because of the war, and they opted

instead to make an extra visit each month to grease the rams. The landlord agreed to this course

of action. Sometime after this agreement, an employee of the engineers repacked one of the

glands and he negligently failed to replace it properly, thereby causing the gland to fracture when

the lift was worked. The next day, the plaintiff, who was there to visit one of the tenants in the

building, used the lift to reach the tenant. Owing to the fracture of the gland, the lift fell to the

bottom of the well and the plaintiff was injured. The injured plaintiff recovered damages against

the repairers of the lift. In delivering the majority decision in this matter this is how Lord Justice

Goddard sought to explain the basis of liability at pages 375-380:

"I believe that this is the first time that the question has come before an appellate

court, and, accordingly, we must examine with care the principle on which

Donoghue v. Stevenson depends.

It is to be observed that the two noble and learned Lords who formed the minority

in that case thought that the decision must necessarily apply to a repairer. I think

that it may be said that this appears to have been one of the reasons for their

dissent. Lord Buckmaster, said : "The principle contended for must be this: that

the manufacturer, or indeed the repairer ," [the italics are mine] "of any article,

apart entirely from contract, owes a duty to any person by whom the article is

lawfully used to see that it has been carefully constructed," and Lord Tomlin

expressed the same view.


... If the repairers do their work carelessly, or fail to report a danger of which they

as experts ought to be aware, I cannot see why the principle of Donoghue v.

Stevenson should not apply to them.

...To render the contractor or repairer liable, there must be, first, a want of care on

his part in the performance of the work which he was employed to do... It would, I

venture to think, be a strange and unjust result if the plaintiff who has been

injured directly by the careless performance of the work is to be left without a

remedy.

In my opinion, the appeal of the engineers should be dismissed" (emphasis mine).

3.4 A case from the English jurisdiction which has expressly recognised and defined the

ambit of the duty of care which is owed by repairers of cars in particular is Stewart v. Reavell's

Garage [1952] 2 QB 545. On the facts of this case, a car owner took his car to have the braking

system repaired. He agreed, on the recommendation of the repairers, that certain parts of the

work should be done by specialists who in the event carried out faulty work. The car was

subsequently damaged in an accident due to the faulty work carried out by the specialists. It was

held that the customer relied on the repairers to repair the brakes of the car in a suitable and

efficient manner, and that it was the duty of the repairers to provide good workmanship,

materials of good quality and a braking system reasonably fit for its purpose. The repairers,

therefore, were liable to the customer for the faulty work. Sellers J at page 553 found that:


"... the effect of what was said and done when the parties entered into the contract

was that the plaintiff did rely on the defendants as experienced repairers to repair

the brakes of the Bentley in a suitable and efficient manner and it was left to them

to obtain suitable sub-contractors to do the lining of the drums and to arrange for

a suitable type of drum lining to be fitted.... It was their duty, in the

circumstances, to provide good workmanship, materials of good quality and a

braking system reasonably fit for its purpose, and they failed to do so by reason of

the faulty off-side front brake drum liner. In fact, though unwittingly, the

defendants handed over to the plaintiff a highly dangerous vehicle. The faulty

liner, in my opinion, caused the accident and the damage to the plaintiff's car, and

the plaintiff is therefore entitled to recover damages in this action" (emphasis

mine).

3.5 In fact the cases make it clear that car dealers who offer repair services are not exempted

from exercising this duty of care in their conduct of repairs. One such case which illustrates this

principle is Phillips v. Ford Motor Company of Canada Limited [1970] 2 O.R. 714.

According to the head note of this case:

"A manufacturer who designs and puts a product on the market is liable to the

ultimate consumer to ensure that the goods so marketed are free from defects

which arise from negligence or lack of care on the part of the manufacturer. In a

situation where there is no opportunity to inspect the product purchased, the

manufacturer owes a duty to all purchasers to take reasonable care, and where the

product is a dangerous or potentially dangerous thing such as a motor-car, the

duty of care so owed approximates an absolute liability. Persons who supply,


distribute, sell or import the product owe a similar duty of care to the ultimate

consumer to ensure that the product does not contain defects which result from

the negligence of the supplier, distributor, vendor or importer. Thus, a Canadian

car manufacturer is liable in respect of a deficient "fail safe" power braking

system notwithstanding that the car was manufactured by the parent company in

the United States and imported by the Canadian company for distribution in

Canada. The dealer who sells the car to the ultimate consumer is also obliged to

ensure that the product is not defective in design, especially where the dealer also

performs services as repairer and can be taken to have known, or at least ought to

have known, of the inadequacy. Both the importer and the dealer are also

negligent in failing to warn the ultimate consumer of the deficiency (emphasis

mine)".

Particularly instructive is what is said at paragraphs 53 to 54:

"...the law places an onus on persons in the position of repairers within the

principles of M'Alister (or Donoghue) v. Stevenson, supra, to ensure that the

repair work carried out is not done negligently in such a manner as may cause

injury to the person with whom he has contracted to repair or to any person who

may be injured or damaged as a consequence of such negligence: See Malproof et

al. v. Noxol, Ltd., 51 T.L.R. 551; Stennett v. Hancock and Peters, [1939] 2 All

E.R. 578; Haseldine v. C. A. Daw & Son, Ltd., [1941] 3 All E.R. 156; Marschler

v. G. Masser's Garage, [1956] O.R. 328, 2 D.L.R. (2d) 484 (H.C.); Heppel v.

Stewart, [1967] 2 O.R. 37, 62 D.L.R. (2d) 282 (C.A.); Herschthal v. Stewart &

Arden, Ltd., [1939] 4 All E.R. 123; Castle v. Davenport-Campbell Co. [1952]


O.R. 565, 3 D.L.R. 540 (C.A.); Scott-D'Amboisie Construction Co. v. Reo

Motors, [1958] O.R. 711 (C.A.).

54 It is my opinion that as repairers, Elgin Motors must be taken to have known

or ought to have known of the inadequate fail safe system in the vehicle, and

should have brought this to the attention of the plaintiffs, especially in view of the

tremendous amount of troubles Mr. and Mrs. Phillips had encountered with the

braking system (emphasis mine)".

3.6 In light of the foregoing I conclude that in so far as the instant matter is concerned, the

defendant company owed the claimant a duty of care. I move now to consider the second issue

which arises in this case which is whether the defendant company breached its duty of care

towards the claimant.

2. Whether the defendant company breached that duty of care towards the claimant.

3.7 The legal claim against the defendant company is based upon an obligation arising from

the position of the defendant company as an entity providing repair services on Mercedes Benz

vehicles, and holding out an expertise in this field. The claimant relied upon the expertise of the

defendant company to fix the problem that he was experiencing with his vehicle. So the question

now becomes did the defendant company breach its duty of care in this regard?

3.8 I have come across two cases involving a claim against car repairers for negligence which

I find to be useful. I have found both cases assist in the approach to be taken in ascertaining

whether there has in fact been a breach of the duty of care owed by repairers. The first case is


Appleyard of Bradford Limited v. Gibson 1981 WL 695582 which explains exactly what is

involved in the duty of care which is owed by repairers. This is what his Lordship Lord Justice

Brandon said:

"(i)t is not the law that a car repairer is under an absolute obligation to remedy

defects in a motor car which is bought -;in to him; he is not even under an

absolute duty to diagnose what the defects are. The duty of a car repairer under

the law is a duty to exercise the reasonable skill and care of a reasonably

competent person in that trade, and that is the duty which he has in relation to

diagnosing faults and in relation to the repair of faults. No more, and no less

(emphasis mine)".

From this it seems that what is required of the car repairers is that skill and care of a reasonably

competent person in the trade be used in diagnosing faults and in repairing those faults.

3.9 The second case I found to be useful on the question breach is Keith Bayers v. MacPhee

GMC 2013 NSSM 26, 229 A.C.W.S. (3d) 606, 2013 CarswellNS 391which reiterates that what

is required from repairers is, they use skill and care of a reasonably competent person in the trade

in diagnosing faults and in repairing those faults. This was a case that arose from the Nova

Scotia Small Claims Court. On the facts of this case, the claimant was the owner of a 2002

Pontiac Firebird. He sued for a refund of almost all of the money he spent having his vehicle

serviced on two occasions; in April 2012 and several months later. The basis of the claim was

that the defendant company failed to diagnose the actual problem with his car and instead,

performed a number of unnecessary repairs which cost $1,500. On the facts of the case, when

the car did not start immediately upon turning the key, the claimant took his vehicle to the


defendant company's repair facility. At that time the technician hooked the vehicle up to the

computer system and made the determination that the problem resided with the "vats

interrogator" which was part of the theft control system associated with the vehicle. In order for

the vehicle to start, there was a sensor that read the chip embedded in the ignition key, and in this

case the determination was that it was only being read intermittently. As such, until it actually

detected the presence of the chip, it simply turned over and over without starting. This resulted

in the ignition and key system being repaired at a total cost of $714.98.

3.10 According to the claimant, some months later the vehicle would not start and needed to

be towed to the defendant company. It had only travelled 1,248 miles since the previous work

had been done. The technician made investigations and determined that the main problem

involved faulty electrical relays, which were making poor contact as a result of age. He also

found the car's battery to be at the end of its useful life and recommended it be replaced. In the

end, a further bill for $758.58 was presented and paid on or about August 29, 2012.

3.11 The claimant contended that unnecessary work was done and as a result he was

overcharged for what he believed would have been a simple problem had the technician checked

the relays at the initial visit.

3.12 The claim was dismissed. The reasoning of Eric K. Slone who adjudicated on the matter

was this:

"10 As most people know, intermittent malfunctions can be very difficult to

diagnose and fix, whether they occur in our vehicles or in our bodies. When a


repair facility is asked to diagnose and repair a problem, they do not warrant

perfection. They are hired to exercise reasonable skill and knowledge. So the

appropriate question to ask is not, with the benefit of hindsight, whether some less

expensive course of action might have been taken. The question is whether the

repair facility exercised reasonable skill and judgment.

11 On the available evidence, I am far from convinced that the issue was as simple

as the Claimant would have me believe. The evidence rather suggests that there

were a number of possible causes, and that the technician relied on what he was

trained to rely upon; namely, he allowed the computer diagnostics to direct him.

There is little doubt that automobile mechanics has become a highly computerized

process and it is difficult to imagine a technician doing anything different from

what this technician did.

12 For the Claimant to have any success, I would have to believe that his car would

be operating properly with only the rather narrow fix that he suggests was

necessary. I find that difficult to believe. I accept that the Defendant performed the

work in good faith with a view toward finding the real cause of the problem and

providing a durable fix. There is not a shred of evidence to the effect that the

Defendant sought to take advantage of the Claimant and run up a bill for

unnecessary repairs (emphasis mine)".

In essence then, the finding which was made in this case was that the repairer exercised

reasonable skill and judgment because he relied upon the computer diagnostics which he allowed


to direct him and in the court's view it was difficult to conceive of a technician doing anything

different from what the technician did. This I think provides a good guide as to the questions I

should ask myself in determining whether there was a breach of the duty of care on the part of

the defendant company in this case. The questions are:

1. how did the defendant company hold himself out as exercising reasonable skill and

judgment?

2. would a reasonably competent technician do anything differently from what was done in

this case?

1. How did the defendant company hold himself out as exercising reasonable skill and

judgment?

3.13 The evidence on this issue is diametrically opposed. The case for the claimant is that the

defendant company did not exercise reasonable skill and judgment because they failed to

conduct tests before advising him. The case for the defendant company is that they did. I will

now review the evidence which was led in this regard.

ADVICE TO CHANGE THE BATTERY

The evidence of the claimant

3.14 I understand the evidence of the claimant to be this. Firstly, the defendant company did

not exercise reasonable skill and judgment because they through their employee, advised the

claimant to change his car battery without conducting any tests before hand to allow them to give

this advice. According to the claimant:


" A: The first time I took the vehicle sometime towards the end of 2012. Soon

after that the vehicle was not starting. The battery I presume would be running

down, running down. So I reported back to the defendant and they sent a person.

Mr. Romany came to my home and he took the battery. He didn't check anything

he just took the battery and he gave me well, he allowed me to use- he placed

another battery in the vehicle and he told me well, bring it down as soon as

possible. I can't recall the exact date towards the end of December 19th

December

I went in there and the vehicle and then another gentlemen who called himself a

service rep and I think Richard, he went on the computer and he told me.

Q: Where did this take place?

A: This took place at the office on Sackville Street on the 19th

December.

And he told me that the main battery was not replaced for some time and the main

battery wanted replacing. No checks were done on that vehicle. I consented to

have the main battery changed as they recommended. The main battery was

changed at a cost of $5100 approximately. $4168.75. I have the receipt at home I

was given a receipt by the defendant company. I took the car back home and

every 24 hours or 48 hours it would be dead again. The battery would be gone

dead and the car could not start. I consulted with the defendant company again".

Then later on in evidence in chief this is what the claimant said:

"Q: You are saying Sterling was negligent?


A: Yes, they did not check. You go to an ordinary place and you would see

them checking the battery that was not done that was not done at all. In fact I told

Richards you know I said well you all are not even checking the battery. He said

no the computer is saying that the computer is saying that it was not changed for

some time and it has to be that. That is what he told me. As a result of their

negligence I had to change the battery the cost of the battery one.

... On the following day on the 19th

when I went to the defendant garage. I spoke

with one of the customer advisors Mr. Jackman and he simply went on the

computer at his office and told me the battery was there some time and it needed

changing. No actual test was done on the battery that was removed".

The evidence of the defendant company

3.15 The evidence of the representative from the defendant company is that the advice to

change the battery was given after tests were conducted. Gary Romany who was the technician

who visited the claimant's home on a night in December says this:

"Q: What happened when you attended the claimant residence?

A: Well first he opened the gate and asked me to come by the vehicle and

down to the back of his home well to the side and proceeded what was wrong

with the vehicle why it was not starting.


Q: Can you tell the Court what you did?

A: Sure. He presented me with the key I check to see if it was opening and

closing first which was not the car was already open.

Q: How did you check to see whether it was opening and closing?

A: Via the key remote wise noticing that the battery was not responding.

Q: Which battery was not responding?

A: From the vehicle because the battery on the key was lighting up in red.

Q: So you determined that the remote battery was working but the car was

not?

A: The car was not.

Q: What did you do after?

A: I went forward to the car open the car turn the key to start there was

nothing at all.


Q: I used the key blade to open the trunk and proceeded to go to the battery

down to the trunk area and the condition of the battery was in a mess I checked I

asked him I told him first I have to replace the battery to continue any more

checks which I did replace the battery with a new one and proceed to go on to the

ignition to start the car and the vehicle start. From there I sat in the car because

due to the 211 model you could check the charge rate off the instrument panel on

the dash board. At that point in time it was reading 13.8 volts. There is a certain

feature you could get it to check the charge rate.

Q: Can you tell the Court how you did that -that is something that appear?

A: Not for the customer it is for our attention.

Q: Where was Mr. Pierre?

A: He was standing to the side more to the front of the car but not seeing

what I was doing and I switch off the car put on the ignition and I go to the button

menu I search and you see the charge rate come up along with the vehicle chassis

number. So I start the car which was reading 12.7 volts start the car give it a rev

and it went up to 13 volts.

Q: What does 13 volts represent?


A: It means that the alternator is charging is outputting. From there I went to

the back of the car reassembled and asked him to discard the battery because I

told him I even shake his hand I told him congratulations because knowing the

battery you have had the date on it and the date was 2003 on the battery 03 and so

I told him congratulations for a battery to last so long and that was close to 9

years and battery doh really last that long. From there I asked him to have the car

in the workshop the following day. We start work from 7:30 so have the car in

the workshop lets continue out tests and do the reprogramming of the electrical

system for him".

Analysis

3.16 The purpose of expert evidence of fact (such as for instance observation, test or

calculation) and opinion is to assist a tribunal of fact in areas of science or other technical

matters upon which they cannot be expected to form a view without expert assistance.

Nevertheless, the ultimate decision on the matters about which the expert has expressed an

opinion, remains one for the tribunal of fact and not for the expert. Indeed the task of the

tribunal of fact is to reach a conclusion based upon an assessment of the evidence or parts of the

evidence from the expert which is accepted. As was aptly put by Lord President Cooper in

Davie v. Edinburgh Magistrates 1953 S.C. 34 at page 40: "The parties have invoked the

decision of a judicial tribunal not an oracular pronouncement by an expert".

3.17 Further, in law, a judge is not bound to accept the testimony of any witness, even when

such testimony has not been contradicted by the testimony of another witness. If the trial judge


concludes that the un-contradicted testimony of a party is not consistent with the probabilities

that arise from the circumstances which exist in the particular case, he or she may find such

testimony has insufficient weight to meet the standard of proof on the balance of probabilities.

The authority for this is Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.) per

O'Halloran, J.A.

3.18 In this case I find that I am not bound by the expert evidence which was adduced. Indeed

I find that certain aspects of Mr. Romany's evidence was undermined and is not capable of

belief. I say this for the following reasons.

3.19 The first aspect of Mr. Romany's evidence which I have found to be incapable of belief is

that he ran tests on the battery in December before he advised that it be changed. I have found

this evidence to be untrue for the following reasons:

1. There is no need for the evidence of Mr. Romany to be corroborated but the reality is that

no job card was ever tendered into evidence to independently confirm the viva voche evidence of

Mr. Romany regarding the work that he did. The evidence in chief of Mr. Gary Romany is that

there was a job card in respect of Mr. Pierre's vehicle. In fact he testified that he consulted it. He

even went so far as to define for the benefit of the Court, exactly what he understood by the term

"job card". This is what was said on the matter:

"Q: You bounce the starter you took the vehicle can you tell us what tests?

A: Following from the job card from the day before.


Q: What is a job card?

A: It is a service card actually entitled as instructions what the customer

complains about we follow procedure diagnose it what checks were carried out on

the vehicle once they agree to it. So the car came to the workshop I instructed one

of my colleagues because also I am a team leader within the electrical department

one of my colleagues to have the car checked and test carry on the short tests and

make sure all the electricals are ok.

Q: Are you familiar with the records of the sales department?

A: In keeping records?

Q: When you do a chore are there records kept?

A: Yes".

Now having given all of this evidence about the job card and the records of chores being kept, no

job card was ever produced by Mr. Romany who according to his evidence is still gainfully

employed with the defendant company. In fact at one point, this matter was touched upon by

counsel for the claimant Ms. Harper when she asked Mr. Romany this:

"Q: You didn't come here with no job sheet?

Q: You don't have it?


A: No".

Mr. Romany's evidence is that he consulted the job card pertaining to Mr. Pierre's vehicle at

various stages. Also on record is the fact that Mr. Romany related what was done by him at each

stage of the process with Mr. Pierre's vehicle in particular as opposed to any other vehicle he

would have worked on since December 2012 to the present time. Without the job card being

tendered into evidence, the reality is that the tribunal of fact is left with no independent

corroborating evidence with which the viva voche evidence of Mr. Romany could be compared

to and/or tested against.

2. Mr. Pierre stated that he saw an error reading "electrical consumer switched off" on his

interior display. According to him "the words 'an electrical consumer switched off' had appeared

on the dashboard of the vehicle and the vehicle had failed on the day before Mr. Romany had

visited". Then when he went into the defendant company after the holidays this is his evidence:

"When I went back after the holiday period on the 7th January Mr. Jackman said

that the alternator there was need to change the alternator I said look listen the

computer on the car on the dashboard is saying 'electrical consumer is switched

off' that seems to be something to deal with the battery or some current thing. He

said no it was the alternator".

Oddly enough, Mr. Romany never testified as to whether he saw or did not see the error reading

in December 2012. Now if it is that Mr. Romany really did go into the vehicle and access the

function he spoke of whilst according to him he was running tests, it is passing strange that he

never mentioned the error reading which was something he would not have been able to miss the


moment he switched on the ignition. This is significant because, if the evidence of Mr. Romany

is to be believed when he said that:

"If the alternator is not sending current to the battery first you will get a light

coming on stating consumer shut off and the vehicle would not be able to drive

from point A to point B within a matter of twenty minutes because you using the

source from the battery (emphasis mine)"

then it would mean that the defendant company should have known from the first moment of

contact with Mr. Pierre that the "alternator (was) not sending current to the battery" and a

replacement battery was not going to solve the problem. Assuming I am wrong on this and the

error message never appeared on the interior display on the night in December when Mr.

Romany visited Mr. Pierre's residence or, it appeared but he never noticed it, certainly in January

2013 right after the holidays and before Mr. Pierre purchased an alternator, Mr. Jackman and by

extension the defendant company knew of the error message and surely, by this stage they should

have been put on alert that the "alternator (was) not sending current to the battery". This is

important because in his evidence in chief Mr. Romany testified that in January 2013 that when

he used his multi-meter he determined that the alternator was sending current to the battery but it

wasn't sufficient and this could have been caused by a component other than the alternator or the

battery module which caused the battery to run down:

"Q: So you have determined using your multi-meter that the alternator is

sending current to battery but it's not sufficient?

Q: What does this mean?


A: That there is another problem lies somewhere in the vehicle and due to the

customer complaint where they said the battery run down there is other

components that could cause that to happen.

Q: What do these components mean?

A: Components at the back and the alternator or the battery module which

can cause the battery to run down".

This being the case then, there is simply no way in these circumstances it could reasonably have

been thought that a replacement battery would have been addressed the problem Mr. Pierre

presented with. Indeed if this evidence is anything to go by and I certainly find that it is, then it

means that the defendant company would have been in a position to know before they

recommended that a new alternator be purchased, that a component rather than a malfunctioning

alternator was causing the battery to run down and should have advised accordingly.

3.20 In these circumstances I find that Mr. Romany did not go into the vehicle the night in

December 2012 when he made the house call. I prefer the evidence of Mr. Pierre on this issue

and therefore find as a fact that Mr. Romany did not go into the car and as such did not perform

the checks he said he did on the night in December 2012 when he made the house call to attend

to Mr. Pierre's vehicle.

3.21 I move now to the matter of the alternator.


ADVICE TO CHANGE THE ALTERNATOR

The evidence of the claimant

3.22 With respect to the advice to change the alternator, the evidence of the claimant is that

the defendant company did not exercise reasonable skill and judgment because they advised him

to change the alternator and they never conducted any tests before hand on the alternator to allow

them to give this advice since they admitted that they did not have any equipment at their

location to test an alternator off the car.

3.23 Following this admission, the defendant company suggested that the claimant obtain a

report on the alternator which he subsequently obtained and forwarded to them. It would seem

therefore that the defendant company advised that the alternator be changed before asking for a

report on same to be done and in circumstances where they did not have the equipment on site to

test alternators off cars. In fact the claimant testified that the alternator he was asked to replace

is still in his possession and is still in working condition. According to the claimant:

"When I took the car back in January I was called by Mr. Richards and I was told

oh listen it was not the battery it is the alternator. I said well what kind of cost are

we looking at now. He quoted me a figure about $13,200. approximately to have

the alternator changed and asked me whether he should go ahead and have it

replaced.

Q: Did you take his advice with respect to the replacement of the alternator?


A: Yes I took his advice. I did not buy the alternator from the company. I

sourced another alternator, a new alternator from a company in Port of Spain and

I had one Nigel Garcia -he has his own company now. I had him replace the

alternator. I didn't have him check anything I just told him Sterling was saying it

was the alternator and let us replace the alternator. I paid just beyond $5025.00

for the alternator and labour. I have a receipt for this. After that I took the car

back home and was using the car and the same thing occurred. The battery

continued to be run down. At this point and time we were into February and the

battery continued to run down. Same thing if it was 24 or 48 hours it was running

down nothing worked. So when that happened I again went back to the defendant

company and I told them what my experience was. It could have been March by

then.

...When I went back after the holiday period on the 7th

January Mr. Jackman said

that the alternator there was need to change the alternator I said look listen the

computer on the car on the dashboard is saying "electrical consumer is switched

off" that seems to be something to deal with the battery or some current thing. He

said no it was the alternator.

Q: Was there a recommendation by the company?

A: The company advised me to change the alternator I was quoted a sum of

$13200.00 approximately for the replacement of the alternator...".


3.24 Following this advice about the replacement of the alternator, there is this bit of evidence

that the defendant company admitted they did not have equipment to test an alternator off a car.

This is significant because in the Court's view it showed that notwithstanding the availability of

diagnostic aids -in this case a request for a report on the alternator, the defendant company still

went ahead and advised the claimant to change his original alternator. Further, it was only after

they gave this advice that they asked for a report of the functioning of the original:

"At some stage I reported back to the company and discussed with them

reimbursing me. That letter I don't have it with me and I spoke to a lady there I

can't now recall her name. I don't recall the date I wrote to the company. I wrote

them on two occasions the first time I made a general complaint that I should be

reimbursed and then I spoke to a lady there and she told me ok they wanted the

alternator checked. I was supposed to have brought the car down and she said

well ok we don't have anything down here to check that alternator off the vehicle

because the alternator that's the one that was replaced was off the vehicle and so

that have it done and you can bring in the report. I don't recall the exact dates

again but I took it back to the Nigel who I said before who had dealt with the

vehicle I think its European something is the name of his company and he put

back on the old alternator on the vehicle. I spoke to a female staff member at the

company I do not now recall the name if I hear the name I would be able to

recall... yes Nicola Carter.

Q: Did you produce the report on the alternator to the company?


A: Yes that was after the alternator was put back on. It was checked with

whatever gadget it is and it run for sometime it stayed on the car. I took it back I

was told to take it back the following day and the reading was good the reading

was good.

Q: Did you have to pay anything for that report?

A: Yes I paid some money I don't recall the exact amount now I paid some

money for that report.

Q: Can you say which company produced that report?

A: It's the company that is run by Nigel the ex-employee it is something

European Vehicles something. At the time they used to be in San Juan they have

now moved out to Chaguanas.

Q: It was for European Repairs Limited?

A: Yes that's the company.

Q: Sterling Service is a well established company?

A: Yes.


Q: When you took your vehicle there you took it there because? You didn't

take it to any other garage?

A: No I didn't take it to any other garage because Sterling is Benz. Sterling is

the company in Trinidad that are known to deal with Mercedes Benz and I

thought I took it to the best -I thought. I mean I trusted Sterling if Sterling say the

alternator was the alternator I accepted what they said. They said it was the

battery in the first instance I didn't question it I just went with it.

... As a result of their negligence I had to change the... alternator in fact I have an

alternator that is usable at present in my possession and that is no use to me the

original alternator I replaced it.

... A major service, service B was due on the 26th

March I had to bring the car in

on the 26th

March. After the battery failed and I reported it I agreed with Mr

Jackman to have the car examined on the electrical, on the question of the failing

battery on the 26th March when the car was due for a service. The car was

brought to the defendant's garage on the 26th

March. It was not returned soon

after. It stayed on it was kept till the 27th

in fact I took possession of that vehicle

on the 28th March. Mr Jackman told me while the car was still at the garage on

the 27 or the 28 that they now found out what the problem was and that the right

front seat control nodule had to be replaced and he quoted me a sum of $5700

more or less I told him I was told that you had found out before and if it was


possible to disconnect that part so we would be able to really check it he said yes

and he complied with it because since that time I have not had any recurrence of

the failing battery i.e. after the disconnection of the right front seat control

module. On the 3rd

April I wrote Mr. Jordan the second time up to this time I had

no response in writing from them asking having regard to the history what was his

proposal (said letter tendered and marked "AP4").

After the letter of the 3rd

the further contact I had with Sterling was sometime

after the 3rd

April. Ms. Nicola Carter called me from the company and said that

any further communication on the matter should be addressed to her she was

dealing with the matter and I should bring the car in to have the alternator

checked. She called me back later that same day an hour or so and she told me

don't bring the car in because they had no equipment at the defendant company to

check the alternator of the car so that I can go ahead and have a report done up by

where ever I can get it done. I went back to for European Repairs Limited. I

recall they were kind enough to facilitate me over the weekend in April and they

reinstalled the old alternator which I still have in my possession. The car was run,

the engine that is, was run for a certain period and certain tests were done on it.

The alternator was left overnight and I returned as requested the following day

and the vehicle was tested and it as concluded that the output was consistent and

there was nothing wrong with the alternator.

Q: Was that report sent anywhere?


A: Yes sometime after I wrote a third letter addressed to Mr. Jordan where

the covering letter merely indicated that I had complied with her request to have

a report done on the alternator and I annexed to that letter a copy of the report and

also a copy of the receipt whereby I paid for the alternator and for the cost of the

report which was $575".

3.25 The fact of the request by the defendant company for a report on the alternator after they

had advised that it be changed is to an extent supported by the evidence from "AP5". This in

material part states as follows:


13th June, 2013

Mr. Jeffrey Jordhan

Managing Director

Sterling Service (Battoo Bros) Ltd

68-70 Sackville Street

Port of Spain

ATTENTION MS. NICOLA CARTER

Dear Sir,

I refer to my previous correspondence and to my telephone conversation with your Ms. Nicola

Carter.

I enclose as requested by her a copy of the report on the old alternator and a copy of the receipt

for the new alternator with installation costs.

Respectfully,

Alfred L. Pierre

3.26 The fact that Mr. Pierre's original alternator was tested and found to be in good working

condition is supported in part by the contents of the report from For European Repairs Ltd which

was tendered and marked "AP5". This in material part provides as follows:


DESCRIPTION

The Alternator which was replaced was reinstalled on vehicle and checked by running same for

30 mins and checking its output at intervals of 10mins.

The output was found to be regular that is with an output of 13.5 volts.

The vehicle was reinspected and tested the following day 14.4.13 and the output was found to be

the same and there was no report of loss of charge overnight by the owner.

3.27 In short, the claimant premises liability on the fact that the defendant company did not

perform tests before advising that parts needed to be replaced. He aptly summed up his case in

this way:

"Q: You maintain that Sterling did not afford you the service that you

expected?

A: No they did not. They did not check the battery they just replaced the

battery and they did not check the alternator. They did not check all possible

causes that could have affected the battery and I was put through this expense

because of their lack of care and skill in repairing the vehicle...".

3.28 For these reasons the claimant says that the defendant company did not exercise

reasonable skill and judgment and, a technician would have done things differently from what


was done by the defendant company in this case and it is on this basis that the defendant

company is negligent.

The evidence of the defendant company representative

3.29 Mr. Romany's evidence is that he conducted tests on the alternator before he

recommended to Mr. Pierre that he needed to purchase a new one. As such he exercised

reasonable skill and judgment. This is what he said:

"A: The car was in the workshop that time now. I dealt with it personally in

checking the output of the alternator it was weak meaning 13.5 or 13.2. I checked

it using a tool called the multi-meter. It is an instrument that checks voltage or

amperage. It checks current. I check the output of the alternator and realizing

that they had to replace the battery and when I got the result of the battery that

was replaced in December that battery was good nothing was wrong with that

battery.

Q: In checking the output what you did is diagnostic test?

A: Correct yes.

Q: And the purpose of that was in relation to the complaint to try and figure

out what caused that?

Q: Exactly why did the battery run down?


Q: You tested the old battery in December and you are moving on to another

level another test and you're using the multi-meter. Why are you testing the

alternator?

A: Because that is one of the main components that is outputting keeping the

battery up at 12 volts well more than 12 volts.

Q: What would happen if the alternator is not sending current to the battery?

A: If the alternator is not sending current to the battery first you will get a

light coming on stating consumer shut off and the vehicle would not be able to

drive from point A to point B within a matter of twenty minutes because you

using the source from the battery.

Q: So you have determined using your multi-meter that the alternator is

sending current to battery but it's not sufficient. What does this mean?

A: That there is another problem lies somewhere in the vehicle and due to the

customer complaint where they said the battery run down there is other

components that could cause that to happen.

Q: What do these components mean?


A: Components at the back and the alternator or the battery module which

can cause the battery to run down.

Q: Alternators charge batteries?

A: Yes.

Q: Explain to the Court how an alternator can cause a battery to run down.

A: An alternator is made up of components different components inside of it.

And the reason for the slight but low charging is because of diods in the alternator

and it could have been one or two that could have been bad there is about eight.

Q: What is a diod?

A: A diod is what regulate the magnetic field in the alternator. There is a coil

built into the alternator with a shaft in the middle and once it spins it generates a

magnetic field which outputs creates current as a matter of fact and the diods is

what help send it out and it have something called a regulator which keep the

voltage under 45 volts so the vehicle does not over change the battery while the

vehicle is running.


Q: So you could have an under charge and over charge?

A: Yes.

There is another test. He told me the battery was good and I checked it with the

reading is that either the alternator or the battery module could have caused the

battery to drain but the module through the diagnostic test was not showing up

faulty. So the only option I had was to go to the alternator to do an ampier or

amperage test.

Q: You did a diagnostic test?

A: Yes.

Q: Can you tell the Court what is a diagnostic test?

A: The diagnostic test is with our STAR with our computer laptop that is

plugged into the vehicle. It reads each and every control module on the vehicle.

If there is a short on the voltage if that component is at fault or not but you need

to do the basic checks on you need to do the basic test on the module itself to see

if there is a problem.

Q: You said STAR that is a computer programme?


A: Yes from Germany.

Q: It is a diagnostic tool?

A: Yes.

Q: Which you used in January 2012?

A: And also in December 2012.

Q: And what was the result of this?

A: We couldn't proceed with diagnostic because of battery run down there

were too many faults. So once you clear that fault there would be no fault. The

vehicle had to stay for a couple of days to see what's happening. But that was not

permitted by me because of the problem we had it was over the holidays so prior

to that I pursued to do ampier test which is disconnecting of the negative battery

pole instructing the multi-meter to read amperage off the car when the car is

asleep i.e. the car shut off completely. The car has to be locked. And in doing

that test it show of 1.8 to 2.1 ampier being drawn meaning that something is

keeping the car awake it is pulling voltage and that is a heavy component that is

why you go to the alternator to check.


Q: So you not using the multi-meter to do further diagnostic tests and you're

checking to see there was something drawing current after.

A: Once you lock the car the car suppose to go to sleep meaning that once

there is no component electrical power fuse or anything keeping the car awake for

this matter the alternator is the one that was keeping the car awake pulling the

battery voltage so in checking it I for better confirmation I disconnect the main

terminal 30 the alternator wire from the battery of the alternator and wait another

10 to 20 minutes and noticed the voltage had dropped.

Q: What did you do after?

A: I leave the multi meter for 10 to 20minutes which is the normal time the

car would take to go back to sleep and there was not reading everything was fine

so it leads back to the alternator definitely was drawing the battery voltage.

I concluded that it was the alternator that was running down the battery at that

time. So I reinsert back the wire and check it back for another 20 minutes which

it was happening again and the information was put through towards the customer

that they need an alternator to be replaced".

Analysis


3.30 I do not accept the evidence of the defendant's company representative when he says he

ran tests on the alternator and found same to be malfunctioning before recommending that it be

replaced. I hold this view for the following reasons:

1. If the STAR diagnostic test was really done on Mr. Pierre's vehicle when Mr. Romany

said he first did it, the defective seat module would have been detected. The evidence of Mr.

Romany is that the STAR test "reads each and every control module in the vehicle". It stands to

reason that if Mr. Romany or any employee of the defendant company really did run the STAR

diagnostic test on Mr. Pierre's vehicle before they recommended that the alternator be replaced,

they would have picked up that the seat module was malfunctioning and this was the part that

was responsible for drawing down current.

2. I find as a fact that the defendant company did not have the equipment to test the

alternator. Indeed there was no evidence from the defendant company to directly contradict the

evidence that Ms. Nicola Carter told Mr. Pierre that the defendant company did not have

equipment to test alternators. I am fortified in this position because it accords with reason also.

This is because if it was the case that the defendant company really had the equipment to test the

alternator, why would Ms. Nicola Carter have requested that Mr. Pierre produce a report on his

original alternator as evidenced by "AP5"? And, if this never happened, why wasn't some

evidence adduced to contradict the fact that a report was requested by Nicola Carter? Moreover,

if it was that the defendant company really did run tests as they say they did, on the original

alternator, one wonders why the file or the job card was not produced in respect of this test to

contradict the findings of For European Repairs Limited especially since the findings therein

contradict the findings Mr. Romany said he made in respect of the alternator.


3.31 In these circumstances I disbelieve Mr. Romany's evidence that he ran tests on the

alternator before he recommended the alternator be replaced.

3.32 I therefore conclude that the defendant company did not exercise reasonable skill and

judgment in the manner they went about servicing Mr. Pierre's vehicle but, this is not

determinative of liability and I therefore move to the second consideration in this regard which is

whether a technician would have done things differently from what was done in this case.

2. Would a technician do anything differently from what was done in this case?

3.33 Case law suggests that where diagnostic aids are available it may very well amount to

negligence to fail to use them. In Holmes v. Board of Hospital Trustees of the City of

London (1977) 81 D.L.R. (3d)67 (Ont.H.C.) doctors who had been responsible for the

plaintiff's medical treatment ordered that x-rays be carried out. They were found to be negligent

in failing to inform themselves of the factual data which the x-rays revealed which they

themselves had identified as pertinent and necessary to the plaintiff's diagnosis and which they

knew or ought to have known was available.

3.34 Similarly, in Smith v. Salford Health Authority [1994] 5 Med. L.R. 321, Q.B.D., it

was held that the defendant should have undertaken a CT scan prior to performing a spinal fusion

operation, because this would have been a far more sophisticated and informative piece of

radiology than the x-rays upon which he relied in assessing the need for the operation and the

technique that would be required.


3.35 Additionally, in McEwan v. James (1992) 3 A.V.M.A Medical & Legal Journal (No.

3) p.12 the plaintiff recovered substantial damages from a general practitioner who had failed to

diagnose subacute endocartis, a condition which could have been identified with a full blood

count and a proper check of the patient's heart and blood pressure.

3.36 Now on the facts of the matter at hand, the evidence from the claimant which I accept as

true, is that when the battery was changed, no diagnostic tests were ever conducted on his

vehicle. I have also found that the defendant company did not request that a report on the

alternator be forwarded to them until after they advised that it be replaced when this could have

been done prior to advising it be changed. Put simply the defendant company had diagnostic

aids which were available which I have found they did not use. I also find that a technician in

the circumstances would have checked the battery and the alternator before suggesting that it be

replaced.

3.37 Now, it has been held that the simplest diagnostic tool may be a physical examination. In

the case of Stacey v. Chiddy [1993] 4 Med. L.R. 216 at pages 224-225 a medical practitioner

was held to be negligent for failing to manually examine the patient's breasts for lumps following

an inconclusive ultrasound scan. I find that when the claimant first presented with the battery

problem, the defendant company did not conduct any diagnostic test when the situation clearly

warranted some follow up action especially since -as was admitted by the defendant company

representative, the battery was not corroded nor was there any evidence of a blown fuse in the

battery.


3.38 The claimant in the instant matter further testified that he was told to get a report on his

alternator after it had been changed and same indicated that his original alternator was

functioning properly. I accept this evidence and the logical question which arises from this is,

why didn't the defendant company ask for this report to be done on the alternator before they

advised the claimant that his original alternator needed to be changed? Surely the defendant

company must be judged on what the reasonable technician would have done in exercising

proper care and skill in diagnosing the fault with the car. I also remind myself of the case of

Arland v. Taylor [1955] O.R. 131 (Ont. C.A.), where it is specifically stated that the reasonable

person is not:

"...an extraordinary or unusual creature; he is not superhuman; he is not required

to display the highest skill of which anyone is capable; he is not a genius who can

perform uncommon feats, nor is he possessed of unusual powers of foresight. He

is a person of normal intelligence who makes prudence a guide to his conduct. He

does nothing that a prudent man would not do and does not omit to do anything a

prudent man would do. He acts in accord with general and approved practice. His

conduct is guided by considerations which ordinarily regulate the conduct of

human affairs. His conduct is the standard 'adopted in the community by persons

of ordinary intelligence and prudence'".

In light of this it still seems to me that requesting a report on the original alternator before

recommending it be changed would have been the course which would have been followed by a

reasonable technician exercising proper care and skill.


3.39 What in my view compounds the fault in this case is that the defendant company

eventually did diagnose -with their diagnostic aids that the problem was a malfunctioning fuse in

one of the front seats.

3.40 In light of the aforementioned I find that the defendant company did not make the

necessary inspections and therefore could not reach reasonable conclusions as to its diagnosis

and the needed repairs when first confronted with the problem. Had the defendant company

make the necessary inspections at the first available opportunity, I am satisfied that it would have

done all that a reasonably competent repairer following the industry repair guidelines would have

done. On a totality of the evidence, I find therefore that the defendant company breached its

duty of care towards the claimant. I move now to consider the matter of loss resulting from the

breach.

3. Whether the claimant sustained loss resulting from that breach.

3.41 According to Jones, Michael. Medical Negligence. 2nd ed. London: Sweet &

Maxwell, 1996 at paragraph 5-001:

"In the tort of negligence damage is the gist of the action. If the plaintiff cannot

show that he sustained injury as a result of the defendant company's breach of

duty, there is no tort and the action fails".

3.42 What then is the damage claimed? Mr. Pierre claims that he incurred the unnecessary

expense of $4168.75 TTD in replacing his car battery. The matter to be determined is whether

this expense was incurred as a result of the defendant company's breach of duty which I have


already found to have existed. The law is that where a defendant has made an error in diagnosis

but the correct diagnosis would not have produced any difference, the error has not caused any

damage for which the defendant is responsible -even if he is negligent. The case on point is Fish

v. Kapur [1948] 2 All E.R. 176. On the facts of the case a dentist failed to diagnose a patient's

broken jaw but it was held that he was not liable because there was no treatment that could have

been given in the circumstances and the plaintiff did not suffer any additional pain or discomfort

as a result of the defendant's failure to diagnose the fracture. Similarly, on the facts of the matter

at hand, there is no evidence before me to show that Mr. Pierre had to incur the expense of

replacing his battery as a result of the negligence of the defendant company. Had some test been

done on the original battery belonging to Mr. Pierre to show that the battery still had some life in

it, I would have found differently in respect of this head of damage claimed. This evidence was

nowhere to be found and as such I deny the award of damages in respect of this aspect of the

claim.

3.43 The claimant also claims that he incurred the unnecessary expense of $5025.50 TTD in

replacing an alternator which was later found to be fully functional. Further, he claims that the

sum of $575.00 TTD was spent on running tests on the alternator. I have found this evidence to

have withstood the test of cross examination. I therefore find that the negligence of the

defendant company is causally related to these expenses because, it is clear that if there had been

a test of the alternator by the defendant company before they recommended it be changed, this

would have been a complete guarantee against Mr. Pierre incurring these expenses. As such I

award under this head, the sum of $5600.50 TTD.


3.44 Finally, the claimant sought to be reimbursed for expenses incurred as a result of loss of

use of PBO 8045 whilst it was at the defendant company's compound. The sum claimed under

this head is $5400.00 TTD. The evidence which was led in this regard and which I have found

to have withstood the test of cross examination is this:

"Q: You said in your evidence in chief that you did not have use of the motor

vehicle?

A: After the battery was installed, that new batter went dead again two days

after by the 21st December and I reported it to the defendant company and I went

to the defendant company's office where I spoke with Mr Jackman and Mr

Romany. I told him the battery had failed again and I enquired then about the

battery that was taken from my home by Mr Romany. I heard Mr Romany say

that it was discarded. Mr Jackman then told me they were going to be closed for

Christmas vacation because I would have to bring back the car to have it checked

again but they were closed for the vacation but I should have it checked early in

January.

Q: So how did you get around without the use of the car?

A: I rented a car from Wesley Nichols. A Hyundai Sonata for the holiday

period because I really needed a car for the holiday period. I rented it up to the 7th

January at $300 per day and I paid a total of $5100 for the rental of that vehicle. I

was issued a receipt for the service. I paid him on the 8th

January".


I find that the negligence of the defendant company is causally related to this expense as well

because it is clear that if there had been a thorough test of the car through the use of the computer

diagnostics from the inception, this would have been a complete guarantee against Mr. Pierre

incurring these expenses. As such I award under this head, the sum of $5100.00 TTD.

3.45 Having determined the matter on negligence, breach of contract does not fall to be

considered in this action.

3.46 I move now to my findings in this matter


PART THREE

THE COURT'S FINDINGS

On a balance of probabilities my findings in this matter are:

1. The defendant company owed to the claimant a duty of care.

2. Mr. Romany did not go into the car and as such did not perform the checks he said

he did on the 19th

December 2012 when he made the house call to attend to Mr. Pierre's

vehicle.

3. The defendant company therefore failed to run tests on the original battery in the

car before recommending that same be replaced.

4. The defendant company did not exercise reasonable skill and judgment because

they failed to conduct tests on the original battery before recommending that same be

replaced.

5. Mr. Pierre was truthful when he testified that Nicola Carter told him that the

defendant company did not have equipment to test the original alternator.

6. The defendant company did not have equipment to test the original alternator at the

material time and went ahead to recommend that Mr. Pierre purchase a replacement

alternator.


7. I disbelieve Mr. Romany's evidence that in January 2013 he conducted tests on the

alternator and found it to be defective.

8. The defendant company knew at the latest in January that the error message

"electrical consumer shut off" appeared on the interior display of Mr. Pierre's vehicle.

9. The defendant company therefore failed to run tests on the original alternator in the

car before recommending that same be replaced.

10. The defendant company did not exercise reasonable skill and judgment because

they failed to conduct tests on the original alternator before recommending that same be

replaced.

12. A reasonably competent technician would have acted differently in the

circumstances of this case.

13. The defendant company breached its duty of care towards the claimant.

14. The defendant company was negligent in the circumstances.

15. There is no evidence that the defendant company's error in diagnosis would have

produced a different outcome with respect to the replacement of the original battery. As


such the negligence of the defendant company was not proved to be causally related to the

replacement cost of a new battery.

16. The negligence of the defendant company is causally related to the replacement

costs incurred in testing the original alternator and in purchasing a replacement

alternator.

17. The negligence of the defendant company is causally related to the loss of use

expenses incurred by the claimant.

18. The claimant incurred expenses as a result of the negligence of the defendant

company. The damages are awarded in this regard amount to $10, 700.50 TTD.


PART FOUR

INTEREST

I have a discretion under section 28A of the Petty Civil Courts Act Chap. 4:21 to award

interest on the judgment sum at such rate as I think fit on the whole or any part of the judgment

sum for the whole or any part of the period between the date when the cause of action arose and

the date of the judgment. The cause of action arose on the 19th

December 2012. The date of the

entry of judgment for the claimant is the 29th

November 2013. Interest is therefore awarded to

the claimant on the judgment for the period 19th

December 2012 to 29th

November 2013 at a rate

of 6% per annum.

I also have a discretion under section 40A of the Petty Civil Courts Act Chap. 4:21 to award

interest on the judgment at 12% per annum from the time of entering up of the judgment until

same is satisfied. The date of the entering up of judgment in this case is the 29th

November 2013

as such interest at a rate of 12% is awarded to the claimant on the judgment debt from the 29th

November 2013 until same is satisfied.

COSTS

I have discretion under section 38 of the Petty Civil Courts Act Chap. 4:21 to award costs of

actions tried in court. The claimant was successful in this matter and so he is entitled to costs. In

the circumstances pursuant to Part 6 of the First Schedule of the Petty Civil Courts Act

Chap. 4:21 the sum of $500.00 TTD is awarded as Instructing Attorneys'-at-Law Fees. Further,

pursuant to Part 12(a) of the First Schedule of the Petty Civil Courts Act Chap. 4:21, I


certify the action as proper for an Advocate Attorney-at-Law and allow Advocate Attorneys'-at-

Law Fees in the sum of $500.00 TTD.

FINAL ORDER OF THE COURT

9.1 The Final Orders of this Court are therefore:

1. Judgment is entered on this 29th

day of November 2013 for the claimant against the

defendant company in the sum of $10,700.50 TTD made up as follows:

(i) Cost of replacing the original alternator $5,025.50

(ii) Cost of testing the original alternator $ 575.00

(iii) Cost of hiring alternative transport $5,100.00

2. Interest on the judgment sum of $10,700.50 TTD at a rate of 6% per annum from

the 19th

December 2012 to the 29th

November 2013.

3. Interest on the judgment sum of $10,700.50 TTD at a rate of 12% per annum from

the 30th

November 2013 until the judgment sum is paid in full.

4. Attorneys-at-Law Fees in the sum of $1,000.00 made up as follows:

(i) Instructing Attorneys'-at-Law Fees $500.00

(ii) Advocate Attorneys'-at-Law Fees $500.00

5. Stay of execution 28 days.


POSTSCRIPT

May I thank counsel for their considerable assistance in this case. I am particularly grateful for

the very detailed and illuminating oral submissions which were made in this matter by counsel

on both sides. They have helped greatly in the early delivery of this judgment.

…………………………………………

Her Worship Magistrate Nalini Singh

Petty Civil Court Judge

Dated 29th

November 2013.

Documents

ST. GEORGE WEST COUNTY PORT OF SPAIN PETTY …webopac.ttlawcourts.org/LibraryJud/Judgments/Mag/singh/... · 2013-12-09 · GEORGE WEST COUNTY PORT OF SPAIN PETTY CIVIL COURT JUDGMENT