Alton Brown v Attorney General
| Jurisdiction | Jamaica |
| Judge | Simmons, J |
| Judgment Date | 16 January 2015 |
| Neutral Citation | [2015] JMSC CIV 4 |
| Docket Number | CLAIM NO. 2007 HCV00824 |
| Court | Supreme Court (Jamaica) |
| Date | 16 January 2015 |
[2015] JMSC CIV 4
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Simmons, J
CLAIM NO. 2007 HCV00824
and
Mr. Franklin Halliburton instructed by Halliburton & Associates for the Claimant
Miss Sherry-Lee Bolton instructed by the Director of State Proceedings for the Defendants
DETINUE — DATE OF CAUSE OF ACTION — MEASURE OF DAMAGES
In October 1992 the body of a 1989 BMW, 525i (American model) was imported into the Island by one Norma Outar (the importer) under import licence no. 200924/122847. The terms of that licence prohibited its sale or commercial exchange. The licence also stipulated that the item was to be used exclusively for the purpose of the importer.
The body of the car was subsequently fitted with an engine and the vehicle was registered in the name of the importer. The claimant later purchased the vehicle from her and obtained a Motor Vehicle Certificate of Title. The vehicle was seized in May 1993 by the second defendant for the purposes of an investigation and three years later the claimant was charged with breaches of the Customs Act ( the Act). The matter was determined in his favour but the vehicle was never returned.
By way of a Fixed Date Claim Form filed on the 14 th February 2007 the claimant seeks an order for the return of the said BMW motor car. In the alternative, he has claimed compensation for its wrongful seizure and detention. In other words, damages for detinue.
On the 23 rd March 2009 a judgment on admission was entered against the defendants before Thompson-James, J and a date fixed for the assessment of damages. The learned Judge also ordered that the Fixed Date Claim Form be treated as a Claim Form.
Damages were assessed on the 11 th December 2009 in the sum of two hundred and seventy one thousand six hundred and thirty dollars and twenty cents ($271,630.20). The claimant appealed, and on the 23 rd April 2013, the matter was remitted to this Court to determine whether the defendants were liable for the period prior to the 19 th February 2001 and for damages to be assessed. The Court of Appeal also ordered that on an assessment of damages the court is to consider the period from the 19 th February 2001 to the date of assessment as well as any period before that date if the defendants are found to be liable for that period.
Mr. Alton Brown gave evidence that he is the owner of a 1989 BMW 525i motor car registration number 2484 AX which was seized on the 11 th of May 1993 as part of an investigation by the second defendant. On the 8 th November 1993 he filed a Notice of Motion in this Court to determine whether the seizure was lawful. The Court found that the Claimant was an offender under section 215 C of the Act and that the body of the vehicle was used in contravention of the terms of the licence granted to the importer. The Court also ruled that its seizure was lawful.
On the 22 nd of July 1996 he was charged with breaches of the Act. The matter was resolved in his favour on the 24 th of May 2000. He also stated that none of the charges concerned the said vehicle. On the 29 th May 2000 his Attorneys wrote to the second defendant requesting its return of the vehicle. On the 2 nd of June 2000 he was given the keys for the vehicle by an officer attached to the second defendant, but was unable to remove it from the premises due to mechanical difficulties.
On 4 th June 2000 he returned to the second defendant's offices to remove the vehicle but was prevented from doing so. Letters were sent to his Attorneys-at-law dated the 7 th and 13 th June 2000 by the second defendant indicating that they were no longer willing to release the vehicle. Demand was made for the return of the vehicle by letters addressed to the second defendant as well as the Director of State Proceedings. They are dated the 19 th February 2001, 14 th October 2004, 7 th April and 5 th June 2006. The vehicle was not returned.
The claimant stated that the condition of the vehicle has deteriorated as it has been left in the open and totally exposed to the elements. The vehicle was three (3) years old at the time of seizure and that particular model has been discontinued. The equivalent model to the BMW 525i series is the BMW 528i (American Model).
Mr. Brown also gave evidence that the vehicle was his sole means of transportation and that for approximately 6 or 7 years after its seizure he had to use other means of transportation and incurred costs of over five million dollars ($5,000,000.00). He also stated that he did not buy another vehicle as he had to pay expenses associated with the litigation. He subsequently bought a 1979 Toyota Corolla as he could not afford to buy the equivalent of a BMW.
His evidence is that when he last saw the vehicle before seizure there was no damage to the body of the vehicle. He also indicated that when he left it with his mechanic, it was for the purpose of servicing. He stated that when he saw the vehicle at the premises of the second defendant he observed rust and other damage, the back tail light was missing and the paint had started to deteriorate.
In cross examination he stated that it was a used BMW motor car that was imported. He also stated that he bought the Toyota in the year 2000. With respect to the five million dollars ($5,000,000.00) that he allegedly spent on transportation, he indicated that no documents were available due to the passage of time.
Mr. David McKay Managing Director of MSC McKay (Jamaica) Limited, Motor Collision and Appraisal Consultants also gave evidence on the complainant's behalf.
He stated that the vehicle was examined by Mr. Desmond Ellis who presented a report to him which he approved. He indicated that the BMW 525i was replaced by the 528i in 2008 and the 2011 model was the closest to the 1989 model which was appraised by his company.
The report stated that the market value of the vehicle in top condition in April 1993 was nine hundred thousand dollars ($900,000.00) and the current value of a 2011 BMW 528i in top condition is six million seven hundred thousand dollars ($6,700,000.00).
The report also stated that there was extensive fading of the paintwork and evidence of partial body restoration repairs on most panels. It also states as follows:
“Rust to body panels and flooring. Right rear door outer handle not fitted. Leather seats upholstery torn and cracked. Both rear door inner trim panels, right rear door lock striker, both rear lamps and trunk lid garnish not fitted. Interior and exterior plastic and rubber fittings show signs of deterioration. Left front rim damaged. Upper section of rear seat damaged. Dashboard cracked and damaged. Left rear door moulding not fitted. All tyres deflated and damaged (dry rot). Vegetation growing in engine bay and over sections of unit. Interior roof lamp assembly not fitted. Damage to plastic fittings, rubbers and wire lumes in the engine bay.
This vehicle appears to have been parked out in the open for an extended period and is in very poor condition. In our opinion, any attempt at restoration will far exceed the current market value of this unit in top condition. The current market value of this vehicle in top condition is two hundred thousand Jamaican dollars ($280,000.00). The market value shown below is conservative based on the nature of our inspection”.
In cross examination he stated that the current value of a 2010 Left Hand Drive BMW 525i is five million one hundred and fifty thousand dollars ($5,150,000.00) and four million five hundred thousand dollars ($4,500,000.00) for a 2009 model. Mr. McKay stated further that the body of the motor vehicle he inspected needed a paint job which would cost approximately one hundred and fifty thousand dollars ($150,000.00) and was a factor which was taken into account in its valuation. The witness also indicated that he could not say when the damage to the panels was sustained and that the repairs would exceed the current market value of the unit. That value was stated to be two hundred and eighty thousand dollars ($280,000.00).
There was no evidence offered on behalf of the defendants.
Mr. Halliburton submitted that the case of The Attorney General of Jamaica & Anor. v. Aston Burey (unreported), Court of Appeal, Jamaica [2011] JMCA Civ. 6, judgment delivered 11 March 2011, is instructive on how the court should treat the issue of damages in a case of detinue. Specific reference was made to paragraphs 7 – 10 which state, in part:-
“[7] …In conversion, the measure of damages is the value of the goods or chattels at the time of conversion — see Mercer v Jones (1813) 3 Camp 477 ; Hall v Barclay [1937] 3 All ER 620. In detinue the measure of damages is the value of the goods as at the date of trial – seeRosenthal v Alderton & Sons [1946] K.B. 374; [1946] All ER 583…
[10] In detinue where the chattel or the goods are not ordered to be returned or cannot be returned, the return of goods or measure of damages is the loss emanating from the detention whether or not the chattel is ordered to be returned. Where the chattel is not ordered to be returned, the ordinary measure of damages is the value of the goods as well as the loss arising by reason of the detention of the goods. In conversion, the damages can only be recovered by way of consequential loss.”
He also referred to the case of General and Finance Facilities Limited v Cooks Cars (Romford) Limited, (1963) 2 All ER, 314 at 319, where Lord Diplock said:
“…an action for detinue today may result in a judgment for…the value of the chattel as assessed and damages for its detention….
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