Attorney General and Transport Authority v Aston Burey

• Jurisdiction: Jamaica
• Judge: HARRIS JA , DUKHARAN JA , HIBBERT JA , DUKHARANJA
• Judgment Date: 11 March 2011
• Neutral Citation: JM 2011 CA 17
• Judgment citation (vLex): [2011] 3 JJC 1101
• Docket Number: SUPREME COURT CIVIL APPEAL NO 109/2010
• Court: Court of Appeal (Jamaica)
• Date: 11 March 2011

BETWEEN

THE ATTORNEY GENERAL

1 ^st APPELLANT

AND

THE TRANSPORT AUTHORITY

2 ^nd APPELLANT

AND

ASTON BUREY

RESPONDENT

BEFORE:

THE HON MRS JUSTICE HARRIS, JA

THE HON MR JUSTICE DUKHARAN, JA

THE HON MR JUSTICE HIBBERT, JA (Ag)

SUPREME COURT CIVIL APPEAL NO 109/2010

JAMAICA

IN THE COURT OF APPEAL

REMEDIES - Detinue - Conversion - Aggravated damages - Exemplary damages - Vindicatory damages - Loss of vehicle - Special damages

HARRIS JA

1 The respondent was the owner of a public passenger vehicle, namely, a 1994 Toyota Hiace motor bus. On 30 June 2006, it was unlawfully seized by a police officer. Several requests for the return of the vehicle commencing on 10 November 2008, went unheeded. The vehicle was eventually delivered to the 2 ^nd appellant which sold it. The respondent being aggrieved by the conduct of the appellants, instituted proceedings against them claiming damages, for detinue or alternatively in conversion, for aggravated damages, exemplary damages and vindicatory damages. In his particulars of special damages, among other things, the sum of $4,000,000.00 was claimed for the loss of the vehicle.

2 A judgment on admission was entered on 18 September 2009 and on 24 September 2010, the matter proceeded to an assessment of damages. Jones J made the following orders:

• ‘1. The Claimant should be awarded loss of earnings at One Hundred and Forty Thousand Dollars ($140,000.00) per month for two (2) years – Three Million, Three Hundred and Sixty Thousand Dollars ($3,360,000.00).

• 2. Loss of vehicle – Three Million Nine Hundred and Fifty Thousand Dollars ($3,950,000.00).

• 3. Wrecker Fee agreed in the sum of Ten Thousand Dollar ($10,000.00).

• 4. Exemplary Damages – Three Hundred Thousand Dollars ($300,000.00).

• 5. Interest on special damages at the rate of three percent (3%) per annum from June 30, 2006 to September 24, 2010.

• 6. Costs to the Claimant to be agreed or taxed.’

3 The appellants now challenge the award of $3,950,000.00 for the loss of the vehicle. Two grounds of appeal were filed by the appellants but one was abandoned. The sole ground of appeal is as follows:

‘The learned judged (sic) erred by making an award of Three Million, Nine Hundred and Fifty Thousand Dollars ($3,950,000.00) for the loss of the Respondent's/Claimant's motor vehicle, which is the value of a 2005 Toyota Hiace motor vehicle including import duties and other charges, instead of Three Hundred and Eighty Thousand Dollars ($380,000.00) the value of a 1994 Toyota Hiace motor vehicle at the date of the conversion.’

4 Mr Cochrane submitted that the appellants, in their defence, admitted selling the vehicle and any award made ought to be the value of the chattel at the time of the conversion. Therefore, the proper award for the loss of the vehicle ought to be the value which prevailed at the date of conversion, and which ought to have been made in keeping with the tort of conversion, he argued.

5 It was Mr Kinghorn's submission that the relevant cause of action is in detinue and where the tort has been proven, the measure of damages is the market value of the chattel at the date of judgment. The respondent, he argued, would not have been restored to his original position on an award being made for conversion. Further, he submitted that there is evidence from Mr Sean Green, the managing director of P & S Used Car Traders, that in 2006, the value of a 1994 Toyota Hiace motor vehicle would have been between $580,000.00 and $600,000.00 and in 2006 the oldest type of that kind of vehicle which could be imported in the island would have been a 2001 model. At the date of judgment it would have been impossible to obtain a similar vehicle because of the restrictions imposed by the government on the importation of vehicles over five years old, he argued. There was unchallenged evidence, he contended, that a similar vehicle in 2010, the oldest type of which would be a 2005 model was valued at $3,950,000.00 and this was an appropriate sum which could be properly recovered in detinue.

6 The sole issue in this appeal is whether the award for the vehicle should have been grounded upon detinue or conversion. Both torts relate to the wrongful retention and the dealing with a chattel inconsistent with the possession or right of possession of another. As these torts amount to wrongful interference with a chattel, a person who is deprived of his chattel is entitled to bring an action in either or both. There are however, two important distinguishing features in relation to these torts. Firstly, in a claim for detinue, it is no defence that the defendant parted with the chattel before demand – see Ballett v Mingay [1943] 1 K.B. 281; [1943] 1 All ER 143. Secondly, where a claimant seeks only the return of the chattel he is limited to bring his action only in detinue. I hasten to add that in the instant case the claim is for the loss and damage sustained by the seizure and sale of the bus and not for its return, therefore, the return of the bus would not be a relevant consideration in these proceedings.

7 The appellants, acknowledging that there was no defence to the action, did not contest liability but contested quantum of damages. First, it will be necessary to make reference to the measure of damages in both torts. In conversion, the measure of damages is the value of the goods or chattel 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 – see Rosenthai v Alderton & Sons Ltd [1946] K.B 374; [1946]1 All ER 583.

8 In Rosenthai, the plaintiff brought an action against the defendants in detinue for the return of goods or for their value and damages for their detention. It, was the defendants” contention that the value of certain goods, which were detained and not returned, should be assessed as of the date when the defendants refused the plaintiff's claim for those goods and that the value of such goods, as were wrongfully sold, should be assessed as at the date of the sale. It was held that:

• ‘(i) the value of the goods detained and not subsequently returned should be assessed as at the date of judgment or verdict.

• (ii) the same principle applied whether the goods had been converted (provided that the plaintiff was not aware of the...