THE REPUBLIC OF TRINIDAD AND...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Sub Registry, San Fernando

CV 2009-02311

Between

ROHANI KHAN Claimant

And

NEVILLE JOHNSTON Defendant

(trading as “Johnston Construction”)

BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR

APPEARANCES:

Ms. Cindy Bhagwandeen for the Claimant

Mr. Dexter Bailey for the defendant

REASONS FOR DECISION

BACKGROUND

1. The Claimant alleges that by contract dated the 5th

August, 2008 the Defendant agreed to

construct a three (3) bedroom, single story house, [the said house] on a lot of land in

consideration for the sum of $568,100.40. She paid the sum of $455,000.47 (or 80% of the

contract price) to the Defendant who allegedly abandoned the job site leaving the said house

unfinished.

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2. She claims that she was required to undergo additional expenses in the sum of $83,281.18

to complete the construction of the said house.

3. The Claimant also claimed that based on a valuation of the works actually performed by

the Defendant, she had overpaid him the sum of $184,394.89.

4. By her Claim Form and Statement of Case the Claimant seeks, inter alia, the following

orders:-

(a) Payment of the sum of One Hundred and Eighty-Four Thousand Three Hundred

and Ninety-Four Dollars and Eighty-Nine Cents ($184,394.89)

(b) Damages including aggravated and/or exemplary damages for breach of contract in

the sum of Eighty-Three Thousand Two Hundred and Eighty-One Dollars and

Eighteen Cents ($83, 281.18) - sic

The Defendant was absent and as a result the Counterclaim filed on the Defendant’s behalf was

dismissed.

FACTS NOT IN ISSUE

5. (a) The Defendant was engaged to construct a three bedroom single storey residential

house [the said house] for the Claimant.

(b) The Claimant and the Defendant executed a written agreement dated 5th

August, 2008

(“The Contract”) in relation to the work that was to be completed on the said house.

(c) Pursuant to the Contract the Claimant paid the Defendant the sum of Four Hundred and

Fifty-Five Dollars and Forty-Seven Cents ($455,000.47).

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ISSUES

6.

A. Whether the Claimant is entitled to damages for breach of contract?

i. Which party breached, terminated, and/or repudiated the contract between the

Claimant and the Defendant?

ii. Whether the Claimant ordered the Defendant to cease all works and expelled the

Defendant from the job site, or whether the Defendant abandoned the job site?

B. Whether the Defendant was paid in excess of the value of the works he performed?

i. What was the value of the works performed by the Defendant on the Claimant’s

home?

C. What was the cost to complete construction?

CONCLUSION

7. The claimant has failed to establish that the defendant was the party in breach of contract.

Her own evidence establishes that she was the party in breach of contract in refusing to pay

further sums to the defendant.

8. There is no provision in the contract that stipulates the stage at which payments were to

be made, or the amount of such payments. There is no basis established on the evidence for any

contention by the claimant that the defendant had failed to make adequate progress, or was in

breach of any implied term to this effect. The claimant did not give sufficient notice to the

contractor that his progress was inadequate as to make the alleged failure to progress a

fundamental term.

9. Even assuming that the defendant was in breach of contract the claimant has failed

to establish that she has suffered the loss she alleges, or in fact any loss.

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The claimant’s written submission included the statement that “On the issue of damages, it

must be conceded that the Claimant lacks certain documentary evidence on the extent of

the loss she incurred following the Defendant’s breach of contract.” This is an

understatement.

10. There is no acceptable evidence of the value of the work that the defendant

completed. There is therefore no acceptable evidence that the defendant was overpaid for

that work. There is no evidence that I can accept as to the amount that the claimant says she

paid to another contractor, Mr. Mohammed, to complete the work on her property.

11. The evidence of the claimant and her witness is contradictory, in fundamental respects,

for example, the amount allegedly paid for labour and for material. There are no receipts for

what are substantial alleged payments. There is no written contract with him, despite the

claimant allegedly having had a bad experience with the defendant on the previous building

contract, and despite her not having known the new contractor for very long. Further the

claimant’s evidence of the source of the alleged funds used to allegedly complete the project is

contradictory.

The amount it allegedly cost to complete the project.

12. The claimant and her witness were adamant on this figure without any documentary

evidence to support it, and could not agree on the crucial amount that was allegedly paid to

Mohammed.

13. The several issues and the complete absence of documentation in this regard raise issues

of credibility sufficient for me to entertain significant reservations about relying on the evidence

of either the claimant or her witness.

DISPOSITION AND ORDERS

14. It is ordered:-

1. That the Claimant’s case be dismissed.

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2. That the Claimant do pay the Defendant’s costs on the basis prescribed by the CPR

for a claim in the sum of $267,676.07 from which is to be deducted the costs of the

counterclaim, payable to the claimant, on the basis prescribed by the Civil

Proceedings Rules for a claim in the sum of $65,000.00.

ANALYSIS AND REASONING

The terms and/or conditions of the agreement dated August 5th

2008 between the Claimant

and the Defendant?

15. The terms and conditions in the Contract included:-

1. The Defendant would construct a three (3) bedroom single storey building in

accordance with the Scope of Works referred to in Appendix 1 to the Contract.

2. The “final contract sum” as stated in the agreement was $568,100.40. In addition the

Defendant was contracted to construct reinforced concrete slipper drains as included

in the Scope of Works, but the cost thereof was not indicated.

3. The Claimant would pay the Defendant a mobilisation fee in the sum of $135,000.00

on signing the agreement and contracted to make further payments based on

progress and a final payment on satisfactory completion of the Contract.

16. The Claimant indicated at Paragraph 9 of her witness statement that there were two (2)

variations to the scope of works which were agreed in the sum of $7,500 and $20,000.00. The

Claimant made it clear that these sums were not paid for separately. The Contract price of

$568,100.40 therefore did not include this additional amount of $27, 500.00.

Whether the Claimant ordered the Defendant to cease all works and expelled the

Defendant from the job site or whether the Defendant abandoned the job site?

17. It is clear from the evidence that the Defendant did not abandon the job site as alleged by

the Claimant. The Claimant’s evidence in her witness statement is as follows:

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Paragraph 12 – “I told the Defendant that I will not be giving him any more money

until I saw my monies worth.”

Paragraph 13 – “I asked Mr. Johnston if he was going to complete the house and he told

me he needed more money to continue. I then told him that I was not going to give him

any more money until I saw more progress in the construction of my home.”

18. Under cross-examination the Claimant admitted that the Defendant was willing to continue

and complete the Contract provided that the Claimant paid the Defendant the further sum

requested and further stated that Mr. Johnston never said that he would not complete the house.

19. It is clear therefore that it was the Claimant who refused to pay the further sum requested

by the Defendant.

Who breached and/or repudiated the Contract between the Claimant and the Defendant?

20. It is undisputed that the Contract was prepared by Mr. Dennis Joseph on behalf of the

Claimant. Paragraph 4 of the Contract states, “The Client agrees to make a Mobilization payment

of One Hundred and Thirty-Five Thousand Dollars($135,000.00) on signing this Agreement and

further contracts to make further payments based on progress and a final payment on

satisfactory completion of the contract.”

21. The Contract does not expressly state:

i. Upon whose interpretation of “progress” the further sums would be paid -Whether it

is the Claimant’s or the Defendant’s,

ii. The amount of the further payments,

iii. The amount of the final payment,

iv. On what basis the Contract would be deemed to be satisfactorily completed or

v. Who would determine when the contract was satisfactorily completed?

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22. The Claimant’s main contention is that she refused to pay the Claimant the further sum

requested because she was not satisfied with the progress of the construction for the monies

already paid.

At Paragraph 12 of the Claimant’s Witness Statement she states, “I saw what he had done

for the monies I had given to him and I was not pleased as I felt the construction was not

progressing. I told the Defendant that I will not be giving him any more money until I

saw my monies worth. I told the Defendant that I had paid about 75% of the contract price

and he had not completed half the work required to complete my home.”

23. At Paragraph 13 of the Claimant’s Witness Statement she states, “...I asked Mr. Johnston if

he was going to complete my house and he told me he needed more money to continue. I then

told him I was not going to give him any more money until I saw more progress in the

construction of my home.”Nothing more was done to the house….

24. I find that there was no basis for the Claimant’s refusal to pay the Defendant the further

sum requested other than her own personal view and opinion that not enough work was done for

the monies already paid. The Claimant was not entitled under the contract to withhold further

payment under the Contract. On her own evidence the Claimant was in breach of the

Contract.

25. On the Claimant’s case that the final Contract price was $568,100.40, the sum of

$140,599.93 remained available before the contract sum would have been exceeded (the

available sum), at the time of the request for further payment i.e. the sum of $113,099.93 on

the written Contract plus the sum of $27,500.00 for the variations.

26. It was submitted that even in those circumstances the claimant had the option of making

a further payment, less than the entire available sum, to allow the defendant to progress the

works. I accept that submission.

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27. As the Claimant admitted that the Defendant was prepared to continue the construction

works once he received a further payment, on her own evidence it was the Claimant, not the

Defendant, who was in breach of the Contract.

28. It was further submitted that the Claimant’s breach was so fundamental to the Defendant’s

performance and completion of the Contract, that it went to the root of the Contract, signalled the

Claimant’s refusal to complete the Contract and entitled the Defendant to treat such a breach as a

repudiation of the Contract, which in turn discharged the Defendant from the performance of

same. I accept this submission also. It represents the law as set out in Hudson’s Building and

Engineering Contracts.para4-032

“Phillimore J. made somewhat similar observations in The Tergeste:

“The law follows good sense and business, as shown by the case of Roberts v Havelock. A

man who contracts to do a long costly piece of work, does not contract, unless he

expressly says so, that he will do all the work, standing out of pocket until he is paid at the

end… and if…payment is not made, then the shipwright or other artificer is entitled to

review his work, and say: “I have done work worth so much, true I have contracted to do

other work but it is not reasonable that I should do it, as I have not been paid, and in

respect of work I have done I claim payment.”

In a contract of this kind it is a necessary corollary that the contractor wll be entitled to treat

the contract as repudiated and cease work if there is a refusal to make the interim payment.

However, both The Tergeste and Roberts v Havelock were shipwright ship repairing cases, and

the judgments in the latter case in particular show that the practice was for shipwrights not to

work on these often costly contracts without reasonable security or payment, while in the former

case work appears to have stopped only when it became likely that no further funds would be

available.( emphasis added)

(3) Obligations as to Progress - Hudsons Building and Engineering Contracts paragraph 4-

128

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In the absence of express provision, a contractor must complete within a reasonable time. In

addition to express provisions for completion by a stated date, virtually all construction

contracts, for very good practical reasons, also contain provisions requiring due diligence or

expedition by the contractor at all times prior to completion. Thus, the English standard forms

provide that the contractor “shall…regularly and diligently proceed with the [works]” and

“shall proceed with the [works] with due expedition and without delay”, but in fact, even in the

absence of such provisions, it is submitted that there must be an implied term that the

contractor will proceed with reasonable diligence, although no doubt, in cases where a

completion date is stipulated in the contract, the degree of required progress will be measured

against the prospects of completion by that date. The reason for this latter implied term, it is

submitted, is that, otherwise, an owner will be forced to stand by helpless until the perhaps

distant completion date, notwithstanding a rate of progress clearly inadequate to achieve the

promised date and certain to cause irremedial future loss to the owner. Paragraph 4-128

In the case of the implied obligation to complete within a reasonable time, this may not be a

fundamental term or condition, mere breach of which will entitle the owner to treat the

contract as repudiated once the completion date had passed, any more than in the case of an

express completion date, but failure to proceed expeditiously after reasonable notice, whether

before or after the completion date, will it is submitted, evince an intention no longer to be

bound and so justify the owner in rescinding and treating the contract as at an end.

29. The Claimant in cross examination stated that she was not pleased with the progress of

the work performance of the Defendant and thus refused to pay him the sum of $150,000

which he demanded to complete construction on her home. She indicated that if she was

pleased she would have paid the said sum. It should be noted that at clause 4 of page 1 of the

contract, the parties agreed that after the payment of the $135,000 mobilization fee, the

Claimant would make “further payments based on progress and a final payment on

satisfactory completion of the contract.”

30. She did not give any notice. She cannot therefore contend that the defendant failed to

proceed expeditiously after reasonable notice so that the defendant evinced an intention no

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longer to be bound and so justify the claimant as the owner in rescinding and treating the

contract as at an end.

31. The claimant’s own written submission was to the effect that:-

“The Claimant’s evidence was that she refused to pay any further sums as she believed that

the Defendant’s work progress was lacking”. The claimant’s written submission was that

the Claimant rightly exercised her discretion to refuse further payment pursuant to clause 4

of the agreement. However, the Defendant refused to perform further works until he received

additional sums. It was submitted that the Defendant therefore breached the agreement between

the parties.

32. This submission is therefore simply wrong in law and in the context of the evidence in

this matter. In fact I consider that this confirms in large measure that the defendant did not

abandon the job but rather that the claimant was in breach of contract by refusing payment. The

claimant provided no objective admissible or probative evidence that the defendant failed to

progress the works so as to justify her refusal to make further payments to him.

33. She did not seek to make time of the essence but treated her perception of failure to

progress the works as a fundamental term. It is not such a term as without more, (namely, a

notice to proceed expeditiously,) allows an owner to treat the contract as repudiated.

What is the value of the works performed by the Defendant on the construction of the

Claimant’s home?

34. The Claimant pleaded that Skinner & Joseph QS Practice conducted and provided her with

an “independent quantity surveyor’s report.” A Hearsay Notice was filed in respect of this

valuation report on behalf of the Claimant and a counter-notice was filed on behalf of the

Defendant. The author of the report Mr. Dennis Joseph (the Claimant’s agent) was not produced

as a witness for the Claimant .The report was hearsay evidence. It could only be admitted for the

fact that a valuation was conducted and not for the truth of its contents. Furthermore this was

expert evidence, and, in the absence of agreement, the maker had to be produced to permit his

expert opinion to be admitted into evidence.

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35. There was therefore no admissible evidence of the value of the works completed by the

Defendant before the Court. In the absence of a valuation report properly assessing the value of

the works completed by the Defendant, the Court cannot be in a position to accurately assess

whether the Defendant was overpaid, and consequently, the sum, if any, to which the Claimant

might be entitled.

Whether the Claimant and/or Defendant is entitled to damages for breach of Contract?

36. A Claimant who brings an action for damages must prove his damage – Bonham Carter v

Hyde Park Hotel [1948] 64 TLR.

37. The Claimant specifically pleads and claims an entitlement to the sum of $184,394.89,

being the difference between

a. the value of the works done by the Defendant and

b. the monies paid to the Defendant.

However, the Claimant has failed to prove that she suffered this or any loss.

Though (b)- the sum of money paid to the Defendant by the Claimant is undisputed, there is no

admissible evidence of (a) -the value of the works completed by the Defendant.

The sum expended to have the works completed

38. Furthermore, the Claimant has failed to sufficiently prove the sum allegedly expended by

her to have the works completed. There is no sufficient proof as to whether it was more or

less than the outstanding sum of the Contract between the Claimant and the Defendant.

39. The Claimant sought to call Mr. Azad Mohammed, a contractor who allegedly completed

the construction on her house, as a witness. However, neither the Claimant nor Mr.

Mohammed produced any documentary evidence to support the Claimant’s allegations

that she expended the sum of $380,776.00 in materials and labour to complete her house.

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40. In fact rather than support the Claimant’s case, the evidence of Azad Mohammed

fundamentally contradicted parts of the Claimant’s evidence. It raised questions as to Mr.

Mohammed’s own credibility and the credibility of the claimant herself. These contradictions are

highlighted hereafter.

THE EVIDENCE

The Claimant

Credibility

41. The Claimant’s evidence is tainted by the following inconsistencies and/or contradictions

between her witness statement and her viva voce evidence:-

(1) At Paragraph 7 of the Claimant’s Defence to Counterclaim, the Claimant alleges that the

Defendant requested a further sum of $100,000.00 and the Claimant refused to pay this whereas

at Paragraph 12 of the Claimant’s witness statement, the Claimant stated that the Defendant

requested $150,000.00 which she refused to pay.

(2) Approximately one (1) month after meeting Azad Mohammed, the second contractor

allegedly hired to complete the contract, the Claimant asked Mr. Mohammed to visit her house

and provide her with a quotation for its completion. After one (1) visit to the Claimant’s home,

the Claimant readily accepted Mr. Mohammed’s quotation in the sum of $380,776.00 which

would have required her to spend more than the initial alleged Contract price of $568,100.40.

The Claimant claimed that she sought no other quotations.

(3) Curiously, the Claimant took no precautions or extra precautions to safeguard herself

despite her alleged previous experience. Instead, some of the precautions taken prior with the

Defendant e.g. entering into a written Contract ,were not undertaken at all with Mr. Mohammed.

(4) It was submitted that no such precautions were taken by the Claimant because the sum of

$380,776.00 was not incurred by the Claimant to complete her house as alleged.

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(5) One is driven to that conclusion when one considers the glaring inconsistency between the

evidence of the claimant and that of Mohammed as to how much he was paid, allegedly “in

cash” – $100,000.00 plus or minus $ 20,000.00 or $30,000.00 according to the claimant herself,

but more than $200,000.00 (“$200 and something thousand”) according to Mohammed. Neither

apparently kept any records even though the claimant had allegedly issued a pre action protocol

letter , which if actually issued, would clearly have been in contemplation of litigation.

(6) At Paragraph 17 of the Claimant’s witness statement, the Claimant stated that she

borrowed money from her daughter to hire Azad Mohammed and further detailed at Paragraph

19 the embarrassment and shame she felt as a mother to have to borrow money from her

daughter. Under cross-examination, the Claimant stated that she borrowed money from her

sister and brother-in-law. When challenged that she never stated that she borrowed money

from her sister and brother-in-law in her witness statement, the Claimant changed her story and

indicated that her sister and brother-in-law gave her the money because she never paid them

back.

(7) Paragraph 18 of the Claimant’s witness statement, the Claimant states, “I did not keep

copies of the cheques I paid to Azad Mohammed and all of my bills as I never expected there

would ever have been a need for same.”

(8) Under cross-examination, the Claimant stated that she paid Azad Mohammed over

$100,000.00 but no more than $130,000.00. However same was paid in cash and the

Claimant had no receipt of the said payments.

(9) With respect to the receipts for materials, the Claimant stated at Paragraph 18 that the

reason for having no receipts was that she didn’t keep them as she never expected to have a

need for them. However, under cross-examination, the Claimant stated further for the first

time that she lost some of her bills that she found what she could and gave them to her

lawyer. With respect to the six (6) receipts annexed to the Claimant’s witness statement and

marked “R.K. 8” the receipt from Discount Door Centre dated 23.04.09 and issued to one “R.

Khan” pre-dates the period within which the Claimant alleged Mr. Mohammed commenced the

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construction works, namely August, 2009 and is not supportive. (See Paragraph 17 of the

Claimant’s witness statement). The remainder total less than $10,000.00.

(10) The Claimant stated that she purchased approximately $280,000.00 in building materials in

cash and with Visa. The Claimant exhibited no Visa statements or bank records. Further,

while indicating that she purchased materials from Jaglal’s Hardware which was a Hardware

situated close by, when asked why she didn’t return to the Hardware to retrieve copies of her

receipts, the Claimant stated “I did not bother”

(11) Defendant’s counsel pointed out that the Claimant’s assertion in her witness statement and

under cross-examination that she didn’t bother to keep receipts because she didn’t know there

would be a need for the same lacks credibility. The Claimant clearly contemplated instituting

legal proceedings to recover any sum she felt was due and owing to her from the Defendant. This

is evident by the fact that the Claimant commissioned a valuation of the works completed by the

Defendant and thereafter used it cause her then Attorneys to allegedly issue a pre-action protocol

letter dated 5th

December, 2008 to the Defendant to recover the sum of $184,394.89. This letter

threatened that legal action would be initiated for failure to comply. I am constrained to agree.

The Credibility of Azad Mohammed

42. I accept the submission of the defendant’s counsel that the evidence of Azad Mohammed

ought not to be believed due to the following inconsistencies and/or contradictions between his

evidence and the Claimant’s evidence -

(1) The amount that was allegedly paid to him

The Claimant indicated that she paid Mr. Mohammed approximately $100,000.00 (but no more

than $130,000.00); in cash for labour and accepted that she would have bought approximately

$280,000.00 in building materials. Mr. Mohammed’s evidence was quite different–that he

received over $200,000.00 from the Claimant in cash for labour and the Claimant

purchased over $100,000.0 in materials.

(2) The absence of documentary proof

Mr. Mohammed was a businessman. He admitted to having no evidence that he undertook and/or

completed this job – no written agreement, no receipts for materials he purchased, no

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receipts showing how much he paid his workers, although he admitted to having 8-10

workers on the job site. His only explanation was that he did not consider $380,000.00 a

substantial sum of money, and he considered the job a “pretty small job”.

(3) The terms and conditions negotiated between the parties

Mr. Mohammed indicated that the terms and conditions negotiated included one that the

Claimant would purchase some materials herself as she had friends and family who could get

discounts from Hardwares. Once the Claimant provided him with the receipts he would

discount these from the quoted price. Counsel for the defendant pointed out that in fact, this

would have brought no financial benefit to the Claimant in light of the fact that there were no

separate sums quoted on Mr. Mohammed’s alleged quotation for Labour as opposed to

Materials. It is therefore unclear, and unexplained, how the Claimant’s purchase of materials at

discounted prices would benefit the Claimant when there were no separate quotes for labour as

opposed to materials. It is clear that any discounts derived by the Claimant would have benefitted

Mr. Mohammed by placing more money into his hands under the labour component of alleged

oral contract as the total under the contract remained unchanged.

43. Further, though after obtaining a quotation of $380,776.00 the Claimant and Mr.

Mohammed agreed that the Claimant would purchase some materials herself to reduce costs by

availing herself of discounts, yet the Claimant, though allegedly purchasing materials, still

claims to have expended the same sum of $380,776.00 in remedial work. I accept these

observations.

44. The claimant was constrained to concede in her written submissions that there were major

discrepancies about certain aspects of the evidence, for example, the amount of money she paid

to Mr. Mohammed;

45. It was submitted on behalf of the claimant that the said discrepancies could be expected,

especially as some time has elapsed since 2009, and further, the said discrepancies did not

detract from the fact that both witnesses were adamant on the final cost of the construction of

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the home. Yet one must wonder how could they be so adamant if they each had no record of

payment. And behind that joint adamant posturing was the reality that they were testifying on

oath about different amounts, allegedly paid for labour and material,l with a suspicious lack of

documentation.

46. There is no therefore no documentary proof of

a. the value of works completed by the defendant and/or

b. the amount expended in labour and materials to complete the building thereafter.

47. The Court has no documentary evidence that the Claimant incurred the expense of

$380,776.00 to complete the construction. Indeed, the Claimant herself admitted under cross-

examination that she could have expended less than $380,000.00 on completion of her house as

she did not know the exact figure. When combined with the evidence of Mohammed which

contradicts hers on the amount paid to him in cash, in the absence of adequate documentary

proof the Claimant cannot substantiate her claim that she expended the sum of $380,776.00 on

the completion of her home. I am therefore constrained to hold that, on a balance of probabilities,

that the Claimant has not proved her claim to damages, on the basis of the law as set out

hereunder.

DAMAGES

Law - Proof of special damages

48. Pretrial loss is an item of special damage. It has to be pleaded, particularized and strictly

proved. See Charmaine Bernard (Legal Representative of the Estate of Regan Nicky

Bernard) v Ramesh Seebalack [2010] UKPC 15 at paragraph 16 Sir John Dyson SCJ (citing

Perestrello) infra:

In Bonham Carter v Hyde Park Hotel [1948] 64 TLR Lord Goddard CJ stated that parties

“must understand that if they bring actions for damages, it is for them to prove their damage; It

is not enough to write down the particulars, so to speak, throw them at the head of the court

saying ‘this is what I have lost; I ask you to give me these damages’. They have to prove it.”

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49. The degree of strictness of proof that is required depends on the particular

circumstances of each case. As Bowen L.J. stated in Ratcliffe v Evans (1892) 2 Q B 524, 532 -

533: (all emphasis added)

“In all actions accordingly on the case where the damage actually done is the gist of the action,

the character of the acts themselves which produce the damage and the circumstances under

which these acts are done, must regulate the degree of certainty and particularity with which

the damage done ought to be stated and proved. As much certainty and particularity must be

insisted on, both in pleading and proof of damage, as is reasonable having regard to the

circumstances and to the nature of the acts themselves by which the damage is done. To insist

upon less would be to relax old and intelligible principles to insist upon more would be the

vainest pedantry.”

50. In Civil Appeal 41 of 1980 Gunness and Another v Lalbeharry, the appellant was

injured in a vehicular collision. In an action for damages for negligence the Judge allowed

certain claims and disallowed others. Among the claims disallowed was a claim for special

damages relating to the loss of various items of jewelry, handbag, cosmetics and $75.00 in cash.

On Appeal the Court held that the Judge erred in disallowing the claim. Braithwaite J.A with

whom the other members of the Court of Appeal agreed stated (at page 2 ):

“In disallowing the appellant’s claim for these items, the judge merely stated:

‘From the evidence which she gave and which was unsupported, I find that you failed to

prove such loss.’

There is no evidence to contradict the evidence of the appellant nor had she been shown

not to be a credible witness. There is therefore no justification for the judge’s finding in

this respect. The fact that her evidence is unsupported is clearly not sufficient to deny her

claim for a loss which must be taken, in the absence of evidence to the contrary, in the

circumstances of her loss of consciousness to be at least strong prima facie evidence of

the fact which she alleged.” (all emphasis added)

51. That a measure of flexibility exists in the degree of proof required for special damages was

confirmed by the Court of Appeal in Civil Appeal 162 of 1985 Uris Grant v Motilal Moonan

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Ltd. and Frank Rampersad, where Ratcliffe v Evans was applied. The appellant’s furniture

and other articles were destroyed when a vehicle ran off the road and crashed into a house in

which she lived. She claimed damages in respect of the destroyed chattels. According to the

evidence the appellant had made a detailed list of the things destroyed the day following the

accident. In the statement of claim the Appellant’s special damage claim had been particularized.

A default judgment was taken up, and in the assessment before the Master, the appellant

produced in evidence the list she had prepared which itemized each item and the price thereof.

She however produced no receipt verifying the price she had paid for the items. She admitted

that she did not have such receipts, nor did the appellant retain the services of a valuator to value

the damage.

52. The Master held that the appellant had failed to prove the value of the items and awarded

an “ex gratia” payment. The Court of Appeal held that the Master erred. The Court at page 16

noted that the appellant’s evidence as to her loss represented strong prima facie evidence and

was unchallenged. With respect to the lack of receipts to support her claim, it stated: - By the

production in evidence of the list of chattels destroyed together with the costs of their

replacement, the appellant had established a prima facie case both of the fact of loss of those

articles and of the costs of their replacement at the time. Her special damage had to be

established on a balance of probabilities. The respondent called no evidence in rebuttal. In the

event, the Master, in my view, either had to accept the appellant’s claim in full or, if for

whatever reason she had reservations she should have approached the matter along the lines in

Ratcliffe’s Case by applying her mind judiciously to each item and the cost thereof in the list.

This she did not do. Instead she merely, as stated earlier, made an ex gratia award. She did so

on the premise, wrongly in my view, that the appellant had called no evidence of any kind in

support of her claim.

In my view, the Master erred. The appellant did call prima facie evidence of her replacement

costs the fact of which, as I said was unchallenged. At this stage I must pose the question

whether in this country it is unreasonable, in a case of this kind, for a person to be unable to

produce bills for clothing, groceries, watches, kitchen utensils, furniture and/or other

electrical appliances and/or for that matter to remember the time of the purchase. To my mind,

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this is clearly in the negative and to expect or insist upon this is to resort to the “vainest

pedantry.”

With regard to proof of special damage the authors of McGregor on Damages citing the dictum

of Bowen, L.J. in Radcliffe’s Case supra and quoted earlier in this judgment state that in proof

as with pleading, “the courts are realistic and accept that the particularity must be tailored to

the facts.” (all emphasis added)

53. In a more recent decision of the Court of Appeal, David Sookoo, Auchin Sookoo

v Ramnarace Ramdath Cv. App No. 43 of 1998 per M.A de la Bastide, C.J, delivered

12th

January 2001, it was confirmed that that degree of flexibility had limits, depending

on inter alia:-

(i) The circumstances,

(ii) The nature of the claim,

(iii) The difficulty or ease with which proper evidence of value might be obtained, and

(iv) The value of the item involved.

“It is common experience that items of special damage are sometimes not proved to the

hilt and yet the Court may make an award in respect of them. It is a matter which

depends on the circumstances and evidence in each case. The Court has to decide

whether on the material before it, it can arrive at some acceptable conclusion as to the

amount which it should award.” (At page 4)

“…..These are the cases on which counsel for the Respondent relies. The sort of

evidence which a Court should insist on having before venturing to quantify damages

will vary according to the nature of the item in respect of which the claim is made and

the difficulty or ease with which proper evidence of value might be obtained. It would

also, depend in part on the value of the individual item. It may not be reasonable to

require expert evidence of the value of used household items but where one is dealing

with a motor-vehicle which usually has considerable value, and in respect of which there

mailto:award.@page

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should be no difficulty in securing proper evidence of value, then the Court is entitled

to adopt a more stringent approach.

I, accept the correctness of the decision in Grant’s case but that case is clearly

distinguishable on the facts from ours”. (At page 5)

54. See also the discussion on proof of special damages by the Honourable Justice of Appeal

Archie as he then was at pages 8 to 11 of the case of Civ. App. No. 20 of 2002 Anand

Rampersad v. Willie’s Ice Cream Limited – applying all of the above cases – as follows:-

At page 8 – “I wish to emphasise that the fact that a defendant may not challenge the

values of destroyed items given by the plaintiff does not automatically entitle the plaintiff

to recover whatever is claimed. The rule is that the plaintiff must prove his loss”.

At page 10 – “None of the latter three cases should be understood as derogating in any

way from the principle that the plaintiff must prove any special damages claimed. In

particular, Uris grant, which may appear to bear some similarity to the present case, is

merely an example of a case where the degree of particularity accepted by the Court of

Appeal was considered to be appropriate in those special circumstances. In this case the

Plaintiff/Respondent is a commercial enterprise. It would have been reasonable to

expect that some evidence of the value of the larger items could be found in its books

and records.”

At page 10 –“ a lesser degree of strictness would apply to proof of the value of smaller

items such as kettles, mops (etc .In accordance with Uris Grant the Master, in the

absence of any evidence to the contrary, would have been entitled to accept a reasonable

figure”.

At page 10-11 “the plaintiff cannot simply present a list of prices, it must show the basis

on which the figures are established” (all emphasis added)

The principles summarised

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55.

1. The principles revealed by the cases are that special damages must be particularized and

pleaded. (See Seebalack)

2. Special damages must be proved by evidence.

3. The degree of proof varies depending on

(i) The circumstances,

(ii) The nature of the claim,

(iii) The difficulty or ease with which proper evidence of value might be obtained,

and

(iv) The value of the item involved. (See Sookoo)

4. Even prima facie evidence may, in some instances suffice if not rebutted or

challenged, and common sense must be applied in deciding whether such

evidence can reasonably be expected to be available to the claimant. – (Uris

Grant, Guinness v Lallbeharry)

The nature of the claim/ value

56. In this case the quality of the evidence must be considered in the light of the nature of

the claim. The claim is for in excess of a quarter of a million dollars. The evidence in support as

set out in the witness statements of Mr. Mohammed and the claimant lacks documentary support.

The difficulty or ease with which proper evidence of value might be obtained

57. Mr. Mohammed is a businessman. He keeps records. The claimant has a duty to support

such a substantial claim by reference to material that demonstrates inter alia, the amount that she

claimed to have spent a. on materials and b. in payment to Mr. Mohammed. Their unsupported

and contradictory evidence is extremely unconvincing. Evidence from the records of the

claimant or Mr. Mohammed or from the quantity surveyor who actually produced a report but

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who was not produced for cross examination would have been far more convincing than the

evidence that was actually produced.

58. The failure to present such material led to the inference that there was no such material,

or that such material as existed did not support the claimant’s claim. The facts, records, and

accounts that would be supportive of such a claim would be expected to be within the custody

and control of the claimant, who allegedly paid the sum of $380,000.00, borrowed from either

her daughter or her sister and brother in law (-the evidence fluctuated). These were not disclosed

or produced.

59. The Claimant’s witness provided evidence of payments allegedly made to him “in cash’

which, alarmingly, conflicted to a significant extent with that of the claimant, who was the one

who made these alleged payments to him. It is not unreasonable to expect these figures to agree,

and to refuse to accept the evidence of either or both where they do not.

60. I am constrained to find unreliable the evidence of both Mr. Mohammed and the claimant

in relation to the payments that allegedly had to be made to complete the works under the

original contract.

61. The relaxation of the standard of proof is not available in the circumstances of this case in

relation to a claim for a substantial amount in respect of which ,on the claimant’s own evidence,

there must have been documents,- including, cheques, credit card statements, invoices and bills

from hardwares, and possibly receipts from the second contractor.

62. Such a relaxation of the standard of proof is not available to a claimant whose evidence

as to why she has no documentary evidence whatsoever reeks of suspicion, and whose main

witness significantly contradicts her own evidence.

63. This suggests a fabrication, and a failure of the claimant and her witness to keep their

stories aligned, and is not a situation where a court can afford to relax the principle, which, in

effect, is that special damages must be at least supported by probative and admissible evidence

suitable to the context and circumstances.

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64. In the circumstances of this case I find that this claim for alleged expenditure to complete

the original contract has not been proved.

CONCLUSION AND DISPOSITION

65. The claimant has failed to establish that the defendant was the party in breach of contract.

Her own evidence establishes that she was the party in breach of contract in refusing to pay

further sums to the defendant. There is no provision in the contract that stipulates the stage at

which payments were to be made, or the amount of such payments. There is no basis established

on the evidence for any contention by the claimant that the defendant had failed to make

adequate progress, or was in breach of any implied term to this effect. The claimant did not give

sufficient notice to the contractor that his progress was inadequate as to make the alleged failure

to progress a fundamental term.

66. Even assuming that the defendant were in breach of contract the claimant has failed

to establish that she has suffered the loss she alleges, or in fact any loss. The claimant’s

written submission included the statement that “On the issue of damages, it must be conceded

that the Claimant lacks certain documentary evidence on the extent of the loss she incurred

following the Defendant’s breach of contract.” This is an understatement.

67. There is no acceptable evidence of the value of the work that the defendant

completed. There is therefore no acceptable evidence that the defendant was overpaid for

that work. There is no evidence that I can accept as to the amount that the claimant says she

paid to another contractor, Mr. Mohammed, to complete the work on her property.

68. The evidence of the claimant and her witness is contradictory, in fundamental respects,

for example, the amount allegedly paid for labour and for material. There are no receipts for

what are substantial alleged payments. There is no written contract with him, despite the

claimant allegedly having had a bad experience with the defendant on a building contract, and

despite her not having known the new contractor for very long. The claimant’s evidence of the

source of the alleged funds used to allegedly complete the project is contradictory.

The amount it allegedly cost to complete the project.

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69. The claimant and her witness were adamant of this figure without any documentary

evidence to support it, and could not agree on the crucial figure that was allegedly paid to

Mohammed. The several issues and the complete absence of documentation in this regard raise

issues of credibility sufficient for me to entertain significant reservations about relying on the

evidence of either the claimant or her witness. Having regard to the conflicting sums alleged and

the absence of supporting documentary evidence of payments from either of these witnesses on

this most fundamental of matters it is clear that their evidence in this regard cannot be accepted.

70. I find that the Claimant has not proven her case on a balance of probabilities. Not only

has she not proven that the Defendant breached the Contract by abandoning the job site as

alleged, her own evidence demonstrates that she was the party in breach. Further she has

failed to prove a. the value of the works completed by the Defendant and/or b. the sum

expended by her to complete the construction.

71. IT IS ORDERED:-

1. That the Claimant’s case be dismissed.

2. That the Claimant do pay the Defendant’s costs on the basis prescribed by the CPR

for a claim in the sum of $267,676.07- from which is to be deducted the costs of the

counterclaim , payable to the claimant, on the basis prescribed by the CPR for a claim

in the sum of $65,000.00.

Dated this 8th day of August, 2012.

Judge

Peter A. Rajkumar

The court wishes to record its appreciation to counsel for the defendant who provided comprehensive and thorough

submissions from which much assistance was derived, and from which the court has quoted in part.

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