st. george west county port of spain petty...
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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
2 Alfred Pierre v. Sterling Service (Batoo 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
3 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
4 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
5 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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,
6 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
7 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
I turn now to the resolution of each of these matters.
8 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
9 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
10 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
11 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
... 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:
12 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
"... 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,
13 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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]
14 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
15 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
16 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
17 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
18 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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:
19 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
" 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?
20 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
21 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
22 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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?
23 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
24 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
25 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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?
26 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
27 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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?
28 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
29 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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?
30 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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...".
31 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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?
32 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
33 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
34 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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?
35 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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:
36 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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:
37 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
38 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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?
39 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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?
40 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
41 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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?
42 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
43 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
44 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
45 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
46 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
47 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
48 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
49 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
50 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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".
51 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
52 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
53 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
54 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
55 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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
56 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.
57 Alfred Pierre v. Sterling Service (Batoo Bros.) Limited
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.