Supreme Court
Action No. 244 of 1979
15th April, 1980
Staine, C.J.

Mr. W. P. Elrington for the Plaintiff

Contract - Breach of contract - Repudiation - Mitigation - Loss of Profit - Damages.

J U D G M E N T

This matter came before the Court for the assessment of damages upon the Plaintiff being allowed to enter judgment in default of appearance by the Defendant.

The Action arose out of a contract to repair a motor car. It was a condition that the motor car was to be repaired within two weeks. The two weeks expired and the repairs to the motor vehicle were not completed. Subsequently, the Plaintiff endeavored, even after the expiration of the two weeks, to get the Defendant to undertake the repairs, but finally in the month of June 1979 or thereabouts, the Defendant intimated in no uncertain terms that he did not intend to effect the repairs to the Plaintiff's motor car, and so the Plaintiff at that date had full knowledge that the Defendant did not intend to complete the contract.

The Plaintiff, in these circumstances, was in law in a position to do one of two things. He could either have treated the contract as continuing and wait for performance, or he could accept repudiation and sue for damages. He elected to do the latter so that he is correct in suing for damages. But the question arises as to what is the measure of damages in this case.

The Plaintiff had paid the sum of $400 to the Defendant. This he is clearly entitled to recover as money paid in consideration for a contract which was never performed. But the Plaintiff having accepted the repudiation, the contract was at an end and the Plaintiff's capacity to sustain an Action for damages was limited by a time factor. He could claim damages only up to the date of repudiation of the contract and not any further. The Defendant having made it clear that he did not intend to perform his part of the bargain, the Plaintiff could not simply sit idly by and allow time to elapse and then come to Court months afterwards and sue for damages up to the date of the commencement of the Action. Upon repudiation of the contract, the Plaintiff's clear duty was to attempt to mitigate his losses. This was a contract of personal services, a contract in respect of which the Courts would not order specific performance. Therefore, the sums recoverable in respect of the breach must be shown to flow clearly from the breach. This principle was laid down in the case of Hedley v Baxendale [1854] which is still good law.

The Plaintiff has filed in these Courts a document which purports to be an Affidavit, but it violates the cardinal principle of admissibility of Affidavit, in that on the fact of it, it does not disclose on whose behalf it is filed. In the course of the hearing in Chambers, this defect was drawn to the attention of Counsel appearing for the Plaintiff, on more than one occasion. But Counsel made no application to the Court for the use of this document as an Affidavit despite the omission. The rules of the Supreme Court clearly state that in such circumstances such a document can only be admitted in evidence if the Court so orders. No application was made to the Court for its use and therefore strictly speaking, there was no evidence on Affidavit before the Court.

In this document the Plaintiff claims refund of the money he paid the Defendant, that is $400. To this he is clearly entitled. The Plaintiff in addition claims the sum of $1,000 representing depreciation in the value of his motor car. He estimates the value of the car when it was delivered to be repaired as $1,800 and the present value is $800, the difference that represents the sum of $1,000. But the Court is not concerned with the present value of the car, but the value of the car at the date when the contract was repudiated; that was in June or thereabouts, in 1979 and the car was delivered for repairs in April, 1979. So that the depreciation which is relevant is that which took place between April and June, a period of two months. Using the Plaintiff's own figures I would award no more than $200 in respect of depreciation and I would again remind the Plaintiff that he had a duty to mitigate his losses. This is the equitable principle where the law assists the vigilant and not those who sleep on their rights.

Again the Plaintiff claims the sum of $2,160 representing loss of profits for 36 weeks at $60.00 per week. These 36 weeks is made up of July 1979 to March 1980. Again, the Plaintiff cannot reasonably claim for losses from the date of repudiation to March 1980 being the date when the damages fell to be assessed. It appears to me that not only is this wrong in law but totally without any foundation. This approach for loss of profits ought to be that reasonably flowing between the date of the repudiation of the contract and the date the Plaintiff could have obtained someone else to repair his motor vehicle. In the first instance, the Plaintiff was expecting the Defendant to repair the car within two weeks time, and it would seem ridiculous, if not outrightly dishonest, for him to claim loss of profits for 36 weeks dating from the date of repudiation. On this head of damages, I would award loss of profits in respect of four weeks at $60 per week, making a total of $240. This makes a grand total of $840 by way of damages. This I would award to the Plaintiff in full satisfaction of his claim. The Plaintiff is also to have the costs of this Action which are to be taxed.

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