Appeal for disputes

The Privy Council is the final court of appeal for disputes emanating from Commonwealth jurisdictions, and carries out its duties in a similar manner to the House of Lords.

Very recently the Privy Council was asked to consider the manner in which damages would be assessed in relation to an action brought in the tort of negligence. In this particular case the damages incurred by the plaintiff had greatly escalated as a result of the plaintiff's inability to put right defects until the court case had been concluded in its favour.

Alcoa Minerals of Jamaica Inc owned a smelting plant which was alleged to have generated and dispersed into the atmosphere pollutants, noxious gases and corrosive dust. Herbert Broderick owned a property in the neighbourhood of the plant and complained that omissions had caused corrosion to the galvanised zinc panels of the roof of his house.

When the damage first occurred he repaired it, but by 1989 the damage had occurred again and he was not able to pay for the necessary repairs. In 1990 he commenced proceedings against Alcoa Minerals and calculated his damages for the cost of repairing the roof at $211,000 Jamaican dollars.

It seems that litigation in Jamaica is no faster than litigation in England, and by 1994 a judgment had still not been obtained. The cost of repairing the building had however, dramatically increased largely due to rapid inflation and the fall in the value of the Jamaican dollar. In March 1994 the court allowed Broderick to amend the amount of his claim to approximately $938,000.

Eventually in early 1995 the court found for Broderick and awarded him the full amount of the increased sum claimed. Alcoa Minerals complained bitterly to the Court of Appeal that they should not be liable for the higher figure and that the original figure was correct. That was the cost of repair at March 1990 when the physical damage had occurred and it was this lower sum, and no other, to which they should be held accountable.

The Court of Appeal accepted that the general rule in tort was that damages should be assessed at the date of the breach. This was a principle clearly enunciated by Lord Wilberforce in the Court of Appeal in 1976 in the case of Miliangos -v- George Frank (Textiles) Ltd, but Lord Wilberforce had made it clear that the rule was subject to exceptions. In particular, where that rule would produce injustice, the court had a discretion to take some other date for assessment of damages.

The Court of Appeal of Jamaica had also considered the 1933 decision in Liesbosch Dredger -v- Edison. The Liesbosch was a dredger doing construction work under a contract with heavy penalties for delay. The dredger's moorings were fouled by the Edison and consequently the dredger sank.



The dredger's owners could not purchase another dredger because of want of funds, and so instead a replacement dredger was hired. They were awarded as damages the market price of a comparable dredger on the day the Liesbosch sank, together with the cost of adapting it and transporting it to the site. It was held that they were not entitled to the cost of hiring which was categorised as a separate head of damage arising due to a separate cause, namely the owner's lack of funds for which the defendants could not be held liable.

In the present case the Court of Appeal held that the Liesbosch decision depended on a different set of facts. In particular Broderick was not seeking different heads of damage. There was only one head of damage, namely the cost of repairing the building. The need to repair the roof was a direct consequence of the negligence of Alcoa Minerals and the real question was therefore whether Broderick was in breach of his duty to mitigate his damage. The Court of Appeal decided that Broderick was fully entitled to wait until the outcome of the litigation was known before proceeding with repairs and therefore he was not in breach of any requirement to mitigate.

The Privy Council reviewed these matters. They concluded that it seemed to have been obviously foreseeable that if the house of a person in a position of the plaintiff was seriously damaged, he would not or might not have the wherewithal to repair it. Furthermore, it was foreseeable that his ability to repair might depend on his establishing liability and recovering damages from the defendant. Even assuming that Broderick could have raised a loan, by waiting and not borrowing money at a high rate of interest for some six years he was not in breach of his duty to mitigate.

It was concluded that Broderick had behaved reasonably by waiting, if indeed he had any realistic choice to do anything but wait, until money was available from Alcoa Minerals. He needed to be reasonably sure that Alcoa would pay or be liable before he did the repairs. That took time and there had been no evidence to suggest that the delay in obtaining the judgment was the fault of Broderick.

There was no question of Broderick deliberately delaying doing the repairs so as to increase Alcoa Mineral's liability. The Privy Council also recognised that there was no windfall in this process for Broderick. On the contrary, it would be a hardship for Broderick not to get the cost of repairs actually expended.

In conclusion the Privy Council affirmed the award of special damages of the Court of Appeal in favour of Broderick in the amount calculated from the point at which liability had been established.