The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Court of Appeal has rejected a Government plumber’s $54,650 damages claim against a local customs broker, finding that injuries he sustained in a traffic accident did not cause the closure of his auto dealership.

Eldon Johnson, a Ministry of Works employee, had claimed that the collision with a vehicle owned by Pinder’s Customs Brokerage left him unable to operate his Truck City 2000 dealership, resulting in its closure.

This, though, was thrown out by a unanimous Court of Appeal verdict, which found that the auto business, beneficially owned by Mr Johnson and his wife, shut down because it was in financial difficulties - a development that did not result from his injuries.

Justice Ian Winder had previously awarded Mr Johnson a total $31,638 in general and special damages at the Supreme Court level, due to the “serious personal injuries” he sustained from the collision involving his motorcycle on November 10, 2006.

The plumber, though, wanted more, and appealed against Justice Winder’s “inconceivably low” damages award - especially the rejection of his claim for “economic loss” as a result of Truck City 2000’s closure.

Justice Maureen Stella Crane-Scott, writing the Appeal Court’s judgment, conceded: “A substantial portion of the appellant’s claim for damages related to the economic losses he claimed to have sustained consequent on the accident, which resulted in the closure of a car dealership which he operated through a company, Truck City 2000 Ltd, which he and his wife beneficially owned.”

Mr Johnson alleged he had lost income and dividends from the auto dealership, where he acted as purchasing agent, “as a result of the collapse of the company due to his inability to work”.

Justice Winder, though, found that Truck City 2000’s closure and any subsequent loss to Mr Johnson did not stem from his accident injuries, and was too “remote” to be connected to this.

This judgment was backed by the Court of Appeal, which relied on the established legal principle that victim must do everything in their power to mitigate losses flowing from an action against them.

Finding that this applied to personal injury cases, Justice Crane-Scott rejected arguments by Mr Johnson’s attorney, Halson Moultrie, that the auto dealership’s closure - and sell-off of its entire vehicle inventory - within weeks of the accident was an attempt to mitigate such losses.

“The appellant also challenged the judge’s finding that the evidence disclosed that the business had effectively closed down when the appellant had, less than two weeks following his injury (and some eight days following his discharge from hospital), caused the transfer of the entire inventory of Truck City 2000 Ltd to another car dealer to be sold,” Justice Crane-Scott said.

Justice Winder found this “hasty closing down of the business had been unreasonable and unwarranted”, meaning it could not be connected to the injuries Mr Johnson had suffered.

“Mr Moultrie also contended that the judge had failed to consider the fact that the business had been single-handedly operated by the appellant, and that the injuries he had sustained to his right ankle had immobilised him,” Justice Crane-Scott added.

“It appeared to us that Mr Moultrie’s contention was an attempt to convince us that the appellant’s decision to sell off the entire inventory of his Truck City dealership within weeks of the accident had been a reasonable one, and had been taken in an effort to mitigate the loss the appellant (and his company) may have suffered as a result of the injuries he sustained as a result of the respondent’s negligence.”

The Court of Appeal, though, paid particular attention to Mr Johnson’s Supreme Court testimony, which suggested that Truck City 2000 was already in financial difficulties prior to his accident, and this was the real reason for its closure.

Mr Johnson had explained that the auto dealership shut because he “couldn’t handle the business any more, because of my sickness. And the overdraft was going crazy...I couldn’t handle it anymore. I had to close it down”.

Justice Crane-Scott ruled: “In the face of the appellant’s own testimony as to the real reason why he had closed the business down, the learned judge could not be faulted for reaching the conclusion which he did;..... that the losses from Truck City were unreasonably incurred and too remote to have been incurred as a result of the injury.

“The judge expressly found that if the Truck City business was as viable as the appellant suggested, the appellant could have hired assistance to run the business in the interim whilst he was incapacitated.

“We agree with the learned judge that hiring assistance to run the business would have been a more reasonable means of mitigating any loss which he perceived would have flowed from the respondents’ negligence....

“In the circumstances, we were satisfied that the judge was entitled to reject the appellant’s claims for past and future economic loss arising from the closure of Truck City 2000 Ltd, including special damages being brokerage fees; accountant’s fees; and past loss of earnings totalling $54,650.”

The Court of Appeal judgment noted that Mr Johnson remained a full-time Ministry of Works employee, and returned to work as a plumber just over one year after his accident.

To add insult to injury, besides rejecting his economic loss claim, the Court of Appeal also reduced Mr Johnson’s damages award to $29,138, setting aside the $2,500 given to cover future surgery costs.