Thawer v Clark (C.A. 6/1930.) [1930] EACA 22 (1 January 1930)

COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR CHARLES GRIFFIN, C. J. (Uganda), PICKERING, C. J. (Zanzibar), and THOMAS, J. (Kenya).

ABDALLA JAFFER THAWER (Appellant) (Original Defendant)

Đ.

ARCHIBALD CLARK (Respondent) (Original Plaintiff). C. A. $6/1930$ .

Measure of damages for conversion.

Liability of each member of a group of persons for a joint act of conversion.

Held: - That the general rule is that the damages are at least the value of the thing converted. Special damage over and above the value of the goods is recoverable in the same action if laid in the statement of the car a liability for its value, and for any special damage<br>arising directly out of the deprivation suffered by the respondent, was incurred by each member of the party including the appellant.

Master for appellant.

$R.$ N. Clark for respondent.

PICKERING, C. J.—These proceedings arose out of the unauthorized borrowing of the respondent's motor car by some six persons of whom the appellant was one. The finding of the trial Judge was expressed as follows: "There was a concerted action on the part of all the defendants to take Mr. Clark's car for the purpose of a joy ride". This finding is amply supported by the evidence adduced at the trial and must be regarded by this Court as being correct.

Before the car was returned to the respondent's possession it came into collision with a tree and was so damaged as to have been rendered practically valueless. It was contended at the trial that before the collision occurred the appellant had got out of the car and gone into his own house, and that he was not responsible for the damage caused by the negligent driving of one of the other co-defendants in the suit. Upon this issue, the learned Judge returned no finding, and if the appellant's presence in or absence from the car at the time of the collision is material to a decision regarding the appellant's liability it will be necessary to direct a retrial of the suit. In my opinion however the issue framed enquiring whether the appellant was an occupant of the car at the time of the accident was irrelevant to the question of his liability. The six defendants took the car out of the respondent's possession at the Sunrise Hotel unlawfully and by doing so deprived the respondent of his property.

for an indefinite time. Indeed the deprivation of the respondent has proved to be permanent. Each of the group of persons became liable in damages for the joint act of the conversion of the respondent's car so soon as the conversion was effected. $\mathbf{I}\mathtt{n}$ actions for conversions, the general rule is that the damages are at least the value of the thing converted. Special damage over and above the value of the goods is recoverable in the same action if laid in the statement of claim and proved at the trial. So soon as the defendants removed the car by driving it away from the Sunrise Hotel a liability for the value of the car, and for any special damage arising directly out of the deprivation suffered by the respondent, was incurred by each member of the party including the appellant. That liability could not be avoided by a return of the car, but a restitution could have been set up and proved by the defendants in mitigation of the damages claimed. No such mitigation was possible in this case, and the appellant has remained personally liable for the value of the car which he drove away from the hotel, together with any other loss directly caused to respondent by that act. $\mathbf{In}$ my opinion the appellant's movements during the later portion of that night did not affect the liability already incurred by him.

The appellant has also complained that the damages awarded to the respondent are excessive and should be reduced. The claim put forward by the respondent was for Sh. 6,000. the value of the car; for Sh. 1,400 for his detention away from his business; and for Sh. 2,000 as general damage. I do not understand a claim for general damage in a suit for conversion. The only evidence given in support of this last claim is to the effect that the respondent being deprived of the use of his car was obliged to use a rickshaw. Possibly the claim for Sh. 2,000 is put forward as compensation for pain and suffering. Whatever the respondent had in mind when asking for £100 he has shown no good reason why any defendant should be ordered to. pay it to him. The seven days detention at Bagamoyo is shown by the evidence to be the duration of a voluntary visit to that place by the respondent for the purpose of instituting criminal proceedings, or of pressing the claims put forward in these proceedings. The accident occurred on a Saturday night. On the following Monday the respondent was back at his place of business, and the expenses of his return to Bagamoyo cannot be added as special damage arising out of the defendant's tortious There 'remains the value of the respondent's car at the acts. time of the conversion. Here again the evidence is meagre. It was purchased in July, 1928, for £280. Extras costing £20 were added. The car when driven from the hotel was just on twelve months old and had been driven (presumably by a native driver) for 5,000 miles. It was in good running order. If the car is taken to have been returned to the respondent his own witness

assessed the damage at £200. That witness's evidence is however in my opinion distinctly speculative and not very convinc-. ing. No proper examination of the car had been made. In my opinion $£250$ is a generous value to place on respondent's car on the 29th June, 1929. Whether any portions of the car such as tyres, spot light, battery, etc., should be deducted in mitigation as returned by the defendants and accepted by the respondent, it is not possible to ascertain from the record. It would not seem possible to reduce the damages on the ground that chattels of value have been returned to the owner. In my opinion it would not be open to a jury to assess the respondent's damages at a sum exceeding Sh. 5,000 and I would reduce the decree granted to that sum. The appellant has succeeded only as to part of his appeal and I would make an order that there be no costs in respect of the proceedings in this Court.

THOMAS, J.—I agree.

SIR CHARLES GRIFFIN, C. J.—I agree.