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Lee Hang Enterprises Ltd v Enari [1997] WSMC 1 (9 September 1997)

IN THE MAGISTRATES COURT OF WESTERN SAMOA
HELD AT APIA

BETWEEN:

LEE HANG ENTERPRISES LIMITED
a duly incorporated company having its registered office at Matautu and trading as Myna's Video
Plaintiff

AND:

PUNEFU ENARI
of Vaiala, Yasaki Employee
Defendant

COUNSELS: R. Drake for Plaintiff
T.K. Enari for Defendant

HEARING: 3rd September 1997
DECISION: 9th September.1997

DECISION OF VAAI, MGT

On the 5^th November 1996 two video films entitled Desire and Boys were burnt in a house fire. The video films were copies. Two very senior counsels appeared before this Court to argue who should pay for the burnt videos.

The plaintiff operates a video store and the defendant has been a member since about 1992. He has a membership card for the purpose of hiring video films from the video store. On the 1^st November 1996 which was a Friday the defendant hired the two video films. He conceded the tapes were to be returned on Saturday the 2^nd Monday. An overdue fee of $8.80 per night except Sunday night is charged if the tapes are not returned on time. By Tuesday the 5^th November the tapes were still not returned. Unfortunately the house of the defendant was destroyed by fire that day. The two video tapes suffered in the fire.

The plaintiff claims against the defendant for the replacement cost of the films. The two films were copied from the originals on to blank tapes. Blank tapes are sold by the plaintiff at $40 per tape. Mr Lee Hang of the plaintiff company is not sure of the cost price. He says the replacement cost for the two tapes is more than $1,000 being the cost of the blank tapes and the loss of income. But out of sympathy for the loss suffered by defendant from the fire the claim has been reduced to $350.

On the other hand the defendant says the video films were destroyed by a fire and because he was not responsible for the fire he should not pay for the damaged tapes. The defendant has been hiring video tapes from the plaintiff since 1992. He knew it was his duty to return the tapes the following day. Displayed at the counter of the video store is a notice concerning the displacement costs of the tapes lost or damaged. So that for 5 years since he was a member of the plaintiff's video store he knew and accepted to be responsible for any video tapes damaged or lost whilst in his possession. In any event the defendant had the video tapes since the 1^st November and by the 5^th November they were still not returned. He admitted he forgot to return them. He is liable for the replacement value of the tapes.

What is the replacement value of the two video films? The plaintiff said the replacement cost and loss of profit is more than $1,000. Replacement cost is really the cost of the blank tapes plus the cost of copying the film into the blank tapes – a process termed in other jurisdictions as pirating or infringement of copyright. Any loss of profit would be covered by the overdue fees charged from the 2^nd November to the 5^th November amounting to $26.40. The plaintiff is not entitled to anything more than the price of the blank tapes and the overdue fees. I fix the cost price of the blank tapes at $70. The plaintiff is therefore entitled to judgment for $96.40. I make no orders as to costs.

MAGISTRATE