Yarng v Shannons Ltd
Judgement was delivered on 09 April 2014 in favour of the plaintiff.
There were 3 main issues:-
A. Leave to proceed under Sec 6 Law reform (Misc Prov) Act 1946.
B. Action to recover against insurer under Sec 51 Insurance Contracts Act
C. Set off of the policy deductible.
Leave to proceed under Sec 6 Law reform (Misc Prov) Act 1946
There are a number of steps that need to be satisfied but for the purposes of credit hire proceedings the main issue is whether the insurer can disclaim liability. With events policies the insurer needs to establish what actions it took and based on those actions the insurer needs to disclaim liability in separate proceedings. It will be a rare case where the insurer can disclaim.
The possibility of serving documents by way of an order for substituted service is not a relevant factor. The inquiry is whether the judgement creditor is going to be able to recover by writ of levy.
It will be a rare case where leave is refused
Action to recover against insurer under Sec 51 Insurance Contracts Act
The requirement is to make reasonable inquiries which is a question of fact in each case. The costs of such steps must be in proportion to the amount of the claim. In most cases the attendance of a process server at the address provided at the time of the accident will be sufficient.
Set off of the policy deductible.
The policy excess is a matter of contact between insurer and insured and not a set off against the liability to the plaintiff. Therefore even if the insured had been called upon to pay the XS and failed to do so that cannot limit the liability to the plaintiff. Sec 54 of the Insurance Contracts Act prevails.
Supit v White {2013} NSWLC
WBunnings Group Ltd v Chep Australia Ltd [2011] NSWCA 342 applied. Pre
judgment interest allowed.
‘An award of interest up to the date of judgment is an award of interest in the nature of damages. … The award of interest is an integral element in the attainment of the object of damages, namely to compensate [the] plaintiff… Hence the award of interest in compensatory in character.’
Interest awarded from the date the repairs are completed.
Ullah v Markobrad NSWLC 29 July 2011
When a vehicle e is over 10 years old the test of comparable vehicle may be better assessed by value
it should not be considered that the hire of a new vehicle of itself represents an unreasonable step by the plaintiff.
But when over ten years old
the court considers that it is also relevant in certain circumstances to have regard to the particular age … of the vehicle which is the subject of the replacement. … When the plaintiff’s vehicle, … is replaced with a vehicle that is at least 10 years newer than it, the question … [is] whether it is appropriate to consider that the plaintiff’s vehicle could still be considered to be a prestige vehicle.
Ultimately it is difficult when vehicles are older than 10 years old for it to consider that that is a factor that should not be borne in mind, particularly when speaking in terms of a prestige vehicle
Chong v Berry (2007) NSWLC
The actual rate that a plaintiff hires a replacement vehicle will often be the best evidence of the market cost for a replacement vehicle. [55] Dillon at [49] had regard to the “spot rate” quoted by hirers when determining a market rate. This was consistent with the approach in Dimond v Lovell [2002] 1 AC 384. Collision excess waiver fee – that such a fee was compensable as it was a foreseeable consequence of the defendant’s negligence.
Harb v Marchbank (2011) NSWLC
Need is not required [5]. Entitlement to claim damages for loss of use is sufficient. [6] Web sites can be used [22] Betterment ie newer vehicle is not applicable [30/31/39].
Miller v Walker (2011) NSWLC
Unreasonableness or extravagance are not self evident simply by the identification of a more economic means to restore the plaintiff to his former position. Defts desk top assessment not evid of unreasonableness [15/19/20]. It is a foreseeable commercial reality that there will be competing demands and exigencies that give rise to delays
Solar v Elkin [2011] NSWLC
Estoppel does not arise to acceptance of settlement for repairs. Deed of settlement to be construed to the intention of the parties – to settle the repairs.
Tang v Driden (2010) NSWLC
Need- need not be established. Mitigation. Courtesy car irrelevant. Repairer’s time estimate is irrelevant. Daily rate applies. Hire inv is a presumption throwing onus on deft. Delays irrelevant – workloads and contact sufficient. There must be a finding of some conduct on her part or a person for whom she is responsible to be an independent cause of loss. It is foreseeable that there may be delays when vehicles are given to a repairer due to either the need to obtain parts, or due to heavy workloads for repairers or insurance assessors having competing priorities. These delays, while caused by third persons, are inexorably linked to the original damage caused by the tortfeasor and cannot be considered to be a supervening or independent cause of the damage
Tehan v Saric (2010) VSC
Upheld on appeal. 8 Prior to the vehicle being repaired, the vehicle may be destroyed by some later unrelated act. The vehicle may be repaired without cost by the owner themselves, a friend or a relative. It may lie in waste and never be repaired at all. It may be given away, traded in as-is on another vehicle or sold off for its post-accident value. The law of damages does not interfere with the owner’s freedom of choice in this regard. Whatever choice the owner makes, the loss represented by the reasonable cost of repairing the vehicle is recoverable against the negligent driver. That is the law.
Kanakis –v– Beamish Magistrates Court WA. Coram Magistrate Cockram
Jgmt. 24/08/2016
The claimant had a 2006 Porsche Boxter. He hired a 2014 Porsche Boxter as a replacement. The court allowed the hire costs of $16,813.03 in full.
There were two main issues: need and rate.
Need.
The defendant wanted the claimant to be satisfied with a Nissan Pulsar. The court rejected the application of Droga –v– Cannon and Wong –v– Maroubra Automotive. The decisions in these cases are “inconsistent with the objective of damages to put the party in the position as if he had not sustained the wrong.” And further “it is not the need for a replacement that is being compensated rather it is the interference with the plaintiff’s right to use a particular property that is being compensated”, applying the Earl of Halsbury’s LC judgement in ‘The Medina’.
The idea that it is for the plaintiff to establish “the need for a replacement car of similar quality to that which was damaged” was firmly rejected.
Rate.
The Defendant mounted an age/value argument. It was rejected. the value of Mr Kanakis’ 2006 Boxter in 2014 is not a useful or appropriate way to decide what vehicle he was entitled to in 2014. Previous decisions allowing such arguments were expressly not followed including Ullah –v– Markobrad.
Non-compensable benefits.
It is for the defendant to prove the rate of hire includes such benefits. The fact that the rate was within market rate and Compass gave evidence that there was no charge made for any additional services was sufficient to dispose of this point.