Miller v Walker

Medium Neutral Citation: Miller v Walker [2011] NSWLC 10
Hearing Dates: 30/032011
Decision Date: 13/04/2011
Before: Assessor Olischlager, Small Claims Division
Decision: Verdict and Judgment for the Plaintiff.
Catchwords: CIVIL – motor vehicle accident, DAMAGES – loss of use – hire of replacement motor vehicle – period of hire
Legislation Cited: Civil Liability Act 2002, Part 4
Cases Cited: Anthanasopolous v Moseley [2001] NSWCA 266, Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452, Clark v Tull (t/a Ardington Electrical Services) [2002] EWCA Civ 510, Consort Express Lines Limited v J-Mac (No2) [2006] FCA 833, Darbishire v Warran [1963] 1 WLR 1067, Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113, Harb v Marchbank [2011] NSWLC 9
Mattocks v Mann [1993] RTR 13, Stocovaz v Fung [2007] NSWCA 199, Stoke-on-Trent City Council v W & J Wass Limited [1988] 3 All ER 394, Tang v Driden [2010] NSWLC 17, “The Mediana”, Owners of the Steamship v Owners, Master & Crew of the Lightship “Comet” [1900] AC 113, The Owners of No 7 Steam Sand Pump Dredger v The Owners SS “Greta Holme” [1897] AC 596

Category: Principal judgment
Parties: Craig Miller (Plaintiff), David Walker (Defendant)
Representation: Mr Jaramillo (Plaintiff), Mr Manion (Defendant)
File Number(s): 2010/0277043
Publication Restriction: Nil


1 The plaintiff, Mr Miller, was the owner of a motor vehicle that was damaged in a motor vehicle collision that occurred on 18 October 2009. The collision was due to the negligence of the defendant, Mr Walker.

2 On 21 October 2009 Mr Miller arranged for his vehicle to be assessed by his insurer, Insurance Australia Ltd trading as NRMA, at the NRMA Care and Repair Centre. The vehicle was then taken to Menke Auto Renewals. Repairs were carried out and completed on 16 November 2009. The vehicle collected by Mr Miller the following day.

3 During the period that his vehicle was unavailable Mr Miller hired a replacement motor vehicle. The total cost for the hire of a replacement vehicle for 17 days was $1,015.00.

4 Mr Miller seeks to recover the cost of the hire of the replacement vehicle from the defendant as a component of the loss that he suffered as a consequence of the collision. It is this aspect of the claim that is disputed.

5 In its amended Defence the defendant denies that the plaintiff has suffered a loss of use of his motor vehicle as a consequence of the collision.

6 A plaintiff has an entitlement to claim general damages for the loss of use of a motor vehicle even though that vehicle is for personal use and not used in the context of commerce or trade. In Anthanasopolous v Moseley [2001] NSWCA 266 the Court of Appeal allowed motor vehicle owners to recover the cost of hire of a substitute vehicle while their vehicle was being repaired. The decision in Anthanasopolous v Moseley applied the line of authority established by The Owners of No 7 Steam Sand Pump Dredger v The Owners SS “Greta Holme” [1897] AC 596 . The right to recover general damages was not contingent upon on either the need for a replacement or for actual loss being established. In a following case “The Mediana”, Owners of the Steamship v Owners, Master & Crew of the Lightship “Comet” [1900] AC 113 the Earl of Halsbury LC stated the principle in the following terms:
“where by the wrongful act of one man something belonging to another is either itself so injured as not to be capable of being used or is taken away so that it cannot be used at all, that of itself is a ground for damages.”

7 Even on the evidence of the defendant’s loss assessor, it is conceded that the plaintiff was deprived of the use of his vehicle, at least for a period of 8 days as a result of the collision caused by the defendant. Clearly, the plaintiff has an entitlement to recover general damages against the defendant for loss of use of his vehicle.

8 As this Court indicated in the recent decision of Harb v Marchbank [2011] NSWLC 9 , an award of general damages for loss of use of non income earning property attempts to place a monetary value for a plaintiff being deprived of the item. The entitlement to damages irrespective of actual pecuniary loss represents a departure from the ordinary principles of compensatory damages in tort.

9 In Stoke-on-Trent City Council v W & J Wass Limited [1988] 3 All ER 394 Nicholls LJ described the approach for determining damages for loss of use in the following terms [at 402]:
“It is an established principle concerning the assessment of damages that a person who has wrongfully used another’s property without causing the latter any pecuniary loss may still be liable to that other for more than nominal damages. In general, he is liable to pay, as damages, a reasonable sum for the wrongful use he has made of the other’s property [emphasis added]. The law has reached this conclusion by giving to the concept of loss or damage in such a case a wider meaning than merely financial loss calculated by comparing the property owner’s financial position after the wrongdoing with what it would have been had the wrongdoing never occurred.”

10 In Anthanasopoulos v Moseley Ipp AJA at 276-277 considered that the cost of hire of a replacement motor vehicle will generally be accepted as an appropriate basis for the assessment of loss of use.

11 In the current proceedings the defendant does not dispute the daily rate for the hire of the replacement vehicle. The issue is whether the defendant should be held liable for the hire costs for the entire period during which the plaintiff was deprived of the use of his vehicle. In particular, the defendant denies that he should be held liable for loss suffered as a consequence of delays in the quotation, assessment, authorisation and repairs caused by the plaintiff’s insurer, assessor or repairer.

12 The chronology of events surrounding the repairs is summarised. The vehicle was delivered to the NRMA Care and Repair Centre at approximately 11.30am on 21 October 2009. Mr Blanch, a loss assessor employed by IAG, the parent company of NRMA, undertook an assessment of the vehicle and determined that it was economical to repair. Mr Miller consented to NRMA selecting a repairer. Mr Blanch relied on a database of “network repairers” which identifies repairers with capacity to undertake the work. Menke Auto Renewals was selected. The allocation was recorded on 23 October 2009.

13 The Manager of Menke Auto Renewals, Mr West-Sooby, received notification of the allocation on 23 October. On the following Monday 26 October a tow truck arranged for the vehicle to be towed to the repair centre. Due to other work commitments, Menke was unable to commence work until 28 October. The vehicle was dismantled to assess the parts required. On 29 and 30 October Mr West-Sooby sourced the necessary parts. On 30 October Menke submitted a quotation to NRMA. On the following Monday Menke received authorisation to proceed. The parts were ordered. On 4 November parts were received with exception to an “after market tail lamp” which was received on 9 November.

14 Repair work on the beaver panel could not be commenced until all parts were available and trial fitted. Due to other work commitments, repairs were not commenced until 11 November 2009. Repairs were carried out and the vehicle sent for painting on 12 November. The vehicle was returned to the panel shop to commence assembly on 13 November. Assembly was completed on the following Monday 16 November and the vehicle detailed. Mr Miller collected the vehicle on the following day.

15 The loss assessor for the defendant, Mr England, undertook a desktop review of the plaintiff’s proof of loss documents. He expresses the view that the repairs to the plaintiff’s vehicle should have been reasonably completed within 8 days based on allowing 2 days for an assessment to be carried out, 2-3 days to source parts and four days to effect repairs.

16 The defendant submits that it should not be held liable for the cost of a replacement vehicle in circumstances where there has been unreasonable delay. In support of this submission the defendant relies on the principle that damages should not be unreasonable or extravagant.

17 This principle was referred to in the Court of Appeal decision of Stocovaz v Fung [2007] NSWCA 199. The Court of Appeal held that in relation to a claim for the cost of repairs there were two limitations, firstly that the claim cannot exceed the actual cost to the plaintiff and, secondly, that the cost must not be extravagant or unreasonable. Similarly, in Darbishire v Warran [1963] 1 WLR 1067 Pearson LJ at [1075] considered the obligation upon a plaintiff to minimise damage in the following terms:
“The true meaning is that the plaintiff is not entitled to charge the defendant by way of damages with any greater sum than that which he reasonably needs to expend for the purpose of making good the loss. In short, he is fully entitled to be as extravagant as he pleases but not at the expense of the defendant.”

18 Even if the Court were to accept the submissions on behalf of the defendant that these decisions reflected the proper test to be applied in the present proceedings it is difficult to identify elements of extravagance or unreasonableness on the part of the plaintiff. The plaintiff placed his vehicle to his insurer to undertake the assessment and repairs. There were unaccounted delays of two days between the assessment of the vehicle and recording the allocation to a smash repairer, a similar delay before repairs commenced due to other work commitments and a delay in receiving one part. Delays of this nature are no doubt an unexceptional part of the commercial operations of insurers and smash repairers. In any event, these were not delays caused by Mr Miller. The only delay in which he was directly involved was the collection of his vehicle one day after he was informed that it was available.

19 Issues of unreasonableness or extravagance are not self evident simply by the identification of a more economic means to restore the plaintiff to his former position. In Stocovaz v Fung Handley AJA accepted that there may not be a single fair and reasonable cost for repairing a damaged vehicle. Handley AJA stated at [37-38]:
“There is likely to be a range of costs all of which are fair and reasonable. In such a case acceptable evidence that a lower cost would be fair and reasonable cannot of itself establish that a higher cost was outside the range and not fair and reasonable. The true question would be whether the cost incurred was outside the range. In my judgment this is only another way of asking whether the cost incurred was extravagant or unreasonable.”

20 The opinion of the defendant’s loss assessor, Mr England, that the repairs should have been completed within a shorter time frame is not evidence of extravagance or unreasonableness. The defendant’s evidence falls far short of demonstrating that the plaintiff has failed to meet the test of reasonableness that the defendant seeks to apply.

21 In any event, the Court does not accept the proposition that the period claimed for loss of use of a motor vehicle is limited by some assessment as to whether each step taken by the plaintiff and others to reinstate the vehicle was reasonable.

22 The plaintiff submits that the circumstances in the present proceedings raise identical issues to those that were considered by this Court in Tang v Driden [2010] NSWLC 17 and that the approach taken in that matter should be applied. In that case this Court held that the defendant should be held liable for the cost of hire of a replacement vehicle for the period of 35 days notwithstanding that there were delays in arranging an insurance assessment, obtaining vehicle parts as well as commencing repairs due to competing work demands.

23 In Tang v Driden this Court stated:
“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.”

24 The approach taken by this Court in Tang v Driden followed the United Kingdom decision in Clark v Tull (t/a Ardington Electrical Services) [2002] EWCA Civ 510. In that case repairs to Mrs Clark’s vehicle should have taken 5 days to repair, but due to factors beyond her control it took 10 days. In a joint judgment the Court of Appeal held that the tortfeasor remained liable for entire period of the loss on the basis that the vehicle had been placed in the hands of a respectable repairer and there was no supervening event.

25 The Court of Appeal followed an earlier decision of Mattocks v Mann [1993] RTR 13. In that case Mrs Mattocks took her car to a reputable repairer. It was estimated that it would take 6 weeks to repair, but the repairs took 12 weeks to complete. Thereafter the vehicle was held for a further period of 7 months pending payment. Beldam LJ said at [18]:
“For a supervening cause or a failure to mitigate to relieve a defendant of a period of hire there must, in my judgment, be a finding of some conduct on her [Ms Mattocks] part or on the part of someone for whom she is in law responsible, or indeed of a third party, which can truly be said to be an independent cause of loss of her car for that period”.

26 In Daily Office Cleaning v Shefford [1977] RTR 361 the court held that since the plaintiffs had placed the repairs in reputable hands, had pressed for early completion of the repairs and were not to blame for the delay in delivering the spare parts, their conduct was not unreasonable, and notwithstanding that the length and cost of the hire at first sight seemed inordinately great, the plaintiffs were entitled to recover the sum claimed.

27 In that case Judge Stabb QC considered the issue as to whether the conduct of the plaintiff contributed to the cost. He adopted what was said by Lord Macmillan in Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452, at 506 as being equally applicable to tort:
“The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him [might] have been taken”.

28 These decisions demonstrate that the underlying test is one of causation. Provided that there was no intervening event the defendant would remain liable for the deprivation of the property. This approach was taken in the Federal Court decision of Consort Express Lines Limited v J-Mac (No 2) [2006] FCA 833. That case involved extensive repairs carried out to a vessel required after a negligent pre purchase report was carried out. Rares J held that the hire of a replacement vessel was reasonable notwithstanding that the repair work included some matters that were not referable to any purchase defect. The primary consideration was that the period remained attributable to the damage caused by the defendant.

29 It is also apparent that while the conduct of the plaintiff will be a material consideration, the standard of reasonableness applied is not high. Once the plaintiff has placed the vehicle in the hands of his insurer or a respectable repairer he has little control over the timeliness of repairs. While I noted in Tang v Driden that the plaintiff in that case did press for repairs to completed in a timely manner, the absence of such conduct by a plaintiff does not, of itself, suggest unreasonableness given that the plaintiff will often have little knowledge of what might be the usual time frames for effecting repairs.

30 It is argued on behalf of the defendant that the present case is distinguishable from Tang v Driden in that the delays were caused by the insurer who assumed responsibility for undertaking the assessment and nominating a repairer. The insurer stands in the shoes of Mr Miller under rights of subrogation in bringing these proceedings and therefore should be held accountable for delays it causes in the same way as if the plaintiff caused the delay.

31 I do not accept this argument. At the time that Mr Miller made a claim and brought his vehicle to NRMA Care and Repair Centre there was no acceptance or payment of a liability on the part of NRMA that gave rise to the right of subrogation on the part of NRMA. It cannot be said that NRMA’s course of conduct at this time should be deemed as being the conduct of the plaintiff.

32 Even if this assertion could be sustained, it is clear that NRMA had systems in place to manage the assessment of vehicles and allocate vehicles for repairs. The reasonableness of these systems should be viewed in the context of managing a high volume commercial enterprise. Such systems should not be measured against the perfect world advanced by the defendant. It is a foreseeable commercial reality that there will be competing demands and exigencies that give rise to delays.

33 Similar comment can be made in respect to the delays that occurred while the vehicle was in the hands of the smash repairer. Delays in obtaining replacement parts will inevitably occur. Competing work demands or a shortage in staff or other resources may mean that vehicles sit unattended in workshops for periods of time. There may be delays in the communications between insurers and repairers authorising work. All of these factors are foreseeable consequence of repairing the damage caused by the defendant.

34 The amended Defence pleads that this is an apportionable claim within the meaning of Part 4 of the Civil Liability Act 2002 and seeks an apportionment of liability on the basis that the insurer and smash repairer are concurrent wrongdoers as they were obliged to undertake work in a timely manner. The Court rejects this proposition. There is no duty upon insurers or repairers to act with the interest of the defendant in mind. Such a duty would be inconsistent with their primary obligations. In relation to insurers there is an obligation upon insurer to fairly consider claims under a contract of insurance (see for example, Edwards v the Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113). In relation to smash repairers the obligation is owed to the plaintiff usually under contract. The smash repair’s primary obligation will be to carry out repairs in a professional manner and to restore the vehicle to its pre collision condition.

35 I am of the view that there is no basis to depart from the approach taken in Tang v Driden . The period required for the repairs to be effect was wholly attributable to the negligent conduct of Mr Walker. The delays that occurred are a natural and foreseeable consequence of processes of assessing and repairing a motor vehicle. The factors that extended the period for repairs cannot be characterised as intervening events that break the chain of causation to alleviate a defendant from further liability.

36 The Court will give verdict in favour of the plaintiff for the amount claimed. Judgment is entered in the sum of $4,572.38 in relation to the claim together with interest under section 100 of the Civil Procedure Act 2005 from 18 October 2009. Costs are allowed being $201.00 issue and service fees and professional costs at the unliquidated claim default judgment scale rate of $876.60.

Assessor Olischlager
Small Claims Division
Local Court