This is a claim for damages arising from a motor vehicle collision on 12 July 2010. The only issue in the proceedings is a claim for what the court refers to as being general damages for the loss of use of the plaintiff’s vehicle while it was being repaired as a consequence of the collision. The plaintiff hired a replacement vehicle for a period of 35 days. There is some discrepancy, there is some evidence which suggests it was 34 days, but it is 35 days, from the 21 July 2010 through to 25 August 2010. The vehicle was hired as a replacement through City Car Rentals.

What is in dispute between the parties is a question as to whether the rate claimed being the cost of the replacement vehicle represents a true measure of the loss suffered by the plaintiff in respect to being deprived of its vehicle whilst repairs were being undertaken . Certainly, the court has dealt with these matters in numerous cases previously.

The process in which the court follows is that it acknowledges that such damages are recoverable under the principles of Anthanasopoulos v Mosely and that the market cost of supplying such a replacement vehicle is generally speaking a proper assessment of the loss suffered. In relation to the hire of the present vehicle the court notes that the plaintiff has not paid for the cost of the hire. As indicated previously in the case of Harb v Marchbank, the court is of the view that in such circumstances, the court does not consider the actual transaction between the plaintiff and the car hire company to represent a market rate of it. Clearly the arrangements between the plaintiff and the car hire company are that these are costs which were anticipated to be recovered by a third party rather than as a transaction upon which the plaintiff himself expected to pay the market costs of the hire of the vehicle.

To that extent then, the court must turn its mind to what market rates might apply in the industry at the relevant time. The other aspect which the court must turn its mind to in this case is whether the vehicle which was hired as a replacement represented a similar vehicle to that of the plaintiff’s vehicle that was subject to the damages and subject to the repairs. The court notes that the plaintiff was the owner of a Mercedes Benz E230 sedan. It is not entirely clear, it appears this was a 1996 model, it may have also been a 1996 model, the evidence is not entirely clear. However, it appears that it from the [glass guide] had an average value of $9,300. The court notes that therefore at the time of the collision, this was a vehicle which was at least 13 years of age.

The questions as to whether in such circumstances the hire of a new car was considered to be a reasonable response has been again raised in an earlier decision of Harb B Marchbank and as the court indicated at paragraph 36 of that judgement, the argument put forward by the defendant is that there are circumstances surrounding the hire of the replacement vehicle that means that the court should not rely on the rate of hire as a measure of the cost of replacement, that will always be a relevant concern . The issue of whether the replacement vehicle is a proper substitute for the plaintiff’s vehicle is irrelevant to the court’s consideration of what is a reasonable amount to award for the loss of use of property.

If moving on to paragraph 37, if the replacement vehicle hired by the plaintiff is substantially different from the vehicle that is damaged then the market rate of the hire replacement vehicle may not provide an accurate basis of assessing the damages suffered by the plaintiff for the depravation of his vehicle . By way of example, the court would not accept the cost of hire of a prestige vehicle as the proper basis for assessing the loss of use of a small economy vehicle. The court appreciates that plaintiffs who are deprived of their vehicle are not in the position to be able to hire a vehicle necessarily of the same model and age as the vehicle that is the subject of the damages. Major car hire car companies, as the court indicated in the case of Harb v Marchbank almost exclusively operate car fleets with very recent model vehicles. And so it should not be considered that the hire of a new vehicle of itself represents an unreasonable step by the plaintiff. However, the court is mindful that the circumstances of the hire of the vehicle should be considered. In this instance, the plaintiff elected to replace a vehicle that was at least 13 years of age and had an approximate average value of $9,300 with what appears to be a far more recent vehicle, 2007, Mercedes Benz E200K Sedan as a replacement vehicle.

Whilst the court does have regard to primarily the model and type of vehicle that is hired as a replacement vehicle, the court considers that it is also relevant in certain circumstances to have regard to the particular age and nature of the vehicle which is the subject of the replacement. It does seem a substantial difference between the vehicle that is subject to the damage and the vehicle that is replaced. When the plaintiff’s vehicle, a Mercedes Benz something in the order of less than $10,000 in value is replaced with a vehicle that is at least 10 years newer than it, the question has to be raised in the mind of the court as to whether it is appropriate to consider that the plaintiff’s vehicle could still be considered to be a prestige vehicle.

It was 13 years old at the time of the collision. Its value had substantially diminished. One would expect that the vehicle that is a replacement would have been likely to be in excess of $50,000 in value yet it is said by the plaintiff that this is an apples for apples type of replacement vehicle simply because it is of the same make and model. The court is of the view that where there is no great discrepancy between the ages of the vehicles, then that is probably an appropriate view. Here, however, there is over 10 years of difference in terms of the age of the respective vehicles. In those circumstances, the court doesn’t consider it is a case where it can be said that the vehicle which was replaced as a hire vehicle can be considered to be similar to the vehicle that was damaged. That therefore means that the court can neither consider that the actual transaction cost represents a true market cost of the replacement of the plaintiff’s vehicle nor can it be said that the market range of rates provided by the plaintiff are anything that could truly represent the cost of the replacement of the vehicle.

The court notes for example that some of the evidence relied upon by the plaintiff refers to an E Class saloon 2011 case, uh, car. Again in that instance, the court is looking at a vehicle that is 14 to 15 years newer than that of the plaintiff’s vehicle. The court is of the view that 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. I am sure nobody would consider swapping a 1997 Mercedes Benz with a far newer vehicle and saying well they are very similar. Clearly the values are widely different. They are so widely different in the sense that this court cannot consider that these are vehicles that are similar as a replacement. The discrepancy is to the heart of the value of the vehicle. To that extent, the court is not of the view that the rate of the particular hire can be considered to be a market rate for the replacement of the plaintiff’s vehicle, nor can it consider that the evidence provided by the plaintiff represents any market rate that the court can relevantly rely upon .

Ultimately, therefore the plaintiff has failed to satisfy the court in respect to its case in an entirely of either showing the cost of replacement is to be determined by reference of the rates it applied in this instance nor can it rely on the evidence of whatever rates are attached in its statement to Ms Shaw . On that basis, the court will find a verdict in favour of the defendant.