Plaintiff Seeks Hire-Car Expenses After Collision with the Defendant
Kinkead v Rositani [2021] VMC 9 (11 August 2021)
The plaintiff claims damages due to the collision which he alleged was caused by the negligent driving of the defendant. The defendant asserts that the plaintiff had not acted reasonably and had failed to mitigate his damage because he did not claim under his own comprehensive policy. The Court, in adjudicating this dispute, assessed the plaintiff's impecuniosity.
Facts:
On 11 March 2020, Mr Warwick Kinkead’s 2008 BMW ‘X series’ motor vehicle (‘the vehicle’) was parked in Weatherall Road, Cheltenham. The parked vehicle was struck and damaged by a car driven by Ms Samantha Rositani (‘the collision’). Mr Kinkead, the plaintiff, claimed damages due to the collision which he alleged was caused by the negligent driving of Ms Rositani, the defendant. The vehicle was a write-off. Mr Kinkead claimed (among other things) the write-off value of the vehicle and hire-car expenses. The sum claimed for hire-car expenses was $33,325 (being 215 days at a rate of $155 per day).
On 10 July 2020, the defendant admitted liability. On 23 September 2020, Ms Rositani’ s insurer (‘RACV’) paid an amount of $24,600 to Mr Kinkead via his solicitors representing the write-off value of the vehicle. At the time of the collision, the vehicle was comprehensively insured by RACV. Mr Kinkead’s comprehensive policy included provision of a hire car but pursued a claim against the ‘at fault’ driver rather than to claim under his own policy.
The defendant contended that in taking this course of action Mr Kinkead had not acted reasonably and had failed to mitigate his damage.
Issues:
I. Whether or not the plaintiff discharged the burden of proof that he was in fact impecunious.
II. Whether or not it was reasonable for plaintiff to wait until after write-off payment made by defendant’s insurer to buy replacement vehicle.
III. Whether or not it was reasonable for the fault-less plaintiff to opt not to claim under his own comprehensive insurance policy which included hire-car benefit.
IV. Whether or not the Court should grant Mr Kinkhead's claim for hire-car expenses.
Applicable law:
Rule 40.02 (20(b) of the Magistrates’ Court General Civil Procedure Rules 2020 - provides that except where otherwise provided by any Act or these Rules, and subject to any agreement between the parties, evidence must be given—
(a) on an interlocutory or other application in any proceeding, by affidavit;
(b) at the hearing of a proceeding, orally.
Fallon v Johnson [2018] VSC 273 at [19] - where a plaintiff suffers loss due to their motor vehicle being written off in a collision due to the negligence of the defendant, the ordinary principle that damages are compensatory applies, as does the ordinary principle that the plaintiff must mitigate their damage.
Portbury Development Company Pty Ltd v Ottedin Investments Pty Ltd[2014] VSC 57 at [158] - where the onus of proof as to the plaintiff’s failure to mitigate his loss rests on the defendant.
Hardie Finance Corporation Pty Ltd v Ahern [No 3] [2010] WASC 403 at [767], [770] - provides that a plaintiff will not be held to have acted unreasonably simply because the defendant can suggest other and more beneficial conduct, so long as it was reasonable for the plaintiff to act in the way that he did.
Lagden v O’Connor [2004]1 AC 1067 at [9] - stated that "there remains the difficult point of what is meant by ‘impecunious’ in the context of the present type of case. Lack of financial means is, almost always, a question of priorities. In the present context what it signifies is inability to pay car hire charges without making sacrifices the plaintiff could not be expected to make" pertaining to obligations of motor insurers regarding hire-car expenses.
Umerji v Khan [2014] Civ 357 - mentioned the issue of whether the rules of mitigation required the claimant to claim on his insurance policy and with the proceeds buy a replacement car.
Bradburn v Great Western Railway [1874] LR10Ex1;[1845] EngR538 - authority to the effect that a plaintiff’s insurance arrangements cannot be taken into account to reduce a tortfeasor’s liability.
National Insurance Co of New Zealand v Espagne (‘Espagne’) [1961] HCA 15; (1961) 105 CLR 569 - considered what principle should govern the question of whether a particular benefit ought or ought not be taken into account in assessing damages.
Clarke v McCullough [2012] NIQB 104 at [19], [20] - provides the principles for determining of credit hire-car cases which includes reference to the principle of res inter alios acta orthe legal principle that a tortfeasor cannot require the injured party to invoke his contract with his insurers in order to mitigate his loss.
Bradburn v Great Western Rly Co [2007] 4 All ER 791; [2007] EWCA Civ923 - where defendants have had to accept that a claimant’s insurance arrangements are irrelevant and cannot be prayed in aid to reduce their liabilities.
Thomas v Powercor Australia Limited [2011] VSC 586 at [49] to [51] - authority that dealt with the extent to which the Espagne principles are to be applied in cases outside the personal injury sphere.
Monroe Schneider Associates (Inc) & Anor v No 1 Raberem Pty Ltd & Ors [1991] FCA 592; (1991) 104 ALR 397 - Burchett J (with whom O'Loughlin J agreed) said: In my view, the principle of Espagne is applicable generally, and not merely as a rule in actions for damages for personal injuries.
Thomas v Powercor Australia Limited [2011] VSC 586 at [51] - where the broad proposition derived from the authorities is that where a benefit is conferred upon a plaintiff (not intended to release the wrongdoer of his or her obligations) then such benefit should be ignored in the assessment of damages.
Martindale v Duncan [1973] 1 WLR 574 - where the claimant had acted reasonably in delaying vehicle repairs until repairs were approved.
Mattocks Mann [1993] RTR 13 - where the claimant had acted reasonably in hiring a car for as long as it took for the defendant to pay out on the claim.
Gould v & Birbuck & Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 - established that the function of pleadings is to state with sufficient clarity the case that must be met.
Analysis:
Mr Kinkead submitted that when he called RACV, his comprehensive insurer, he was told that as he was not at fault, he would be ‘better off’ making a claim against the ‘at fault’ driver rather than under his own policy. His understanding was that, had he claimed under his own policy, there would have been deducted from any pay-out, the remaining eight or nine monthly instalments of the annual premium.
He didnt know that he might have been better off claiming under his own policy given the ‘agreed value’ of $31,700. The defendant submitted that was only required to compensate Mr Kinkead for loss of use from the time he knew the vehicle was a write-off to the time within which a plaintiff with reasonable diligence could purchase and source a suitable vehicle. Furthermore, there was no rule of law that the plaintiff may wait to obtain write-off payment before obtaining a replacement vehicle.
The plaintiff submitted there was no authority requiring the plaintiff to plead, or nor to discharge a specific proof of, impecuniosity. Mr Kinkead’s employment as a chef came to an end within weeks of the collision unexpectedly due to COVID-19 restrictions. A reasonable person in the situation in which Mr Kinkead found himself, would not have outlaid for a permanent replacement vehicle when he or she was out of work, had a partner not working, had a new baby and whilst in receipt of a government allowance and the only wage-earner in the family. Mr Kinkead lacked the financial means to purchase a permanent replacement vehicle in advance of receiving the write-off payment without making sacrifices he could not, as a matter of law, be expected to make.
Conclusion:
The Court concluded that the plaintiff has discharged the burden of proof in relation to impecuniosity for the period for which he has claimed loss of use of the vehicle. While it is true that, under pressure of sustained cross-examination, his evidence was sometimes inconsistent and inaccurate, the Court believes that such conduct exhibits Mr Kinkead as being a person in straightened financial circumstances. The weight of evidence supported Mr Kinkead having an immediate and ongoing need for a replacement vehicle. The Court further concluded that he acted reasonably in not obtaining a permanent replacement vehicle until after he received the write-off payment as he otherwise very well would have had to make sacrifices. The plaintiff is entitled to the relief claimed (in addition to the write-off payment previously paid): $33,325 being 215 days by $155 plus interest on that amount.
