Avery v Alexander

[2018] QMC 9

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Avery v Alexander [2018] QMC 9

PARTIES:

Lee AVERY

v

Lisa ALEXANDER

FILE NO/S:

M50234/2017

PROCEEDING:

Trial

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

13 February 2018

DELIVERED AT:

Southport

HEARING DATE:

16 January 2018

MAGISTRATE:

A.H. Sinclair

ORDER:

Judgment for the Plaintiff in the sum of $462.00

CATCHWORDS:

DAMAGES – loss of use and enjoyment of motor vehicle

COUNSEL:

A. Messina for Plaintiff

A. Fitzsimmons for Defendant

SOLICITORS:

Sphere Legal for the Plaintiff

Ligeti Partners for the Defendant

Overview

1. Mr Avery, the nominal Plaintiff, was driving his 1994 Econovan to work on the M1. His car was struck from behind in an accident caused by the Defendant's negligence. He was promised a car at no cost to him by the tow-truck driver. He was taken to Right2Drive who provided a near new Hyundai Accent[1]. It engaged lawyers on its behalf to recover damages from the Defendant’s insurer.

[1] The odometer reading was 6008km at the time.

Pleadings

1. The pleadings admit liability and raise a number of issues in relation to the correct quantum of damages. The amount in dispute is $1485 made up of $88 a day of car hire for 16 days and $77 towing fee.

Issues

1. At the trial the parties acknowledged that the real issues in dispute between them were:

   a.   Whether Mr Avery had a need entitling him to a replacement vehicle

   b.   What the appropriate measure of damages was.

1. The later issue was the main focus of the trial. It could be expressed in the following way :

Where the driver of a vehicle  which is much older than the available rental fleet has their vehicle taken off the road for period of time by the negligence of another driver; do they recover only the cost of the cheapest appropriate replacement hire vehicle available at that time and place?

1. My conclusions are :

   a.   That Mr Avery had a ‘need’ which was to get to work. Almost any car would do.

   b.   The drivers of much older cars with simple needs recover only the cost of the least expensive vehicle in the rental fleet that meets their need. This will usually be the oldest and smallest.

The Facts

1. The plaintiff Mr Avery is a honest and hardworking man. I accept all of his evidence. On his way to work he was rear-ended by a car pushed into him by the defendant. His concern was not for himself but the drivers of the other cars when he smelt petrol. He could see that his 1994 Econovan was badly damaged and a likely write off. He was now late for work and no doubt in some shock. He found himself unable to drive to work and unable to help his elderly and disabled neighbours for whom his van and assistance were invaluable.

1. In this vulnerable state he was taken away by a tow truck driver on the promise of something too good to be true - a free car: one paid…