Chong v Berry

[2007] NSWLC 33

Local Court of New South Wales

CITATION:	Chong v Berry [2007] NSWLC 33
JURISDICTION:	Civil
PARTIES:	Moe-Ava Chong Nicole Berry
FILE NUMBER:	4338/06
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	12/20/2007
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Damages – Quantum – Quantification of loss of use of motor vehicle after traffic accident – Quantification of loss in period before hiring replacement vehicle – Quantification of loss during period in which hire car used – “Market rate” -- Receipt of non-compensable benefits – Entitlement to claim collision damage waiver fee – Pre-judgment interest - Evidence – Onus of proof – Rebuttable assumption that invoice for hire of car corresponds with market rate – Matters that rebut presumption – Lack of “straightforwardness”
LEGISLATION CITED:	Civil Liability Act 2002 Civil Procedure Act 2005 Local Courts Act 1982
CASES CITED:	Admiralty Commissioners v SS Susequehanna (“The Susequehanna”) [1926] AC 655 Alexander v Lang [1967] Scots LT (Sheriff Court R) 64 Athanasopoulos v Moseley (2001) 52 NSWLR 262 Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452 Batchelor v Burke (1981) 148 CLR 448 Bee v Jenson [2006] EWHC 3359 (Comm) British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673 Burdis v Livsey [2003] QB 36 Dimond v Lovell [2002] 1 AC 384 Fire and All Risks Insurance Co Ltd (1978) 140 CLR 427 Fung v Stocavaz [2006] NSWSC 1345; (2007) ANZ Insurance Cases 61-730. Giles v Thompson [1994] 1 AC 142 The Greta Holme [1897] AC 596 J&E Hall Ltd v Barclay [1937] 3 All ER 620 Lagden v O’Connor [2004] 1 AC 1067 Lodge Holes Colliery Co Ltd v Wednesbury Corporation [1908] AC 323 Marcic v Davies (20 Feb 1985) Mersey Docks & Harbour Board v Owners of the SS Marpessa (“The Marpessa”) [1907] AC 241 Patel v London Transport Executive [1981] RTR 29 Radford v De Froberville [1977] 1WLR 1262 Reid v Brown (1952) WN(NSW) 131 Screenco Pty Ltd v RL Dew Pty Ltd (2003) 58 NSWLR 720 Solomon Pacific Resources NL v Acacia Resources Ltd (1996) 19 ACSR 677 Stanton v Drayton Commercial Investment Co [1983] 1 AC 501
REPRESENTATION:	Mr M. Hodges (Counsel for Plaintiff ) Anne Finnerty & Assoc (Solicitors for Plaintiff) Mr K. Oliver (Counsel for Defendant) Mason Black Lawyers (Solicitors for Defendant)
ORDERS:	Verdict and judgment for plaintiff in sum of $1136.75. Costs reserved.

Reasons for Decision

1 On 18 January 2006, the defendant, Ms Nicole Berry, drove her vehicle into the rear of a car being driven by the plaintiff, Mr Moe-Ava Chong, which was stationary at traffic lights at an intersection in Narrabeen. His car was driveable but had sustained damage. Ms Berry’s vehicle was insured. Liability was admitted and the subrogated insurer, NRMA Insurance, has paid the cost of the repairs of Mr Chong’s vehicle.

2 These proceedings concern a claim by Mr Chong for compensation for the loss of the use of his car while it was under repair. Although the…