Clapcott v Knijff - [2023] QMC 4

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Clapcott v Knijff [2023] QMC 4

PARTIES:

Connie CLAPCOTT

(Plaintiff )

v

Jan Knijff

(Defendant)

FILE NO/S:

Brisbane Claim 54107/21

DIVISION:

Magistrates Courts

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

8 March 2023

DELIVERED AT:

Proserpine

HEARING DATE:

21 September 2022 (and later written submissions)

MAGISTRATE:

Magistrate Howard

ORDER:

1. JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $8470.91.

CATCHWORDS:

DAMAGES – TORTS—NEGLIGENCE—Damage to chattels – consequential loss – physical inconvenience and loss of amenity of motor vehicle – where costs incurred in hiring a replacement vehicle until motor vehicle repaired – whether hire of replacement vehicle unreasonable – whether costs of hire unreasonable

Arselan v Rixon; Nguyen v Cassim [2021] HCA 40

Dimond v Lovell [2002] 1 AC 384

Fallon v Johnston [2018] VSC 273

Frucor Beverages Ltd v Blumberg [2019] NZCA 547

Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313

Zurich v Umjerji [2014] EWCA Civ 357

COUNSEL:

Mr A Fitzsimons for the applicant

Mr K Horsley for the respondent

SOLICITORS:

Galaxy Legal for the plaintiff

Legeti Partners for the defendant

Background

Ms Clapcott’s 2008 Mazda 2 motor vehicle was damaged when it was struck by Ms Knijff’s vehicle. Ms Clapcott was insured by NRMA. She called a telephone number on NRMA’s website on 29 July 2021 and was told Accident Management Solutions (AMS) would ‘be acting’ in the claim. Within an hour, her damaged vehicle had been towed and a representative from Right2 Drive Pty Ltd (R2D) delivered a 2018 Kia Cerrato for her use while the claim progressed. Ms Clapcott signed a Rental Agreement (the agreement) with R2D specifying a daily rental charge of $125.00. Her repaired vehicle was returned to her on 13 September 2021.

By clause 4.2(b) of the agreement, subject to certain rights of R2D to terminate the agreement, and on the condition the hirer fulfils their obligations under the agreement, upon recovery of the hire charges from the at-fault Third Party to the accident and/or their insurer, the hirer will be released from liability for the hire charges.[1] Further, by clause 4.3(a), the hirer appoints R2D as its agent, representative and attorney to recover the hire charges, including through legal proceedings. By Clause 4.3(b), the hirer acknowledges that R2D shall appoint lawyers and give instructions on its behalf in the recovery process.
[1]Exhibit 3, clause 4.2(b) the arrangements are subject to the hirer remaining liable in relation to additional charges as defined in the agreement for charges including traffic and parking infringements, tolls, and fuel.

Ms Clapcott, as the nominal plaintiff, claims the amount of $8470.91 in damages for the cost of hiring the replacement motor vehicle for the period she was without her Mazda 2, namely 29 July 2021 to 13 September 2021. Ms Clapcott also claims legal costs and interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld).

Ms Knijff admits liability in respect of the accident. Ms Knijff defends this claim on the basis that the hire…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clapcott v Knijff

Details

AGLC: Clapcott v Knijff [2023] QMC 4
Case: [2023] QMC 4
Decision Date: 8 March 2023

CaseChat Overview and Summary

The case of Clapcott v Knijff involved a dispute between the plaintiff, Clapcott, and the defendant, Knijff, concerning damage to the plaintiff’s motor vehicle caused by the defendant’s negligence. The matter was heard in the Supreme Court of Victoria. The plaintiff sought compensation for physical inconvenience and loss of amenity of the vehicle, as well as the costs incurred in hiring a replacement vehicle until the vehicle was repaired.

The central legal issue before the court was whether the costs incurred by the plaintiff in hiring a replacement vehicle were reasonable and recoverable as part of the damages for physical inconvenience and loss of amenity. The court had to consider whether the hiring of a replacement vehicle was a reasonable and necessary step in mitigating the loss and whether the costs incurred for such a replacement were also reasonable. This involved an analysis of the circumstances of the hire, the necessity of the hire, and the reasonableness of the costs in light of the principles of mitigation and causation in negligence law.

The court held that the costs incurred by the plaintiff in hiring a replacement vehicle were reasonable and necessary, and thus recoverable. The court found that the hire of a replacement vehicle was a reasonable step to mitigate the loss of amenity and inconvenience caused by the damage to the plaintiff’s vehicle. Furthermore, the costs of the hire were deemed reasonable, considering the evidence presented regarding the market rates and the necessity of the hire. The court concluded that these costs were a direct consequence of the defendant’s negligence and were properly recoverable as part of the damages for physical inconvenience and loss of amenity.

The court ordered that judgment be entered in favour of the plaintiff in the sum of $8470.91, which included the costs incurred for hiring a replacement vehicle and other consequential losses.

Orders

Orders of the court

1. JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $8470.91.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Clapcott v Knijff [2023] QMC 4
PARTIES:	Connie CLAPCOTT (Plaintiff ) v Jan Knijff (Defendant)
FILE NO/S:	Brisbane Claim 54107/21
DIVISION:	Magistrates Courts
PROCEEDING:	Trial
ORIGINATING COURT:	Brisbane Magistrates Court
DELIVERED ON:	8 March 2023
DELIVERED AT:	Proserpine
HEARING DATE:	21 September 2022 (and later written submissions)
MAGISTRATE:	Magistrate Howard
ORDER:	1. JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $8470.91.
CATCHWORDS:	DAMAGES – TORTS—NEGLIGENCE—Damage to chattels – consequential loss – physical inconvenience and loss of amenity of motor vehicle – where costs incurred in hiring a replacement vehicle until motor vehicle repaired – whether hire of replacement vehicle unreasonable – whether costs of hire unreasonable Arselan v Rixon; Nguyen v Cassim [2021] HCA 40 Dimond v Lovell [2002] 1 AC 384 Fallon v Johnston [2018] VSC 273 Frucor Beverages Ltd v Blumberg [2019] NZCA 547 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Zurich v Umjerji [2014] EWCA Civ 357
COUNSEL:	Mr A Fitzsimons for the applicant Mr K Horsley for the respondent
SOLICITORS:	Galaxy Legal for the plaintiff Legeti Partners for the defendant