Desiree Du Sart v Peter Youseff (Civil)
[2015] VMC 11
•21 APRIL 2015
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE E11699116
BETWEEN:
DESIREE DU SART Plaintiff
-and-
PETER S YOUSEFF Defendant
MAGISTRATE: GINNANE
DATE HEARD: 13, 14, 15 & 16 APRIL 2015
DATE OF DECISION: 21 APRIL 2015
WHERE HEARD: MELBOURNE
CASE MAY BE CITED AS: DU SART v. YOUSEFF
APPEARANCES:COUNSEL SOLICTORS
For the Plaintiff Mr N Turner Battlay & Co
For the Defendant Mr D Staindl Ligeti Partners
Catchwords: motor vehicle property damage- dispute over quantum of repairs- whether repairs fair and reasonable – task required of court in determining competing accounts by repairer and loss assessors -“fictional” nature of claims between competing insurers – claim for cost of hire car whilst vehicle under repair- whether claim for replacement cost of hire car recoverable when plaintiff “not liable for charges” measure of damages to restore plaintiff to position before defendant’s wrongdoing – repairer’s assessed estimate further reduced and some items disallowed
REASONS FOR DECISION
HIS HONOUR:
This proceeding commenced on Monday 13 April 2015 and concluded on Thursday 16 April 2015. The complaint involves a dispute about the quantum of repairs to a motor vehicle as a result of an accident involving the plaintiff’s vehicle. The plaintiff claims the cost of repairs in the amount of $24,921.99 comprising remove and replace, repair and parts and paint of $19,620.79, and an assessor’s fee of $500 and the use of a hire car in the sum of $4,801.20.
The vehicle is a 2010 Audi ‘Avante’ Wagon. It was involved in an accident on 14 February 2014 in Kew. Liability for the accident was not contested by the defendant. The registered owner and driver of the vehicle Ms Du Sart gave evidence. She said that after the accident and perhaps some few days later she was contacted by the defendant’s insurer who in the course of conversation indicated to her that she could have her vehicle assessed by Macmillan Body Repairs where the defendant’s car had been repaired. When asked in cross-examination, the plaintiff could not recall the name of the person with whom she spoke. Nothing turns on the conversation.
It was not disputed that the plaintiff’s vehicle had other damage but not caused by the accident consisting of some front and rear damage.
The plaintiff said that from speaking with the repairer, she understood that the repair would take some time and therefore she took the opportunity to have the other damage put right. The relevant insurer was aware of this and I was also told that the plaintiff paid the relevant excess applicable for these repairs. The repairer said that these repairs did not add to the overall time it took to otherwise reinstate the vehicle as a result of the subject claim. In due course all three claims came to be assessed. The other damage was assessed in the amount of $3,500 for the front and $1,500 to the rear.
The plaintiff also said that when she explained her circumstances to the repairer she was told by him that a hire car could be organised for her. The plaintiff obtained a hire car through Europe Car. The plaintiff said that she was told by the repairer that she wouldn’t have to pay for it because she was not at fault. The hire car agreement was put in evidence (Exhibit P1). It was expressed as a 21 day hire. The total cost including GST for the hire was $924 for 21 days higher. This equated to $44 per day although the invoice for the hire calculates at a higher rate of $68.20 per day. The plaintiff was unaware of this discrepancy. Indeed she said that she had not seen the invoice before giving her evidence.
As to the amount of time it took for the vehicle to be returned to her, the plaintiff said that there was no occasion of delay on her part in retrieving her car and in fact she was keen to have it returned. She said that if she hadn’t collected the car on the day she was notified it was ready it most certainly would have been the following day.
The defendant acknowledged that the plaintiff had a need for a hire car although the quantum of it and the length of time are put in issue and this is a conflict that I will return to later in these reasons.
The unsatisfactory nature of quantum disputes
I have had occasion in the past to comment about the nature of quantum disputes that come before the Court for determination. In particular, I have commented on how in some instances there is an ‘unreality’ to such disputes. Let me explain. On a near daily basis in this Court disputes between insured drivers are fought out. When the issue in dispute relates to liability, the competing claims can be determined by reference to the usual standard of civil contests, that is, by hearing the evidence and listening to the competing accounts given by the respective drivers and/or witnesses to the incident, if any, who may be called. Furthermore, on occasions in such type of action, experts are called and cross-examined to indicate the extent to which damage is consistent with or said to be inconsistent with the accident the subject of the claim. Then applying the law of negligence and assessing the facts against a plaintiff’s primary obligation to discharge its burden of proof on the balance of probabilities, a result is determined. However, there is another class of case, of which this is a type. It is the case where the insurers who stand behind the parties can spend lengthy periods of time eliciting evidence from a repairer concerning the hourly rate applied by them for work performed by way of repairs followed by cross examination concerning the extent to which one or more processes were necessary to undertake by way of remove and refit and/or repair and whether any or all of the same could have been performed within a lesser timeframe or at a lesser rate. Concession once given is then extrapolated into an ultimate submission that the amount estimated by way of repair is excessive and thus, so the submission invariably goes, ‘unreasonable’. This conclusion is of course buttressed by an opinion of an assessor engaged by the opposing insurer who is dispatched to consider the plaintiff repairer’s estimate. In turn when it is his turn to be cross examined, the basis of his reduced assessment is impugned as unrealistic or ill informed or lacking reliability having invariably been compiled post repair.
The question to be determined by the Court in such cases is not answered by whether an extra 5, 10 or 15 minutes or some such other measure of time is greater than the opposing party might estimate the same work capable of being performed. Rather the question is answered by inquiring whether on the evidence led by a party as amounting to the costs of repair in restoring the car as nearly as practicable to the position and condition it was in before the damage occasioned by the other party’s negligence, it is ‘reasonable’. Within the concept of ‘reasonableness’ there will be a range in which the same or similar work could have been performed.
In addition there may be circumstances in which work undertaken has been ‘doubled up’, or work has been estimated and undertaken which was not required to be performed, or work has been estimated as necessary to be undertaken to areas of the vehicle that were not the subject of damage or, too great a proportion of a vehicle has been painted, or an hourly rate charged by a repairer is excessive by comparative industry standard or by reason of the quality and nature of the repair shop in question. These are all proper forensic ambits for contest.
In a hearing such as the present is concerned, the Court is presented with an assessment undertaken by a repairer presumably with skill and expertise who looks at a vehicle in a damaged state when brought to him. He is then asked to prepare an estimate of the cost of repair often involving a remove and replace, repairs and painting. He will undertake this exercise by reference to a suite of considerations including drawing upon his own experience, by accessing certain computer programmes for estimated times for repairs and by information supplied by the various auto manufacturers or suppliers for parts. He will then factor into this, his hourly rate in order to take account of his business costs and a profit margin.
As to the position of repairers, more often than not it has proved to be my experience that they appear to have been afforded scant understanding of their task if called on to give evidence of their estimate and to explain to the Court their methods for arriving at it. On some occasions repairers volunteer that they physically oversaw the work, on other occasions they say they relied on the trust of their workers to undertake the tasks the subject of the assessment and subsequent repair. In addition, and in this case, the evidence by the repairer Mr Mocca when addressing a question that arose of ‘doubling up,’ explained that different rates can apply to the same work on a vehicle because of the identity of the particular insurer standing behind the client.
In an effort to ‘do the best one can on the material’, I have kept in mind that at the end of the day that which is cross-examined upon by a defendant is an ‘estimate’. The estimate by the repairer is given of course at a point in time before the actual work undertaken to a vehicle is performed. By the time the repairer gives his evidence the vehicle will have almost always been repaired. Sometimes it will have proved necessary that when affecting the repairs the subject of the estimate, one or more supplementary quotes is required to take account of matters not foreseen at the time the estimate was furnished. No supplementary invoice was issued in this case.
It is exceptional for the Court to hear evidence from a mechanic who worked in the shop and affected the subject repairs to the vehicle. It would be rarer still for a repair shop to produce any record of hours applied to the work performed on the subject vehicle. And yet in case after case a repairer will be quizzed about the exact times it took its staff and the number of workers necessarily engaged by it in the very processes the subject of an estimate.
The agreed ambit of the dispute
In this dispute the parties agreed that that there were 4 matters that presented themselves for determination. These are:
(i)The hire care cost;
(ii)Double counting;
(iii)The differences in assessment of various items;
(iv)The methodology applied by the repairer, the plaintiff’s loss assessor Mr Basic and the defendant’s assessor, Mr McLeod.
I shall leave the matter of the car hire until last but address it and each of the matters according to the principal evidence.
Witnesses other than the plaintiff
Mr Tony Basic Loss Assessor gave evidence on behalf on the plaintiff. He is an assessor of many years standing and his qualifications were conceded by the defendant.
Mr Mocca the repairer principal of McMillan Body Repairs testified for the plaintiff. He assessed the plaintiff’s vehicle and undertook the repairs to it as well as the other unrelated damage.
Mr Cooper is a loss adjustor who determined the claim for the other but unrelated areas of damage to the vehicle and he was called by the defendant.
Mr McLeod testified. He was the defendant’s expert loss assessor who adjusted the assessment made by Mr Basic. Mr McLeod is a professional loss assessor with a background in panel beating as has Mr Basic. Mr McLeod said that he regularly provides assessments for AAMC the insurer who stands behind the defendant. It was insinuated by Mr Turner counsel for the plaintiff, but not asserted, that in some way the regularity with which McLeod is asked to comment on and assess estimates for AAMC otherwise infected the neutrality of his assessments. It is a frequent if not daily occurrence in this Court that a familiar cohort of persons with experience in the field of motor vehicle loss assessment are engaged by insurers to provide assistance to the Court by way of expert evidence. When an assessor makes a report and adopts the Expert Witness Code of Conduct[1] it is an important matter of substance and not just form. The author’s primary obligation is to the Court.
The evidence
[1] Order 44
Mr Basic said he had three attendances on the vehicle. He was aware that the repairer charged $95 per hour across the entire works the subject of the quotation including removal and replace, repair and paint including materials. There was no challenge to the reasonableness of the charge of $95 per hour applied by the repairer across the suite of works undertaken at his shop and I have no reason to regard the hourly rate applied by the repairer as other than fair and reasonable. Indeed the hourly rate used by Mr McLeod was $100. Thus the contest here is not about the hourly rate but rather the amount of time it took to undertake the repairs to the vehicle.
Mr Basic said the majority of the interior of the vehicle needed to be removed in order to get to and remove the rear quarter panel. He said this area included the fuel flap and fuel tank. The fuel tank was not removed but instead it was sealed.
Mr Basic said he saw the vehicle first on 6 March 2014. He said he inspected it again when it was completed which would have been on 7 May 2014 by reference to the date of his invoice for professional services rendered in undertaking the assessment. He said that he also inspected it on one other occasion but he had no notes and no photographs to help him with that date and his invoice revealed two inspections. He said that this was an administrative mistake.
Mr Staindl directed Mr Basic’s attention to estimates by the same repairer for like work undertaken to the plaintiff’s vehicle but in relation to the other damage but estimated at lesser amounts than the repairer’s assessment of cost the subject of this dispute. Specifically Mr Basic was challenged about his assessment of the reasonable cost by way of ‘remove and replace’ to the rear bumper bar. He was taken to the repairer’s estimate in quotation 19352 for like work to the vehicle related to other damage. That estimate was for $55 or 172% less than the repairer had assessed the job for the damage the subject of this claim. Mr Basic could not explain the difference. Mr Basic said he had been unaware of this fact when he undertook his assessment. I accept this was the case. However, such a discrepancy in amounts between the charges a repairer has assessed himself capable of imposing and a considerably different assessment provided by Mr Basic, is a consideration that might inform an opinion about the comparative value of the expert opinions expressed by Mr Basic by comparison to those of Mr McLeod.
Mr Mocca gave a variety of reasons in his evidence to explain the difference between the estimate provided in relation to the subject claim and the estimates given in respect of repair work to the other areas of the plaintiff’s vehicle and this included the reason that the work was performed for different insurers. Elsewhere in the course of cross-examination he agreed with Mr Staindl that an alternative estimate given by Mr McLeod for certain work was indeed ‘reasonable’ and when this concession was pointed out to him, he sought to retract his evidence by suggesting that he was confused and had misunderstood the question put to him.
Double counting
Mr Turner conceded in his opening that in effecting the repairs to the plaintiff’s vehicle a doubling up of certain items had occurred. That is to say, that in regard to the repairer undertaking work to the car occasioned by the other damage, certain works had been already assessed and moreover paid and to the extent they were replicated in the estimate given for the damage occasioned by the defendant the subject of this accident, they properly needed to be taken account and excluded. The items that meet this category are:
(i)Lower engine splash shields
(ii)2 front guard liners;
(iii)2 headlamps and refocus;
(iv)Necessary boot and quarter trims;
(v)Rear bumper bar;
(vi)2 tail lamps and reseal
The total of these exclusions amount to $389.50 excluding GST.
In addition to the matters conceded as doubling up by Mr Turner, it was also contended for by Mr Staindl that further items fell into the same category and for which account ought to be made. These items included:
(i)Rear quarter liners x2[2] in the claimed sum of $95.00
(ii)In relation to paint, a second booth allowance of $95, and also a mix and match and oven allowance of $190. These two amounts for equate to a total of $285 excluding GST. Within the paint component I am satisfied of a double counting of mix and match and oven allowance of $190.00 but I am satisfied by the evidence and submission of Mr Turner as to the basis for the second booth allowance of $95.00 and will allow it.
The overall time of the repairs
[2] Conceded by counsel for the plaintiff
Mr McLeod estimated and allowed in his report a period of 12 days for the vehicle to be completed. This is a considerably lesser period of time than the plaintiff had the vehicle in its shop for the works before returning it to the plaintiff. Mr Mocca in cross-examination believed the time that should be required for repairs was between 15 to 20 days. This too is a much lesser period of time than the vehicle was with the repairer.
Mr Staindl put to Mr Mocca in cross examination that if no work or no meaningful work was done to the vehicle until 21 March 2014, that being the date of the provision of the last part, there having been evidence of some delays in the provision of parts, nonetheless by reference to his own evidence of maximum of 4 working weeks the repairs should have been completed by on or about 18 April 2014 and yet the vehicle was not returned to the plaintiff until 7 May 2015. The best Mr Mocca could say was, “it was a big job”. It is self-evident that on Mr Mocca’s own evidence of time required he was very wrong.
The period of time is relevant from the defendant’s perspective as to the extent to which the defendant ought to be liable to recompense the plaintiff in regard to hire car charges because, so the argument goes, if the vehicle could have been reasonably completed at an earlier date, this should be the end point for the defendant’s liability. However, the contention in respect of the length of time it took to repair the vehicle is one thing, the extent to which the defendant has made good that the plaintiff undertook repairs and assessed a cost greater by reason of the amount of time estimated is another. This is another example of the risk of the arguments for and against becoming fictitious because otherwise than by way of assertion, there is no evidence by the plaintiff of actual workshop time or of dates that work was performed.
Ultimately and howsoever arrived at, the question is whether the estimate for work performed is fair and reasonable when given by reference to the work undertaken. In my opinion, it may be presumed to be fair and reasonable otherwise than by the elucidation of evidence to the contrary by a defendant. In my view, it is also appropriate that at the time a repairer prepares an estimate he should be taken to have factored in all the elements common to, and possibly peculiar to, the damaged vehicle or, put another way, all that is reasonably foreseeable bearing in mind the repairers skill and expertise and of the use by him of competent and skilled trades.
Differences in assessments
Remove and replace
Splash shields
The estimate for low engine splash shields was contested by the defendant but it was the subject of a concession by way of a doubling up and I need say nothing further about it. It was conceded and is thereby excluded in the amount of $47.50.
Left-hand front guard disassemble and assemble
The next item of contention is the left-hand front guard and the repairer’s assessment of the requirement to disassemble and assemble. The repairer initially claimed $190 as a fair assessment of the cost to attend to this work. Mr Basic adjusted it down to $95 and Mr McLeod to $60. The work as assessed was not needed to be done because the guard was in fact removed and replaced and no disassembly or reassembly was required. I think Mr McLeod’s assessment is preferable and constitutes the more reasonable spend of time in undertaking the actual exercise performed. I allow $60.00
Sunroof twin type
The next item relates to the sunroof. Mr Mocca’s estimate of $760 was reduced down by Mr Basic to $400. Much time was taken in the hearing going through the details associated with the taking out and putting back of the sunroof. Both the assessor and Mr McLeod gave similar evidence as to the various processes associated with removing and reinstating the sunroof. There is no doubt that there are a variety of steps associated with the task. However, the impression I gained from Mr Mocca, was that on a number of occasions he made an effort to elevate and complicate straightforward work that a reasonable competent trades person could be expected to be able to execute proficiently.
The sunroof involved is made up of 2 separate pieces. They are aligned behind each other. Mr Basic said the seals are extremely difficult in terms of removal. He said that it was a 2 man job to disassemble and reassemble.
It was suggested to Mr Basic that 2 people would not be required other than for a brief period of time. Mr Basic estimated that it would require 2 men for 80% of time. Of the 8 hours he thought would be required, he estimated 1 hour would be spent in relation to the electrical work which could be performed by one tradesman.
Mr Mocca testified about the process including undoing and removing and then replacing by the use of hand tools in the order of 10 or 20 nuts and bolts underneath the sunroof. He disputed the proposition put by Mr Staindl that this would take no longer than a few minutes to attend to. He said it was then necessary to disconnect drain plugs. He accepted that this was a fairly simple exercise. He said wiring needed to be disconnected. He said he thought there were two main sets of wires each of which were tied by plastic binds that needed to be cut and each wire placed back and retied. He thought this might entail removing and replacing on 10 or 15 occasions in order to account for both sets of looms. He said that plugs from which the wires fed also needed to be undone. He said the motor itself to be removed. The headlining needed to be taken off and put back which he estimated to be in the order of 1 ½ to 2 ½ hours. He said the tracks needed to be moved and this would be a 30 or 40 minute operation. He said that the removal accounted for some 40% of his assessment time and the reinstatement process some 60% because of issues relating to ensuring proper alignment on the reinstatement of the sunroof.
Mr Basic denied that his assessed charge of 8 hours in the sum of $760 was excessive and said that in his opinion the alternative amount of 4 hours time in the sum of $400 estimated by Mr McLeod was not reasonable.
I accept that the reinstatement of the sunroof would take a slightly longer period of time than its removal by mere fact that there would be alignments required which are not relevant upon the removal of the sunroof cassette. Mr McLeod estimated 2 hours to remove and 2 hours to replace. I think a reasonable allowance would be a further 1 hour amounting to 5 hours at the rate of $95.00 an hour for the sunroof and therefore I allow an amount of $475.00 excluding GST. I regard the 8 hours as not reasonably capable of allowance on the evidence I heard. I also regard the disparity revealed by Mr Basic as sufficiently great a as to support a conclusion that his assessed cost is unreasonable.
Clean off residue sunroof aperture
The next item concerns an amount of $142.50 or 1 ½ hours estimated by Mr Mocca and Mr Basic for cleaning off the residue of the sunroof aperture. Mr McLeod assessed the allowed amount to $50.00 or on his hourly rate, 30 minutes. There was some debate about the actual figure in the handwriting appended to the repairer’s estimate and whether there had been a change or a reversion to that figure by Mr Basic. On balance, and in light of Mr Basic’s evidence, I accept it was a reversion by him.
There was a factual conflict as to the make up of the product that required to be cleaned. It was put to Mr Basic that the process involved applying weather shield and cleaning of the residue from the weather seals. Mr Staindly submitted that this involves no more than the use of specialised rubber seal cleaning fluid called ‘Prepsol’. Mr Basic disagreed and said that there was a particular rotating wheel tool that would normally be used by a competent workman to the area in question in order to remove the sealant residue. It was suggested to Mr Basic that an estimate of 1 hour was sufficient. He disagreed. Moreover even though it was asserted that the cleaning process was straightforward, Mr McLeod acknowledged that it may be prudent and therefore not unreasonable to use the tool described by the repairer. I accept the repairer and Mr Basic’s accounts that this is a process that needs to be undertaken carefully and with precision lest there be residual damage occasioned. I have no reason to interfere with the repairer’s assessed down sum. I will allow the assessed claim in the sum of $142.50.
Tailgate auto lift and tailgate and realign
The repairer originally assessed the items separately in the amounts of $332.50 each for a total of $665.00. Mr Basic assessed them down to $475. 00. Mr McLeod assessed both at $300. Each of the repairer, Mr Basic, and Mr McLeod were largely in agreement about the steps necessary to give effect to these processes. There is an evident significant difference between the time estimated by Mr Mocca to the time assessed by Mr Basis and yet still the time assessed by Mr McLeod.
Mr Basic described the tailgate process in this way. He said it had come off. He said the electrics had to be removed and the mechanism itself needed to be adjusted. He said he estimated it as involving a three-man operation. In cross-examination he said it was only sometimes a three-man operation. He estimated perhaps 10 to 15% of the time 3 men would be required. Otherwise it was a 2 man operation. He said the first step was to raise the tailgate electronically. Mr Basic’s evidence at first suggested that this is a complicated process, but in fact I am satisfied it is a simple and straightforward step. Second he said it was necessary to strip trimming off the tailgate to get to the bolts that hold the tailgate on. Mr Basic said this was delicate and difficult task and required work to be done in confined spaces .He then said it was necessary to undo the wiring of the looms and for plugs to be undone which he estimated to take about 20 minutes. In addition he spoke about the removal of tail lights, badges, numberplate trims, removal of struts, and removal of garnish above the numberplate. He said that the vehicle locking mechanism was required to be undone and external sensors removed which he estimated itself may take some 20 minutes. Obviously that which comes off needs to be put back in place. It was suggested to him that two people would be sufficient and an allowance of $300 would be fair and reasonable and at $475 was excessive. Mr Basic disagreed.
I am not satisfied that the defendant has displaced the amount assessed by Mr Basic as excessive based on his account of the process bearing in mind his assessment is not much different at all depending on some variations that might be accounted for by the extent of 3 people being required at various intervals in the process. I will permit the sum claimed.
Tailgate glass
The repairer assessed the tailgate glass at $190 whereas Mr McLeod assisted at $120. This was what was described as a sublet item meaning that the glass was reinstated by a third party. Mr Basic did not see the invoice for the work yet allowed the sum assessed. Mr Mocca was unable to provide it when called for by Mr Staindl. Neither the invoice nor its existence was disclosed in discovery. Mr Staindl suggested to Mr Basic that the standard cost would be $100 for the glass removal and refit and his answer was that it would be ‘about $140.00’. Mr Mocca said that “it cost us about $150”. In the absence of an invoice I think that the best evidence is $150.00 which I will allow.
Clean inside out for delivery
The next item of contention related to the cleaning inside/outside of the vehicle for delivery back to the plaintiff. The repairer assessed this cost at $142.50 and it was reduced to $95 by Mr Basic and then assessed down to $50 by Mr McLeod. The basis of assessment by Mr McLeod seems to relate to the cost he was able to get his own vehicle cleaned for. That is not a satisfactory answer to the assessment cost pressed for by the repairer. Nor do I think it fairly reflects the extent to which the vehicle was burdened by many of the processes undertaken in the course of its repair including the application of solvents and other items and consequently I see no proper basis for this challenge by the defendant. I am not satisfied that I should interfere with the cleaning cost attributed by the repairer to reinstate the vehicle and present it back to the client in a proper and fit condition.
X 2 Rear quarter glass right hand and left hand side
The next contentious item is the cost assessed for 2 rear quarter glass right-hand side and left hand side. Mr Mocca estimated a sum of $342 for both. In cross-examination Mr Basic agreed with Mr Staindl that a total of $220 for both was ‘possibly’ achievable by way of a market price for such sub-let work. Mr Mocca testified that his estimate was based on the rate and experience and cost of the tradesman he regularly engaged and in whose quality of work he placed considerable faith. I am persuaded that this was good evidence of a reasonable basis for the repairer’s estimate and that there is no reasoned basis to interfere with it merely by reason of the contrary contention that a cheaper rate for the job could be obtained. I will allow the amount claimed.
Right hand rear quarter panel
The next item about which there was dispute concerned the right rear quarter panel. The repairer’s estimate was $1,330 which was assessed down by Mr Basic to $950 and by Mr McLeod to $800. The evidence about this process was considerable.
The repairer in cross-examination said that he believed it would take some 3 hours to remove the rear quarter panel and to replace it a further 6 hours would be required for a total of 9 hours. Mr Mocca’s estimate of $1,330 equates to 14 hours.
Mr Basic assessed 10 hours time at $95 amounting to $950. Mr McLeod’s figure of $800 was arrived at by applying an hourly rate of $100.He said that this would be sufficient to include each of steps associated with the process. Mr Basic disagreed and said that there were extra steps required that he had regard to and that counsel for the defendant had not touched upon and this included door opening and cant rail areas that required to be sectionalised together with the need for panel beating of spot drilled welds and grinding them and proof coating them. He believed 10 hours was an appropriate figure.
There is a significant difference between the 14 hours estimated by Mr Mocca and the 10 hours assessed by Mr Basic. I am not persuaded that the further contended for reduction from the amount assessed down by Mr Basic by reason of the account of assessment by Mr McLeod is warranted. I will allow the assessed down amount made by Mr Basic.
Dust cover and fire blanket
Mr Basic was asked to clarify his allowance and his understanding of the use of a dust cover and a fire blanket. His evidence was that in fact he thought only a fire blanket had been used which is why he inserted by hand the reference to the fire blanket but had overlooked striking out the dust cover or making a deduction because of this but however maintained in evidence that a fire blanket at $95 was a reasonable cost. I am not satisfied that both processes were applied and hence the sum of $95 should be reduced. I reduce the fire blanket and dust cover to $50. I am not satisfied that both were used and to allow the assessed figure at almost twice the cost that would appear to have been intended for both would be unreasonable. Mr Basic had no recollection of it. I was not satisfied by the evidence of the repairer that both were applied.
Paint
A significant area of contest and quantum separating the parties related to paint. Mr Mocca assessed paint items in the amount of $7,125. That amount was reduced down by Mr Basic to the sum of $6,119. Mr McLeod reduced the assessable sum further to the amount of $4,600. Not only is there a significant difference in the quantum but also significantly there is a difference in the methodology applied by Mr Mocca, Mr Basic and Mr McLeod to arrive at their respective figures.
The plaintiff and the defendant adopt different approaches by way of their submissions concerning paint. Mr Mecca’s estimate applied a time referable to hours to paint each panel and piece of the vehicle that required painting. Mr McLeod however disallowed individual times and instead applied an overall time to the paint. He said that the method adopted by Mr Mocca failed to factor in the economies of scale that stem from being able to place like parts in the booth and be sprayed as a single process. Obviously less time is required if a series of panels or parts body of a vehicle can be painted as part of a single process as opposed to different coloured pieces or panels of the same or from different cars being painted and then oven baked. Mr Mocca did not accept the proposition that this would result in any meaningful or overall reduction in the amount of time and hence the cost attributed to the process. I disagree.
Moreover Mr Mocca said that the amount attributed by him in his estimate also took into account time ancillary to the mere application of paint such as preparation prior to painting, including hand rubbing between each coat and something Mr McLeod’s methodology did not account for. I disagree. Mr McLeod said he did take preparation into account. I accept that he did.
In my view in this case the surer method to assess the reasonableness of the paint charge is to adopt the method used by Mr McLeod. On Mr Basic’s assessed down amount the paint process was allowed at $6,119. This amounts to over 64 hours. I think a dollar allowance of $4,600 as opposed to an hourly rate of $6,119 is fair and reasonable. But even by reason of this dollar allowance, it equated to over 48 work hours. Having heard the evidence about the processes, I am satisfied that plaintiff’s assessed figure is unreasonable whether by reference to time or to money.
Hire Car
The question of the liability for recovery of the costs of a hire car is not answered I think by the defendant relying on the plaintiff not having expended the cost for the provision of a hire car. Neither do I think that the matter is sufficiently answered by contending, as the defendant did, that the plaintiff was told by the repair that she would not be liable for the cost of the hire. It seems to me, the position is that wheresoever a cost falls it is a liability arising from the fact that in consequence of the defendants negligence the plaintiff was deprived of the use of her car and that an award of damages is designed to restore her to the position she would have been in but for the negligence of the wrongdoer.
It was not contested that the plaintiff had need for a replacement vehicle during the period of time that her car was being repaired in consequence of the negligence of the defendant. Counsel for the defendant conceded this at the commencement of the hearing. Two issues arise in regard to the hire car. The first is the length of time that the plaintiff had the car and second is the rate determined on the evidence applicable to the car. As to the first point, the hire car commenced on 12 March 2014. The car was delivered back on 9 May 2014. Counsel for the defendant submitted that the proper allowance for the provision of the hire car should be curtailed and determined to conclude in so far as the defendant’s liability is concerned on 9 April 2014.This calculation was derived by Mt Staindl submitting that the evidence disclosed that all parts had arrived to the repairer on 21 March 2014 and that 12 working days should be permitted from that date to effect the completion of the work after which its liability for the hire care should be determined. Mr Staindl also submitted that even if I permitted a period of 15 working days from 21 March 2014 this would still determine the hire car liability at a much earlier date than is being claimed. I reject this argument.
The plaintiff could exercise no control over the time the repairer took to conduct and conclude the repairs. The plaintiff testified that she was in contact on more than one occasion with the repairer seeking an update as to when her car would be ready for collection. I have no reason to believe that she added to any delay or kept the hire vehicle in her possession longer than was necessary from her perspective. In my view, it would generally be wrong to penalise the plaintiff by reason of a period of time taken that was beyond her control.
The alternative point submitted by the defendant is that a discrepancy exists between the daily rate calculated and identified by reference to the rental agreement signed by the plaintiff and the invoice rendered by Europe Car to the plaintiff following its return. Mr Staindl submitted that if I was minded to compensate the plaintiff for the entire period, then by way of an alternative submission, I should adjust the rate by giving effect to the rental agreement amount as opposed to the sum worked out by reference to the invoice. Mr Turner however submitted that the reason for the apparent discord between the two rates calculable on the documents was unexplored and unexplained on the face of the material but that there exists a prima facie liability on the part of the plaintiff for the cost.
Mr Turner submitted that the invoice issued by the hire car company to the plaintiff pursuant to an agreement she executed with it for the hire car and the associated charges amounts to the best evidence of the plaintiff’s potential liability. Mr Staindl however submitted that an invoice is no more than a demand whereas the legal liability in respect of the plaintiff to the hire car company is contained in the rental agreement.
The resolution of the matter is not without some difficulty but in my view a plaintiff has a primary duty to ensure that it proves each element of its claim on the balance of probabilities. The provision of the invoice is not the best evidence of the charge for the car whereas the rental agreement is. I will only allow the hire car at the rate identified by the agreement although I will permit it for the duration of the hire had by the plaintiff.
Other adjustments
Allowance for Wheel Alignment
I am satisfied that the allowance in respect of the wheel alignments was wrongly applied by Mr Basic. He said he could not recall whether he saw the invoice in respect of the wheel alignment. When shown the invoice by counsel for the defendant it became evident that only a partial wheel alignment had been performed. The invoice from the shop where the wheel alignment was undertaken was for $45.00 whereas Mr Basic allowed $160.00. He sought to justify this by reason of travel time involved in the repairer’s staff driving there and being driven back and the same on collection of the vehicle even though the place was a mere 220 metres walking distance from the repair shop and also on the basis of occupational health and safety obligations. The latter justification is fanciful. In my view, not only was the allowance unreasonable the wheel alignment was in fact not charged for both front and rear, and to the extent assessed, it must be adjusted down if for no other reason than this. In my view the proper figure that would be reasonable would be $90.00
Administration Fee
The repairer also claimed an administration fee. I do not believe this is permissible in the circumstances. The hourly rate set by the shop ought to be one that takes into account a variety of matters including overheads and charges associated the hourly rate could fairly be expected to reflect the business component by way of operating profit that a business sets for itself. That being so there is no account to render an administration fee in procuring and putting together the estimate itself. I disallow the amount claimed by way of administration fee of $95.00
I will make an order on the claim after the parties have had the opportunity to adjust the claim in accordance with my findings. I will grant the parties liberty to file a minute of order in relation to the final calculations and reserve if need be any dispute as to interest or costs.
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