Leung v Burom

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE

Case No. N11524702

KAR PING LEUNG	Plaintiff
v
ANITA BUROM	Defendant

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MAGISTRATE:	Magistrate G. Robinson
WHERE HELD:	Melbourne Magistrates’ Court (online)
DATE OF HEARING:	8 September 2023
DATE OF DECISION:	8 November 2023
CASE MAY BE CITED AS:	Leung v Burom
MEDIUM NEUTRAL CITATION:	[2023] VMC 15

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NEGLIGENCE - Damages for motor vehicle repairs - Damages for replacement vehicle - Griffiths v Kerkemeyer damages.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr P. McDermott	John Curtain & Associates Pty Ltd
For the Defendant	Mr S. Ryan	Ligeti Partners

HIS HONOUR:

Introduction

On 15 May 2022, Ms Burom, the defendant in this case, drove into the rear of Mr Leung’s (the Plaintiff’s) stationary car. It was not a serious accident, but Mr Leung’s car, a 2018 Audi A6, suffered minor damage to the boot lid, the bumper bar, and the “beaver panel”. Mr Leung engaged Abbottsford Panel Beaters (“the repairers”) to repair the damage. The repairers arranged a hire car for Mr Leung to drive whilst his car was being repaired.
Ms Burom admits that she was the negligent party and that she is liable to pay damages. However, a dispute has arisen as to the quantum of those damages. In his statement of claim, Mr Leung quantified his damages as being $16,640.55 for the cost of repairs, $440 for “assessment fee”, and $6,949 for the hire car, giving a total amount claimed of $24,029.55.
Ms Burom says that the amounts claimed for the cost of repairs and the hire car are excessive. Further, with respect to the hire car, she says that Mr Leung had “failed to demonstrate a need for a replacement vehicle and has failed to mitigate [his] loss”. That was her pleaded case. At trial, however, she contended that Mr Leung was not entitled to any damages at all for the hire car.

Witnesses
Mr Leung

Mr Leung’s evidence was that he lives in Doncaster and is a shift worker in hospitality in Richmond. He drives to and from work, sometimes at irregular hours.
Mr Leung said that he took his car to the repairers on 16 May 2022 at the suggestion of Ms Burom. She told him that she was taking her car there for repair and it would be “easier” for the insurance company if Mr Leung’s car was at the same repairer. At the repairers, Mr Leung accepted an invitation to sign an agreement for a hire car and was provided with a Hyundai Accent. He was told that the at fault party would pay for the hire car. He made no enquiries as to the price of the hire car – indeed, the daily hire rate was left blank. Nor did he make enquiries, or at least any detailed enquiries, about what the repair of his car would involve.
After 38 days, he returned the hire car (on 26 June 2022) and collected his repaired car. Although he had no idea of the hire car cost at that time, he now knows what the rate being charged is and that it is being disputed. He did not arrange to be represented by lawyers for this proceeding – the repairers told him that, if required, they would take care of that for him.
Sometime later, Mr Leung noticed that his satellite navigation system was giving erroneous information. He went back to the repairers and, through Audi, that too was repaired.
In the interests of brevity, I will say here that there was no challenge to Mr Leung’s evidence. All of it can be accepted as accurate and truthful. I also find that, contrary to Ms Burom’s pleaded case, Mr Leung has demonstrated that he did “need” to use a motor vehicle. Putting aside whatever else he used his car for, it would not be feasible for Mr Leung to travel from Doncaster to Richmond for work, at irregular hours, without his own car.
Mr Leung struck me as an honest, no-fuss type of person. He was happy to accept a Hyundai Accent as a replacement for what Ms Burom’s witnesses labelled a “prestige” car. He took the recommendation of Ms Burom as to the repairer for the apparent convenience of her insurer, and although there were deficiencies with the repair work done on his car, and he was required to spend additional time to have the navigation system fixed, he said that he was “happy” with the work done.

Mr Racco

In May of 2022 Mr Racco worked at the repairers. He has no spray painting or panel beating qualifications. He fulfilled more of a management and administrative role, dealing with customers, arranging hire cars for them, providing quotes, and liaising with insurance companies. He dealt with Mr Leung when he brought his car in for repair.
Mr Racco prepared “Estimate 2250” for the repair of Mr Leung’s car on 17 May 2022 and sent it to Mr Bridge of Prestige Auto Assessing Services for assessment. Even though there was only minor damage to the paint on the boot lid, Estimate 2250 provided for painting not only the boot lid but also the left and right-hand side quarter panels, “cant rails”, sill panels, door apertures, and roof. That totalled $3,920 for the painting alone. Mr Bridge accepted that proposed painting work but assessed its cost at $3,790.
At this point, it may be helpful to note that it is the extent of painting proposed by Mr Racco that represents one of the key battle grounds in this case. Put simply, there appears to be two schools of thought as to how repairs in such cases should be conducted. Whether these schools are recognised in the painting industry I do not know. For convenience, I will refer to each of them by the name of the witness which propounded the particular method.
The Racco School holds that painting only the affected panel runs the risk that the paint job will be noticeable. Accordingly, for Mr Leung’s car, one should not have repainted only the boot lid, but also “blended out” the new painting to adjoining panels to ensure that the repair is not noticeable.
Against that is the Casella School. Its adherents hold that a competent painter will be able to paint only the affected panel in a manner which is not noticeable and, to extend beyond that, is wasteful. Worse still, they appear to imply that the Racco School may in fact be a contrivance so as to inflate the amount that a customer can be charged.
Not surprisingly, Mr Racco denied that he had set out to inflate the scope of repair work to maximise revenue. Indeed, he said that, had this been his aim, he could point to numerous items he could have added to the quote that would have had a guise of reasonableness, but he refrained from doing so.
Returning now to Mr Racco’s estimate, it totalled $13,511.71. Mr Bridge assessed this at $12,532.71. The extensive repainting advocated by the Racco School leads to considerably more consequential labour cost than simply the repainting itself. That is because there is a substantial amount of preparation and, in some cases, removing and refitting parts and panels of a significant portion of the entire car.
Mr Racco said that he spoke to Mr Casella, the assessor appointed by Ms Burom’s insurer, when he came to assess both vehicles. He also communicated with him by phone and email. Mr Casella’s assessment of Mr Racco’s Estimate 2250 led to a reduction to a total of $3,503.07 – compared to Mr Bridge’s assessed sum of $12,532.71. The bulk of this reduction was due to Mr Casella advocating the narrower repair method. In light of this, and the apparent intransigence of the insurer in not agreeing to pay what Mr Racco considered to be fair and reasonable, Mr Racco decided to pursue “a third-party repair.” He then referred the matter to “Daniel’s Recovery Agents”.
Mr Racco was also challenged on the repair of the “beaver panel”. Mr Racco said that neither Mr Bridge nor Mr Casella saw the damage to the beaver panel because the bumper bar was still attached to it. Hence, Mr Casella annotated his assessment with the word “report” which, I was told, indicates provisional acceptance of the item subject to later verification.
Mr Racco also said that the boot did not open and close properly. He said that the photographs show that the “gaps” between the boot and the car body were uneven. This conflicted with Mr Palmer’s evidence, who said the boot opened and closed freely. I don’t think much turns on this since the parties now agree that the beaver panel should have been repaired and an allowance for “squaring up” is, if I recall correctly, not in issue.
In cross-examination Mr Racco expressed some frustration that he was being challenged about the Racco School when, according to him, the official repair advice from Audi was to adopt this methodology. He said it is difficult for repairers who want to do the job properly since insurers usually, or at least often, insist on the inferior Casella School approach. Given that “official advice” from Audi would potentially inject some objectivity into the argument, leave was granted for Mr Racco to contact Audi during his cross-examination and to produce this advice from Audi. However, this proved a fruitless endeavour and no such advice was forthcoming.
It was put to Mr Racco that the more extensive painting conducted under his approach opened room for additional defects to be created, whether in the process of removing and reinstalling parts, or in the paint work itself. Mr Racco was shown photographs of Mr Leung’s car where there were “paint lines” along the roof. Mr Racco accepted this was poor quality work and explained that the painter who had done the work had been moved on. With respect to the problems caused to the navigation system (by the removal of the antenna and starting the car whilst it was removed), Mr Racco accepted that was an error, and said that Mr Leung was not charged for fixing it.
There were some items which Mr Racco conceded had been included in Estimate 2250 that should not have been. For example, the item “OEM Ceramic Clear as per OEM Spec” was included “by mistake”. Mr Racco also described other erroneous inclusions as “typos”.
Turning to the hire car, Mr Racco said that Hire Car Australia would leave a number of vehicles at the repair shop at any one time so that they would be available for customers to take once they had brought their car in for repair. He explained that he had filled out the form for Mr Leung to sign and that he had told him that “there will be a rate” determined later.

Mr Bridges

The third witness called by the plaintiff was Mr Bridges, the motor vehicle assessor. He has a lengthy history of experience in panel beating initially, and subsequently assessing.
To the extent that there were items claimed by Mr Racco in his estimate that should not have been, whether they were by mistake, or typos, or otherwise caused by some other oversight, Mr Bridges conceded that he undertook no independent verification of the work done but relied on the information given to him by Mr Racco.
In cross-examination, when presented with contrary information, he readily conceded, with commendable frankness, that his assessment would require adjustment. The one area where Mr Bridges stood his ground and declined to accept the invitation to support the Ms Burom’s case, however, was with respect to the dispute between the Racco and Casella schools. Notwithstanding the at times intense cross-examination, he was steadfast in his allegiance to the Racco School. He maintained that it was the preferred method of painting. Specifically, he said that there was no “masking line edge” on Mr Leung’s car that would allow the painting to be done in the manner proposed by the Casella School.

Mr Scott

Mr Scott is the manager of Hire Cars Australia, the company which supplied the Hyundai Accent to Mr Leung. Relevantly, his evidence was that he seeks to price his rental cars at a market rate to maintain competitiveness by randomly conducting research to see what is accepted throughout the industry. In this case, the price for a Hyundai Accent was a base rate of $120 per day with a total price of $182 after adding the usual extras such as registration recovery and excess reduction.
Mr Scott said that he asks the repair shops to leave the rate blank when taking customers through the rental agreement. This allows him to determine the rate once he knows who will be paying. Specifically, he said he will provide a more favourable rate for “good payers” – that is, those who paid promptly and without causing him to “sit around” in courts arguing about the market rate.
He explained that, after the entry into the smash repair / hire car market of new participants such as “Right2Drive”, at some point the insurers simply stopped paying for hire car claims given their concerns that such participants inflate claims against the “at fault” insured parties. Hence the need to allow himself the flexibility to charge a non-discounted rate where he would be required to attend at court.
The defendant called two witnesses.

Mr Casella

Mr Casella was a spray painter for 10 years and, for 26 years, he ran a vehicle repair business. He has worked as an assessor for Suncorp for 7 years. He assesses mostly “prestige” vehicles since he conducts assessments for “Shannons”, which specialises in prestige and classic cars. I infer that Shannons is a business of Suncorp. As a spray painter, he painted many prestige vehicles.
He attended at the repairers to assess both Ms Burom’s and Mr Leung’s car. He observed only “slight damage” to Mr Leung’s car, saw that the “gaps were perfect” (ie, the boot lid was not misaligned with the cavity in which it sits) and the boot lid opened and closed well. He also observed that there was no movement in the bumper and the badges had not been damaged. He assessed that the repair would reasonably cost $3,503.07.
To arrive at that sum, Mr Casella proposed painting only the lower part of the boot lid and clear coating the whole of its bottom section. He said that this would not result in any visible difference between the new and existing paint and was the method commonly employed by prestige repairers.

Mr Palmer

Mr Palmer is an automotive assessor. He has been employed in the motor vehicle repair industry for a total of 53 years. He started in this field as a panel beater for 14 years and has been an assessor for 39 years. He inspected Mr Leung’s car at Mr Leung’s residence in Doncaster, after it had been repaired. He also had photographs of the car prior to its repair that had been taken by Mr Racco. From the photographs, initially, all he could see was a slight “thumb print size” dint on the boot lid. He thought that the “gaps” were all aligned, suggesting there was no internal structural damage. He therefore thought that repainting only the lower portion of the boot lid should be allowed, and any “metal work” required to repair the dint.
Asked to comment on Mr Bridge’s concern that a masking line would be visible if the Casella approach were adopted, by reference to photographs Mr Palmer explained that the boot lid itself had a convenient “break line” where there was some overhang above the concave area where the number plate is. A “competent” repairer would choose to paint this area only; whereas, proceeding beyond this to other panels would, as was the case with this repair, introduce the risk of causing additional problems. In this respect, Mr Palmer pointed to the photographs of what he described as poor paint work around the fuel cap area (which had not been appropriately “masked up”) and visible paint lines along the roof.
Overall, Mr Palmer considered that the time that should reasonably be allowed to complete the repair would be 4 to 5 days. Repair of the beaver panel (which was accepted as necessary once the photographs showing its damage were produced) should not change this since it should add no more than 5 hours to the job.
Mr Palmer also said that there was no need to remove the battery as the repair work could be done with the battery still in the car. If there were concerns about electrical current – eg from welding – interfering with the car’s electrical system, an “anti-zap” device could be attached to the battery to guard against this. Mr Palmer said most repairers would have these devices. He would have allowed $10 for this item to be attached to the battery as opposed to the $20 claimed by the repairers for removing and storing the battery.

Consideration
The method of painting

This case must be decided by the evidence presented in it. Of course, courts would be concerned if their findings were contrary to the objective truth of the matter. It was evident from the cross-examination of Mr Palmer, by experienced counsel, that this battle over painting methods has been fought over many years. Ultimately, I can only choose whether the Racco or Casella School by the weight of the evidence placed before me. In this case, I am persuaded to accept that the reasonable method of repair of the small “thumbprint” damage to the boot lid is that advocated by the Casella School.
Given his lack of specialist training, I have given Mr Racco’s evidence less weight. Whilst I accept that, as a qualified panel beater, Mr Bridges would have more of an understanding of the perils that various methods of paint repair might pose, I have given more weight to Mr Casella’s evidence given his specialised training as a spray painter. This was supported also by Mr Palmer who, although not a qualified spray painter, had the longest experience in the industry of any of the witnesses.

Other Cost of Repair Issues

Ms Burom left no stone unturned in querying the costs of repair.[1] For example, as mentioned above, item 61 of the repairers’ bill was “remove battery and store” for which the repairer claimed $20, but Mr Palmer said that only $10 should be awarded. This approach necessitated a “line by line” examination of the repairer’s bill. Rather than set them all out, I think it should be sufficient, having found that the adoption of the Racco method of repair was not reasonable, for the parties to agree themselves what the final sum is. My recollection was that, once the method of repair question was resolved, the parties were in general agreement as to what would follow. If I am wrong in that, the matter should return to me for further assessment.

Duration of car hire

[1] It should be acknowledged that Ms Burom appeared to play no part in this proceeding. Her involvement was by name only – the true combatant was her insurer acting under their subrogated rights.

The duration for which Mr Leung reasonably required a rental car was the period of time required reasonably for the repairer to repair his car, with some allowance on each side of that for Mr Leung to arrange to exchange the cars. As the wronged party, Mr Leung was not obliged to uproot his life to return the rental car the same day that he was notified that it was ready to collect.
In the circumstances, I accept Mr Palmer’s evidence that a reasonable period to fix the car using the Casella approach was 5 days. However, there was a 22-day period during which the car sat at the repairers waiting to be assessed. In submissions, it was put on behalf of Mr Leung that this was the fault of the insurer, and it should bear the cost of its own delay. On one view, Mr Leung is not responsible for this. Even if the Casella repair method had been adopted, it would not have commenced until the assessment had taken place.
However, I accept Mr Palmer’s evidence that the car was driveable. Indeed, Mr Leung had driven it there himself. There was only almost imperceptible damage to the car. In those circumstances, I do not accept that it was reasonable to hire a car whilst Mr Leung’s own car sat at the repairer’s waiting to be assessed. In these circumstances, where the car was so slightly damaged, I consider that a reasonable person would have at least queried why the car could not continue to be driven instead of immediately accepting the offer of a hire car for an indeterminate period, especially knowing that it would fall upon Ms Burom to pay. In this sense, he “ha[s] not taken that care which an ordinary man would about his own affairs.”[2]
[2] Watson Norrie Ltd v Shaw and Nelson [1967] 1 515 at 516, Sellers LJ.

Weighing all of the above, I think it is reasonable to allow 7 days of hire in respect of the reasonable repair period.

Rate

The only evidence adduced as to the market rate for a hire vehicle at the time came, briefly, from Mr Scott. He said that he monitored the market and sought to price his vehicles at a competitive rate. There was little challenge to this evidence. Ms Burom did issue a subpoena to Hertz for documents relating to the hire charges for the period 26 May 2022 and 23 June 2022 for an “Audi Q2 or similar” and a “Toyota Corolla Sedan or similar” and the “specifics regarding the daily rate charged, the 7-day rate charged, the 14-day rate charged, and the 30-day rate charged from the Hertz closest to Doncaster.” However, no one from Hertz, or anywhere else, was called to give evidence as to the market rate for replacement cars. I do not know whether the subpoena was called upon.
The Hire Car Australia rate consisted of the following daily fees:
·Base hire $120
·Registration recovery $7.95
·Excess reduction $35
In addition, a one-off delivery fee of $75 was charged, as way a “Covid-19 protection Bio-Clean” of $50.
I would therefore allow a daily fee of $162.95, with an additional $125, giving a total of $162.95 x 7 = 1,140.65 + 125 = 1,265.65.
This, however, is subject to the outcome of Ms Burom’s attack on Mr Leung’s right to recover anything at all in respect of the hire car, to which I will now turn.

Can Mr Leung obtain damages for the hire car?

As noted at the outset, in her defence, Ms Burom pleaded that Mr Leung had “failed to demonstrate a need for a replacement vehicle and has failed to mitigate [his] loss.” That defence was filed on 5 September 2022. The High Court’s judgment in Arsalan v Rixon [2021] HCA 40 (‘Arsalan’) was handed down on 8 December 2021. In its judgement, the Court said at [17] that the “loose concept of ‘need’ should be eschewed” and, instead, the “head of damage of loss of amenity of use of a chattel should be recognised.”
Although her defence focused on “need” and failure to mitigate, by the time the trial came on Ms Burom had refined her defence and now, in purported reliance on Arsalan, submitted that none of the rental car cost was recoverable by Mr Leung. This was because, she submitted, no price had been inserted into the hire car contract. It followed, then, there was no enforceable contract requiring Mr Leung to pay Hire Cars Australia anything. In those circumstances, Mr Leung had obtained the car for free and therefore had suffered no compensable loss.
Two separate issues arise from this contention, both of which require their own separate analysis:
(a)was the hire car contract signed by Mr Leung enforceable against him for the hire charges; and
(b)if not, did it follow as a matter of law that Mr Leung could not recover damages because he had suffered no financial loss?
I will address firstly the latter of these issues, which concerns the availability of damages in circumstances where the innocent party has received the equivalent of compensatory damages gratuitously from a third party.
Ms Burom submitted that the High Court in Arsalan had overruled the principle res inter alios acta. That principle was most recently and authoritatively applied by the New South Wales Court of Appeal in Anthanasopoulos v Moseley [2001] NSWCA 266 (‘Anthanasopoulos’). Anthanasopoulos was followed in Roehlen v Mikhail [2018] VSC 121 (‘Roehlen’), where T Forrest J said that damages would still be awarded even though “a third party may have provided some external form of compensation.”[3]
[3] At [22]. Strictly speaking, his Honour’s comments were probably obiter since he had already found that the hire car in that case had not been provided gratuitously.
Essentially, counsel for Ms Burom, Mr Ryan, submitted that the law in Australia is now represented by the reasoning in the competing English case of Dimond v Lovell [2002] 1 AC 384 and not Anthanasopoulos.
Until Arsalan, it was submitted, the law had diverged between Australia and England on this issue, as explained by T Forrest J in Roehlen at [29]:
The common law in Australia has not drawn the English distinction between direct loss and consequential loss. Anthanasopoulos remains authority in New South Wales for the proposition that a claimant may be compensated for the loss of use of his vehicle regardless of whether his need for the vehicle was productive of financial loss.
In Anthanasopoulos, Beazley JA, with whom Ipp JA agreed, said at [29]:
I consider the better solution is derived from the long line of authority traceable to the Greta Holme to the effect that injury to property which deprives a party of the use of a thing is compensable. It is irrelevant if a third party provides a substitute for the thing damaged and the principle res inter alios acta applied to make it irrelevant as to the basis upon which the third party provides the replacement.
In arguing that Arsalan “displaced” Anthanasopoulos, Mr Ryan relied on the following observations of the High Court in Arsalan at [30]:
… the principles of damages concerned with the ‘need’ for services in circumstances in which services have been provided gratuitously by another cannot be transplanted to replace an analysis of the real loss that has been suffered as a result of damage to a chattel, especially in circumstances in which a gratuitous replacement is not available.
And, at [29]:
Indeed, in a case in which a plaintiff obtained an equivalent replacement vehicle from a hire company without any costs, it was held that the plaintiff was not entitled to damages for the notional hire cost.
Here, the Court was referring to Dimond v Lovell [2002] 1 AC 384 (‘Dimond v Lovell’). That was a case where the contract with the hire company was held to be unenforceable because it did not comply with certain statutory requirements relating to the provision of credit. The result was that the hirer, Ms Dimond, received the benefit of the rental car for free. The issue was whether she could nevertheless claim damages against the defendant for the cost of the rental car. Lord Hoffman said (at 400) “[T]his case is of course far away from the gratuitous provision of services (usually by a relative) which was considered suitable for recovery as trustee in Hunt v Severs [1994] 2 AC 350.”
The divergence between Australia and England seems to have been the result of the English courts restricting the availability of “double recovery” by plaintiffs, unless they fell within two “well established” exceptions.
In Griffiths v Kerkemeyer (1977) 139 CLR 161 (‘Griffiths v Kerkemeyer’), the High Court awarded damages on the ground that a negligent driver should not benefit from the fact that care was provided by family members and others free of charge to a person who was rendered quadriplegic in a traffic accident caused by the driver. That case bore strong resemblance to the English case of Donnolly v Joyce [1974] QB 454 (‘Donnolly v Joyce’), which relied on one of the “exceptions”. In England, however, the outer limits of res inter alios acta principle of Donnolly v Joyce and the prospect of “double recover” was narrowed by the House of Lords in Hunt v Severs [1994] 2 AC 350. Lord Bridge said in his speech at [363]:
But it is nevertheless important to recognise that the underlying rationale of the English law, as all the cases before Donnelly v Joyce[1974] QB 454 demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services …[and] in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer.
Beyond that, his Lordship (at 358) explained that the “two well established categories of receipt which are to be ignored in assessing damages are the fruits of insurance which the plaintiff himself has provided … and the fruits of the benevolence of third parties motivated by sympathy for the plaintiff’s misfortune”. His Lordship observed that “the policy considerations which underlie these two apparent exceptions to the rule against double recovery are, I think, well understood.”[4]
[4] See, eg, in respect of the benevolence exception, Lord Reid’s speech in Parry v Cleaver AC [1970] 1 at 14: “It would be revolting to the ordinary man's sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be the wrongdoer”.
In Dimond v Lovell, the House of Lords did not consider that Ms Dimond fell within an exception to the rule against double recovery. As Lord Hoffman explained at 400: “[T]he only way, therefore, in which Mrs Dimond could recover damages for the notional costs of hiring a car which she has actually had for free is if your Lordships were willing to create another exception to the rule against double recovery. I can see no basis for doing so.”
T Forrest J referred to Dimond v Lovell in Roehlen and, although noting that the NSW Court of Appeal did not “directly confront” the decision, he said at [27] “it is clear from the reasons of both Beazley JA and Ipp JA that they rejected Lord Hoffman’s approach [in Dimond v Lovell] and in fact embraced the res inter alios acta principle”.
Although, unlike in England, the law in Australia has so far not accepted that there should only be two exceptions to double recovery, it does recognise that Griffiths v Kerkemeyer damages are “anomalous in departing from the usual rule that damages other than damages payable for loss not measurable in money are not recoverable for an injury unless the injury produces actual financial loss”: CSR Ltd v Eddy [2005] HCA 64, Gibbs CJ at [27]. But, so far, no higher Court, including the High Court in Arsalan, has expressly adopted Dimond v Lovell.
In Arsalan, the issue of recovery of damages in cases where a plaintiff had secured a replacement vehicle at no cost was not before the Court. The main issue was the basis upon which damages were to be awarded and, specifically, whether the focus was to be on “need” or loss of amenity. The passing reference made to Dimond v Lovell did not reflect any detailed consideration of whether res inter alios acta was applicable in motor vehicle cases, or tortious damage to chattels more generally.
That is not to say that it is possible that, had the issue been before the High Court, it would not have adopted the Dimond v Lovell approach. It is possible, of course, that Griffiths v Kerkemeyer damages, properly understood, are confined to personal injury cases where care has been gratuitously provided by a family member or some other benevolent third party. In Amaca Pty Limited v Latz [2018] HCA 22, a case about whether a plaintiff could recover damages for the loss of age pension and superannuation entitlements caused by their premature death as a result of mesothelioma (in circumstances where it was admitted it had been contracted as a result of the respondent’s negligence), Kiefel CJ and Keane J (who were in the minority) referred to the “anomalous” character of Griffiths v Kerkemeyer damages, which had earlier been explained by Gibbs CJ in CSR Ltd v Eddy.[5]
[5] See also the judgment of McHugh J at [91]: "As a matter of principle, Griffiths v Kerkemeyer damages are an anomaly."
Moreover, in Arsalan the High Court confirmed at [34] that a plaintiff “must prove its loss … [and] establish heads of damage of physical inconvenience and loss of amenity of use consequential upon their lost ability to use their vehicle”. It then added that:
There will, however, be exceptional cases where such loss to the plaintiff will be non-existent or so slight that the hire of a replacement vehicle will not be accepted to be a step in mitigation. Such exceptional cases might include where the plaintiff was hospitalised or abroad during the relevant period of repair, or where the damaged vehicle could have been replaced from idle stock within the plaintiff’s fleet of vehicles.
It may well be difficult to explain why, in principle, a plaintiff who receives a replacement car gratuitously could be expected nevertheless to be able to “prove” its loss and be entitled to a windfall “double recovery”, whereas someone who was able to satisfy their loss from their own prudence and at their own cost by maintaining “idle stock” would receive no such windfall.
Moreover, to the extent that the “exception” for the anomalous Griffiths v Kerkemeyer damages is based on a policy consideration that the family member who is providing gratuitous care can be compensated, that would seem to have little applicability, or, as Lord Hoffman suggested, is “far away”, from a case where someone has received a replacement car for free whilst their car is being repaired.
If one accepts that different policy considerations may arise in cases of personal injury as opposed to injury to chattels, the rationale for the “anomalous exception” may not be maintainable as widely as Anthanasopoulos appears to have cast it. Arguably, it is implicit in what the High Court said in Arsalan, referred to in paragraph 69 above, that the law will tolerate wrongdoers being “rewarded” in cases where an innocent party does not demonstrate loss of amenity – for example, because they were “abroad during the relevant time of repair” or able to use their “idle” stock.
Alternatively, it may well follow that the adoption of loss of amenity as the correct head of damage naturally does away with res inter alios acta since, once the loss of amenity has been satisfied gratuitously, there would be no further need for any award of damages. Whether that is the case, however, does not fall for decision in this Court. Nor was it the subject of detailed argument and consideration in Arsalan.
Ultimately, however, although Anthanasopoulos may well be subject to question, without the High Court directly addressing the issue, I consider myself bound to follow what T Forrest J said in Roehlen and, thereby, adopt what was said in Anthanasopoulos. I do not agree that the passing reference to Dimond v Lovell in Arsalan, a case that did not squarely address the issue of availability of damages in cases where the plaintiff has suffered no financial loss, amounts to sufficient justification for this Court to depart from Roehlen.

Did Mr Leung Obtain the Replacement Car for Free?

However, even if I were disposed bravely to adopt Dimond v Lovell on the somewhat tenuous ground that the High Court had overruled Anthanasopoulos, I do not think it would apply in Mr Leung’s case since I do not agree that the contract between him and Hire Car Australia was unenforceable.
The facts in Roehlen are apposite. In that case a magistrate had found that a hire car agreement was void for uncertainty in circumstances where the hirer had signed the hire documents without knowing what the cost would be and without the hire agreement setting it out. The price was inserted after the return of the hire car. In Roehlen, T Forrest J adopted (at [17]) what Finkelstein J had said in Moonlighting International Pty Ltd v International Lighting Pty Ltd [2000] FCA 41 at [19] as a “correct statement of the law”: “[I]n the absence of an agreement as to price or machinery for ascertaining it the law implies an obligation upon the buyer to pay a reasonable price”. His Honour went on to say (at [17]) that “[W]hen there is evidence that parties have acted upon a written document, the courts will prefer to assume that the document embodies a definite intention to be bound and will strive to implement its terms”.
Even if the decision in Dimond v Lovell ultimately comes to represent the correct approach in Australia, it must still be confined to its own facts. In that case, the hire car agreement was unenforceable because it breached the Consumer Credit Act 1974 and, in those circumstances, the consumer to whom credit had been extended was not required to pay. To the extent that unjust enrichment may have been an available remedy for the car hirer, it was held that this would be contrary to the policy of the Act which, in essence, sought to punish credit companies which did not comply with their statutory obligations under the Credit Code. As Lord Hoffman said in his speech in that case, the hiring agreement was “irredeemably unenforceable” (at 397) and, accepting that the plaintiff had been enriched at the expense of the hire company, that was what Parliament intended. No such consideration arises here. Mr Leung’s contract was not “irredeemably unenforceable”. Unlike in Dimond v Lovell, no statute prohibits its enforcement and I am, in any event, bound to follow what T Forrest J described as the “correct statement of the law”. I do not accept that Mr Leung should be taken to have had the use of the hire car free.

Conclusion

Mr Leung is to be awarded damages based on:
(a)the costs in respect of the hire car set out above at paragraph 49 above;
(b)the repairs in accordance with the Casella method of repair and paragraph 40 above.
If the quantum of damages, or costs, is not agreed, the parties should list the matter before me for mention. Otherwise, I would ask them to prepare orders that reflect these reasons.

G. Robinson

[2023] VMC 15

8 November 2023