Masrour v Danzey
[2013] NSWLC 9
•12 April 2013
Local Court
New South Wales
Medium Neutral Citation: Masrour v Danzey [2013] NSWLC 9 Hearing dates: 9/11/2012, 25-26/02/2013 Decision date: 12 April 2013 Jurisdiction: Civil Before: Magistrate Schurr Decision: Verdict for the Plaintiff in the sum of $7,825.14
Catchwords: CIVIL - motor vehicle accident - hire of replacement vehicle - damages and non-compensable benefits Cases Cited: Admiralty Commissioners v SS Chekiang [1926] AC 637
Anthanasopolous v Moseley [2001] NSWCA 266
Bent v Highways and Utilities Construction and Allianz Insurance [2011] EWCA Civ 1384 (24 November 2011)
Burdis v Livsey [2003] QB 36
Chong v Berry [2007] NSWLC 33
Dimond v Lovell [2002] 1 AC 384
Fang v Koumekelis (unreported, Local Court, 18/07/2012)
Giles v Thompson [1994] 1 AC 142
Harb v Marchbank [2011] NSWLC 9
Lord Citrine, Owners of the v Owners of the Hebridean Coast ("The Hebridean Coast") [1961] AC 545
Mersey Docks & Harbour Board v Owners of the SS Marpessa "The Marpessa" [1907] AC 241
"The Mediana", Owners of the Steamship v Owners, Master & Crew of the Lightship "Comet" [1900] AC 113
The Owners of No 7 Steam Sand Pump Dredger v The Owners SS "Greta Holme" [1897] AC 596
Solar v Elkin [2011] NSWLC 34
Tyko Australia Pty Ltd v Optus Networks Pty Ltd & Ors [2004] NSWCA 333Category: Principal judgment Parties: Iraj MASROUR (Plaintiff)
Robyn DANZEY (Defendant)Representation: Mr Griscti (for the Plaintiff)
Mr Habib SC and Mr Oliver (for the Defendant)
Johnathan D'Arcy & Co (for the Plaintiff)
MCK Lawyers (for the Defendant)
File Number(s): 2012/128560
Judgment
Legal Background
This case concerns companies that offer hire cars on credit for drivers whose cars have been damaged in an accident caused by the other driver. The companies operate in the UK and Australia. Sometimes their advertisements may be seen on the back of buses in Sydney.1 In return for hiring cars without requiring upfront payment, that is, on credit, the companies take over the right of the driver to recoup the cost from the insurers of the at-fault driver. The daily hire charges of a credit car hire company can be twice that of mainstream car hire companies.2
Insurance companies have opposed the claims of the credit car hire companies in the courts, in part because of the higher payouts in damages incurred than if the plaintiff had used a mainstream car hire company. Insurers lost the first legal challenge, in which they alleged the agreements were champertous3. The insurers won the next legal challenge, when they successfully argued that the drivers' agreements with the credit car hire providers were in breach of the UK Consumer Credit Act 1974, however this was a breach readily corrected by redrafting of the contracts.4 English courts have now established a method of assessing damages at a rate lower than the rate charged by the credit hire car companies when non-compensable benefits are received by the driver.5 The principles in Dimon v Lovell - that where there are non-compensable benefits to the driver the court should assesss and then award damages at the "basic hire rate" if it is lower than the rate paid by the driver for a credit hire car and is reasonable to do so - have been recently re-affirmed.6
In NSW, these matters usually come before the courts in the Small Claims or General Division of the Local Court. The decision in Chong v Berry7 followed Dimon v Lovell and held that the credit car hire companies cannot recoup the full amount of their daily rate because the driver obtained non-compensable benefits of credit and legal services.
However, in Harb v Marchbank,8 a decision in the Small Claims Division of the Local Court, the credit hire car company was awarded the full amount that it charged the driver, even though the daily hire rate of $400 per day was twice that of a mainstream hire company. In Harb, the Assessor acknowledged that there was a range of rates available from hire companies, and then determined that because drivers have to make arrangements at short notice they were "less likely to avail themselves of a hire rate that is in the lower range of the available market rates". The Assessor did not analyse the significance of the differences in the rates or allude to whether any of the rates represented the inclusion of non-compensable benefits. The Assessor looked only at the nature of the replacement vehicle, not at any associated benefits. Appeals from the Small Claims Division to the District Court may only be made on the grounds of lack of jurisdiction or denial of procedural fairness, and an appeal by the insurers in Harb was dismissed.9
In the Local Court interlocutory decision of Fang v Koumoulekis10 the Court held that there was insufficient conflict between Chong v Berry and Harb v Marchbank to justify transferring the case to the General Division. The Defendants in the case before me argued that the decision in Fang was based on a misquotation from Chong v Berry. In Fang, the quotation was set out as follows:11
As Dillon LCM noted in Chong v Berry (para 72)
".. in cases were non-compensable benefits are received or in issue, what such a plaintiff is required to prove is that he or she acted reasonably honestly and at arms length from the hire company. Whether the hire company acts straightforwardly is irrelevant provided the plaintiff is straight forward. Where non-compensable benefits are in issue, the plaintiff bears the onus of proving that he or she acted reasonably and the sum claimed for hire of a replacement vehicle corresponds to a market rate" [para 31].
I am satisfied that the above extract from Chong v Berry was misquoted in Fang. The remarks in Chong v Berry were as follows (words missing from the quotation in Fang but present in the decision in Chong underlined by myself):12
72 In my view, in cases where no non-compensable benefits are received or in issue, what such a plaintiff is required to prove is that he or she acted reasonably, honestly and at arms' length from the hire company. Whether the hire car company acts straightforwardly is irrelevant provided that the plaintiff is "straightforward"...
73 In general terms, however, I agree that where no non-compensable benefits are in issue, the plaintiff bears the onus of proving that he or she acted reasonably and the sums claimed for hire of a replacement vehicle correspond to a market rate.
In the above quotation from Chong v Berry, Magistrate Dillon was referring not to the process for assessing non-compensable benefits (such as those offered by credit car hire companies) but only to claims that did NOT involve non-compensable benefits (such as the rates of mainstream car hire companies). I am satisfied that Chong v Berry did not depart from the principles set out in Dimon v Livesey regarding the reduction of an award for damages to take into consideration the non-compensable benefits offered by credit hire companies.
In the case before me, in the General Division, both parties seek to have a decision not only to settle the current claim but also one that can be appealed on a point of law to the District Court to produce a binding decision for future claims in the Local Court.
Summary of conclusions
I am satisfied that the Plaintiff suffered compensable damages as a result of the collision caused by the Defendant, that the Plaintiff mitigated his losses by hiring a replacement car, and that the Defendant is liable for damages.13
I am satisfied, for the reasons set out below, that the charge imposed for the car provided to the Plaintiff by the credit car hire company was within the market range - whether defined as "the market" or "the average market" range - and that a not-at-fault driver is not required to look only at the bottom end of the car hire market.
When I look to the reasonableness of the Plaintiff's behaviour in this case I find, as a matter of fact, that he failed to act reasonably when he declined the insurer's offer of the Hertz car free of charge. He accepted the Compass Car offer when a replacement car was available from a mainstream company, and without making any inquiries as to the daily rates of the credit car hire company.
Further and in the alternative, I am satisfied on the authorities that the court must take into consideration the non-compensable benefits flowing to a person who receives a credit hire car. In this case, Mr Masrour received non-compensable benefits. The Plaintiff's damages must be assessed by reference to the market rate in which mainstream car hire companies operate, whose services do not include non-compensable benefits. The Plaintiff's reliance on the pronouncements in Chong v Berry14 in relation to the prima facie market rate failed to take into consideration the further findings made by Magistrate Dillon in relation to non-compensable benefits, and I adopt the further findings in relation to assessment of non-compensable benefits, findings which I am satisfied are also supported by the English authorities.
The Facts
An at-fault driver, Ms Danzey, collided with the rear of the hire car, a Lexus RX330, which Mr Masrour, a professional chauffer, was driving on 16 April 2011. The Lexus was towed away and was off the road for repairs for about six weeks. Both drivers were insured by NRMA/Insurance Australia Group (IAG).
It was not in dispute that Mr Masrour, a professional driver, had a need for a car and it was not in dispute that the loss of the use of his car while it was being repaired was compensable. What was in dispute was the quantity of damages flowing from the need for the hire of the replacement car.
The insurance policy for the Lexus did not contain a specific entitlement to a free rental car while the Lexus was being repaired. However, where a driver was not at fault the cost of a car rental can be recovered in certain circumstances.
Mr Masrour made inquiries about obtaining a replacement hire car and received two offers of a like-for-like replacement car, both of which were to be at no cost to himself. The first offer was a Lexus with a rental fee of about $400 per day (Compass Cars), the second was a Lexus with a rental fee of about $200 per day (Hertz, via NRMA insurance).
The offer from Compass Cars
The first offer came on 19 April 2011 from Compass Cars via a referral from the company Lexus of Chatswood, to whose premises Mr Masrour's car had initially been towed.15 Mr Masrour's recollection in his cross-examination that he first spoke about the hire on 21 April appears to be mistaken.16 Mr Masrour was apparently referred to Compass Cars on 19 April 2011, and must have accepted that offer because "later" on 19 April Compass Cars prepared the credit hire paperwork.17 On 20 April 2011 Compass Cars sent a claim on Mr Masrour's behalf to NRMA, which included a claim for a replacement hire car.18 The damaged Lexus was towed to Northshore Classic Auto Body Centre, Artarmon by 21 April 2011, and there was a Compass Cars premises nearby. 19 On 21 April 2011 Mr Masrour obtained the replacement Lexus from Compass Cars without upfront payment, on credit, after he signed the contract. Mr Masrour said in cross-examination that he was verbally assured that the car would be made available to him without charge.20 The contract stated that Mr Masrour assigned his claim for the hire car costs to Compass Cars. While the documents states that Compass had a right to recover from Mr Masrour if the claim is not otherwise satisfied, this case progressed on the basis that Compass was seeking to recover from the insurer and not from Mr Masrour, and nor would Mr Masrour be liable for any legal costs awarded against the Plaintiff.
The NRMA offer
The second offer of a replacement car which Mr Masrour received came from the parties' insurance company NRMA/IAG at about 4.50 pm on 19 April 2011. Mr Masrour had rung the insurer to ask if it were true that he could have a replacement hire car at no cost to himself. The IAG claims officer told Mr Masrour that he could have a comparable replacement car from Hertz paid for by the insurance company and at no upfront cost to Mr Masrour21. This offer seems to have been a long-standing NRMA policy, as a similar policy was discussed in the case of Athanasopoulos v Moseley [2001] NSWCA 266; (2001) 52 NSWLR 262. Mr Masrour was told that if he rented from another company he would have to pay for the car upfront and the insurance company would assess his claim. He was told that there were "certain limitations" (unspecified) in the rental of any car.22 Mr Masrour did not ask what they were. The claims officer said in evidence that he offered to put Mr Masrour in touch with Hertz, but Mr Masrour did not follow up the offer.23 The Defendant led evidence that there were comparable Lexus cars available from Hertz on 19 April 2011.24 Mr Masrour did not contact NRMA again after 19 April 2011 and he did not accept the offer.
The litigation
By choosing the credit hire car company Mr Masrour has unwittingly wandered onto a battleground upon which insurance companies and car rental companies have long been litigating in NSW and England. For example, I quote the opening words of Lord Justice Aikens in his 2011 decision in Bent and Highways and Utilities Construction v Allianz Insurance [2011] EWCA Civ 1384 at [1]:
These appeals are fought on two new fronts in the saecular war that has now been conducted for over 20 years between the motor insurance market and credit car hire companies who provide an innocent victim of a motor accident ("an RTA") with a replacement vehicle while his is being repaired...... In all these cases involving the hire of replacement cars on credit terms, although the nominal claimant is the innocent victim of the negligent driving of the nominal defendant, the real parties behind the actions are always, on the claimant's side, a credit hire company which is seeking to recover the car hire costs involved; and on the defendant's side, a motor insurance company which is at risk of having to pay out on behalf of its insured, the negligent driver.
In this case Compass Cars stand in the place of Mr Masrour and have lodged a claim for damages based on the cost of the car they hired to Mr Masrour, calculated at $18,950, plus interest and costs.
The principles of assessment of damages in credit car hire cases
The principles for recovery of damages in credit car hire cases were summarised in the English case of Bent v Highways and Utilities Construction. 25 There is no binding Australian authority. The principles are as follows.
Firstly, it is the duty of an innocent party to mitigate their loss arising from the damage to their car, which they can do by hiring a car.26 Mr Masrour did this. The English court relied upon Dimond v Lovell27 for this proposition. I note the adoption of those parts of Dimond v Lovell and Lagden v O'Connor28 in Chong v Berry.29 That part of the case law is not in dispute here.
Secondly, a person whose car is damaged and who must hire a replacement car suffers a loss. In this case Mr Masrour suffered that loss, although by signing the car hire contract he assigned his legal rights to Compass Cars.
Thirdly, the innocent driver cannot claim for "unreasonable" expenditure by hiring a bigger and better car than was reasonable.30 In this case Mr Masrour acted reasonably, in that he hired a like-for-like vehicle. There was no suggestion that this was anything other than a commercial transaction.31 There was evidence that the rate charged was within the range charged by other credit hire car companies.
Fourthly, a Plaintiff can recover the cost of the usually more expensive credit hire car if there are no alternatives. For example, if the Plaintiff could not afford to pay upfront for a hire car themselves - the indigent rule - or if the only available car was from a credit car hire company operating at the time, because of the characteristics of the car or the driver.32 Otherwise a Plaintiff may recover the "basic" cost of a hire car and not the cost of a credit hire car. 33 Whether the Plaintiff acted reasonably is a question of fact.34
Fifthly, even if it was reasonable for the plaintiff to hire a car on credit terms, the a plaintiff may not recover for non-compensable benefits included in the credit hire rates - such as the cost of handling the claim against and recovering costs from the insurer.35 This is the subject of dispute in Mr Masrour's case. The Plaintiff's legal representatives argued that the Plaintiff only had to prove that they hired the car at "a" market rate rather than "the" market rate, and that any arms-length transaction with a legitimate hire company will discharge the onus of establishing that the amount paid was "a" market rate. I note that the issue of non-compensable benefits was not addressed in Harb v Marchbank.36 I am satisfied that the Plaintiff retains the onus of establishing that the damages are compensation only for the loss of the car, and not for other non-compensable services received, and the cost of the replacement of the car may be a lower cost than the cost of the credit car hire car and associated services. I discuss this issue further below.
Sixthly, interest is not payable if there is no express provision for interest in the Contract.37 I note that there is no reference to interest in the contract signed by Mr Masrour. The court was also assured that Mr Masrour would not be liable to pay legal costs. In this regard see Harb v Marchbank,38 where no costs were awarded.
Finally, in considering the method by which a court could assess the damages where a plaintiff was not impecunious - as here - the court can assess damages by looking at the difference between the credit car hire and the "basic hire rate" (BHR) for the same kind of car in that area at the time the replacement car was hired.39 This assessment takes into consideration the requirement that:40
(a) on the one hand, the plaintiff can go around "to the nearest hire company and is prima facie entitled to recover the amount charged whether or not the charge is at the top of the range of car hire rates"; and
(b) on the other hand, "the basic principle is qualified by the duty to take reasonable steps to mitigate the loss. What is reasonable will depend on the circumstances".
Was there an alternative to using a credit car hire company
Mr Masrour resided in Sydney, where a number of different kinds of car hire companies operate. It was not a remote location such as Bourke or Brewarrina with a limited choice.41
Mr Masrour was offered the use of a car from a mainstream car hire company, at no cost to himself. He did not accept that offer, although there is no evidence there was any impediment to his using the mainstream car hire company. There was evidence that there were comparable Lexus cars available from Hertz.
In Bent's case the court allowed - on the facts - damages at the credit car hire rate. However I note some factual points of difference between Bent's case and the case involving Mr Masrour:
(a) Mr Bent's Aston Martin DB9 was a comparatively rare vehicle in Britain and constituted a "very specialised market" in that there were "few available at any one time", and so the court held that Mr Bent was entitled to approach a small specialist credit hire company. In Mr Masrour's case there was evidence that equivalent replacement Lexus vehicles were available for Mr Masrour in Sydney from Hertz; and
(b) Mr Bent was a wealthy but young professional soccer player aged 23 and both the main stream and other credit car hire companies had rates that applied only to drivers aged 25 and over for insurance reasons. There was no evidence that Mr Bent would have been able to hire a replacement car at any lower rate than the one he obtained from the credit car hire company, so lower rates were not considered to be relevant by the appeal court. There was no evidence in Mr Masrour's case that there were any insurance impediment to Mr Masrour hiring a car from Hertz or Compass Cars because of his age or record.
Both Compass Cars and Hertz had policies stating that the commercial use of hired vehicles was not permitted under the policy. Compass Cars had a provision that any "right" of the company could only be waived in writing, and Hertz had a provision that the non-hiring condition could be waived in writing by the company.42 There was no evidence that Compass Cars gave a written waiver to non-hiring condition when they rented the car to Mr Masrour. Mr Waring gave evidence that Hertz considers application for commercial use of a hire car on a case-by-case basis. The Plaintiff led no evidence that established that Hertz would not have waived the no-hiring condition for Mr Masrour or that the decision-making process was inconveniently long.
In this case the Plaintiff has not established that Mr Masrour had "no choice" but to hire a credit hire car because:43
(a) there is no evidence led by the Plaintiff upon which I could conclude that Mr Masrour was not able to pay for a hire car himself, that is, that he was indigent;
(b) there is no evidence of any ineligibility of Mr Masrour to hire from mainstream companies because of insurance issues;
(c) there is evidence that there were similar cars available to Mr Masrour from an ordinary car hire company; and
(d) there is evidence that Mr Masrour could have - at no cost to himself - hired a hire car at the "basic hire rate"44 through his insurer.
Therefore, I am entitled to take into consideration when establishing the basic hire rate the range of prices from both mainstream and credit car hire companies - being in this case approximately $200 per day from Hertz to $440 per day from Compass Cars, and $450 per day from Luxury Car Hire.45
Were non-compensable benefits included in the Compass Car hire rates
A person may recover damages for a replacement item, but not for additional benefits and services that come with that replacement item.46 This is part of a plaintiff's duty to mitigate the loss suffered.
The additional services and benefits which are not recoverable under the rule in British Westinghouse and which are included in the contract with credit car hire companies were described in Dimond v Lovell:47
But that does not necessarily mean that (Mrs Dimond) can recover the full amount charged by 1st Automotive. By virtue of her contract, she obtained not only the use of the car but additional benefits as well. She was relieved of the necessity of laying out the money to pay for the car. She was relieved of the trouble and anxiety of pursuing a claim against Mr Lovell or the CIS. She was relieved of the risk of having to bear the irrecoverable costs of successful litigation and the risk, small though it might be, of having to bear the expense of unsuccessful litigation...
My Lords, English law does not regard the need for any of these additional services as compensable loss. ... If Mrs Dimond had borrowed the hire money, paid someone else to conduct the claim on her behalf and insured herself against the risk of losing and any irrecoverable costs, her expenses would not have been recoverable. ...
The English courts have concluded that in credit car hire cases where there alternatives available in the market, and where non-compensable benefits have been received as a result of the use of credit car hire companies, then damages are properly assessed by establishing the spot rate or rate of hire from an ordinary hire company48 or, using different terminology, the "basic hire rate".49 An award of damages based on the credit car hire company's rates would be erroneous, given the element of non-compensable benefits included in that cost.
Mr Masrour signed a contract that gave him the same kind of benefits enjoyed by Mrs Dimond in her case.50 They included:
(a) not having to pursue a claim against the other driver or their insurance company;
(b) not running the risk of costs in litigation.
I am satisfied that those additional benefits are non-compensable. I assess the amount of damages on the spot or basic hire rates of similar cars, as established by the evidence relating to the rates for Hertz cars. I assess damages based on the daily rate of $181.98 per day for 43 days.
ORDERS
Damages
(1) Verdict for the Plaintiff in the amount of $7,825.14.
(2) I decline to make an award of interest, on the basis that there was no express provision for interest in the hire contract: Bent v Highways and Utilities Construction and Allianz Insurance [2011] EWCA Civ 1384.
Costs
(3) I decline to make an order for costs. I note that the court was assured that Mr Masrour was would not be liable to pay any costs. See also Harb v Marchbank [2011] NSWLC 9 at [41]-[49]. However, this costs order is to be stayed for 14 days and to commence if no party files any application as set out below.
(4) Any application for a different costs order may be made by written submissions not exceeding 500 words, such submissions, including documentary evidence of legal costs incurred, to be filed and served by the applicant on the other party within 14 days and with the other party to respond within 14 days. The costs issue may be determined in Chambers on the written material if the parties so agree. If any party wishes to have the matter listed for oral argument on costs submissions, the matter may be so listed by agreement and after consultation with the court. The application is to be sent by email to Magistrate Schurr using the email address provided.
Magistrate B Schurr
Downing Centre Local Court
**********
Exhibits
1
Statement of Iraj MASROUR, 17.10.12
2
Staement of Mark PATTERSON, 16.10.12 (Northshore Classic Auto Centre)
3
Mr Masrour's Certificate of Insurance with NRMA
4
Compass Tax Invoice for 14 days rental, 21.4.12
5
Witness Statement of Darryle ADAMS, 15.10.12 (Senior Recovery Specialist, Compass Corp)
6
Affidavit of Darryke ADAMS, 2 November 2012
7
Affidavit of Nicholas WARING, 17 November 2012 (Regional Sales Manager, Hertz)
8
Exhibit NFW-1, Nicholas WARING
9
Exhibit NFW-2, Nicholas WARING
10
Exhibit NFW-3, Nicholas WARING
11
Exhibit NFW-4, Nicholas WARING
12
Affidavit of Shanah ZOUDI, 5 November 2012 (Insurance Australia Group (NRMA))
13
Affidavit of Ravneel PRASAD, 15 October 2012 (Claims Consultant, IAG (NRMA))
14
Audio Disk, Ravneel PRASAD
15
Affidavit of Darren MITCHELL, 7 November 2012 (IAL, NRMA) - re disc Exhibit 14.
16
Photograph of credit hire company advertisement on the back of a bus
17
Notice to Admit, and Response
Witnesses
MASROUR, Iraj
ADAMS, Darryl
WARING, Nicholas
ZOUDI, Shanah
PRASAD, Ravneel
Footnotes
1 Exhibit 16.
2 See for example: ₤41.37 per day for a credit hire car and ₤24 per day for a main stream car: Dimond v Lovell [2002] 1 AC 384; about $55 per day for a credit hire car and ranging from $35 to $85-$94 per day for a mainstream (perhaps newer) car: Chong v Berry [2007] NSWLRC 33; $440 per day for a credit hire car and $220 from a main stream hire company: Harb v Marchbank [2011] NSWLC 9 - and similar rates in Mr Masrour's case.
3 Giles v Thompson [1994] 1 AC 142.
4 Dimon v Lovell [2002] 1 AC 385
5 Dimon v Lovell, ibid, at 401-402, 406-407.
6 Bent v Highways and Utilities Construction Ltd [2011] EWCA Civ 1384
7 Chong v Berry [2007] NSWLC 33
8 Harb v Marchbank [2011] NSWLC 9
9 Marchbank v Harb [2011] NSWDC 110, referred to in Fang v Koumoukelis (NSWLC, 2011/0020971)
10 Fang v Koumoukelis, NSWLC, 2011/0020971 (unreported, Magistrate Townsden, 18 July 2012)
11 Fang v Koumoukelis, ibid, at page 12
12 Chong v Berry [2007] NSWLC 33 at [72], [73]
13 Dimond v Lovell [2002] 1 AC 384
14 Chong v Berry [20070 NSWLC 33 at [52]-[54]
15 Exhibit 13, Annexure C (transcript of call to IAG)
16 Eg, his evidence on 9.11.12: 25-27.
17 Exhibit 5, Affidavit of Darryl Adams, para [16]
18 Exhibit 5, Annexure A
19 Exhibit 1. Affidavit of Iraj Masrour, 17.10.12
20 Transcript, 9.11.12, pp 27-30, 32
21 Exhibit 13, Affidavit of Ravneel Prasad, Annexure C (transcript of call to IAG)
22 Exhibit 13. Affidavit of Ravneel Prasad, 15.10.12
23 Exhibit 13, Annexure C (transcript of call to IAG)
24 Ehxibit 6
25 Bent v Highways and Utilities Construction Ltd [2011] EWCA Civ 1384 at [29]-[41]
26 Bent v Highways and Utilities Construction Ltd [2011] EWCA Civ 1384 at [30]
27 Dimond v Lovell [2002] 1 AC
28 Lagden v O'Connor [2004] 1 AC 1067
29 Chong v Berry [2007] NSWLC 33 at [62], [63]
30 Bent, ibid at [32]
31 Chong v Berry [2007] NSWLC 33 at [60]
32 For example, the double difficulty of a 23-year old English soccer star who owned a sports car - the car was very rare and the owner was not eligible for rates offered by mainstream hire car companies, which were offered to persons aged 25 and over: Bent v Highways and Utilities Construction Ltd [2011] EWCA Civ 1384
33 Bent, ibid at [33]; Dimond v Lovell [2002] 1 AC 384 at 402, 406-407.
34 Dimond v Lovell [2002] 1AC 384 at 401.
35 Bent, ibid at [35]; Dimond v Lovell [2002] 1 AC 384 at 403-404
36 Harb v Marchbank [2011] NSWLC 9
37 Bent, ibid at [37].
38 Harb v Marchbank [2011] NSWLC 9 at [41] - [49]
39 Bent, ibid at [38].
40 Burdis v Livsey [2003] QB 36 at [147]; Bent, ibid at [40].
41 Eg, Chong v Berry [2007] NSWLC 33 at [72]
42 Compass Cars policy: Exhibit 5, Annexure B, conditions 2(g) and 5(e); Hertz policy: Exhibit 8, condition 5(viii).
43 Bent, ibid at [36] Lagden v O'Connor [2004] AC 1067 at [35].
44 Bent, ibid at [34]; Dimond v Lovell [2002] 1 AC 384 at 402, 406-407.
45 Affidavit of Darryl Adams, 16.10.12, Exhibit 5, Annexure A
46 British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673; Dimond v Lovell [2002] 1 AC 384 at 402, [407]
47 Dimond v Lovell, ibid, at 401
48 Dimond v Lovell, ibid, at 403, 407;
49 Bent v Highways and Utilities Construction Ltd [2011] EWCA Civ 1384 at [34]
50 Dimond v Lovell, ibid, at 401
Decision last updated: 13 September 2013
1
0