McKnight v Miller - [2023] WADC 107

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MCKNIGHT -v- MILLER [2023] WADC 107
CORAM:   LEVY DCJ
HEARD:   4 APRIL 2023
DELIVERED          :   15 SEPTEMBER 2023
FILE NO/S:   APP 49 of 2022
BETWEEN:   MELANIE MCKNIGHT
Appellant
AND
ELAINA MILLER
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DARGE
File Number            :   PER/GCLM/4037/2020

Catchwords:

Appeal - Onus of proof in a claim for damages - Whether Magistrate erred by failing to take into account relevant evidence - Whether costs claimed for damages unreasonable - Principle of judicial comity - Turns on own facts

Legislation:

District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)

Result:

Appeal allowed
Magistrate's decision set aside
Judgment in favour of the appellant in the sum of $1,930.81

Representation:

Counsel:

Appellant	:	Mr G J Pynt
Respondent	:	Mr F A Robertson

Solicitors:

Appellant	:	Primus Law
Respondent	:	McCabes

Case(s) referred to in decision(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Arsalan v Rixon [2021] HCA 40; (2021) 395 ALR 390; (2021) 96 ALJR 1
Beamish v Kanakis [2017] WADC 33
Bee v Jenson [2006] EWHC 3359 (Comm); [2007] RTR 32
Chong v Berry [2007] NSLC 33
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Fallon v Johnston [2018] VSC 273
Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60
Hardie Finance Corporation Pty Ltd v Ahern [No 3] [2010] WASC 403
Hayes v Bateman [2015] NSWLC (unreported)
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Lodge Holes Colliery Limited v Wednesday Corporation (1908) AC 323
McBride v UK Insurance Ltd [2017] EWCA Civ 144
Nicolaas v Sasso [2019] ACAT 44
Patterson v Kenny [2017] WADC 58
Stevens v Equity Syndicate Management [2015] ECWA 93; [2015] All ER 458
Stocovaz v Fung [2007] NSWCA 199
Strahan v Brennan [2014] WASC 190

LEVY DCJ:

Melanie McKnight (the appellant) appeals against the decision of Magistrate Darge dismissing her claim brought against Elaina Miller (the respondent). The claim was for car rental charges relating to a temporary replacement vehicle hired by the appellant following a motor vehicle accident involving the parties.[1] The amount of the claim was ultimately the total sum of $1,930.81.[2]
[1] Melanie McKnight v Elaina Miller, PER/GCLM/4037/2020, heard 31 May 2022 before Magistrate T Drage sitting in Magistrates Court of Western Australia (Civil Jurisdiction) sitting at Perth. Reasons for Decision delivered 1 July 2022 (Learned Magistrate's reasons).
[2] The original claim, based upon a 40 day hire period less the amount paid by RAC was $2,026.68. (See further Amended Statement of Claim lodged at Fremantle Magistrates Court on 14 February 2022 - AB 12.)
The appellant contends that the learned Magistrate made a number of factual and legal errors in his reasons for decision. Those alleged errors now form the basis of nine separate grounds of appeal which are dealt with below.

Overview of the relevant facts and legal issues on the appeal

On 13 May 2019, the appellant was driving her vehicle when it was damaged in a motor vehicle collision with a vehicle driven by the respondent.
The appellant immediately obtained a temporary replacement vehicle from an accident replacement vehicle company (also commonly called a 'credit hire company') called Compass Corp Pty Ltd (Compass).
Although liability was not admitted by the respondent, no issue was taken at trial that she was liable for any reasonable damages arising from the collision.[3] The respondent's vehicle was insured by RAC Insurance Pty Ltd (RAC).
[3] Learned Magistrate's reasons, [6].
Nor was there any dispute that the appellant, as the innocent party:
(a)was entitled to damages that reflected her loss (and no more);[4]
(b)that the amount of any damages was subject to what is commonly called a 'duty to mitigate' the loss, namely the steps that she took (as the innocent party) to minimise or limit her loss after the collision;[5] and
(c)in the event that she breached her duty to mitigate by acting unreasonably, then any damages would be 'reduced to the extent to which, had [she] acted reasonably, her loss would have been less'.[6]
[4] See for example Haines v Bendall[1991] HCA 15; (1991) 172 CLR 60, 63 followed by Bell J in Fallon v Johnston [2018] VSC 273 (30 May 2018) [19] (Bell J).
[5] See for example Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 (17 November 2000), [187] (Giles JA) (with whom Handley & Stein JJA agreed) and also followed by Bell J in Fallon v Johnston [20].
[6] Karacominakis v Big Country Developments Pty Ltd [187] (Giles JA).
The appellant, having acted to mitigate her loss by hiring a temporary substitute vehicle, the onus of proof shifted to the respondent to demonstrate that the costs she incurred in mitigation were unreasonable.[7]
[7] Arsalan v Rixon [2021] HCA 40; (2021) 395 ALR 390; (2021) 96 ALJR 1 [3] (Kiefel CJ, Gageler, Keane, Edelman & Steward JJ).
Consequently, what was in dispute and goes to the heart of the matter is whether the quantum of the costs charged by Compass for the provision of the replacement vehicle, which included certain unquantified benefits provided by the company, was unreasonable.
Underlying the consideration of the question of whether the costs claimed by the appellant were unreasonable is what approach the court should take in assessing damages where the hire costs claimed do not quantify the cost of additional benefits incorporated in the rates charged?
Whether the respondent proved in the proceedings before the learned Magistrate that the appellant's actions following the motor vehicle accident were unreasonable is a question of fact.[8] The court is required to consider the objective circumstances in which the appellant found herself.[9]
[8] Karacominakis v Big Country Developments Pty Ltd [188] (Giles JA).
[9] Fallon v Johnston [41] (Bell J).
In considering the objective circumstances and the reasonableness of any steps taken by the appellant to mitigate her loss, the appellant's particular factual circumstances need to be considered.[10]
[10] Hardie Finance Corporation Pty Ltd v Ahern [No 3] [2010] WASC 403 [770] (Pritchard J).
For the reasons that follow, I am satisfied that the appellant has made out Grounds 1, 2 and 7 and the appeal must succeed. Consequently, the learned Magistrate's decision must be set aside.

Appeals from the Magistrates Court to the District Court - the legal framework

The appellant, as a party to a case (not being a 'minor case') may appeal to the District Court against the judgment of the Magistrates Court.[11]
[11] Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 40(1)(b).
The appeal must be conducted in accordance with rules of court made by the District Court[12] (District Court Rules 2005 (WA) (DCR)).
[12] MCCPA s 40(4A).
The District Court must decide the appeal on:[13]
(a)the material and evidence that were before the Magistrates Court;[14] and
(b)any other evidence that it gives leave to be admitted.[15]
[13] MCCPA s 40(4).
[14] MCCPA s 40(4)(a).
[15] MCCPA s 40(4)(b).
Leave may only be given to admit other evidence in exceptional circumstances.[16]
[16] MCCPA s 40(5).
Rule 50(1) of the DCR provides that an appeal to the court must be by way of reconsideration of the evidence that was before the primary court unless the parties otherwise agree. As noted above, r 50(2) of the DCR provides that at the hearing of an appeal a party must not adduce evidence that was not adduced in the primary court except with the leave of the court. Rule 50(3) provides that the court is not to grant such leave unless satisfied that there are special grounds for doing so.
Thus, it is clear from s 40(4) of the MCCPA and r 50(1) and r 50(2) of the DCR that an appeal from a decision of a magistrate to the District Court is by way of re-hearing.
As the appeal is by way of a re-hearing, it is necessary for the appellant to demonstrate error in the court below.[17]
[17] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission[2000] HCA 47; (2000) 203 CLR 194 [14].
Consequently, the powers of the District Court on an appeal are only enlivened if the appellant demonstrates that the original decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error.[18]
[18] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
If an error is demonstrated by the appellant, the orders that the District Court may make on the appeal are set out in s 43 of the MCCPA. They include:
(7)The appeal court may -
(a)confirm, vary or set aside all or a part of the lower court's judgment;
(b)give any judgment and make any order that the Magistrates Court could have given or made;
(c)order a new hearing in, or trial of, the case to be held in the Magistrates Court;
(d)order the Magistrates Court to enter judgment in favour of a party;
(e)make an order as to the costs of the appeal and as to the costs in the Magistrates Court and, in an appeal to the Court of Appeal, as to the costs in the District Court;
(f)make any orders that are necessary as a result of other orders it has made.

The evidence before the learned Magistrate

Before considering the grounds of appeal and substantive issues, it is important to set out the relevant evidence and materials relied upon by the parties at the hearing before the learned Magistrate.

The appellant's personal circumstances at the time of the collision

The appellant's motor vehicle was a 2013 model Opel hatchback.
At the time of the motor vehicle collision the appellant's circumstances included:[19]
[19] Exhibits 1 and 2 tendered at trial, Statements of Intended Evidence of Melanie McKnight dated 27 April 2021 and 23 May 2022.
(a)She was 25 years old and lived in Alkimos.
(b)She had a daughter and was pregnant at the time.
(c)She was employed fulltime as a financial analyst at a company based in Osborne Park.
(d)She required her motor vehicle for various purposes including:
(i)Driving to and from work, a commute of between 45 minutes to an hour each way.
(ii)Driving her daughter to and from school as well as attending extra-curricular activities.
(iii)Daily errands; and
(iv)Attending medical appointments relating to her pregnancy.
A tow truck attended the scene immediately after the motor vehicle accident. The appellant formed the view that her vehicle was not driveable and needed to be towed to a repairer. The appellant instructed the tow truck driver to tow her vehicle away.
The tow truck driver recommended that she contact Compass to obtain a hire vehicle, which she did the same day.
The appellant was aware of accident replacement vehicle companies having previously used the services of one (Right 2 Drive) following an earlier accident where she had not been at fault.
The appellant did not make any enquiries with rental hire companies as to the cost of obtaining a rental vehicle.
The appellant caught a taxi from the accident scene to her mother's house in Mindarie.
As she was pregnant and also had a sore back, after the accident the appellant attended a doctor's surgery near her mother's house. The attendance was on the day of the accident.

The appellant's agreement with Compass

The appellant entered into an initial rental agreement (Rental Agreement and Mandate to Act)[20] with Compass within hours of the collision.
[20] Appeal Book (AB) 111 - 116; Exhibit 1, Annexure 'C'.
Pursuant to that agreement, the appellant hired from Compass a replacement vehicle whilst her vehicle was being repaired. The terms of the agreement between the appellant and Compass included either credit hire charges or credit hire benefits[21] for additional benefits that were not quantified.
[21] Counsel for the appellant's oral submissions, 4 April 2023, ts 11.
Compass initially provided the appellant with a Toyota Camry as a replacement vehicle. The initial hire period ran for a period of six days. Compass charged the appellant a daily rental fee of $95.88 ($87.16 plus GST), and a delivery fee of $93.50 ($85.00 plus GST).[22]
[22]AB 111 - 116; Exhibit 1, Annexure 'C'.
On 21 May 2019, following mechanical issues with the Camry, Compass supplied the appellant with a Toyota Corolla as a replacement vehicle whilst her Opel was being repaired. Consequently, the appellant entered into a second rental agreement with Compass relating to the Toyota Corolla. Compass charged the same rate for the Toyota Corolla that it had for the Toyota Camry provided earlier, namely $95.88 and a delivery fee of $93.50.[23]

The claim for damages

[23] AB 105 - 110; Exhibit 1, Annexure 'D'.

It took 39 days for the appellant's vehicle to be repaired. RAC, the respondent's insurer, paid for the repairs. In addition to the cost of the repairs, Compass charged the respondent (as the party liable for the damages) the following:
(a)A hire charge of $3,835.03 (daily hire rate of $95.88 inclusive of GST for a 40-day period); and
(b)A delivery fee of $93.50 inclusive of GST.
As the respondent's insurer, RAC paid Compass $1,813.85 for the hire charge (assessed at a daily hire rate of $45.35 inclusive of GST for a 40-day hire) and $88 for the delivery fee.[24]
[24] Note: although it appears that two separate delivery fees were charged by Compass, one for each vehicle, only one delivery fee was claimed.
The appellant's claim before the learned Magistrate related to the difference between the hire costs ultimately claimed by Compass ($3,832.66)[25] less the amount paid by RAC on behalf of the respondent ($1901.85), namely the total sum of $1,930.81.[26]

The evidence relating to mainstream market vehicle hire charges

[25] The original sum claimed by the appellant was $3,928.53 which included an erroneous hire period of 40 days. In fact, the correct and agreed period of hire was 39 days.

[26] The original claim, based upon a 40 day hire period less the amount paid by RAC was $2,026.68. (See further Amended Statement of Claim lodged at Fremantle Magistrates Court on 14 February 2022 - AB 12.)

The appellant called Sid Khoury, the Compass Recoveries Team Manager as a witness. In evidence, Mr Khoury explained that Compass' charges were based upon mainstream rental company rates. Compass relied upon their database comprising rates 'data on a daily/weekly and 28-day basis.'[27] The Compass database of rates was called 'Rate Shop rates'.
[27] Learned Magistrate's reasons, [81].
The respondent relied upon the evidence of Ryan Hathaway, RAC Motor Claims Specialist and John McShera, Budget General Manager.[28]
[28] Learned Magistrate's reasons, [86], [87], [89], [92] and [94].
Ultimately, the various rates were distilled and set out by the appellant in an aide-memoire produced to the learned Magistrate.
The table below summarises the evidence relating to mainstream market vehicle hire charges provided to the learned Magistrate in an aide-memoire:

Rate Shop rates inclusive of GST

Inclusive of excess reduction to zero but not of roadside assistance package

1 day

Avis (lowest) Toyota Corolla $116.89 to Thrifty (highest) Kia Rio $148.86

7 days

Thrifty (lowest) Kia Rio $63.45 to Avis (highest) Kia Rio $86.42

28 days

Europcar (lowest) Kia Rio $59.19 to Avis Perth (highest) Toyota Corolla $71.79

RAC/Budget rates inclusive of GST except where shown Inclusive of excess reduction to zero but not of roadside assistance package

32 days

Budget Midland Hyundai Accent $38.48 plus GST

35 days

Thrifty Beaconsfield (lowest) Toyota Yaris $38.00 to Europcar Fremantle (highest) Toyota Yaris $49.31

39 days

Budget Midland Hyundai Accent $38.95

40 days

Budget Midland (lowest Toyota Corolla $41.45) to Europcar (highest Toyota Corolla $59.98)

As is obvious from the above table, there is a significant variance in the rates.
For a start, the Rate Shop rates were calculated on 1, 7 and 28 day hire periods. On the other hand, the RAC/Budget rates were calculated on 32, 35, 39 and 40 day hire periods.
Furthermore, it is apparent from the evidence before the learned Magistrate that there were many factors that may be relevant to the difference in quotes. This includes:[29]
(a)The type of vehicle rented.
(b)Rental duration.
(c)The terms and conditions with regard to insurance excess. Or loss damage waiver.
[29] Ryan Hathaway, statement dated 4 October 2021, pars 26 - 27.
A further complicating factor is that the RAC quotes were not for the same period of time that the appellant hired the vehicle from Compass. The RAC rates were for the period 24 February 2020 to 4 April 2020.[30] As Mr Hathaway explained in his statement, it is not possible to 'make a booking for a period in the past',[31] so the process employed by him was to obtain quotes by making bookings for a similar period in the future.
[30] Ryan Hathaway, statement dated 4 October 2021, par 41.
[31] Ryan Hathaway, statement dated 4 October 2021, par 28.
This process is obviously subject to variables such as rate increases, and premium surcharges related to holiday periods or certain locations (such as Perth Airport or the Perth CBD).[32] The quotes obtained by Mr McShera did not include the airport or Perth CBD.
[32] The evidence of Mr McShera and the learned Magistrate's reasons [94].
On the other hand, the respondent did not rely solely on the evidence of Mr Hathaway. The Budget rates provided by Mr McShera related to the relevant hire period (13 May 2019 to 20 June 2019) and were for a similar car to a Corolla (Hyundai Accent), hired with a Loss Damage Waiver Amount of $627.00.[33]
[33] Exhibit 8, John Mark McShera, witness statement dated 4 October 2021, pars 19 - 26.

Background to the appeal and the learned Magistrate's reasons for decision

As the learned Magistrate noted,[34] whilst on their face these proceedings appear to be a dispute between two individuals, in reality it is litigation between two corporate entities, Compass and RAC.
[34] Learned Magistrate's reasons [10] - [11].
Furthermore, these proceedings are brought against the backdrop of ongoing and protracted litigation in Australia and internationally between insurance companies (like RAC) and credit-hire companies (like Compass) in what is colloquially referred to as a 'credit‑hire dispute'.
Indeed, the learned Magistrate comprehensively set out the history of this area of litigation in Australia and the United Kingdom over the last 23 years.
His Honour's analysis of the law included reference to the relatively recent decision of the High Court of Australia in Arsalan v Rixon. As a consequence of Arsalan v Rixon, it is now settled law that it is no longer the case that, before a plaintiff can succeed in recovering hire costs for a substitute vehicle, there is a requirement to prove a 'need' for the substitute vehicle. Instead, the High Court recognised the 'head of damage of loss of amenity of use of a chattel' (such as a motor vehicle.[35]
[35] Arsalan v Rixon [17].
Furthermore, the learned Magistrate also noted that in Arsalan v Rixon the High Court of Australia touched upon some of the specific issues that this court is now required to consider, but were not necessary to determine. Notably, the High Court said:[36]
Although it will not usually be unreasonable for a plaintiff to mitigate physical inconvenience and loss of amenity of use by the hire of a broadly equivalent substitute vehicle at a reasonable price, there may be further consequential issues at the margins: the extent to which the vehicles are broadly equivalent; the extent to which particular hire expenses, such as credit hire charges, can be said to have been incurred in mitigation of the losses; and the extent to which the quantum of hire costs is otherwise shown to be unreasonable. None of those issues arises in these appeals.
[36] Arsalan v Rixon [4].

In dismissing the appellant's claim, the learned Magistrate ultimately decided that:
(a)The appellant had 'failed to mitigate her loss by hiring a vehicle that included credit hire charges which took it outside the market for similar vehicles'.[37]
(b)The sum paid by RAC to Compass on behalf of the respondent was 'the median hire rate' and 'there was nothing further to be claimed by Compass'.[38]
[37] Learned Magistrate's reasons, [170].
[38] Learned Magistrate's reasons, [171].

The appeal to this court

As noted at [2] above, the appellant contends that the learned Magistrate made a number of factual and legal errors in his reasons for decision that form the basis of the nine separate grounds of appeal.
Fundamentally, this appeal raises the following substantive issues:
1.Did the respondent prove that the amount charged by Compass for the hire of the replacement vehicle was unreasonable?
2.If the answer to the first question is 'yes', to what extent or what portion of the amount charged was unreasonable?
In considering these questions, there are further sub-issues of how, and on what basis, the court can assess the issue of the reasonableness of the amount charged? This also raises questions of how the court assesses any credit hire charges that incorporate a component of additional benefits that are not quantified.
Each of the grounds of appeal are set out in full and addressed below.

Ground 1: The appellant's day rate evidence

1.The Learned Magistrate erred in law and in fact in identifying a 'reasonable' day rate between the day rates identified by the Appellant and the day rates identified by the Respondent.
2.Having concluded that he could not decide which of the Appellant's and Respondent's day rates he could rely on, the Learned Magistrate should have concluded that the Respondent had failed to prove the Appellant had not mitigated her loss to the extent of the Appellant's day rates.

The appellant's submissions in relation to Ground 1

By Ground 1 of the appeal the appellant asserts that the learned Magistrate, having come to the conclusion that it was not possible in the circumstances to be satisfied which of the various rates supplied on behalf of each of the parties should be relied upon, erred in law and fact by:
1.identifying a 'reasonable' day rate; and
2.concluding that the appellant had failed to mitigate her loss.
The appellant also contends that, in effect, the learned Magistrate ultimately arrived at his conclusion that the Compass rate fell outside the mainstream car hire rates 'because of credit hire benefits provided by Compass (as distinct from 'credit hire charges').[39] This issue is dealt with separately and considered in relation to Ground 8 at [179] - [193] below.
[39] Mr Pynt for the appellant, ts 9.
In order to properly consider Ground 1 and the appellant's related contentions, it is important to set out precisely what the learned Magistrate said on the issue. At [154] to [169] of his reasons, the learned Magistrate summarised the information before him in relation to the various car rental rates relevantly available. A summary of the various rates was set out in the aide memoire and reproduced in the table above at [41].
His Honour said as follows:
166In Nicholaas v Sasso (Civil Dispute) [2019] ACAT 44 Senior Member Ferguson found that the insurers preferred rate represented the bottom of the range and the credit hire company represented the top - therefore a median price was appropriate.
167In theory that seems to me a fair way of determining the reasonable cost of hire. However, in practical terms it has been beset by problems. Comparing apples with apples has been difficult due to the complete variance between 28 days rates obtained from the Rates Shop and 35 and 40 days rates obtained by RAC/Budget.

168I have concluded in relation to this claim that the 28 days rates must be discounted to reflect the apparent change in rates between 28 days and 35 days.
169Applying a discount of 15% to reflect the decrease in daily rates for the longer period and the premium surcharge brings the figures from the 28 day hire into the range of the highest quote Mr Hathaway obtained - $59.98 from Europcar.
170I consider that the Claimant has failed to mitigate her losses by hiring a Camry for 9 days but accept that her hire was at the same rate as the Corolla. I consider that she failed to mitigate her loss by hiring a vehicle that included credit hire charges which took it outside the market for similar hire vehicles.
171I consider that the payment made by RAC on behalf of the defendant represented the median hire rate - neither the highest nor the lowest - and this sum was the subject of the payment to Compass prior to litigation. There is therefore nothing further to be claimed by Compass. No claim is made for the refund of the single day overpayment.

Given the range of rates available and their variance,[40] and the numerous factors and variables that applied to the rates, the appellant submits that the learned Magistrate erred by choosing the median hire rate as a reasonable hire rate.[41]
[40] Learned Magistrate's reasons, [167].
[41] Appellant's written submissions, par 39.
Furthermore, the appellant submits that the learned Magistrate failed to take into account her personal circumstances (set out above at [24] - [30]) which I note the learned Magistrate described as being 'uncontroversial'.[42]
[42] Learned Magistrate's reasons, [78].
Consequently, the appellant submits that the respondent failed to prove that she had failed to mitigate her loss by either hiring the vehicles from Compass, or that the rates charged by Compass and ultimately claimed from RAC, were unreasonable.

The respondent's submissions in relation to Ground 1

Contrary to the appellant's submissions, the respondent submits that the learned Magistrate did not in fact 'choose' the median hire rate, and indeed was critical of such an approach which his Honour noted was 'beset with problems'.[43]
[43] Learned Magistrate's reasons, [166] - [167].
The respondent asserts that when properly read and understood, the learned Magistrate was doing no more than:[44]
(a)saying that the payment made by RAC was the median hire rate;
(b)the amount paid by RAC was reasonable and there was nothing further to be claimed by Compass; and
(c)therefore, what was being claimed by Compass was unreasonable.

Conclusion in relation to Ground 1

[44] Respondent's written submissions, par 26.

In isolation, the learned Magistrate's statement that 'the payment made by RAC on behalf of the defendant represented the median hire rate - neither the highest nor the lowest - and this sum was the subject of the payment to compass prior to litigation'[45] could be construed as saying no more than the amount paid by Compass was the median rate. The fact that the learned Magistrate identified a median rate does not of itself amount to error. The learned Magistrate was obliged to consider all of the relevant rates evidence.
[45] Learned Magistrate's reasons, [171].
However, that statement is qualified by the next line, namely:[46]
[t]here is therefore nothing further to be claimed by Compass.
[46] Learned Magistrate's reasons, [171].
The qualification makes clear that the learned Magistrate was of the view that since the amount paid by RAC to Compass was the median rate, it was therefore reasonable.
However, the issue is not what is a reasonable amount, but rather whether what was claimed by the appellant was unreasonable.[47]
[47] Stocovaz v Fung [2007] NSWCA 199 [38] (Handley JA).
The fact that the amount paid by RAC to the appellant was a reasonable amount does not mean that the amount actually charged by Compass and claimed by the appellant was outside the proper range of rental rates and therefore unreasonable.
As noted by Handley JA in Stocovaz v Fung:[48]
37… acceptable evidence that a lower cost would be fair and reasonable cannot of itself establish that a higher cost was outside the range and not fair and reasonable.
38The true question would be whether the cost incurred was outside the range. In my judgment this is only another way of asking whether the cost incurred was extravagant or unreasonable.
[48] Stocavaz v Fung [37] - [38].
When the learned Magistrate's full reasons are read as a whole, bearing in mind:
(a)the need to take account of the appellant's objective circumstances, including considering the appellant's full personal circumstances[49] (set out at [24] to [30] above and the importance of which is further considered in relation Ground 7 below at [169] - [178]); and
(b)that the learned Magistrate acknowledged the difficulty with ascertaining the acceptable range of reasonable rates,
there was no proper basis for the learned Magistrate to conclude that the respondent had proved on the balance of probabilities that the appellant, by hiring a vehicle the costs of which included credit hire charges, she had therefore breached her duty to mitigate her damages.
[49] Fallon v Johnston [41] (Bell J); Hardie Finance Corporation Pty Ltd v Ahern [No 3] [770].
On the available evidence, a conclusion that what RAC had paid represented the median rate, could not of itself lead to the conclusion that the amount charged by Compass, albeit it may have been high or even the highest rates evidenced, was nonetheless unreasonable.
The appellant has made out Ground 1 and for that reason alone the appeal must succeed.

Ground 2: The '15% discount' applied by the learned Magistrate

41.The learned Magistrate erred in discounting the daily rate by 15% to reflect a notional decrease in daily rates from 28 days and a premium surcharge for airport or Perth CBD delivery and pick-up (R for J [94] and [168]-[169]) in that 15% is an arbitrary discount with no mention by the learned Magistrate of how he came to that figure, for example, by reference to the parties' submissions, the evidence adduced at trial, in reliance on judicial notice or having regard to the learned Magistrate's personal experience in matters of this sort.

In his reasons, the learned Magistrate said as follows:[50]
I have concluded in relation to this claim that the 28 days [sic] rates must be discounted to reflect the apparent change in rates between 28 days and 35 days.
Applying a discount of 15% to reflect the decrease in daily rates for the longer period and the premium surcharge brings the figures from the 28 day hire into the range of the highest quote from Mr Hathaway obtained - $59.98 from Europcar.
[50] Learned Magistrates reasons, [168] - [169].
The learned Magistrate's reference to 'the premium surcharge' appears to relate to the evidence that some of the quoted rates provided by Mr Hathaway, the RAC claims specialist, included a premium location surcharge.[51] Mr McShera's evidence included that the figures provided by Budget did not include quotes for rentals from either Perth CBD or the airport which generally attracted a premium surcharge (see [46] above).[52]
[51] Learned Magistrate's reasons, [159].
[52] Learned Magistrate's reasons, [94].
By applying a 15% discount to the rates, the learned Magistrate noted that it resulted in '[bringing] the figures from the 28 day hire into the range of the highest quote from Mr Hathaway obtained - $59.98 from Europcar'.[53]

The appellant's submissions in relation to Ground 2

[53] Learned Magistrate's reasons, [169].

The appellant contends that the learned Magistrate erred in law in that he arbitrarily applied a 15% discount to the daily rate to reflect the notional decrease in rates between the 28-day rate and 35-day rate as well as the premium surcharge.
The appellant submits that the learned Magistrate provided no reasons as to how his Honour settled on the appropriateness of a discount of 15% and, in any event, there was no evidence to support the application of such a discount to the 28-day rates and a premium surcharge for the purpose of identifying a reasonable day rate for the actual 39 day period of hire. Consequently, it is contended that 'the learned Magistrate should not have applied any discount to the Europcar day rate of $59.98'.[54]

The respondent's submissions in relation to Ground 2

[54] Ground 2 of the Appeal Notice, par 4.

The respondent submits that the learned Magistrate's approach in applying the 15% discount was consistent with authority, namely the approach taken in McBride v UK Insurance Ltd.[55]
[55] McBride v UK Insurance Ltd [2017] EWCA Civ 144 [100].
Furthermore, it is submitted that the learned Magistrate was entitled on the available evidence and materials provided to apply a discount of 15% to the 28-day rates. The respondent submits that there was a proper basis for doing so,[56] and contrary to the appellant's submission, that the basis for doing so was set out by the learned Magistrate, namely 'to reflect the apparent change in rates between 28 days and 35 days'.[57]
[56] The respondent's submissions, par 32.
[57] Learned Magistrate's reasons, [168].
The respondent submits that the 'need for 28-day rates to be discounted for hire durations greater than 28 days is also manifest from the aide memoire, a document propounded by the appellant in the court below'.[58]

Conclusion in relation to Ground 2

[58] The respondent's submissions, par 33.

Where there is evidence that the rates for a 35-day hire are lower than for a 28-day hire period, it would be logical to apply an appropriate discount to reflect the change. Furthermore, evidence demonstrating the difference between the rates applicable to premium locations such as the Perth CBD and airport, as compared to other locations, would also justify a need for some adjustment. The approach would be consistent with that endorsed by Flaux LJ in McBride v UK Insurance Ltd at [100] where a discount of 15% was held to be reasonable.
The application of a proper discount must however be based upon evidence supporting that course.
The learned Magistrate referred to the evidence relating to the rates and their considerable variance at [154] to [165]. The rates provided ranged from $95.88 per day, the rate actually charged by Compass in this case, to $38.00 per day based upon a 35-day hire period from Thrifty.[59] The evidence from Mr McShera also included a rate of $38.95 for a 39‑day hire from Budget.
[59] Ryan Hathaway, supplementary statement dated 9 May 2021 par [5]. It is of note that this statement included information based upon second-hand hearsay, although it does not appear that objection was taking to it by the appellant at the hearing below.
The learned Magistrate also noted the following rates:
•28-day hire of Toyota Corolla from AVIS Perth - $71.79.[60]
•40-day hire of Toyota Corolla from AVIS Perth - $45.35.[61]
•28-day Hire of Toyota Corolla from Budget - $67.28.[62]
•40-day hire of Toyota Corolla from Budget - $41.40.[63]
•28-day hire of Kia Rio from Europcar Perth - $59.19.[64]
•35-day hire of Toyota Yaris from Europcar Fremantle - $49.30.[65]
[60] Learned Magistrate's reasons, [157]; Statement of Sid Khoury, dated 31 May 2021, par 16.
[61] Learned Magistrate's reasons, [158]; Statement of Ryan Hathaway, dated 22 October 2021, pars 41 - 42.
[62] Learned Magistrate's reasons, [158]; Statement of Sid Khoury, dated 31 May 2021, par 16.
[63] Learned Magistrate's reasons, [158]; Statement of Ryan Hathaway, dated 22 October 2021, pars 41 - 42.
[64] Learned Magistrate's reasons, [160]; Statement of Sid Khoury, dated 31 May 2021, par 16.
[65] Learned Magistrate's reasons, [60]; Witness statement of Ryan Hathaway, dated 9 May 2022, par 5.
Apart from the premium location surcharge incorporated in some of the quoted rates, the learned Magistrate noted the significant variation in the rates, including the differences between various 28-day rates. His Honour noted, for example, that the difference between the 28-day hire rate for a Kia Rio from Europcar Perth ($59.19 per day) and 35-day hire rate for a Toyota Yaris from Europcar Fremantle ($49.30), may be explicable on the basis that former included a $189 roadside assistance charge, whereas the latter did not.[66] His Honour hypothesised that a location surcharge might also explain part of the difference.[67]
[66] Learned Magistrate's reasons, [160].
[67] Learned Magistrate's reasons, [161].
As already noted, Mr McShera expressly avoided obtaining rates from either Perth CBD or the airport as they generally included a premium location surcharge in the range of between 6% to 24%.[68]
[68] Learned Magistrate's reasons, [94].
In this case, the highest quote that Mr Hathaway obtained namely the RAC\Budget rate (which is also set out in the aide memoire above) was $59.98. However, that rate was for a 40-day hire period from Europcar. Notably, this rate was higher than any other quoted rates obtained by either Mr Hathaway or Mr McShera and which was relied upon by the respondent, including some rates for shorter periods ranging in duration from 32 to 39 days. Why the 28-day hire of Kia Rio from Europcar Perth ($59.19) was higher than the quoted rates for the shorter hire periods was not explained.
There was evidence before the learned Magistrate that some of the rates provided included a 6% premium location surcharge. This included the rates for a Toyota Corolla hired from Perth for a 28‑day period and a Toyota Corolla hired from Budget Perth for a 1‑day hire.[69]
[69] See statement of Sid Khoury, dated 31 May 2021, par 15 and Annexure 'SK1'.
It is clear that the learned Magistrate considered that it was proper to apply a discount to take account of a premium surcharge.[70] However, why, with reference to the facts of this case, the learned Magistrate applied and took account of a premium surcharge is unclear.
[70] Learned Magistrate's reasons, [169].
Despite this, impliedly the learned Magistrate appears to have adopted and applied a five-tiered approach to the consideration of the question of whether the amount Compass had paid was reasonable.
First, his Honour excluded 1-day and 7 -day rates.
Secondly, the learned Magistrate noted that the highest 28-day rate was $71.79 and that represented 'the highest possible cost that [the appellant] could fairly argue was in mitigation of her loss'.[71]
[71] Learned Magistrate's reasons, [157].
Thirdly, his Honour applied a 15% discount (to reflect the change in rates between 35-day rates and 18-day rates and the premium surcharge) to the $71.79 rate.
Fourthly, having arrived at amount of $61.02, his Honour concluded that amount was in the range of 'the highest quote Mr Hathaway obtained - $59.98 from Europcar'.[72]
[72] Learned Magistrate's reasons, [169].
Fifthly, the learned Magistrate appears to have, considered that the amount actually paid by Compass, namely $45.35 per day represented the 'median hire rate' and that consequently nothing further was payable to Compass.[73] (The correctness of the conclusion that $45.35 was the median rate is considered in relation to Ground 3 below.)
[73] Learned Magistrate's reasons, [171].
Even if the amount paid by RAC to Compass represented the median, the relevance of that conclusion was somewhat doubtful. The learned Magistrate was acutely aware of the difficulties arising from the variance in rates when he noted in his reasons:[74]
Comparing apples with apples has been difficult due to the complete variance between 28 days rates obtained from the Rates Shop and 35 and 40 days rates obtained by RAC/Budget.
[74] Learned Magistrate's reasons, [167].
Consequently, the approach adopted by the learned Magistrate demonstrates that the application of a 15% discount was, in all the circumstances, arbitrary.
I am satisfied that, on the evidence before the learned Magistrate, there was no proper basis to apply a discount of 15% to the rates and Ground 2 has been made out.

Ground 3: 'Incorrect mathematical application of the 15% discount'

5.If the Appellant fails on Ground 2, the Learned Magistrate:
a)erred in fact in finding at [171] that the RAC payment (calculated on the basis of a day rate of $45.35) was the median hire rate.
Particulars
A day rate of $45.35 was lower than any 28-day rate ($71.79, $67.28, $67.08, $65.61 and $59.19) even after application of the 15% discount ($61.02, $57.19, $57.02, $55.77 and $50.31 - median $57.02).
b)identified the median rate at $57.02.

In his reasons, the learned Magistrate found that the amount paid by RAC on behalf of the respondent to Compass, namely the amount calculated on the basis that $45.35 per day was the 'median hire rate' and that therefore there was nothing further payable to Compass.[75]

The appellant's submissions in relation to Ground 3

[75] Learned Magistrate's reasons, [171].

Ground 3 is pleaded in the alternative to Ground 2. I have already found that Ground 2 has been made out by the appellant. Nonetheless, if I am wrong about Ground 2, I consider Ground 3.
The appellant submits that the learned Magistrate erred in concluding that the amount paid by RAC (notional) was a reasonable daily hire rate in circumstances where:
(a)the amount determined and paid by RAC to Compass was based upon a notional hire period of 40 days, whereas the learned Magistrate concluded that the actual hire period was 39 days, resulting in a consequential 'difference in the notional daily hire rate'[76] and
(b)the amount was 'lower than any 28 day hire rate in evidence (range $59.19 to $71.79) and lower than the rates resulting from the application of a 15% discount to those 28 day hire rates (range $50.29 to $61.02)'.[77]

The respondent's submissions in relation to Ground 3

[76] Appellant's written submissions, par 42(a).

[77] Appellant's written submissions, par 42(b).

The respondent submits that the learned Magistrate's reasons for decision generally complied with s31 of the Magistrates Court Act 2004 (WA) (MCA).
Furthermore, the respondent submits that the reasons need to be considered as a whole and that there are two significant reasons why Ground 3 has not been made out.
First, the respondent submits that it is neither appropriate to scrutinise the reasons for decision given by a magistrate nor to infer error from 'infelicity of language'[78] because 'magistrates are required to perform their important functions in a 'different time frame to what applies in the superior courts'.[79]
[78] Respondent's written submissions, par 36.
[79] Respondent's written submissions, par 36.
Secondly, the learned Magistrate's use of the term 'median hire rate' was impliedly a reference to the median rate for the 40-day rates provided by Mr Hathaway and was, in any event, correct.[80] The 40‑day rates were $59.98; $45.35 and $41.45.

Conclusion in relation to Ground 3

[80] Respondent's written submissions, par 38 and AB 214.

In relation to the content of judgments given by magistrates, s 31 of the MCA expressly provides that:
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
The provisions of s 31 of the MCA expressly recognise the pressures and time constraints magistrates are generally under when dealing with matters in that jurisdiction and the need to deliver decisions expeditiously. Commonly, magistrates deliver ex tempore decisions because of the volume of cases and the limited time available to them.
Consequently, Martin CJ in Strahan v Brennan noted:[81]
Because of the nature of the grounds of appeal it is appropriate to commence with a brief review of the reasons given by the magistrate. The trial ran over six days of hearing and reasons for decision were given by the magistrate on the seventh day. It can be reasonably inferred that the evidence and the submissions of counsel were fresh in his mind at the time his reasons were given.
[81] Strahan v Brennan [2014] WASC 190 [90].
Strahan v Brennan was a criminal case. It involved six days of evidence. The learned Magistrate delivered oral reasons on the seventh day.
Unlike in Strahan v Brennan, in this case, following evidence and legal submissions, the learned Magistrate adjourned the matter for about a month to consider his decision. The learned Magistrate produced a lengthy and detailed written decision 31 days later. As already noted, the decision, which comprises 32 pages, set out not only the relevant facts of the case, but a lengthy history of litigation of this type of case in Australia and the United Kingdom. Acknowledging the pressures that most magistrates (and indeed most judicial officers generally) work under, the decision given in this case is not the sort of circumstances that Martin CJ was contemplating in Strahan v Brennan.
In any event, if the term 'median hire rate' was meant to mean the median of the 40-day hire rates provided by Mr Hathaway, then the amount of $45.35 does appear to be the median.
If the learned Magistrate was referring to the median hire rate when based upon all relevant rates of 28 days or more, then clearly it amounted to an incorrect mathematical application of the 15% discount.
Despite the fact that that the learned Magistrate produced detailed reasons, and although not expressly stated, reading the reasons as whole I am satisfied that his Honour's use of the term 'median hire rate' was a reference to the median 40-day rate based upon Mr Hathaway's figures. However, it is of note that his Honour found that the 39‑day rates were to be preferred as they related to the actual hire period.[82]
[82] Learned Magistrate's reasons, [164].
Despite finding that the 39-day rate should be preferred, the learned Magistrate then apparently applied the median hire rate for the 40‑day rate. Although, as the appellant points out, there may be a notional difference between the application of 40-day hire rates as opposed to a 39-day rate, in this case it is not demonstrated. In fact, the only 39‑day rate provided ($38.95) was significantly lower[83] than the $45.35 applied.
[83] Witness statement from John McShera, dated 4 October 2021, par 26.
Consequently, nothing turns on this issue and Ground 3 is dismissed.

Ground 4: Delivery charge

6.The Learned Magistrate erred in fact at [172] in stating 'no quibble is made to the delivery charge of $88.00'.
Particulars
The parties did not agree a delivery charge of $88.00.
The Appellant claimed a delivery charge of $93.50 inclusive of GST.
The Respondent disputed that claim at trial (not in her Amended Defence).
7.The Learned Magistrate should have found the Appellant entitled to a delivery charge of $93.50 inclusive of GST.

The appellant's submissions in relation to Ground 4

RAC paid Compass the sum of $88.00 in relation to the amount of $93.50 claimed as a delivery charge.
The appellant submits that, contrary to the learned Magistrate's conclusion that no issue was taken by the appellant in relation to the delivery charge of $88.00,[84] in fact there was no agreement between the parties as to the appropriateness of that amount.
[84] Learned Magistrate's reasons, [172].
The appellant submits that the respondent, as the defendant in the proceedings below, bore the onus of proving the unreasonableness of the amount of $93.50 as an appropriate delivery charge.
The appellant submits that the respondent did not:[85]
(a)adduce any evidence that the Compass delivery charge was unreasonable; or
(b)cross-examine Mr Khoury about the delivery charge and how it was calculated.
[85] Appellant's written submissions, pars 43 - 44.
Consequently, the appellant submits that in the absence of any evidence adduced by the respondent demonstrating the unreasonableness of the amount of $93.50 to the contrary, 'the learned Magistrate should have awarded the appellant $93.50 as claimed as compensation for the delivery charge'.[86]

The respondent's submissions in relation to Ground 4

[86] Appellant's written submissions, pars 43 - 44.

The respondent submits that ground 4 should be dismissed because:
(a)It is de minimis.
(b)It was not properly raised with the learned Magistrate.
(c)The appellant received a day's overpayment in any event.

Conclusion in relation to Ground 4

Given the amount in question is $5.30, even if the learned Magistrate erred, it is de minimis and the ground of appeal should be dismissed.

Ground 5: Consideration of non-contemporaneous rates evidence

8.The Learned Magistrate erred in fact and law when asking (at [158]) 'How can the difference between the same car from the same agency be explained' by not taking into consideration that the Avis 28 day rate for a Toyota Corolla was for the period 13 May to 10 July 2019 (the period of time the Appellant was actually physically inconvenienced and suffered the loss of amenity of use of her vehicle) and the Avis 40 day rate proffered by RAC, which was for a 'future' dated period 24 February to 4 April 2020.
9.The Learned Magistrate should have considered the market rate for the provision of a car over the period claimed.
(original emphasis)

The appellant's submissions in relation to Ground 5

As expressed (and noted by the respondent),[87] Ground 5 is not immediately obvious to understand.
[87] Respondent's written submissions, par 42.
Distilled, it appears that the error alleged is that the learned Magistrate took into account evidence that was irrelevant to the question of whether the amount claimed was unreasonable, namely hire rates for the period 24 February 2020 to 4 April 2020, when the actual hire period was 13 May 2020 to 10 July 2020.
In so doing, as I understand the complaint, the appellant submits that the question the learned Magistrate raised in his written reasons, namely why and how there was a difference in the rates provided where it related to the same vehicle from the same rental agency, led him to erroneously consider irrelevant evidence.[88]
[88] Learned Magistrate's reasons, [158].
The appellant suggests that some of the differences might be explained by the fact that the rates provided were not identical as to location, length of hire period, or time of year:[89]
(a)the Rate Shop rates were sourced from Perth; the RAC 35‑day hire rates from Beaconsfield and Fremantle, the RAC 40 days hire rates from Perth and the Budget 32 and 39 days hire rates from Midland.
(b)the Rate Shop rates covered the actual 39 day hire period (13 May to 20 June 2019), whereas the RAC Perth and the Budget Midland daily hire rates covered a subsequent period (24 February to 4 April 2020).[90]
[89] Appellant's written submissions, par 45.
[90] Witness Statement, Ryan Hathaway, pars 27 and 40.
Furthermore, the appellant also suggests that another potential explanation for the differences may have been the impact of the announcement made by Mr Mark McGowan, then Premier of Western Australia, on or about 22 March 2020 implementing COVID‑19 border controls that required interstate arrivals to mandatorily spend 14 days in isolation (the COVID-19 announcement). That, it is suggested, may have caused mainstream car hire companies to reduce their hire rates.[91]

The respondent's submissions in relation to Ground 5

[91] Appellant's written submissions, par 45.

As with Ground 2, the respondent points to the provisions of s 31 of the MCA relevant to the decision-making process required to be followed by magistrates.
In any event, the respondent submits that the learned Magistrate was entitled to take into account all the evidence before him. That evidence included the non-contemporaneous rates that were tendered without challenge by the appellant's counsel at the hearing before the learned Magistrate.
So far as the potential effect that the COVID-19 announcement may have had on reducing mainstream car hire rates, the respondent submits that there was no evidence of this led at the hearing below. Consequently, it is pure speculation and has no relevance to this appeal.

Conclusion in relation to Ground 5

The potential effect that the COVID-19 announcement may have had on mainstream car hire rates is a matter of speculation. There was no evidence relevant to this issue led at the trial below. No application was brought on the appeal for leave to introduce this evidence. It has no relevance to the issues at hand.
For the reasons already set out at [109] - [113] above in relation to Ground 3, there is little force in the respondent's reliance upon any infelicity of language or impreciseness that may be evident in the learned Magistrate's reasons. The written reasons were considered and detailed. In any event, so far as Ground 5 is concerned, the learned Magistrate revealed his reason-making process by posing the question of why there were rate differences (set out at [159] of his written reasons), and then providing some analysis as to why there could be such a degree of variance.
Furthermore, although this included taking into account non‑contemporaneous period rates, I accept the respondent's submission that the learned Magistrate was entitled to take into account all of the relevant evidence before him. The learned Magistrate was acutely aware that some of the rates relied upon were not contemporaneous with the actual hire period. His Honour, in posing the question about how there could be a variance in rates relating to the same vehicle rented from the same car rental company was doing no more than properly assessing and taking account for the variances in the rates.
Furthermore, as the respondent points out, this evidence was not challenged by the appellant at the hearing below. The learned Magistrate was thus obliged to consider it.
There is no merit in Ground 5 of the appeal, and it is dismissed.

Ground 6: The appellant's entitlement to damages

10.The Learned Magistrate erred in fact in finding that a party is only entitled to a roadside assistance package or other benefit such as zero excess if it was an existing benefit to which they were entitled.
11.The Learned Magistrate should not have reached any conclusion about the Appellant's entitlement to roadside assistance package or zero excess in the absence of evidence led about her insurance policy.

In considering what loss the appellant suffered and therefore what compensation she was entitled to receive, the learned Magistrate found that the appellant was only entitled to a benefit provided by Compass if it was a benefit that she previously enjoyed and had lost as a consequence of the collision.[92]

The appellant's submissions in relation to Ground 6

[92] Learned Magistrate's reasons, [162].

In both her written submissions[93] and the oral submissions made by her counsel[94] on the hearing of the appeal, the appellant noted that the daily rates charged by Compass ($95.88) included additional rates and fees such as:
•$3.30 a day for a roadside assistance package; and
•$29.00 a day to reduce the excess to zero.
[93] Appellant's written submissions, par 46.
[94] Appellant's counsel's oral submissions, 4 April 2023, ts 5 - ts 7.
First, so far as these items are concerned, the appellant submits that the respondent bore the onus of proof on this issue and did not either:
(a)adduce any evidence as to the appellant's insurance arrangements with SGIO; or
(b)cross-examine the appellant about it. [95]
[95] Disclosed in the appellant's Witness Statement dated 29 April 2021 at pars 8 - 9.
Consequently, it is submitted that the learned Magistrate erred by concluding that the appellant was not entitled to these benefits.
Secondly, the appellant submits that the learned Magistrate erred in finding that the appellant was only entitled to the benefits she previously enjoyed pursuant to insurance arrangements that existed at the time of the collision.
The appellant submits that this approach is flawed as the mere provision of a hire car did not put her in the identical position she was in prior to the collision.
With reference to the decision of Morison J in Bee v Jenson,[96] the appellant submits that the differences in her position after the collision included that:[97]
•She was not in her own car.
•She was obliged, at the expiration of the hire period, to return the car in the same state as she received it.
•Unlike a rental car, were her own car damaged, she could elect to defer repairs, perform her own repairs, or not bother with repairs at all.
[96] Bee v Jenson [2006] EWHC 3359 (Comm); [2007] RTR 32 [15] - [16].
[97] Appellant's written submissions, par 46.
None of these options would be available to the appellant once she hired a vehicle from a mainstream car hire company.
Furthermore, in being required to obtain a hire vehicle, the respondent potentially exposed the appellant to risks which she did not previously face, such that her insurance needs were different.
At the hearing, counsel for the appellant accepted that the rate charged by Compass included 'credit hire benefits' such as engaging a lawyer to pursue legal proceedings against the driver of another vehicle involved in a motor vehicle collision, providing a car on credit until money was recovered as a result of the collision, and liaising with repairers. However, these 'credit hire benefits' needed to be separated from other benefits such as roadside assistance.[98]
[98] Counsel for the appellant's oral submissions, 4 April 2023, ts 11 and ts 14.
The reason for the need to distinguish between the two was because mainstream rental companies also routinely provided, and charged, roadside assistance benefits. Counsel for the appellant submitted that in fact, roadside assistance packages were a 'standard charge amongst mainstream hire companies'.[99]
[99] Counsel for the appellant's oral submissions, 4 April 2023, ts 21.
Indeed, as noted by counsel for the appellant, the quotes for mainstream rental companies did each allow for additional 'extras' or 'benefits' such as:
AVIS
•1-day rate of $116.89, 7-day rate of $597.17 ($85.31 per day), 28-day rate of $1,878.22 ($67.08 per day) all included a 'loss damage waiver' and 'excess reduction' quantified as $27.00, $189.00, and $168.00 respectively (Note: no explanation was given as to why these benefits were cheaper for a longer period than the 7-day rate). These rates also allowed for roadside assistance to be added at an additional cost but was not included in the quoted rate.[100]
Budget
•1-day rate of $118.17, 28-day rates of $1,883.88 ($67.28) and $1,837.09 $65.61) included a 'loss damage waiver' and 'excess reduction' quantified as $27.00, $168.00, and $168.00 respectively. It allowed for a roadside assistance to be added at an additional cost but was not included in the quoted rate.[101]

The respondent's submissions in relation to Ground 6

[100] See AB 67, 85, and 97.

[101] See AB 69, 93 and 95.

The respondent submits that, as with any loss sought to be claimed by a plaintiff, the appellant bore the onus of proof.
Consequently, as the appellant did not lead any evidence about the terms of any relevant insurance policy or loss of any benefit that applied to her damaged vehicle, the respondent submits that she failed to prove that loss and was not entitled to the additional benefits such as a 'no-excess insurance policy'.[102]

Conclusion in relation to Ground 6

[102] Respondent's written submissions, pars 48 - 50.

The way in which Ground 6 is framed suggests that there are two parts to the issues raised by this ground of appeal.

First, there is the question of whether the appellant was entitled to the 'additional benefits' provided by Compass and included in its daily rate, namely additional benefits such as:
(a)a roadside assistance package, and
(b)zero- excess insurance policy.
Secondly, if the appellant was entitled to these benefits, who bore the onus of proof in relation to these items?
I accept that some of the differences outlined at [146] above are relevant to the position that the appellant found herself in after the collision. It is not always the case that the provision of an ordinarily adequate replacement vehicle properly compensates the loss of use of a particular vehicle.
As the High Court noted in Arsalan v Rixon, 'the head of damage of loss of amenity of use of a chattel should be recognised and the loose concept of "need" should be eschewed'.[103]
[103] Arsalan v Rixon [17].
I also note the appellant's contention that it would be artificial to conclude that the provision of a rental vehicle, even one identical to the make and model she usually drove, would equate with putting her in the identical position she was before the collision. Not only did she suffer the loss of amenity and enjoyment of the use of her own vehicle with all that attended, but because she became subject to the terms and conditions of her agreement with Compass. This included an undertaking to co-operate with Compass and its legal advisers in the event that legal proceedings were pursued by Compass to recover hire charges against another party. The co-operation required the appellant to do all that was 'reasonably required' such as potentially providing witness statements and attending court (as this case has actually demonstrated).[104] She could not choose to make admissions of liability or avoid court proceedings.
[104] See Exhibit A before the learned Magistrate, witness statement of Elaina Miller dated 27 April 2021 attaching her rental agreements with Compass, Annexures 'C' and 'D'.
However, in reality all of the rates tendered in evidence before the learned Magistrate included both a 'loss and damage waiver' and 'excess reduction'. Consequently, many of the issues raised by Morison J in Bee v Johnson do not apply to the facts of this case. That does not mean that, had the appellant hired a vehicle from a mainstream hire company, all liability for any damage caused to the rental vehicle whilst under hire by the appellant would be waived. The available evidence did not sustain such a conclusion.
However, the appellant did not hire a vehicle from a mainstream hire company. The terms and conditions set out in her agreement with Compass did not expose her to the same risks and liabilities that would have existed if she had hired a vehicle from a mainstream car hire company. In that way, it may be argued that the terms and conditions set out in the appellant's agreement with Compass put her closer to replicating her position prior to the collision than had she hired a vehicle from a mainstream company.
This contention however, was neither raised before the learned Magistrate nor on the appeal. Nonetheless, the evidence does tend to support an argument that the fees charged by Compass were not unreasonable in the circumstances. That is to say, because it covered some of the additional risks and benefits associated with driving a hire car as opposed to her own vehicle (such as not worrying about the fear of liability for all or some of the damage caused to the hire vehicle, or at the very least, exposing her to the payment of some excess on the vehicle), it provided truer compensation for the loss she suffered.
Fundamentally however, I accept the respondent's submission that the appellant bore the onus of proving any loss claimed. The loss of a benefit is something that the appellant, as the plaintiff, was required to prove on the balance of probabilities. Consequentially, even if the appellant was entitled to a roadside assistance package or other benefits such as zero excess, there was no evidence of what the appellant's insurance arrangements were at the time of the collision.
For that reason, Ground 6 must fail.

Ground 7: Mitigation of loss

12.The Learned Magistrate erred in law by finding that the Appellant should have availed herself of a vehicle at a rate cheaper that [sic] the Compass rate. In essentially finding that the Appellant failed to mitigate her loss the Learned Magistrate has erred in mixed fact and law by not taking into consideration the Appellant's personal circumstances on the day of the Accident (which was the same day that she entered into the Rental Agreement with Compass) and did not take into consideration the fact that the Appellant lived in Alkimos, which is approximately 44km from Perth, 53 kilometres from Midland and 63 kilometres from Fremantle.
13.The Learned Magistrate has erred in law and scrutinised the Appellant's conduct when incurring mitigation expenses with exacting hindsight. The Learned Magistrate has applied an unreasonably high standard of conduct to the Appellant when finding that she has acted unreasonably simply because the Respondent could suggest other and more beneficial conduct which was less burdensome to the Respondent (in the form of rates from a location some 56 and 53 kilometres from the Appellant's house).

Th appellant's submissions in relation to Ground 7

The appellant submits that the learned Magistrate erred by:
(a)Failing to take into account the appellant's personal circumstances as they existed on the day of the collision.
(b)With the benefit of hindsight, unfairly scrutinising the appellant's conduct when considering her conduct in taking steps to mitigate her loss.
(c)Applying an unreasonably high standard to arrive at a conclusion that she had acted unreasonably when hiring a vehicle from Compass rather than hiring a vehicle from a location with lower rates, albeit more than 50 kilometres away from where she lived.
In adopting this approach, it is submitted that the learned Magistrate erred in both fact and law.

The respondent's submissions in relation to Ground 7

The respondent submits that, in considering the credit hire component of the rates charged by Compass, the learned Magistrate was correct not to take into account the appellant's subjective circumstances.
The respondent relies upon the approach taken by Kitchin LJ in Stevens v Equity Syndicate Management.[105] At [39] Kitchin LJ considered that the proper way to determine an approximation of the basic hire rate was to:
[strip] out the irrecoverable costs from the hire rate the claimant has agreed to pay, or conversely ascertaining the part of the charge which is attributable to the basic hire of the particular vehicle the claimant has chosen. This is an objective exercise and the evidence about what he would have done had he gone into the market to hire a vehicle on standard hire terms is likely to be of little assistance to carry it out. The search must rather be for the lowest reasonable rate quoted by a mainstream supplier for the basic hire of a vehicle of the kind in issue to a reasonable person in the position of the claimant.

Conclusion in relation to Ground 7

[105] Stevens v Equity Syndicate Management [2015] ECWA 93; [2015] All ER 458.

The learned Magistrate was not only aware of the appellant's particular circumstances, including her pregnancy and the distance she lived from the city centre, but also noted the earlier authorities disapproving of any attempt by the 'wrongdoer' to make 'captious objections' to the steps by which the injured party sought to mitigate their loss.[106]
[106] See in particular Lodge Holes Colliery Limited v Wednesday Corporation (1908) AC 323 [325], approved of in Fallon v Johnston.
Indeed, the learned Magistrate noted that in the appellant's particular circumstances it made good sense for her to have hired a car from Compass who not only delivered the vehicle to her, but also provided it at no cost until their vehicle was returned.[107]
[107] Learned Magistrate's reasons, [129].
However, the approach the learned Magistrate took, namely primarily focussing on trying to determine what a reasonable rate of hire was, resulted in his Honour failing to properly determine the real issue, namely whether the amount actually claimed was unreasonable.
By adopting that approach, the learned Magistrate considered it was necessary to consider what the credit hire charge component of the rates was and to remove that component from consideration.[108] In so doing, his Honour considered that there were two ways of arriving at a rate absent credit hire charges. They were:
(a)for the credit hire companies to be forced to provide that information; or
(b)by reference to mainstream market rates, determine what the credit hire charges were.
[108] Learned Magistrate's reasons, [117] - [141].
Because of the commercial unfairness that the first option would cause to credit hire companies and the onerous consequences that that might produce, the learned Magistrate concluded that for practical reasons the latter option was preferable.
Consequently, the learned Magistrate focussed on determining what a reasonable rate was and in so doing failed to take into account the appellant's personal circumstances.
Whilst I accept that the process employed by the learned Magistrate was to ascertain, absent credit hire charges, what a reasonable rate was at the time, as already noted at [10], [11] and [73] above, his Honour was also required to:
(a)consider the objective circumstances in which the appellant found herself;[109] and
(b)consider the reasonableness of any steps taken by the appellant to mitigate her loss, including taking into account the appellant's particular factual circumstances.[110]
[109] Fallon v Johnston [41] (Bell J).
[110] Hardie Finance Corporation Pty Ltd v Ahern [No 3] [770] (Pritchard J).
Consequently, the appellant's objective circumstances cannot be ignored when considering the ultimate question, namely whether what Compass charged was unreasonable in all of the circumstances.
I am satisfied that the learned Magistrate erred by failing to take into account the appellant's particular circumstances.
Ground 7 has been made out by the appellant.

Ground 8: 'Credit Hire Charges' or Additional Benefits

14.The Learned Magistrate erred in fact in finding that the Appellant failed to mitigate her loss by hiring a vehicle that included credit hire charges, which took it outside the market for similar hire vehicles (at [170]), when no evidence was led to determine what portion represented the credit hire component of the invoice.
15.The Learned Magistrate failed to find in fact how much of the 'actual cost' was for the credit hire charges (or additional benefits) of hiring a car from Compass relates to the credit hire charges.
16.The Learned Magistrate erred in fact when the Compass daily hire rate was the 'lowest' of the 1-day rates provided in the Aide Memoire. Whilst it was open for the Learned Magistrate to find that the daily rate on the Compass invoice ($95.88) did not represent an appropriate rate as it is based on a single day rate [at 154], it was not open for him to say that the Compass rate included credit hire charges, as no evidence was led in that regard.
17.The Learned Magistrate erred in law, alternatively in mixed law and fact, in concluding that the cost of 'hiring' the replacement vehicles identified in the Rental Agreement included an allowance for 'credit hire charges' (at [170]).

The appellant's submissions in relation to Ground 8

The details and particulars of Ground 8 set out above speak for themselves.
Furthermore, on the hearing of the appeal, counsel for the appellant submitted that the learned Magistrate, in determining what market to consider to determine whether the rates charged by Compass fell outside the market:[111]
(a)took into account that the Compass provided additional credit hire benefits to the appellant;
(b)did not ascertain what amount of the credit hire rate related to the non‑compensable additional benefits and simply took into account that Compass provided benefits; and
(c)identified the mainstream car hire rates market in that regard.

The respondent's submissions in relation to Ground 8

[111] Counsel for the appellant's oral submissions, 4 April 2023, ts 9.

The respondent submits that, in circumstances where there was no dispute that the costs charged by Compass included a credit hire component, no error was made by the learned Magistrate in concluding that it did.
The respondent does however concede that, in circumstances where the appellant adduced no evidence as to what proportion of the rates comprised the credit hire cost, it was not possible to separate it out from the total rates.[112]
[112] Respondent's written submissions, par 57.
Consequently, the respondent submits that the method adopted by the learned Magistrate, namely, to compare mainstream market rates with that charged by Compass, was the 'more appropriate approach.'[113]

Conclusion in relation to Ground 8

[113] Respondent's written submissions, par 58.

As to the respondent's contention that the learned Magistrate did not err in concluding that the rates charged by Compass included a credit hire component, it is relevant to note the following exchange which occurred on the hearing of the appeal:[114]
Levy DCJ: Because it's not in dispute, is it, that it did include credit hire charges.
Counsel for the appellant: Well, can I say this, your Honour … We do accept it include - not charges, it included credit hire benefits and those credit hire benefits would be, for example, engaging a lawyer to pursue these proceedings providing the car on credit until money is recovered but not, for example, and this becomes important, not for example, roadside assistance which is specifically referred to by the learned magistrate based on submissions made by Ms Miller at trial and persisted in on appeal that they are not - that's not a benefit that's provided by mainstream car hire rental companies.
[114] Appeal hearing, 4 April 2023, ts 11.
With the greatest of respect to the appellant's counsel, the concession that the rates charged by Compass included credit hire benefits, not credit hire charges, was artificial if not disingenuous. Much of the hearing below and on the appeal concentrated on the issue of what proportion of the rates charged by Compass were in fact credit hire charges.
Consequently, the absence of evidence as to what part of the rates charged were credit hire costs did not mean that the learned Magistrate was in error in concluding that there were such costs.
Of more significance is whether the learned Magistrate erred in concluding that the appellant failed to mitigate her loss by hiring a vehicle that included credit hire charges, which therefore took it outside the market for similar hire vehicles (at [170]).
In the context of considering Ground 7, I have already set out the approach taken by the learned Magistrate in attempting to determine what part of the rates charged by Compass amounted to the credit hire component. The approach taken by the learned Magistrate was entirely understandable in the circumstances where the actual credit hire costs were unknown.
Although I have found that the learned Magistrate erred in failing to take into account the appellant's objective circumstances in determining whether the amount charged by Compass was unreasonable (Ground 7), I am satisfied that there was no error in the circumstances of this case in concluding that the rates did include a component of credit hire charges.
The fact that the learned Magistrate failed to determine what part of Compass' rate was attributable to credit hire charges is entirely unsurprising. There was no evidence on the issue. It was an impossible task to precisely determine that component in the circumstances of this case. The learned Magistrate adopted an entirely pragmatic method, namely looking to the mainstream market to determine what the credit hire component must have been. Furthermore, it was never suggested that 'the market' should include rates charged by replacement vehicle companies generally.
However, with the greatest of respect to the learned Magistrate, as noted at [175] - [177] above, the ultimate conclusion reached was the result of a flawed approach in that the learned Magistrate failed to take into account other relevant factors, such as the appellant's particular circumstances considered objectively.
Consequently, whilst I am not satisfied that the errors particularised by Ground 8 have been made out, for the reasons identified at [72] - [74] in relation to Ground 1, I am satisfied that the learned Magistrate erred in finding that the appellant failed to mitigate her loss by hiring a vehicle that included credit hire charges, which took it outside the market for similar hire vehicles (at [170]).
Ground 8, in isolation, fails.

Ground 9: Tiered or daily rates

18.The learned Magistrate erred in fact (at [46], [50]-[51] and [143]-[144]) in finding that hire costs claimed were only reasonable to the extent they were assessed on the basis of the entire period of hire (commonly referred to as 'tiered rates').
19.The learned Magistrate should have found that hire costs claimed on the basis of a single day hire rate (commonly referred to as the 'spot rate') were reasonable.

The appellant's submissions in relation to Ground 9

In Patterson v Kenny,[115] at [88] Gething DCJ found that a reasonable hire rate should be based on the entire period of hire rather than on a single day (spot) hire rate.
[115] Patterson v Kenny [2017] WADC 58 (a case that also involved both Compass and RAC).
Notwithstanding that it was approved of by Gething DCJ in Patterson v Kenny,[116] the appellant submits that the learned Magistrate erred in the approach he adopted.[117]
[116] Patterson v Kenny [88].
[117] Learned Magistrate's reasons, [46], [50] - [51] and [143] - [144].
The appellant submits that in the absence of evidence that mainstream car hire companies (other than Budget) calculate their hire charge on the basis of the actual hire period rather than the period the hirer nominates at the start of the hire, the learned Magistrate should have found that a reasonable hire rate should be based on a single day (spot) hire rate.[118]
[118] Appellant's written submissions, par 50.
The appellant relies upon the unreported decision of Assessor Olischlager in Hayes v Bateman,[119] namely that the court 'should not apply tiered rates as a matter of ordinary course in calculating market rates for the supply of a replacement vehicle in loss of use claims'.

The respondent's submissions in relation to Ground 9

[119] Hayes v Bateman [2015] NSWLC (unreported) referred to in Nicolaas v Sasso [2019] ACAT 44.

The respondent submits that, in the absence of authorities to the contrary, or a submission that it was wrongly decided, the learned Magistrate was bound to follow the approach set out by Gething DCJ in Patterson v Kenny.
Consequently, it is submitted that the approach adopted by the learned Magistrate was correct.

Conclusion in relation to Ground 9

The decision of Assessor Olischlager in Hayes v Bateman, namely to use a daily rate (or spot rate) to determine the applicable market rate was followed and approved of by Senior Member Ferguson in Nicolaas v Sasso. In Nicolass v Sasso, Senior Member Ferguson referred to the decision of Local Court Magistrate Dillon in Chong v Berry[120] who said:
It is accepted by both parties that the true measure of damages, where a replacement vehicle has been hired, is the market rate or 'spot rate' of hire for the relevant reasonable substitute vehicle in the nearest market.
[120] Chong v Berry [2007] NSLC 33.
The decision of Dillon LCM was considered by Derrick DCJ in Beamish v Kanakis.[121]
[121] Beamish v Kanakis [2017] WADC 33 [48] (Derrick DCJ).

The decisions of Assessor Olischlager in Hayes v Bateman, Senior Member Ferguson in Nicolaas v Sasso, and Dillon LCM in Chong v Berry, are all persuasive authorities but not binding upon either the Magistrates Court of Western Australia nor this court.
As the learned Magistrate noted, the earlier case of Patterson v Kenny (and Beamish v Kanakis) was decided before Arsalan v Rixon and therefore the requirement that the plaintiff prove that the amount claimed, as part of general damages, is no longer good law.[122]
[122] Learned Magistrate's reasons, [58].
However, whilst the High Court has made clear that the requirement of 'need' has been replaced with the concept of 'loss of amenity', nothing in Arsalan v Rixon necessarily displaces the approach adopted by Gething DCJ in Patterson v Kenny with respect to basing the appropriate rates on the entire period of hire rather than on a single day hire rate. The learned Magistrate was bound to follow the decision of Gething DCJ in Patterson v Kenny. Principles of judicial comity apply to this appeal. There is no reason why I should not follow the approach approved of by Gething DCJ in Patterson v Kenny. Consequently, I am of the view that the learned Magistrate did not err by basing the calculation of rates on the entire period of hire rather on a daily rate.
Ground 9 fails.

Orders

Having demonstrated error in relation to Grounds 1, 2 and 7, the appeal is allowed.
The learned Magistrate's decision is set aside and judgment is awarded in favour of the appellant in the sum of $1,930.81.
I will hear the parties in relation to final orders and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy
15 SEPTEMBER 2023

Rate Shop rates inclusive of GST Inclusive of excess reduction to zero but not of roadside assistance package
1 day	Avis (lowest) Toyota Corolla $116.89 to Thrifty (highest) Kia Rio $148.86
7 days	Thrifty (lowest) Kia Rio $63.45 to Avis (highest) Kia Rio $86.42
28 days	Europcar (lowest) Kia Rio $59.19 to Avis Perth (highest) Toyota Corolla $71.79
RAC/Budget rates inclusive of GST except where shown Inclusive of excess reduction to zero but not of roadside assistance package
32 days	Budget Midland Hyundai Accent $38.48 plus GST
35 days	Thrifty Beaconsfield (lowest) Toyota Yaris $38.00 to Europcar Fremantle (highest) Toyota Yaris $49.31
39 days	Budget Midland Hyundai Accent $38.95
40 days	Budget Midland (lowest Toyota Corolla $41.45) to Europcar (highest Toyota Corolla $59.98)