Miller v Walker

[2011] NSWLC 10

Local Court

New South Wales

Medium Neutral Citation:	Miller v Walker [2011] NSWLC 10
Hearing dates:	30/032011
Decision date:	13 April 2011
Jurisdiction:	Civil
Before:	Assessor Olischlager, Small Claims Division
Decision:	Verdict and Judgment for the Plaintiff.
Catchwords:	CIVIL - motor vehicle accident DAMAGES - loss of use - hire of replacement motor vehicle - period of hire
Legislation Cited:	Civil Liability Act 2002, Part 4
Cases Cited:	Anthanasopolous v Moseley [2001] NSWCA 266 Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452 Clark v Tull (t/a Ardington Electrical Services) [2002] EWCA Civ 510 Consort Express Lines Limited v J-Mac (No2) [2006] FCA 833 Darbishire v Warran [1963] 1 WLR 1067 Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 Harb v Marchbank [2011] NSWLC 9 Mattocks v Mann [1993] RTR 13 Stocovaz v Fung [2007] NSWCA 199 Stoke-on-Trent City Council v W & J Wass Limited [1988] 3 All ER 394 Tang v Driden [2010] NSWLC 17 "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
Category:	Principal judgment
Parties:	Craig Miller (Plaintiff) David Walker (Defendant)
Representation:	Mr Jaramillo (Plaintiff) Mr Manion (Defendant)
File Number(s):	2010/0277043
Publication restriction:	Nil

JUDGMENT

1. The plaintiff, Mr Miller, was the owner of a motor vehicle that was damaged in a motor vehicle collision that occurred on 18 October 2009. The collision was due to the negligence of the defendant, Mr Walker.

1. On 21 October 2009 Mr Miller arranged for his vehicle to be assessed by his insurer, Insurance Australia Ltd trading as NRMA, at the NRMA Care and Repair Centre. The vehicle was then taken to Menke Auto Renewals. Repairs were carried out and completed on 16 November 2009. The vehicle collected by Mr Miller the following day.

1. During the period that his vehicle was unavailable Mr Miller hired a replacement motor vehicle. The total cost for the hire of a replacement vehicle for 17 days was $1,015.00.

1. Mr Miller seeks to recover the cost of the hire of the replacement vehicle from the defendant as a component of the loss that he suffered as a consequence of the collision. It is this aspect of the claim that is disputed.

1. In its amended Defence the defendant denies that the plaintiff has suffered a loss of use of his motor vehicle as a consequence of the collision.

1. A plaintiff has an entitlement to claim general damages for the loss of use of a motor vehicle even though that vehicle is for personal use and not used in the context of commerce or trade. In Anthanasopolous v Moseley [2001] NSWCA 266 the Court of Appeal allowed motor vehicle owners to recover the cost of hire of a substitute vehicle while their vehicle was being repaired. The decision in Anthanasopolous v Moseley applied the line of authority established by The Owners of…