Nicolaas v Sasso
[2019] ACAT 44
•26 April 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NICOLAAS v SASSO (Civil Dispute) [2019] ACAT 44
XD 63/2018
Catchwords: CIVIL DISPUTE – damages for loss of use of non-income producing car – nature of loss – general or special damages – market rate of replacement hire as a measure of damages – meaning of market rate of hire – relevance of actual credit hire charges to determination of market rate – is a discounted rate a market rate?
Subordinate
Legislation cited: Court Procedure Rules 2006 sch 2
Cases cited:Anathanasopoulous v Moseley [2001] NSWCA 266
Chong v Berry [2007] NSWLC 33
Harb v Marchbank [2011] NSWLC 9Hayes v Bateman [2015] NSWLC (unreported)
Lagdenv O’Connor [2003] UKHL 64
Rizk v Chenand National Apollo Bathrooms Pty Ltd [2014] NSWLC 8
Portbury Development Company Pty Ltd v Ottedin Investments [2014] VSC 57
Vincent Fallon v Jessica Johnston [2018] VSC 273
Tribunal:Senior Member E Ferguson
Date of Orders: 26 April 2019
Date of Reasons for Decision: 26 April 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 63/2018
BETWEEN:
AMY ELIZABETH NICOLAAS
Applicant
AND:
HAYDEN SASSO
Respondent
TRIBUNAL:Senior Member E Ferguson
DATE:26 April 2019
ORDER
The Tribunal orders that:
1.The respondent is to pay to the applicant by Friday 24 May 2019 the sum of $2932.97, calculated as follows:
(a) $2,486.25 for damages;
(b) $150.00 for the ACAT filing fee; and
(c) $296.72 interest on sum at order 1(a) in accordance with schedule 2 of the Courts Procedures Rules 2008.
………………………………..
Senior Member E Ferguson
REASONS FOR DECISION
Background
1.Ms Nicolaas was involved in a motor vehicle accident with Mr Sasso in which her car, which she used solely for personal use, was damaged. It is not disputed that the collision was caused by Mr Sasso’s negligence and that he is liable for any compensable loss his negligence caused Ms Nicolaas.
2.Ms Nicolaas’ insurer paid for the cost of repairs to her car. However her policy did not cover the cost of hiring a replacement vehicle while her car was being repaired.
3.She hired a replacement vehicle from Right2Drive Pty Ltd (R2D). R2D is what is known as a “credit hire company”. That is, it provides customers like Ms Nicolaas, who it assesses as not at fault in an accident, with a replacement vehicle on credit while their car is being repaired. The customer authorises R2D to recover the cost of hire from the negligent driver on their behalf and apply whatever it recovers to payment of the hire charges. If all goes according to plan, the customer can expect to pay nothing for car hire and to be relieved of the burden of prosecuting this aspect of their claim, and R2D is paid.
4.R2D brought this application to recover its hire charges on behalf of Ms Nicolaas. Mr Sasso’s subrogated insurer, a company in the Suncorp Group (Suncorp), defended the application in his name.
5.The protagonists in this case are not the parties named, but rather R2D and Suncorp. Their dispute is part of what Lord Nicholls of Birkenhead described as, “the long continuing contest between motor insurers and credit hire companies.”[1]
[1] Lagdenv O’Connor [2003] UKHL 64 (Lagden) at [1]
6.Insurers of at fault drivers object to credit hire charges as a measure of damages because they cover not only the cost of hiring a replacement vehicle but also the cost of extra benefits associated with the credit hire model such as:
(a)assessment to establish fault for accident;
(b)provision of hire charges on credit terms; and
(c)prosecution of recovery of both hire charges and costs of recovery.
7.The parties agreed that damages should be calculated by reference to the market rate for hiring a replacement car, they disagreed about how to determine that rate.
8.R2D argued that $3,047.00, the full amount of the tax invoice to Ms Nicolaas, reflected the market rate.
9.Suncorp argued that, provided it was established that Ms Nicolaas needed her car and the duration of hire was reasonable, the appropriate quantum of damages was, $1,654.95,[2] a sum it said reflected the market rate.
[2] This figure seems to be an arithmetical error as Suncorp’s calculations based on information in the Respondent’s submissions dated 7 January 2019 (annexed to submissions dated 5 February 2019) paragraphs 13-14 add up to $1,572.45
10.For the reasons set out below I have ordered damages in the sum of $2,486.25.
11.As yet there are no binding authorities in the ACT of specific relevance to credit hire claims. In reaching my decision I relied on settled general principles and persuasive arguments in relevant non-binding authorities.
The issues
12.During the hearing, Suncorp’s counsel conceded that Ms Nicolaas needed to hire a replacement vehicle for personal use while her car was being repaired. Other issues raised in the response were not pressed.
13.The only remaining issue was the assessment of damages. Suncorp argued that both the duration of hire and the hire rates claimed were excessive.
14.To decide this case I needed to answer the following questions:
(a)What is the nature of Ms Nicolaas’ loss?
(b)Did Ms Nicolaas take reasonable steps to mitigate her loss?
(c)What does ‘market rate’ mean for the purpose of measuring damages for Ms Nicolaas’ loss?
(d)What is the appropriate quantum of damages based on market rate?
Question 1: What is the nature of Ms Nicholaas’ loss?
15.Suncorp’s position is that Ms Nicolaas’ claim is for general damages for the temporary loss of use of her car not special damages for the cost of hiring a replacement. R2D did not specify the type of damages sought. The characterisation of compensatory damages depends on the nature of the compensable loss and in this case is relevant to both mitigation and the measure of damages.
16.Special damages relate to losses already suffered by a claimant which are capable of precise calculation. General damages relate to losses, which cannot be precisely calculated.
17.To determine the nature of Ms Nicolaas’ loss I must start with her contractual relationship with R2D. The terms of the hire contract can be found in the documents titled the Rental Agreement and the Advice of Authority to Act executed by Ms Nicolaas and R2D in February 2017.[3]
[3] Witness statement of Stephen Patrick dated 4 December 2018 at annexure B
18.Although I have identified the real protagonists in this dispute as R2D and Suncorp, I do not mean to suggest that their roles are equivalent. Suncorp merely stands in Mr Sasso’s shoes, its involvement has no bearing on the substance of the defence. R2D’s relationship with Ms Nicolaas is more complex and significant. It is somewhat paradoxically both her potential creditor and her means of release from liability.
19.It was not disputed that Ms Nicolaas had not yet paid any of R2D’s charges and had not been required to do so. Ms Nicolaas gave evidence that she had not read the terms of the hire contract and relied upon the representation made by an employee of R2D that, provided she cooperated with R2D, she would never have to pay for the hire.
20.Mr Patrick, R2D’s Litigation Executive, said in his witness statement “R2D does not require payment either on commencement of the hire, during the hire or at the end of the hire.”[4]
[4] Witness statement of Stephen Patrick dated 4 December 2018 at paragraph 11
21.At the hearing he confirmed that all Ms Nicolaas was required to do was to cooperate with the recovery action taken by R2D and she would be released from liability, except for certain additional costs for which she may become liable. These are referred to as “Associated Costs” in the Rental Agreement and include costs arising from tolls, traffic infringements and damage to the vehicle during the hire period.
22.Mr Patrick referred to R2D’s standard agreement annexed to his witness statement. This document is apparently printed from R2D’s website and dated 13 April 2018, more than a year after Ms Nicolaas entered the hire agreement with R2D.[5]
[5] Witness statement of Stephen Patrick dated 4 December 2018 annexure “A”
23.Neither party seemed aware that under the terms of the Advice of Authority to Act executed by Ms Nicolaas and R2D in February 2017 — which was also annexed to Mr Patrick’s witness statement — Ms Nicolaas was liable to pay R2D’s full hire charges and would only be released from such liability to the extent these were recovered from Mr Sasso or his insurer. It may be that R2D changed its terms after Ms Nicolaas hired the replacement car and would not have enforced their rights but that does not change her contractual position.
24.I concluded that this is a claim is for general damages for loss of use rather than special damages for the cost of hire because prior to the hearing Ms Nicolaas had suffered no pecuniary loss and her liability, being contingent on the outcome of the proceedings, could not be calculated.
Question 2: Did Ms Nicolaas take reasonable steps to mitigate her loss?
25.As the compensable loss in this case is loss of use, any question about mitigation must relate to that loss rather than the cost of hire. Accordingly I have reframed Suncorp’s objection to the duration of hire as an issue about the duration of loss of use.
26.The appropriate question is: did Ms Nicolaas take reasonable steps to limit the duration of the repairs and thereby mitigate the loss of use of her car?
27.During the hearing R2D’s solicitor referred me to the decision of the Supreme Court of Victoria on appeal in Vincent Fallon v Jessica Johnston[6] on the issue of mitigation.
[6] [2018] VSC 273
28.Ms Johnston chose to hire a car for a period of 52 days until she received a write off payment from her insurer, rather than purchase a replacement for which she had funds, as soon as she knew her car would be written off. The magistrate at first instance considered whether Ms Johnston had taken reasonable steps to mitigate her loss and found that she had and was entitled to hire car expenses of 52 days. On appeal, his Honour, Mr Justice Bell, upheld that decision.
29.In reaching his decision his Honour reviewed the settled law on mitigation and ‘gratefully adopted’ at paragraph 21, as I do, the following summary of the law on mitigation of damage provided by Garde J in Portbury Development Company v Ottedin Investments Pty Ltd. Although that case dealt with a breach of contract, the principles also apply to damages for a tort:
This statement of law highlights a number of important principles that guide assessment of loss in cases where mitigation is in issue:
(a) there is in fact no duty to mitigate loss – rather, damages are reduced to the extent that the plaintiff has not acted reasonably;
(b) the onus of proof is on the defendant to show that the plaintiff has not acted reasonably in minimising loss arising from the defendant’s breach of contract;
(c) the defendant must prove the extent of the plaintiff’s failure to minimise loss, i.e., the amount of the plaintiff’s loss that was occasioned by the plaintiff’s failure to act reasonably;
(d) a high standard of conduct is not required of the plaintiff, because the defendant is not the wrongdoer; and
(e) a plaintiff will not be held to have acted unreasonably simply because the defendant can suggest other and more beneficial conduct, so long as it was reasonable for the plaintiff to act in the way that he did.[7]
[7] Portbury Development Company Pty Ltd v Ottedin Investments [2014] VSC 57 at [158]
30.In written submissions after the hearing Suncorp said that, “[Fallon] is a case which should be considered with respect to the assessment of damage where the duration of a hire car period is in issue, it is not a case which should be considered when determining the market rate for a hire claim.”[8]
[8] Respondent’s submissions dated 5 February 2019 paragraph 1
31.Suncorp also made submissions that Ms Nicolaas had failed to make reasonable enquiries as to the likely duration of hire. These submissions were directed to the issue of what ‘market rate’ meant, and I will return to them later in that context. It was not apparent that Suncorp also relied on this assertion in relation to mitigation. But if it did, there is no evidence to suggest that Ms Nicolaas would have influenced the duration of repairs by asking how long they were likely to take.
32.Suncorp made no other submissions and presented no evidence relevant to mitigation. Instead, counsel in oral submissions said “The respondent does at least not admit the period, the 25 day period, between 24 February 2017 and 20 March 2017 and that that period was reasonable”.[9]
[9] Transcript of proceedings 8 January 2019 page 10 lines 38-39
33.The respondent has the onus of proving, on the balance of probabilities, that Ms Nicolaas failed to take reasonable steps to limit the duration of the repairs, and hence her loss. I find that Suncorp has not discharged that onus and so I am not satisfied that the duration of the loss was excessive.
34.I will now turn to questions relevant to the determination of market rate which counsel for Suncorp in his opening submissions acknowledged was the most hotly contested issue.
Question3: What does market rate mean for the purpose of measuring damages for Ms Nicolaas’ loss
Why is market rate the appropriate measure of damages in this case?
35.Although the usual measure of damages for the temporary loss of use suffered by an innocent owner while their vehicle is being repaired is the cost of hiring a replacement vehicle,[10] the appropriate measure of damages depends on the circumstances of each case. In this case the relevant law and facts as agreed by the parties or determined by me, are:
(a)Ms Nicolaas has suffered no pecuniary loss, or crystallised liability, so far.
(b)Ms Nicolaas needed her car.
(c)The compensable loss suffered by Ms Nicolaas is loss of use of her car while it was being repaired.
(d)The duration of that loss was not excessive.
(e)That loss being non-pecuniary and incapable of precise calculation is compensable by general rather than special damages.
[10] See for example Beazley JA in Anthanasopoulos v Moseley [2001] NSWLR 266 at [83]
36.The dominant purpose of compensatory damages is to put the innocent person in the same position they would be in had the wrong not occurred, to the extent it is possible to do so. Because Ms Nicolaas needed her car it is appropriate to measure her general damages by reference to the market rate of replacing it with a comparable vehicle for the duration of her loss.
37.It was not disputed that the relevant market rate in this case should be determined by reference to hire rates available in the mainstream, rather than the credit hire, market. The situation may have been different if Ms Nicolaas needed to use a credit hire company because she could not afford to pay hire charges upfront. R2D did not make that argument.[11]
How do the parties calculate damages for the hire period based on market rate?
[11] See Lagden, Lord Nicholls of Birkenhead at [5]-[9]
38.R2D claimed, on behalf of Ms Nicolaas, the sum of $3,047.00 that is, the full amount of its invoice, for the hire of the Toyota Yaris to replace her 2008 Mazda 2 Hatchback comprised of:
(a)25 days of hire from 24 February to 20 March 2017 at $72.00 per day: $1,800.00
(b)Registration Recovery Fee: $195.00
(c)Excess Reduction: $700.00
(d)Delivery and Return Fee: $77.00
(e)GST: $277.00
39.Suncorp submitted that if damages for loss were calculated by reference to the period of hire the appropriate sum was $1,572.45.[12]
[12] See arithmetical correction at footnote 2
40.Suncorp adduced evidence from a hire car comparison website ‘Vroom Vroom Vroom’ in support of its contention that the applicant could have hired any of the following vehicles to replace her own – each of which being comparable in terms of make and model and available in Canberra for the relevant period:
(a)Hyundai Accent from Europcar.
(b)Toyota Yaris from Thrifty.
(c)Toyota Corolla from Thrifty.
41.It submitted that damages should be assessed on the advertised rates for a Toyota Corolla from Thrifty on a weekly basis for the first 21 days of the hire. It relied on the following weekly rates found on Vroom Vroom Vroom:
(a)24 February 2017–3 March 2017 ($370.98);
(b)3 March 2017–10 March 2017 ($421.09);
(c)10 March 2017–17 March 2017 ($483.10); and
(d)a daily rate of 74.32 should apply for the remaining 4 days. ($297.28)
42.The comparison rates relied on by both parties include GST, a daily excess reduction fee and a registration recovery fee. R2D’s actual charges included a delivery and return fee.
Why the difference?
43.If both parties worked out quantum of damages on the basis of the market rate for the period of hire why did they come up with different amounts?
Relevance of actual hire charges
44.The first reason is that the parties differed as to whether R2D’s hire charges were relevant to the assessment of damages.
45.R2D argued that, despite the extra services it provides its customers, its hire charges fell within the range of comparative rates reasonably available in the mainstream market at the relevant time and therefore are the appropriate basis for the assessment of damages.
46.R2D’s position reflects the approach usually taken by NSW Local Court that is, that it is only necessary for a claimant to establish that the hire charges claimed are within market rate range. Magistrate Dillon summed up that approach in Chong v Berry[13] as follows:
Mr Chong was entitled to go to the nearest convenient source for a replacement vehicle and the defendant does not dispute that he did so. (Its argument is principally to do with the rate of hire.) Moreover, as the defendant fairly concedes, rather than having to prove “the market rate” (as lpp AJA put it in Athanasopoulos), a fact that, because of different or variable rates within the market may be incapable of proof, a plaintiff only has to prove that the rate he or she obtained is a market rate.[14]
[13] [2007] NSWLC 33 at [52]
[14] Followed for example in Harb v Marchbank [2011] NSWLC 9
47.Suncorp said the amount charged by R2D was not relevant to market rate and relied on the reasoning of Assessor Olischlager in Rizk v Chen in which the assessor deliberately departed from the previous practice of the Court and stated that when assessing damages the court should instead:
…determine the market rate for replacement of the plaintiffs vehicle instead of ascertaining whether the amount claimed by the plaintiff is a market rate for a number of reasons.[15] (emphasis added)
[15] Rizk v Chen [2014] NSWLC 8 at [32]
48.Suncorp argued, adopting Assessor Olischlager’s reasoning, that R2D’s invoice cannot be relied upon as evidence of the market rate because its rates include extra costs associated with its credit hire service, which are not compensable. Further, the amount charged is irrelevant because the compensable loss is loss of use (general damages) not the actual cost of hire (special damages).
49.I prefer the approach of Magistrate Dillon because it recognises the artificiality of determining a single market rate; is more consistent with purpose of compensatory damages; does not throw an undue burden on the innocent party to reduce the liability of the wrongdoer; and still protects at fault drivers and their insurers from excessive claims.
Daily or weekly rate?
50.The second reason for the difference is that Suncorp submitted that a weekly hire rate, rather than a daily rate, ought to apply for the duration of the hire. A weekly rate is typically lower than a comparable daily rate.
51.Suncorp argued that Ms Nicolaas’ either ought to have known because her husband was employed by the repairer, or taken reasonable steps to ascertain, the likely duration of the hire and taken reasonable steps to ensure she secured the lowest hire rate available for that period rather than simply hired at a daily rate.
52.It relied upon the following statement made by Assessor Olischlager in Hayes v Bateman at paragraph 34:[16]
An objective enquiry as to the cost of replacing the plaintiff’s motor vehicle requires an assessment of the likely cost incurred by the hypothetical reasonable person in the position of the plaintiff. A reasonable person in the position of the plaintiff would make some inquiry as to the likely duration that repairs would take so as to determine whether a reduced hire rate might be available for longer term hire as opposed to daily rate.
[16] Hayes v Bateman [2015] NSWLC (unreported)
53.I accept Ms Nicolaas’ uncontradicted evidence that, although her husband was employed by the repairer, he was unable to tell her know how long the repairs would be likely to take. As a spray painter he was only involved in the final stage of the process after all other repairs were complete. When she dropped her car off for repairs she was in no better position than any other layperson to know when she would get her car back.
54.The only information the repairer gave Ms Niclolaas before she left her car was that the repairs would take “more than a few days”.[17] She cannot remember if she asked the repairer for a more precise estimate and they did not volunteer one. She says she just assumed it would be a couple weeks, although she admitted she was “not a very technical car person”.[18]
[17] Transcript of proceedings 8 January 2019 page 19 lines 11-20
[18] Transcript of proceedings 8 January 2019 page 21 line 13
55.Assessor Olischlager in Hayes v Bateman acknowledged that market rate in these sort of cases is usually determined on the daily rate advertised in car hire markets saying:
9.…Daily rates are most often relied upon when assessing the market rate in recognition of the circumstances that persons in the position of the plaintiff find themselves. They are usually lay persons with no particular experience of the smash repair industry. They will generally not be aware of how long repairs will take. Even if an estimate of time is provided by the repairer unforeseen delays may arise that will blow those estimates out of the water.
10.Notwithstanding this, it is not an immutable principle that the court will assess market rate on a daily rate. Each case depends on its own particular facts. (emphasis added)
56.In Hayes v Bateman there was no evidence that the plaintiff had made any enquiries as to the duration of repairs and yet the Assessor used a daily rate to determine market rate for the entire 37 day hire period. The assessor found that if the plaintiff had enquired he would have been told his car would be unavailable for an estimated eight days based on the loss assessment. If he had received this answer then it would have been reasonable to hire a replacement on a daily, rather than a weekly or longer basis.
57.I have no evidence from the repairer, such as a loss assessment, from which I can infer what it would have told Ms Nicolaas if pressed for a more precise estimate. Although Ms Nicolaas assumed repairs would take a few weeks, as an unqualified layperson she was in no position to judge.
58.The facts in Hayes v Bateman illustrate the unreliability of estimates of the duration of repairs and demonstrate why daily rates are generally preferred. I see no reason in this case to take a different approach than that usually taken by the NSW Local Court as articulated by Magistrate Dillon in Chong v Berry.
The test
59.For the reasons set out above I am satisfied that the relevant market rate encompasses the range of daily rates reasonably available for a comparable vehicle from mainstream car hire firms in Canberra on 24 February 2017. R2D is entitled to recover, on Ms Nicolaas’ behalf, damages in the amount of its charges provided it can prove, on the balance of probabilities that its charges fall within that range.
Question 4: What is the appropriate quantum of damages based on market rate?
60.R2D’s charges with inclusions (except for its drop off and collect fee), came to an equivalent of $118.58 per day. Suncorp adduced evidence of comparable daily rates based on the same inclusions. Both parties relied on rates for cars, which could be classed as compact or economy vehicles. Suncorp conceded that the Yaris hired by Ms Nicolaas was an appropriate replacement for her Mazda Hatchback.
61.Mr Patrick gave evidence that R2D offers only one rate based on daily hire and that rate is designed to reflect the market rate.
62.Mr Patrick told the Tribunal that R2D uses an autonomous program to search the websites of mainstream car hire companies and gather data on advertised hire rates and inclusions. R2D applies an algorithm to that data to set a daily rate for each of its vehicles which reflects market rate for comparable vehicles available at the same time in a similar location. Both weekly and daily rates are used therefore the daily rate R2D sets is typically somewhat lower than the average daily rate available in the market.
63.Mr Patrick conceded that sometimes the result of the process is “spot on” and sometimes it is not depending on the data used.
64.R2D was unable to produce the data it used to determine the hire rate for Ms Nicolaas or indeed any evidence of comparable hire rates available on 24 February 2017. Instead it relied on evidence that on 11 April 2017 there were two Nissan Micra cars available for hire from Budget in Canberra – one at a comparable daily rate of $117.35 and one at a comparable daily rate of $137.98.[19]
[19] Witness statement of Stephen Patrick dated 4 December 2018 annexures D and E
65.It was acknowledged by both parties that hire rates are sensitive to timing. Local events, public and school holidays can affect demand. In my view, evidence of only two hire rates available more than six weeks after the relevant date are, at best, a rough indication as to what rates may have been available on the relevant date.
66.Mr Patrick’s evidence of R2D’s usual method for setting hire rates is insufficient to prove that the hire rates charged to Ms Nicolaas reflected the market in the absence of more reliable evidence of the range of hire rates available on the relevant date. Accordingly, I cannot be satisfied on the balance of probabilities that R2Ds charges fell within the market range.
67.Mr Vamsi Tim, a claims officer for Suncorp, gave evidence of comparable daily rates available in Canberra for hire on 24 February 2017. Mr Tim relied on searches he conducted on 21 February 2017 on Vroom Vroom Vroom. The search results produced to the tribunal were headed ‘Genuine Discount bookings for [several major car hire firms were then named]’ and listed approximately 52 vehicles, of which 11 were either Economy or Compact, in order of least to most expensive.
68.Suncorp relied on the three cheapest automatic Compact or Economy class vehicles listed, which had comparison rates of between $73.48 and $74.32 per day. The most expensive rate for of this class of car was $75.99. Suncorp submitted that, if I used a daily rate, it should be $74.32, the daily rate for either a Toyota Corolla or a Toyota Yaris available from Thrifty in Canberra for hire commencing on 24 February 2017.
69.R2D argued that rates advertised on Vroom Vroom Vroom were not indicative of the market rate because they only included discounted rates. Mr Patrick said that at the time Mr Tim conducted the search, cars advertised on the website were often not available when customers were diverted to the hire companies website to complete the booking. R2D also observed that the search was done three days before the hire period commenced and rates usually go up closer to the date hire is needed.
70.On the balance of evidence I accept that Vroom Vroom Vroom only advertised discounted rates for hire – not ordinary hire rates. In my view, a discount rate can be a market rate so long as it is reasonably available. Consumers often use comparison websites to find the best prices for services in high volume competitive markets. Most people are familiar with comparison websites for accommodation and flights. A reasonable consumer looking for inexpensive car hire can search the internet and readily discover discounted rates. While these rates are not indicative of the range of rates available in the market they can indicate the bottom of that range.
71.I also accept that, had the search been conducted on the day the hire commenced, rather than three days before, the advertised rates may have been higher. However, the rates were quoted significantly closer to 24 February 2017 than those provided by R2D and are therefore a more reliable indication of what was available on that day. There was insufficient evidence to support Mr Patrick’s contention that the cars advertised were often not available.
72.The daily rate of $74.32 preferred by Suncorp, is a discounted rate and advertised three days prior to the hire period, accordingly I conclude that it is at the bottom, or below the market range.
73.I cannot determine on the evidence whether R2D’s charges were within, or above, the top of the market range. However, I am satisfied that if R2D’s rates were above the market range on 24 February it is unlikely to be by much, given that six weeks later two otherwise comparable rates were available one of which was similar to R2D’s hire charges, and the other one was considerably higher.
Conclusion – assessment
74.General damages are made in a precise sum to compensate for a loss which is incapable of precise financial quantification. The reasonable cost of hiring a replacement is a convenient but necessarily imprecise measure. I have already found that the reasonable cost falls somewhere in the mainstream market range for comparable hire available on 24 February 2017 and, had R2D established that its hire charges were anywhere within that range, Ms Nicolaas would have been entitled to damages based on that amount. Since R2D has not discharged the onus of proof in this regard I must determine a notional rate within the market range on which to measure damages.
75.I do not accept that the reasonable measure is the lowest possible comparable rate. If the top and bottom of the market range can be established then a mid-point is an appropriate measure. Such an approach is consistent with the purpose of compensatory damages yet protects against excessive claims.
76.The evidence of the boundaries of the market range in this case is not strong but as a guide I have adopted Suncorp’s preferred daily rate of $74.32 as representative of the bottom of the range and R2D’s comparable rate of $118.58 as representative of the top of the range. I have chosen a notional daily rate of $96.45, which is halfway between the two as a reference rate to assess damages.
77.I allowed a flat fee of $75, based on R2D’s fee, for delivery and return as this service is reasonable given that Ms Nicolaas needed a means of getting back from the repairer when she dropped her car off and needed to return the hire car once she collected her own car.
78.For the reasons set out above I have assessed damages at $2,486.25 calculated on the basis of $96.45 per day for 25 days ($2,411.25) plus $75 for delivery and return. I have also allowed the filing fee on the application and interest from 24 February 2017 to the date of judgment in accordance with Schedule 2 of the Court Procedures Rules2006.
………………………………..
Senior Member E Ferguson
HEARING DETAILS
FILE NUMBER:
XD 63/2018
PARTIES, APPLICANT:
Amy Elizabeth Nicolaas
PARTIES, RESPONDENT:
Hayden Sasso
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Mr A Opas
SOLICITORS FOR APPLICANT
Chamberlains Law Firm
SOLICITORS FOR RESPONDENT
Ligeti Partners
TRIBUNAL MEMBERS:
Senior Member E Ferguson
DATES OF HEARING:
8 January 2019
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