Prestigo Pty Ltd v Jackson
[2018] VCC 454
•16 April 2018 (Reasons) Judgment entered 23 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-17-02116
| PRESTIGO PTY LTD | Plaintiff |
| v | |
| BEN JACKSON | Defendant |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 -15, 19 March 2018 | |
DATE OF JUDGMENT: | 16 April 2018 (Reasons) Judgment entered 23 April 2018 | |
CASE MAY BE CITED AS: | Prestigo Pty Ltd v Jackson | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 454 | |
REASONS FOR JUDGMENT
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Subject: Negligence
Catchwords: Motor vehicle collision; apportionment of liability; whether plaintiff entitled to hiring cost of alternative vehicles
Legislation Cited: Wrongs Act 1958 s 24AH and 24AI
Judgment: For plaintiff as to 55% loss of value of car; no damages for loss of use of damaged car; for defendant as to 45% on counterclaim for damage to his car.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Stirling | RS Chase Lawyers |
| For the Defendant | Mr S Habib SC with Ms J Findlay | Hall & Wilcox |
HER HONOUR:
1 On a clear dry Saturday afternoon last year, at a suburban intersection, a motor car owned by the plaintiff collided with a motor car owned and driven by the defendant. Each party alleges that the collision was caused by the other driver’s negligence, and each claims damages for its losses[1], principally for the damage to the respective cars. The plaintiff also claims damages for loss of use of its car.
[1]The defendant counterclaimed in the proceeding.
2 The facts and legal principles applicable in this case are not unusual. What led to a four day hearing in this court was that the plaintiff’s car was extraordinarily expensive (market value approximately $1million), and that the plaintiff claimed as the value of its loss of use of that car, the cost of hiring, successively, two very expensive other cars (total claimed $300,400).
3 The issues to be determined are:
(i)whether negligence by either driver was a cause of the collision, and if there was negligence by both drivers, apportionment of their respective liability[2]; and
(ii)whether any and if so what amount of the cost of hiring other vehicles is recoverable by the plaintiff.
[2]Wrongs Act 1958 s 24AH and 24AI
Evidence
4 The plaintiff called as witnesses the driver of its vehicle, Mr Serbulent (Bill) Kol, his wife, Mrs Feride Kol, who was a passenger at the time, and Mr Benny Lam from Unique Cars Rentals from which business Mr Kol had hired replacement vehicles after the collision.
5 The defendant gave evidence as did his passenger at the time, Ms Courtney Byrne. The defendant also called another driver in the vicinity, Dr Fiona Cowell, who attended the scene very shortly afterwards, and Mr Mark George who was called as an expert in assessment of traffic collisions.
6 Both parties also tendered documents which are set out in the attached schedule.
7 A view was held at the intersection on the first day of the hearing.
8 Not unusually for a motor vehicle collision, the credibility and reliability of both of the drivers is in issue. In assessing the evidence of both drivers, I have taken into account that it is always difficult for witnesses to accurately recall and describe events that occur suddenly and unexpectedly, last only seconds, and cause fright and distress at the time. This makes some degree of reconstruction in each driver’s memory almost inevitable, which it is natural will involve some degree of self-justification or minimising of own fault. Within these general parameters I shall specify whether or where I found aspects of the evidence of each driver unreliable.
9 I have not placed much weight on the evidence of either car’s passenger as to the speed of the plaintiff’s car. Each was in the most vulnerable position and most at risk of serious injury in the seconds before the collision. Neither was concentrating on the road or traffic until the situation of imminent collision arose, and I do not believe that either had a clear recollection of assessing the other vehicle’s movements. I do not find either was deliberately lying, but as each had discussed estimated speeds with either her partner or lawyers in preparation for the trial, I did not find either was particularly reliable on the issue of speed of the plaintiff’s car.
10 The defendant called another witness who had been in the vicinity, Dr Cowell, but she had not directly observed the actual collision. The plaintiff suggested that her evidence was coloured by the aggressive behaviour and offensive language of Mr Kol towards her at the scene. I am satisfied that her actions before that occurred reflect her original perception of the plaintiff’s vehicle going far too fast.
11 There was objection taken to some parts of the evidence of Mr George, in particular to his evidence about speed of the plaintiff’s vehicle from its data recording device. I have accepted him as qualified to give expert evidence, and shall deal with the specific objections separately.
Findings as to relevant circumstances
12 The collision occurred on 29 April 2017 at the intersection of Riversdale Road and Berkeley Street, Hawthorn.
13 Riversdale Road is a main road running in an east/west direction. There are two lanes for traffic in each direction, with tram lines in the right hand lane in each direction, and provision for parked cars in the left hand lanes except at intersections, tram stops, and other places where no parking is allowed. There is an unbroken while centre line, separating eastbound and westbound lanes. The maximum speed limit at that point is 60 km/h.
14 Berkeley Street runs in a north-south direction, ending at a “T-intersection” on the south side of Riversdale Road, where a “Stop” sign applies to traffic travelling north.
15 Almost opposite Berkeley Street, but offset by a few metres, ending at a T-intersection with Riversdale Road on its north side, is Dalley Street. The entrance from Riversdale Road into Dalley Street involves passing over a gutter and ramp as if entering a driveway, level approximately with the footpath. To avoid scraping the front undercarriage of a car, a driver approaching the entrance to Dalley Street must approach it at a very slow speed – considerably slower than if the road surface levels were the same.
16 Both drivers were familiar with the area.
17 The plaintiff’s vehicle was a 2015 Lamborghini Aventador. It had been purchased new, as a collector item, and was almost exclusively driven by a director of the plaintiff, Mr Serbulent Kol, for his personal use. The defendant concedes that at the time of the collision the market value of the car was approximately $1 million, and that its salvage value after the collision was approximately $305,000, although the vehicle has not been repaired nor sold for salvage.
18 The defendant’s car was a 2004 Subaru Forrester. Its market value was approximately $4050.
19 Mr Kol was driving the Lamborghini, with his wife as passenger. Shortly before the collision he had turned right from Glenferrie Road into Riversdale Road, and continued in an easterly direction, his destination being Camberwell. Mr Kol says “Riversdale was empty” at the time he turned into it, which I take to mean that there was no moving traffic immediately ahead of his car. He proceeded in the right hand lane. His speed as he approached the intersection is a key issue in this case. He called it a normal speed, of 50 to 60 kph. The applicable speed limit for vehicles on that part of Riversdale Road is 60 kph. His wife said it was his normal speed and 50-60, but she was not really concentrating on his driving until the sudden need to avoid a collision.
20 All other evidence is to the effect that the plaintiff’s vehicle was going very fast, and faster than 60 km/h.
21 Mr Jackson had driven north down Berkeley Street and stopped at the intersection with Riversdale Road. His partner, Ms Courtney Byrne was his front seat passenger. He intended to cross Riversdale Road from Berkeley Street into Dalley Street, which he had done previously.
22 There is no issue that Mr Jackson had stopped at the end of Berkeley Street. At that point a driver’s view in both directions along Riversdale Road is likely to be obstructed. To the right, that is looking easterly, there is a tram stop and could be parked cars beyond it. To the left, looking west towards Glenferrie Road, there is a street pole very near the intersection corner, and a few metres further away a tree with a trunk almost the width of the narrow nature strip. Each of these would partly interrupt the line of sight to the left, for a driver stopped at the stop sign lines. Further, if there were parked cars along that side of Riversdale Road from where parking is permitted closest to Berkeley Street, or other moving traffic on the westbound carriageway, that is traffic heading west towards Glenferrie Road after it passed Berkeley Street, it could obscure the view of a driver stopped at Berkeley Street, of traffic coming from Glenferrie Road.
23 Mr Jackson says that he had stopped at the end of Berkeley Street, given way to 3 to 5 cars coming from his right along Riversdale Road, which when he looked left had banked up in traffic towards Glenferrie. He says he looked right, left and right again, seeing no traffic coming from either direction, and so he moved his vehicle slowly forward into the intersection, at about walking pace, or about 5 to 10 kph. He says that the nose of his vehicle had reached the centre line of Riversdale Rd when he first saw the plaintiff’s vehicle approaching from his left on Riversdale Road, and it was travelling extremely fast – he did not know its speed but maybe 80 to 100. He immediately braked and his car stopped quite quickly, but in doing so moved forward a short distance to the point where its front had entered the carriageway in the path of the plaintiff’s vehicle. How far across that lane it had entered is disputed, but not the fact that it stopped at that point and did not move again before the collision. Mr Jackson says he himself was not quite at the white centre line but the nose of the car had crossed it.
24 Mr Kol said that when he first saw the defendant’s car he was 20 to 30 metres from the point of collision. He gave two versions of where the defendant’s car was when he first saw it. At first he said that it was at the white line at the end of Berkeley Street, and then at walking speed onto Riversdale Road, the white line being near the post[3]. However, he also said that when he first saw the defendant’s car its front was at the white line in the centre of Riversdale Rd[4]. Attempts to clarify still led to both versions. According to Mr Kol the defendant’s car then moved further forward towards Dalley Street, bringing it into his lane, and then stopped – according to him fully across his lane. He says he was too close and could see the female passenger in the defendant’s car in front of him, and to avoid hitting her had to decide very quickly what evasive action to take and as there were no oncoming cars he decided to try to go to the right into Berkeley St.
[3]T 28,l 13-16, 27-28
[4]T 33, l 1-5
25 Mr Kol steered to the right, but the front left corner of his car struck the right hand side back door area of the Subaru. The Subaru swung anticlockwise approximately 180 degrees and its front left corner hit the back left corner of the Lamborghini which continued into Berkeley Street and came to rest there, with airbags deployed and smoke in its cabin. The Subaru came to rest on Riversdale Road east of the intersection with Berkeley Street on the westbound carriageway. The fire brigade was called to make both vehicles safe and police attended. Thankfully, no one was physically hurt.
26 In his evidence in chief Mr Kol made no reference to braking, but the evidence from the data recorder on the Lamborghini satisfies me that he did apply his car’s brakes, but not until between 1 to 1.5 seconds before the point of collision. Mr Kol says that when he first saw the defendant’s vehicle, he knew he had right of way, and it was only when the defendant’s vehicle stopped in his lane that he commenced evasive action. I find that he did not attempt to slow his vehicle until the defendant’s vehicle stopped in his lane. I find that it did not occur to him to try to go to the left of the defendant’s vehicle.
27 The evidence of both female passengers, to an extent supported their driver’s version of the speed of the Lamborghini, but I am not satisfied that either was paying attention in a way that makes her version particularly reliable. Mrs Kol was not feeling well, and was unclear about the distance from which she first saw the defendant’s car. Like Ms Byrne, she was placed at risk of imminent serious harm, and shocked and very upset afterwards. In the circumstances, her estimate of her husband travelling at 50 to 60 km/h after turning into Riversdale Road did not impress me as likely to be reliable.
28 However, nor did I find convincing Ms Byrne’s estimate that the Lamborghini was travelling at 80 to 90 kph when she first saw it, as she is a non-driver, and was looking at right angles at a car approaching and about to hit her side of the defendant’s car.
29 Dr Fiona Cowell had been driving along Riversdale Rd towards Glenferrie Rd seconds before the collision, with her school age daughter as passenger. She too was familiar with the area. She says that after she had passed Berkeley St she was behind some cars behind a tram, and noticed an oncoming car pass at such high speed that she commented on it, and when she heard a crash, she thought there was likely to have been serious injury or worse, and as a doctor felt she should go to assist. She pulled over her car, told her daughter to stay in the car so as not to see what had occurred, and hurried back to the Berkeley St intersection. She found that no-one had been physically hurt, but told Mr Kol he had been driving too fast, and was nastily verbally abused by Mr Kol. Although I do not accept as reliable her estimate of Mr Kol’s speed being at least 100 km/h, I am satisfied that her impression of his speed was that it was substantially more than 60. I find that her actions reflect that her impression of the plaintiff’s car’s speed was that it was very fast, and likely to have caused a very serious accident. I am satisfied that her impression of its speed was not simply a product of hearing and seeing a noisy and low slung sports car.
30 Mr Mark George has some 40 years of experience in investigating motor accidents, commencing in the army and then NSW police, and for more than 25 years as a private accident investigation consultant. He has undertaken numerous training courses in various aspects of such investigation. He is a certified download technician and crash data analyst for the crash data retrieval systems within the Lamborghini in this case, and has himself trained others including Victorian and federal crash investigation police in crash data retrieval. He was retained by the defendant’s lawyers some six or seven weeks after the collision to examine the vehicles, and the scene, and to provide his opinion on several questions. I am satisfied that he has the qualifications and experience to give the opinions he did as an expert, that he appropriately qualified the limits of what his opinion comprised, and that his opinions were admissible as expert evidence. His evidence was not only opinion, but also as to the data he downloaded, which he is qualified to do, from the Lamborghini’s data recording equipment.
31 Mr George downloaded from the Lamborghini’s data recordings information as to its speed, acceleration and deceleration, in the 5 seconds leading up to the collision. From this he gave the following evidence.
- According to the data he downloaded, the vehicle was being driven at a speed of between 88-89 km/h within the period of 5 seconds before the collision[5].
[5]Paragraph 72 of Mr George’s report
- The accelerator pedal was used 4 to 4.5 seconds before, and 2 to 2.5 seconds before, and the brake activated between 1 and 1.5 seconds before the collision[6].
[6]Figure 16
- The vehicle speed had reduced to 53 km/h at impact – when the airbags deployed[7].
[7]Para 72
- At 2 seconds before impact, the speed was approximately 85 km/h with the accelerator still applied; at 1.5 seconds 87 km/h; and then from application of brakes, at 1 second 70 km/h, and on impact 53 km/h[8].
[8]Figure 17
- From Mr George’s calculations, when the accelerator was last applied the vehicle was approximately 40 metres and 2 seconds before the point of collision; the brakes were applied between 1 and 1.5 seconds and between approximately 28 and 17 metres before the point of collision. The reported pre-crash vehicle speeds between 1 second and the point of collision would be considerably under-reported due to wheel slip from braking[9].
[9]Para 76
- The imprint nature of the impact damage to the Subaru indicated that it was most likely stationary at the time of impact[10].
[10]Para 83
- At the average deceleration rate taken from the Lamborghini’s data, the braking distance to stop would have been about 46.5 metres. However, at the same deceleration rate, had it been from 60 km/h the stopping distance would have been 22.1 metres[11]. Therefore, Mr George’s opinion is that the Lamborghini’s pre-crash data suggests that all other things being equal, the vehicle could have effectively stopped short of the crash site had it been travelling at or below 60 km/h[12].
- Mr George also gave the opinion that although statistically unusual[13], Mr Kol’s choice of steering right as an avoidance manoeuvre may have been reasonably influenced by initial perception that the defendant would continue crossing the intersection in which case the collision may have been avoided.[14] He also gave the opinion that the defendant’s response choice to stop may have also been reasonably influenced on an initial perception that the two vehicles would collide if they continued on their initial paths and speeds[15].
- Assuming the defendant had stopped at the intersection before entering it, he would have required around 4.5 to 5 seconds to reasonably travel across Riversdale Rd and clear the intersection from a stationary position, A perceived traffic gap of around 6 seconds would have been reasonably adequate for the defendant to negotiate and clear the intersection, and for a 60 km/h speed environment this would ordinarily equate to clearance distance of about 100 metres.[16]
[11]Para 104.14
[12]Para 104.15
[13]Para 104.9
[14]Para 104.10
[15]Para 104.11
[16]Para 104.5
32 The plaintiff’s counsel objected to admissibility of Mr George’s evidence as to speed of the Lamborghini, because there was no evidence to confirm its likely accuracy in that there was no evidence about the recording device being calibrated or tested for accuracy. Mr George conceded that he had no way of confirming the accuracy of the data recorded, but he believed it to be correct because it was correct as to matters such as date and time of this collision incident, and consistent with what he observed of the scene, his inspection of the damage on each vehicle, and with the crash simulation and calculations he made. If my findings necessitated an exact speed, I would find more strength in the plaintiff’s submissions. I did not take the submissions to challenge the expertise of Mr George in his ability to download and interpret the data recorded. Further, the plaintiff, having been served in advance with Mr George’s report, led no evidence to cast doubt on the accurate operation at the time of the data recording system in the vehicle.
33 I accept from the evidence of Mr George, that it was more likely than not that the plaintiff’s vehicle had been travelling well over 80km/h up to two seconds before the collision, at which point the accelerator was still applied, that deceleration commenced about 28 metres before the collision point, with braking commencing after that, as well as evasive action of steering right. I am satisfied that Mr George’s calculations from the data show that it is more likely than not that had the plaintiff’s vehicle been travelling at no more than the speed limit on that road of 60km/h, and deceleration commenced at the same point in time and distance, the vehicle could have stopped before the point of collision.
Findings as to negligence
34 Each party submits that the collision was caused solely by the other driver’s failure to take reasonable care in the driving of his vehicle. However, I am satisfied that each driver’s lack of due care contributed to the cause of this collision, in that each failed to exercise sufficient care as a driver to avoid foreseeable risk of a collision, in the circumstances that arose on this occasion.
35 I find that the defendant had advanced into the intersection almost to the centre line of Riversdale Road before he first noticed the plaintiff’s vehicle. Even though he was travelling very slowly, at what he calls walking pace or 5 –10 km/h, he had advanced too close to the centre line to be able to stop before the front of his car would enter the eastbound carriageway. His estimate that when it came to a stop the nose of his car was only about 30cms into the right-hand lane for traffic travelling east I take to be an underestimate, as he took this from his description that as the driver he was not quite personally over the centreline, and I find it likely that the front of his car beyond the driver’s seat would have protruded considerably more than 30cms. Moreover, although I do not believe Mr Kol that the defendant’s vehicle was fully across his lane, I do accept that he could see the passenger Ms Byrne in the defendant’s car when close, and I infer that the Subaru was more than 30 cms into the lane in which Mr Kol was driving.
36 Counsel for the defendant urged me to find that there had been no negligence – no failure to take reasonable care – by the defendant, as he had stopped before entering the intersection, given way to cars coming from his right, could not be expected to have seen the plaintiff’s vehicle until he did because it was moving so fast, and that the defendant was moving his vehicle very slowly and then stopped as soon as he saw the plaintiff’s vehicle approaching.
37 The defendant’s entry into the intersection was controlled by a “Stop sign”, which obliged him to give way to all traffic on Riversdale Rd before proceeding, if he wished to cross as he did into Dalley Street. Once he could see that there was no more traffic coming from his right, I find that it was not unreasonable to enter and commence his crossing of that side of the road, namely the westbound lanes. It is understandable that in order to see what was coming from his left he needed to edge into the intersection, to overcome the obstruction of the street pole, tree, and other cars whether parked or slowed behind a tram, but the obligation was still on Mr Jackson that if he wanted to cross into Dalley Street he could not do so without having sufficient line of sight to his left to be able to give way to all vehicles travelling east and to cross at what he knew must be a particularly slow speed because of the ramp-like entry. He simply should not have attempted the crossing by advancing as far towards the centre-line as he apparently had if he did not have sufficient view of what traffic was coming from his left to be able to either stop before the centreline or fully cross and clear the eastbound lanes.
38 The evidence of Mr George that the defendant would have needed clearance of about 6 seconds from a stationary start to cross Riversdale Rd into Dalley Street, or about 100 metres clearance to his left, satisfies me that Mr Jackson cannot have had that. I am satisfied that he did not see the plaintiff’s vehicle before he commenced to enter the intersection. The data information from the Lamborghini shows it approximately 112.85 metres away 5 seconds before the collision, 100 metres away 4.5 seconds before the collision, and still 40 metres away 2 seconds before the collision. I am satisfied that even though the plaintiff’s vehicle was travelling too fast in the circumstances, and Mr Kol did not brake or take evasive action as early as he should have done if exercising reasonable care, Mr Jackson created the hazard of crossing into the path of eastbound traffic without having sufficient view of traffic on that part of the carriageway. Further, by stopping with his vehicle at least partly blocking an eastbound lane, having created the hazard he left all evasive action to the other driver.
39 I am satisfied that Mr Kol, the driver of the plaintiff’s vehicle, also contributed to the collision. I am satisfied that he failed to exercise reasonable care to avoid foreseeable risk of harm to other road users by driving too fast in the circumstances, by assuming that he could rely on having right of way, and failing to slow and apply the brakes sooner.
40 I am satisfied that he was travelling considerably faster than the 60 km/h speed limit despite his evidence to the contrary. That is supported by the evidence of Mr George not only as to the data recorder on the plaintiff’s vehicle showing that it had been doing 88 -89 km/h within 5 seconds before the collision, but also his calculation that at the same deceleration rate from the same point in time and distance it could have stopped within about 22 metres had it been travelling at no more than 60 km/h. I am also satisfied that he was driving too fast from the evidence of observers to that effect, even though I place little weight on their estimates of actual speed. Dr Cowell saw the Lamborghini only momentarily moving in the opposite direction from her, but commented that it was going very fast, and on hearing a crash stopped, stopped anticipating serious consequences as a doctor. Mr Jackson and Ms Byrne saw the Lamborghini coming towards them at right angles and no doubt in circumstances of fright and some fear. I also take into account the evidence of the apparent force of the collision, in that it spun the defendant’s stationary vehicle about 180 degrees, and itself ended very significantly damaged with airbags deployed and smoke filling the car.
41 I do not need to make a finding as to the actual speed at which the plaintiff’s vehicle was travelling seconds before the collision. It is sufficient to find as I do that it was over the speed limit and too fast in the circumstances. Had it been within the speed limit Mr George’s calculations show that it could have stopped before the collision.
42 I am also satisfied that Mr Kol breached the standard of care of a reasonably prudent driver by failing to slow his vehicle sooner. His own description of Riversdale Rd being “empty” when he turned into it indicates that he perceived himself as having the roadway to himself in the driving of his car. He says that when he first saw the defendant’s car he did not take any evasive action as he had right of way. Strictly he did, but this was a road travelling through a built up residential area, with parked cars, side streets on either side, tram stops, and the possibility of cyclist or pedestrians crossing. Driving his Lamborghini along it having right of way did not mean that reasonable care did not require him to not only keep within the speed limit but drive in a manner that anticipated that other road users might act unpredictably, and in particular might not give way to him travelling in excess of the speed limit.
43 Finally, the defendant argued that Mr Kol could have avoided the collision by steering to the left around the defendant’s vehicle. I find that in such a low car and at the speed it was still doing at the point of collision, he could not have negotiated the entrance into Dalley Street without damaging his car. I am satisfied that there was room to steer to the left of the defendant’s vehicle and stop or again move right before the commencement of the parked cars on the northern side of the road (as shown in a photograph taken soon after the collsion) had he continued to brake and decelerate. However, that would only have been a safe option if he could have had some confidence that the defendant’s car would not resume moving forward to try to clear his path. That raises the very reason why his driving was less than prudent because it did not allow for the unpredictable. I take into account Mr George’s opinion that the choice to steer right was unusual but may have been reasonable in the circumstances. I do not find that he acted unreasonably by not trying to steer to the left around the defendant’s vehicle.
44 As I find both drivers failed to take adequate care in their driving to avoid foreseeable risk of a collision, I must apportion their respective responsibility for causing the collision. In my view the fact that the defendant entered a carriageway in circumstances where he was obliged by road rules to give way to traffic travelling along that carriageway, and that he created the hazard of blocking part of the lane on which the plaintiff’s vehicle was travelling, makes him more responsible for the collision than Mr Kol. However, I find that Mr Kol’s failures to take reasonable care, in particular by speed, also significantly contributed to causing the collision. I apportion their respective responsibility 55% against the defendant and 45% against the plaintiff.
Loss of Use Claim by Plaintiff
45 The plaintiff claims damages for loss of use of the damaged car. The amount claimed in the amended statement of claim filed 20 November 2017 was $300,400 although exactly how that amount was calculated was not clear. This claim was based on Mr Kol having hired successive alternative vehicles from a business called Unique Car Rentals, initially a Lmaborghini Hurrican from 1 May until either 23rd or 31st August, 2017, at a rate of $66,000 per month (including GST), and then a Porsche Cayenne at a rate of $12,000 per month including GST. Invoices were issued monthly to the plaintiff, but none have yet been paid.
46 The defendant resists this part of the claim entirely, arguing not only that there is no evidence that the plaintiff has suffered any such loss, but also that there is no established need for the hiring of such alternative vehicles. Even if there were, it argues that those hired were at exorbitant rates, and there was no attempt to mitigate the plaintiff’s loss.
47 The plaintiff at that time held a motor car trader’s licence.
48 Prior to the collision, the Australian Taxation Office (“ATO”) had disputed that this Lamborghini Aventador was a stock car of the plaintiff’s business, and assessed a luxury car tax on it. Although the vehicle had been put on the market for sale at about the time of the ATO audit, it was being held as a collectable, although ultimately with a view to resale. To maximise its value, its kilometre usage was kept low, and Mr Kol says that he used to drive it about three times a week, mainly on weekends, locally and between home in Hawthorn and his work at Southbank. Insofar as the plaintiff company used this car for any other purpose, the only evidence about that was that it was occasionally hired out for promotional use, but only to be driven by Mr Kol or another of the plaintiff’s personnel, and again not in circumstances where substantial mileage would accrue.
49 For the following reasons, I find that the plaintiff’s claim for loss of use of the damaged Lamborghini fails.
(i) There is no evidence establishing any need by the plaintiff company to hire any alternative vehicle. Apart from Mr Kol’s private use of the vehicle, the only other evidence as to its use was that it was used for occasional promotions, but there is no evidence whatsoever that any such promotion was booked or likely to have been booked in the months following the collision during which the alternative vehicles were hired.
(ii) There was evidence that the plaintiff had in stock throughout the months following the collision a Lamborghini Hurrican, being the very type of car hired by Mr Kol at $66,000 per month from May to August. There is no evidence that the Hurrican owned by the plaintiff was unavailable to be used in place of the damaged one, whether for the plaintiff’s business such as promotions, or for Mr Kol’s personal use.
(iii) The hiring agreement with Unique Car Rentals was in Mr Kol’s personal name and not the plaintiff’s, and Mr Lam in writing up the agreement knew the importance of having the correct name of the hirer. Although the invoices were issued to the plaintiff, there is no evidence that the plaintiff company is legally liable to pay them. Indeed, so far all such invoices remain unpaid.
(iv) There is no evidence to indicate that Mr Kol had no other car already available for his personal use in place of the damaged car, whether another owned by him or his wife, or another car owned by the plaintiff.
(v) Mr Kol said that he used the hired Lamborghini more than he would have used the car which was damaged in the collision over the following months, because there was no need to keep the mileage low. This indicates that it was used for more than as a replacement for the damaged car.
(vi) There is no explanation for why an alternative car, namely the Porsche, continued to be hired after delivery of a brand-new Aventador in late August 2017. That car had been ordered approximately two years earlier, so was not ordered to replace the damaged car, but there is no evidence explaining the purpose of its purchase nor why it could not be used as a replacement for the damaged car from its delivery at the end of August 2017.
(vi) The only evidence as to the reason for the hiring of the alternative cars, was that Mr Kol says that the lawyer he initially consulted, two days after the collision, told him he was entitled to get a similar car. Mr Kol said that he would not have bothered if he could only get a car like a Holden Commodore as a rental[17]. He admitted that the only reason he hired the cars from Unique Car Rentals was that the lawyer told him he was entitled to get a similar car to the damaged one. I make no finding as to what Mr Kol was in fact told by his first lawyers about entitlement to recover for the cost of hiring a replacement vehicle while the damaged one was repaired or replaced.
[17]T 93, lines 5-12
50 I am not satisfied that the plaintiff has established on the evidence that it incurred the cost of hiring alternative vehicles, nor that the hire of either replacement vehicle was necessary. Moreover, even if such a need and liability had been established on the evidence, I would have found that this part of the claim was exorbitant, and there was no attempt by the plaintiff to mitigate its losses. Even hiring the Porsche from the outset would have been much less expensive. However, with the number of alternative vehicles in its stock – on Mr Kol’s evidence about 10 of the luxury car type, apparently including a Lamborghini Hurrican – I am satisfied that with reasonable steps to mitigate loss on the plaintiff’s part there would have been no need to hire any alternative vehicle.
Conclusion
51 For the reasons stated, I find that there was a failure to take reasonable care by both drivers and that each contributed to the cause of the collision and damage to each party’s vehicle. I apportion responsibility for causing that damage, 45% to the plaintiff’s driver and 55% to the defendant.
52 Accordingly, on the plaintiff’s claim I find that the plaintiff is entitled to judgement for 55% of the net loss of value in its car, being 55% of $695,000 (agreed market value of $1,000,000 less salvage value of $305,000), plus assessment fee of $495, namely $382,522.25. I am not satisfied that any entitlement to damages for loss of use of that damaged vehicle has been proven.
53 On the defendant’s counterclaim, I find that the defendant is entitled to judgement for 45% of $ 4,672.88 being $2102.80.
54 I will hear submissions about interest and costs.
SCHEDULE OF EXHIBITS
Prestigo Pty Ltd
-v-
Jackson
| Number and identifying mark on Exhibit | Short description of Exhibit | Court Book Reference |
| Exhibit 1 | VicRoads documentations as to sales to Prestigo Pty Ltd between 29 April and 1 September 2017 and copy of Schedule | 373-571 |
| Exhibit 2 | Correspondence relating to ATO audit of Plaintiff, November 2015-2016 | 201-203; 204-211; 212-215; 216-217 |
| Exhibit 3 | CarSales advertising | 263-268 |
| Exhibit 4 | Notice of order made in Magistrates Court at Melbourne on 31 March 2017 | 247 |
| Exhibit 5 | Claim form Patton Robbins 5 January 17 | 218-219 |
| Exhibit 6 | Roads Corporation Certificate relating to Mr Kol | 366-371 |
| Exhibit 7 | Disk of recording of numberplate LPSV after August 2017 | |
| Exhibit 8 | Three photos taken by defendant approximately five minutes after incident | 194; 195; 198 |
| Exhibit 9 | Report of Mr Mark George | 51-179 |
| Exhibit 10 | ASIC search of plaintiff as of 26/5/17 | 220-224 |
| Exhibit 11 | Business Licensing Authority certificate of registrar 1 February 2018 | |
| Exhibit A | Photo taken from Berkley Street of scene after collision | |
| Exhibit B | Sketch of intersection marked by Mr Kol | |
| Exhibit C | Copy Unique Car Rental agreement | 328-329 |
| Exhibit D | Five invoices to plaintiff from Unique Car Rentals | 332; 335; 338; 339 & 341 |
| Exhibit E | Copy of infringement notice |
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