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Saric v Tehan

Saric v Tehan

Case [2011] VSCA 421 15 December 2011

Negligence

Compensatory Damages

Tort Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0061

PETER SARIC
	Appellant
v
SHAYNE TEHAN	Respondent

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JUDGES:	MANDIE and HARPER JJA, ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 August 2011
DATE OF JUDGMENT:	15 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 421
JUDGMENT APPEALED FROM:	Tehan v Saric [2010] VSC 175 (Bell J)

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TORT – Damages for negligence – Motor vehicle accident – Defendant admitted driving negligently – Legislative prohibition on charging for or recovering repair costs from owner where vehicle repaired without written approval – Whether the resulting value of the benefit to the owner should be taken into account in the assessment of damages – Accident Towing Services Act 2007, s 153.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M D Wyles SC with Mr G M Randall	Russel Kennedy
For the Respondent	Mr H J Langmead SC with Mr N Kenyon	AB Legal

MANDIE JA:

Introduction

The respondent’s motor vehicle was badly damaged in an accident caused by the appellant’s negligent driving. The respondent sued the appellant in the Magistrate’s Court for damages totalling $29,091.67. That amount comprised a little over $24,000 for repairing the vehicle, together with some smaller amounts for towing services and an assessment fee (hereinafter called ‘repair costs’) and $4,598 for a replacement hire car. The Magistrate awarded the respondent only $4,598 for the costs of the hire car. The repair costs were disallowed by the Magistrate on the basis that the respondent had suffered no loss in relation to them because the repairer was not entitled to recover them from the respondent as a result of the application of provisions contained in the Accident Towing Services Act 2007 (Vic) (‘the Act’). The repairer had carried out the repairs without the approval in writing of the respondent and was thus not entitled to sue for or recover any sum or charge for those repairs by virtue of s 153 of the Act.

The respondent appealed under s 109 of the Magistrate’s Court Act 1989 and a judge in the trial division allowed the appeal, holding that the respondent was entitled to the full amount claimed, including the repair costs. The appellant now appeals (by leave)[1] from that decision.
[1]Leave to appeal was granted by Neave and Bongiorno JJA on 22 July 2010.

Relevant Provisions of the Accident Towing Services Act

Section 3(1) of the Act relevantly defines an ‘accident damaged motor vehicle’ to mean a motor vehicle that has been damaged as the result of a road accident so that the motor vehicle cannot be driven safely on a road[2] and a ‘road accident’ to mean an impact or collision of one or more motor vehicles on a road.
[2]Or ‘cannot be driven on a road without compromising the safety of other road users.’

Section 153 of the Act relevantly provides as follows:

(1)A person must not commence or carry out repair work on an accident damaged motor vehicle without the approval in writing of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saric v Tehan

Details

AGLC: Saric v Tehan [2011] VSCA 421
Case: [2011] VSCA 421
Decision Date: 15 December 2011

CaseChat Overview and Summary

The case before the court involved a motor vehicle accident where the defendant admitted to driving negligently. The plaintiff sought damages, including for the costs of repairing his vehicle. The defendant argued that the plaintiff could not recover these costs due to the legislative prohibition under the Accident Towing Services Act 2007, which disallowed the charging for or recovery of repair costs from the owner if the vehicle was repaired without written approval. The plaintiff contended that, despite the legislative prohibition, the benefit to him as the owner should still be considered in the assessment of damages.

The court had to determine whether the legislative prohibition precluded the plaintiff from recovering the value of the benefit he received from having his vehicle repaired, even though he could not directly claim the repair costs. The central issue was whether the legislative framework entirely barred the plaintiff from any recovery related to the repair of his vehicle, or if it merely limited the form in which such recovery could be pursued.

In resolving the matter, the court concluded that the legislative prohibition did not entirely bar the plaintiff from recovering the value of the benefit he received from the repair of his vehicle. The court held that while the plaintiff could not claim the repair costs directly, the benefit to him as the owner should be taken into account in assessing the damages. This interpretation allowed the plaintiff to recover the value of the benefit under the broader principles of tort law, rather than through the specific claim for repair costs disallowed by the statute.

The court's decision ensured that the plaintiff could recover the value of the benefit from the repair of his vehicle, aligning with the legislative intent to prevent the charging of repair costs without written approval, but not to entirely deny the benefit derived from such repairs.

Orders