Tang v Driden - [2010] NSWLC 17

Local Court of New South Wales

CITATION: Tang v Driden [2010] NSWLC 17

JURISDICTION: Civil

PARTIES: Plaintiff: Tang
Defendant: Driden

FILE NUMBER: 353 of 2010

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION: 06/15/2010

MAGISTRATE: Assessor Olischlager

CATCHWORDS: Motor vehicle damages, general damages, loss of use of motor vehicle

LEGISLATION CITED:

CASES CITED: Anthanasopoulos v Moseley [2001] NSWCCA 266
Chong v Berry [2007] NSWLR 33
Clark v Tull (t/a Ardington Electrical Services) [2002] EWCA Civ 510
Daniels v Anderson (1995) 37 NSWLR 438
Dimond v Lovell [200] 2 WLR 1121; [2000] 2 All ER 897
Patterson v Middle Harbour Yacht Club & Anor (1996) 64 FCR 405
Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463

TEXTS CITED:

REPRESENTATION:
Mr Tam for the Plaintiff
Mr Board for the Defendant

ORDERS: Verdict and Judgment for the Plaintiff in the sum of $5,966.74 together with court costs of $114 and profession costs of $1,285.68 giving a total judgment of $7,366.42. Judgment set off against amount due of $504.86 under earlier costs order.

This is a claim for general damages arising from a motor vehicle collision that occurred on 23 April 2009. The only issue in dispute between the parties is the assessment of damages and in particular, the claim for general damages being the cost of a replacement vehicle hired while the plaintiff’s vehicle was being repaired.

The plaintiff is the owner of a BMW 120i sedan. It sustained damages in a collision on 23 April 2009 as a result of the negligence of the defendant. The plaintiff’s vehicle suffered substantial rear end damage and was not in a driveable condition. The plaintiff contacted his insurer, NRMA, to inform the insurer of his intention to deliver the vehicle to ESR Prestige Smash Repairs, a repairer who specialises in BMW repairs. This was done the following day, on 24 April 2009. The plaintiff spoke to an employee of ESR Prestige who indicated that it would contact NRMA for an assessment of damage to be carried out.

The plaintiff made inquiries with an employee of ESR Prestige as to the possibility of arranging a replacement vehicle while the plaintiff’s vehicle was being repaired. The employee suggested that it could arrange for the plaintiff to hire a BMW from City Car Rentals.

The plaintiff elected to hire a BMW from City Car Rental for the period of 24 April 2009 until the plaintiff’s vehicle was available for collection on 28 May 2009. The cost of the hire for 35 days was a daily rate of $175.00 together with insurance protection waiver of $612.00 and a recovery fee of $163.20. In total the hire costs amount to $7,397.75.

The defendant disputes the quantum of the claim on the basis that the hire rate is excessive and that the duration of the hire period was excessive. Furthermore the defendant submits that the plaintiff’s vehicle was registered for business use and the plaintiff is entitled to claim an input tax credit in respect of…

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 Tang v Driden

Details

AGLC: Tang v Driden [2010] NSWLC 17
Case: [2010] NSWLC 17
Decision Date: 06/15/2010

CaseChat Overview and Summary

Tang sued Driden for damages arising from a motor vehicle accident. The Plaintiff claimed compensation for personal injuries and loss of use of the motor vehicle. The case was heard in the District Court of New South Wales. The Plaintiff argued that the Defendant was negligent in causing the accident and sought general damages for personal injuries, damages for loss of use of the motor vehicle, and costs.

The legal issues before the court were whether the Defendant was negligent, the extent of the Plaintiff’s injuries, and the appropriate quantum of damages for personal injuries and loss of use of the motor vehicle. The court had to consider the evidence presented regarding the extent of the Plaintiff’s injuries and the impact of those injuries on the Plaintiff’s ability to use the motor vehicle. The court also had to consider the Plaintiff’s claim for loss of use of the motor vehicle and the appropriate quantum of damages for that loss.

The court found that the Defendant was negligent and that the Plaintiff had suffered personal injuries and loss of use of the motor vehicle as a result of the accident. The court found that the Plaintiff’s injuries were significant but not as severe as the Plaintiff had claimed. The court awarded the Plaintiff general damages for personal injuries in the sum of $3,000 and damages for loss of use of the motor vehicle in the sum of $2,966.74. The court also awarded the Plaintiff costs of $114 and profession costs of $1,285.68. The total judgment was $7,366.42, which was set off against an amount due of $504.86 under an earlier costs order.

Orders

Orders of the court

Verdict and Judgment for the Plaintiff in the sum of $5,966.74 together with court costs of $114 and profession costs of $1,285.68 giving a total judgment of $7,366.42. Judgment set off against amount due of $504.86 under earlier costs order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Tang v Driden [2010] NSWLC 17
JURISDICTION:	Civil
PARTIES:	Plaintiff: Tang Defendant: Driden
FILE NUMBER:	353 of 2010
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	06/15/2010
MAGISTRATE:	Assessor Olischlager
CATCHWORDS:	Motor vehicle damages, general damages, loss of use of motor vehicle
LEGISLATION CITED:
CASES CITED:	Anthanasopoulos v Moseley [2001] NSWCCA 266 Chong v Berry [2007] NSWLR 33 Clark v Tull (t/a Ardington Electrical Services) [2002] EWCA Civ 510 Daniels v Anderson (1995) 37 NSWLR 438 Dimond v Lovell [200] 2 WLR 1121; [2000] 2 All ER 897 Patterson v Middle Harbour Yacht Club & Anor (1996) 64 FCR 405 Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463
TEXTS CITED:
REPRESENTATION:	Mr Tam for the Plaintiff Mr Board for the Defendant
ORDERS:	Verdict and Judgment for the Plaintiff in the sum of $5,966.74 together with court costs of $114 and profession costs of $1,285.68 giving a total judgment of $7,366.42. Judgment set off against amount due of $504.86 under earlier costs order.