Te Haara v Nguyen

[2023] NSWLC 6

Local Court

New South Wales

Medium Neutral Citation:

Te Haara v Nguyen [2023] NSWLC 6

Hearing dates:

7 March 2023

Decision date:

16 June 2023

Jurisdiction:

Civil

Before:

Brender LCM

Decision:

Verdict for the Plaintiff

Catchwords:

TORT — motor vehicle accident — negligence —loss of amenity — reasonableness of mitigation — equivalent replacement vehicle

Cases Cited:

Arsalan v Rixon [2021] HCA 40

Stocovaz v Fung [2007] NSWCA 199

Dimond v Lovell [2002] 1 AC 384

Category:

Principal judgment

Parties:

Caroline Jean Te Haara (Plaintiff)
Daniel Nguyen (Defendant)

Representation:

Counsel:
C Carter (Plaintiff)
K Oliver (Defendant)

File Number(s):

2022/00123851

Publication restriction:

Nil

JUDGMENT

1. The plaintiff was the owner of a vehicle damaged as a result of the negligence of the defendant. The repairs took some time to complete. The dispute is about the quantum of the cost of hire of a replacement vehicle. The vehicle was a 2015 Alfa Romeo Giulietta “Quadrifoglio” four door hatch. The plaintiff’s evidence was that the damaged vehicle had a manual transmission, and that she purchased it second hand in January 2020 for just under $20,000. At that time, it had an odometer reading of about 43,000 km. The plaintiff firstly hired an Audi A4 sedan from Inner West Car Rentals. She returned the Audi A4 and exchanged it for a BMW 318i as she was not comfortable driving it. These are not part of the claim.

2. On 12 November 2021, the plaintiff entered into a rental agreement with Right 2 Drive Pty Ltd (R2D) to supply her with a replacement motor vehicle, a Mercedes A180 Hatch (the Mercedes) for her unrestricted use while the Alfa was being repaired. The rental agreement provided for the Mercedes to be charged at a base rate of $230 per day, resulting in an inclusive daily rate of hire of $319 per day; the plaintiff used the Mercedes from 12 November 2021 to 18 March 2022 (a period of 126 days), the later date being when the Alfa was fully repaired and returned to the plaintiff. The cost of hiring the Mercedes for a period of 126 days was in the amount of $40,342.50 and the plaintiff seeks recovery of these mitigation expenses as special damages.

3. A tortious wrongdoer in a motor vehicle case such as this, is liable to pay the wronged party general damages for the inconvenience caused by the tort. However if the wronged party acts to seek to mitigate that damage, by for example hiring a replacement vehicle, the wrongdoer will be liable for special damages measured by the cost of expenses reasonably so incurred, unless, broadly, those steps taken in mitigation are shown by the wronged party to have been unreasonable (see generally Arsalan v Rixon [2021] HCA 40 (“Arsalan”)). In such a case there would need to be a reduction so that no more than what was or ought have been reasonably incurred is awarded.

4. The plaintiff submitted that once standing to sue and inconvenience and or loss of amenity is established…