Tehan v Saric - [2010] VSC 175

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

JUDICIAL REVIEW AND APPEALS LIST

No. SCI 2009 08412

SHAYNE TEHAN	Appellant
v
PETER SARIC	Respondent

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATES OF HEARING:	23 April 2010
DATE OF JUDGMENT:	23 April 2010
CASE MAY BE CITED AS:	Tehan v Saric
MEDIUM NEUTRAL CITATION:	[2010] VSC 175

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APPEAL – Magistrates’ Court of Victoria – negligence – damages - motor vehicle accident – defendant admitted driving negligently – vehicle repaired without written authorisation – legislative prohibition on charging for repair works – whether owner can still obtain damages for repair costs – whether refusal of claim involved error of law - Accident Towing Services Act 2007, ss 153 and 154 – Magistrates’ Court Act 1989, s 109(1).

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APPEARANCES:	Counsel	Solicitors
For the appellant	Mr N Kenyon	AB Legal
For the respondent	Mr G M Randall	Russell Kennedy Lawyers

HIS HONOUR:

Shane Tehan’s motor vehicle was badly damaged in an accident caused by Peter Saric’s negligent driving. He sued Mr Saric in the Magistrates’ Court of Victoria for damages totalling $29,091.67, which included about $24,000 for repairing the vehicle.

As Mr Saric admitted driving negligently, his liability to pay such damages would not usually have been in question. However, Mr Tehan did not actually pay for repairing the vehicle. As the repairer failed to obtain his written authorisation, there was a legislative prohibition on charging him for the work. The magistrate who heard Mr Tehan’s claim awarded him only $4,598 for a hire car. The claim for repairing the vehicle was refused because, in the magistrate’s view, he had suffered no such loss

Mr Tehan now appeals under s 109 of the Magistrates’ Court Act 1989 from the magistrate’s decision. He contends the magistrate made an error of law. After other grounds were abandoned, there is only one to be determined: whether the magistrate erred in law in refusing the claim for the costs of repair.

Turning to the legislation, s 153(1) of the Accident Towing Services Act 2007 criminalises repairing a vehicle without the approval in writing of the owner. Under s 153(2), the repairer cannot sue for or recover any sum or charge for carrying out repairs. If, contrary to these provisions, the repairer recovers such a sum or charge, it must be returned as soon as practicable. Under s 153(5), failing to do so is also a criminal offence. Section 154(1) creates a three day cooling off-period.

These provisions are in Part 5 of the Act. The purpose of that Part is to regulate the provision of towing and repair services to the owners of damaged motor vehicles. To overcome the ‘tow truck wars’ which used to occur at the scene of motor vehicle accidents, the legislation now regulates the provision of towing and repair services. A prohibition on charging owners without written authority has been introduced to protect owners. Previously they had to make on-the-spot decisions in difficult circumstances. Now the authority…

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 Tehan v Saric

Details

AGLC: Tehan v Saric [2010] VSC 175
Case: [2010] VSC 175
Decision Date: 23 April 2010

CaseChat Overview and Summary

In the case of Tehan v Saric, the parties involved were Tehan, the plaintiff, and Saric, the defendant. The dispute arose from a motor vehicle accident where Saric admitted to driving negligently. Tehan sought damages for the cost of repairs to his vehicle, which was repaired without written authorisation. The case was heard by the Magistrates’ Court of Victoria, which was tasked with determining whether Tehan could still claim damages for the repair costs, given the legislative prohibition on charging for such repairs without authorisation.

The primary legal issues the court had to decide were whether the statutory prohibition on charging for repair works without written authorisation precluded Tehan from recovering the repair costs as damages, and whether the Magistrates' Court made an error of law in dismissing Tehan's claim. The court examined the relevant provisions of the Accident Towing Services Act 2007, specifically sections 153 and 154, which prohibit towing service providers from incurring expenses on behalf of vehicle owners without written authorisation, and compared these with the Magistrates’ Court Act 1989, section 109(1), which deals with the court’s power to award damages.

The court found that the statutory provisions in the Accident Towing Services Act did not explicitly prohibit a vehicle owner from recovering repair costs as part of damages for a motor vehicle accident. It concluded that the statutory provisions were concerned with regulating the conduct of towing service providers, not with the rights of vehicle owners to seek compensation. Furthermore, the court held that the refusal of the claim involved an error of law, as it had misinterpreted the application of the statutory provisions to the recovery of damages. Consequently, the court allowed the appeal and remitted the matter to the Magistrates' Court for reconsideration of Tehan’s claim for damages.

The final orders of the court included allowing the appeal, setting aside the decision of the Magistrates’ Court, and remitting the matter for reconsideration in accordance with the court's findings. This decision clarified that the statutory prohibitions on incurring repair costs without authorisation do not prevent a vehicle owner from claiming such costs as part of damages in a negligence action, provided the statutory context is properly understood.

Orders