Toman v Sharkway

[2006] NSWLC 33

Local Court of New South Wales

CITATION:	Toman v Sharkway [2006] NSWLC 33
JURISDICTION:	Civil
PARTIES:	Raymond Daniel Toman Hossam Sharkway Therese Sharkway
FILE NUMBER:	6955/05
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	08/21/2006
MAGISTRATE:	Magistrate M Quinn
CATCHWORDS:	Civil claim - Motor vehicle accident damage claim - Expert evidence
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Kirch Communications Pty Ltd v Gene Endineering Pty Ltd (2002) NSWSC 485 Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No.3) (2001) 1 WLR 2337 Fagenblat v Feingold Partners Pty Ltd (2001) VSC 479 Collins Thomson v Clayton [2002] NSWSC 366 ASIC v Rich (2005) 218ALR 764 Commonwealth Development Bank of Australia Pty Limited & Anor v Claude george Rene Cassegrain; Gerald Cassegrain & Co Pty Limited & Ors v Commonwealth Development Bank of Australia Pty Limited & Ors (2002) NSWSC 980 Barak Pty Limited v W T H Pty Limited Trading As Avis Australia (2002) NSWSC 649 Makita v Sprowles (2001) NSWCA 305 National Justice Companions Naviera SA v Prudential Insurance Co Ltd ("The Ikarian Reef') (1993) 2 Lloyd's Rep 68 Quick v Stoland (1998) 1200 FCA; 157 ALR 615 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) FCAFC 157 Darbishire v Warran (1963) 1 WLR 1067 The "Pactolus" 116 ER 1079 (1856) British Westinghouse Electric and Manufacturing Company Limited v Undergrounds Electric Railways Company of London Limited [1912] AC 673 Payzu Limited v Saunders [1919] KB 581 Dunkirk Colliery Company v Lever [1878] 9 Ch D 20 Koon Shuen Young v Waters. Dare LCM 6/10/05
REPRESENTATION:	Mr Gower - Solicitor Mr manion - Counsel CKB Partners - Solicitors
ORDERS:	Judgment for the plaintiff against the second defendant in an amount of $7,983.62. The plaintiff's action against the first defendant be dismissed. The second defendant to pay the plaintiff's costs as agreed or assessed. The plaintiff to pay the costs of the first defendant as agreed or assessed.;

Reasons for Decision

The plaintiff sues the defendants by statement of liquidated claim for an amount of

$7945.14

for the cost of repairs to his motor vehicle (vehicle) including towing and assessor’s fees. The vehicle is a 1996 Mitsubishi Magna registration number TNT 300. The owner of the vehicle is the first defendant and the driver at the time of the collision on 5 November 2004 was the second defendant (the defendant) who admits liability.

The vehicle was towed to Maroubra Automotive Refinishers Pty. Ltd. (MAR) at a cost of $170.80. The cost of car hire during the repair period was $702.45. On 8 November 2004 MAR prepared an estimate of repair costs. Mr. Wild, a loss assessor, amended that assessment, with some minor deductions, to $7,110.67 as a fair and reasonable cost to reinstate the vehicle to its pre accident condition.

The defendant through his motor insurer AAMI disputes the quantum of the repairs carried out by MAR. The vehicle, the defendant stated, was a write off however, if repairs were to be carried out, a figure of a little under $5,000 was estimated as reasonable. Some parts of the defence were not pressed, eg questions of retainer. Also in dispute is the cost of a hire car and the assessor’s fee included in the damages claimed. That figure, the defendant states, should properly be disbursement in any award for costs.

Mr. Nunn, the defendant’s loss assessor, inspected the vehicle on 26 November 2004 after the repairs were completed. He prepared a detailed report that was amended during the hearing in relation to the market value of the vehicle at the time of the collision. A guide called the Glasses Guide lists vehicle values that are accepted by both the plaintiff and defendant as commonly used in the motor industry by car dealers. Mr. Nunn’s report stated that the vehicle was a 1997 model with a value of $8,500. He acknowledged that it was a 1996 model with a value of $7,600. The air conditioner in the vehicle increased the value by a further $700 bringing the total pre accident value according to the defendant to $8,300 prior to any adjustments for the condition of the vehicle. One such adjustment related to the mileage recorded on the vehicle speedometer.

Mr Nunn noted that the kilometres registered on the speedometer were over 250,000 and the Glasses Guide provided an average kilometre for a 1996 vehicle at 124,000. The guide also listed a $2,840 figure to be deducted for 60,000 kilometres travelled in excess of the average. Mr. Nunn said he adjusted the figure to be deducted to take into account the 136,000 excessive kilometres after telephone contact with someone connected with the Glasses Guide. The initial deduction was $6,520 and this was amended to $5,950 to take into account the earlier year of manufacture and additional mileage allowed as an average resulting in a value of $2,350. The final pre accident value after further deductions of $500 for salvage value and $500 for prior unrelated damage to the bumper bar was $1,350

In Mr. Wild’s assessment made no reference to the speedometer as he stated the fusible link was broken. He noted that he had not recorded the kilometres on the speedometer and agreed in evidence that that the speedometer was a manual. He stated that he had turned his mind to the pre accident value of the vehicle and that the car was a good quality motor vehicle.

In Mr Nunn’s view, a fair and reasonable cost of repair would have been $4,926.68. However, he was of the belief that given the overall average condition of the vehicle and his final value of $1,350, the vehicle should not have been repaired at all.

The defendant submitted that Mr. Nunn provided the only expert evidence in this case and that his evidence should be accepted. On 6 July 2006, I gave a decision in Petroni v. Pratts . While the facts were different, I considered similar questions of law to those arising in this case. I was also referred to other recent decisions of the Local Court covering similar points. All parties and I agree that none of those decisions bind me however, I find it convenient to refer to the law and questions I considered in Petroni v. Pratts (supra) in relation to expert evidence; whether or not the plaintiff has proved his case on the balance of probabilities; the question of mitigation; the vehicle repairs and whether in the circumstances it was economical to do so? If the answer to that question is “yes”, were the costs of repair fair and reasonable? .

In relation to the first question, the defendant challenged the admissibility of the evidence of Mr. Wild, the plaintiff’s loss assessor, on various grounds. Was his opinion independent, that is, was the opinion expressed by Mr. Wild objective and unbiased? Were the facts and assumptions founding the report sufficiently exposed? The defendant also submitted that Mr Wild’s evidence was inadmissible because there was no acknowledgement or agreement to be bound by the Expert Witness Code of Conduct (the expert code). The written material comprised a repair quotation of MAR marked and amended by Mr. Wild and his affidavit.

I will consider the admissibility of Mr. Wild’s, the plaintiff’s loss assessor, evidence first.

The question of bias.

The defendant argued that the long professional relationship between MAR and Mr Wild was sufficient to establish bias. The question of the admissibility of biased evidence has been considered in many cases.

In Kirch Communications Pty Ltd v Gene Engineering Pty Ltd (2002) NSWSC 485 (Kirch) similar questions to those raised in this case. Part of an affidavit attaching a report prepared by a director of a respondent company to a statutory demand was challenged. The report had been prepared for the purpose of being sent to loss adjusters engaged by insurers of a damaged winch the subject of the dispute between the two parties. The evidence was that of a director of one of the party companies. It was this close connection that founded the basis for the challenge to the independence of the evidence.

The plaintiff in Kirch relied on Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg(No.3) (2001) 1 WLR 2337. In that case the evidence of an expert witness who was a long-standing friend of the defendant was rejected. The Court [at 13]:

“I accept that neither section 3 of the 1972 Act [the Civil Evidence Act 1972] nor the authorities under it expressly exclude the expert evidence of a friend of one of the parties. However, in my judgment, where it is demonstrated that there exists a relationship between the proposed expert and the party calling him, which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted, however unbiased the conclusions of the expert might probably be.”

That decision was not followed in Fagenblat v Feingold Partners Pty Ltd (2001) VSC 479 where the evidence of a brother-in-law of one of the parties was considered. Pagone J said [at 7]:

“An expert witness has a special and important role in judicial proceedings to assist the Court by provision of objective and unbiased opinions about matters that bear upon the determination which the Court is called upon to make.

The exclusion of an expert's evidence should only occur when the Court is satisfied that the evidence to be led by the expert is unsound and cannot provide probative material of value to the court's task of determining the issues in the proceedings.
The possibility of a witness having a bias in favour of a party (directly or indirectly) is undoubtedly a matter to be taken into account by a court when deciding what weight to give to the expert evidence, but it is not a ground for rejecting evidence that may be of assistance to the Court in reaching the correct result".

His Honour went on to say that,

”While it is undoubtedly the task of the Court to do justice between the parties, and necessary for the court to be not only independent, but perceived to be independent, a biased witness does not impugn the independence of the decision-maker. Rather, any bias is a matter to be taken into account as a matter of weight in assessing the evidence, not as a matter of admissibility".

Mr Wild gave evidence that he had been a Loss Assessor for many years. He was engaged by Mr Schumack of MAR to provide an independent loss assessment on Mr. Schumack’s assessment of costs for repairs. It is the amount of the amended assessment that is in contention. Mr. Schumack stated that Mr. Wild had attended MAR since 1978 however, MAR had only used his services for approximately four years. Mr. Schumack said that he was in business to make a profit and that he wished to be paid for what he did. In answer to a question regarding the retainer to Mr Wild to provide an amended assessment and whether or not it was to justify the cost of the repairs should the matter go to Court, Mr. Schumack said “well actually I never thought we would go to court … but my reasons for using any loss assessor is to confirm that we are not overcharging.” I accept his evidence as truthful and reliable.

I am satisfied that the evidence establishes a working relationship between MAR and Mr. Wild. Of the 25 assessments he prepares each week, only one was prepared for MAR. There was no evidence before the Court that Mr Wild was not independent when provided his amended assessment to the MAR repair quote. Mr. Wild prepared it prior to the repair and before the commencement of litigation. I do not accept that the evidence establishes bias and, in any event, the question of bias or connection between parties, if there is any, must be considered together with s.79 of the Evidence Act 1995.

That section is expressed in broad terms. It states:-

“79 Exception: opinions based on specialised knowledge

If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

As stated by Austin J in Collins Thomson v Clayton – [2002] NSWSC 366 “the section does not in terms articulate any requirement that the expert must be independent of the party to the proceedings who wishes to adduce the expert’s evidence”(see para 16).

The issue of whether or not Mr Wild is independent would only go to weight, not to admissibility. The relationship between MAR and Mr. Wild, I am satisfied was of a professional nature only. As stated in ASIC v Rich (2005) 218ALR 764 and in Collins (supra) the question raised may require consideration in a Court’s exercise of its discretion under ss.135 and 136 of the Evidence Act 1995 to exclude evidence but not to admissibility. (See also Fagenblat v Feingold Partners Pty Ltd (2001) VSC 454 where it was found that even where there are grounds for suspecting that an expert may be biased, it was not sufficient to require the expert’s evidence to be excluded. Collins (supra)). No application under ss.135 or ss136 was made, nor would it appear appropriate on these facts.

The admissibility of an expert report where there is non-compliance with the Expert Code of Conduct.

The defendant states that Mr. Nunn has provided the only expert evidence in the case. He has signed the expert code of conduct and attached it to his report. It was prepared shortly after the repairs were completed.

Under the Uniform Civil Procedure Rules 2005 Regulation 31.23 there is provision and requirement for an expert engaged as a witness to be provided with and to read the code of conduct. An expert is required to agree to be bound by it. If an expert’s report does not contain such acknowledgments and agreement, the report is inadmissible in evidence, unless the Court orders otherwise.

“Expert Witness” is defined as:-

“An expert engaged for the purposes of

(a) providing a report as to his or her opinion for use in evidence in proceedings, in proposed proceedings, or

(b) giving opinion evidence in proceedings or proposed proceedings.

As I have stated Mr Wild amended the MAR assessment for repairs shortly after the collision and before litigation. To adopt the words of Campbell J in Kirch it “does not seem to me that that definition of “expert witness” is able to catch the situation involved here, where an officer of a party, not engaged for any particular purpose, has, at a time before court proceedings were contemplated, expressed an expert opinion in a report, and that report is tendered in later proceedings.”

Mr Wild was not requested to adopt the code at Court. There is some authority on this point, see Commonwealth Development Bank of Australia Pty Limited & Anor v Claude George Rene Cassegrain; Gerald Cassegrain & Co Pty Limited & Ors v Commonwealth Development Bank of Australia Pty Limited & Ors (2002) NSWSC 980.

In that case an expert was engaged for the purpose of giving opinion evidence in proceedings against the bank. The expert witness had not signed the acknowledgment required to be included in an expert’s report pursuant to Part 36 Rule 13 C(2) of the Supreme Court Rules. It is not necessary to set out that part but suffice to say that the Uniform Civil Rules follow that Part.

The expert witness in Commonwealth Development Bank (supra) was not aware of the Code. During a voir dire the witness agreed to be bound by the Code and also said that, for the purpose of the opinions expressed in the report, the report was accurate and not incomplete. The Court was referred to the decision of Barak Pty Limited v W T H Pty Limited Trading As Avis Australia (2002) NSWSC 649, where a similar problem had arisen. The witness, an architect, had annexed a report which did not contain the relevant acknowledgment nor agreement to be bound by the Expert Code of Conduct.

The witness in Barak (supra) gave evidence that he was aware of the Code of Conduct and that he had complied with its requirements during the preparation of the opinion. The Court was satisfied with the expert’s unequivocal statements and that they were sufficient to relate back to the time he prepared his report.

In Commonwealth Development Bank (supra) the Court refused to make an “otherwise order”. It said:-

“In my view the problems which confront the opposing party when such an otherwise order is sought, clearly include, importantly, the fact that an expert not having committed to the Code Of Conduct at or as soon as practicable after his or her engagement in circumstances such as the present, will have committed to a particular form of opinion.”

The Court also stated that it should not, without exceptional cause, permit an otherwise order to be made:-

“For one thing, the form of the report may well have been quite different. For another thing, the report may have been qualified. In the interests of justice in complex commercial litigation before the Supreme Court of New South Wales, where the provisions of the Part 36 Rule 13C and Schedule K regime have been in place for some time, the court should not, without exceptional cause, permit an otherwise order to be made.”

As also stated, the proper exercise of a discretion is determined on its own facts, merits, matters and circumstances and where an otherwise order is made other applications to exclude it based on s.135 of the Evidence Act 1995 may be involved.

It would appear that the knowledge of the code and the impact of it on the nature, quality and transparency of a report may have been of relevance to the making of an “otherwise” order.

Mr Wild’s loss assessment document was not made “for the purpose of giving an opinion in proceedings or proposed proceedings”. In the circumstances of this case, the fact that Mr Wild did not acknowledge or agree to be bound by the expert code is not a ground for the exclusion of his affidavit evidence nor his oral evidence.

Application to reject plaintiff’s expert evidence for failure to meet the duties and responsibilities of expert witnesses in civil cases.

In Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305 and also to ASIC v. Rich (supra) Hayden JA referred to National Justice Companions Naviera SA v Prudential Insurance Co Ltd (“The Ikarian Reef”)(1993) 2 Lloyd’s Rep 68, which listed the duties and responsibilities of expert witnesses in civil cases. What is required is, amongst other things, that the reasoning process leading to the formation of the opinion be exposed.

The Evidence Act 1995 does not contain a provision that reflects the common law rule that the admissibility of expert opinion depends upon proper disclosure and proof of the factual. As stated in Quick v Stoland (1998) 1200 FCA; 157 ALR 615 at 617 :-

“The Act does not contain a provision which reflects the common law rule that the admissibility of expert opinion depends upon proper disclosure and proof of the factual basis of the opinion. This is not an accidental omission. The ALRC considered no such pre-conditions to admissibility of expert opinions should be imposed.”

It is clear that the determination of this issue of admissibility should not be made until all the evidence is complete. In ASIC v Rich (2005) NSWCA 152 at 136 Spigelman CJ quoted the following paragraph from Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) FCAFC 157 at 16: 55 IPR 254 at 359:

“The requirement than an expert opinion be wholly or substantially based on the witness’s specialised knowledge is not, in my view, intended to require a trial judge to give meticulous consideration, before ruling on the admissibility of the evidence of the opinion, to whether the facts on which the opinion is based form a proper (in the sense of logically or scientifically or intellectually proper) based for the opinion. Were the position otherwise the smooth running of trial involving expert evidence could be expected to be interrupted by the need to explore in detail, the context of admissibility, matters more properly considered at the end of the trial in the context of the weight to be attributed to the evidence. It is sufficient for admissibility, in my view, that the trial judge is satisfied on the balance of probabilities on the evidence and other material before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge. (see discussion also in the Judicial review 7 (2006) 329 ‘Expert Evidence, the Honourable Frank Marks).

A Court must first consider the degree of reliability of the application of the field of expertise to the particular issue in question. Mr Wild’s qualifications and experience as a loss assessor are sufficient to bring him within the exception to s.79 of the Evidence Act 1995, that is, opinion evidence is inadmissible unless the person has the relevant experience. In evidence, Mr Wild stated that has he own business “P & R Assessments South”. Prior to that time he was motor vehicle loss assessor for Royal Sun Alliance Insurance for twenty-two years. He performs some 25 vehicle assessments per week. It is clear Mr. Wild has specialised knowledge on which to base an opinion.

As stated earlier, Mr Wild’s assessment and opinion of the fair and reasonable cost of repair was prepared pre-litigation and based wholly on his specialised knowledge and the cost base relying on the Motor Trades Association (MTA) Repair Times Manual. Both parties accept that the MTA repairs guide lists accepted times/charge for repairs within the motor industry.

In ASIC v. Rich (supra) the Court makes it plain that whether or not the opinion is based on the “true factual basis” or an “asserted factual basis” approach goes only to weight not admissibility. I am satisfied that the evidence of Mr. Wild is admissible.

The Loss Assessor’s Evidence.

As stated, this case is about the damage to a car and its subsequent repair. The dispute concerns the cost of the repair to that car and whether or not those repairs were fair and reasonable, economical or uneconomical or necessary in the circumstances.

Both Mr. Nunn and Mr. Wild based their opinions relating to the time of each repair and subsequent cost on the MTA manual. It outlines hourly rates for labour and for various repairs. In relation to paint work, for example, different amounts and times are specified depending the type of paint applied to a vehicle. Labour rates range from $27 p/hr to $32 p/hr and paint rates from $45 p/hr to $70 p/hr.

Mr. Nunn, the defendant’s expert witness, is a licensed motor vehicle panel beater and painter and a qualified motor vehicle loss assessor. He has worked as a tradesman, run his own smash repair business and has demonstrated technical equipment. At the time of preparing his report, Mr Nunn was employed by Australian Associated Motor Insurers (AAMI).

In evidence Mr. Nunn, stated that he had signed the code of conduct attached to his report but was not familiar with it. I did not take that comment to mean that he does not understand the code. Mr. Nunn, prepared a thorough report that set out the areas of disagreement with the amended assessment of Mr. Wild. He included colour photographs to support his reasons for opinion. Mr. Nunn gave extensive and detailed evidence regarding the processes that could be used during a car repair like that undertaken on the plaintiff’s vehicle. He provided calculations of time and the rate required for the repair, that is, the cost he considered fair and reasonable in the circumstances.

It was suggested by the plaintiff that Mr Nunn, as a loss assessor for AAMI, performed his assessment of the repairs with a view to decreasing any assessment already made and relied upon in favour of his employer. Mr Nunn was under instructions from his Manager, Mr. Sajic, to view the car and prepare a report. Those instructions were not available to the Court. He agreed that his role was to maximise the profit of his employer. However, at all times during his evidence it was apparent that Mr. Nunn made every effort to answer questions regarding the repair process and how his opinion was formed. Questions were asked of him regarding the application of the hourly rates set out in the MTA Repair Times Manual against item in his report. In my view there can be no criticism of him in relation to a lack of knowledge of how the hourly rates in the MTA manual were determined nor the figures in the Glasses Guide. This is particularly so when not only Mr. Nunn but Mr. Wild relied upon the same material to form an opinion regarding the fair and reasonable cost of repair.

I accept that Mr. Nunn in expert in his field and that he made every effort to explain the process to the Court in an independent manner. In this regard Mr. Nunn said that when he was a licensed panel beater he was in a position to observe and watch every job because the panel shop was small. He agreed that this ability would depend on the size of the panel shop.

In the MAR workshop there are 30 cars on the floor and Mr. Schumack acts in a supervisory role and depends on his tradesmen. While Mr Schumack did not actually perform the repair work, he answered questions regarding the difference in opinion between the estimates he and Mr. Wild made and those of Mr. Nunn in depth. The areas of dispute were wide and varied and covered the need to remove engine parts, panels, the existence of tool marks, sander marks, damage creases and replacement parts. Reference was made to skirt extensions under the bonnet, plemun panels, paint overspray, masking, the time taken and the dollar figure for repair. In relation to the time allowed by the Motor Traders Association for repair Mr Schumack said that “across the board they’re not bad” as a guide only. For example the time allowed in the guide for the removal of a panel may not be sufficient where a panel is damaged. Mr. Schumack said that every repair job was different some repairs may take more time some less.

Mr. Wild, Mr. Schumack and Mr. Nunn were, in my view, honest witnesses. I bear in mind that Mr. Nunn’s assessment was prepared after the repairs by MAR were complete.

Was the repair of the vehicle uneconomical

?

The defendant submitted that the vehicle should have been written off and not repaired at all. Reference was made to Darbishire v Warran (1963) 1 WLR 1067 as the leading authority that a plaintiff is not entitled to affect uneconomical repairs to a chattel and request the defendant to pay. The plaintiff accepts this principle.

In Darbishire (supra) the plaintiff owned an unusual car that was kept in good condition. It was badly damaged following a collision. Despite advice from the repairer and insurers that repairs would be “uneconomical” the plaintiff had the car repaired. The particular model of car was not available on the market however, similar models were available at a cost of ₤80 - ₤100. The owner preferred his own car which was reliable and suitable to his needs. He received ₤80 from the insurers, repaired the car at a cost of ₤192. The owner then sued the defendant for the cost of the repairs minus the ₤80 received plus hire charges during the repair period.

The Court of Appeal in Darbishire (supra) said in relation to the law of damages out of collisions:

“It has come to be settled that in general the measure of damages is the cost of repairing the damaged article; but there is an exception if it can be proved that the cost of repairs greatly exceeds the value in the market of the damaged article. This arises out of the plaintiff’s duty to minimise his damages.” (p 1071)


and the question to be asked is “whether the plaintiff acted reasonably as between himself and the defendant and in view of his duty to mitigate damages”. (p 1072)

In Darbishire (supra), it was found that the car was not an irreplaceable article. While the particular car was not available, similar or other suitable vehicles were. The court stated that, as the costs of repairs greatly exceeded the value of the car by more than twice, it should be treated as a constructive total loss. The measure of damages was its value ₤80 plus hire of a vehicle during repairs plus $5 for expenses.

The Court in Darbishire (supra) also said that the market value of a vehicle may not always be the true measure of damages. There may be exceptional circumstances which justify a higher value eg when a vehicle may be unique. The plaintiff does not claim that the vehicle was unique.

It is clear that a plaintiff is entitled to be as extravagant as he/she pleases but not at the expense of a defendant. The defendant’s representative referred the Court to other cases that supported the application of the law in Darbishire (supra).

One case, The “Pactolus” 116 ER 1079, decided in 1856, concerned damages for the repair of a ship. The dispute related to the inclusion of iron plates and bolts in the repair following a collision that seriously damaged a new ship. It was said that the owners of the ship took the opportunity to strengthen the ship with iron plates and bolts not on the ship prior to the collision. In an initial assessment, excessive shipwrights charges were disallowed “by the opinion of persons conversant with the trade” as was the substantial amount charged for the strengthening work. That work was allowed at a subsequent hearing. The best evidence the Court said was “the evidence of those who saw the vessel after the collision and deposed to the necessity of repairs” (1081 at.5).

In the matter before this Court there were more than two days of evidence from witness regarding the time estimates, the rate applied to particular items and, whether or not new or replacement parts referred to in the MAR amended assessment were purchased and/or used un the repair to the vehicle. The difference in the costs estimates were generally very low, eg $3 and in relation to parts in one instance a maxim of $120.

As the Court said in 1856 in the Pactolus “it is a very arduous task to decide when opinions are conflicting,” (p 1081), and

“If persons best acquainted with the whole subject matter and with the course of the trade in that great emporium of commerce cannot come to agreement on these matters, I must necessarily conclude that great doubt and uncertainty prevail as to the questions.”

On balancing the weight of the evidence, I am satisfied that the plaintiff’s figure for repairs should be accepted. Mr. Wild was the person who saw the car immediately after the accident and prior to repair. In my view, he was the best person competent to say what repairs were required. Mr. Nunn’s comments, as stated, were made after repair.

Mr. Nunn’s view that the vehicle value should be reduced so greatly to account for the excess kilometres as to make it almost worthless is not supported in his report. That is, the person he telephoned or this fact is not mentioned in the report. Putting aside any kilometres reduction, the difference in the estimates for repair amount to approximately $2,000. In Darbishire (supra) the costs of the repairs were double that of the pre accident value also listed in a Glasses Guide. There was no evidence of any action by the plaintiff to indicate that the repairs were carried out for his own “personal interest”. Furthermore I have not accepted evidence that the repairs were uneconomical. As noted in Darbishire (supra) there “should be an element of flexibility in the assessment of damages to achieve a result which is fair and just as between the parties in the particular case”.

Mitigation

A plaintiff must do all that is reasonable in order to mitigate loss. I was referred a decision of Magistrate Dare in Koon Shuen Young v.Waters, 6 October 2005, amongst others, which sets out in full the law in relation to mitigation. Both parties agree I am not required to follow that decision however, it provides an examination of the law on mitigation. The test outlined refers to requirement for a prudent person to do all that is reasonable in order to mitigate loss. The criterion for “reasonableness” is that a plaintiff is not “under any obligation to do anything other than in the ordinary course of business”. The question is whether or not the Plaintiff acted reasonably in all the circumstances. (see British Westinghouse Electric and Manufacturing Company Limited Undergrounds Electric Railways Company of London Limited [1912] AC 673 at 689; Payzu Limited v. Saunders [1919] KB 581; Dunkirk Colliery Company v. Lever [1878] 9 Ch D 20 at 25.)

In my view all reasonable steps to mitigate the loss consequent upon the damage were taken. The plaintiff was provided with a quote for repairs and that assessment was sent to Mr. Wild for an independent assessment. What more was the plaintiff expected to do? It would be unreasonable to expect a motorist to be aware of the Glasses Guide, which is used by dealers, or even make reference to it, before a determination on whether or not to rely on assessments provided by specialists or experts in the motor repair industry.

Much of the evidence regarding the vehicle was directed at whether or not the repairs actually performed were fair and reasonable. I have made note of Mr. Nunn’s report and to the different opinion he holds in relation to the repairs and to some items in Mr. Wild’s report. After reading the evidence it is clear that assessments are just that. Items of time and cost may be undervalued and the cost of a repair item also may differ depending on where it is obtained. Mr. Nunn did not see the vehicle prior to repair and had no disagreement with many of the items assessed. In any event, these matters cannot be taken as evidence that the plaintiff failed to mitigate his loss in the ordinary course of business. The plaintiff is not MAR but the owner of a vehicle who has suffered a loss as a consequence of the defendant’s admitted wrong. Unlike the plaintiff in Darbishire (supra), he was not advised that the repair was uneconomical. He was not extravagant in proceeding with the repair.

The burden of proof lies upon the defendant. That burden has not been met. In the circumstances of this case the plaintiff took all reasonable steps to mitigate his loss.

I have determined that the repair assessment was not excessive or exaggerated and therefore on the balance of probabilities the plaintiff must succeed against the second defendant.

As against the first defendant, the owner of the vehicle, there was no evidence. The plaintiff cannot therefore succeed against this defendant and the claim must be dismissed against that defendant.

I accept that a hire car was necessary and provided in the circumstances of this case where the plaintiff gave evidence that he travelled long distances from Danger Island to near the city to work. I accept also that the assessment fee of Mr. Wild forms part of the damages claimed given that his assessment was prepared prior to and not for the purpose of litigation.

Orders made 21 August 2006

I make the following orders:

1. Judgment for the Plaintiff against the 2nd defendant in an amount of $ $7,983.62

2. The plaintiff’s action against the 1st defendant be dismissed.

3. The second defendant to pay the plaintiff’s costs as agreed or assessed.

4. The plaintiff to pay the costs of the first defendant as agreed or assessed.

A question in relation to interest on the judgment debt was considered on 24 August 2006. As the plaintiff has not paid any amount for repair of the vehicle, he has not suffered any loss. Following the reasoning in Screenco Pty Ltd v. R L Dew Pty Ltd & Anor [2003] NSWCA 319 (14 November 2003) I make no order for interest on the judgment debt. The plaintiff to pay the defendant’s costs as agreed or assessed for appearing on 24 August 2006 for one hour only.

Magistrate Margaret Quinn