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 by the plaintiff, it is then for the defendant to prove to the requisite civil standard of proof that she acted unreasonably in taking the mitigation steps she did. 5. The defendant submitted that it discharged that burden. 6. It submitted that the conclusions to which the evidence leads are that: 1. had the plaintiff, prior to agreeing to incur hire charges for the Replacement Vehicle Supplied, had at her disposal such information concerning the availability and terms of hire of alternative substitute vehicles as reasonable inquiries would have disclosed to her, the reasonable course for her to have taken would have been to hire an alternative substitute vehicle at substantially lower cost than that of the Replacement Vehicle Supplied, specifically a Toyota Corolla Ascent Sports Auto hatch of the kind that was on offer at the Budget depot in Croydon; and 2. the plaintiff's omission to adopt that less costly course in order to mitigate her Actual Loss was, in the circumstances, unreasonable, and her damages are to be assessed accordingly. 1. On the defendant's primary submission, the special damages awarded to the plaintiff should be assessed at $14,500.11, calculated as follows: 1. a daily base rate of $99.61 per day which for 126 days = $12,550.86; plus 2. a GST-inclusive fee for reduction of insurance excess nil of $38.50 per day for the first 10 days of every thirty days of hire (being 46 days) = $1,771.00; plus 3. the GST-inclusive credit card surcharge of 1.29% = $184.75; plus 4. Right2Drive's GST-inclusive delivery charge of $93.50 which is not contested. 1. The defendant's alternate submission was that if the Court is not satisfied that the amount of the hire charges incurred by the plaintiff was unreasonable in the sense in which that expression is used in Arsalan v Rixon at [36], those charges are credit hire charges and the evidence shows that the plaintiff could have hired a vehicle of the very same make and model as the Replacement Vehicle Supplied on non-credit hire terms for less than the Invoiced Sum. 2. On that basis, on the defendant's alternative submission, the special damages awarded to the plaintiff should be assessed at $18,701.60. 3. In the further alternative, if the Court is not satisfied that any hire that the plaintiff would have negotiated would have been a discounted rate that applied to hire of minimum seven-day duration, the special damages awarded to the plaintiff should be assessed at $32,625.79.