Local Court of New South Wales CITATION: Dutt v Ridout [2009] NSWLC [2009] NSWLC 23 JURISDICTION: Civil PARTIES: Gaurav Dutt Estell Ridout FILE NUMBER: 29 October 2009 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 10/29/2009 MAGISTRATE: Assessor Olischlager CATCHWORDS: Motor vehicle damages, general damages, loss of use of motor vehicle LEGISLATION CITED: Local Court Act 2007 CASES CITED: TEXTS CITED: REPRESENTATION: Mr Gower for the Plaintiff Mr Jaramillo for the Defendant ORDERS: Verdict and Judgment for the Plaintiff in the sum of $1,665.07 together with court costs of $110 and profession costs of $964.26 giving a total judgment of $2,739.33. JUDGMENT 1 This is a claim for general damages arising from a motor vehicle collision that occurred on 23 June 2005. The nature of the claim is for the loss of use of the plaintiff's vehicle during the period while it was being repaired. 2 The plaintiff arranged for those repairs to be carried out in September 2005 and took possession of a replacement vehicle hired through ARV on 12 September 2005, and the replacement vehicle was returned on 25 October 2005, which was a period of 43 days. The plaintiff hired a Corolla which, it is accepted, was a similar make and model to the vehicle that was being repaired, and the daily rate for the hire of that vehicle was $93.50. 3 The first aspect that has been raised in terms of the dispute between the parties is the period during which the motor vehicle was hired. The defendant claims that the period of hire was excessive. 4 The plaintiff states that arrangements for the repairs were carried out via an NRMA claim on behalf of the defendant and that the NRMA conducted an assessment and approved repairs, and to that extent the defendant through its subrogated insurer, the NRMA, had a level of control and direction over the carrying out of these repairs. The evidence of the plaintiff simply indicates that he arranged for the repairs to be carried out through Frank Costa Smash Repairs. There is no indication in the plaintiff's statement as to whether any further contact was made with the repairers to ascertain any reasons for the delay or to follow up on the progress of repair work being carried out. 5 Attached to Mr Milliambro's statement is a copy of the assessment report, and another assessment internal document, whereby it appears that an assessor on behalf of the NRMA carried out an assessment on 22 July 2005, and assessed the estimated cost of repairs to be $2,172.45. An assessing tag strip, which the court accepts to be an internal document provided for the NRMA, estimated the days of repair to be 6.7 days. The court accepts that Mr Milliambro is not an expert in terms of a loss assessor, and relies on the documents that were provided by the loss assessor in terms of the assessment of damages and the estimation that was provided by that loss assessor in terms of the time taken for the repairs. 6 The court is of the view that in terms of assessing the general damages that should be paid to a plaintiff for the loss of use of property those damages should be reasonable. 7 That imports that the conduct of the plaintiff and the circumstances should also be reasonable. The court is of the view that in circumstances such as this - where a plaintiff hires a vehicle and a hire arrangement is facilitated by the smash repairer - it is likely that the smash repairer is aware of the terms, which include that not-at-fault parties will not be responsible for the hire of the cost and the cost will be recovered from a defendant or their insurer. The circumstances give rise for the potential that a smash repairer may not accord the highest priority to the carrying out of repairs. There is also the potential that the plaintiff will not be particularly vigilant for following up the progress of the repairs to ensure that they are carried out without delay. 8 The plaintiff has a replacement vehicle and is not inconvenienced for the period during which the smash repairer is carrying out repairs. The plaintiff, who is not at fault in the collision, operates under the belief that they will ultimately not be responsible for the costs for the hire of that vehicle as those costs may be recoverable against the defendant. In the circumstances, the court considers that it should be wary in terms of considering what was the reasonable period of time for the repair of a motor vehicle. Under s 35(5) of the Local Court Act 2007, a small claims division assessor may inform himself or herself on any matter relating to the proceedings being heard or other proceedings in the small claims division in such a manner as he or she thinks fit. 9 The small claims division of the Local Court deals with claims for motor vehicle damages on a daily basis, they take judicial notice from this experience in the usual time frames for assessments and repairs to be carried out. The amount paid to the repairer in relation to this matter was $2,172.45. The court has regard also to the labour period that has been referred to in the estimation for smash repairs, which came to a total of some 46.9 hours. Notwithstanding the nature of how those hours are assessed, it is the court's experience in the vast majority of relatively minor repairs involving that many hours referred to on estimations that it would expect that such repairs would normally be carried out in a period of between two to three weeks. That includes for a period allowing for an assessment of the vehicle. 10 In this instance the period is 43 days. The reasons behind the lengthy period have not been explained by the plaintiff. The court considers that notwithstanding the fact that the NRMA may have been involved in the assessment and may have been responsible for the payment of the claim, that that does not abrogate the responsibility of the plaintiff to act in a reasonable manner in ensuring that repairs are carried out in a timely manner. The court notes that this vehicle was apparently driveable and that the plaintiff had the opportunity to ensure that the repairs were provided to a repairer at a time when that repairer could have reasonably commenced repairs fairly immediately. In the absence of any explanation for the time frame the court is of the view that it should have regard to what it considers to be a reasonable period of time, and will allow a period of three weeks, or 21 days, in respect to the reasonable undertaking of the repairs in this matter. 11 The second issue is the question of the rate applicable, and the court notes that this vehicle was hired during a period of 2005. The estimation provided by Ms Tang are dated at September 2009, which are some four years after the event, whereas the evidence of Mr Milliambro is of the period considerably closer, being 2006. Given the length of time between those two periods, the court considers that greater weight should be given to the evidence or the estimation provided in the statement of Mr Milliambro, and accepts that the rate of $76.67 per day should be the appropriate market rate accepted in this case. Accordingly, the court will accept the market rate of $76.67 per day for the period of 21 days. Assessor S Olischlager DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.