Lee v Strelnicks

1. [1]

   HER HONOUR: This is a dispute concerning the sum of $2340.09.

2. [2]

   Proceedings were commenced in this Court by Summons (and later Amended Summons) seeking judicial review, pursuant to s 69 of the Supreme Court Act 1970 (NSW), of a decision of an Assessor in the Local Court. They were heard over two days, with each of the parties represented by Senior and Junior Counsel. The origins of the dispute are in a motor vehicle accident that occurred on 27 May 2017 at Westmead.

3. [3]

   On that day, the first defendant, Ms Leisa Strelnicks, and another person, who was driving a car owned by the plaintiff, Ms Seung Hyun Lee, were involved in a crash. Ms Strelnicks was later found by the Local Court to have negligently damaged Ms Lee’s car, a Toyota Camry. The Camry was unusable for a period of 15 days whilst it was undergoing repairs. During this time, the plaintiff hired a replacement vehicle through a company known as I’m In The Right. Although the plaintiff is not quite a “straw man”, it is I’m In The Right that has pursued and funded this litigation on her behalf.

4. [4]

   The plaintiff originally commenced proceedings against the first defendant in the Small Claims Division of the Local Court of New South Wales on 3 August 2017, to claim compensatory damages from the first defendant for the temporary loss of the use of her car. The plaintiff sought $2340.09 in damages, being the cost of the replacement hire car provided to her without any “up-front charges” by I’m In The Right.

5. [5]

   On 14 May 2018, an Assessor appointed by the Local Court gave judgment in favour of the plaintiff. The defendant was found liable in negligence for the damage to the plaintiff’s Camry; she was held liable for damages, given in what was referred to as the “nominal amount” of $30.73, representing the interest on the capital value of the damaged car for the period when it was unavailable for use. The Assessor decided that:

6. [6]

   It is that aspect of the lower court judgment that the plaintiff seeks to challenge, arguing that the assessment of damages was made contrary to authority and principle, and constitutes an error of law on the face of the record, amenable to review pursuant to s 69 of the Supreme Court Act.

7. [7]

   Before this Court, the interests behind the plaintiff made no bones about the intention of the application brought in her name, being to secure a ruling (in this Court or in a higher jurisdiction if necessary) that is favourable to the interests of credit hire car companies such as I’m In The Right. In what is evidently a relatively new industry in Australia, companies of this nature provide replacement vehicles to drivers not at fault in a collision, without initial charge to the driver, on the basis that the costs of the car hire will be sought from the driver at fault in the collision, or the insurer of those drivers. As Senior Counsel for the plaintiff told the Court on 22 March 2019 (that being the first day of hearing), there has been a significant amount of litigation between credit hire car companies and insurers in the United Kingdom, where there has been,

8. [8]

   With the credit hire car industry seeking to expand in the Australian market, the same issues litigated in the United Kingdom have arisen in this jurisdiction. The Court was told by the plaintiff that,

9. [9]

   Senior Counsel for the plaintiff continued,

10. [10]

    In the summons before this Court, the plaintiff asserted that the Assessor erred in coming to his decision. Although the grounds were somewhat difficult to identify with clarity from the Amended Summons (filed on 22 March 2019) the plaintiff complains that:

    1. (1)

       The Assessor applied an incorrect test in assessing the quantum of damages, incorrectly assessing the reasonableness of her decision to hire a car for use whilst the Camry underwent repairs, wrongly requiring the plaintiff to demonstrate the degree of use of the replacement vehicle before being entitled to damages assessed at the market rate, rather than applying the principle of restitutio in integrum; and,

    2. (2)

       In determining the quantum of damages to be paid to the plaintiff, the Assessor failed to properly characterise the evidence of the use of the vehicle, and erred in his determination of quantum, reaching a decision for which there was no supporting evidence.

11. [11]

    A third ground asserting jurisdictional error was withdrawn by the plaintiff.

12. [12]

    The plaintiff sought relief in the nature of certiorari pursuant to s 69 of the Supreme Court Act, to quash the judgment of the Local Court, and remit it to that court for determination.

13. [13]

    The first defendant (supported by her insurer) argued that there was no error by the Assessor in directing himself that, to establish monetary damages for the temporary loss of the use of a motor vehicle, the plaintiff bore the onus of proving that she hired a car by reason of need. She submitted that the conclusion of the Assessor that the plaintiff had failed to discharge an evidentiary onus was open, as was his conclusion as to the means by which damages were assessed. Even if, it was argued, the Assessor’s conclusions were not open, these were factual errors, and not errors of law amenable to review pursuant to s 69. The defendant contended that the Local Court decision should be upheld.

The Proceedings before the Assessor

1. [14]

   The Statement of Claim that was filed in the Local Court in August 2017 alleged the tort of negligence by the defendant as the driver of a motor vehicle involved in a collision at Westmead. A number of particulars of negligence were given, which are not presently relevant. The Claim continued,

2. [15]

   The particulars of “Loss and Damage” were given as:

3. [16]

   Interest on that sum of $12.25 was also claimed, together with costs.

4. [17]

   Before this Court, the plaintiff described this Claim as a claim for special damages, although that categorisation of the claim does not seem to have been used previously.

5. [18]

   In the Defence filed in the Local Court, the defendant denied negligence and, relevantly, “denies the particulars of loss and damage claim and or allegedly suffered by the Plaintiff”. Specifically, the Defence stated that [as written in the original],

6. [19]

   The matter came before the Assessor on 14 May 2018. Judgement was given ex tempore that day. The defendant was found to have been negligent, although the plaintiff was held to have contributed to that negligence, to a degree reflected by an estimate of 20%. Having made those findings, and noting that he would “reduce the quantum [to] 80%” [4] of what it would otherwise have been, the Assessor heard submissions on “what that quantum might be”. [5]

7. [20]

   Although the detail of the evidence is not before this Court, with only very limited portions of the record of proceedings tendered, there was no dispute that the plaintiff had made a statement that was relied upon in the Local Court, and in which she asserted that she needed to hire a replacement vehicle, to travel to and from work, to take her kids from place to place, and for domestic and social purposes, such as visiting friends and family. [6]

8. [21]

   After giving that summary of the evidence in the course of his judgment on the claim for damages, the Assessor continued,

9. [22]

   The reference in his Honour’s judgment to “Ross v State Transit & Higgins” is a reference to the decision of Ross, Garry v State Transit Authority of NSW & Higgins, Sean [2015] NSWLC 11.

10. [23]

    On the basis that the plaintiff’s Toyota Camry was worth in the vicinity of $17,000, the capital interest on that value for the period when the Camry was unavailable, less 20% for contributory negligence, was assessed as $30.73. That is the quantum of the damages awarded in the Local Court, and the decision about which the plaintiff complains.

Ground 1: Questions of use, need, and the assessment of quantum

1. [24]

   The Assessor determined the issue of quantum on the basis that the plaintiff bore a “burden of proving need as a basis for assessing damages according to the market rate for replacement”. He was not satisfied that the evidence of the use made of the damaged vehicle, and the need for a replacement, which he described as “bare assertions”, was sufficient to discharge that burden.

2. [25]

   The plaintiff contends that this is not the correct test to be applied in determining quantum. She submits that the reasonableness or otherwise of the decision to hire a replacement vehicle is to be assessed by reference to the facts and circumstances existing at the time the vehicle was hired, and that the Assessor was in error in requiring her to establish a sufficient need for a hired replacement, by tendering detailed evidence of the degree of use of the replacement vehicle.

3. [26]

   The plaintiff submitted that the principle of restitutio in integrum should apply. The plaintiff had a car prior to the crash and, inferentially, had a car because she needed it. In that she was not hospitalised or overseas during the period of the car hire, inferentially, the same need existed at that time. Citing the judgment of Lord Steyn in Giles v Thompson [1993] 3 All ER it is argued that evidence to that effect ought to have been sufficient to establish that the plaintiff needed to hire a replacement vehicle, with damages assessed by reference to the car hire fees, since they were not extravagant.

4. [27]

   On the same basis, the plaintiff added that when an accident occurs, even if a plaintiff does not hire a replacement car, he or she should still be entitled to general damages to compensate for the inconvenience caused. She argued that the need for a non-income producing chattel is irrelevant to the question of how damages for the temporary loss of the use of the chattel are calculated.

5. [28]

   Finally, the plaintiff submitted that once reasonableness of hiring the vehicle is established, damages should not be reduced depending on the nature and extent of the use of the replacement vehicle.

6. [29]

   The defendant also relies upon the case of Giles v Thompson, although citing the judgment of Lord Mustill, in which his Lordship said, (at 167B),

7. [30]

   The defendant argues that the Assessor was correct in proceeding on the basis that the plaintiff had to establish her need for a replacement car in the period when her Camry underwent repairs. She referred the Court to the decision of Ipp AJA, with whom Handley JA agreed, in Athanasopoulos v Moseley (2002) 52 NSWLR 262; [2001] NSWCA 266, at [84], where his Honour said,

Ground 2: Mischaracterisation of evidence

1. [31]

   The plaintiff’s second complaint is that the Assessor mischaracterised the evidence of need and use of a replacement vehicle. Referring to the Assessor’s rejection of her evidence on that point as no more than general assertion, she submitted that his Honour’s conclusion was “patently irrational”, a paradoxical decision that no reasonable mind could reach. [7]

2. [32]

   The plaintiff submitted that this was a mischaracterisation of the evidence, and that the Assessor should not have required detailed evidence to justify the reasonableness of the plaintiff’s decision to hire a replacement car. It is argued that this mischaracterisation further underlines the Assessor’s error in asking himself the wrong question with respect to damages, and approaching the matter contrary to the principle of restitutio in integrum.

3. [33]

   The first defendant argued that the Assessor recognised and understood the plaintiff’s evidence of need, but was simply not persuaded by it. That is, applying the test set out by Ipp AJA in Anathanopoulos, the Assessor was not satisfied that the plaintiff had adduced evidence to support her claimed need of a replacement hire car during the relevant period. That decision was a conclusion of fact, and one which was open to the Assessor.

Consideration

1. [34]

   During the hearing of this matter, the Court was referred to a daunting amount of authority, much of it from the United Kingdom, and much of it concerning claims in equity, or for breach of contract, rather than for claims in tort.

2. [35]

   The plaintiff’s argument stems from what she submits is the principle that should have been applied by the Assessor in the assessment of damages, including that flowing from her decision to use a credit hire car whilst her own was undergoing repairs. Senior Counsel for the plaintiff referred to this principle in differing ways during the hearing of the matter, but commonly as the principle of restitutio in integrum or the “Banco principle”.

3. [36]

   Restitutio in integrum is a Latin phrase meaning restoration to the original position. It is a remedy administered by courts of equity, commonly in rescinding a contract, to return the party who has incurred the wrong to the position he or she occupied before the events the subject of the litigation occurred. The compensatory principle is about the measure of damages, insofar as that can be determined in monetary terms.

4. [37]

   The “Banco principle” derives from the English decision of Banco de Portugal v Waterlow [1932] AC 452, a case in contract. At 506, Lord Macmillan said,

5. [38]

   The question is whether those principles should have been applied, in the way the plaintiff contends for, to the assessment of the quantum of damages relevant to the cost of hiring a replacement motor vehicle, for use when the damaged car was off the road undergoing repairs.

6. [39]

   I have concluded that the Assessor was not in error in determining the matter as he did, and there is no basis for the intervention of this Court.

7. [40]

   Liability on a claim in negligence was determined by the Local Court substantially in favour of the plaintiff; it then fell to the Assessor to determine the quantum of damages. The only disputed aspect of the damages claimed by the plaintiff was the cost of a credit hire car she had secured for her use in the 15 day period of the repairs, there being no issue as to the repairs to the car.

8. [41]

   The plaintiff’s claim to the Local Court was for “loss of use – hire car charges”. This claim was at all times disputed by the defendant, who “denie[d] the particulars of loss and damage claim”, citing 12 relevant particulars which put in issue, amongst other matters, whether the claim was excessive, exorbitant, or unreasonable; whether the daily rate of hire was excessive; and whether the duration of the hire period was excessive. The defence filed in the Local Court noted that the plaintiff was to be put to “strict proof”.

9. [42]

   Whether the plaintiff was entitled to the damages claimed was clearly in issue. It follows that the claim had to be proved by the plaintiff. To adopt Lord Mustill’s words in Giles v Thompson, the need for a replacement car was not self-proving.

10. [43]

    Following the Assessor’s decision as to liability, the temporary loss of use of the plaintiff’s Camry was a loss that the defendant was liable to compensate the plaintiff for by way of an award of general damages. That is the principle to be derived from the line of authority commencing with The Owners of No 7 Steam Sand Pump Dredger v The Owners of SS Greta Holme (“The Greta Holme”) [1897] AC 596, and The Owners of Steamship Mediana v The Owners, Master and Crew of Lightship Comet [1900] AC 113 (“The Mediana”), which both deal with the recovery of damages for injuries to property.

11. [44]

    Beazley JA (as the present Governor of the State then was), wrote the leading judgment in Anthanasopoulos, and discussed both The Greta Holme and The Mediana, concluding that injury to property which deprives a party of the use of the property is compensable, in accordance with the long line of authority traceable to The Greta Holme (at [58]). However, it was not necessary in Anthanasopoulos to go on to consider quantum of damages, and her Honour specifically refrained (at [59]) from considering

12. [45]

    That may be because liability to pay damages, and the quantum of those damages, are separate questions.

13. [46]

    The latter does not automatically follow the former, and did not do so in the amount claimed by the plaintiff in this case. Her need for a replacement car remained relevant to the assessment of quantum and had to be proved.

14. [47]

    In Anthanasopoulos, although Beazley JA did not consider the issue of quantum, Ipp AJA, who agreed with her Honour, did consider that issue in a separate judgment. I have referred already, at [30] above, to part of what his Honour there said. It is useful to extract a greater portion of that judgment at this point, as it attracted a great deal of contentious argument before me. Ipp AJA said, at [74] – [84],

15. [48]

    The presiding judge in Anthanasopoulos, Handley JA, agreed with both Beazley JA and Ipp AJA, at [1].

16. [49]

    The defendant placed great significance upon the judgment of Ipp AJA in Anthanasopoulos. The Court was also referred to (amongst others) the decision of McCallum J (as her Honour then was) in Wong v Maroubra Automotive Refinishers Pty Ltd; Ayres v Maroubra Automotive Refinishers Pty Ltd (No 2) [2015] NSWSC 222, at [69]-[72]; and to that of Harrison J in Droga v Cannon [2015] NSWSC 1910, at [46] and [54], where the principles given by Ipp AJA in Anthanasopoulos were accepted and applied.

17. [50]

    The plaintiff contended that the relevant portions of the judgment of Ipp AJA were obiter dictum, and that what was said by his Honour at [84] was no more than a “cryptic” or “bare” statement.

18. [51]

    Although I accept (as did Senior Counsel for the defendant) that his Honour’s comments on the issue of quantum in the paragraphs extracted above were obiter, Handley JA agreed with them, and they have been applied by other judges of this Court. Considerations of comity require that, unless I was to be convinced that what his Honour said in Anthanasopoulos was wrong, I should not depart from it (or from the separate decisions of McCallum and Harrison JJ). I am not so convinced.

19. [52]

    I do not think that the authorities referred to by the plaintiff required the Assessor to approach the question of quantum in a way different to the approach that he took. His Honour found that the defendant was liable for damages, consistent with authority that provides for damages for loss of use; that did not oblige him to necessarily accept that the defendant was liable to pay the sum claimed for the use by the plaintiff of a credit hire car. It remained for the plaintiff to prove her need of such a car. If she established that, quantum fell to be assessed by reference to the market rate for a leased vehicle, and not by reference to the amount the plaintiff actually paid to I’m In The Right.

20. [53]

    There is a statement in McGregor on Damages, [8] to which the Court was referred by the plaintiff, that the cost of securing a car through a credit car hire company is or may be significantly greater than hiring a car through a company which requires payment of a fee on hire. If so, and credit hire car companies charge excessive fees when compared to non-credit car hire companies, then it would be wrong in my view to refer to the fee charged by such companies as determinative of quantum. Such a fee would not represent the market rate.

21. [54]

    Securing a decision on liability in one’s favour is not and should not be viewed as an invitation to gratuitous expenditure, knowing it will be borne by someone else. There remains an obligation on a successful litigant to act reasonably in mitigating loss.

22. [55]

    In Giles v Thompson, the authority on which the plaintiff relies, and a case which dealt with issues of maintenance and champerty, Lord Mustill seems to have accepted that a claim for a recoverable loss must be proved by the plaintiff (at 362(b)), and that any claim made excessive by a plaintiff resorting to the use of a motor vehicle hired but not needed, could be defended (at 361(b)). On the second point he observed,

23. [56]

    There is no question that loss of use of property is a loss which is compensable; the Assessor’s decision reflects that. There was no error of law in that regard in my opinion. The next question to be determined by his Honour was what monetary value was to be put on that loss by way of quantum of damages. His Honour found that the particular claim advanced by the plaintiff, for $2340.09, was not sustainable on the evidence tendered in support of it.

24. [57]

    That, in my opinion, was a conclusion of fact that was open to his Honour and, accordingly, not subject to review pursuant to s 69 of the Supreme Court Act.

25. [58]

    As his Honour said in his judgment, the “bar” of proof was “not high”, as the defendant was the wrongdoer, and the plaintiff the party entitled to damages for loss. The Assessor was not, however, satisfied that the assertions of the plaintiff of general use of her motor vehicle prior to the collision met even the relatively low bar that applied. I do not regard that conclusion as either “irrational”, or “one that no reasonable mind could reach”.

26. [59]

    The period of loss of use to the plaintiff was one of 15 days. On the basis of the record of proceedings provided to this Court (it being, as I earlier observed, far from complete), there was no evidence from the plaintiff as to her need for a vehicle in that period. As an example, she said, as what appears to be a general statement, that she used her car to visit family and friends, but there was no evidence that any such visits were made or planned in the 15 day period. It may be that there was no such visit in that time, and no need for the use of a car for that purpose. There was an assertion that the plaintiff needed her car to “take the kids to and from school”, but no evidence was led as to whether her children were in school in the relevant period, how far away the school was, or whether there was any alternative means of transport conveniently available, for example.

27. [60]

    The Defence filed by the defendant put all of these matters in issue; proof of a need for a replacement car was thus required. In that context it was neither irrational nor unreasonable to expect the plaintiff to provide adequate evidence of her actual need for a car during the period of loss of use of her own vehicle. Neither was it irrational or illogical to conclude that assertions of a general nature from the plaintiff, devoid of the detail that would allow her claim to be properly assessed, were inadequate to that purpose.

28. [61]

    Returning again to the judgment of Lord Mustill in Giles v Thompson, (with which Lord Keith of Kinkel, Lord Ackner, Lord Jauncey of Tullichettle, and Lord Lowry agreed), his Lordship said at 363(b) – (d),

Conclusion

1. [62]

   I am not persuaded that the Assessor erred in law in determining whether the plaintiff had established her claim for damages in the sum of $2340.09, or that this Court should intervene to exercise the jurisdiction conferred by s 69 of the Supreme Court Act. I would dismiss ground 1. Neither am I satisfied that there was an error of law with respect to his Honour’s consideration of the evidence relevant to use of the damaged property. This was a conclusion of fact that was open to the Assessor. Ground 2 also fails.

2. [63]

   The Court makes the following orders:

   1. (1)

      The Amended Summons filed on 22 March 2019 is dismissed.

   2. (2)

      The plaintiff is to pay the first defendant’s costs.