LEE V STRELNICKS; SOUAID V NAHAS; CASSIM V NGUYEN; RIXON V ARSALAN

[2020] NSWCA 115, New South Wales Court of Appeal, Justice of Appeal Meagher, Justice of Appeal White and Associate Justice of Appeal Emmett, 18 June 2020

Insurance (motor) – Hire of replacement vehicle pending effecting of repairs – Need for hiring – Type of replacement vehicle permissible – Measure of damages

This was the hearing of four joined appeals on the question of the liability of a negligent driver for the costs incurred by the claimant in hiring a replacement vehicle. The court was unanimous that the claimant was entitled to general damages for loss of convenience and to special damages for the costs of hiring a replacement vehicle as long as the need to hire a substitute could be shown. The court was also unanimous in the view that the claimant was to be put in the same position as if the tort had not been committed. In assessing the claimant’s need, the majority view was that this included not just replacing the functionality of a vehicle but also the special attributes of the vehicle, so that the claimant was entitled to a vehicle of the same type and performance. The minority view of Meagher JA was that the duty to mitigate confined the claimant to a vehicle capable of satisfying the uses required and did not otherwise have to be equivalent.