Clapcott v Knijff [2023] QMC 4

MAGISTRATES COURTS OF QUEENSLAND CITATION: Clapcott v Knijff [2023] QMC 4 PARTIES: Connie CLAPCOTT (Plaintiff ) v Jan Knijff (Defendant) FILE NO/S: Brisbane Claim 54107/21 DIVISION: Magistrates Courts PROCEEDING: Trial ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 8 March 2023 DELIVERED AT: Proserpine HEARING DATE: 21 September 2022 (and later written submissions) MAGISTRATE: Magistrate Howard ORDER: 1. Judgment for the Plaintiff in the sum of $8470.91. CATCHWORDS: DAMAGES – TORTS—NEGLIGENCE—Damage to chattels – consequential loss – physical inconvenience and loss of amenity of motor vehicle – where costs incurred in hiring a replacement vehicle until motor vehicle repaired – whether hire of replacement vehicle unreasonable – whether costs of hire unreasonable Arselan v Rixon; Nguyen v Cassim [2021] HCA 40 Dimond v Lovell [2002] 1 AC 384 Fallon v Johnston [2018] VSC 273 Frucor Beverages Ltd v Blumberg [2019] NZCA 547 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Zurich v Umjerji [2014] EWCA Civ 357 COUNSEL: Mr A Fitzsimons for the applicant Mr K Horsley for the respondent -- 1 of 14 -- 2 SOLICITORS: Galaxy Legal for the plaintiff Legeti Partners for the defendant Background [1] Ms Clapcott’s 2008 Mazda 2 motor vehicle was damaged when it was struck by Ms Knijff’s vehicle. Ms Clapcott was insured by NRMA. She called a telephone number on NRMA’s website on 29 July 2021 and was told Accident Management Solutions (AMS) would ‘be acting’ in the claim. Within an hour, her damaged vehicle had been towed and a representative from Right2 Drive Pty Ltd (R2D) delivered a 2018 Kia Cerrato for her use while the claim progressed. Ms Clapcott signed a Rental Agreement (the agreement) with R2D specifying a daily rental charge of $125.00. Her repaired vehicle was returned to her on 13 September 2021. [2] By clause 4.2(b) of the agreement, subject to certain rights of R2D to terminate the agreement, and on the condition the hirer fulfils their obligations under the agreement, upon recovery of the hire charges from the at-fault Third Party to the accident and/or their insurer, the hirer will be released from liability for the hire charges.1 Further, by clause 4.3(a), the hirer appoints R2D as its agent, representative and attorney to recover the hire charges, including through legal proceedings. By Clause 4.3(b), the hirer acknowledges that R2D shall appoint lawyers and give instructions on its behalf in the recovery process. [3] Ms Clapcott, as the nominal plaintiff, claims the amount of $8470.91 in damages for the cost of hiring the replacement motor vehicle for the period she was without her Mazda 2, namely 29 July 2021 to 13 September 2021. Ms Clapcott also claims legal costs and interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld). [4] Ms Knijff admits liability in respect of the accident. Ms Knijff defends this claim on the basis that the hire car charges claimed are unreasonable. The evidence [5] Prior to the accident on 29 July 2021, Ms Clapcott used her Mazda 2 vehicle every day for purposes including driving to and from work; going shopping; driving her children around; and transporting herself and other persons in the course of her employment. She was having mechanical trouble with her Mazda 2 vehicle before it was damaged when struck by Ms Knijff’s vehicle. [6] Over the weeks following the accident and while she had the hire vehicle, Ms Clapcott made multiple enquiries of NRMA and AMS about whether her vehicle was to be repaired or written off. She was given no indication how long the repair of her vehicle might take. As time went on, she grew concerned that the cost of the hire car would be more than the value of her Mazda 2 vehicle. She was reassured she would not be required to pay the costs of hiring the vehicle. At one stage, she was told parts took longer to obtain because of COVID-19. 1 Exhibit 3, clause 4.2(b) the arrangements are subject to the hirer remaining liable in relation to additional charges as defined in the agreement for charges including traffic and parking infringements, tolls, and fuel. -- 2 of 14 -- 3 [7] It transpired that Ms Clapcott’s Mazda was returned to her on 13 September 2021 after being repaired by Lomani Auto Repairs. The cost of repair of Ms Clapcott’s vehicle was $6397.39.2 [8] Earlier that day, R2D collected the hire car from her. It issued a Tax Invoice on 13 September 2021, showing a daily charge rate of $115.00 for 47 days for the period of 29 July 2021 to 13 September 2021, plus other fees and charges as follows: Rate Charge 5405.00 Administration Fee 189.18 Excess Reduction 1645.00 Delivery & Collection Charge 85.00 Registration Recovery fee 326.65 Sanitisation Fee 50.00 Plus GST 770.08 ------------------------------------- TOTAL 8470.91 [9] Ms Clapcott has not paid the invoiced amount to R2D and no payment has been requested from her. [10] Her evidence was thoughtfully and forthrightly given. I accept all of Ms Clapcott’s evidence. [11] Orlagh Whelan holds the position of Litigation Specialist at R2D. She gave evidence that R2D hires vehicles to persons who have had motor vehicle accidents and who are not ‘at fault’ and who are without their vehicles for an indefinite period. R2D invoices the ‘at fault’ insurer for the amount. R2D has a fleet of various types of vehicles – in all, some 10,000 Australia-wide. All of the vehicles are less than 5 years old. It is not R2D’s ‘business practice’ to have older vehicles in the fleet. [12] Ms Whelan explains that she retrieves car hire rates each day from the ‘mainstream’ market, by accessing a portal to search the rates at other hire car companies for vehicles of different classes. She understands the portal uses an algorithm to access data about the rates at other hire charge companies on a daily basis. She has no IT expertise, and therefore could not give evidence to explain the operation of the algorithm through the portal. She denies that R2D is affiliated with NRMA. She said R2D was engaged here through a referral from AMS. More generally, R2D gets it business through referrals from accident management companies; repairers; friends and family of previous customers; and some insurers. [13] She acknowledged that a Kia Cerrato is a slightly larger vehicle than a Mazda 2. A Mazda 2 vehicle is classified as a ‘passenger light vehicle’ under the classification system used by R2D, whereas a Kia Cerrato is a ‘small passenger vehicle.’ By way of example, she described a Toyota Yaris and an MG Core 3 as being a passenger light vehicles, like a Mazda 2. [14] She performed a search through the portal for rates on 29 July 2021, and printed or took screen shots of three prices for hire of an MG 3 CORE. The documents she printed or 2 Exhibit 4 Lomani Auto Repairs Tax Invoice dated 19 September 2021. -- 3 of 14 -- 4 copied are in evidence and set out costs for vehicles available for one day of hire from Europcar for 29 July 2021 to 30 July 2021. The vehicles were available for pick up at Brisbane locations between (in the first instance at 5pm, and in the other 2, at 3pm) for hire for the period of $165.83; $170.12; and $218.56 respectively. 3 In each case, the costs include a daily hire cost in the ‘vehicle sub-total’ (respectively, $110.00; $109.86; and $158.31) and a ‘premium protection package’. She acknowledged that all of the Europcar vehicles identified in the search were less than 5 years old. She said that these were the available rates for a ‘like for like’ vehicle, that is a ‘passenger light vehicle.’ [15] She said, based on her experience at R2D, ‘like for like’ replacement is based on vehicle size, and that age of the vehicle replaced is not considered. She is aware that older vehicles can be hired in the marketplace, for example, through Rent-a-bomb but had not seen their rates, acknowledging it is not part of the search performed through the portal. She said that in Ms Clapcott’s circumstances, although the daily hire rate in the agreement was specified as $125.00, because a Kia Cerrato was classed as a ‘small passenger vehicle’ and bigger than Ms Clapcott’s Mazda 2, she had been invoiced for a smaller ‘passenger light vehicle’ at the daily hire rate of $115.00. [16] When asked if R2D would accept the amount recovered in the proceeding, Ms Whelan initially asserted that although it would not charge Ms Clapcott, R2D would ‘be within its rights’ to do so. Later she said that if the hirer ‘fulfils their obligations’, as Ms Clapcott has done, R2D would not charge more than it recovered in the proceedings. She acknowledged that R2D has not received any payment to date and conceded it would receive the proceeds of this action. [17] She said she had contacted Ms Clapcott at the beginning of the hire period, and later, the repairer for updates on progress and anticipated completion date. [18] Ms Whelan rejected suggestions that R2D is more expensive to hire a vehicle through than mainstream car hire companies. [19] I accept Ms Whelan’s evidence generally, save and except her expressed opinion as to whether R2D is more expensive than car hire in the mainstream car hire market. She has no expertise that was established to give that opinion in any event. Further, the evidence establishes that R2D is more expensive for the reasons later discussed. [20] Brett Keating, is a motor vehicle loss assessor of 5 years at AAMC, and who has 15 years prior experience in the smash repair business. He was called by Ms Knijff to give expert evidence. He prepared a report for her insurer, Suncorp. He confirms that AAMC is not part of Suncorp.4 He inspected Ms Clapcott’s vehicle on 11 May 2022, after it had been repaired. In his report, he estimates the market value of the Mazda 2 vehicle before the accident at $6700. He considers this a generous estimate, for a top of the range Mazda 2 vehicle, even though Ms Clapcott’s vehicle had travelled more kilometres than the ‘Glasses Guide’ allowed for, in attributing that value. Having regard to its pre-existing engine problems disclosed at hearing, he revised his estimate for Ms Clapcott’s vehicle down to $4600. [21] In his opinion, the repairs to the vehicle as quoted should have taken 5-7 days ‘in the normal business environment’ (that is, without changing arrangements for other work on-hand). If parts had to be ordered, he said they could be expected from a dealer within 3 Exhibit 6. 4 Exhibit 7. -- 4 of 14 -- 5 a day or 2. If any part had to be ordered from the manufacturer to be sent from overseas, then in the usual course they would be received within a couple of weeks. He had obtained a salvage value for the vehicle before the repairs, based on a photograph of the damaged vehicle, at $378.00. [22] He said that when he inspected the Mazda 2 vehicle, he formed the opinion that not all of the quoted repair work had in fact been done. He estimated the work actually done was 3 working days of work. In his opinion, about 50% of the quoted work had not been done. In his report, he estimates a fair and reasonable amount for the repairs in fact done at $3327.84 including GST. [23] Had it been necessary for Ms Clapcott to find a replacement vehicle if her Mazda 2 had been written off (rather than repaired), he estimates it would have taken a couple of weeks in the usual course, given that there are many similar vehicles available in the market place. In his opinion, the post-COVID ‘tightness’ in the used vehicle market had not affected the market for a similar vehicle. Further, he said that in any event, if it had been written off, because an insured would be given market value (that is, if market value increased in the COVID environment) that would be reflected in the amount paid out to the insured. [24] There is no other expert evidence about these matters and he was not seriously challenged in cross-examination. I accept Mr Keating’s evidence. [25] Paul King, the manager of Hertz Brisbane for some 9-10 years, was called to give evidence by Ms Knijff. In his experience, Hertz is positioned as a major ‘premium brand’ car hire company in the Australian market, which charges ‘higher class rates’. He has worked for Hertz for almost 18 years in total. He identified Exhibit 8 as a document prepared based on information he provided, setting out average daily hire costs for a vehicle like a Mazda 2 between 29 July 2021 and 13 September 2021. He calculated the figures set out based on the average prices during that period, rather than based on particular vehicles actually available at the relevant date. [26] He explained the actual daily hire cost on any particular day depends on fleet utilisation and the number of vehicles available at the particular location. These vary according to the time of year (whether a low or high period); whether a corporate (frequent customer) rate is given or a leisure rate; and the duration of the initial period – a lower daily hire rate is available for longer periods of initial hire-- than for short hire periods. Further he explains, the base rate charged remains the same rate for the full period of hire, however long that may ultimately be. [27] Exhibit 8 sets out 4 tiers of hire. Tier 1 is for a one to two day initial hire period – for a ‘Class A’ small 4 door auto vehicle akin to a Mazda 2 for the relevant period. He acknowledged that on any given day, vehicles may have been available for a greater or lesser daily hire rate than the average hire rate during that period, and that prices may fluctuate throughout any given day. Tier 2 is for a 3 to 6 day initial hire period; Tier 3 for a 7 to 29 day initial hire period; and Tier 4, for a 30 to 99 day initial hire period. [28] For Tier 1, in his experience, prices varied from as little as $30 per day up to $100-120 per day. He conceded that on a given day, the cost could have been $115. He acknowledged that he did not give specific data based on availability on 29 July 2021. He also acknowledged that sometimes none of a particular vehicle type is available on any given day. In those circumstances, he indicated that if a vehicle had been reserved, -- 5 of 14 -- 6 a vehicle would always be supplied. Further, if a person tried to get a particular vehicle on 29 July 2021, it may not have been available. [29] He explained the other costs charged during hire set out in each column in Exhibit 8 – some charges are a flat daily rate and others a percentage cost. The cost of taking the maximum excess reduction option (reducing the excess to $0) is capped at $40.00 for 10 days in each 30 day rental period. Therefore, in the relevant hire period for which Ms Clapcott had the hired vehicle, Hertz would charge $800 for the maximum excess reduction option. In his experience, some hire locations have a higher surcharge. [30] Again, I generally accept Mr Keating’s unchallenged evidence. The law – general principles [31] The High Court of Australia in Arsalan v Rixon; Nguyen v Cassim 5 (Arselan) recently clarified some relevant aspects of the law relating to the hire of a substitute vehicle by a not at fault plaintiff during the period of repair of their vehicle. The High Court held that the relevant heads of damage are physical inconvenience and loss of amenity of use of the insured’s vehicle.6 In respect of mitigation of the loss, the High Court said: 32 Where a plaintiff acts in an attempt to reduce a loss, the onus shifts to the defendant to show that the acts actually taken by the plaintiff were unreasonable acts of mitigation[28]. Unless the plaintiff's actions are shown to be unreasonable, costs that are incurred in an attempt to mitigate loss caused by wrongdoing become, themselves, a head of damage that can be recovered[29]. Even if the costs incurred by the plaintiff are greater than the loss that was attempted to be mitigated, those costs will be recoverable other than to the extent that they are shown to be unreasonable[30]. (Emphasis added and footnotes omitted). [32] Accordingly, substitute car hire costs for a broadly equivalent substitute vehicle replacement vehicle during repair will generally be recoverable against a defendant, 7 even if the damages claimed exceed the loss mitigated. The onus is on the defendant to show that a plaintiff has not acted reasonably.8 [33] It is apparent from what the High Court said that there are two aspects of potential unreasonableness. Firstly, in relation to a plaintiff’s actions in incurring the costs of car hire in mitigation of their loss. Secondly, whether, to any extent, the costs incurred are shown to be unreasonable, and therefore, not recoverable. Indeed, the High Court further said: 36 Once a plaintiff has proved heads of damage for physical inconvenience and loss of amenity of use, it will usually be difficult for a defendant to prove that the plaintiff acted unreasonably by seeking to hire a replacement vehicle. In some cases, a defendant might instead seek to establish that the amount of the hire costs incurred was unreasonable for various reasons: the replacement vehicle hired, in light of the range of vehicles that might fairly be regarded as equivalent to the damaged vehicle; the period of hire, having regard to the reasonable period of time for repairs; or the extent of the costs included in the hire charge. 5 [2021] HCA 40. 6 Ibid, [2-3, 34-35] 7 Ibid, [2, 4, 36-39]. 8 Ibid, [36] -- 6 of 14 -- 7 [34] It is of particular note here that in Arselan, the reasonableness of credit hire charges for a substitute vehicle, in the nature of the charges here by R2D, was not the subject of the appeal before the High Court.9 [35] Ms Clapcott also relies upon the earlier 2018 decision of the Victorian Supreme Court in Fallon v Johnson10 where it was held that a defendant must prove the amount or extent of any failure to minimise loss resulting from the failure to act reasonably.11 Further, there it was held that if a Plaintiff acts unreasonably, damages are reduced to the extent the plaintiff has not acted reasonably.12 [36] The Victorian Supreme Court in Fallon v Johnston13 said, in summarising relevant principles : [21] ….. (d) a high standard of conduct is not required of the plaintiff, because the defendant is a wrongdoer; and (e) a plaintiff will not be held to have acted unreasonably simply because the defendant can suggest other and more beneficial conduct, so long as it was reasonable for the plaintiff to act in the way he did…. [37] Further, the Victorian Supreme Court said in effect that a court should be slow to accept ‘captious objections’ by a defendant to the manner in which an injured plaintiff sought to overcome the effect of the defendant’s wrongdoing. ‘Minute scrutiny’ for any error is not called for provided a plaintiff has acted honestly and reasonably.14 The Court there observed that the impecuniosity of a plaintiff, which may limit the mitigatory measures open to them, forms part of the factual matrix against which reasonableness is objectively determined.15 However, it said the defendant’s onus to establish that a plaintiff acted unreasonably, and that the award of damages should be reduced accordingly, is not discharged by identifying a less expensive means of satisfying the loss.16 Further, it considered impecuniosity is (only) one circumstance to be taken into account in applying the ‘reasonableness standard’ in the particular circumstances.17 Has the Defendant established that Ms Clapcott acted unreasonably in hiring a substitute vehicle? [38] On Ms Clapcott’s behalf, it is submitted that she acted reasonably in making her claim following the damage to her vehicle caused by Ms Knijff’s negligence. She had no control over the repair process but reasonably attempted to monitor and accelerate the progress of repairs to her vehicle. Further, on her behalf it is submitted that during the period of repair, she hired an appropriate replacement vehicle to meet her requirements. Having regard to the applicable law, it is submitted that she is entitled to damages for physical inconvenience and loss of amenity during the period her vehicle was repaired. [39] The Defendant submits that in the circumstances of the claim, the reasonableness of Ms Clapcott’s actions is to be considered overall, having regard to the acts of her appointed 9 [2021] HCA 40, [4, 36, 41] 10 Fallon v Johnston [2018] VSC 273 (30 May 2018) 11 Fallon v Johnston [2018] VSC 273 (30 May 2018), [21]. 12 Fallon v Johnston [2018] VSC 273 (30 May 2018), [21]; Darbishire v Warran [1963] 1 WLR 1067. 13 Fallon v Johnston [2018] VSC 273 (30 May 2018), [21]. 14 Fallon v Johnston [2018] VSC 273 (30 May 2018), [24]. 15 Fallon v Johnston [2018] VSC 273 (30 May 2018), [36- 38]. 16 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313, [187]. 17 Fallon v Johnston [2018] VSC 273 (30 May 2018), [36]. -- 7 of 14 -- 8 agents, namely, R2D and AMS. She submits that the submission made on Ms Clapcott’s behalf is to the effect that having made the initial telephone call, her obligation to act reasonably was discharged as everything else was out of her hands. [40] AMS is not a party to, nor represented, in the proceedings. There is no evidence that it acted as Ms Clapcott’s agent. In my view, the argument, as far as it extends to AMC is misplaced. [41] In accordance with the agreement, R2D is appointed as Ms Clapcott’s agent under the agreement for the limited purposes of recovering the hire charges invoiced to Ms Clapcott. There is no evidence it purported to, or did, act as her agent in any other capacity. In my view, the Defendant’s submission that Ms Clapcott’s actions must be considered in effect to include the acts of her appointed agent, R2D, does not advance the argument of alleged unreasonableness in Ms Clapcott’s actions in hiring a substitute vehicle. [42] It is reasonable to infer, and I draw the inference, from Ms Clapcott’s uses of her vehicle prior to the negligent act of Ms Knijff to travel to and from work; to transport persons in the course of her work; to transport her children; and for shopping, that she would have put the vehicle to the same uses during the period of repair and would otherwise be inconvenienced without a vehicle. Further, it is reasonable to infer, and I do, that she derived amenity from the various functions of her Mazda 2. I find that in mitigation of her physical inconvenience and loss of amenity, Ms Clapcott, hired a motor vehicle from R2D. I am satisfied that it was reasonable for her to seek to mitigate her loss by hiring a substitute vehicle. Has the Defendant established that the costs of hire are unreasonable to any extent? [43] The real issue between the parties is the reasonableness of the amount claimed for hire of the replacement vehicle from R2D, and whether the Defendant, Ms Knijff, has discharged the onus of establishing unreasonableness of the amount claimed for hire to any extent. [44] Ms Clapcott’s claim is for 47 days hire costs totalling 8470.91. I find that the agreement specified a daily hire rate of $125. However, the invoice specifies a daily hire rate of $115 per day, together with other fees and charges, including $1645.00 for excess reduction. Ms Whelan explains that the rate specified in the agreement of $125.00 per day for the Kia Cerrato (a small passenger vehicle) was reduced to $115 daily hire rate is for a smaller vehicle, namely a passenger light vehicle, which she says is like for like for Ms Clapcott’s Mazda 2. Ms Clapcott submits the claimed amount is reasonable market cost of her damages. [45] Ultimately, the Defendant submits that the claim for hire should be quantified at between 5 days hire and 2 weeks hire at rates Mr King set out in evidence, that is between $651.85 and $1651.15, arguing that $651.85 is the appropriate quantum, plus interest if any (submitting it would be reasonable to award no interest as Ms Clapcott has not expended any amount for the hire costs), from 29 July 2021 until judgment. [46] In support of the contention that the claimed amount is unreasonable, it relies upon contentions concerning the length of time it took for the repairs to be completed; an adverse inference it contends should be drawn as a consequence of the repairer not being -- 8 of 14 -- 9 called to give evidence by Ms Clapcott; that the Mazda 2 should have been written off, rather than repaired; and the claimed rate of hire; and the reasonableness of Ms Clapcott hiring a vehicle from R2D, a credit hire business, in the absence of pleading and establishing impecuniosity. [47] Each of the issues raised by the Defendant is considered below. Length of time taken for completion of repairs on the Mazda 2 [48] Ms Knijff submits that as Mr Keating’s unchallenged evidence establishes the Mazda 2 repairs could have been completed in three days, and if all of the work described had been done, it should have taken no more than seven days. Further, it is contended that as a result of a deemed admission, all parts were in stock, and even if they were not, parts should have been available, even if ordered from overseas, within two weeks at longest. [49] However, the difficulty for the Defendant is that Ms Clapcott was not (and nor, I observe, to the extent it is relevant, although in my view it is not, was her agent, R2D) responsible for the length of time taken until the repairs were performed and then for the repairs to be completed. Ms Clapcott did not delay in making arrangements for the damage to her vehicle to be repaired: she contacted her insurer the very same day as Ms Knijf’s negligent acts resulted in damage to her vehicle. Further, she hired a vehicle only for the time taken to have her vehicle repaired and returned to her. She followed up with her insurer and AMS on a number of occasions. Also, I observe, to the extent that it may be relevant (and I do not consider it is), Ms Whelan also followed up with the repairer. [50] I do not accept that the evidence of Mr Keating about how long the repairs could or should have taken is relevant to the reasonableness of the duration of claimed hire costs of 47 days. I am satisfied that Ms Clapcott was in fact without her vehicle for the duration of 47 days as a consequence of the Defendant’s negligence. [51] Although I do not need to go further, I make the observation, that it would be reasonable to infer, and if it was necessary to do so, I would infer, that the repairs did not, and could not, commence immediately. An assessment must necessarily have first been undertaken to ascertain the extent of the damage to the Mazda 2, obtain quotes for repair, and for decisions to be made by the insurer about whether to repair or write off the vehicle, and then to instruct a repairer to undertake the repairs, before they could be commenced. Should an adverse inference be drawn because the repairer was not called to give evidence? [52] For Ms Knijff, it is contended that the best witness to give direct evidence about the repair work was the person at Lomani Repairs who oversaw the repair work. She says she sought the issue of a subpoena to Lomani to obtain records, but Lomani did not respond to the subpoena. She contends that Ms Clapcott’s failure to call Lomani is decisively telling because the case turned on the time taken to repair the damage. It submits that where it would be natural for one party to call a witness who might be regarded as ‘in the camp’ of one party (which she contends is so here in respect of a Lomani), the absence should be regarded as adverse to the case of the party who fails to call the witness.18 In the circumstances, she argues in effect that ‘a strong adverse inference’ should be drawn against Ms Clapcott on the basis of the rule in Jones v 18 Reliance is placed on Payne v Parker [1976] 1 NSWLR 191 at 201-2, cited with approval in Manly Council v Byrne [2004] NSWCA 123 at [53]. -- 9 of 14 -- 10 Dunkel,19 it appears to the effect, that doing so would not have assisted Ms Clapcott’s case to do so. [53] I do not accept this submission. The evidence from the responsible person at Lomani’s who did or oversaw the repairs was not decisive for the reasons explained the argument made about the length of time taken for repairs, to the reasonableness of the quantum of damages claimed by Ms Clapcott for hire of a substitute vehicle for the duration of the period she was without her vehicle until it was repaired and returned to her. In my view, any evidence that a person from Lomani could have given is irrelevant to the question of reasonableness of hire costs for the duration of 47 days. Accordingly, it would be an error to draw the inference contended for by the Defendant. Should the Mazda 2 have been written off ? [54] In the alternative, Ms Knijff submits that the Mazda 2 should not have been repaired, having regard to its pre-accident value of $4600, and salvage value post-accident of $378 (resulting in a diminution in value caused by the collision of $4,222). Relying upon the repair cost of $6397.39, she argues that the repair cost was not an appropriate quantification of loss in value, and in effect, that consequently the Mazda 2 should have been written off. Based on Mr Keating’s evidence, she submits the hire period for a substitute vehicle would have been only two weeks, at a cost of $1651.15. [55] Again, in my view, the reasonableness of the claim for the duration of the hire period is not challenged by this argument. I am satisfied Ms Clapcott is not responsible (I observe, to the extent it is relevant, although in my view it is not, nor is R2D responsible) for the insurer’s decision to repair rather than write off her Mazda 2 vehicle. She was in fact without her vehicle for the claimed period of 47 days. Accordingly, in my view, it is irrelevant that, had it been written off, the hire period might likely have been reduced (although not to a period of 2 weeks in any event, given the need for assessment to place the insurer in a position to decide how to proceed). That is not what occurred. The vehicle was repaired on the instruction of the insurer and subsequently returned to Ms Clapcott after 47 days, the duration for which car hire expenses are claimed. [56] I do not accept the Defendant has discharged its onus to establish unreasonableness of the hire costs for 47 days. The claimed rate of hire Did Ms Clapcott act unreasonably in hiring from a credit hire company in the absence of pleaded and established impecuniosity? [57] The issues raised about the claimed rate of hire and impecuniosity are considered together for convenience. [58] The Defendant submits that Mr King’s evidence reflects the market rate for hire of a substitute vehicle, and that the evidence establishes that R2D charge more than the mainstream market reflecting the credit hire basis upon which it operates. Further, she argues that there is no evidence that Ms Clapcott could not pay mainstream market hire rates and therefore reasonably resorted to credit hire because of impecuniosity. She relies 19 (1959) 101 CLR 298 -- 10 of 14 -- 11 upon the 2014 English Court of Appeal decision of Zurich v Umjerji,20 where Lord Underhill said: ...a claim for the cost of hire of a replacement vehicle is, strictly, a claim for expenditure incurred in mitigation of the primary loss, namely the loss of use of the damaged vehicle: …..The burden is thus on the claimant to prove (and therefore to plead) that such expenditure was reasonably incurred….There is no doubt a grey area about how much needs to be pleaded and proved to establish reasonableness before the evidential burden shifts to the defendant to show the expenditure was unreasonable. But in this kind of case it is clearly right that a claimant who needs to rely on impecuniousness in order to justify the amount of his claim should plead and prove it…. 21 (emphasis added) [59] She asserts that the evidence ‘suggests’ that in any event Ms Clapcott was insured for the cost of hire of a replacement vehicle. However, she does not specify the evidentiary basis relied upon in making this assertion. I observe that although Ms Clapcott said she was reassured by NRMA/AMS that she would not have to pay the hire costs, whether that was based on her insurance policy or their knowledge of R2D’s terms is not evident. In my view, it is not reasonable to draw the inference based on the evidence presented that Ms Clapcott’s insurance covered the cost of the hired substitute vehicle. [60] As discussed earlier, Ms Whelan resisted the proposition that R2D charges more than is charged for hire in the broader mainstream car rental market relying upon the information generated in the portal. I do not accept that to be so for reasons explained later in these reasons for decision. That aside, in my view, it does not follow that Ms Clapcott’s hire of a substitute vehicle from R2D on a credit hire basis resulted in the quantum of the claim being unreasonable. [61] On Ms Clapcott’s behalf it is submitted that the 2018 Victorian Supreme Court decision of Fallon v Johnson,22 is apposite where, as discussed above, the Court held that a plaintiff will not be held to have acted unreasonably only because the Defendant suggests other possible more beneficial conduct, provided the plaintiff acted reasonably.23 The Court there considered a wronged party is not disentitled from recovering the cost of mitigating their loss on the basis that a defendant can suggest other measures less burdensome to the party in breach.24 She further relies upon a 2019 decision of the Court of Appeal of New Zealand in Frucor Beverages Ltd v Blumberg25 in which the Court referred with approval to the English House of Lords decision in Dimond v Lovell26 where Lord Hoffman found no error in a finding that it was not obligatory for a plaintiff to either shop around or hire from a mainstream car hire company, and acted reasonably in availing herself of the services of a credit hire company in hiring a substitute vehicle. [62] Except for Arselan, the authorities relied upon, are not binding on me. In Arselan, the High Court of Australia did not have before it the issue raised here the reasonableness of credit hire charges. Despite their persuasive value, the statements relied upon by the defendant in Zurich v Umjerji are not binding upon me, and nor are those in Fallon v Johnston. In respect of Zurich v Umjerji, Ms Clapcott does not rely upon impecuniosity 20 [2014] EWCA Civ 357. 21 [2014] EWCA Civ 357 at [37]. 22 [2018] VSC 273. 23 Ibid at [21]. 24 Ibid at [24]. 25 [2019] NZCA 547. 26 [2002] 1 AC 384. -- 11 of 14 -- 12 to justify the reasonableness of her claim. Nor does the law, as it stands, require her to do so. Rather, the Defendant bears the onus to establish unreasonableness. [63] Broadly speaking, if it was necessary for me to do so, I would adopt the approach taken by the Victorian Court of Appeal in Fallon v Johnston in relation to impecuniosity. That is, if the question whether Ms Clapcott is impecunious was relevant, and there is no evidence that she is -- it is not said here by Ms Clapcott, or indeed, Ms Knijff (who instead argues that it is relevant that she has not pleaded and proved that she is impecunious) -- in my view, it would simply form part of the factual matrix for consideration. [64] It is clear that in relation to claimed mitigatory expenses, the onus is on the defendant to demonstrate unreasonablness (rather that for the plaintiff to prove reasonableness). I do not accept Ms Knijff’s submission about the need for Ms Clapcott to plead and prove impecuniosity. She hired a substitute vehicle to mitigate her loss. In my view, the fact she could have investigated other options for hire of a replacement vehicle that may have resulted in a lesser quantum of claim is not to the point. [65] I accept that Ms Clapcott hired a substitute vehicle from a credit hire company to mitigate her physical inconvenience and loss of amenity, occasioned by being without her Mazda 2, caused by Ms Knijff’s negligent acts, in a manner convenient and available to her. That is, without being required to outlay a significant amount of money in advance to hire a vehicle for an indefinite period from a mainstream hire company. To require that she plead and prove impecuniosity before availing herself of a convenient available manner of mitigating her loss would, in my view, mistakenly place the onus on her to prove the reasonableness of doing so, and reasonableness of the claimed expenses, when the law places the onus on the defendant to establish unreasonableness. [66] The argument is separately made here that Ms Clapcott is not entitled to recover damages in the amount of credit hire charges as claimed because they are more expensive than hire through a mainstream car hire company would have been. It is argued broadly that the claim is unreasonable to the extent the claim exceeds the cost of hire for the relevant period through a mainstream car hire company. [67] Ms Whelan’s search through the portal for available daily hire rates through mainstream hire car providers on 29 July 2021 are for a passenger light vehicle, namely an MG 3 Core vehicle. The three screen shots provided in evidence indicate daily hire rates from Europcar of $110.03; $109.87; and $158.31 for an MG 3 Core. Pick up time varies between 5pm and 3 pm as discussed and in each case are the hire costs for one day until 30 July 2021. [68] How the $115 daily hire rate was arrived at, and how it is justified from the three Europcar screen shots provided is not explained by the evidence. Noting Mr King’s evidence that the cost can fluctuate throughout a given day, the time at which the relevant rates were the advertised price is not apparent, and nor does the evidence reveal when arrangements were made for the vehicle to be provided or was provided to Ms Clapcott on 29 July 2021. That aside, a daily hire rate of $115 per day is towards the lower end of the daily rates available from Europcar on 29 July 2021 in Brisbane for an MG Core 3 at some time during the day. [69] Ms Whelan resisted suggestions that R2D’s cost structure may provide for a higher level base daily rate than mainstream car hire companies hiring vehicles to members of the -- 12 of 14 -- 13 general public for, generally, fixed periods of time and for which payment is made in advance. She also denied that R2D is more expensive than mainstream hire companies. [70] R2D operates what is referred to as a credit hire business. Unlike mainstream car hire companies, it awaits payment from an at fault insurer at some future time, rather than requiring up-front payment from a customer. Further, it provides vehicles at short notice to customers in diverse locations for an initially unknown period of hire, which may ultimately be short or longer. R2D’s cost structure as a credit hire company is not a matter for me, but here, Ms Whelan denied R2D is more expensive than hire in the mainstream market. Based on the evidence, I would accept that it is. [71] As discussed, Mr Keating gave evidence of the average cost during the relevant timeframe for a Class A vehicle, such as a Toyota Yaris or Kia Rio for various periods of initial hire, including for a period of 30-99 days at $ 35.00 per day. It is reasonable to infer, and I draw the inference that a Class A vehicle equates to R2D’s classification of a passenger light vehicle. Mr Keating acknowledged the price in the mainstream market could vary from as little as $30 to $100-120 per day for a vehicle of this class, depending on the initial term of hire. He agreed that it could have been $115 per day on any given day. [72] The daily rates of hire accessed by Ms Whelan from the portal were for one day hire. I accept based on Mr Keating’s evidence that in the mainstream market the base rate remains at the initial hire rate for the full period of the hire. Similarly, R2D’s invoice reveals that it also charges the same daily hire rate throughout the full period of hire. Here, it is reasonable to infer that at no time was it anticipated the hire would be for one day. Rather, the intended hire period was for the duration of the Ms Clapcott’s insurance claim, until either her vehicle was repaired and returned to her or it was written off and she was paid out. [73] In charging a daily hire rate based on selective quotes generated on an unknown underlying basis through the use of the portal, available at some point on the day the vehicle was supplied, for a one day hire period, when it is known the hire would be for a longer period does not equate to charging the same as the mainstream market. As discussed earlier, Ms Whelan was not able to explain the operation of the portal as she had no expertise to do so. I make the observation that all three screen shots are for Europcar vehicles. It seems unlikely that no other mainstream hire company in Brisbane had equivalent vehicles for hire on 29 July 2021. The basis upon which the portal algorithm selected the three Europcar vehicle quoted rates, rather than any other hire car companies quoted rates, is unknown. They could be the least expensive or the most expensive available at any time on the relevant date. Whether they reflect the mainstream rates available at the time the vehicle was hired by Ms Clapcott, noting Mr King’s evidence that rates can vary throughout a given day, was not the subject of evidence. [74] It is reasonable to infer the daily hire rate invoiced to Ms Clapcott by R2D is set having regard to available rates for one day’s hire at some time on 29 July 2021 (the day of commencement of hire) through Europcar. However, the vehicle hire was not expected at any time to be for a one day’s duration. Rather, the anticipated hire period would include adequate time for assessment of the damage to Ms Clapcott’s vehicle; as well as authorisation of, and repair of the vehicle; or alternatively, for a decision to taken by the insurer for the vehicle to be written off, and if so, for another vehicle to be sourced to replace Ms Clapcott’s vehicle. -- 13 of 14 -- 14 [75] Further, it is apparent from the evidence of Mr King that R2D’s charges for items including maximum excess reduction, rather than capping them as Hertz does after 10 days in each 30 day rental period, (or a total maximum of $800 in the relevant period of 47 days) results, in higher charges for maximum excess reduction than Hertz’ equivalent charges in mainstream hire car company market. [76] I accept that R2D’s charges are more expensive than Hertz’ charges would have charged for an equivalent period although the extent of the difference would depend upon the term of the initial hire. However, R2D provided a somewhat different service than a mainstream hire company by making a vehicle available, delivering it to and collecting it from not at fault insured person –Ms Clapcott-- at short notice, and for an indefinite period while she was without her own vehicle, and without up-front payment. [77] In any event, it is not incumbent upon Ms Clapcott to prove that R2D’s charges are equivalent to mainstream hire company charges. Further, the evidence does not establish that R2D’s charges are unreasonable or that it was unreasonable for Ms Clapcott to hire a substitute vehicle from R2D. [78] I am not satisfied that the Defendant has established that Ms Clapcott acted unreasonably in hiring a substitute vehicle from the credit hire company, R2D nor that, to any extent, the claimed damages are unreasonable. Conclusions and orders [79] It follows that Ms Clapcott is entitled to succeed in her claim for the costs of hiring a substitute vehicle as claimed. [80] She also seeks interest and legal costs. However, as the car hire expenses have not been paid by Ms Clapcott, I am not satisfied that I should exercise my discretion to award interest to the date of judgment. No order is made for interest. [81] I will hear the parties as to costs. To this end, the matter will be listed for mention by telephone. A party wishing to make an application for costs must file in the court and serve on the other party any material upon which it intends to rely, including in relation to the quantum of costs sought, at least three clear business days before the mention date. Further, both parties must advise the registry by email of the telephone number on which they are available to be contacted by at least 2 clear days before the date. -- 14 of 14 --