Author: Raphael Hermiz
Date of Decision: 10 May 2019
Citation: Lee v Strelnicks  NSWSC 526
Jurisdiction: Supreme Court of New South Wales
- Whilst the burden for proving the need for replacement vehicles remains a low bar to jump over, it remains the responsibility of the Plaintiff to provide details of that need.
- There remains an obligation on a successful litigant to act reasonably in mitigating loss. Securing a decision in one's favour cannot be viewed as an invitation to 'gratuitous expenditure, knowing it will be borne by someone else'.
The Plaintiff initiated legal proceedings in the Local Court claiming damages for the cost of repairs and loss of use while their vehicle which was undergoing repairs. Liability was also in issue.
A determination was made by the Assessor in the Local Court in favour of the Plaintiff. As such damages were awarded for the Plaintiff, however, these damages were for a nominal sum.
An appeal was subsequently filed pursuant to s 69 of the Supreme Court Act 1970 (NSW) by the Plaintiff arguing that the assessment of damages was made contrary to authority and principles which constituted an error of law.
Decision at first instance
The first issue in front of the Assessor was a determination on liability. The Assessor determined that liability was split 80/20 in favour of the Plaintiff. This was not controversial.
The next issue was to address the assessment of damages for the Plaintiff. 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 (Ross, Garry v State Transit Authority of NSW & Higgins, Sean  NSWLC 11).
The Assessor had indicated that it was "not a high bar to jump over". The evidence before the Assessor was "nothing more than lip service to the question of what need she had". The Plaintiff vaguely and briefly mentioned in her evidence that she needed a replacement vehicle for family purposes and taking kids from place to place and visiting friends. This evidence was "meaningless and opaque in terms of providing any particularity as to what need a plaintiff had".
The Assessor concluded that there was "no evidence as to the degree of the use of the vehicle" and that there was "nothing but the barest assertion in general terms that means nothing, in truth, regarding factual matters of evidence".
The Assessor ultimately gave judgment in favour of the Plaintiff for what was referred to as "nominal damages" in the amount of $30.73, representing the interest on the capital value of the damaged vehicle. The Assessor determined that:
- the Plaintiff had not established her entitlement to damages "assessed at the market rate" for hiring a replacement car; and
- damages should be assessed on the basis of interest accumulating on the capital value of the plaintiff’s car whilst it was being repaired, rather than at the market rate for hiring a replacement vehicle during that time.
Decision on appeal
Wilson J considered the arguments presented by both parties and was not persuaded that the Assessor in the first instance erred in law. The Defence filed by the Defendant put the Plaintiff to proof of need. The lack of evidence regarding need from the Plaintiff had not satisfied the relatively low bar that was required by the Plaintiff for the general use of her motor vehicle prior to the collision.
Wilson J dismissed the appeal and ordered that the Plaintiff pay the First Defendant's costs. The decision on appeal reinforced:
- damages for the loss of use of a non-income earning chattel is contingent on proof of need;
- if need is proven by the Plaintiff, the damages are to be measured by reference to the market rate of hiring a replacement vehicle; and
- the fact that a Plaintiff hires a replacement vehicle is not proof that the Plaintiff needed that replacement vehicle.
Why this case is important
- The case highlights that the onus remains on the Plaintiff to prove a need for a replacement vehicle.
- It is not enough to provide "a statement from the Plaintiff that gives nothing but glib statements as to a general need".
- The test for need requires some detail or particulars, for example:
- visits to family and friends – what visits were made or planned;
- take kids to or from school – the location of the school, distance from home, any convenient alternative transport, timing of school holidays;
- odometer readings - to indicate the extent of use of the replacement vehicle; and
- distance between places in which the Plaintiff utilised the replacement vehicle.
- The case reiterates the principle that need is not self-proving and a Plaintiff must specify with some particularity the reasons for hiring a replacement vehicle.