Assignment Task
Introduction and Overview
On 11 March 2020, Mr Charlie Kelpie’s 2008 motor vehicle (`the vehicle`) was parked in Brand Road, St Kilda. The parked vehicle was struck and damaged by a car driven by Ms Daisy Bluey (`the collision`).
By complaint dated 21 May 2020, Mr Kelpie, the plaintiff, claimed damages due to the collision, which he alleged was caused by the negligent driving of Ms Bluey, the defendant. The vehicle was a write-off. Mr Kelpie claimed (among other things) the write-off value of the vehicle and hire-car expenses.
In its defence dated 10 July 2020, the defendant admitted liability. On 23 September 2020, Ms Bluey’s insurer (`RACV`) paid an amount of $24,600 to Mr Kelpie via his solicitors representing the write-off value of the vehicle (`the write-off payment`).
At hearing, the sole issue for determination related to Mr Kelpie’s claim for hire-car expenses. The sum claimed for hire-car expenses was $33,325 (being 215 days at a rate of $155 per day).
At the time of the collision, the vehicle was comprehensively insured by RACV. It was not disputed that Mr Kelpie’s comprehensive policy included provision of a hire car (with some conditions). However, Mr Kelpie opted to pursue a claim against the `at fault` driver rather than to claim under his own policy. In essence, the defendant contended that in taking this course of action, Mr Kelpie had not acted reasonably and had failed to mitigate his damage. The defendant took issue with the duration of the hire car claim (on various grounds) as well as the daily rate.
Mr Kelpie’s evidence was as follows:
(a) On the day of the collision, his partner (who was then 8 months pregnant) had parked the vehicle in order to attend a medical appointment. After the collision, it was apparent the vehicle was undriveable and it was towed to Mr Kelpie’s Carrinyup address.
(b) At the time of the collision, Mr Kelpie had no other vehicles registered to his name and no other car available to him. A chef by occupation, he needed a car to travel to and from work (and to transport equipment such as kitchen knives). Additionally, a car was needed for family reasons, especially with his partner about to give birth, for attending medical appointments, for household shopping and so on.
(c) Shortly after the collision, Mr Kelpie telephoned Ms Bluey’s partner to exchange further details. On either 11 or 12 March, he made a brief telephone call to RACV, as his comprehensive insurer, about the collision. He was told that, as he was not at fault, he would be `better off` making a claim against the `at fault` driver rather than under his own policy. He followed that advice.
(d) His understanding was that, had he claimed under his own policy, there would have been deducted from any payout, the remaining eight or nine monthly instalments of the annual premium. He didn’t know whether his `no claim` bonus would be impacted. He did know that if he claimed under his own policy, he would be responsible for stamp duty and transfer fee. He had no awareness of whether his policy was for `agreed value`. He did not know that he was entitled to a hire car had he claimed under his own policy.
(e) Within two days, the vehicle had been assessed as uneconomical to repair. After a salvage tender process, Mr Kelpie received a cash sum of $3,500 (`the salvage sum`) and disposed of the vehicle.
(f) On 20 March 2021 a letter of demand was sent to Ms Bluey. On 31 March 2021, a further letter of demand was sent to RACV, as Ms Bluey’s insurer. Both letters included documents regarding the assessment and the salvage.
(g) Within weeks of the collision, Mr Kelpie was laid off by his employer due to COVID-19 restrictions. At some stage, he began receiving government support (the `Job Keeper` allowance). He could not afford to buy a permanent replacement vehicle before being paid out. His partner was on parental leave due to the birth of the baby within weeks of the collision.
(h) On 12 March 2021, Mr Kelpie took possession of a hire-car (a Toyota Corolla) through an accident hire car company, Youbetchya Rentals. He had never rented a car before and thought the rate of $155 per day was reasonable as it included insurance, zero excess, roadside assist and a baby capsule. At some point, he made enquiries with a market hire car company (Amazing Insurance) to arrange a hire car, but was told he needed a credit card (which he did not have) nor did he have funds for an upfront bond.
(i) On 23 September 2020, his solicitors received the part pay-out sum on his behalf.
(j) On
