CUNANAN v MCLEOD

……………………………….. Presidential Member J Lucy REASONS FOR DECISION

1. The appellant appealed from the Original Tribunal’s order requiring him to pay damages to the respondent in respect of damage he caused to her car while helping her to move it.

2. I have dismissed most of the appellant’s grounds of appeal, but have found that the Original Tribunal erred in its assessment of damages, mainly by failing to give the appellant a reasonable opportunity to respond to the respondent’s submissions and evidence. I have re-assessed the damages on the evidence and reduced them from $6,595.95 to $5,451.90.

Background

3. Ms McLeod purchased a hail-damaged car, a Subaru, in February 2020, at an auction. The car cost her $5,500 plus administration and other charges, taking it to a total cost of $6,308.50. It was a repairable write-off which could not be insured.

4. After purchasing the car, Ms McLeod spent $7,150.81 on fixing the rear windscreen, getting a new tail light, getting casing on one of the side mirrors, sealing the paint and conducting other repairs. The panels remained hail damaged.

5. Ms McLeod was driving to a netball carnival in March 2023 in the Subaru. When attempting to drive through a narrow gate, she scraped the passenger side of the vehicle.

6. Ms McLeod stopped the car and appeared upset.

7. Mr Cunanan, the father of a netball player at the carnival, asked her whether she would like him to take over and drive the car through the gate for her. Ms McLeod agreed to this. She got out of the car and Mr Cunanan got in.

8. When Mr Cunanan attempted to drive the car through the gate, it accelerated rapidly and hit and scraped the driver’s side of the vehicle. Mr Cunanan said that the accelerator had become stuck when he pressed on it and the car surged forward, out of his control. He said that the car had a mechanical fault.

9. Ms McLeod’s evidence was that this had never happened before or since.

10. Ms McLeod provided the Original Tribunal with two itemised quotations for repairing the damage, the lowest of which was dated 20 March 2023 and was for $8,158.45. She said she had deducted from that amount $1,562.50 for items relating to the passenger side, leaving $6,595.95 for which she said Mr Cunanan was responsible.

11. The Original Tribunal found that, although Mr Cunanan had good intentions, the damage to the car had been caused by his negligence. It ordered him to pay Ms McLeod $6,595.95 to compensate her for the damage to the car.

12. Mr Cunanan has appealed to the appeal tribunal from that order.

Nature of the appeal

13. An appeal tribunal may, as it considers appropriate, deal with an appeal as a 1 new application or as a review of all or part of the Original Tribunal’s decision. Generally, the appeal tribunal determines how it is going to deal with an appeal 2 at the first directions hearing, as it did in this case.

14. The appeal tribunal in this case dealt with the appeal as a review of the Original Tribunal’s decision. An appeal which is dealt with as a review is what is usually 3 called a rehearing.

15. At a directions hearing held on 28 May 2025, the appellant was directed to provide the Tribunal and the respondent with a list of errors in the decision of the Original Tribunal and the respondent was directed to provide a response to that list of errors. At the hearing of the appeal, I confirmed with the parties that 4 the appeal was being dealt with as a review of the Original Tribunal’s decision.

1 ACT Civil and Administrative Tribunal Act 2008, s 82(1) 2 Mansour v Dangar [2017] ACAT 49 at [23]; See Order 9 of Directions made on 28 May 2025 3 Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [13]-[14]; see also Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [36]-[37] 4 Transcript of hearing dated 8 August 2025, page 4, lines 9 to 14

16. In Mansour v Dangar [2017] ACAT 49, Presidential Member Daniel (as she then was) summarised the distinguishing features of the two different approaches to an appeal as follows: For a new hearing, established principles dictate that the hearing starts afresh, evidence is given again, and the appeal tribunal’s view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal. By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal is not at liberty to interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion. (Footnotes omitted)

17. I have adopted that approach to an appeal by way of rehearing in this case.

18. In order to succeed on appeal, the appellant must establish an error of fact, law 5 or discretion. The appellant must also demonstrate that the error was material 6 to the result.

Leave to rely on additional evidence

19. Mr Cunanan applied for leave to rely on evidence which was not before the Original Tribunal. Section 82(2) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that an appeal tribunal may, if leave is granted, receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way.

20. The overarching principle to be applied when considering whether to allow new 7 evidence on appeal is whether that would be in the interests of justice. Whilst it is not usually in the interests of justice to allow new evidence on appeal, in some cases it may be if there is an acceptable reason for the evidence not being

5 See, for example, Feng v UP 840 [2023] ACAT 8 at [7] 6 Zeng v Crane [2022] ACAT 70 at [27]; Feng v UP 840 [2023] ACAT 8 at [7] 7 Kolodzeij v Ali [2021] ACAT 114 at [12](f); Amer v Eriksson [2019] ACAT 108 at [19] 8 brought at the original hearing. A material consideration when deciding whether to give an appellant leave to rely on further evidence on an appeal conducted by way of a rehearing, is whether the evidence is likely to have 9 affected the outcome of the decision made at first instance.

21. Mr Cunanan’s proposed new evidence was a print-out from a website at https://www.competitionsubaru.com/ with the heading “What are Common Subaru Forced Acceleration Issues?” The web page stated: “One particularly concerning problem some Subaru owners face is forced acceleration, where the car accelerates unintentionally without the driver pressing the gas pedal.”

22. Ms McLeod opposed leave being granted to receive this evidence, saying that it was available at the original hearing.

23. When asked at the appeal hearing about why he did not present this evidence at the original hearing, Mr Cunanan explained that he “wasn’t really that prepared 10 when I came in” and that he “felt flustered that day.”

24. One of the reasons for the leave requirement in respect of new evidence on appeal is that an appeal is generally not an opportunity to re-run a party’s case, but is focused on whether the Original Tribunal made an error on the material before it at the time. As the appeal tribunal has expressed it on a different occasion, “the appeal jurisdiction is about the correction of error. It is not an 11 opportunity to have ‘a second go.’” Mr Cunanan has not provided an acceptable reason for not presenting the evidence at the original hearing.

25. In addition to this, the evidence is hearsay. It is from the website “competitionsubaru.com” and there is no evidence as to who the author of the commentary on that website is. Mr Cunanan did not make that person available for cross examination (or identify the person).

8 Amer v Eriksson [2019] ACAT 108 at [20] 9 Krutsky v Commissioner for Social Housing [2023] ACAT 68 at [7]; Amer v Eriksson [2019] ACAT 108 at [20] 10 Transcript of hearing dated 8 August 2025, page 7, lines 5-15 11 Zeng v Crane [2022] ACAT 70 at [29]

26. I have decided not to grant Mr Cunanan leave to rely upon the new evidence as I am not persuaded that it would be in the interests of justice to do so.

Appeal Grounds

27. As directed by the tribunal, Mr Cunanan provided a list of the errors of fact or law or discretionary errors in the Original Tribunal’s decision. Those did not, on their face, clearly identify what was said to be an error, but rather pointed to general areas of the Original Tribunal’s decision-making with which the appellant disagreed.

28. Mr Cunanan identified the alleged errors under the following headings: (a) Alleged excellent mechanical history (b) Negligence, duty of care, breach of duty (c) Point 12 suggests that the applicant’s case was more persuasive (d) Insurance (e) Good Samaritan Law (f) Damages

29. During the course of the hearing, I asked Mr Cunanan questions so as to better understand his grounds of appeal. Each ground is dealt with below.

First ground: Alleged excellent mechanical history

30. Mr Cunanan has framed this ground, in his written material, mostly in terms of the unreliability of Ms McLeod’s evidence. He disputed the evidence presented by Ms McLeod attesting to the alleged excellent mechanical history of the car and said the evidence established instead that the car was hail damaged, in poor condition to begin with and had an incomplete service history. Mr Cunanan submitted that the tribunal member blatantly disregarded the matters indicating that the car was in poor condition. Mr Cunanan asserted, in his written submissions, that there was a mechanical fault that caused the car’s rapid acceleration.

31. At the appeal hearing, Mr Cunanan submitted that the Original Tribunal had accepted that the car had been serviced a month before, when in fact it had been 12 serviced thirteen months earlier. Ms McLeod’s evidence at the original hearing was that, a month before the incident when the car received its routine service, the odometer was at 61,475km. Ms McLeod acknowledged at the appeal hearing that that evidence was incorrect. She said it was a “mistake” and 13 that she had “misread the dates.” The Original Tribunal noted in its reasons that Ms McLeod had presented evidence that the car had an excellent 14 mechanical history. The Original Tribunal did not, however, make any findings about the length of time since the car’s last service or its service history.

32. During the original hearing, the Original Tribunal discussed the issue of the servicing of the car with Mr Cunanan, saying to him: “if you showed me that it hadn’t been serviced, that wouldn’t prove that it was faulty, that would just 15 show that it wasn’t serviced.” The Original Tribunal continued: “it’s not the lack of service that would prove anything. You’d have to show there was something wrong with the accelerator, or something wrong with the brake, or 16 something wrong with something that caused this to happen …”

33. Mr Cunanan contended that the Original Tribunal should have taken into account the circumstance that the car had not been serviced for a long time and concluded that it was more likely that there was a fault with the car which had 17 caused the accident. Ms McLeod’s position is that the vehicle was 18 mechanically sound and the onus was on Mr Cunanan to prove otherwise.

34. In her application to the Original Tribunal, Ms McLeod bore the onus of establishing that Mr Cunanan had caused the damage to her car. Mr Cunanan submitted that the accelerator had stuck. The Original Tribunal stated that it found Ms McLeod’s “position more persuasive, especially as evidence was given that the car, which has continued to be driven since the accident, has 12 Transcript of hearing dated 8 August 2025, page 11, lines 19 to 27 13 Transcript of hearing dated 8 August 2025, page 17, lines 1 to 5 14 Reasons for decision in XD 1308/2024 dated 2 May 2025 at paragraph 5 15 Transcript of hearing dated 17 March 2025, page 85, lines 20 to 22 16 Transcript of hearing dated 17 March 2025, page 85, lines 31 to 34 17 Transcript of hearing dated 17 March 2025, page 85, lines 43 to 47 18 Transcript of hearing dated 8 August 2025, page 17, lines 16 to 17 never before or since presented any issues of the nature the respondent 19 claimed.” It reasoned that “[i]n the absence of independent evidence supporting the possibility of issues related to the accelerator” it preferred Ms 20 McLeod’s submissions and evidence as to causation.

35. Mr Cunanan has not established that the Original Tribunal made an error in disregarding matters indicating that the car was in poor condition. The Original Tribunal was entitled to find, on the basis of the evidence before it, that the accident was caused by Mr Cunanan’s negligent driving and not by a mechanical fault. As it noted, in the absence of expert evidence about mechanical defects, there was little evidence other than Mr Cunanan’s assertion to support a factual finding that the accelerator was defective. Even if the Original Tribunal had found that the car had not been serviced for thirteen months, that would not have established that the accelerator was faulty.

36. Mr Cunanan also submitted that it was impossible for him to get evidence of 21 any mechanical fault because he did not have access to the car. Ms McLeod 22 responded by saying that he did not request access.

37. The issue of Mr Cunanan not having access to the car to obtain expert or other evidence was not raised at the original hearing and was not a ground of appeal. Mr Cunanan did not subpoena the log books or other evidence as to the car’s mechanical history. In circumstances where Mr Cunanan did not request access to the car or issue any subpoenas, and did not identify the failure to give him an opportunity to obtain an expert report as an error in his list of errors, this submission does not assist him to establish his appeal grounds.

38. The first ground of appeal is dismissed.

19 Reasons for decision in XD 1308/2024 dated 2 May 2025 at paragraph 12 20 Reasons for decision in XD 1308/2024 dated 2 May 2025 at paragraph 12 21 Transcript of hearing dated 8 August 2025, page 8, lines 16 to 26; page 20, lines 9 to 10; page 28, lines 16 to 17 22 Transcript of hearing dated 8 August 2025, page 36, line 36 Second ground: Negligence, duty of care, breach of duty

39. Under this heading, Mr Cunanan contended that it was impossible to have foreseen that the accelerator would become stuck and this was out of his control. He submitted that no reasonable person would have been able to foresee this incident occurring.

40. This ground does not, in terms, identify an error made by the Original Tribunal. It may be that Mr Cunanan is suggesting that the Original Tribunal erred in finding (implicitly or otherwise) that the accelerator becoming stuck was reasonably foreseeable. I tried to clarify with Mr Cunanan at the appeal hearing what he said the Original Tribunal’s error was, and he agreed that he was saying that the Original Tribunal was wrong to find that he was negligent, because the 23 accident was not his fault and the car accelerator became stuck.

41. The Original Tribunal did not accept Mr Cunanan’s submission and evidence that the accelerator became stuck. Accordingly, the question of whether it was reasonably foreseeable that the accelerator would stick did not arise.

42. For reasons given in relation to the first ground of appeal, the Original Tribunal did not make any error in its fact-finding process in regard to its findings about causation. As a general principle, an appellant alleging that the Original Tribunal has made an error of fact must show that the factual finding was 24 “clearly wrong.” I am not persuaded by Mr Cunanan’s submissions that the Original Tribunal’s finding that the accident was Mr Cunanan’s fault was clearly wrong.

43. This ground is accordingly dismissed.

Third ground: Point 12 suggests that the applicant’s case was more persuasive

44. Under this heading, Mr Cunanan challenged the Original Tribunal’s findings on causation in paragraph 12 of its reasons. Those findings included that Ms McLeod’s position on causation was more persuasive. Mr Cunanan sought to

23 Transcript of hearing dated 8 August 2025, page 23, lines 27 to 32 24 Feng v UP 840 [2023] ACAT 8 at [7]; Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116 at [9] rely upon the new evidence he sought to adduce to show that acceleration is “an issue with Subaru.” As indicated above, I refused him leave to present that evidence.

45. Mr Cunanan submitted that Ms McLeod had provided “many false and misleading statements from the commencement of matters,” referring to the odometer reading as an example. I note that the alleged error in respect to the odometer reading in Ms McLeod’s evidence relates to the error in the date on which the car was serviced. The Original Tribunal did not make any finding about the odometer reading in its reasons.

46. Mr Cunanan stated at the hearing that the error the Original Tribunal made is that it should not have accepted Ms McLeod’s evidence, because there were some inconsistencies in it and aspects of it were incorrect, and that it should 25 have found that there was a fault with the car. He said that the Original Tribunal did not look at certain aspects of the evidence, such as that Ms McLeod said she was manoeuvring whereas she actually crashed the car into a 26 post.

47. Mr Cunanan did not submit to the Original Tribunal that it should not accept Ms McLeod’s evidence for the reasons he now gives.

48. The task of demonstrating that a factual finding is clearly wrong is a difficult one. Although there were some inconsistencies and errors in Ms McLeod’s evidence, as Mr Cunanan points out, that does not of itself establish that the Original Tribunal was wrong to accept her position that the accelerator did not get stuck. It is also unclear, from Mr Cunanan’s submissions, which factual findings he contends are wrong.

49. Mr Cunanan has not demonstrated that the Original Tribunal made an error of law by expressing a preference for Ms McLeod’s evidence about causation, notwithstanding the errors and inconsistencies he has identified.

25 Transcript of hearing dated 8 August 2025, page 29, lines 6 to 16 26 Transcript of hearing dated 8 August 2025, page 29, lines 37 to 40

50. Accordingly, the third ground is dismissed.

Fourth ground: Insurance

51. Mr Cunanan submits that Ms McLeod had a duty of care to inform him that the car was not insured when he offered to assist her. Mr Cunanan did not make this submission to the Original Tribunal. If he wanted to make a claim that Ms McLeod owed him that duty of care and had breached it, it was open to him to file an application seeking damages in negligence. It is too late to raise this argument on appeal.

52. Mr Cunanan also submitted that there was uncertainty due to the value of the car, given that it was hail damaged and insurers would not insure it. At the 27 hearing he said that Ms McLeod was getting more money than the car is worth 28 and that the Original Tribunal made an error in awarding damages.

53. I have dealt with these submissions under the appellant’s last appeal ground, headed “Damages.”

Fifth Ground: Good Samaritan law

54. Mr Cunanan submitted to the Original Tribunal, and on appeal, that he was a “Good Samaritan” and so should not be liable for any damage he caused to the car. He did not explain in his appeal submissions how he said the Original Tribunal erred in applying the “Good Samaritan” law.

55. As the Original Tribunal noted, section 5 of the Civil Law (Wrongs) Act 2002 provides a “good Samaritan” with some protection from liability when giving assistance to a person who is apparently injured or at risk of being injured or in need of emergency medical assistance. The Original Tribunal found that the provision did not apply because Ms McLeod was not apparently injured or at

27 Transcript of hearing dated 8 August 2025, page 34, line 6 28 Transcript of hearing dated 8 August 2025, page 35, lines 38 to 41 29 risk of being injured. It also commented that Mr Cunanan had not submitted 30 that Ms McLeod was not apparently injured or at risk of being injured.

56. On appeal, Mr Cunanan submitted that, at the time of the incident, he had concerns that, if Ms McLeod continued to drive her car, she was at risk of being 31 injured. There was, however, no evidence of that before the Original Tribunal and that submission was not made to the Original Tribunal.

57. The Original Tribunal did not make any error in finding that Ms McLeod was not apparently injured or at risk of being injured on the evidence before it, or in finding that section 5 of the Civil Law (Wrongs) Act 2002 does not apply.

58. Ground 5 is dismissed.

Sixth Ground: Damages

59. Mr Cunanan submitted that the award of damages was greater than the value of the car. He also submitted that many of the items on the Marko Body Repairs quotation, in respect of which damages were awarded, were for repairs to damage caused by Ms McLeod.

60. Ms McLeod told the Original Tribunal that the repairers who gave her a quotation informed her it was cheaper to replace the car than to repair it, but that 32 her preference was to have it repaired. This comment presumably related to all of the repairs needed, not just repairs to the damage caused by Mr Cunanan. There is no evidence as to whether it was cheaper to replace the car than to repair the damage caused by Mr Cunanan, or not.

61. The Original Tribunal did not consider in its reasons whether the cost of the repairs exceeded the value of the car. However, this was an issue discussed at 33 the hearing. The member commented:

29 Reasons for decision in XD 1308/2024 dated 2 May 2025 at paragraph 23 30 Reasons for decision in XD 1308/2024 dated 2 May 2025 at paragraph 23 31 Appellant’s Reply to Response sent to the Tribunal by email on 23 July 2025. 32 Transcript of hearing dated 17 March 2025, page 30, lines 12 to 15 33 Transcript of hearing dated 17 March 2025, page 91, lines 32 to 36 Now, the only thing we've got in front of us is a quote. The quote is one thing. I agree with you, if the quote was higher than the value of the car, there's no way in the world she would get it, but the question is what's the value of the car, which is one of the reasons I actually asked her at the very start about all that stuff.

62. After some discussion about what the car was worth, the member said: “in the absence of submissions from you of the actual value of the car, it's hard for me 34 to say the car is worth less than these repairs.”

63. There were a number of factors making it difficult for the Original Tribunal to assess the value of the car. It had been purchased for $5,500 in February 2020 when unregistered, then Ms McLeod had spent $7,150.81 on it and registered it. Since purchase, the car had gone from 44,000 kms on the odometer to about 35 120,000 kms. It had been partly damaged by Ms McLeod and further damaged by Mr Cunanan. Neither party had obtained a valuation of the car or evidence from which the car could be valued.

64. The Original Tribunal was not in a position to determine that the cost of repairing the damage caused by Mr Cunanan (as opposed to the cost of repairing all of the damage) was greater than the value of the car. There was insufficient evidence before it for it to form that conclusion. I am not persuaded that it made an error in awarding damages to compensate Ms McLeod for the cost of the repairs, as opposed to awarding damages for the value of the car.

65. Mr Cunanan also submitted that the Original Tribunal erred in awarding damages in respect of repairs to damage caused by Ms McLeod.

66. In awarding damages, the Original Tribunal relied upon what it described as “a detailed cost breakdown of the damage to the car from a reputable mechanic/ repairer” provided by Ms McLeod. It stated that it had reviewed this “and exactly isolated the damage caused by the respondent and that by the 36 applicant.”

34 Transcript of hearing dated 17 March 2025, page 93, lines 2 to 4 35 Transcript of hearing dated 17 March 2025, page 92, lines 31 to 42 36 Reasons for decision in XD 1308/2024 dated 2 May 2025 at paragraph 14

67. The member discussed with Ms McLeod at the hearing which items on the quotation related to damage caused by Mr Cunanan, and the following exchange 37 took place: MS McLEOD: So I've added up all of the MEMBER: What have you got? MS McLEOD: all of the ones that had - that are referring to the passenger side. MEMBER: Yes, I've got that point. What have you got? MS McLEOD: And that was $1,562.50. MEMBER: Are you saying that's what comes off? MS McLEOD: That's what comes off, yes. MEMBER: So what does it come to? MS McLEOD: 8158.45. MEMBER: 8,158.45 minus - what was it - one thousand MS McLEOD: 1,562.50.

68. It appears that the Original Tribunal then subtracted $1,562.50 from $8,158.45 to arrive at the figure the subject of its orders, being $6,595.95. As Mr Cunanan submitted in his list of errors filed on 19 June 2025, the “Member failed to detail how this sum was calculated.”

69. The Original Tribunal did not give Mr Cunanan an adequate opportunity at the hearing to respond to Ms McLeod’s submissions as to those items on the quotation which were referable to damage caused by her, and those items which were referable to damage caused by him. Mr Cunanan was not informed until the exchange set out above, how much Ms McLeod was claiming and the basis on which she claimed that amount. He was not provided with a list of the items Ms McLeod claimed from the quotation. Nor did the Original Tribunal provide him with an adequate opportunity to respond to Ms McLeod’s submissions about the cost of repairing the damage caused by him.

70. I am satisfied that by failing to explain how it arrived at the sum of $6,595.95, and by failing to give Mr Cunanan an adequate opportunity at the hearing to

37 Transcript of hearing dated 17 March 2025, page 90, lines 23 to 44 respond to Ms McLeod’s submissions as to the value of the damage caused by him, the Original Tribunal erred in law.

71. I am not satisfied, however, that the Original Tribunal erred in failing to discount the damages to account for the circumstance that the panels were hail 38 damaged before the accident, as Mr Cunanan claimed. The measure of damages for injury to goods is the cost of repair, or the cost of replacement, 39 whichever is the most reasonable in the circumstances. What is reasonable is 40 usually whatever sum is less. In this case, the only evidence was that of Ms McLeod that the mechanic told her that “it is cheaper to replace it than it is to 41 repair it.” At the appeal hearing, Ms McLeod indicated that this meant that it 42 was cheaper to replace parts than repair them. There was no evidence to the contrary. For that reason, the measure of damages is the cost of replacement of the parts and other associated repair costs.

72. The New South Wales Court of Appeal discussed the question of whether repairs which result in improvement to goods should result in a discount in damages in Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313. After reviewing the authorities, Sheller JA found that where a plaintiff does not have any reasonable choice other than to replace or repair the damaged property, the cost of replacement or repair (without any 43 44 discount) is recoverable as damages. Giles JA took a similar approach. I find that Ms McLeod did not have any reasonable choice other than to repair her vehicle, by replacing the damaged parts, and that Mr Cunanan is not entitled to a discount in the damages awarded.

38 Transcript of hearing dated 8 August 2025, page 52, lines 1 to 22 39 See, for example, Yehia v Williams [2022] VSC 197 at [97] 40 Yehia v Williams [2022] VSC 197 at [97] 41 Transcript of hearing dated 17 March 2025, page 30, line 13 42 Transcript of hearing dated 8 August 2025, page 56, lines 30 to 35 43 Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313 at [55] 44 Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313 at [104]- [107] Reassessment of damages

73. The most efficient course, in circumstances where the Original Tribunal erred in respect to the assessment of damages, is for the appeal tribunal to determine the value of the repairs occasioned by Mr Cunanan’s conduct, on the evidence before the Original Tribunal.

74. At the appeal hearing, Mr Cunanan submitted that the Original Tribunal had taken into account items for repairs to damage to the car which had not been caused by him, but had been caused by Ms McLeod. He said that the items on the quotation relating to the damage caused by him came to a total of 45 $4,900.42.

75. Mr Cunanan submitted that he was not responsible for items on the quotation containing the abbreviations N/S, N/S/F and N/S/R which stood for “Near Side,” “Near Side Front” and “Near Side Rear,” the passenger side or the side nearest to the curb. Those items are items 7, 9, 12, 14, 16, 19, 21, 24, 26, 28, 30 and 34 under the heading “Remove & Replace”; items 3, 5 and 7 under the heading “Repair & Align”; and items 3, 5, 7, 9 and 11 under the heading “Refinish.”

76. Mr Cunanan also said he was not responsible for item 23 (the fuel flap and catch), under the heading “Remove & Replace,” as the fuel cap was not damaged.

77. Mr Cunanan submitted that he was not responsible for item 27 (“O/S Tailamp Assy”), item 32 (“rear bar & Dis/Ass”) and item 33 (“Rear Tow Bar Neck & Safety Check”) under the heading “Remove & Replace,” or for item 13 (“Rear Bar Cover with Repairs”) under the heading “Refinish,” as he did not cause any damage to the back of the car.

78. Mr Cunanan said that item 34 under the heading “Remove & Replace” (“Imobolise battery & computer”), and items 1 and 2 (“Environmental Allowance” and “Covid Allowance”) under the heading “Miscellaneous” would

45 Transcript of hearing dated 8 August 2025, page 54, lines 6 to 27 have been charged anyway, in respect of repairing the damage caused by Ms McLeod.

79. Mr Cunanan submitted that it was not possible to know what was meant by item 15 (“Mix & Match”), item 16 (“Booth Allowance”) or item 17 (“Proofcoat & Cavity Waxes”) under the heading “Refinish,” or to what those items related.

80. Mr Cunanan also submitted he was not responsible for item 8, under the heading “Parts,” being “R/H Door Mirror base” because the crack probably related to prior damage and the mirror was not damaged by him.

81. The Tribunal found, in its reasons for decision, that Mr Cunanan “was responsible only for the damage to the applicant’s vehicle on the driver’s 46 side.” On this basis, I find that Mr Cunanan was not responsible for the items beginning with “N/S,” “N/S/F” or “N/S/R” as detailed above. I also find that Ms McLeod has not established that Mr Cunanan is responsible for the items relating to repairs to the back of the car. Item 15 (“Mix & Match”), item 16 (“Booth Allowance”) and item 17 (“Proofcoat & Cavity Waxes”) under the heading “Refinish” do not expressly relate to damage on the driver’s side. In these circumstances, Ms McLeod has not established that these items are referable to damage caused by Mr Cunanan.

82. I find that Mr Cunanan is not responsible for the cost of immobilising the battery and computer, or for the Environmental Allowance and Covid Allowance, as these are costs which would have had been incurred when repairing the damage caused earlier that day by Ms McLeod.

83. The pictures in evidence show that the fuel cap is on the driver’s side. Whilst it is not clear from the photographs whether the fuel cap was damaged, it is plain that the panel around the fuel cap was damaged. It is reasonable to conclude, in these circumstances, that the fuel cap needed to be replaced as a result of the accident. I also reject Mr Cunanan’s submission that he is not responsible for repairs to the right hand door mirror base, even though that is higher than the point where the car collided with the gate. It is likely that the impact caused 46 Reasons for decision in XD 1308/2024 dated 2 May 2025 at paragraph 27 damage to the mirror base. The Original Tribunal found, in any event, that he was responsible for damage to the driver’s side of the car.

84. The items for which Mr Cunanan is responsible, then, are as follows: Heading on quote Item No Amount ($) Remove & Replace 1 87.5 2 21 3 17.5 4 14 5 14 6 24.5 8 21 10 10.5 11 10.5 13 35 15 21 17 245 18 52.5 20 105 22 35 23 28 25 35 29 24.5 31 21 Repair and Align 1 150 2 175 4 105 6 105 Refinish 1 195 2 162.5 4 97.5 6 325 8 260 10 260 12 97.5 14 40 Parts 1 457.49 Heading on quote Item No Amount ($) 2 70.51 3 9.42 4 1061.11 5 10.57 6 45.75 7 29.89 8 476.53 Total: 4,956.27

85. The cost of each item on the quotation is a cost to which GST was then added, to give a final price. Adding GST of $495.63 to $4,956.27 gives a total amount of $5,451.90 which is referable to the damage caused by Mr Cunanan.

86. Accordingly, I have decided to allow the appeal in part, and replace the order requiring Mr Cunanan to pay Ms McLeod the sum of $6,595.95 by 17 June 2025, with an order requiring Mr Cunanan to pay Ms McLeod the sum of $5,451.90 within 28 days. Order The Tribunal orders that: 1. Appeal allowed in part.

87. Order 1 made by the tribunal in proceedings XD 1308/2024 on 17 March 2025 is set aside and replaced by the following order:

(a) The respondent in proceedings XD 1308/2024 is to pay the applicant in proceedings XD 1308/2024 the sum of $5,451.90 within 28 days of the date of these orders.

……………………………….. Presidential Member J Lucy

Date of hearing: 8 August 2025 Applicant: In person Respondent: In person