Metleg v Sheikh

REPLACEMENT VEHICLE

1. The plaintiff stated that he did not enter into a written contract or agreement with Commlec Pty Ltd to hire a replacement vehicle. He stated that is was a verbal agreement entered into on the day that he picked the vehicle up (Transcript (6/8/15), p 35, ln 14). He rented another Hummer H2. He stated that he gave the company his credit card details. He initially stated without reservation that he didn't sign any document whatsoever. He then stated that he 'would have signed a piece of paper, whatever they gave me that day. I don't recall reading it.' There were apparently no charges on the plaintiff's credit card or authorisations in relation to the car hire. I don't accept the evidence that any hire car company would allow a hire arrangement without appropriate documentation being completed. I find the evidence of the plaintiff totally implausible and unacceptable in this regard.
2. The plaintiff stated that he paid $17,000.00 in cash for the hire car costs. The tax invoice from Commlec Pty Ltd indicates that $17,600.00 was the sum that was paid and that no amount remains outstanding (Exhibit 1, annexure F). It was suggested to the plaintiff that he never hired the vehicle. He denied the proposition.
3. When I assess the reliability of Mr Metleg I consider his honesty and his accuracy. I do not accept Mr Metleg as a witness of complete honesty. He has demonstrated his willingness to make false declarations for his own benefit. He was evasive at times during cross examination and deliberately failed to answer some questions directly and resorted to asking questions of Counsel for the defendant rather than answering them as required. His demeanour was flippant at times and he did not impress me as a reliable witness at times during his evidence.

Ahmed Osman

1. This witness operated AAA Body & Paint. He provided two statements which became exhibits 3 and 4. He was required for cross examination. Mr Osman recalled receiving a telephone call from the plaintiff on 18 October 2013 indicating he had been involved in a collision on 17 October 2013 and requested the car to be bought to his workshop on 20 October 2013. He recalled damage to the front of the vehicle and that 'the bonnet was not aligned and had two major kinks in it. The grille was broken and the front bar was damaged'. He stated that the car was not roadworthy and unsafe to drive. He also noted that the parts for the Hummer were difficult to source and had to be sourced from overseas.
2. An estimate for repairs was prepared after the front of the car was dismantled in order to inspect the full extent of the damage. A list of parts that needed to be sourced was prepared. These included: Off side font bar cap, Near side front bar end, Bar brackets, Front grille, Bonnet, Front head lamp kit, Fog lamps, Bonnet padding, Bonnet hinges, Air intake cover, Front chassis frame, Tow hooks, Front engine shield, Air bag sensor, Wheels.
3. None of the regular suppliers were able to provide the parts, so Mr Osman contacted the plaintiff who referred him to H2 Limousines. Mr Osman was informed that the parts had arrived at H2 Limousines on 3 December 2013 and the car was repaired and available for collection by the plaintiff on 20 December 2013.
4. Tendered through this witness was an estimate in the sum of $48,348.94 dated 20 December 2013 (Exhibit 3, annexure A), a tax invoice in the same amount dated 24 February 2014 (Exhibit 3, annexure B) and a tax invoice from H2 Limousines to AAA Body & Paint in the sum of $29,413.54 dated 3 December 2013 (Exhibit 3, annexure C).
5. Mr Osman stated that he was not able to say which parts used to repair the Hummer were new and which parts were used. He didn't keep any file concerning the repairs to the vehicle as he classified it as a private repair rather than an insurance related repair. Mr Osman stated that he paid the H2 Limousine invoice in full. Mr Osman also stated that the invoice dated 24 February 2014 was paid in full and that was evident by the signature of his business partner and the notation 'Paid in Full'. There was no further documentary evidence tendered or in fact produced on subpoena to corroborate this payment. I do however accept that the payment was made.
6. The defendant is not claiming that repairs were not carried out on the car (Transcript (6/11/15), p 12, ln 6 - 14).

Troy Mathieson

1. Mr Mathieson provided a statement which is exhibit 5. He was required for cross examination. He is employed by Insurance Australia Limited (IAL) as a Motor Vehicle Loss Assessor. There was no challenge as to his qualifications. He inspected the Hummer on 10 February 2014. He stated that the plaintiff had made a demand on 23 December 2013 for the cost of repairs to his vehicle.

Repair Parts

1. On inspection, Mr Mathieson noted that 'some of the parts quoted on the Repair Estimate were not fitted to the plaintiff's vehicle, and other parts quoted on the Repair Estimate were…not necessary to repair damage consistent with the accident description' (exhibit 5, para 10). There were some parts on the Repair Estimate which he considered related to and were consistent with the accident description.

Remove and Replace Costs

1. Mr Mathieson was of the opinion that some of the items contained on the Repair Estimate for repair and replace 'were not actually done and/or were not consistent with the accident description' (exhibit 5, para 17).

Repair and Align Costs

1. Mr Mathieson stated that he saw no evidence that any work was carried out to the front chassis sub frame and rails which was claimed on the Repair Estimate. Refinish Costs
2. Mr Mathieson challenged the claim that the radiator support was not freshly painted.
3. Mr Mathieson was critical of the Repair Estimate and stated that, where used parts were used, it should be recorded as 'used' or 'recycled'. The terminology used by Mr Mathieson in his report, particularly at paragraph 15 (a) to (i), was indicative of an appearance as to the state of the items, rather than a certainty as to the state of the items.
4. During cross examination, the following exchange took place (Transcript (6/11/15), p 50, ln 280): Q. Is it a fair comment that in relation to the parts, given that the inspection took place many weeks after the repairs had been completed-- A. Yes. Q. --you cannot be certain that they weren't new, some parts may have been new and been damaged subsequent to use? A. Well, you can't, no. But there were parts on there that were freshly, you could see that were freshly painted and of new condition compared to these parts that I've had listed.
5. The cross examination continued (Transcript (6/11/15), p 51, ln 16): Q. Now, where you've done your - or your evidence is that some of the work wasn't necessary, that's because you've taken a view that if the work - sorry, I withdraw that - you've taken the view that certain work wasn't done, therefore the corresponding remove and replace work wasn't necessary; is that the logic you've adopted? A. Yes. Q. But if the case was, unbeknownst to you, a second hand part was used, then it would be perfectly reasonable to still have to incur the remove and replace cost for that work? A. Yes.
6. The final estimate for repairs as indicated by Mr Mathieson was $6,626.85 (exhibit 5, annexure T) although this amount is different to that which Counsel submits is the conceded amount for total repairs to the plaintiff's car.

SUBMISSIONS

1. Both parties provided detailed written submissions.
2. The plaintiff asserts that the 'only real question is the amount of damages that are payable for the diminution in value of the plaintiff's vehicle and the loss of use of the plaintiff's vehicle'. It is submitted that there is evidence of the costs of repairs from Mr Osman and that the 'actual costs of rectification is powerful evidence of calculating damages and that if the rectification work has been carried out and the actual cost is known, that provides sound evidence of the reasonable cost and should ordinarily provide the basis for damages (Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313 at [97] and [99]). Mr Osman provided evidence that his charge out rate of $78.00 per hour was within the range of charges by panel beaters in Sydney (exhibit 4, para 31). This was not challenged by the defendant and I accept the charge out rate as reasonable. The plaintiff's claim includes a claim for a set of wheels and tyres which cost $8,200.00 inclusive of GST. There has been no cross examination or evidence adduced to challenge that claim.
3. The defendant submits the following propositions to support its defence: 1. The bare production of an invoice, without more, is insufficient to satisfy the plaintiff's burden of proof. 2. The defendant's admission of liability does not lower the requisite standard of proof. Nor does it qualify the cogency and quality of evidence needed to satisfy its claim for its quantum. 3. Concluded facts concerning the extent of the damage are not available because liability for a collision is not traversed. 4. Gaps in the plaintiff's case cannot be filled by conjecture or inferences that are not available in the evidence.
4. The defendant also submits that where there is 'scant to no evidence about the pre-collision state of the vehicle… the plaintiff's claim must fail in entirety' and that the plaintiff has not been able to satisfy its burden of proof in respect of:

• The repair costs; and
• The hire car costs.

1. The defendant provides a number of basic propositions in relation to damages. The basic principle of which there can be no dispute is that the plaintiff is entitled to be put back, so far as money can, into the same position as it the damage had not occurred. In Murphy v Brown (1985) 1 NSWLR 131 at 133, Mahoney JA stated: What must be proved in a particular case will depend upon the issues which the evidence, as it is before the court, raises for decision. For example, in a case such as the present, the essential thing which a plaintiff must prove is the sum which will restore him, ie, his vehicle, to the condition it was in before the collision: without such evidence, his case on damages will fail.
2. The Court's attention has also been drawn to the principles identified in the decision of Hall J in Gordon Martin Pty Limited v State Rail Authority of New South Wales and Anor [2008] NSWSC 343 at [367]: That it has for many years generally been accepted that a plaintiff who has spent money in repairing tortiously damaged property must not only have acted reasonably to minimise his damage, but must be capable of withstanding a challenge that the amount spent was, at least, not extravagant or unreasonable. In enforcing the principle of restitutio in integrum, courts have been astute to ensure that plaintiffs do not benefit from the defendants' tort. [my emphasis] The requirement that a plaintiff act reasonably in order to minimise his loss places a significant control or limitation upon the right to seek damages against a tortfeasor even though the onus is upon a defendant to show that the plaintiff did not act reasonably.
3. In the English decision of Re B [2009] 1 AC 11 at 17 Lord Hoffman stated: If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened.
4. Mr Mathieson's evidence was that there were at least some repairs done to the vehicle. He also agreed that some parts were used to repair, although some appeared to be second hand parts rather than new parts. He concedes, as summarised in the defendant's submissions, that the total costs of parts would, according to his inspection, be $3,985.51 and the total cost for 'remove and replace' would be $3,163.80. His estimate for costs for 'repair and align' is $1,092.00 and for 'refinish' would be $819.20. This is a total cost of $9,060.51.
5. I am satisfied on the balance of probabilities that certain repairs were done to the plaintiff's car by AAA Body & Paint.

Loss of Use - Hire Car Claim

1. Both parties appear to be ad idem with the concept that the plaintiff is entitled to be compensated for the loss of use of his vehicle due to the admitted negligence and damage caused by the defendant (Anthanasopoulos v Moseley (2001) 52 NSWLR 262).
2. In the recent decision of Droga v Cannon [2015] NSWSC 1910, Harrison J considered the question of the assessment of damages for the loss of use of a car. At [59], the court emphasised the distinction between the claimant's 'need for a replacement vehicle on the one hand and her desire for a particular vehicle on the other hand', and stated: Although I have no evidence about it, and accepting that the issue is not relevant o my conclusions in these proceedings, it does seem likely that a far less expensive which could have adequately operated to fulfil her identified needs.
3. At [60] the Court stated: It should not go unremarked that the sum required to compensate Ms Droga for the cost of hiring a replacement vehicle with which to conduct the activities she has specified, is not necessarily or automatically co-extensive with the cost of providing a comparable vehicle to the one that was damaged. The defendants would only ever be liable to compensate Ms Droga to the extent necessary to put her in the position she would have been but for the defendants' tortious act. A far less sophisticated vehicle could have adequately coped with the activities identified by Ms Droga at what may well have been a considerably reduced tariff. The issue would have been a question of what was reasonable to meet Ms Droga's needs, not what was necessary to compensate her for her choice.
4. The plaintiff submits that 'damages are payable irrespective of whether or not a vehicle was in fact hired'. I do not accept that proposition. As indicated above in Gordon Martin, the plaintiff is not to benefit from the defendant's tort. The defendant has asserted that the plaintiff did not hire a replacement vehicle. No evidence was called by the defendant disputing the rate of hire or the duration of hire. It challenges the actual hire itself. The defendant established in cross examination, that at the relevant time, the plaintiff was a director of Fox Financial Services and that company had at least one Mercedes, maybe two, registered to its name and that he, or the company, had access to the Mercedes. As I indicated previously, I found that the plaintiff was evasive with his answers in this regard. I find, based on the evidence of the plaintiff, that he did in fact have access to another car, namely the Mercedes, during the relevant period.
5. There is, however, documentary evidence of an invoice from Commlec Pty Ltd showing payment of $17,600.00 for the hire of a H2 Hummer sedan from 18 October 2013 to 20 December 2013 (exhibit 1, annexure F). The defendant argues that the bare production of an invoice, without more, is insufficient to satisfy the plaintiff's burden of proof. There is, in fact, more evidence than the bare production of an invoice. There is the oral evidence of the plaintiff. The plaintiff stated that he paid cash for the car hire. Whilst this at first blush may seem unusual, it certainly is not unheard of. I am satisfied on the balance of probabilities, that the plaintiff did pay $17,600.00 for the hire of a replacement vehicle during the relevant period of 18 October 2013 to 20 December 2013.
6. The plaintiff's evidence concerning his research does in fact raise a few questions as to his reliability. Some of the documentation tendered pre-dates the collision (exhibit 1, annexure G). The explanation for this by the plaintiff is unacceptable. However, some of the research date does post-date the collision and does indicate that some vehicles would cost much more to hire on a daily basis.
7. The Court is required to determine ultimately whether the hire of the replacement vehicle was reasonable in the circumstances. As stated by Assessor Olischlager in Gary Ross v State Transit Authority of NSW & Sean Higgins [2015] NSWLC 10 at [24]: It is a requirement for a plaintiff to demonstrate "need" in order for damages to be assessed by way of the market rate for the hire of a replacement. That "need" is not self-proving. Chong v Berry [2007] NSWLC 33 at [20]; Singh v Yaqubi [2013] EWCA Civ 23 [33]-[35] and Giles v Thompson [1994] 1 AC 146 at 167. If for example, a plaintiff is overseas or incapacitated or has an alternative vehicle already at his disposal during the period of deprivation then such need may not be demonstrated.
8. The plaintiff also indicated that as the sole director of Epitome Financial Services in 2013, he had access to a Lexus five seater vehicle (Transcript (6/8/15), p 32, ln 36). The plaintiff's evidence at its highest is that he needed a vehicle to drive to and from work and for domestic purposes. There was no evidence that either the Mercedes or the Lexus 5 seater would not be sufficient to accommodate the needs of the plaintiff.
9. The question of 'need' is an essential part of the plaintiff's claim. The onus of proof is on the plaintiff. I note that the defence pleads that the defendant 'does not know and cannot admit paragraph 4 of the Statement of Claim'. This is a traversal of the plaintiff's claim sufficient to amount to a valid dispute. The plaintiff is put to proof by the defence.
10. I am not satisfied to the requisite degree that the plaintiff 'needed' a replacement vehicle during the period of repairs. I find that the plaintiff had access to at least one comparable vehicle during the relevant period. I find that the plaintiff's claim for damages for loss of use of vehicle and car hire fails.

DAMAGES FOR REPAIRS

1. The only evidence of pre-collision value of the vehicle is the amount of $29,700.00 in the Haberfield Automotive documentation (exhibit 8). The Motor Vehicle Assessment Report of Mr Mathieson (exhibit 5, annexure T) indicates that the vehicle was insured for the sum of $80,000.00. Taking into account the prior market or purchase price as indicated by the plaintiff, I am not satisfied that the car was valued at $80,000.00. The claim for damages in relation to repairs is $56,548.94. The Court is required to determine whether the cost of repairs is or was reasonable. The previous value of the car, as indicated by the plaintiff's own declarations, was around $30,000.00.
2. Clearly, on the facts before the Court, a repair bill of $56,548.94 would mean that the repairs exceeded the actual value of the car prior to the collision. There could be no justification for adopting that course.
3. I adopt the observations of Mr Mathieson and the amount that, on inspection, he would have attributed to necessary repairs to the vehicle i.e. $9,060.51.

FINDINGS

1. I make the following findings: 1. The plaintiff's car was damaged due to the negligence of the defendant in a collision on 17 October 2013 at the intersection of Arlewis Street and Bent Street, Chester Hill. 2. As a result of the collision, the car was repaired at AAA Body & Paint, Lakemba. 3. The car was not roadworthy for the period 18 October 2013 to 20 December 2013. 4. The plaintiff hired a replacement vehicle from Commlec Pty Ltd for the period of 18 October 2013 to 20 December 2013. 5. The plaintiff has not shown a need for a replacement vehicle during that time and I do not award any damages under this head of damages. 6. The value of the car prior to the collision was in the vicinity of $30,000.00. 7. The plaintiff paid the sum of $48,348.94 for repairs on 20 December 2013. 8. The total amount of repairs far exceeded the pre-collision value of the car. 9. The amount for the repairs was unreasonable in the circumstances. 10. The plaintiff's claim for loss and damages is extravagant and unreasonable in the circumstances. 11. The assessment of damages by Mr Mathieson is a reasonable amount for the repairs in the circumstances. 12. The reasonable amount for repairs is $9,060.51.

DECISION

1. Verdict and judgment for the plaintiff in the sum of $9,060.51. Magistrate G. J. Grogin Downing Centre Local Court 25 January 2016

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