Anwar Harb v John Marchbank [2011] NSWLC 9

Anwar Harb v John Marchbank [2011] NSWLC 9

Damages for loss of use of a vehicle not used for profit are to be assessed by reference to the reasonable market cost for hiring a replacement vehicle, including ancillary costs. The actual rate incurred by the plaintiff was within the range of available market rates and was accepted as reasonable. The hire of a similar model vehicle, notwithstanding its newer age, does not constitute unreasonable betterment, and mitigation/betterment principles do not apply to general damages for loss of use. Pre judgment interest was not awarded as the plaintiff was not under a crystallised liability. No order as to costs was made due to the litigation funding arrangement by the hire company.

Parties
Plaintiff: Anwar Harb; Defendant: John Marchbank
Jurisdiction
Australia
Judgment Date
08 April 2011
Procedural Posture
Civil / Verdict and Judgment
Outcome
Verdict and judgment for the plaintiff.
Legal Topics
Motor Vehicle Negligence, Damages Assessment, Loss of Use of Vehicle, Pre Judgment Interest, Costs, Litigation Funding
Tort Law Civil Procedure Motor Vehicle Negligence Damages Assessment Loss of Use of Vehicle Pre Judgment Interest Costs Litigation Funding

Case Brief

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Parties

Anwar Harb

Plaintiff

John Marchbank

Defendant

Procedural Posture

Civil / Verdict and Judgment

Legal Issues

  1. 1 Entitlement to general damages for loss of use of a motor vehicle not used for profit
  2. 2 Assessment of the reasonable quantum of hire car costs
  3. 3 Whether the plaintiff's hire of a newer model vehicle amounted to unreasonable betterment

Ratio Decidendi

Damages for loss of use of a vehicle not used for profit are to be assessed by reference to the reasonable market cost for hiring a replacement vehicle, including ancillary costs. The actual rate incurred by the plaintiff was within the range of available market rates and was accepted as reasonable. The hire of a similar model vehicle, notwithstanding its newer age, does not constitute unreasonable betterment, and mitigation/betterment principles do not apply to general damages for loss of use. Pre judgment interest was not awarded as the plaintiff was not under a crystallised liability. No order as to costs was made due to the litigation funding arrangement by the hire company.

Court Disposition

Verdict and judgment for the plaintiff.

Orders

  • Judgment for the plaintiff in the sum of $4,441.80.
  • No order as to costs.