![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Queen's Bench Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Putta v Royal Sun Alliance Insurance Plc [2020] EWHC 117 (QB) (28 January 2020) URL: https://www.bailii.org/ew/cases/EWHC/QB/2020/117.html Cite as: [2020] EWHC 117 (QB) |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
QUEEN'S BENCH DIVISION
ON APPEAL FROM DARTFORD COUNTY COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
MR VAMSI ![]() | Appellant |
|
- and - |
||
ROYAL SUN ALLIANCE INSURANCE PLC |
Respondent |
____________________
Aidan O'Brien (instructed by DWF LLP) for the The Respondent
Hearing dates: 21 January 2020
____________________
Crown Copyright ©
Mr Justice Stewart:
Introduction
Outline
Summary of the Judge's Findings
"The learned trial judge was wrong in law and in fact to find that a period over which the Claimanthired
a replacement vehicle was too long."
"Another company is identified in the statement of Mr Mark Skellam…Mr Skellam explains in his statement that he knew that he had been dealing with finding the basichire
rate for a replacement for an ABI category PT9 vehicle. When new, the Claimant's vehicle would have been ABI category PT9. Mr Skellam states that he also knew that he was looking for a plated vehicle. He states that he had made telephone enquiries to prospective vehicle providers from whom the relevant basic
hire
rate details were recorded. He said that some published a tariff on their website, but for others he had to make telephone enquiries.
One of the companies Mr Skellam contacted is known as Wendex and offered 7 dayhire
for £350. Wendex is clearly a company that
hires
vehicles. It was suggested on behalf of the Claimant that hiring was only part of Wendex's garage business, but I have seen an advert from Wendex, which states that they are Wendex Vehicle Rental Ltd, PCO registered
hire
vehicles; they offer daily rental for contract
hire.
I have seen another advert that says that Wendex has in excess of 20 years in the vehicle rental industry and are well placed to serve.
It is unsurprising that the rates Mr Skellam put forward are not from places like Hertz or Easy Car because the Claimant's vehicle was a plated vehicle; I have yet to see rates offered from these sorts of companies for a plated vehicle.
I am satisfied that Wendex is a company of some 20 years standing; it is a reputable PCO plated vehicle provider and whether or not it is a mainstream supplier, it is certainly a local reputable supplier. No issue has been taken with the locality of the company.
I am also satisfied that Mr Skellam made the telephone calls he says he made and that he was told by Wendex that a Mercedes Benz E Class was available for £350 for a 7 dayhire.
![]()
I therefore revise what I think the basichire
rate is likely to have been to £350 for a 7 day period. I find as a fact and I am satisfied on the basis of Mr Skellam's evidence, that there was likely to have been a Mercedes Benz E Class, or similar class of vehicle to that the Claimant had been driving, available to
hire
for the duration of the period in which had been reasonable for the Claimant to
hire
for at that amount."
To the above hire
figure the Judge added collision damage waiver at £18 per day for 49 days, a total of £882, making the figure for car
hire
£3,332.
"The Learned Judge was wrong in law and in fact to accept the BasicHire
Rates evidence adduced by the Defendant when assessing whether and at what rate the Claimant could have obtained a comparable vehicle on the open "spot" market."
"I do not therefore come to the conclusion that in the circumstances it would have been reasonable for him to go andhire
at, I think the figure was £410 a day, to avoid dipping very briefly into an agreed and established overdraft."
"1. The Learned Trial Judge was wrong in law and in fact to find that the Claimant was pecunious, at the beginning of and throughout the period ofhire.
![]()
2. The Learned Judge was wrong in law and in fact to find that had the Claimant paid for the repairs to his vehicle and paid forhire
of an alternative vehicle by utilising his
credit
card(s), the Defendant would have been liable to pay less damages and thus would have made payment to the Claimant shortly after the collision."
The Approach of the Appellate Court
"10. In short, to be overturned on appeal, a finding of fact must be one that no reasonable judge could have reached. In practice, that will usually occur only where there was no evidence at all to support the finding that was made, or the judge plainly misunderstood the evidence in order to arrive at the disputed finding"
"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them…"
"67. It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified."
Impecuniosity – Case Law
At [35] Lord Hope "…The criterion that must be applied is whether he had a choice – whether it would have been open to him to go into the market and hire
a car at the ordinary rates from an ordinary car
hire
company."
Grounds 1 and 2
"Furthermore, I cannot ignore the fact that by reducing her capital to the bare minimum and increasing her debt, the Claimant would have been exposing herself to the risk of a serious financial challenge in the event that even a modest but unexpected financial reverse might have afflicted her before her claim was satisfied. Impecuniosity need not amount to penury."
(i) On the Judge's finding the BHR was £476 per week.
(ii) The Claimant entered into acredit
![]()
hire
agreement at a daily rate of £408.
(iii) The Claimant earned a daily pre-tax profit of approximately £131. Therefore, as he accepted in evidence, he would have been out of pocket every day he had to work. He said that he understood that but he had to get back to work. He said he had not thought it through. He was liable for thecredit
![]()
hire
charges.
(iv) There was at that stage £581 in his current account, £6,064 availablecredit
on
credit
cards and £1,000 arranged overdraft, a total of £7,645.
(v) In the first week therefore, the Judge was entitled to find that the Claimant was not impecunious. It should be emphasised that the BHR rate was a weekly rate which was renewable weekly.
(i) There was no evidence to the effect that the Claimant could not have entered into acredit
![]()
hire
agreement part way through the
hire
had his circumstances changed for the worse, given his fluctuating income and outgoings.
(ii) The Judge rejected the Claimant's evidence that he had done a search to find out what the BHR would have been. Therefore, this was not a case of someone who had properly weighed up the alternatives before deciding to incurcredit
![]()
hire
costs many times higher than the BHR.
"…The Claimant received part of the payment to the vehicle repairs relatively quickly and this dispute appears to have escalated because of the claim forcredit
![]()
hire
charges which were significantly more than the Claimant could ever hope to earn on any given day. I have to do my best to put the Claimant in the position that he should have been but for the accident so long as he had acted reasonably, and I have come to the conclusion that, had he acted reasonably, it is likely that he would have been paid for the
hire
charges and the balance of the repairs very much sooner than he in fact was. Bearing in mind that it took, I think, a period of about 2 months for the part payment on the repairs to come through, I would expect that upon completion of the repairs it would have taken perhaps another 2 months for the balance that he spent on
hire
charges and on repairs to come through. On about £255 for 2 months, on a broad-brush basis, doing the best I can, I am going to allow £500 in respect of interest."
(i) As the Judge found, the Claimant received part of the payment for his vehicle repairs relatively quickly and the dispute appeared to have escalated because of the claim forcredit
![]()
hire
charges.
(ii) The Defendants having expeditiously made payment of the majority of the repair charges, the Judge was entitled to find that the dispute of a few hundred pounds repair costs and a claim for reasonablehire
charges would have been settled relatively quickly and in the time frame she suggested. Indeed, 18 months prior to trial the Defendants made a Part 36 Offer which the Claimant did not succeed in beating.
Ground 3: The Period of Hire
Ground 4 – Basic Hire
Rates
(i) Even if the Claimant was not impecunious, give rise to a greater award.
(ii) Potentially have a real impact on the issue of pecuniosity. The figures earlier in this judgment are based upon the BHR findings by the Judge.
"It follows that a judge faced with a range ofhire
rates should try to identify the rate or rates for the
hire,
in the Claimant's geographical area, of the type of car actually
hired
by the Claimant on
credit
![]()
hire
terms. If that exercise yields a single rate then that rate is likely to be a reasonable approximation for the BHR. If, on the other hand, it yields a range of rates then a reasonable estimate of the BHR may be obtained by identifying the lowest reasonable rate quoted by a mainstream supplier or, if there is no mainstream supplier, by a local reputable supplier..."
"6. In the event that the Defendant does seek to obtain a basichire
report, the Claimant is permitted to file and serve a rebuttal basic
hire
report…"
"From the gathered information, telephone enquiries are then made to the prospective vehicle provider from whom the relevant BHR details are recorded (see exhibit WR/3)."
In table 1 at paragraph 7.2 it is clear that telephone enquiries were made for rates at the time of hire
in respect of Wendex. Therefore, there was sufficient evidence for the Judge to make the finding she did, table 1 setting out a figure of £350 for 7 day
hire.
If the Claimant had sought to make any point about the lack of exhibit WR3, then that should have been flagged up before trial and/or Mr Skellam asked to attend the trial. The Claimant did not apply for Mr Skellam to attend trial for cross-examination pursuant to CPR Rule 33.4. It is also said that there were apparent errors in the figures given for the other possible BHR providers when comparing paragraph 7.2 and the exhibits for those
hirers.
Those alleged errors may have been capable of explanation had Mr Skellam been cross-examined. For example the figure for Drover was £330 per week. The exhibit suggests £324. These could have been (a) error by Mr Skellam, (b) accurate in that the preceding figure on the exhibited document was £330 and it is possible that this is the figure for the BMW listed, (c) another explanation. It is simply not permissible to say that the Judge had to reject Mr Skellam's evidence about Wendex's rates because there may have been other errors in his statement.
"5.1 On 23 August 2018, I searched company historical records. I found details ofhire
companies that have previously been captured who supplied suitable
hire
vehicles near to the Claimant's locality at the time of the Claimant's original
hire
in this case.
5.2 The rates I provide are those that were captured for those companies forhire
of that class of vehicle in the months of February, May and November 2016.
5.3 All companies were trading ashire
companies at the time of the Claimant's
hire.
5.4 There is no guarantee of an "equivocal replacement plated vehicle" being available, however,hire
companies attempt to satisfy customer requirements by offering comparable/superior vehicles or "cross hiring" at no other cost, rather than lose business."
Summary