Darbishire v Warran

JurisdictionEngland & Wales
JudgeLORD JUSTICE HARMAN,LORD JUSTICE PEARSON
Judgment Date30 July 1963
Judgment citation (vLex)[1963] EWCA Civ J0730-4
Date30 July 1963
CourtCourt of Appeal
Darbishire
Plaintiff Respondent
and
Warran
Defendant Appellant

[1963] EWCA Civ J0730-4

Before

Lord Justice Harman

Lord Justice Pearson and

Lord Justice Pennycuick

In The Supreme Court of Judicature

Court of Appeal

From his Honour Judge Harold Brown Q. C.

Haywards Heath County Court

MR PATRICK O'CONNOR, Q. C. and MR A. D. GAVIN (instructed by Messrs Burton, Yeates & Hart, Agents for Messrs Nye & Donne, Brighton) appeared as Counsel for the Appellant.

MR PATRICK GARLAND (instructed by Messrs Montague, Williams & Piper, Hurstpierpoint) appeared as Counsel for the Respondent.

LORD JUSTICE HARMAN
1

The facts of this case are simple and except on one point, a matter of quantum, not seriously in dispute. The plaintiff's car was in collision with the defendants and was seriously damaged by what was admittedly entirely the defendant's fault. The plaintiff therefore sued the defendant in damages. These damages he based on the cost to him of repairing his car. The defence is that the cost of doing this was unreasonable and not recoverable from the defendant having regard to the duty lying upon the plaintiff to mitigate his damages which in the circumstances it is said were not more than the market value of the car at the time of the accident together with some damages for the loss of its use while he was reasonably engaged in looking out for a comparable one.

2

The facts are that the plaintiff's car was a 1951 Lea Francis which he had bought in the year 1958 for the sum of £330. He is by profession a mechanical engineer and had always kept the car by his own efforts in a high state of efficiency having regard to its age. He had done a number of mechanical repairs and renewals and at the time of the accident was in the course of repairing a damaged door which was actually off the car at the time. The market value, that is to say, the replacement value, of the car according to the ordinary guide in use in the trade was at the time £80. The garage to which the plaintiff took the car originally took the view that repairs were uneconomic or, as the manager said, not an economic proposition. The engineer called by the defendants took the same view and the Insurance Company advised against repairs. The Insurance Company valued the car at £85 and, as the plaintiff was liable under his policy for the first £5 of damages, he was paid £80.

3

Notwithstanding the advice he received, the plaintiff determined to have the car repaired and this he did at a cost of £192. He took the view that the car was worth that to him. It suited his needs and the needs of his family and his opinion was that he could not buy a car of the same worth to him for lesthan £192. He accordingly gave the defendant credit for the £80 received from the insurance Company and sued for the balance together with the cost of hiring a car during the period of repair of his own. The County Court Judge made certain deductions from the hire charges owing to delay in doing the repairs and awarded £25 under this head together with £5, being the first £5 of the insurances otherwise the Judge in effect acceded to the plaintiff's claim, which, however, he reduced to £100 and gave the plaintiff judgment for £130, that is to say £100 for repairs plus the £5 and the £25. The defendant appeals.

4

The law of damages arising out of collisions on land has been developed out of the Admiralty rule on collisions at sea and the rule of liability is the same in Admiralty and common law cases — see Lord Dunedin's speech in The Susquehanna (1926 Appeal Cases, p. 655, at p. 661). The principle is that of restitutio in integrum, that is to say to put the plaintiff in the same position as though the damage had not happened. It has come to be settled that in general the measure of damage is the cost of repairing the damaged article; but there is an exception if it can be proved that the cost of repairs greatly exceeds the value in the market of the damaged article. This arises out of the plaintiff's duty to minimise his damages. Were it otherwise it would be more profitable to destroy the plaintiff's article than to damage it. In the latter cases the measure is the value of the article in the market and this, of course, supposes that there is a market in which the article can be bought. If there is none, then the cost of repairs may still be claimed. This appears from J. & E. Hall Ltd, v. Barclay (1937, 3 All England Reports, p, 620) where it was held that the appellant was entitled to the value of the articles converted which was ordinarily the price of similar articles in the market. As there was no market in the articles concerned, the measure of damages was the cost ofreplacement. That was a case of conversion but the principle applies. Lord-Justice Greer said this at page 623: "In my judgment it is an undoubted fact that there are two rules with which we begin in ascertaining how the damage should be ascertained. The first is this: A plaintiff who is suffering from a wrong committed by a defendant is entitled, so far as money can do it, to be put into the same position as if he had not suffered that wrong. That is what is referred to as restitutio in integrum. The second principle which is accepted is that what he is entitled to, as damages for conversion or detention in respect of the article so detained or converted and not returned, is the value of that article. Then the question is, what is the meaning of 'the value of that article'? Where you are dealing with goods which can be readily bought in the market, a man whose rights have been interfered with is never entitled to more than what he would have to pay to buy a similar article in the market. That rule has been acted upon over and over again, and that, I think, means that, where there is a market, the man whose rights have been interfered with is bound to diminish the damages by going into the market and buying the goods in the market, so as to put himself in the position in which he is entitled to be put, namely, the position in which he would have been if he had not suffered any wrong at all; and, in my judgment, the case to which our attention has been called of Banco de Portugal v. Waterlow Ft. Sons., Ltd. has really nothing to do with the question that we have to decide here, except in so far as I think it supports the view which I have been expressing". He there decided that as the article in that particular case was one for which there was no market and which you could not buy in the market, the loser was entitled to have it replaced.

5

The Judge here held that the plaintiff was reasonable in having the car repaired notwithstanding that the cost wasmore than twice the value. It may well be that the plaintiff, so far as he himself was concerned, did act reasonably and that what he got was of more value to him than the damages represented by the value of the car. The plaintiff, however, did not show that he had any special use for which this car alone was suitable, as, for instance, in his business, or anything more than that it was a sound car very well maintained and suited to his ordinary life. In my opinion the Judge asked himself the wrong question. The true question was whether the plaintiff acted reasonably as between himself and the defendant and in view of his duty to mitigate the damages. The evidence was that a Lea Francis 1951 car might be difficult to find but that other similar estate cars were on the market and could be had for between £85 and £100 which the plaintiff himself stated to be the value of his car. The learned Judge relied on the case of O'Grady v. Westminster Scaffolding Ltd. (1962, 2 Lloyds List Reports, p. 238) where the learned Judge held the plaintiff entitled to the cost of repairing his car at a cost considerably exceeding its market value. This case, of course, is not binding on us but if it be right it may be supported perhaps on the ground that the car there in question was unique and could not be replaced. It was a remarkable vehicle having been supplied by the plaintiff, the apple of whose eye it was, with no less than three new engines, a new body and other replacements. In my judgment the facts are very different from those in the present case.

6

Our attention was also drawn to a case in the Court of Session, Pomphrey v. James A. Cuthbertson Ltd. (1951 Session Cases, p. 147). That case went off on a point of pleading and the plaintiff in fact asserted a new measure of damages in that he went into the market and bought a new car, the cost of which he claimed against the defendant together with the cost of adapting it upon the footing that this was in fact cheaper for the defendant than the cost of repairs would have been. Nevertheless the Court delivered itself of the following opinion. At theend of the headnote you will find this: "Opinions that, on the footing that the damaged car was a constructive total lose, the true measure of damages was its market value at the date of the collision plus the cost of hiring a substitute until a new car could be procured and made ready for use, less the 'scrap value' of the damaged car", so that the decision, such as it was, is in the defendant's favour.

7

To the same effect is the decision in The Minnehaha (6 Lloyds List Reports, p. 12), an Admiralty case where the Master of the Rolls, Lord Sterndale, said this: "That applies to a matter between assurer and assured, but it is a convenient way of stating the question because unless there is some circumstance to justify him the shipowner does not act reasonably in repairing the ship if the repaired value is very much less than the cost of repairing her. Prima facie that is not reasonable. It may be shown to be reasonable if there are certain special circumstances which make the ship of such great value to him that it is better for him and reasonable to spend a very much larger sum than her repaired value. But it requires some special...

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