Moore v DER Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE KARMINSKI,LORD JUSTICE STAMP |
| Judgment Date | 18 June 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0618-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 June 1971 |
[1971] EWCA Civ J0618-3
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: His Honour Judge Jellinek — Guildford County Court)
Lord Justice Davies
Lord Justice Karminski and
Lord Justice Stamp
Mr. MICHAEL HARRIS (instructed by Messrs. Bennett & Seigal, Agents for Messrs. Horne, Engall & Freeman, Egham, Surrey) appeared on behalf of the Appellant (First Plaintiff).
Mr. CHRISTOPHER CLARKE (instructed by Messrs. Stevensons) appeared on behalf of the Respondents (Defendants).
(without calling upon Counsel for the Appellant to reply)
This is an appeal by the plaintiff from a judgment of Judge Jellinek given at Guildford County Court on the 18th January last. The claim was a claim for the loss of use of a motor-car and the hiring of a substitute motor-car for a period of 18 weeks by the plaintiff after his own motor-car had been smashed and become a constructive total less owing to the negligence of a servant of the defendants. The claim was for 18 weeks' hire of a substitute car at £20 a week, making a total of £360. But the judge only allowed the plaintiff 3 weeks, or £60, holding, it would appear, as a matter of mixed law and fact, that in all the circumstances the plaintiff's conduct was unreasonable and that he was only entitled to that amount.
The story is quite a short one. The accident took place on the 20th December, 1969, when the plaintiff's wife was driving his Rover 2000. He had acquired the Rover in July, 1968: therefore it was about 18 months old at the time. It was his practice always to change cars every two years, and he would normally have been expecting to buy a new car in the summer of 1970. The accident having happened on the 20th December, the car was towed to the garage in Staines where the plaintiff normally bought his cars and had them serviced, run by a Mr. Dobson, who was a friend of the plaintiff's, the plaintiff having been a customer of his for many years. It was thought likely that the insurance company would treat the car as a total loss. They did so, and so informed the plaintiff or Mr. Dobson on the 3rd January, 1970.
At the time when the damaged car had been taken in to Mr. Dobson's garage, Mr. Dobson had an allocation from Rover's of three Rover 2000s. Two of them had already been allocated to customers and Mr. Dobson, expecting that the car would be treatedas a total loss, provisionally allocated the third of these Rovers to the plaintiff. At that time it was expected that these Rovers would be delivered about the beginning of February, that is to say five weeks or so from the date of the accident. In point of fact, owing to labour troubles in Rover's factory, the car was not delivered until the 26th April.
Pending the arrival of the new motor-car, Mr. Moore, the plaintiff, had hired from Mr. Dobson's garage another Rover 2000 at £20 a week. The judge made one or two findings of fact. He said that it was quite reasonable to hire a Rover 2000. It had been suggested that the plaintiff might have got a cheaper car at a cheaper rate; but the judge rejected that contention. He found that the hire charge of £20 a week was reasonable, as indeed it was, since it would appear that but for Mr. Moore being an old customer and a friend of Mr. Dobson he would probably have been charged £34 a week. The judge also found that Mr. Dobson could not have got a new Rover more quickly than he did, because in point of fact he had made efforts elsewhere to try to get delivery and he had failed to get another car before, as I have said, this one arrived at the end of April.
But the judge held, I think as a matter of law though possibly as a mixed question of law and fact, that the hire of an alternative substitute vehicle was only permissible for such period as it would take to get another car comparable to the damaged one in make and age. There was evidence that if Mr. Moore had tried to get something like an 18-months-old Rover 2000 he probably could have got quite a reasonable one in about a fortnight, and it was for that reason that the judge held that the plaintiff was not entitled to anything more than three weeks' hire, a few days for ascertaining that the car was a total loss and then a fortnight to look around and get a comparable car.The judge expressed his findings in this way: "If I have a 1968 Rover 2000 in good average condition and someone tortiously destroys it I am entitled to be put back in the position of having a 1968 Rover 2000 in a similar condition. I am not entitled to a new car. If I want to buy a new car that is up to me. I am perfectly at liberty to do it but not to charge the defendant for the difference. If a plaintiff decides to buy a new car and has no right to charge the difference in cost between a secondhand car and a new one, why should he have the right to put the defendant in the position of having to pay 18 weeks instead of a fortnight?". of course the plaintiff was not seeking to charge the cost of a new car. He had been paid out (we were not told how much) by the insurance company for whatever the agreed value of the destroyed car was. He was not seeking to get a new car from them in any way. All he was seeking to do was, instead of getting a...
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