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Frucor Beverages Limited v Blumberg [2019] NZCA 547; [2020] 2 NZLR 51 (11 November 2019)

Last Updated: 4 May 2021

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JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. The appellants are to pay one set of costs to the respondents for a standard appeal on a band A basis with usual disbursements. We certify for two counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Table of Contents

Para No

Introduction

• [1] This appeal is from a judgment delivered by Jagose J on 26 July 2018.^[1] The raft of issues for decision arises from the commencement of business in New Zealand in 2016 by Right2Drive (New Zealand) Limited (R2D). R2D has an Australian parent company. It is an ordinary rental car operation but about two thirds of its business is hiring replacement cars to “not-at-fault” drivers while their collision damaged vehicles are repaired. R2D advertises this service generally and particularly to vehicle repairers. The service includes delivering the replacement vehicle to the driver when the damaged vehicle is brought to the vehicle repairer, and collecting it when the driver picks up the repaired vehicle from the repairer.
• [2] Before the replacement vehicle is handed over, the driver is required to sign hire documentation. Essentially this makes the driver liable for the hire charges but these are payable only when and to the extent they are not recovered from the at‑fault driver (normally, recovery is from that driver’s insurer). In practice, R2D waives any unrecovered charges. That is the basis on which R2D represented to not-at-fault drivers that the replacement car is “free” or comes at “no cost” to the not-at-fault driver.
• [3] So called “credit hire companies” with a modus operandi similar to R2D have been in business in the United Kingdom and in Australia for many years. Much litigation, particularly in Britain, has resulted between those companies on the one hand and insurers for at-fault drivers on the other. We will be referring to a number of those cases because they decide, or offer guidance on, the issues for decision on this appeal. The clash of commercial interests which led to this litigation was explained 20 years ago by Lord Hobhouse in Dimond v Lovell:^[2]

The popularity of this scheme [operated by credit car hire companies similar to R2D] with the public is matched by its unpopularity with the main line motor insurance companies who are covering the negligent motorists against third party claims and find themselves faced with these increased claims. They also have an increased incidence of loss of use claims because the scheme enables drivers, who otherwise would not go to the expense of hiring a substitute car, to hire one and make a claim for it.

• [4] The present three cases are the first to come before a New Zealand court. Counsel described them to us as “lead cases”. That is because the appellants’ insurers (respectively, Vero, AMI and AA Insurance) have refused to pay some $4.9 million invoiced to them by R2D for providing replacement vehicles to not-at-fault drivers such as the three respondents.^[3] Between them, these companies have about 45 per cent of New Zealand’s motor vehicle insurance business. Counsel informed us that this judgment will have ramifications for the other motor vehicle insurers. So a substantial sum hinges on the outcome of these cases. Counsel also expressed the hope that this judgment will provide some guidance for the future. However, Mr Chisholm QC told us that R2D has, since the present three cases arose, made some changes to the way it does business. There was reference in the evidence to some of those changes.

Factual situation

Three respondents

• [5] We restrict our outline of the facts to the case of the respondent Mr Blumberg, because it raises all the appeal issues. The cases of the respondents Mr Boardman and Ms Mackey are factually substantially the same, but do not involve a delay in completing repairs, and thus do not involve Issue 7 dealt with in [119] below. We will refer to the cases of those two respondents only where they raise some additional or different point requiring consideration.

Mr Blumberg’s case

• [6] Mr Blumberg’s 2005 Nissan Wingroad car was damaged, but not immobilised, in a collision. The collision was the fault of a driver employed by the appellant, Frucor Beverages Ltd. Mr Blumberg took his car for repair to Barrys Point Panelbeaters & Painters, a repairer recommended by Frucor’s insurer, Vero. Barrys Point estimated the repairs would take two to three weeks. The repair process was supervised by Mr Brown, a senior estimator employed by Vero. The repairs took 33 days. The extended repair period resulted from the need for additional replacement parts.
• [7] When Mr Blumberg inquired, Barrys Point told him they could not provide him with a courtesy car during the repair period, but referred him to R2D which could. So Mr Blumberg contacted R2D which told him it could provide a replacement car during the repair period at no cost to Mr Blumberg. When Mr Blumberg delivered his vehicle to Barrys, he was met by a representative of R2D. He was again assured there would be no cost to him for the replacement vehicle but was required to sign hire documentation. After signing this he was provided with a 2015 Mitsubishi ASX vehicle.
• [8] When Mr Blumberg’s car was repaired and ready to collect, he was again met at Barrys Point by an R2D representative who collected the Mitsubishi. R2D prepared an invoice addressed to Mr Blumberg for its charges for hiring ($3,782.46 plus GST) and delivering and collecting ($50 plus GST) the Mitsubishi during the 33-day repair period. It passed this invoice to Vero for payment. Vero refused to pay this invoice. Exercising rights Mr Blumberg had given to it in the hire documentation, R2D brought a claim in Mr Blumberg’s name in the High Court to recover its hire charges from Frucor (Vero was obviously the real defendant to this claim).
• [9] Jagose J gave judgment for Mr Blumberg, deciding all the issues in his favour. We will revert to the judgment in more detail as we deal with each issue.

Issues

• [10] The issues for decision on each of these three cases are the same. Because we have restricted ourselves to the facts of Mr Blumberg’s case, we state the issues as they apply to him. But issues 1–6 and 8 also arise in the other two cases.

Liability issues

Issue 1: In respect of R2D’s charges for the replacement car, had Mr Blumberg incurred a compensatable loss or expense recoverable by him from Frucor?

• [11] Some matters relating to this first issue are not in dispute. First, the relevant deprivation loss for which Mr Blumberg can recover damages is his loss of use of his car while the collision damage was repaired.^[4] Second, Mr Blumberg wholly mitigated that loss by hiring a replacement car from R2D during the repair period. In other words, he was never actually “deprived” of a car. Third, Mr Blumberg can recover, as special damages, the cost he incurred in mitigating his deprivation loss, providing he acted reasonably in hiring the replacement car and providing also that the hire charges were reasonable. That reasonable mitigation cost is the measure of damages recoverable for the loss of use of the car (and a ‘proxy’ or substitute for the general damages which would otherwise be recoverable by Mr Blumberg).^[5]
• [12] The matters set out in the previous paragraph draw a distinction between general and special damages. However, in many cases Judges have said this distinction is unimportant.^[6]
• [13] We interpret the High Court’s judgment as giving a ‘yes’ answer to this first issue. The following summarises the Judge’s reasoning:^[7]

(a) The drafting of R2D’s hire documentation and its dealings with Mr Blumberg both give rise to difficulties. The Judge considered the contractual documentation was “infelicitously drafted”.^[8]

(b) But a court would strive to give commercial efficacy to the hire agreement between R2D and Mr Blumberg, and that agreement records Mr Blumberg’s liability to pay R2D’s hire charges.

(c) By that agreement, Mr Blumberg also gave R2D authority to recover from Frucor its charges for the replacement vehicle.

(d) That cost is the mitigation expense claimed by Mr Blumberg (that is, claimed by R2D exercising its authority to recover on Mr Blumberg’s behalf and in his name).

(e) R2D was entitled to waive its contractual right to recover its charges from Mr Blumberg.

• [14] Mr Ring QC, for the appellants, submitted Mr Blumberg cannot recover his mitigation cost because he did not incur any. He could only recover if he had a legal liability to pay R2D’s hire charges. And, for two reasons, he did not have a legal liability. First, there was never a time when R2D intended to recover its charges from Mr Blumberg. There was never a time when Mr Blumberg was “worse off” by reason of his hiring the replacement car from R2D.^[9] Second, Mr Blumberg could not have a legal liability to pay R2D’s hire charges unless it was an unconditional one — a liability free of any contingency. This was never the position. For the reasons that follow, we do not accept these arguments.

(a) Did Mr Blumberg have a legal liability to pay the hire charges to R2D?

• [15] In advancing his first reason, Mr Ring relies primarily on passages in the judgments of Dixon CJ and Fullagar J in the High Court of Australia in Blundell v Musgrave. Dixon CJ said:^[10]

... before a plaintiff can recover in an action of negligence for personal injuries an item of damages consisting of expenses which he has not yet paid, it must appear that it is an expenditure which he must meet so that at the time the action is brought, though he has not paid it, he is in truth worse off by that amount. ... The question here must therefore be whether the plaintiff really stands in a situation in which he must pay the expenses which apparently now stand debited to his pay account whether he recovers from the defendant or not. For it cannot be enough to entitle a plaintiff to recover from a defendant in respect of money still to be paid that the plaintiff is liable to pay if and only if he recovers a corresponding amount from the defendant. His liability or the necessity of his meeting the expenditure must be independent of his recovery from the defendant.

• [16] Fullagar J was of the same view:^[11]

... [In a case] in which a legal liability exists, but it may be taken as practically certain that the liability will not be enforced. ... no amount can be recovered...

• [17] We were left unsure whether it is Mr Ring’s submission that R2D’s hire documentation does not, in its terms, impose a legal liability on Mr Blumberg to pay the hire charges. But if this is his submission, then we do not accept it. The hire agreement comprised a rental agreement and a separate agreement and authority to act. Construed as a whole those documents (we will refer to them simply as the hire agreement) do impose such a liability. The relevant terms are in the agreement and authority to act. First, “the credit period” is defined as “the period of 90 days from the date of issuance of R2D’s tax invoice for the charges”. Amongst the terms and conditions that follow are these four:
  • R2D will use its best endeavours (not including the commencement of legal proceedings) during the credit period to have the charges paid by the TP.^[[12]] On receipt by R2D of payment from the TP, the hirer will be released from liability for the charges to the value of the payment received from the TP, provided that the hirer has fully complied with the obligations imposed on the hirer under this Agreement. After the expiry of the credit period R2D may demand that the hirer pay, and if so demanded this hirer shall pay forthwith, any charges unrecovered from the TP by R2D at that date.
  • The hirer authorises R2D, its nominated agents, representatives and attorneys to bank relevant cheques made out in the hirer’s name into R2D’s nominated Trust account. The hirer irrevocably appoints R2D (and/or its nominated Debt Recovery Agent) as the hirer’s agent, representative and attorney, to recover the charges by whatever means including, in R2D’s absolute discretion, the commencement and carrying on of legal proceedings in the name of the hirer. R2D may retain and apply all such recovered charges and recovery costs (in whole or in part) to the charges and recovery costs. The hirer understands and accepts that R2D shall appoint and give instructions on behalf of the hirer to legal advisers in respect of the recovery process. The hirer agrees to assist, and render all cooperation required by R2D in respect to the implementation and conduct of the recovery process, which the hirer acknowledges may require that the hirer provide statements and documents, and appear in court as a witness.
  • As at the date of this Agreement, the charges are estimated because the hire period is based on an estimated duration of repair or replacement of the damaged vehicle. The final charges will not be known until expiry of the hire period. The hirer agrees to be liable for such final charges advised by R2D.
  • I authorise R2D (and/or by its nominated Debt Recovery Agent) to act on my behalf in respect to the recovery of the charges, and all recovery costs from the TP. I authorise R2D and/or its agent to ask for any documents that may be required from the repairer of the damaged vehicle to enable prompt settlement of my charges. I further authorise any cheque or monies received in settlement or payment of my claim against the TP to be utilised and applied to discharge any outstanding charges owed by me to R2D, or recovery costs incurred by R2D in respect to any action taken to recover my claim, subject R2D accounting to me for any surplus. In the event that accounts are not met in full within the credit period I agree that interest will be charged at the default rate for each month or part month that they remain outstanding. I have read and understood this Agreement and agree to be bound by its terms. I acknowledge that in reference to this claim R2D may have to share my personal details with associated third parties to help settle the claim or for consultation of legal services.

(Footnotes and emphasis added.)

The wording we have emphasised imposes on Mr Blumberg a liability to pay R2D’s final charges upon advice and demand after expiry of the credit period, together with interest at the default rate.

• [18] Mr Ring certainly submitted that Mr Blumberg was under no legal liability to pay R2D’s hire charges because it never intended recovering them from him. His support for this submission was the passages from the judgments of Dixon CJ and Fullagar J in Blundell v Musgrave we have set out in [15] and [16] above. But the case is authority for the contrary proposition: the fact that R2D did not intend enforcing Mr Blumberg’s liability to it does not prevent Mr Blumberg recovering from Frucor. The ratio of Blundell v Musgrave can be stated thus: if a plaintiff has a legal liability to pay a sum recoverable in a tort claim, it does not affect recoverability that the plaintiff may ultimately not have to pay it. As McTiernan, Williams, Webb and Taylor JJ said:^[13]

The fact that, if [the plaintiff] had failed in the action, the [Naval Board, which had supplied the medical and hospital services] would probably not have pursued its claim, supplies, as has been said, no reason why the [the defendant] should escape this liability [for the £594 cost of the medical and hospital treatment in the Naval Hospital].

• [19] Strictly, we need not say more about the minority view expressed by Dixon CJ and Fullagar J in Blundell v Musgrave, relied upon by Mr Ring. But it should be noted that view was overruled by the High Court of Australia in Griffiths v Kerkemeyer.^[14] Although the issue had been decided in England, Kerkemeyer was the first case in which the High Court of Australia had to decide the difficult question: can a plaintiff, injured by the negligent act of another, recover damages for needed nursing and other services provided to him gratuitously — in that case by his fiancé and members of his family. The court unanimously held such damages were recoverable. The Court did not follow the views of Dixon CJ and Fullagar J in Blundell v Musgrave. Gibbs J, referring specifically to the view of Fullagar J, said “That view must now be revised”.^[15] What influenced Gibbs J was the “body of English authorities which has departed from the view which was previously accepted”, and the High Court’s own decision in Ferguson v EA Watts Pty Limited.^[16] Popular conceptions of justice also weighed with the Judge. He cited this passage from Lord Reid’s judgment in Parry v Cleaver:^[17]

It would be revolting to the ordinary man’s sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be the wrongdoer.

• [20] Stephen J circumspectly observed, “It follows that there must be logical difficulty in now applying, in the light of recent decisions, the special rules applicable to special damages which were enunciated by Dixon CJ and by Fullagar J in Blundell v Musgrave”.^[18] Mason J was more direct:^[19]

Enough has been said in the cases which have been decided more recently to indicate that the old view based on the proposition that a plaintiff is not entitled to recover from the defendant the services provided to him unless he can show that he is under a legal liability for pay for them, is no longer acceptable.

(Emphasis added.)

• [21] Counsel referred at some length to Kerkemeyer and the subsequent decisions of the High Court of Australia in Kars v Kars,^[20] CSR Ltd v Eddy,^[21] and Latz v Amaca Pty Ltd.^[22] While confirming that Kerkemeyer remains the law in Australia, those subsequent decisions refer to it as “anomalous” because it departed from the usual rule that damages, other than those not measurable in money terms, are not recoverable for an injury unless the injury produces financial loss. Thus, in CSR v Eddy, the Court declined to apply Kerkemeyer to “any class of case where its use [is] not covered by authority”.^[23]
• [22] For three overlapping reasons we do not intend dealing further with Kerkemeyer and the subsequent decisions of the High Court of Australia to which we have referred. Nor will we refer to the English decisions which grappled with the same difficult issue, in particular Donnelly v Joyce^[24] and Hunt v Severs.^[25] Our reasons are:

(a) Mr Blumberg had a legal liability to pay the hire charges to R2D.

(b) The present appeals do not involve services provided gratuitously: R2D never intended to provide the hire car to Mr Blumberg at no cost.

(c) Since action to recover compensatory damages for personal injury by accident was proscribed from 1 April 1974,^[26] New Zealand Courts do not have to deal with the difficulties that have confronted the Australian and English Courts in the cases we have referred to.

• [23] We turn then to cases dealing with facts and contractual arrangements comparable, or more comparable, to those of the present appeals. These cases do not support Mr Ring on his first reason for submitting Mr Blumberg had no legal liability to R2D for its hire charges: that R2D never intended to recover these charges from Mr Blumberg.
• [24] The leading Australian authority is the decision of the New South Wales Court of Appeal in Anthanasopoulos v Moseley.^[27] That case involved four separate claims by the owners of private vehicles damaged in collisions to recover from the at-fault parties the cost of hiring a replacement car during repairs. In each case those costs had been met by the plaintiff’s insurer voluntarily (the costs were not covered by the plaintiff’s insurance policy). After reviewing the Australian and English authorities, the Court held unanimously that injury to property depriving its owner of its use is compensatable by way of damages, and the fact that a third party provides a substitute for the damaged property, and the basis upon which that substitute is supplied (ie free of cost), are irrelevant. Notwithstanding that counsel focused on the Kerkemeyer principle, Beazley JA based his view on:^[28]

... the long line of authority traceable to The Greta Holme, to the effect that injury to property which deprives a party of the use of the thing is compensatable. It is irrelevant if a third party provides a substitute for the thing damaged and the principle res inter alios acta applies so as to make it irrelevant as to the basis upon which the third party provides the replacement.

• [25] Ipp AJA agreed that the The Greta Holme line of cases was the best authority for the entitlement to, and the measure of, damages where a replacement is hired while a damaged chattel is repaired and cannot be used. Ipp AJA then turned to the relevance of the fact that the replacement cars had been provided free of cost. After referring to National Insurance Co of New Zealand Ltd v Espagne,^[29] Kerkemeyer, Kars v Kars, and Redding v Lee,^[30] Ipp AJA concluded:^[31]

In my opinion, there is no relevant distinction between a financial benefit, a benefit in the form of services, and a benefit in the form of a replacement vehicle provided to the owner of a vehicle damaged by the negligence of another.

In the circumstances, I agree with Beazley JA that the provision of a replacement vehicle by [the plaintiffs’ insurer] was collateral and res inter alios acta.

• [26] The third member of the Court, Handley JA, agreed with Beazley JA and Ipp AJA.
• [27] Although Anthanasopoulos is not a credit car hire company case, it is authority that a plaintiff in Mr Blumberg’s position, who has been provided at no charge with a replacement car, can recover damages “measured by reference to the market rate of hiring the replacement”.^[32]
• [28] Mr Ring went to considerable lengths to submit Anthanasopoulos cannot be regarded as authoritative in New Zealand. This, he argued, is because it treats the deprivation loss when a car is damaged and needs repair as occurring at the time of the accident and not later when use of the car is lost while it is repaired. It thus treats mitigation and other subsequent events as irrelevant.
• [29] We do not accept any of the many grounds on which Mr Ring seeks to distinguish Anthanasopoulos. We intend dealing only with three. First, he submits it is contrary to New Zealand authority. He relies on Newmans Coach Lines Limited v Robertshawe.^[33] This Court considered Newmans had failed to establish its claim for special damages for loss of profits while one of its buses was repaired. The Court remitted the case to the High Court to assess general damages. The passage Mr Ring relies on is this:^[34]

Where a substitute has been hired whether as a standby or otherwise it may be reasonable to look to the cost of the hire as a fair measure of the loss of use of the damaged chattel where a loss of earnings claim is not sustained or involved.

• [30] Newmans had not hired a replacement bus, so this observation is obiter. Nevertheless, applying the passage here, we understand the Court to be saying that R2D’s hire charges will be a fair measure of Mr Blumberg’s deprivation loss. That, if anything, supports Mr Blumberg’s claim. It does not support Mr Ring’s proposition. We do, however, agree with Mr Ring that there is no New Zealand authority directly on Issue 1.
• [31] Second, Mr Ring submitted the “Greta Holme”, “Mediana” UK line of authority does not support the conclusions Anthanasopoulos drew from them. Beazley JA and Ipp AJA both considered those cases supported the respondents being entitled to damages for the loss of use of their vehicles. So do we. In Greta Holme Lord Halsbury stated:^[35]

It is a sufficiently familiar head of damages between individuals that, if one person injures the property of another, damages may be recovered, not only for the amount which it may be necessary to spend in repairs, but also for the loss of the use of the article injured during the period that the repairing may occupy.

• [32] And in the same case, in a passage fastened upon by Ipp AJA, Lord Herschell said:^[36]

If the appellants had hired a dredger instead of purchasing one, and had during the months they were deprived of its use been bound to pay for its hire, it cannot be doubted that the sums so paid could have been recovered.

• [33] Third, Mr Ring submits Anthanasopoulos is contrary to UK authority. Assuming Mr Ring’s analysis of Anthanasopoulos set out in [28] above is correct, we do not consider that the analysis differs from the English approach. Two passages in the leading English cases demonstrate this. First, in Giles v Thompson Steyn LJ said this:^[37]

The plaintiff’s loss was incurred when she was deprived of the use of her car after the accident. It became a head of special damages when she hired a car.

• [34] Second, in Dimond v Lovell Lord Hobhouse explained:^[38]

Mrs Dimond was at the time of the accident the owner and person in possession of her car. It was damaged. Its value was reduced. This can be expressed as a capital account loss. This loss can be measured as being the cost of making good the damage plus the value of the loss of its use for a week. Since her car was not unrepairable and was not commercially not worth repairing, she was entitled to have her car repaired at the cost of the wrongdoer. Thus the measure of loss is the expenditure required to put it back into the same state as it was in before the accident. This loss is suffered as soon as the car is damaged. If it were destroyed by fire the next day by the negligence of another, the second tortfeasor would only have to pay damages equal to the reduced value of the car and the original tortfeasor would still have to pay damages corresponding to the cost of putting right the damage which he caused to the car.

(Emphasis added.)

It seems to us that Mr Ring has conflated and confused the occasion and measure of the loss.

• [35] Mr Ring’s concerted attempt to distinguish Anthanasopoulos is because it stands in the way of his underlying argument that:

(a) Mr Blumberg can recover general damages for his deprivation loss;

(b) if he incurs an expense in mitigating his deprivation loss then he can recover that expense as special damages;

(c) but if he mitigates his deprivation loss without incurring expense then he cannot recover any damages.

• [36] As Mr Chisholm points out, Mr Ring does not cite any case supporting this unappealing result.
• [37] Mr Chisholm referred also to the decision of the New South Wales Local Court in Lowe v Pearce.^[39] Although this is a decision of a lower court, it is a carefully and well reasoned one. Its relevance is that it was a claim to recover hire charges for a replacement car provided by R2D (the Australian parent company). The judgment records: “The plaintiff has not been required to pay Right2Drive hire charges”.^[40] Significantly, only the quantum of the hire charges was in issue. Although the Court was not required to decide the issue we are considering, in the course of its judgment the Court noted:^[41]

In Bee v Jensen ... Lord Justice Longmore noted at [22]–[23] that a plaintiff who had not paid any hire charges remained entitled to recover “general damages” based on the spot rate for a comparable vehicle...

• [38] We are unsure whether the acceptance of liability in Lowe v Pearce indicates that litigation in Australia involving comparable replacement car situations has narrowed to the quantum of the hire charges.
• [39] In England, it is now long and firmly established that a plaintiff can recover the cost of hiring a car to replace one damaged through the defendant’s negligence, notwithstanding that the plaintiff will not or may not have to pay the hire costs.
• [40] We did not understand Mr Ring to dispute that this is the English position. The leading authority is the judgment of the House of Lords in Giles v Thompson. Delivering a judgment in which the other four Law Lords concurred, Lord Mustill said:^[42]

V. Have the motorists suffered loss?

I now turn to the wholly distinct question whether the motorists have proved that they have suffered a recoverable loss through the unavailability of their own cars pending repairs. The defendants say that they have not, because the cars were replaced by substitute vehicles which the motorists were able to use free of charge. In essence, it is said that the motorists have mitigated what would otherwise have been a valid claim for general damages reflecting their loss of the opportunity to make use of their own vehicles.

On the opinion which I have formed of the obligations created by the obscure and incomplete terms of the two agreements this contention admits of a very short answer. In my judgment the motorists do not obtain the replacing vehicle free of charge. If the motorist had simply persuaded a garage to hire her a substitute on credit, without any of the superstructure of the present transaction, it would be no answer to a claim for damages equivalent to the sums due to the garage that these sums would not in practice be paid until a judgment in the motorist’s favour had provided the necessary funds: for the amount of the outstanding liability represents the loss suffered by the motorist, and the question whether the motorist intends to apply the damages recovered in satisfaction of the debt, or in some wholly different way, cannot affect his right of recovery.

... The hiring company has no direct right to the damages. The company is not an assignee or chargee of the cause of action or its fruits, although it expects that the damages for loss of use will form part of the assets from which the motorist will in due course pay for the substitute. The liability for the car hire, although suspended as regards enforcement, rests upon the motorist throughout. It is a real liability, the incurring of which constitutes a real loss to the motorist. Whatever the publicity material may have conveyed, the provision of the substitute cars was not “free”.

• [41] The English Court of Appeal subsequently dealt with this issue in Bee v Jenson.^[43] Mr Bee’s car had been damaged in an accident caused by Mr Jenson’s negligence. Mr Bee hired a car while his own was being repaired. He did not have to pay for this because the cost was covered by his insurance. The Court said:

[15] It is, in any event, necessary to say that it does not follow from the fact that Mr Bee was not liable for the hire charges of the replacement car, that he cannot recover damages for the deprivation of his use of his car. It may be a question of what the appropriate amount of such damages will be but, if he has in fact reasonably made arrangements for a hire car, there is no reason why he should not recover the cost of hire, whether or not he has rendered himself liable for the hire charges and whether or not the actual cost has been paid by him or somebody else such as an insurer (or indeed any other third party). In so doing he may in legal jargon be recovering general damages rather than special damages but there is no significance in that.

And a little later:

[22] One may further observe that if a claimant has the use of a hire car but does not have to pay for it, it may be difficult to say that he can recover special damages at all. It may be that he can only recover general damages. That does not, however, mean that such general damages should not be assessed by reference to the reasonable cost of hire.

• [42] A recent application of the Giles v Thompson principle is the decision of the English High Court in Irving v Morgan Sindall Plc.^[44] Turner J defined the first of the two central points for resolution as:^[45]

Can a claimant recover credit hire charges against a defendant even when she has been assured by the credit hire company that she will never have to pay the outstanding sums out of her own pocket?

• [43] The Judge then set out questions to the plaintiff by the trial judge, and the answers she gave. They included:^[46]
  17. So, let me ask you this. So, if, as regards the hire charges, you did not think you were going to have to pay for these?

A. I didn’t, no.

Q. At all?

A. No.

Q. No. Whether you won or lost this case?

A. No. If I lost, I was told there’d be no fees at all like, nothing to pay.

• [44] After considering the passage from Lord Mustill’s judgment in Giles v Thompson set out in [40] above, and Harlow & Jones Ltd v Panex (Interna[47]onal) Ltd,⁴⁷ Donnelly v Joyce, McA[48] v Brooks,⁴⁸ Cosemar SA v Marimarna Shipping Co Ltd [49]he Mathew)⁴⁹ Turner J concluded:

[25] It follows that I am satisfied that the judge was wrong to conclude that the assurances given to the claimant, even taken at their highest, were such as to compromise her claim for credit hire charges against the defendant and so the appeal on this ground is allowed.

• [45] We consider the position in New Zealand should reflect that in Australia and the United Kingdom. Thus, the fact that liability for the hire charges would not, or may not, be enforced does not affect the recoverability of damages in respect of the hire charges.

(b) If Mr Blumberg’s liability was a contingent one, does that mean he did not incur a compensatable loss for the purposes of the law of torts?

• [46] We move now to Mr Ring’s second reason for submitting that Mr Blumberg could only recover R2D’s hire charges if he had a legal liability to pay them. The argument here is that Mr Blumberg could not have a legal liability to pay the hire charges unless it was an unconditional one — a liability free of any contingency. Mr Ring based this second reason on the observation of Elias CJ in Davys Burton v Thom that “a liability that is wholly contingent may give rise to no immediate economic or financial detriment”.^[50]
• [47] Mr Ring submitted the conditions to Mr Blumberg’s liability were at least three-fold. R2D had to:

(a) advise final charges to Mr Blumberg;

(b) issue an invoice for those final charges to Mr Blumberg; and

(c) demand payment of those charges from Mr Blumberg.

• [48] As we have held, upon signing the hire agreement Mr Blumberg became liable to R2D for the hire charges. The three “conditions” relied on by Mr Ring were simply steps that R2D needed to take before it could enforce that liability against Mr Blumberg. The flaw in this second aspect of Frucor’s argument is demonstrated by the example Mr Ring put to the Court. He said that if A lent B $100 B would have no legal liability to A until repayment was demanded. If that is right then B is debt and liability free until A demands repayment. That cannot be right and cannot be reconciled with, for example, the Supreme Court’s decision in Worldwide NZ LLC v New Zealand Venue and Event Management Ltd.^[51] There, not only had the sum in question not been demanded, it had not even been ascertained nor fixed. Because the parties were in dispute, the sum due had to be determined by the Court. But “[t]his does not mean that it was an inchoate or contingent liability”.^[52] The Court held it was a debt on which interest under s 87(1) of the Judicature Act 1908 was properly awarded. Further, in Wakeling v Harrington Mann J observed:^[53]

A liability owing from A to B can exist notwithstanding that B has agreed not to enforce it directly against A. A non-recourse loan is a good example of that.

• [49] Mr Ring’s reliance on Davys Burton v Thom also needs to be put in context. Mr Thom had sued his solicitors Davys Burton for their negligence in preparing for him a matrimonial property agreement that was unenforceable. The issue was when Mr Thom had suffered loss, thus accruing his cause of action in negligence. The ratio of Davys Burton is captured in the following passage of the judgment of Tipping, McGrath and Wilson JJ delivered by Wilson J:^[54]

[A] cause of action in tort for negligence does not exist and hence time does not start running for the purposes of the Limitation Act unless and until the plaintiff has suffered some actual and quantifiable loss, harm or damage as a result of the breach of duty involved. Damage will be contingent, and hence not actual for limitation purposes, if the plaintiff will suffer no damage at all unless and until a contingency is fulfilled.

• [50] So Davys Burton is a limitation case not of assistance on the issue here. However, it does instance, as a contingent liability, a guarantee. The liability of the guarantor is contingent on default by the principal debtor. R2D’s hire documentation is in no way comparable to a guarantee.
• [51] We summarise. The hire agreement Mr Blumberg signed made him liable to pay any hire charges advised to him by R2D which it had not recovered from Frucor. For the reasons we have explained, the fact that R2D had a policy of not seeking to recover those charges from Mr Blumberg did not affect his liability. Nor did the fact that R2D could not have enforced Mr Blumberg’s liability against him until it had taken certain steps. Accordingly, we answer this first issue “Yes”.

Issue 2: Was R2D’s hire agreement unenforceable, in that it assigned a bare cause of action and was champertous?

• [52] Frucor challenges Jagose J’s holdings that R2D’s hire agreement with Mr Blumberg did not cross the line into tortious maintenance and champerty^[55] and did not involve Mr Blumberg assigning his cause of action against Frucor to R2D.^[56] As Mr Ring observes, the Judge “summarily rejected” this aspect of the appellants’ case.
• [53] Mr Ring argues:

(a) The hire agreement was an assignment to R2D of the whole of Mr Blumberg’s cause of action against Frucor for his deprivation loss, represented by the hire charges. It gave R2D the right, not only to commence and conduct a legal proceeding against Frucor, but to retain the recovered charges and costs and apply them to its hire charges and recovery costs. Such an assignment of a “bare” right of action was unenforceable.^[57]

(b) The hire agreement was champertous for two reasons. First, it gave R2D total and exclusive control over the litigation and the proceeds of it. Second, R2D had no genuine commercial interest in taking the assignment and enforcing the cause of action. The fact that R2D could have offered Mr Blumberg a differently structured package which did not include R2D providing a replacement vehicle demonstrates that provision of the replacement vehicle was largely irrelevant to the hire agreement. R2D did not provide the vehicle, and only obtained the right to recover the hire charges as an ancillary protective measure. The whole purpose of the agreement was to give R2D the right to recover from Frucor. This is evidenced by the absence of any intention of obtaining payment from Mr Blumberg, come what may.

• [54] We are not persuaded that Mr Ring is correct in submitting the hire agreement assigns Mr Blumberg’s cause of action to R2D. The Judge’s view seems preferable: Mr Blumberg’s authority to R2D to act as his “agent, representative and attorney” to recover the hire charges is the antithesis of a transfer away of the right to recover.^[58] That was the view the House of Lords took of the comparable credit car hire arrangements it considered in Giles v Thompson. In the passage we have set out in [40] above, Lord Mustill states “The [car hire] company is not an assignee or chargee of the cause of action or its fr[59]ts”.⁵⁹
• [55] But let us assume the hire agreement did assign Mr Blumberg’s cause of action to R2D. In Waterhouse v Contractors Bonding Ltd the Supreme Court stated “[a]ssignments of bare causes of action in tort and other personal actions are, with certain exceptions, not permitted in New Zealand”.^[60] The Court did not identify the exceptions, but Todd on Torts does, explaining:^[61]

The rule is aimed at preventing litigation being used as a commodity which can be bought and sold. It has its roots in the torts of maintenance and champerty,^[62] but has been recognised in the Supreme Court as having independent existence of its own.^[63] However, the ambit of the rule needs to be examined, for it is qualified in significant respects.

It is apparent that an assignment of a right to sue for breach of contract may validly be made where the assignee has a genuine commercial interest in the subject matter of the proceedings,^[64] and the same principle has been recognised as applying in the case of a right of action in tort.^[65]

• [56] R2D unarguably had a genuine commercial interest in Mr Blumberg recovering the hire charges from Frucor. Its interest could not be more patent. So there could be nothing objectionable in R2D taking an assignment of the cause of action, if that is what it did.
• [57] The difficulty we have in understanding Mr Ring’s argument that R2D lacked a genuine commercial interest suggests to us that the argument lacked force. It posited a different contractual arrangement, one not involving the hire of a replacement car. But, as Mr Chisholm submitted, R2D is a vehicle hire company and the nub of the agreement was car hire. We do not accept Mr Ring’s argument.
• [58] One of the issues for the House of Lords in Giles v Thompson was whether a broadly comparable agreement was champertous.^[66] The House of Lords held it was not. Delivering a judgment in which the other four Law Lords concurred, Lord Mustill said this:^[67]

Returning to the [car hire] company, is it wantonly or officiously interfering in the litigation; is it doing so in order to share in the profits? I think not. The [car hire] company makes its profits from the hiring, not from the litigation. It does not divide the spoils, but relies upon the fruits of the litigation as a source from which the motorist can satisfy his or her liability for the provision of a genuine service, external to the litigation. I can see no convincing reason for saying that, as between the parties to the hiring agreement, the whole transaction is so unbalanced, or so fraught with risk, that it ought to be stamped out. The agreement is one which in my opinion the law should recognise and enforce.

• [59] Mr Ring sought to distinguish Giles v Thompson but we do not accept any of the three grounds he advanced. The case is compelling authority that a hire agreement comparable to R2D’s is not champertous.
• [60] We answer Issue 2 ‘No’.

Quantum

• [61] Given that legal liability is established, and damages are recoverable, the measure of such damages arises.

Issue 3: Did the Judge err in applying a subjective rather than an objective standard when considering the reasonableness of Mr Blumberg hiring a replacement car from R2D?

• [62] Mr Ring’s argument that the Judge incorrectly adopted a subjective standard in assessing the reasonableness of Mr Blumberg hiring a replacement car from R2D is based on a few words in [56] of the judgment:

Importantly, what is ‘reasonable’ in all the circumstances is not to be regarded with too critical an eye in hindsight, but from the perspective of what would have appeared reasonable to the plaintiff at the time.^[68]

(Mr Ring’s emphasis.)

• [63] There is nothing in this point. In the previous paragraph the Judge sets out the “reasonableness” test to be applied when a plaintiff seeks to reclaim mitigation expenses. He draws this test from this Court’s judgment in Hooker v Stewart.^[69] Through the balance of [56] of his judgment the Judge uses “a plaintiff” and “the plaintiff” interchangeably when referring to plaintiffs in general. Then, in [57], the Judge summarises the way he intends applying the reasonableness test in this way:

[57] Because the plaintiffs’ need for a replacement car is accepted, and any impecuniosity is to be disregarded, the most helpful test of reasonableness is whether such a prudent driver would take up R2D’s replacement car for a period to repair damage they caused to their own car.^[[70]]

(Footnotes omitted.)

• [64] At the end of the section of his judgment where he deals with the reasonableness of the plaintiffs hiring a replacement car from R2D, Jagose J has two concluding paragraphs. They start as follows:

— Back to the “prudent driver”

[63] The question remains: would a prudent driver take up R2D’s replacement car for the period of repair? A prudent driver can be taken ...

All of what follows considers what “a prudent driver” would have done in the circumstances.

• [65] Reading this part of the judgment as a whole, the Judge is unmistakably applying the correct, objective test. We answer this issue ‘No’.

Issue 4: Was it reasonable for Mr Blumberg to take the R2D option rather than one of the other available options?

• [66] As outlined in [7] above, Barrys Point referred Mr Blumberg to R2D. When R2D told Mr Blumberg it could provide him with a replacement car at no cost while his own was repaired, Mr Blumberg did not inquire about other options that might have been available to him to obtain a replacement car. Further, as the Judge noted:

[10] Under cross-examination, each plaintiff denied any comprehension s/he was liable for the charges. None knew the “contract rate”, or the cumulative charges for their rental. Prior to being shown it in cross‑examination, none had seen R2D’s respective invoice issued against them.

• [67] Mr Ring submitted to Jagose J that this was “the very definition of unreasonableness”.^[71] He contended Mr Blumberg should have considered the options of obtaining a replacement car from:

(a) a conventional car rental company;

(b) his own or Frucor’s insurer; or

(c) Barrys Point.

• [68] As the Judge noted, Mr Ring also elicited from Mr Blumberg that he would have considered options (a) and (b) had he understood he may have been liable to pay R2D’s hire charges.^[72] Mr Blumberg also gave evidence he “believe[d] [he] would have” again asked Barrys Point about a courtesy car had he been aware of potential liability for R2D’s hire charges. He had, at the assessment stage, inquired of Barrys Point about a courtesy car and been told “they didn’t have any”.
• [69] We are dealing with this issue separately from the next: were R2D’s hire charges reasonable? The Judge dealt with the two issues together. He concluded:

[64] The general consistency of R2D’s prices with those of conventional car rental companies – together with the more fit-for-purpose terms of R2D’s hire for a replacement vehicle for an indeterminate period of hire – suggests a prudent driver may well have been prepared to take R2D’s offering in circumstances of their own default. Such prudent drivers would also factor in the mismatch between their uncertain requirements and conventional car rental companies’ requirements for predetermined rental periods (with only discretionary extensions, usually without further discount to price). That defendants could establish a lower-priced (let alone the lowest-priced) car may have been available to plaintiffs in those circumstances is ‘to weigh their effort in too nice a scale’.

• [70] The following is part of Mr Ring’s written submissions on this issue:

6.5 ... Acting reasonably, [the respondents] should also have obtained a reasonably reliable and accurate appreciation of whether, by signing up with R2D for the replacement vehicle, they would be incurring a legal liability including how, when and in what circumstances it would be satisfied or discharged; and also a reasonably reliable appreciation of how R2D’s charges were comprised and calculated, and of what they were likely to be, based on the estimated duration. Then the respondents would have been properly equipped to compare the reasonably available options, including R2D.

• [71] There is not, in this passage, nor anywhere else in Mr Ring’s submissions, a proper acknowledgement of the standard by which Mr Blumberg’s conduct in hiring a car from R2D is to be measured. The standard has never been better stated than it was by Lord MacMillan in his judgment in Banco de Portugal v Waterlow & Sons Ltd:^[73]

Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticize the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measure less burdensome to him might have been taken.

• [72] As noted in the passage from this Court’s judgment in Hooker v Stewart,^[74] cited by Jagose J,^[75] similar principles apply in tort. Indeed, the tortious standard had been similarly expressed some 20 years before Banco de Portugal by Lord Loreburn LC in Lodge Holes Colliery Co Ltd v Wednesbury Corp:^[76]

Now I think a Court of justice ought to be very slow in countenancing any attempt by a wrong-doer to make captious objections to the methods by which those whom he has injured have sought to repair the injury. When a road is let down or land let down, those entitled to have it repaired find themselves saddled with a business which they did not seek, and for which they are not to blame. Errors of judgment may be committed in this as in other affairs of life. It would be intolerable if persons so situated could be called to account by the wrong-doer in a minute scrutiny of the expense, as though they were his agents, for any mistake or miscalculation, provided they act honestly and reasonably.

• [73] Having placed Mr Blumberg in the position of needing to obtain a replacement vehicle while his own was repaired, we view Frucor’s submission as weighing the steps Mr Blumberg took “in nice scales”. The nub of Frucor’s submission is to “suggest that other measures less burdensome to [it] might have been taken”.
• [74] Significantly, it was Barrys Point, one of Vero’s approved repairers, which referred Mr Blumberg to the R2D option — it gave him R2D’s brochure. It presumably did that because the R2D option was available, convenient, and customised to the accident damage repair situation Mr Blumberg was in. There was this exchange when Mr Ring was putting option (b) to Mr Blumberg:
  17. Wouldn’t it have been much more convenient for you to have had Vero organise a hire car for you and pay it direct?
  1. It was pretty straightforward to get the Right2Drive vehicle, so I didn’t pursue Vero.
• [75] Mr Ring accepts that Mr Blumberg would have been entitled to general damages had he been deprived of a car while his own was repaired. As Lord Hope explained in Lagden v O’Connor, those general damages would essentially have been for inconvenience.^[77] So the convenience of the R2D option, as opposed to the others, is highly relevant.
• [76] In the English Court of Appeal in Dimond v Lovell Sir Richard Scott VC, with whom Thorpe LJ agreed, said this:^[78]

I do not think it was obligatory for the plaintiff to shop around or to go to an ordinary car hire company. It was reasonable to choose the special niche service on offer from 1st Automotive [the credit hire company].

Judge LJ, while unhappy with that conclusion, was unable to articulate the principle upon which he differed. When Dimond v Lovell reached the House of Lords, Lord Hoffmann noted the Court of Appeal’s position and said:^[79]

My Lords, I would accept the judge’s finding that Mrs Dimond acted reasonably in going to 1st Automotive and availing herself of its services. I am sure that any of your Lordships in her position would have done the same. She cannot therefore be said not to have taken reasonable steps to mitigate her damage.

• [77] All the other Law Lords except Lord Hobhouse concurred. Lord Hobhouse, who delivered a separate but concurring judgment, did not specifically deal with this aspect. Lord Nicholls went further. He would have awarded Mrs Dimond all the credit hire company’s charges. He said:^[80]

The additional services provided by accident car hire companies bridge this gap. They redress the imbalance between the individual car owner and the insurance companies. They enable car owners to shift a loss from themselves to the insurance companies which properly belongs to the insurers but which, in practice, owners of cars often have to bear themselves. So long as the charge for the additional services is reasonable, this charge should be part of the recoverable damages.

This House was told by counsel of a scheme or proposed scheme, the “ABI Initiative”, whereby insurance companies and car hire companies will provide hire vehicles to victims of no fault accidents. Depending on its terms, a scheme of this nature may meet the need which has given rise to the accident car hire business. Until that happens, the accident car hire arrangements provide a reasonable basis by which no-fault victims can in fact obtain the benefit of the right which the common law and compulsory third party insurance seek to give them against careless drivers. A measure of damages which does not achieve this result would be sadly deficient. The law on the measure of damages should reflect the practicalities of the situation in which a wronged person finds himself. Otherwise it would mean that the law’s response to a wrong is a right to damages which will often be illusory in practice. I do not believe this can be the present state of the law in a situation which affects thousands of people every year.

• [78] We respectfully agree with their Lordships’ views. Having damaged Mr Blumberg’s car, and having put him to the inconvenience of having to arrange for its repair and for a replacement vehicle during the repair period, Frucor cannot be heard to criticise Mr Blumberg for taking the most convenient option available to him.
• [79] In the passage we have set out in [77] above from Dimond v Lovell, Lord Nicholls referred to counsel’s advice that insurers were proposing a scheme whereby they will provide vehicles to victims of no-fault accidents. In the same case in the Court of Appeal Judge [81] observed:⁸¹

On the other hand, if the defendant’s insurers make a rapid offer to provide an alternative vehicle ... it may be inappropriate to use the cost charged by organisations like 1st Automotive [the credit car hire company in that case] as the correct basis for quantifying the claim for loss of use.

• [80] We wonder whether the scheme proposed in the United Kingdom came to fruition. Our research suggests it has not. Why not? There was, of course, no “rapid offer”, nor any offer, by Vero to Mr Blumberg to provide him with a replacement car while his was repaired. In the course of Mr Chisholm’s cross-examination of Ms Johnston, Vero’s claims consultant, there was this exchange:
  17. And did Vero promote on it’s website for example that it may consider reasonable costs of rental?
  1. I don’t recall it being on our website at all.
  17. Did you ever think of perhaps advising Mr Blumberg prior to or at the time of the vehicle repairs that you might be prepared to consider arranging or paying reasonable costs of a rental vehicle?
  1. No, we leave it to the other party to approach us that they require a rental vehicle.

That obliged Mr Ring to submit that Mr Blumberg should have asked Vero whether it was prepared to arrange and pay for a replacement car during the repair period.

• [81] We detect no fault in Jagose J holding that Mr Blumberg acted reasonably in taking the R2D option. Accordingly, we answer this fourth issue ‘Yes’.

Issue 5: Were R2D’s hire charges reasonable?

• [82] The Judge dealt with this issue under the heading ‘price comparisons’ in his judgment. To summarise:

(a) He accepted the evidence of R2D’s parent company’s Managing Director, Mr Mullins, that R2D provides hirers like Mr Blumberg with a similarly specified car from its modern fleet and sets the daily hire rate at the commencement of the hire, after ascertaining current market rates charged by Avis, Budget and Europcar for a comparable vehicle.^[82]

(b) He accepted the evidence of Mr Karis, CEO of The Data Group, that R2D’s daily hire rate to Mr Blumberg was in the vicinity of the average daily hire rate for comparable vehicles across the whole of 2016, and within the range of daily hire rates for comparable vehicles for Mr Blumberg’s rental period. The Data Group was a consultant engaged by R2D to “harvest pricing using a data scraping process” from the websites of Avis, Europcar and Hertz.^[83]

(c) In assessing the reasonableness of the hire rate R2D charged not‑at‑fault drivers like Mr Blumberg, he considered it relevant that:

(i) R2D had to provide such drivers with replacement cars on short notice for indeterminate periods of hire, thus utilising its fleet less efficiently than could a conventional car rental company; and

(ii) because, for reasons of reliability and maintenance costs, R2D maintained a modern fleet comparable with those of the conventional rental car companies, it was appropriate to compare R2D’s pricing with that of those companies (now obtained from The Data Group’s continuing work for R2D).^[84]

(d) The evidence satisfied the Judge that R2D’s prices broadly reflect market rates. For example, Ms Monk, an employee of Hertz, stated that Hertz typically rented accident repair replacement cars for “a nine day hire period” that being “our experience of our understanding of how long the vehicles are generally out on rent with us in that scenario”.^[85] The applicable 8–14 day $113 daily rate for a Subaru Legacy, the vehicle in the fleet of Hertz’s budget subsidiary Ace comparable to Mr Blumberg’s Nissan Wingroad, was near identical to the $114.60 charged by R2D.

(e) Mr Dalglish of GO Rentals (GO) thought Hertz’s figures “sound about right”.^[86]

• [83] Mr Ring criticised the Judge’s approach in numerous respects. These included:

(a) effectively ignoring the second tier car rental companies such as GO, and the hire rates they charged;

(b) giving consideration to R2D’s business model in evaluating its prices; and

(c) not separately addressing “the principles relevant to identifying an equivalent vehicle in this context”.

• [84] In relation to (c), Mr Ring submitted an equivalent vehicle was the cheapest of an objectively equivalent vehicle to Mr Blumberg’s Nissan Wingroad or a vehicle acceptable to Mr Blumberg. Assessing what is an objectively equivalent vehicle includes age, mileage and value, as well as specifications. The car R2D hired Mr Blumberg was not an equivalent vehicle but rather a “superior” one.
• [85] Applying all of these points, Mr Ring submitted:

8.25 R2D has claimed from Frucor for the cost of a 2015 Mitsubishi ASX, with 31,044kms on the clock, to replace Mr Blumberg’s 2005 Nissan Wingroad that had done 145,000kms. R2D did not tell Mr Blumberg in advance what type of vehicle it would provide. Despite Mr Mullins’ allegation of similarity, the Mitsubishi should not be regarded as equivalent in this context because of its age and mileage – reflected in its value. Mr Blumberg’s equivalent vehicle from Hertz would have been a 2011 Subaru Legacy and, from GO Rentals, a Nissan Wingroad slightly newer than his – either of which he would have been happy with.

...

8.30 In summary, on 14 April 2016, as a temporary replacement for his 2005 1.5L Nissan Wingroad (145,000kms) worth about $6000, R2D provided Mr Blumberg with a 2015 2.0L 4WD Mitsubishi ASX worth in excess of about $18,500 at a daily rate of $114.62, based on an Avis website search indicating that Avis could provide a 0-3 years old 2.0L Rav4 worth in excess of about $27,000 at a daily rate of $120.35, when GO Rentals could have provided him with a 2008-2010 1.5L Nissan Wingroad at a daily rate of $72.17, being $2381.61 + GST – a difference of $48.18 per day, and of $1589.94 over the entire 33-day hire. The Judge should have accepted this evidence, and held that Mr Blumberg’s recoverable damages from Frucor as compensation for the reasonable cost of obtaining an equivalent replacement vehicle was $2361.81 plus GST (excluding the collection charge).

• [86] In his overview in the introductory section to his written submissions, Mr Ring fastened on the $72.17 daily hire rate offered by GO. As is apparent from the two paragraphs we have set out above, that remained the focus of Mr Ring’s submission on this issue. Mr Ring reinforced this submission by arguing that Mr Blumberg could recover only the hire charges for the lowest priced hire car available, relying on the decision of the English Court of Appeal in Stevens v Equity Syndicate Management Ltd.^[87] Delivering a judgment in which the other two Judges concurred, Kitchin LJ said:^[88]

The search must rather be for the lowest reasonable rate quoted by a mainstream supplier for the basic hire of a vehicle of the kind in issue to a reasonable person in the position of the claimant. This, it seems to me, is a proportionate way to arrive at a reasonable approximation to the BHR [basic hire rate].

(Mr Ring’s emphasis.)

• [87] In summary, there are two aspects to Mr Ring’s argument. First, the 2015 Mitsubishi ASX R2D hired to Mr Blumberg was not a vehicle equivalent or comparable to Mr Blumberg’s accident-damaged 2005 Nissan Wingroad. Second, and as a consequence, R2D’s hire charge to Mr Blumberg for the Mitsubishi was not a reasonable mitigation expense that he could recover from Frucor. We deal with each of these points in turn.
• [88] First, we do not accept that the Mitsubishi ASX was not an equivalent or comparable vehicle. As the Judge noted, R2D maintained a modern rental fleet. So did, and do, the “mainstream” rental car companies that chiefly featured in the evidence. These were Avis, Europcar and Hertz. In the passage from Stevens relied on by Mr Ring, set out in [86] above, the Court refers to a rate comparison with “a mainstream supplier”. A little later in the same judgment, the Court states “[t]he Recorder properly focused on four mainstream suppliers offering for basic hire ... in Mr Stevens’ locality a vehicle of the kind actually hired by him on credit hire t[89]ms”.⁸⁹
• [89] R2D did not have in its fleet a 2005 Nissan Wingroad, nor any model Nissan Wingroad. Nor did any of the three mainstream rental companies just mentioned. The evidence was that Avis’ comparable vehicle was a Toyota RAV 4, Europcar’s a Holden Trax, and Hertz’s a Subaru Legacy, Toyota RAV 4, Toyota Estima or a Kia Carnival.
• [90] Further, in Bent v Highways and Utilities Construction Ltd Jacob LJ said:^[90]

I would add further that one must not be hypnotised by any supposed need to find an exact spot rate for an almost exactly comparable car. Normally, the replacement need be no more than in the same broad range of quality and nature as the damaged car. There may be a bracket of spot rates for cars rather “better” and rather “worse”. A Judge who considered that bracket and aimed for some sort of reasonable average would not be going wrong.

• [91] What the Judge said in that passage as to the method of calculating the spot rate (or BHR — basic hire rate, as it is now referred to in the English cases) led to argument on further appeal following a retrial in Pattni. But that argument was all about the method of calculating the BHR; there was no disagreement that the replacement vehicle need only be in the “same broad range of quality and nature” as the damaged car. One of the principles stated in Pattni is:^[91]

(3) The injured party cannot claim reimbursement for expenditure that is unreasonable. If the defendant can show that the cost that was incurred was more than was reasonable, either by proving that the claimant had no use for a replacement car in part or at all, or because the car hired was bigger or better than was reasonable in the circumstances, the amount expended on the hire must be reduced to the amount that would have been needed to hire the equivalent to the damaged car...

• [92] Throughout the judgment in Pattni phrases including “a reasonably equivalent replacement vehicle”^[92] “a reasonable substitute”^[93] and “a broadly comparable car”^[94] are used. We consider those descriptions in Pattni appropriately define what is a comparable or equivalent vehicle, and are satisfied that the Mitsubishi ASX comes within those descriptions. Again, this first aspect of Mr Ring’s argument does not correctly apply the test for the recoverability of mitigation expenses set out in [71] and [72] above. An example of recovery being disallowed because the claim was for the hire costs of a vehicle “bigger or better than was reasonable in the circumstances” (to adopt the wording in Pa[95]ni) is Droga v Cannon.⁹⁵ Ms Droga hired a BMW 520D four door sedan at a cost of AUD 480 plus incidentals per day, a total hire charge of AUD 19,685. Both the Magistrate, and Harrison J in the Supreme Court, considered this excessive. In “An aside” at the end of his judgme[96], Harrison J observed:⁹⁶

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.

• [93] As the New South Wales Local Court observed in Lowe v Pearce, Harrison J’s comments:^[97]

... are a cautionary statement that a plaintiff should not blindly focus on obtaining a like for like replacement irrespective of the cost particularly when dealing with high end expensive luxury vehicles.

• [94] To summarise, we consider the Mitsubishi ASX Mr Blumberg hired was a vehicle reasonably equivalent or comparable to his own.
• [95] We move to the second aspect of Mr Ring’s argument; that R2D’s daily hire rate of $114.62 for the Mitsubishi ASX was unreasonable. We start by setting out the schedule of prospective and retrospective hire rates Mr Chisholm attached to his submissions:

Schedule 1: Prospective and Retrospective Rate (GST Exclusive)

• [96] As Mr Ring rightly acknowledged, the focus must be on the rates available at the time Mr Blumberg hired his replacement car on 14 April 2016. These are the rates in the left-hand column yielded by the “prospective search”. That is because reasonableness (in this case of R2D’s hire rate) is judged, not in hindsight, but according to the circumstances as they appeared at the time.^[98]
• [97] Mr Ring accepts the accuracy of the five Avis and Europcar rates set out in the left-hand column. Assessed against those rates, R2D’s rate for the Mitsubishi is reasonable: one of Avis’ rates is lower, but the other four rates are all higher. And there was agreement amongst all the relevant witnesses that daily rates can vary, in particular in response to demand.^[99]
• [98] Mr Ring also attached a schedule to his submissions, tabulating the evidence of hire charges relating to Mr Blumberg. Of the rates listed in the right-hand column (retrospective search), of Mr Chisholm’s schedule, Mr Ring’s schedule selected Hertz’s rate of $98 for a 14 April 2016 hire of a Subaru Legacy, and GO’s $72.17 rate for a hire on the same day of a Nissan Wingroad or Toyota Corolla. Some points need to be made about these two rates. The evidence for Hertz was given by its employee, Ms Monk. First, under cross-examination, Ms Monk confirmed the $98 rate was for a 33-day hire period. So she provided that rate with the benefit of hindsight — the benefit of knowing that, although Mr Blumberg’s repairs were expected to take two to three weeks, they actually took 33 days. She confirmed that Hertz’s daily hire rate for a two-week expected repair period would have been $113, very similar to R2D’s $114.62 daily rate for the Mitsubishi.
• [99] Second, in her evidence-in-chief, Ms Monk said that Hertz’s daily hire rate for the Holden Barina Ms Mackey hired from R2D was $69.49. She compared this to R2D’s $112.17 rate for the Barina it had hired to Ms Mackey on 11 March 2016. She was questioned as to why she had selected the $69.49 rate when Hertz had hired other Barinas around the same time at significantly higher rates. After those higher rates were put to her there was this exchange:
  1. Yes, it is and I guess as part of this here what was trying to be demonstrated that the same daily rate doesn’t apply on every single day and this is pointing to the fluctuation of how pricing can be in the market and how our pricing operates.
  17. We accept that it fluctuates but you’ve given evidence in your table under clause 5 as to saying that you would have chosen in that example the $69 figure where you’ve simply not reflected the own information that you had from your records, did you? When we see the comparisons that you’ve actually provided in your schedule. You’ve simply chosen the lowest one available.
  1. You’re making an assumption I’ve chosen the lowest one available.
  17. Well, that is the lowest one, isn’t it?
  1. Yes, I do agree with you, I don’t disagree with that.
  17. ... why didn’t you choose the Holden Barina that was picked up at 11 March that had a rate of $90.49?
  1. I can’t actually accurately answer that.
  17. ... why you didn’t pick the Holden Barina that was picked up and actually hired for slightly longer on 15 March for $114.79?
  1. I can’t provide any response to that.
• [100] Third, in evidence-in-chief Ms Monk stated:

8.2 At Hertz, if a driver hires a vehicle for a certain number of days, but then later shortens or increases the hire period, the rate per day does not go up. The driver is therefore not disadvantaged by committing to a multi-day hire period and then adjusting it later if required.

In the course of cross-examination on this statement there were the following exchanges:

17. If your evidence is correct why does Hertz have terms and conditions, the terms and conditions we have in front of us, that on two occasions say that the hirer remains liable if the rental is brought to an end prior to the rental period?
1. I can’t accurately answer that for you.

...

17. Given that it appears that the request for information regarding your evidence doesn’t seem to have been passed on to you, would it be reasonably straightforward for you to get any internal Hertz documentation or policy statements that say that particular terms and conditions won’t be enforced? Would that be hard – would that be easy for you to locate from your office or get someone else from Hertz to locate for us?
1. It would, you’d have to be quite definitive about what you’re requiring in regards to internal documentation.
17. Is there any document that says particular terms and conditions in the Hertz terms and conditions that are advertised on its website won’t be enforced?
1. In a general sense, I’m not aware of any such documentation.

...

17. ... there’s nothing on the website about special terms applying in respect of car hire after accidents, is there?
1. That’s correct.

• [101] We move now to GO’s $72.17 daily hire rate. The evidence for GO was given by its Managing Director, Mr Dalglish. A number of points emerged from Mr Dalglish’s evidence. First, he readily acknowledged that he had provided the $72.17 rate knowing that Mr Blumberg’s actual hire period was 33 days. He was asked what the position would have been had Mr Blumberg hired a car for a 21 day period, but had then needed to extend it to 33 days. He answered:

In our case, that would not have changed the rate. So our hire period break down changes go seven, 14, 21 and 35, so a 21 would have been the same as a 33 day period.

• [102] But, critically, Mr Dalglish did not say what GO’s hire rate for the 21 day period would have been. And, in his brief of evidence he had stated:
  13. In terms of how GO Rentals operates, the longer a client hires a vehicle, the cheaper the daily rate becomes. We have hire day increments set at 1 day, 2 days, 3 days, 4-6 days, 7 days plus, 14 days plus, and onwards from that. As you work through each of these bands, the rate reduces by a set percentage. This means that a 1 day hire rate might easily be double a 7 day hire rate, just by way of example.
• [103] Second, he accepted that the $72.17 rate was not based on any actual hire at the time, but rather on resort “to our complex rate management system to get the information”. The same was true of the other hire rates he provided. None came “from actual hires”. In this respect, GO’s hire rates differed from the actual hire rates put in evidence by Ms Monk for Hertz.
• [104] Third, he accepted GO’s hire rates varied in the same way as did Hertz’s rates, as demonstrated by the tables Ms Monk had put in evidence. He also explained that the hire rate would be lower when a vehicle was booked well in advance, and higher when one was booked “right at the last minute”.
• [105] Fourth, he said that GO did not keep records of the percentage of its customers who were in Mr Blumberg’s position — hiring a replacement vehicle while their own was repaired following an accident. But he estimated “maybe 1 to 2% of the domestic business that we do”.
• [106] Fifth, he said GO did not have different terms and conditions for customers in Mr Blumberg’s situation. He was then questioned at some length about GO’s hire terms and conditions, for example, the $500 minimum penalty fee to the hirer for the unauthorised extension of the hire period, in addition to the current daily rental rate. While Mr Dalglish accepted that this $500 penalty was stipulated in two separate places in GO’s terms and conditions, he asserted that GO hardly ever enforced its terms and conditions. However, he accepted that he had nothing in writing to that effect. He had nothing that had been distributed around GO’s six branches, and he accepted also that there was nothing on GO’s website reflecting that claimed flexibility in its terms and conditions. He described GO’s contractual terms “as a guiding principle and a guiding document if circumstances and situations get a little bit difficult ...”. He accepted that GO did not give a refund, but only provided a credit for future use, to a customer who returned a car early.
• [107] The sum of these points detracts significantly from the cogency of GO’s $72.17, and Hertz’s $98, daily hire rates urged by Mr Ring as comparators in assessing the reasonableness of the $114.62 daily rate R2D charged Mr Blumberg. They confirm our view that R2D’s hire rate was reasonable in the circumstances.
• [108] Accordingly we answer Issue 5 ‘Yes’.

Issue 6: Did R2D’s charges include the cost of additional services which were not properly allowed by the Judge to Mr Blumberg as mitigation expenses?

• [109] A major issue in the litigation in England between credit car hire companies and the insurers of at-fault drivers has been the recoverability of the “additional benefits” those companies provide to the not-at-fault driver, which are built into its hire charges. Examples of such “additional benefits” are the cost of credit, relief from the risk of pursuing a claim against the at-fault driver, relief from the risk of having to bear the irrecoverable costs of such a claim and the risk (small though it may be) of having to bear the expense if the claim fails.
• [110] How one values these “additional benefits” in order to exclude them from recovery was one of the issues discussed by the House of Lords in Dimond v Lovell.^[100] Lord Hoffmann held the value of those benefits was represented, prima facie, by the difference between what Mrs Dimond paid the credit hire company (£42.37 per day) and what she would have been willing to pay an ordinary car hire company for the use of a similar car (£24 per day).^[101] Lord Hobhouse agreed that the difference of some £17 “was not reasonably incurred as the cost of hiring the substitute car”.^[102] The explanation for His Lordship’s emphasis is that he goes on to explain that Mrs Dimond may well, under different heads, be able to recover some of the components in the £17 difference, but the Court must be careful to avoid double counting. For example, Lord Hobhouse said:^[103]

Prima facie, the court should award statutory interest on the claim; but here the claim already included some element of interest. Similarly the claim included something in respect of costs; to award costs as well would involve some duplication. The elements to which the uplift in the charges of the accident hire company was attributable were (and inevitably must be) elements which were not properly included in the claim for damages for loss of use.

• [111] As we mentioned in [77] above, Lord Nicholls did not agree and would have allowed Mrs Dimond the £42.37 daily rate charged by the credit car hire company.
• [112] Based on the English jurisprudence, Mr Ring invited Jagose J to exercise “judicial creativity” and deduct, from the amount recoverable by Mr Blumberg, a flat $150 to reflect the value of the additional benefits he contended were contained in R2D’s $114.62 daily hire rate for the Mitsubishi.^[104] The Judge declined to do this.
• [113] Mr Ring renewed this invitation to us. He submitted that R2D had declined to put a value on the additional benefits. Nevertheless, he argued that Mr Blumberg had obtained these benefits the cost of which was not recoverable from Frucor. Mr Ring submitted that one way the Court could assess these benefits is to assume they were represented by any difference between the comparable rental car company charge and R2D’s hire rate. Another was to treat the additional benefits as part of the losses and gains that must be brought to account. However, he conceded there was simply no evidence from which the latter approach could be undertaken. It was this lack of evidence that led Mr Ring to invite the Judge to “build imaginative solutions upon sparse evidence by adopting a flat $150 figure per customer as the value of these additional benefits”.
• [114] We decline Mr Ring’s invitation because R2D’s evidence was that those benefits are not reflected in its hire charges. It has to compete with the mainstream car rental companies, so it absorbs these charges. Its business model is thus different from that of the credit car hire companies that feature in the English cases. In his evidence, R2D’s parent company’s Managing Director, Mr Mullins, said that R2D’s hire rates “are in line with those rates charged by other car hire companies”. He deferred to R2D’s Chief Financial Officer, Mr Warren, as to the makeup of R2D’s hire charges. Mr Warren confirmed that R2D’s charges “are within the current market range being charged by traditional hire companies”. He explained that R2D monitored the traditional rental vehicle market to ensure that its rates “are within the market range”. Mr Ring cross-examined Mr Warren, seeking to establish that R2D’s hire rates reflected the additional benefits its customers such as Mr Blumberg received. The following are some parts of that cross-examination:
  17. Yes, so built into the hire charge is that the customer is relieved of the necessity to fork out the money for the hire, isn’t that right?
  1. No.
  17. So is there no component in the hire charge to reflect that you are giving credit?
  1. No.

...

17. They’re benefits to the customer that carry a cost to you?
1. Yes.
17. And that’s built in to your hourly rate, sorry, your daily rate, isn’t it?
1. I keep coming back to our daily rate is based on the market.

...

17. You have said in your evidence that when you set the daily rate you set it by reference to what’s available, comparable dealers?
1. That’s correct, yes.
17. From the hire market?
1. Yeah.
17. And you set it some amount above what that rate is?
1. No that’s not what I said.
17. No you don’t do that?
1. No. No I said earlier that we reference the market and in the three situations we’ve actually set the rate at around five to $6 cheaper than the reference point.
17. I’m sorry. I’m sorry. So as far as you’re concerned in setting the rate you pay no account whatsoever to profitability?
1. No I didn’t say that.
17. Right. So – yes thank you. ...

(And then Mr Ring moved to a different topic.)

• [115] The Judge also allowed Mr Blumberg the flat $50 rate R2D had charged to deliver and collect the replacement car. The Judge concluded:

[67] Again, not to weigh matters on too nice a scale, I see nothing unreasonable in the plaintiffs incurring R2D’s delivery and collection fee, which is comparable to that charged by Hertz, and provides continuity of use. Each break in that continuity is an opportunity for further loss, for which compensable damages are recoverable. The continuous availability of a car to the plaintiff is what wholly mitigates the loss of use.

• [116] Mr Ring contested allowance of the $50 delivery/collection charge, but not because of its quantum. It emerged in evidence that R2D had not brought this charge to Mr Blumberg’s attention when he hired the replacement car. Mr Ring submitted that it could reasonably be expected that Mr Blumberg would have known about the charge beforehand and only availed himself of it if it was the reasonable course to take, having weighed all other options personal to him — including the non-cost and also potentially convenient options of calling on friends, colleagues and/or family. He submitted Mr Blumberg had been deprived of this opportunity because of the way in which R2D ran its business.
• [117] We do not accept this argument. We consider the Judge’s approach in the paragraph set out in [115] above is the correct one. Mr Blumberg had given evidence that collecting and returning a replacement car would have incurred him a $30 taxi fare in each direction, or he would have had to call on a work colleague to drive him to a closer rental car company.
• [118] We answer Issue 6 ‘No’.

Issue 7: Was the repairer’s carelessness in not ordering parts in a timely way an intervening cause disentitling Mr Blumberg from recovering R2D’s hire charges for the resulting extended repair period of some 12 days?

• [119] As we outlined in [6] above, the repairs to Mr Blumberg’s car took 33 days: much longer than the two to three weeks originally estimated.
• [120] Jagose J recorded Frucor asserting:^[105]

Because the repairer had overlooked ordering particular parts necessary for the repair, and retained the car while those further parts were obtained, the repair took longer than was otherwise necessary.

• [121] On that basis, Mr Ring submitted to the Judge that Frucor’s negligence had only provided the opportunity for the extended repair period, and thus for the additional deprivation loss to occur. He argued that the real and substantial cause of that additional loss was Barry Point’s fault.
• [122] The first obstacle to this submission is that there was no evidence that Barrys Point was at fault. The Barrys Point business had been sold. The only evidence from the former Barrys Point business was some invoices for parts which Mr Blumberg’s advisers had managed to obtain from the new owners. Mr Brown, Vero’s assessor, did give evidence. He had estimated the repairs to Mr Blumberg’s car should take no more than five days once begun, but had allowed a 5–14 day repair period to allow for the contingencies of repair, including ordering necessary parts. In chief, Mr Brown said:

... I am unable to explain why this repair took 33 days to complete. In my experience, both as a former panel beater, and as a Senior Motor Assessor, such a repair should have taken no more than 5 days to complete.

• [123] But, under cross-examination, Mr Brown said he had not sought an explanation from Barrys Point for the 33 day period the repairs took: that was not part of his job. Because Vero had received two later invoices for additional parts, Mr Brown surmised:

When [Barrys Point] carried out the initial assessment, when they first looked at the car without them pulling it apart I presume they didn’t know that those parts were damaged.

• [124] Thus there was no evidence on which the Judge could find that Barrys Point was at fault, and he did not make such a finding. This explains why the Judge added the words “if any” in parentheses in the passage we set out in the next paragraph.
• [125] As a matter of law, the Judge rejected Mr Ring’s argument. He held:^[106]

The cost of the repair was to be borne by the insurer, which directed Mr Blumberg to one of its preferred repairers. The reasonableness of Mr Blumberg incurring the mitigation expense for the full period of his loss of use of his car is not undermined by the repairer’s negligent contribution (if any) to the length of that period. Possibly the insurer has a claim for contribution from the repairer. But loss of use remains solely attributable to the at-fault driver’s negligence. And R2D’s replacement car wholly mitigated that.

• [126] Mr Ring advanced to us the same argument he had put to the Judge. It relies on this Court’s judgment in Price Waterhouse v Kwan.^[107] The appellant auditors appealed the High Court’s refusal to strike out a negligence claim against them. They were the auditor of the nominee company of a firm of solicitors. The plaintiffs were clients of the firm who lost money they had invested in the nominee company. Under the heading “Causation”, this Court said:^[108]

There is a material, indeed a crucial difference between causing a loss and providing the opportunity for its occurrence. ... Plaintiffs in this field must show that the defendant’s act or omission constituted a material and substantial cause of their loss. It is not enough that such act or omission simply provided the opportunity for the occurrence of the loss. The concept of materiality denotes that the act or omission must have had a real influence on the occurrence of the loss. The concept of substantiality denotes that the act or omission must have made a more than de minimis or trivial contribution to the occurrence of the loss.

At the end of the same paragraph this Court added that deciding causation issues requires “commonsense judgment”.

• [127] Here, we consider the commonsense answer is that Frucor’s negligence caused the need for the repairs to Mr Blumberg’s car and thus his deprivation loss. We share the Judge’s view that Frucor’s negligence was the “sole” cause. It certainly comfortably passes the Price Waterhouse test of constituting “a material and substantial cause” of Mr Blumberg’s deprivation loss.
• [128] The “intervening cause” argument advanced by Mr Ring has been consistently rejected in a number of factually similar cases. With one exception, these cases also involved claims for hire charges for a replacement car where repairs had taken longer than estimated. The cases are Burdis v Livsey;^[109] Mattocks v Mann;^[110] (both decisions of the English Court of Appeal); Tang v Driden^[111] (a decision of the New South Wales Local Court) and Penman v Saint John Toyota Ltd^[112] (a decision of the Appeal Division of the New Brunswick Supreme Court).
• [129] The approach in those cases is the same. We think it is best explained by the Local Court in Tang. After referring to the two English cases, the Court said:

[30] The Court agrees with the views expressed in these decisions that it should be the tortfeasor that bears the cost associated with delays caused in these circumstances. It is foreseeable that there may be delays when vehicles are given to a repairer due to either the need to obtain parts, or due to heavy workloads for repairers or insurance assessors having competing priorities. These delays, while caused by third persons, are inexorably linked to the original damage caused by the tortfeasor and cannot be considered to be a supervening or independent cause of the damage. The plaintiff is not, at law, responsible for the conduct of her insurer or the repairer.

• [130] Mr Chisholm made detailed submissions about the circumstances in which Mr Blumberg took his car to Barrys Point for repair, and about Vero’s oversight of the repairs. We need not deal with the points he made because Mr Ring does not submit that Mr Blumberg failed to act reasonably in or about the repairs by Barrys Point. In other words, he does not argue, in respect of the repairs, that Mr Blumberg failed to mitigate his loss.
• [131] We answer Issue 7 ‘No’.

Interest Issues

Issue 8: Did the Judge err in allowing Mr Blumberg interest on the judgment sum?

• [132] R2D’s invoice, addressed to Mr Blumberg, is dated 31 May 2016 and stipulates that payment is due by 30 June 2016.
• [133] Frucor admits its insurer, Vero, received this invoice from R2D and declined to pay it. Frucor pleads affirmatively that it declined to pay because:

(a) R2D’s hire charges were “not reasonable and/or in accordance with reasonable market hire rates”;

(b) Mr Blumberg had not incurred a loss: the cost of the replacement vehicle was incurred by R2D and not by Mr Blumberg; and

(c) Mr Blumberg had failed to mitigate his loss.

(The alleged failure is particularised.)

• [134] In his statement of claim Mr Blumberg claimed interest on the invoiced sum ($4,407.33) from 30 June 2016 to the date of judgment, under the Judicature Act 1908.
• [135] Jagose J allowed this claim.^[113] Although the Interest on Money Claims Act 2016 did not apply (because Mr Blumberg commenced his claim before that Act came into force on 1 January 2018), the Judge allowed interest as it would be calculated under that new Act, but not exceeding the five per cent per annum maximum rate available under s 87(1) Judicature Act.^[114]
• [136] It is common ground that the Judge did not have submissions on interest. Mr Ring tells us he was expecting the Judge would deal with interest subsequently, along with costs.
• [137] Mr Ring submits the Judge erred in two respects:

(a) He exercised his discretion on a wrong basis. The rationale underlying s 87, as expressed by the Supreme Court in Worldwide, is that the defendant has had the use of money which should have been available to the plaintiff who should be compensated for that.^[115] Here, Mr Blumberg had not paid R2D’s hire charges so the rationale does not apply.

(b) He treated R2D as the effective plaintiff. However, R2D was merely an agent appointed by Mr Blumberg to recover what, if anything, Mr Blumberg had to pay R2D.^[116] The evidence at trial was that Mr Blumberg will never have to pay the invoiced amount.

• [138] Supporting the award of interest, Mr Chisholm also relies on the Supreme Court’s explanation of the rationale underlying s 87(1). It is:

The rationale under s 87(1) for the awarding of interest is that the defendant has had the use of money which should have been available to the plaintiff for that period and that the plaintiff should be compensated for that. As the United Kingdom Law Revision Committee Report explained, this same rationale applies to general damages in that the defendant should have “admitted the claim when made and have offered a proper sum by way of damages”.

(Footnotes omitted.)

• [139] In tracing the legislative history of s 87(1) the Supreme Court had, earlier in its judgment, set out passages from the Law Revision Committee Report of March 1934 (UK).^[117]
• [140] Although not referred to by counsel on this issue, there is also English authority on point. First in time are the decisions of the English Court of Appeal and House of Lords in Giles v Thompson. Those decisions dealt with appeals in two cases involving agreements broadly similar to that between R2D and Mr Blumberg. In issue in one of the appeals (Devlin v Baslington) was whether the trial Judge had erred in awarding interest on the car hire charges component of the damages. The Court of Appeal upheld the interest award.^[118] Steyn LJ dealt with the interest ground of appeal. Sir Thomas Bingham MR and Ralph Gibson LJ agreed with his reasoning. This was the essence:^[119]

The plaintiff’s loss was incurred when she was deprived of the use of her car after the accident. It became a head of special damages when she hired a car. Given that she was entitled to recover the rental for the replacement car, as I have held, she has been kept out of her money. Rightly, Mr Platts [counsel for the plaintiff] emphasised that if the court hearing had taken place the day after the car hire ended, the claim for special damages in respect of car hire charges would have been exactly the same as it was at the date of trial. It follows therefore that the plaintiff was kept out of her money. And that is the principle upon which interest ought to be awarded: see Jefford v Gee^[[120]] ...

• [141] The House of Lords disagreed and set aside the interest award. In a judgment concurred in by the other four Law Lords, Lord Mustill said this:^[121]

[T]he power to award interest is discretionary, and ... the exercise of this power should correspond with reality. In the present case, although the motorist incurred a genuine liability for the hire charges day by day, it was not a liability capable of immediate enforcement by the car hire company. In both practical and legal terms the financial position of the motorist was wholly unaffected by the defendant’s failure to make immediate payment, since the terms of the contract meant that until judgment was given she was not obliged to pay the hiring charges and also that as soon as the claim was “concluded” and the period of credit came to an end the damages provided the necessary funds. In reality she was not “kept out of” any money of her own whilst the claim was being assessed and litigated.

• [142] Lord Mustill then dealt with an argument that the hirer was from the outset under a duty to pay to the car hire company interest on the amount of the hiring charges for which they was receiving credit. His Lordship said:^[122]

I find this argument quite unsustainable. There is no provision in the contractual terms requiring the motorist to pay interest on money which he or she does not presently owe and may never owe; and the idea that such a provision may be implied runs counter to the central feature of the scheme, as presented to the House, which is that if all goes well the motorist will have the use of the substitute car without reaching for his or her credit card.

• [143] Finally, for the sake of completeness, Lord Mustill drew a distinction between the car hire agreement and cases involving a subrogated insurer. In the latter situation, provided the insured is contractually obliged to account to the insurer for any interest recovered as well as for the capital sum, the Court has a discretion to award interest to the insured on any damages recovered “in order to avoid a windfall to the third party and hardship to the insurer”.^[123]
• [144] Next in time is the judgment of Lord Hobouse in Dimond v Lovell.^[124] The relevant passage is set out in [110] above. His Lordship was addressing the need to avoid double recovery. Relevant is his comment:

Prima facie, the court should award statutory interest on the claim; but here the claim already included some element of interest.

• [145] Most recently, in setting out the principles relevant in cases of this sort, the English Court of Appeal in Pattni stated:^[125]

(7) If the credit hire agreement provides that the hire will not be due and payable until judgment has been obtained against the negligent driver and there are no express terms in the hire agreement about the payment of interest on the hire charges then interest should not be awarded, at least under the terms of s.35A of the Senior Courts Act 1981 or s.69 of the County Courts Act 1984. This is because, in such circumstances the hirer has not been “kept out of his money”; he was not contractually obliged to pay the hire charges to the credit hire company whilst the claim against the negligent driver was being assessed and (if necessary) litigated. No hire charges were then owed to the credit hire company. (See Giles v Thompson at 304G–305G in the speech of Lord Mustill, who emphasised that he was dealing only with the circumstances of the particular case in which that issue arose, viz. Devlin v Baslington, in which the judge and the Court of Appeal had awarded statutory interest. That award was disallowed by the House of Lords.)

• [146] Mr Blumberg’s hire agreement with R2D differs in two respects from the agreement Lord Mustill was considering in Giles v Thompson. First, it did make Mr Blumberg liable for interest if the hire charges were not paid by the end of the credit period:

In the event that accounts are not met in full within the credit period I agree that interest will be charged at the default rate for each month or part month that they remain outstanding.

Earlier in the agreement are the definitions:

The credit period: The period of 90 days from the date of issuance of R2D’s tax invoice for the charges.

The default rate: An interest rate equivalent to the RBNZ cash rate plus 8%.

• [147] Second, the agreement authorised R2D to apply what it recovered from Frucor (or its insurer) to its hire charges and recovery costs:

R2D may retain and apply all such recovered charges and recovery costs (in whole or in part) to the charges and recovery costs.

• [148] We have held the hire agreement made Mr Blumberg liable to R2D for its hire charges. Mr Blumberg was also liable for interest on those charges if they remained unpaid after the credit period ended. We have also held that R2D’s policy of not enforcing those liabilities does not affect the position. On that basis, we consider Frucor should have to pay interest to Mr Blumberg. That was the view Lord Hobhouse expressed in Dimond v Lovell and we think it also accords with the view of Lord Mustill in Giles v Thompson, given the two distinctions between Mr Devlin’s hire agreement and Mr Blumberg’s.
• [149] Further, the logical consequence of Mr Blumberg succeeding with his claim against Frucor is that Frucor (in fact, its insurer Vero) should have paid R2D’s invoice to Mr Blumberg when it received it in June 2016. Had it done so, Mr Blumberg (but in fact R2D because of its contractual entitlement) would not have been “out of its money”. If interest is not awarded on the hire charges, Vero will have a windfall (the free use of $4,400 approximately for the interim three years or so) and there will be hardship to R2D. Effectively, Frucor (Vero), the wrongdoer here, will be permitted to take advantage of its own default in not paying the invoice for the hire charges. The rule that a party cannot take advantage of its own wrong is fundamental.^[126] It is also an unattractive result and one that does not accord with the rationale for awarding interest under s 87(1), as the Supreme Court explained it in Worldwide. And it is, of course, Worldwide which must guide us on this issue.
• [150] Accordingly, we answer this issue ‘No’, and uphold the Judge’s award of interest.

Concluding remarks

• [151] Having dealt with the eight issues, we wish to make some concluding remarks.
• [152] On the first liability issue Frucor relied on dissenting views expressed over 60 years ago by two eminent Judges in a case before the High Court of Australia. The ratio of that case is squarely against Frucor’s case on liability. Further, those dissenting views were expressly departed from in a subsequent decision of the High Court of Australia. They have never been adopted in New Zealand.
• [153] Only in reply did Frucor confront the considerable weight of English and Australian authority which is against its case on liability. If unable to suggest some basis for distinguishing one of these cases, it simply submitted the case was wrong. One case was termed “contrived ... illogical and unprincipled ... and unrealistic”.
• [154] Frucor ran an untenable argument that the hire agreement was champertous.
• [155] In respect of quantum, Frucor submitted Mr Blumberg should have considered options other than hiring from R2D. One of those options was a courtesy car supplied by the repairer, but Mr Blumberg had been told by the repairer that no courtesy car was available and had been referred by it to R2D. Another option was that Mr Blumberg should have approached Frucor’s insurer Vero to inquire whether it would arrange and pay for a replacement car. Vero did not promote on its website that it may consider doing this. It did not make an offer of this sort to Mr Blumberg.
• [156] In submitting that the daily hire rate R2D had charged Mr Blumberg was unreasonable, Frucor fastened on a rate put in evidence by a second-tier rental company that did virtually no business hiring cars to not-at-fault drivers such as Mr Blumberg. It emerged in evidence that the rate fastened upon was not one at which this company had actually hired a vehicle, but a rate it had extracted retrospectively from its “complex” rate management system. Retrospectively, in the sense that it had calculated this rate with the benefit (which R2D did not have) of knowing that Mr Blumberg had eventually needed to hire the replacement car for 33 days. This company did not give evidence as to what its rate would have been for the two week period Mr Blumberg’s repairs were expected to take. Frucor also drew comparisons with rates put in evidence by another car rental company, this time a mainstream company. These were rates at which this company had actually hired vehicles. When the witness from this company was asked why she had selected the lowest rate, when this company had hired the same model of vehicle around the same time at significantly higher rates, she could offer no explanation.
• [157] Notwithstanding R2D’s evidence that its hire rates did not include the additional services it provided to Mr Blumberg, for example credit, Frucor suggested that $150 should be deducted to reflect the value of these services.
• [158] Frucor also challenged the $50 R2D had charged Mr Blumberg to deliver and collect the replacement car. Although it accepted this charge was reasonable, it mounted this challenge because R2D had not informed Mr Blumberg of this charge before or when he hired the car.
• [159] Despite the lack of a sound evidentiary basis and supporting legal authority, Frucor also contended that the hire charges for 12 of the 33 days Mr Blumberg hired the car should be disallowed, because they resulted from the repairer’s carelessness in not ordering parts on time. So Frucor’s position was that Mr Blumberg should be left to pursue the repairer (which had since sold its business) for the hire charges for those 12 days.
• [160] Finally, the award of interest on the judgment sum was contested, on the basis that it was R2D and not Mr Blumberg who had been out of pocket as a result of Vero’s non-payment of the hire charges when presented with the invoice for them.
• [161] In all of this there were few concessions by Frucor. One concession was that Mr Blumberg needed a replacement car; another was that Ms Mackey’s restricted licence may have meant she could not hire a car from a traditional rental company. But there was no acceptance that many of the issues in these three appeals have been decided at a high level in the United Kingdom and Australia. And there was no proper acknowledgment of the well-established standard by which mitigation steps taken by a wronged party such as Mr Blumberg are to be assessed.
• [162] All of this does not reflect well on the motor vehicle insurers who are the real appellants. These insurers are certainly entitled to hold R2D to hiring a vehicle broadly similar to that damaged, and at a reasonable market rate. But, instead of being seemingly intent on knocking R2D out of business, it is to be hoped that New Zealand’s motor vehicle insurers will now accept that R2D is providing a service that should be available to not-at-fault drivers because it minimises inconvenience to them. The judgments of the House of Lords in Dimond v Lovell, particularly but not only that of Lord Nicholls, should be mandatory reading for these insurers.

Result

• [163] We answer the eight issues for decision as follows:

Issue 1: In respect of R2D’s charges for the replacement car, had the respondent incurred a compensatable loss or expense recoverable by him or her from the appellant?

Answer: Yes.

Issue 2: Was R2D’s hire agreement unenforceable, in that it assigned a bare cause of action and was champertous?

Answer: No.

Issue 3: Did the Judge err in applying a subjective rather than an objective standard when considering the reasonableness of the respondent hiring a replacement car from R2D?

Answer: No.

Issue 4: Was it reasonable for the respondent to take the R2D option rather than one of the other available options?

Answer: Yes.

Issue 5: Were R2D’s hire charges reasonable?

Answer: Yes.

Issue 6: Did R2D’s charges include the cost of additional services which were not properly allowed by the Judge to the respondent as mitigation expenses?

Answer: No.

Issue 7: Was the repairer’s carelessness in not ordering parts in a timely way an intervening cause disentitling the respondent from recovering R2D’s hire charges for the resulting extended repair period of some 12 days?

Answer: No.

Issue 8: Did the Judge err in allowing the respondent interest on the judgment sum?

Answer: No.

• [164] The appeal is accordingly dismissed.

Costs

• [165] The appellants are to pay the respondents’ costs of this appeal. As agreed between counsel, these costs are for a standard appeal on a band A basis with usual disbursements. We certify for two counsel.

Solicitors:
Duncan Cotterill, Auckland for Appellant
Glaister Ennor, Auckland for Respondents

^[1] Blumberg v Frucor Beverages Ltd [2018] NZHC 1876, [2018] 3 NZLR 672.

^[2] Dimond v Lovell [2002] 1 AC 384 (HL) at 404.

^[3] This was the figure Mr Ring QC gave us in his reply submissions. $4.22 million was the figure given in evidence by Mr Warren, the Chief Financial Officer of R2D’s parent company. He also stated that Tower, YOUI Insurance and AIG had refused to deal with R2D over settlement of claims.

^[4] Implicit in “loss of use” is that Mr Blumberg needed a car. This may not have been the case if, for example, Mr Blumberg was overseas or in hospital during the repair period: Giles v Thompson [1993] UKHL 2; [1994] 1 AC 142 (HL) at 167 per Lord Mustill. But, as the Judge recorded at [42] of his judgment, Frucor conceded that it was reasonable for Mr Blumberg to obtain a replacement car while his own was being repaired.

^[5] The judgment of Aikens LJ in the English Court of Appeal in Pattni v First Leicester Buses Ltd [2011] EWCA Civ 1384, [2012] RTR 17 at [29]–[41] contains a comprehensive statement of the principles developed in England covering (a) the basis on which a claimant in Mr Blumberg’s position can recover damages for the cost of hiring a replacement car from a company such as R2D (b) what sums can be recovered as damages or otherwise. Aikens LJ states that he has drawn those principles from “[t]hree House of Lords and one Court of Appeal decision”: Giles v Thompson, above n 4; Dimond v Lovell, above n 2; Burdis v Livsey [2002] EWCA Civ 510, [2003] QB 36; and Lagden v O’Connor [2003] UKHL 64, [2004] 1 AC 1067. Moore-Bick and Pill LJJ concurred with Aikens LJ. Jagose J referred to this statement of principles at fn 17 in his judgment and replicated it in the Schedule at the end of his judgment. Also see James Edelman and others (eds) McGregor on Damages (20th ed, Sweet & Maxwell, London, 2018) at 1131–1138.

^[6] For example, in Bee v Jenson [2007] EWCA Civ 923, [2007] 4 All ER 791 at [15].

^[7] Blumberg v Frucor Beverages Ltd, above n 1, at [39]–[41].

^[8] At [39].

^[9] This is the phrase used by Dixon CJ in the passage from his judgment in Blundell v Musgrave [1956] HCA 66; (1956) 96 CLR 73 set out in [22] of this judgment.

^[10] At 79–80.

^[11] At 92. The Judge repeats this at 97.

^[12] TP is defined as “the third party and/or the third party’s insurer”.

^[13] Blundell v Musgrave, above n 9, at 88–89.

^[14] Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161.

^[15] At 169.

^[16] At 167–168, citing Ferguson v EA Watts Pty Limited (1974) 48 ALJR 402.

^[17] At 168, citing Parry v Cleaver [1970] AC 1 at 14.

^[18] At 180.

^[19] At 193.

^[20] Kars v Kars [1996] HCA 37; (1996) 187 CLR 354.

^[21] CSR Ltd v Eddy [2005] HCA 64, (2005) 226 CLR 1.

^[22] Latz v Amaca Pty Ltd [2018] HCA 22, (2018) 356 ALR 1.

^[23] CSR Ltd v Eddy, above n 21, at [35]. The words quoted were drawn from Lord Reid’s judgment in Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 (HL) at 1086.

^[24] Donnelly v Joyce [1973] EWCA Civ 2; [1974] 1 QB 454 (CA).

^[25] Hunt v Severs [1994] UKHL 4; [1994] 2 AC 350 (HL).

^[26] By s 5 of the Accident Compensation Act 1972.

^[27] Anthanasopoulos v Moseley [2001] NSWCA 266, (2001) 52 NSWLR 262.

^[28] At [58].

^[29] National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569.

^[30] Redding v Lee [1983] HCA 16; (1983) 151 CLR 117.

^[31] Anthanasopoulos v Moseley, above n 27, at [87]–[89].
^[32] At [84], per Ipp AJA .

^[33] Newmans Coach Lines Ltd v Robertshawe [1984] 1 NZLR 53 (CA).

^[34] At 57, per Richardson J.

^[35] The Owners of No 7 Steam Sand Pump Dredger v The Owners of SS “Greta Holme” [1897] UKLawRpAC 42; [1897] AC 596 (HL) at 601.

^[36] At 605.

^[37] Giles v Thompson [1993] UKHL 2; [1993] 3 All ER 321 (CA and HL) at 338. This is part of the passage in which Steyn LJ deals with interest on the judgment sum. The House of Lords allowed the appeal in respect of interest. We set out parts of Lord Mustill’s judgment in [141] and [142] below. However, we do not consider the House of Lords differed with Steyn LJ’s analysis of when the plaintiff’s loss occurred.

^[38] Dimond v Lovell, above n 2, at 406.

^[39] Lowe v Pearce [2016] NSWLC 5.

^[40] At [3].

^[41] At [53], citing Bee v Jenson, above n 6.

^[42] Giles v Thompson, above n 4, at 166.

^[43] Bee v Jenson, above n 6.

^[44] Irving v Morgan Sindall Plc [2018] EWHC 1147 (QB).

^[45] At [2].

^[46] At [9].

^[47] Harlow & Jones Ltd v Panex (International) Ltd [1967] 2 Lloyd’s Rep 509 (QB).

^[48] McAll v Brooks [1984] RTR 99 (CA).

^[49] Cosemar SA v Marimarna Shipping Co Ltd (The Mathew) [1990] 2 Lloyd’s Rep 323.

^[50] Davys Burton v Thom [2008] NZSC 65, [2009] 1 NZLR 437 at [17].

^[51] Worldwide NZ LLC v New Zealand Venue and Event Management Ltd [2014] NZSC 108, [2015] 1 NZLR 1.

^[52] At [55].

^[53] Wakeling v Harrington [2007] EWHC 1184, [2007] 5 Costs LR 710 (Ch) at [9].

^[54] Davys Burton v Thom, above n 50, at [46].

^[55] Referring to the law of champerty, Lord Mustill in Giles v Thompson, above n 4, at 161 quoted the description by Fletcher Moulton LJ in British Cash and Parcel Conveyors Ltd v Lamson Store Service Co Ltd [1908] UKLawRpKQB 46; [1908] 1 KB 1006 at 1014: “It is directed against wanton and officious intermeddling with the disputes of others in which the [maintainer] has no interest whatever, and where the assistance he renders to one or the other party is without justification or excuse.” Lord Mustill noted that “[t]his was a description of maintenance. For champerty there must be added the notion of a division of the spoils.”

^[56] Blumberg v Frucor Beverages Ltd, above n 1, at [17].

^[57] Camdex International Ltd v Bank of Zambia [1998] QB 22 (CA) at 29.

^[58] Blumberg v Frucor Beverages Ltd, above n 1, at [16]–[17].

^[59] Giles v Thompson, above n 4, at 166.

^[60] Waterhouse v Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91 at [57].

^[61] Stephen Todd (ed) Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at 1279.

^[62] Law Commission Subsidising Litigation (NZLC R72, 2001) at chs 6–7.

^[63] Waterhouse v Contractors Bonding Limited, above n 60, at [57].

^[64] Trendtex Trading Corp v Credit Suisse [1982] AC 679 (HL); Brownton Ltd v Edward Moore Inbucon Ltd [1985] 3 All ER 499 (CA); see generally A Tettenborn “The date for assessing damages for loss of prospective performance under a contract” [2007] LMCLQ 273.

^[65] Trendtex Trading Corp v Credit Suisse [1980] QB 629 (CA) at 656 and 670–671; and Auckland City Council as Assignee of Body Corporate 16113 v Auckland City Council [2007] NZHC 1411; [2008] 1 NZLR 838 (HC). In Canada see Fredrickson v Insurance Corp of British Columbia (1986) 3 BCLR (2d) 145, 28 DLR (4th) 414 (CA) (appeal dismissed: Insurance Corp of British Colombia v Fredrickson [1988] 1 SCR 1089); and PSC Industrial Services Canada Inc v Ontario (Ministry of the Environment) (2005) 202 OAC 93, 258 DLR (4th) 320 (CA). In Australia see Monk v Australia and New Zealand Banking Group Ltd (1994) 34 NSWLR 148 (SC) at 152.

^[66] Giles v Thompson, above n 4. We are referring to the agreement in Giles v Thompson; that in the related appeal Devlin v Baslington was different in that the plaintiff motorist conducted the litigation.

^[67] At 165.

^[68] Hooker v Stewart [1989] 3 NZLR 543 (CA) at 547.

^[69] At 547.

^[70] This correctly applies the Hooker v Stewart test of “whether a prudent man would have acted in the same way if the original breach had arisen through his own default”.

^[71] The Judge records this submission at [48].

^[72] Blumberg v Frucor Beverages Ltd, above n 1, at [49].

^[73] Banco de Portugal v Waterlow & Sons Ltd [1932] UKHL 1; [1932] AC 452 (HL) at 506.

^[74] Hooker v Stewart, above n 68, at 547.

^[75] Blumberg v Frucor Beverages Ltd, above n 1, at [55].

^[76] Lodge Holes Colliery Co Ltd v Wednesbury Corp [1908] UKLawRpAC 40; [1908] AC 323 (HL) at 325.

^[77] Lagden v O’Connor, above n 5, at [27].

^[78] Dimond v Lovell [1999] 3 WLR 561 (CA) at [95].

^[79] Diamond v Lowell, above n 2, at 401.

^[80] At 391.

^[81] Dimond v Lovell, above n 78, at [101].

^[82] Blumberg v Frucor Beverages Ltd, above n 1, at [58].

^[83] At [59].

^[84] At [60].

^[85] At [62(b)(i)].

^[86] At [62(c)].

^[87] Stevens v Equity Syndicate Management Ltd [2015] EWCA Civ 93, [2015] 4 All ER 458.

^[88] At [39].

^[89] At [40].

^[90] Bent v Highways and Utilities Construction Ltd [2010] EWCA Civ 292 at [9]. Cited in Pattni v First Leicester Buses Ltd, above n 5, at [20].

^[91] Pattni v First Leicester Buses Ltd, above n 5, at [32].

^[92] At [24].

^[93] At [74].

^[94] At [81].

^[95] Droga v Cannon [2015] NSWSC 1910.

^[96] At [60].

^[97] Lowe v Pearce, above n 39, at [53].

^[98] Hooker v Stewart, above n 68, at 547.

^[99] For example, Mr Dalglish, General Manager of GO Rentals, stated of his business: “it’s a utilisation business and yeah, we generally try and price to demand and peak so we would have some variations, correct ... The booking date will have a fairly huge bearing on a daily rate. ... if one of those vehicles was booked on say the 1st February with a five week lead time, you would expect that person to achieve a much better rate than somebody booking right at the last minute”.

^[100] Dimond v Lovell, above n 2.

^[101] At 402.

^[102] At 407 (emphasis in original).

^[103] At 407.

^[104] Blumberg v Frucor Beverages Ltd, above n 1, at [51(c)].

^[105] At [68].

^[106] At [69].

^[107] Price Waterhouse v Kwan [1999] NZCA 311; [2000] 3 NZLR 39 (CA).

^[108] At [28].

^[109] Burdis v Livsey, above n 5, at [115]–[121].

^[110] Mattocks v Mann [1993] RTR 13 (CA) at 18.

^[111] Tang v Driden [2010] NSWLC 17 at [23]–[30].

^[112] Penman v Saint John Toyota Ltd (1972) 30 DLR (3d) 88.

^[113] Blumberg v Frucor Beverages Ltd, above n 1, at [74]–[76].

^[114] Interest on Money Claims Act 2016, sch 1 cl 1.

^[115] Worldwide NZ LLC v New Zealand Venue and Event Management Ltd, above n 51, at [23].

^[116] Jagose J correctly records this at [15]–[16] of his judgment.

^[117] Worldwide NZ LLC v New Zealand Venue and Event Management Ltd, above n 51, at [17]–[18].

^[118] Giles v Thompson, above n 37, at 338.

^[119] At 338.

^[120] Jefford v Gee [1970] EWCA Civ 8; [1970] 2 QB 130 (CA) at 145–146.

^[121] Giles v Thompson, above n 4, at 168.

^[122] At 168.

^[123] At 168. The insurance cases Lord Mustill referred to are H Cousins & Co Ltd v D & C Carriers Ltd [1971] 2 QB 230 (CA); and Harbutt’s “Plasticine” Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447 (CA).

^[124] Dimond v Lovell, above n 2.

^[125] Pattni v First Leicester Buses Ltd, above n 5, at [37].

^[126] Moreton v Montrose Ltd [1986] NZCA 30; [1986] 2 NZLR 496 (CA) at 503, citing New Zealand Shipping Co Ltd v Société des Ateliers et Chantiers de France [1919] AC 1; and Panamena Europea Navigacion (Compania Limitada) v Frederick Leyland & Co Ltd [1947] AC 428 at 436.