Arsalan v Rixon; Nguyen v Cassim [2021] HCATrans 143 (8 September 2021)

Last Updated: 9 September 2021

[2021] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S35 of 2021

B e t w e e n -

AHYA-UD-DIN ARSALAN

Appellant

and

ALEX RIXON

Respondent

Office of the Registry
Sydney No S36 of 2021

B e t w e e n -

DYLAN NGUYEN

Appellant

and

AZAD CASSIM

Respondent

KIEFEL CJ
GAGELER J
KEANE J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON WEDNESDAY, 8 SEPTEMBER 2021, AT 10.01 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ: The record will show that Justices Keane, Edelman and I are sitting in Brisbane, Justice Gageler in Sydney and Justice Steward in Melbourne. In accordance with the remote hearing protocol, I will announce the appearance of the parties.

MR J.T. GLEESON, SC appears with MR S. HABIB, SC , MR K.G. OLIVER and MR R.J. MAY for the appellant in each case. (instructed by MCK Lawyers)

MR B.W. WALKER, SC appears with MR J.L. GRUZMAN, MR G.E.S. NG and MR W.R. RICHEY for the respondent in each case. (instructed by Spectre Law)

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours, and good morning. The core issue in the appeal, expressed generally, concerns the correct method by which damages are to be assessed where a claimant suffers, by the negligence of the defendant, a temporary loss of use of a non‑income producing chattel, in this case a motor vehicle, during the period in which the vehicle is under repair and the claimant can establish a need to use a vehicle and the claimant has actually hired a substitute.

Your Honours, while that is the general issue, we have sought in our first and second propositions to make it more precise by reference to the findings of fact made in the Local Court in each case and, secondly, the question of law which was the subject of the appeal to the Supreme Court. This was an appeal solely on a question of law and so it is important to understand precisely what question that was that came before Justice Basten.

Your Honours, to deal with those matters, could I ask you to go to the book of further materials in S35, and then to the core appeal book in S35. At page 8 of the book of further materials - this is in the Arsalan v Rixon matter - the magistrate at paragraphs 2 and 3 on page 8 identified the issue between the parties as to whether the compensation was:

for the hiring of a like car or whether the quantum of the hiring of a replacement vehicle should be limited to the reasonable cost of hire of a suitable vehicle to compensate for the loss of use of his car.

That is at the end of paragraph 2 and at the end of paragraph 3 it is expressed slightly differently. The alternative is:

the reasonable cost of hiring a suitable car to meet the plaintiff’s needs during the period of hire.

As appears from the end of paragraph 10, the magistrate in this matter adopted our argument, which was the second of those two approaches.

The key findings of fact are on page 17, paragraphs 41 to 45. I will just ask your Honours to review those. Critically, at the end of 44 and 45, while the claimant’s preference was for a European car, the only proven need was for a car which would meet general transportation requirements.

So, those being the findings of fact, the reasoning of the magistrate appears between paragraphs 50 and 61, including at paragraph 52 to 53 that a distinction can be drawn between elements of the plaintiff’s loss, which are attributable to the plaintiff’s choice, and therefore not compensable, and elements of need, which are compensable.

Your Honours, just to establish one other factual matter in this first appeal, which I will need to come back to at the end of submissions, if your Honours could go to paragraph 62. There was a separate issue in this case, which is not before you today, which is that the magistrate found that the actual cost of hire included non‑compensable benefits and exceeded the market rate of hire.

That is a reference back, first of all to paragraph 4, that there were non‑compensable benefits, being the additional charges for the use of a credit hire company, because it provided additional services - that is, of course, the problem dealt with in the English cases – and then at paragraphs 25 to 27, that in any event the actual cost exceeded the market rate for various reasons.

I just mention that because if our appeal is successful the result is straightforward and easy. If our appeal is unsuccessful and the Court of Appeal’s orders are left intact, the result would be a remitter to the Local Court and there will be a need to try and carve out from the actual charges both the non‑compensable benefits and the excess, so the market cost.

If your Honours could then go to the core appeal book in S35 to see how Justice Basten sitting at first instance dealt with the question of law. At page 8, after his Honour identified in paragraph 4 that it was an appeal under section 39 of the Local Court Act, which is limited to an appeal on a question of law, his Honour identified the three legal errors asserted on Mr Walker’s side. The first, which is the one relevant to you, is that the claimant was:

entitled to compensation calculated as the expense of obtaining a vehicle of equivalent value to that which had been damaged, and not by reference to a vehicle of lesser value which would have satisfied his needs.

So the findings of fact, that the plaintiff’s proven needs could have been met by, for example, a Corolla, was not in issue in the Supreme Court. That was accepted as a finding, and the argument of law was, notwithstanding that finding, I am entitled to the expense of a vehicle of equivalent value.

Your Honours will then see in that paragraph 4 two other errors of law were identified. The second error of law was an attempt to challenge the magistrate’s findings that there were non‑compensable benefits and the actual rate was above the market rate. I will just observe that at paragraph 10 Justice Basten rejected those alleged errors of law and those matters were then untouched in the Court of Appeal and that is the reason why those matters would arise if a remitter were necessary.

The structure of his Honour’s reasoning in this matter at paragraph 12 was to set out those key findings on proving need. Then in this matter his Honour’s conclusions were expressed fairly briefly at paragraph 15. Having noted that the findings on need were not subject to challenge other than on a “no evidence” ground which was not pressed or made out, he answered the question of law which had been identified in paragraph 4 and held that the magistrate was entitled as a matter of law to assess the damages for the inconvenience, that being the relevant interest being protected, suffered from the unavailability of the vehicle by:

a vehicle of lesser value which was capable of satisfying all aspect of the plaintiff’s needs –

His Honour said the principles in Nguyen dictated an answer in our favour on that question.

So, as per our outline, we have sought to identify at paragraph 1 that the key findings of fact are that there was a proven need for a temporary replacement vehicle. It could have been met by a vehicle such as a Corolla, but there were findings that this claimant preferred a vehicle of similar prestige or value to the damaged vehicle hired at significantly greater cost and the question of law then was whether, notwithstanding those findings, the claimant was entitled to the cost of hire of a vehicle of similar value or prestige.

If I could then ask your Honours just ever so briefly to go to the equivalent volumes in S36, please. In the book of further materials in the Local Court judgment at pages 9 to 10, paragraphs 12 to 17, they are the findings on need and preference, particularly paragraphs 16 to 17. They are essentially the same findings of fact as in the other matter.

Then on the question of law – this is page 16 – at paragraph 46 the magistrate came to the exact opposite finding and held that there was an entitlement for the cost of hire of a vehicle of similar value, even though the need could have been met at a lesser cost by a cheaper vehicle, and the magistrate puts that in different ways between paragraphs 46 through to paragraph 49.

So then in this matter, S36, Justice Basten, if I could commence at page 8 of the core book, sets out at paragraph 2 a conceptual framework for approaching these matters. He footnotes McGregor on Damages, 20th edition. We have provided the Court, in the materials, with both the 20th edition and the 21st addition. In relevant respects these propositions are expressed similarly, but to break these propositions down, the first one is that:

“[w]here the claimant’s goods have been damaged, the basic pecuniary loss is the diminution in their value which is normally –

but not always:

measured by the reasonable cost of repair”.

That is the basic loss, and the basic measure. Then there are various forms of consequential loss. One of them is that while the goods are under repair there can be general:

damages for general loss of use or, in the absence of evidence –

it is expressed as:

in the absence of evidence of inconvenience, interest on the capital value –

There is then a reference to how the principles might vary between income and non‑income‑earning goods, and relevantly to our case, about lines 45 to 55:

Where the goods fall into the non‑profit‑earning category the claimant must establish a need for the goods during the period they were unavailable. Compensation will be payable for the inconvenience caused by the loss of use.

and that inconvenience:

may be measured by the reasonable cost of a replacement.”

So just pausing on those last couple of sentences, I think it is fair to say that parties are common ground that the first sentence is true:

the claimant must establish a need for the goods during the period they are unavailable.

If there is no proven need, there will be certain consequences. As to the second proposition, the parties are in dispute. We submit that Justice Basten has accurately identified that the interest being protected under this head of consequential loss is inconvenience caused by the loss of use, and in that respect we submit the law is taking a functional and objective approach to the problem. What are the uses to which you would have put the vehicle ‑ ‑ ‑

EDELMAN J: Mr Gleeson, the word “need” can be..... Is “need” saying anything ‑ ‑ ‑

KIEFEL CJ: Justice Edelman, we are having difficulty hearing you.

EDELMAN J: Mr Gleeson, can you hear me now?

MR GLEESON: Yes, I can, your Honour. Just vaguely, but I can.

EDELMAN J: I will try to speak a little louder, but the word “need” ‑ ‑ ‑

MR WALKER: I am sorry, your Honours, I cannot hear his Honour.

EDELMAN J: Is that any clearer?

KIEFEL CJ: It is louder, yes.

EDELMAN J: Mr Gleeson, the concept of “need” can be quite loose. I was just going to ask whether the real underlying principle is what is the head of loss that the plaintiff is ‑ ‑ ‑

KIEFEL CJ: Justice Edelman, you are coming in and out. Could I ask Mr Gleeson and Mr Walker if they are having difficulty hearing Justice Edelman?

MR GLEESON: I am only just hearing Justice Edelman.

KIEFEL CJ: Is it the same for you, Mr Walker?

MR WALKER: Yes, I am having difficulty.

KIEFEL CJ: I think the members of the Court should adjourn briefly. We will stop the video until Justice Edelman’s connection is tested.

AT 10.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.22 AM:

KIEFEL CJ: I think the matter has been resolved. Justice Edelman, I think you were asking a question.

EDELMAN J: Hopefully this will be a little clearer, Mr Gleeson. I was going to ask you whether the loose concept of “need” is really more precisely answered, as the way Justice Basten does it, as a focus instead upon what head of loss the plaintiff has suffered, and the head of loss that he focuses upon is inconvenience.

MR GLEESON: Yes, I would accept that, your Honour, and as our third proposition on the outline seeks to indicate – and this is one of the core differences between the parties – there is a question of identification of what that head of loss is and then whether the law regards that as compensable loss and, as we would put it, if it is a compensable head of loss then the restitutio principle can do its further work.

But before simply solving all problems in this case by an appeal to restitutio, as the respondents would have it, we submit the anterior question is what is the law recognising as the head of consequential loss. We would put it broadly as per Justice Basten that it is the inconvenience which is a function or an objective question - what is it that I would have done with my vehicle during the period of repair, answered fairly easily as a matter of fact by looking at what you were doing with the vehicle beforehand, how you would have used it, an objective question focusing on that inconvenience, and then saying what replacement vehicle would meet that need.

Just to broaden the frame a fraction and look at the three approaches in the court below, Justice White’s approach is that something broader is being compensated or potentially compensated which, as he expresses it at paragraph 60 on page 70 of this appeal book, the law is compensating for feelings, namely, the damage to my feelings because I do not feel as good about myself because I am no longer driving my BMW during that period of repair and other people might ‑ ‑ ‑

EDELMAN J: Mr Gleeson, once one recognises that inconvenience is a recognised head of loss, why would one not also recognise, rather than expressing it as feelings, a head of loss based on loss of amenity, as is recognised in cases of breach of contract, conversion, trespass to land, and so on?

MR GLEESON: Your Honour, if I could take that in two steps. Firstly, I am submitting that feelings is not the way to identify the head of loss, so I have made that submission. If one tries to conceptualise it within loss of amenity it will still, we submit, raise the basic question of what is the form of amenity which is in issue and, on the one hand, our approach is focusing on, as I say, a functional objective approach – what are the uses to which I would have put the vehicle during the period of repair?

On the other hand, and there is a difference between Justice White and Justice Emmett. Justice White’s approach appears to be that the value of the use of the vehicle to the person can vary depending upon the individual plaintiff’s subjective preferences or expressions of preference during the repair period. His Honour seems to contemplate, particularly at paragraph 69, that there can be a difference between a need for the vehicle and a need for the same vehicle, depending upon how the plaintiff’s evidence plays out as to preference during that period of repair.

On the other hand, just to complete the conspectus, Justice Emmett, in the short paragraphs in which he deals with the problem, between paragraphs 120 and 130, we would submit does not explicitly identify what is the interest being protected and why it is that you axiomatically get the same vehicle once you prove the need for any vehicle.

Your Honours, if it is just convenient to compete Justice Basten’s approach in this judgment, that is in S36, at paragraph 6 on page 9 he identifies what he sees as the two alternatives, whether it is the expense of obtaining a replacement car of similar prestige or value or whether the cheaper alternative would overcome the inconvenience, or, we might say, overcome the loss of amenity, if that be the approach taken, and then the arguments of the parties in this matter emerged in this fashion.

In paragraph 15 his Honour set out the core findings of fact which were the subject of the legal question, and in particular paragraph 15(vi):

“Apart from a single reference to sporting gear, there was nothing in Mr Cassim’s evidence to suggest that other than his personal preference, the things he needed a vehicle for on a day‑to‑day basis could not have been adequately done using a vehicle like a Toyota Corolla.”

Now, if the tenor of your Honour’s question to us is should loss of amenity be treated as the same as personal preference, we would submit no, and there would be a slide involved in taking such an approach.

EDELMAN J: Well, for example, Mr Gleeson, in a case like Ruxley Electronics v Forsyth, the plaintiff had a need for a swimming pool, but did not have anything more than a subjective preference for the swimming pool at the contractual dimensions of whatever it was – 7 foot rather than the one that was built at 6 foot, but the plaintiff was entitled to an award of damages for the loss of amenity of not getting the pleasure and the benefit that he was promised. Why would that not apply equally in the law of torts?

MR GLEESON: Well, perhaps I need to come back to when your Honour gave the original examples of conversion and the like. The interest that is being protected by the particular tort or contractual framework may vary, and it may depend upon where that interest ranks in the purposes of that tort.

Now, if one takes the example of contract, when this Court recently looked at the problem in Moore v Scenic Tours as to whether the distress and the disappointment of not getting the cruise you were promised could be treated as a head of contractual damage and not subsumed into personal injury, what, with respect, was important to that decision was the undertaking being made by the defendant to provide the person with a cruise which was free from distress and disappointment, and that influenced the recognition of that as a relevant.....

If one is in conversion, one may say that where it is an intentional taking of my property to the other person’s use, that the reflection of that in terms of the interest being protected may take a particular shape. In the present case, the interest we are looking at needs to be dealt with in a context where we are looking at negligent infliction of damage to property, number one. Number two, we are in the context of the consequential loss, with the core loss having been fully compensated through the primary measure of damages. Number three, the approach we commend, as to the virtues of objectivity about it, which is that one simply identifies the uses to which the vehicle would have been put, and number four, the focus on the functional use is consistent with interests which are readily recognised in the law. Number five, we would submit, frames of reference such as loss of amenity cannot be pushed as far to cover this.

Now, your Honours, I was going to come to this a little later, but perhaps it is convenient, since I do not wish to dally, to look at some of the other situations in which the law, in this type of area, has not extended into the protections of the disappointments that may be suffered by reason of the negligence.

The proposition I would like to go to, which we were going to come to under, perhaps, paragraph 6(c) and 6(d), would take us to Dimond v Lovell, which the Court will find at volume 4 of the authorities, tab 11. Your Honours, Dimond v Lovell of course arose in the context where the English courts had made the decision that the additional benefits provided by the credit hire company by way of supplying the administrative services and taking the risk on the claim were, in general, not recognised as a head of loss, and then the question was, what if the claimant was impecunious and could do nothing but accept the services of the credit hire company?

In the judgment of Lord Hoffmann - it is found on page 177 of the book - the passage I wish to rely upon is between about lines 30 to 60. In that passage, Lord Hoffmann recognises that by going to the credit hire company, the claimant was receiving benefits:

She was relieved of the necessity of laying out the money to pay for the car. She was relieved of the trouble and anxiety of pursuing a claim –

herself. She was relieved of the risks of costs, and so on, and then his Lordship says that:

English law does not regard the need for any of these additional services as compensatable loss -

citing Sir Richard Scott:

“damages for worry and for the nuisance caused by having to deal with the consequences of an accident are not recoverable”.

So, it is a good illustration that there are some limits to the law’s recognition that it will attempt to relieve the injured party of every form of loss, particularly loss in the form of worry or anxiety arising from the claim. Links are drawn in this area, and we would submit, the principal basis of those limits is a recognition of where this claimed loss sits within the interest protected by the negligence in tort, and that should not be assimilated to simply what might happen in conversion, or particularly in contract.

Your Honours, if I could just complete Justice Basten’s judgment in this case - that is returning to page 13 of S36. At paragraphs 18 and 19 he adequately, with respect, summarises the two competing approaches. Mr Walker’s approach is to say that our approach imposes a sumptuary law upon the innocent driver. We would respectfully suggest that sumptuary laws have precious little to do with the problem the Court is facing in this case, whereas paragraph 19 sets out the approach for which we contend.

Interestingly, in the middle of that paragraph, his Honour records our submission as being one which compensates for inconvenience or loss of amenity. So we, at least, were proposing to the court that the loss of amenity approach would not take one any broader than our principle, and the qualification we have always allowed in our argument can be seen at the end of paragraph 19, that, depending on the evidence:

the use of a prestige vehicle might be justified by the needs of a particular business, but would not normally qualify as a reasonable expense to meet the inconvenience of domestic or social needs.

So those two paragraphs, 18 and 19, possibly lay the groundwork of the competing arguments fairly accurately.

If the Court would then go over, please, to page 26. In paragraph 48 his Honour cites Lord Hope at paragraph [27] of the judgment in Lagden and the last three sentences of that paragraph are important. The last sentence in particular establishes the converse of our case. What happens if a larger or more powerful vehicle was hired? Even though an equivalent vehicle was available at lesser cost, well, then the excess cannot be allowed. That, however, does not directly deal with our problem.

Justice Basten then refers to the decision of a county judge in Brain v Yorkshire which was critical of the earlier decision in Watson Norie that we commend. His Honour criticises Brain and we adopt his Honour’s criticism. Then really about paragraphs 53 to 54 is the essence of his Honour’s reasoning and if I could just invite your Honours to.....that again. Our appeal really stands upon whether the distinction which his Honour recognises, particularly at the end of paragraph 54, is a sound one to draw, having regard to the purposes of this.....

KIEFEL CJ: Justice Basten does not seem to deal with Lord Hope’s statement of equivalence. He talks about a substitute vehicle, an equivalent vehicle, as meeting the inconvenience.

MR GLEESON: The point his Honour Justice Basten seeks to make at the beginning of paragraph 53 is that, upon his reading of Lord Hope, that last sentence did not grapple with the present case. That is, how is equivalence actually to be met in a case where your need, based on past usage, can be met by a vehicle at a lesser cost, and where the inconvenience arising from loss of use can be fully overcome by such a vehicle, and that, we would submit, is a fair reading of the limits of what Lord Hope said.

KIEFEL CJ: Essentially, Justice Basten’s approach is one of reasonableness. It is two steps - the loss identified is the inconvenience caused by the loss of the use of a, or the, vehicle - there might be something in that - and the second step is it is not reasonable to require a vehicle which is closer to a substitute, something like an equivalent.

MR GLEESON: I would accept, your Honour, that is a fair summary of his Honour’s approach. Coming back, of course, to the question of law framed before him, which was whether, once you prove a need for a vehicle do you axiomatically get a vehicle of equivalent value, or is there a further step of inquiring into the uses to which you will put the vehicle and how that can be met, that is at the core of his Honour’s reasoning, that because inconvenience is the thing to be remedied, that leads one to a functional objective assessment of likely use as opposed to ‑ ‑ ‑

KIEFEL CJ: That is because his Honour sees the inconvenience as being the loss of use of a vehicle, as distinct from the vehicle which has been damaged?

MR GLEESON: Your Honour, I think I would put it this way. What his Honour sees is you identify the vehicle that you need by reference to the uses to which you would have put your vehicle. So his Honour is not excluding the possibility that you might prove that the vehicle you need is the same or equivalent to the one you had, but what you need to do is identify the uses to which you would put the vehicle.

In the course of that, his Honour is accepting that, in the ordinary case, where your vehicle is needed for social or general transport, those being the relevant usages or needs, they can be met by a particular vehicle, and you will need to do something a little extra to show that you really needed to be driving around in a BMW or a Rolls Royce.

KIEFEL CJ: What about there being special features of a vehicle? Some might suggest that not all vehicles are created equal, Mr Gleeson. It is sometimes said that some prestige cars have features of safety; that is why people are attracted to them. Some of them like the interiors because it gives them a sense of luxury. The performance, the suspension, the way in which they accelerate – all of these features. Why are they not part of the loss of convenience?

MR GLEESON: Well, on his Honour’s approach they could be, but you need to prove those features mattered to you in some objective functional way. I will not keep repeating those two words, but they are the essence of our argument.

EDELMAN J: Mr Gleeson, was there not a finding in the Cassim Case that the plaintiff was concerned with the safety features of the BMW?

MR GLEESON: There was a finding that some evidence was given to that effect, but it would not – I think I am correct; I will try and draw up the passage – it was not shown that that related to the proven need. I will just try and find that passage, your Honour.

EDELMAN J: Sorry, it was in the Rixon Case, not the Cassim - the Rixon Case, as I understand it, he believed that the Audi A3 was of a superior safety rating to many other cars. I suppose, following on from the Chief Justice’s question, the difficulty that I am having at the moment is that the line between what you are describing as personal preferences and convenience can be very fine when you are dealing with things like safety features.

MR GLEESON: Your Honour, if I can take those in turn. The finding is in the book of further material in S35, page 17, paragraphs 42 to 43, and the finding was the plaintiff believed it was a vehicle with a superior safety rating, but that was not proved as a fact, and it was merely a case of preference for a European car over any other car. So they are the findings upon which the question of law was identified.

As to the other aspect of your Honour’s question, we would submit that if one simply focuses on the objective circumstances of, “The uses to which I would put the vehicle”, all problems will be solved fairly readily. So, “I was using the vehicle to take the kids to school, occasionally a drive to the office, a drive around on the weekend, they are my proven uses”, that is what the defendant ought to compensate for.

STEWARD J: Mr Gleeson, can I ask a question. How would you demonstrate objective prior usage in relation to safety features?

MR GLEESON: I think it would be rather difficult, your Honour.

KIEFEL CJ: Does the finding suggest you have to have expert evidence to show that the belief was correct?

MR GLEESON: Well, if it does, that is a problem with our argument, because one of the things we are trying to argue for is an approach which is simple, neat, clear, practical, able to be applied in the Local Courts and the Small Claims Tribunals, and that is part of the reason we are seeking the guidance from the Court on the questions. So we are not urging an approach where expert evidence becomes the answer to the problem.

But we are urging that, in fact, our approach is fairly simple, straightforward and easy to apply, because you simply start by saying this is what I used the vehicle for in the past, this is what would have happened in the period of repair, and from there you identify the appropriate replacement.

Your Honours, that brings me to the end of the first two propositions. The third proposition, we submit, should not be controversial, but, as the Court has recently confirmed in various judgments, in both Amaca v Latz and in Lewis, that before applying the compensatory principle, one must identify whether the loss claimed is compensable as an aspect of the injury suffered by the claimant, and we have given your Honours the references there, the passages in those judgments, and we submit that is sound as a principle.

Can I then move through propositions 4 and 5, and then come to the core one, which is proposition 6. Our proposition 4, which is a stepping stone only to the ultimate question, is to recognise that the primary loss here is the damage to the physical integrity of the chattel. That primary head of loss is fully remedied by the law by damages for diminution in the value of the chattel, usually but not always measured by the cost of repair.

So, that being the case, it is possible the law could have stopped there and said we go no further with consequential heads of loss, but the law has gone further and has identified, as we would submit, that there can be a further interest involved, which is broadly expressed as inconvenience.

Now, your Honours, under proposition 5, I just want to say a few words about the general damages for loss of use before coming to special damages. Clearly enough, on this part of the argument, we are approaching the matter through the traditional distinctions between general damages and special damages, and I will then, at proposition 7, come to the alternative conceptual approach.

As to the general damages, there are two well‑known cases which are important in establishing the framework, and the first of those is the Greta Holme which is at volume 4, tab 18, if I could ask the Court to go to that, please. It was the case where the claimant’s dredger was injured by a collision with a negligent ship and it led to a loss of use of the dredger for a number of weeks while it was being repaired. It was not strictly a non‑income producing vessel but because the owner was a public trustee working on a not‑for‑profit basis, it raised some parallel issues.

At page 335 between lines 30 to 50 the relevant items of damage which were claimed are identified, and the first was £1500 calculated as £100 a week for 15 weeks during which the dredger was under repair. The basis for the £100 a week is found at the top of page 337.

Just returning to page 335, the decision by the registrar, upheld at the next two levels, was that there simply was no relevant head of loss at all, and it was that proposition which Lord Halsbury dealt with and rejected in the passages on page 339 and 340, which are exceptionally well known. In 339 at about line 15 his Lordship recognised that:

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 use of the article injured during the period that the repairing may occupy.

Similarly. on page 340 at about lines 20 and following, his Lordship in the very well‑known passages said:

If by that is meant that, in order to entitle a plaintiff to recover, you must be able to show that during the period of repair to his vessel, or his cart, or his horse, some specific money has been lost –

the principle would go too far. So, his Lordship was dealing with that proposition, and similar statements are made in the other judgments, that I will not presently go to.

Can I then come immediately to the second of the key cases, the Mediana, which is at tab 19 or page 347. This was the case where one of four operating lightships belonging to the claimant harbour board was damaged by negligence and out of action for 74 days. Again, at page 348, at about lines 10 to 20, we see the relevant claim for damages, which was item 8, which was expressed as:

Loss of the use of the –

damaged lightship:

or hire of the services of the –

replacement lightship, 74 days at so many pounds per day. The liability was disputed in principle but not in quantum, and when Lord Halsbury returned to the issues of principle that we are concerned with, at pages 350 to 352, he reaffirmed that – this is page 350, lines 20 to 30:

that where by the wrongful act of one man something belonging to another is either itself so injured as not to be capable of being used or is taken away . . . that of itself is a ground for damages.

His Lordship then explains we are not in the territory of nominal damages, these are substantial damages, even though they may be small - that is lines 40 to 50. It is essentially a jury question, in the general damages case, lines 50 to 60, what compensation should be given for the wrongful act.

Now, on page 351 his Lordship gives the example of, if I take away someone’s chair and keep it for 12 months, I cannot say there are no damages because the chair would not have been used. There is an essential jury question, that one must decide, lines 40 to 50:

what damages ought to be paid for the unjust and unlawful withdrawal of –

the chair.

Just pausing there, some of the judgments in Lewis have discussed this passage. We would draw attention to the fact that this is a conversion example being given, where the wrong to the injured party includes the taking of the benefit to the wrongdoer, and that may influence the way in which the jury damages are approached.

Then, at about line 55, his Lordship turns briefly to special damages, affirming that you need to show the damages, you need to plead them, you need to make good what your loss is, and then over the next page, 352, returns to general damages and expresses the nature of the jury question, including that damages may in fact be a trifling amount, even though they will never be nominal.

Can I just stand back from those passages and explain how we seek to rely upon them here? If these were cases of general damages where there was no actual hire of a replacement vehicle during the period of repair, the type of question would be the jury question being discussed by Lord Halsbury, and if, for example, the claimant was going to make no use of the vehicle during the period of repair, that would not deny general damages altogether, but it may be highly relevant to the jury assessment of the quantum of those damages.

So, where the injured Rolls Royce would have simply been left in the garage, in any event, for the repair period, the claim to general damages may produce a very modest sum. If the Rolls Royce would have been used during the period, we submit the relevant inquiry would be into what were the nature of those uses, and what sum of money should compensate for those uses and, perhaps most critically to this case, going back to your Honour the Chief Justice’s question, the make, model and specification of the damaged vehicle will not control those general damages, we would submit.

The position is similar if one takes, for instance, an income‑producing vehicle. If my vehicle is a chauffeur car, the damages I might be entitled to for the period while it is out of use will be measured by the loss of the profits which I would have earned from that vehicle. Now, the loss of the profits will not be correlated, necessarily, to the make, model or specification of the vehicle. In fact, they may very well differ. Two vehicles of different specification might yield the same loss of profit, and vice versa.

So, our proposition is that even when one is in the field of the general damages, the law is not simply compensating for the loss of a vehicle of an identical make, model and specification. There is some more precise inquiry involved into the functional uses to which the vehicle would have been put.

KIEFEL CJ: Mr Gleeson, if one goes back to what is the damage, as distinct from the damages for which compensation is being made, why cannot they, in principle, include what Justice Edelman has referred to, what I would describe as the loss of enjoyment of driving the particular vehicle, or the vehicle with particular features. Justice Edelman has referred to it as “amenity”. It is the same thing, I suspect. Why can it not be acknowledged that some people, and it may be a matter of them needing to give evidence about this, but some people actually enjoy driving the car that they have chosen, so much so that a drive to work becomes a matter of pleasure. Why is that not compensable, if it is lost?

MR GLEESON: It would be possible, of course, for the law to take that step, but the question of principle for your Honours is whether it is justified within the framework of the tort we are dealing with for that step to be taken. Our argument is that it is a step which is inherently uncertain, extraordinarily difficult to apply and one which is taking the law into a penumbra beyond the interests necessarily protected by the tort.

An example we have given – I was going to come to it briefly at the end; it is proposition 11 – is Mr Souaid. Your Honours will recall Mr Souaid was the unlucky man who, when asked in cross‑examination, what did you need, he said, “I needed a vehicle to meet my daily needs” and the cross‑examiner put to Mr Souaid, “Any vehicle would do?”, and Mr Souaid gave a candid answer to that question.

Your Honours will see those answers of Mr Souaid in the core appeal book in S35 at page 40, paragraph 20. He drove a “prestige sedan”, so he is obviously a person who saw some value in having a prestige sedan; he had laid out money on that. But he said he was not fussed whether the replacement vehicle was A or B, as long as it was there for his wife, for the kids and for the stuff.

KIEFEL CJ: But what if someone else says it matters to them very much?

MR GLEESON: That is where we are saying the issue of principle is, that the law will not distinguish in the compensation between more candid and less candid expressions of preference and will not distinguish and encourage that inquiry into preference. The essential thing that must be compensated for is your likely usage during the period. Your Honours, the last point I wanted to make about general damages was that ‑ ‑ ‑

KIEFEL CJ: Mr Gleeson, you say that the approach is one which requires simplicity, but really if one tests even your view of the utilitarian need, there would have to be lines to be drawn. For instance, does the person get an automatic car or a manual car? At what point do you say this car will do because it will get from A to B because it is roadworthy? I mean, is there some sense of a person’s – what has been damaged being replaced or is it just purely utilitarian approach which means as long as the car gets you from A to B, that is it.

MR GLEESON: It is not quite as crude as that, your Honour. The car needs to meet the proven uses. So if it is a family of four, there are several children dropped at school, there is some travel on the weekend to sport, and so on, the car must adequately meet all of those uses, which a Corolla is proven to do. That is at our end of the spectrum and that is the simplicity of it.

At the opposite end of the spectrum, at least according to Justice Emmett, you are in a search for the vehicle with either the identical or the “close as possible” mix of attributes, which include make, model and specification, and badge, perhaps, some of which may pull in quite different directions and, on that approach, what is the sort of evidence that the claimant has to give to get the extra damages that we are seeking to deny because what would be the difference between a – let us take a car badged with a BMW and a car with the same specifications but without the badge. One would be more expensive, et cetera. Do the damages have to compensate for the person’s preference to have the badge on the front of the car? So there will be quite a lot ‑ ‑ ‑

EDELMAN J: Well, Mr Gleeson, just to give an example that is sometimes used in this area, if, by negligence, a person’s stamp collection were destroyed would, on your approach, the same measure of damages being the value of the collection be given, and the damages limited to that, irrespective of whether the person is holding the stamp collection as a bailee, or whether the person is indulging the stamp collection as a hobby, so there had been loss of the hobby. Would there not, in the second example, be an additional head of damages?

MR GLEESON: As I understand the example from your Honour, the primary head of loss is the destruction of the stamp collection, and that will need to be compensated for by an appropriate sum of money. Your Honour’s question then was, can there be an extra head of loss, over and above the objective value of that stamp collection, for the interference with the pleasurable enjoyment of the hobby? So that would be ‑ ‑ ‑

EDELMAN J: Which would depend upon whether the person is a collector or not.

MR GLEESON: Yes. So that would be a consequential head of loss, I would respectfully submit, not a close parallel to the problem we are dealing with, because we are not looking at the problem of while the primary restoration is occurring, namely, the repair, that has created a particular problem, namely, lack of use during the period of repair. We are looking at a slightly different head of consequential loss - I have – I will receive full restoration for the objective value of my stamp collection, can I then say, perhaps, as a jury question, I am entitled to $X more because of the interreference with my hobby?

So that, as I would perceive it, is the framework within that – within which that question of consequential loss would be addressed, and it would then be one of the judgments, the normative but also pragmatic judgments made by the common law within the framework of the tort, which might vary, depending whether it is a negligence or intentional tort, as to whether it is to recognise that as loss within the tort.

So, ultimately so framed, the law might go one way or other on that question, but it really only illustrates, in my respectful submission, that these are the normative yet pragmatic judgments which the law is making at various points in these exercises, and, to bring it to the crunch, we have to show error in perhaps two judgments.

We have Justice White on the one hand, we have Justice Emmett in the other. They are the two targets for our argument. They have taken different approaches to the problem, and perhaps I should come to them just after the adjournment, but I will seek to show that each of those approaches is not a satisfactory solution to the problem and, conversely, the Justice Meagher/Justice Basten approach – we are accused of being Spartans by Mr Walker - but we submit it neatly fits with the ranking which this interest has within this tort.

EDELMAN J: Just so I understand your submission, would that lead to a different result in a case where the damage to the car is caused negligently and a case where the damage to the car is caused intentionally, such as a theft or an intentional damage‑type case, where the same insurers are involved but an intentional case would have a different consequence from a negligence case.

MR GLEESON: It may have a different consequence for the reasons explored by your Honour Justice Edelman and Justice Gordon in Lewis, which is that in the case of an intentional tort taking to me as the wrongdoer the benefit of the use which you ought to have had during that period, although the damages remain compensatory and are not restitutionary, the assessment of those damages ought to take into account that that is the true nature of the wrong.

So if it were a general damages exercise being sent to a jury, the jury, I would submit, would be entitled to say, “You can take into account in determining how much for that deprivation of this other person’s rights is appropriate, given the fact that you have deliberately taken to yourself for whatever benefit you may wish to put from it, what belonged to them during the period we are speaking of”.

So, because we are not in that framework – we are in negligence, we have the primary head of loss protected, we are dealing with an identified consequential head of loss - if my submission is sound, it is straightforward in application and it neatly meets the interests which the law protects by this tort. Your Honour, is that a convenient time?

KIEFEL CJ: Yes, it is, thank you, Mr Gleeson. The Court will now adjourn.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honour. Could I go to Justice Meagher’s judgment at paragraph 21. It is page 58 of S36. In that paragraph we submit his Honour has grappled with the question your Honours have raised with me this morning, and he has identified, accurately, that in none of the four cases before the court:

did the efficacy or enjoyment of any likely use depend on the replacement vehicle having a specific, and perhaps unique, characteristic or feature, in the absence of which the claimant would be deprived of that relevant use and as a result suffer compensable inconvenience or deprivation of some kind.

I submit his Honour is there saying, whether you are doing general damages or special damages, absent that type of evidence, the approach to damages we commend would be appropriate. Then his Honour specifically gives an example where, in Alexander v Rolls Royce Motor Cars, the evidence was different, and a “loss of amenity”‑type approach could be tied into the need for a replacement vehicle with specific or unique features.

Your Honours, the last aspect of general damages, which is at the end of our proposition 5, is to ask the Court to go to Justice Meagher at paragraphs 4 and 5, that if one is in the field of general damages, there is no ready assumption that the damages will be based upon the spot hire rate for a comparable vehicle.

As per paragraph 5, as discussed in Beechwood Birmingham, at least in the United Kingdom, the conventional approach in general damages is to use a scale where fairly modest amounts are adopted. For instance, it was between £40 and £100 a week over that period, and that scale is not tied to the make, model or specification of the vehicle under repair, so we would submit it tends to indicate that, in the field of general damages, there is no automatic assumption that it is the identical replacement vehicle that one is seeking to replicate.

Your Honours, in this case, in the fourth of the cases – again, it is one not before you, but it is the case of Lee v Strelnicks - it is dealt with at paragraphs 88 and following of the judgment of Justice Emmett. Ms Strelnicks could not relevantly prove a need and what she got was $30.73 in total for 14 days, representing the interest on capital value of the vehicle while it was out of use. The court found no error in that approach. So, where one is in the field of general damages we would submit there is no ready assumption that one is seeking an identical vehicle.

Your Honours, I then come to special damages, which is our proposition 6. We have tried to break down our argument into four or five stages. The first is that where you have hired a replacement vehicle you must establish a reasonable need to hire a substitute and that the choice of the replacement was also reasonably necessary and that that reasonable necessity should be determined objectively by reference to the use to which the damaged vehicle would likely be put during the period of repair. I have said enough about that.

Our next sub‑proposition is that conceptually this loss should be viewed through the prism of Lord Scott and Lord Walker in Lagden as expenditure or liability being a materially adverse consequence incurred because of the wrong rather than through a prism of mitigation.

If I could ask the Court to go to Lagden, which is in volume 4 at tab 15, Lord Scott deals with this conceptual problem, particularly from page 298, paragraphs 77 and following, and his Lordship explains in paragraph 79 why this should not be treated as mitigation:

Mrs Dimond hired a substitute car in order to have the convenience of a car available for daily use, not in order to avoid some financial loss that she might otherwise have incurred -

and to similar effect ‑ ‑ ‑

EDELMAN J: Mr Gleeson, is it not the difficulty with that that mitigation is not just confined to avoiding financial loss? Mitigation could also be steps that are taken to reduce inconvenience or steps taken to reduce any other non‑pecuniary loss.

MR GLEESON: The reason I am focusing on this conceptual point is only to the extent that it bears upon an onus because in the approach of Justice White, not Justice Emmett and not Justice Meagher, an onus whether it is legal or evidential - I think it is actually legal – is cast upon the wrongdoer because we are in the framework of mitigation. That is the reason I am going to the proposition at all.

EDELMAN J: But even in the realm of mitigation, there would still be an onus on the wrongdoer to show that a head of loss had been incurred, so that there was inconvenience or loss of amenity or some form of loss. The wrongdoer has to show that. The.....onus only shifts to show that the steps that have been taken by the wrongdoer in an attempt to ameliorate that form of loss were unreasonable.

MR GLEESON: I agree the innocent party will need to prove a head of loss, and here the head of loss is said to be loss of – inconvenience, that is how I understood your Honour’s question, that onus to show a loss that will rest on the innocent party and one then, if we are in special damages territory, we are looking at where an onus rests in respect to whether the hire of this vehicle was reasonable or not. What we seek to establish from Lord Scott is that it is an available and perhaps preferable way of viewing this. As his Honour says over the page at paragraphs 80 and 81, what we are dealing with are:

special damages representating expenditure incurred as a result of the defendant’s negligence.

So it is part of the claimant’s onus, if the claimant says, “I wish to recover $100 a day paid in a hire charge”, to then show that it was reasonably necessary to incur that hire charge of $100 in response to the negligence. We differ from Justice White who says that there is a form of shifting of onus going on that the claimant only needs to prove a need for any replacement, and then once that happens the onus is on the defendant to disprove that the particular replacement was reasonable.

Just to identify it, the passage I am seeking to challenge Justice White on is paragraph 69 on pages 73 to 74 of the book in S36 where what his Honour has said – perhaps 69(2) is similar to what your Honour Justice Edelman put to me. Paragraph 69(4) says if you are in special damages, the plaintiff will have to prove a need for a replacement vehicle. That is all the plaintiff has to prove. Once you do that, an onus has shifted.

Paragraph (5) is his Honour’s broader view of what is being compensated for. Paragraph (6), there is an inference that once you prove a need for any vehicle, you have a reasonable need for a commensurate vehicle. Paragraph (7) seeks to explain why that prima facie inference should be drawn. Then paragraph (8):

the onus of establishing that the hire of the particular vehicle was unreasonable lies on the defendant.

So, if his Honour’s approach were adopted by this Court, the way these cases were run practically is the claimant will simply say, “Here’s why I needed a vehicle and here’s what I spent and once that’s done I’ve won, unless the defendant can prove I did not need the particular vehicle hired”. It is that shifting of the onus that we are seeking to rebut by reference to the approach of Lord Scott and Lord Walker at page 304, paragraph 101, and I recognise that Lord Hope may have taken a different approach to the problem.

Your Honour, the next sub‑proposition, which is paragraph 6(c), is the identification of the interest that has been protected, which, as we would submit, is not the subjective preferences divorced from likely use, and I express it that way because of what Justice Meagher said in paragraph 21. It is subjective preferences divorced from the claimant’s likely use that we submit are not compensable.

As your Honours know, I think from the written submissions, the clearest case where our approach has been adopted in England is in the decision in Watson Norie. If I could very briefly go to that, it is in volume 4 at tab 22. This was the case where the claimant did not automatically get the replacement of a vehicle of identical make and specification, although they did receive something a little better than the defendant was asking for.

While the judgment is fairly brief, Lord Justice Russell at page 406 of the book expresses the proposition that we contend for. Really, this is where issue is joined with Justice Emmett, because for Justice Emmett, once you have proved a need, axiomatically you would get a vehicle as close as possible, whereas Lord Justice Russell sees there to be a more specific inquiry into whether it was reasonably necessary to hire this vehicle, having regard to the purposes for which you needed the car. Lord Justice Diplock on the previous page, broadly to similar effect. We commend Watson Norie to the Court.

Your Honours, at 6(d) I have already made the submission, based on Dimond v Lovell and Lagden, that there are other areas, particularly in this tort, where the law has not extended the heads of loss into like matters. Finally, can I say something in 6(e) about policy considerations. Now, I recognise that is a difficult topic, because it is in the eye of the beholder, but the law is not completely immune to common sense, pragmatic, realistic and sensible limits being drawn upon when damages are to be visited upon the wrongdoer.

It is, of course, never to be forgotten that some wrongdoers may not be insured, and that their cost of claims to the community will be borne in higher premiums, the more generous.....approach to damages is. Lord Hope discussed those matters in Lagden - I will just give the reference, volume 4, page 286, paragraphs 38 to 43.

Now, we do not suggest your Honours engage in some freestanding exercise, of course, as to where the burden should lie between credit hire companies and conventional insurers, but it is not irrelevant to this case. As your Honours know, because of the credit hire model, they are litigation funders, and what they do is find people who have their car out of action during repair, and they offer then to take over the entire claim and they give them a generous replacement. What they then do is build into the cost their administrative cost and their legal risk.

That industry is not illegal, it is not wrongful, it is not champertous, but the credit hire industry has an interest, a very real interest, in the most generous measure of damages being recognised and in the necessary consequence, which is those costs are borne by either uninsured persons or insurers, and thus, the community as a whole. The practical limits that are drawn in this area, we would submit, put well by Justice Meagher, are consistent with recognising that as a reality.

Your Honours, point 7 I can deal with briefly. Your Honours will appreciate from the written submissions we have commended as an alternative approach, both below and here, the conceptual approach where the distinctions between general and special damages are put to one side and one simply identifies the relevant loss as the need created by the defendant’s wrong and the market cost of obtaining the goods to satisfy that need.

In Anthanasopoulos v Moseley, Justice Ipp adopted that as the solution to the present case. It was a convenient solution because that was the case where the insurer had – the insurer of the innocent party had provided the vehicle gratuitously and so there was a clear parallel to the Griffiths v Kerkemeyer problem, and his Honour Justice Ipp treated the conceptual approach as of assistance.

The conceptual approach also has the benefit, which your Honours will appreciate in the context of the credit hire model that, provided Australian law follows English law in this respect, as it currently does, that there are non‑compensable benefits. The extra components built into the hire for the administration and legal costs of the credit hire company are not recoverable from the wrongdoer.

What the conceptual approach does is allow one, once you have identified the need and found the relevant vehicle, to simply go straight to market cost, rather than to start at the opposite end, which is the actual cost of hire, and then try and subtract out the non‑compensable benefits. We have addressed in the written submissions that the conceptual approach is not available in England because of certain approaches taken there. It is available, clearly, in Australia, and we would commend it as a suitable approach to dealing with this problem more generally.

KIEFEL CJ: The analogy of Griffiths v Kerkemeyer is not really appropriate, though, is it, on one view? Griffiths v Kerkemeyer was to meet the particular position where a plaintiff’s injuries involved loss of functions, and therefore a need for services. The need is a kind of replacement for what occurs as a result of a loss. It is a second‑tier approach. If that kind of approach is applied here, is there not a difficulty that what is said to be the need comes to be seen as equivalent to the loss or damage but without the proper inquiry into what the loss or damage actually is?

MR GLEESON: Your Honour, I need to be candid that the conceptual approach, if you were to adopt it, probably will not directly solve the hardest issue in this case because one will still have ‑ ‑ ‑

KIEFEL CJ: Because it proceeds upon an assumption as to what the need is?

MR GLEESON: As to what the need is.

KIEFEL CJ: Yes.

MR GLEESON: So, its utility will be more in areas either where it is a gratuitous provision of the replacement car by the insurer – that is Anthanasopoulos – where at least according to the New South Wales Court of Appeal the anterior legal judgment is that is a compensable loss even though an insurer has met it gratuitously. So, that is a fairly close parallel to Griffiths v Kerkemeyer, or as I say with the credit hire company model it helps at the end of dealing with the non‑compensable benefits. They would be two reasons why the Court might consider it, but it will not solve all of our difficulties if we do face difficulties in any event.

KIEFEL CJ: Could I just take you back to the matter you were discussing before the morning break about the appellant’s approach being one which was, in your submission, simple and easy to apply, and overcoming requirements of proof and the like. If one approached the question of vehicles of a particular standard - or luxury vehicles, whatever one likes to call them - as something that a person has chosen to buy because they are prepared to pay the money for the features that go with it, and the law proceeds then upon the basis that the loss of those – it might be assumed that the loss of those features or the loss of the enjoyment of driving the vehicle follows - it can be assumed from the fact that someone is prepared to pay the extra money for these kind of things - if one proceeds upon that assumption, it is arguably even more simple than your approach.

MR GLEESON: Your Honour, could we take it back one step, which is both sides seem to agree that there is some element to be proved by the plaintiff of a need to use the vehicle during the repair period.

KIEFEL CJ: I am not referring to that. I think that one must accept that there has to be a requirement for the vehicle to be actually used.

MR GLEESON: If one just looks at that anterior stage – it does not answer all problems – but at that anterior stage, if I am deprived of my Rolls Royce which I do not have for four weeks, but all I would have done with it in the four weeks is left it in the garage, then it seems tolerably clear I do not get compensated for the replacement of a Rolls Royce.

Cases get a little harder if I drive it once a weekend in those four weeks and it would have been easier simply to hire a replacement Rolls Royce or some other car. They get a little harder. But that is telling us that even for that person who subjectively probably feels some loss – they no longer have a Rolls Royce in the garage – that is not what this tort is compensating about.

So what that has done is taken us into the viewpoint of we are looking in some sense to the uses to which you would put it in the repair period. That must in some sense anchor the inquiry. That may not fully determine the metes and bounds of the inquiry, but to some extent they must anchor the inquiry, and it is at that point where the divergent views really open up.

KIEFEL CJ: The fact of use might be a requirement and need to be proved - the need for a replacement car. But if you say some aspect of use must be, what about the quality of use?

MR GLEESON: Perhaps I should go back to Justice Meagher, because I cannot at this point or perhaps ever put this aspect of the argument better than what Justice Meagher was grappling with between paragraphs 20 and 21, so that is pages 57 and 58. His Honour put at paragraph 20 the descriptors such as quality – the one your Honour put to me – value, prestige, are necessarily:

relative in their application to different vehicles and do not necessarily bear any direct relationship to functionality or specifications or define the uses to which a motor vehicle might be put.

In Justice Meagher’s characteristic terse and precise language he has, with respect, in that paragraph really grappled with three aspects of the problem. One is the way these cases were set up below which was, “Once I prove the need I must get a vehicle of equivalent value”, and he said value does not:

necessarily bear any direct relationship to functionality or specifications or define the uses to which a motor vehicle might be put. Accordingly, it is necessary in each case to identify those uses to assess the reasonableness of the claimant’s action in hiring a particular vehicle.

So he treats the identified uses as the anchor point and he then, based on his assessment of the facts, which we submit is a fair one, said that the relevant use identified was the means of transporting people and things from A to B, and he refers to some evidence and then says:

In each of these cases a replacement vehicle which, while acknowledged not to be of equivalent luxury or prestige, was sufficiently comparable in terms of functionality and specifications to satisfy the –

anchoring uses. So, on his Honour’s test, the uses anchor it and the comparable vehicle is identified through functionality and specifications which satisfy those uses.

KIEFEL CJ: What does “specifications” mean?

MR GLEESON: Size of the engine, four‑wheel drive, two‑wheel drive, size of the car, the sort of matters you would read if you were reading the brochure.

GAGELER J: Mr Gleeson, you refer to it, I think, as being common ground, that there is an initial inquiry into the need for use of the vehicle during the repair period. I wonder what sense you are referring to a “need”. Is it simply a counterfactual analysis, what would have occurred, how the vehicle would have been used? Is there more to it than that?

MR GLEESON: No, it is that, your Honour.

EDELMAN J: Mr Gleeson, does that mean that it is open for a defendant to say that if I use my car to drive to work every day and to drive my children to school, that I would be healthier and happier if I cycled to work, and cycled home, and walked the children to school?

MR GLEESON: No, it does not, your Honour.

EDELMAN J: What does “need” mean, then?

MR GLEESON: It is, in my submission, a counterfactual analysis consistent with what your Honours had discussed in some recent cases in different contexts about identification of loss, including Lewis, and it is simply saying, what is it you would have done with the vehicle if you had had it during that repair period? That is the anchor point of the exercise. Then it says, what is a vehicle which is sufficiently comparable in functionality and specifications to allow you to do those things?

So if your uses were four‑wheel drive because you were taking it regularly, in that period, on rough roads, that is what you would have done with the vehicle, then the sufficiently comparable vehicle must include the four‑wheel drive quality. It is that type of fairly pragmatic, earthy exercise of matching what you would have done with something which would allow you to do it.

That is why, in his Honour’s paragraph 21 that I read a little earlier, his Honour is recognising it may be different in different cases, provided you have the counterfactual properly established at the outset. Your Honours, I am ‑ ‑ ‑

GAGELER J: Mr Gleeson, I might be wrong, but it sounds to me that your – if that is the way you analyse it, then what you have lost, what the plaintiff has lost use of this car. If you are saying that that can be adequately compensated by the use of some other car, perhaps you are in the area of mitigation of damages.

MR GLEESON: Well, there are two aspects to your Honour’s question. The premise is that you have lost the use of this car - I think we are putting that slightly differently. What you have been deprived of is the uses to which you would have put this car during the repair period. So, you, as the plaintiff, need to prove what were your uses. Just to take my four‑wheel drive example, if there was to be no four‑wheel driving during the period, and if the four‑wheel drive capacity increases the hire cost by 25 per cent, that is something the plaintiff would not have established an entitlement to.

Your Honours, can I deal then with the balance of Justice White and then Justice Emmett and perhaps picking up Justice White at paragraphs 39 to 42, his Honour’s first step is that we are solely in the territory of mitigation, and that will lead to a shifting of an onus. I have submitted that that is in error.

Then, when his Honour reviews the authorities, Watson Norie is discussed at paragraphs 46 through to 50, and his Honour, with respect, correctly recognises, at paragraph 50, that Lord Justice Russell puts our case most strongly.

His Honour then deals with a case, HL Motorworks, which is really dealing with a very different situation. It is one where the plaintiff, what they were deprived of was that their customer, whose car was with them under repair, had been damaged, and so it is fairly straightforward to see that the interest being damaged there was the need to make good to their customer, and that would explain such a case.

There is then a discussion of the further English cases through to about paragraph 59, and none of them as here cited directly, we would submit, address our problem. Then there is the paragraph 60 that I referred to earlier, which we take issue with. I will not go back over the matters I discussed with your Honours this morning, but this does seem to be the point where his Honour is perceiving it as damaged feelings, the feeling of driving the prestigious car or being seen to drive it, and that, we submit, has taken the interest beyond what is protected.

Paragraph 61 is the county court judge in Brain which, as Justice Basten pointed out, had a series of problems in the approach. Then paragraph 62 his Honour says, we would submit erroneously, that by 2010 this – that is, the approach in Brain – appears to have been the settled approach in England. That, we would submit, is wrong because Watson Norie has never been overturned and the observations of the county judge in Brain are open to very significant criticism and the English cases that follow were not grappling very squarely with the problem we are facing.

Your Honours, if I could pass over to paragraph 68. His Honour at this point identifies two separate questions. The first is whether it is reasonable to hire a replacement vehicle during the repair period, and then his Honour sees a further.....as to whether it is reasonable to hire a “commensurate vehicle”. So his Honour has broken them down as two questions. That brings me to paragraph 69 that I have discussed where what happens is that on the first question the plaintiff bears the onus, but on the second question the defendant bears the onus because we are somehow governed by mitigation.

There was some discussion in the Court on the special leave application about whether Justice White’s approach is good or bad in terms of the attempt his Honour brings to structure the exercise. We would submit the structure is unhelpful and has really distracted from the critical question before the Court.

Finally, his Honour at 70 to 73, says that his approach must be correct because of what would happen under the general damages scenario. As I have sought to show earlier, if you are solely in general damages, there are a range of approaches. The interest in capital approach has been favoured in some cases although, as seen by Ms Strelnick’s case, produced a nominal $30.

The English approach has been a scale which is not referable to the value of the goods, and there has been some discussion that even the interest in capital approach may not be appropriate where one is dealing with non‑income producing chattels. If I could give your Honours the reference on that discussion, it is in Chekiang which is in volume 4, tab 9. At page 138, Viscount Dunedin made the point between lines 30 to 50, and Lord Sumner made the similar point on page 143.

Your Honours, can I come then to Justice Emmett. It is paragraphs 119 to 130. It is quite stark that his Honour has answered the entire question from first principles without any reference to the authorities, including Watson Norie. His Honour, as seen at paragraph 119, sees that the whole problem really can be resolved by restitutio in integrum and that, we submit, for the reasons in Amaca v Latz and Lewis, may conceal an anterior judgment being made as to what is compensable loss. At 120 his Honour says the “need” inquiry is:

whether the claimant had a need for the use of the damaged vehicle -

his Honour’s emphasis. So his Honour then creates a binary situation. If there is no need for use of the damaged vehicle, then ‑ ‑ ‑

KIEFEL CJ: Is his Honour, in his reference to “need”, need for use, really identifying loss?

MR GLEESON: Yes, your Honour, and in doing so, doing it in a binary fashion because the – you are looking at need for use of the damaged vehicle, that is the way you frame the question, according to his Honour. If there is no need to use the damaged vehicle, then the damages will be perhaps trifling, but the converse proposition is, as his Honour says:

where the claimant can demonstrate that the damaged vehicle would have been used, the need is for a replacement for that damaged vehicle -

and restitutio requires you to be given the vehicle as close as possible. Now, that is a critical point upon which our argument hinges. What his Honour has said is, once there was a proven need for use of the damaged vehicle, you must get the vehicle as close as possible. If your Honours could cross‑refer back to Justice White at paragraph 68, the two questions which Justice White had separated have merged into one question for Justice Emmett. We would respectfully submit, and ask, why does paragraph 120 follow?

Why does proof of a need for use of the damaged vehicle mean the replacement must be the damaged vehicle? At least under Justice White’s approach, his Honour, in the course of paragraph 60, is saying what I am trying to do is to recognise that there can be cases where, because of your feelings, you not only need a replacement, you need the replacement, and his Honour is recognising, in paragraph 69, that, subject to the onus point that we disagree with, at least that will be an evidentiary inquiry, whereas Justice Emmett at paragraph 120 seems to identify the interest, or the loss, in a fashion which precludes any inquiry with any onus into whether your need actually extended to this vehicle of equivalent specification.

The fault may be ours, and if so I apologise, but we find it difficult to identify what is the interest which his Honour is implicitly identifying as to the reason for the logical syllogism in paragraph 120. If it is restitutio in integrum, that does not answer the anterior question of identification of loss. If it is not restitutio, what is the interest which underpins the logical syllogism in 120?

Now, from there, his Honour draws this distinction between fungibles and non‑fungibles. That is the distinction which Justice White did not wish to adhere to - that is paragraph 27 of Justice White. But the distinction his Honour Justice Emmett seems to draw is that, if it is a fungible, there will be no difficulty finding the equivalent, in terms of make, model or year, or one as near as possible. But then, at paragraph 122, his Honour says it may be different if it is a unique vehicle:

In such a case, it may be necessary to have regard to the function of the particular vehicle and the particular use to which that vehicle would have been put –

Again, the fault is mine, but we have difficulty seeing what principle his Honour is observing to say that fungibles versus non‑fungibles controls the exercise and it is only if it is the exceptional non‑fungible that you are even allowed to have regard to function and use.

So the matters which had appealed to Justice Meagher back at paragraph 21 as being central to the inquiry, Justice Emmett for some reason has consigned to the margins where one is dealing with a non‑fungible vehicle.

The balance of his Honour’s reasoning when he comes back to so‑called fungibles, paragraphs 122 and 123, you simply look for the closest vehicle and you have completely put out of your mind the uses to which you would have put the vehicle or the functionality referable to those uses and, indeed, the matters which your Honour the Chief Justice and Justice Edelman put to me this morning about, put broadly, loss of amenity, on Justice Emmett’s approach they are axiomatically presumed in the claimant’s favour. That is why we would respectfully draw.....with this.

Your Honours, I will not read the balance of the paragraphs through, but they adopt this form of reasoning and all of it perhaps is emphasised again at 129 that the need is a reference to the loss by reason of being deprived of the use of the claimant’s vehicle. So, in very crude and practical terms, provided I prove a need of any sort for my vehicle during the repair period, I get axiomatically the cost of hire of the replacement vehicle.

Your Honours, the final matter at proposition 11 I have briefly touched on already, that with Mr Souaid’s matter it is difficult to understand why Mr Souaid failed on the approach of Justice White and Justice Emmett, which may cast some doubt upon their approaches.

Mr Souaid proved he needed a vehicle. He said so. On Justice Emmett’s approach, why did he not simply get his replacement vehicle? On Justice White’s approach it may be because of the shifting of onus. He proved a need for a vehicle and the defendant rebutted the need for the particular vehicle but none of that has been exposed in the judgments and that, we suggest, demonstrates some difficulty with the proposition.

Your Honours, in terms of relief, if the appeal were successful, the relief is as per the notice of appeal. If it were unsuccessful in the Nguyen matter, the orders of the Court of Appeal would stand, and the result would be the award of damages in the Local Court will stand. In Arsalan, the orders of the Court of Appeal will stand and there will need to be a remitter to address the matters that I have identified this morning. Unless your Honours have questions, they are our submissions, thank you.

KIEFEL CJ: Thank you, Mr Gleeson. Yes, Mr Walker.

MR WALKER: May it please your Honours. May I start, first because it is the first proposition in our outline, but also because our friend has recently taken your Honours to Justice Emmett’s paragraphs 120 and 121, with what we submit is the fundamental need to identify the nature of the interest infringed so as to constitute, in the eyes of the law, a loss or damage for which damages can then be assessed.

There is no avoiding, in our submission, a characterisation of the ultimate aim of our friend’s argument as being to substitute something which is not even a generic motor car, but rather is some notional or basic motor conveyance for the motor vehicle owned or possessed or enjoyed by each plaintiff individually, which is the subject matter that any claim for damages for deprivation of its use during the period, hoped to be temporary, while it is repaired, the position not being what is sometimes called “total write‑off” or destruction.

Now, our learned friend has just criticised paragraph 120 of Justice Emmett’s reasons for not supplying a reason which would enable an acceptable syllogism to appear. Leaving aside the reference to formal logic, but pleading, we hope, to the logic of this area, it is of course the matter that his Honour has emphasised in his paragraph 120 which supplies the answer to the supposedly‑rhetorical question raised by my friend. It is of the damaged vehicle, that means of the particular, actual, not notional, vehicle enjoyed, in possession or ownership, by the plaintiff, the use of which, having been lost by reason of the defendant’s negligence, constitutes, as we will try to make good soon, the compensable loss.

At the end of 120, his Honour supplies the reason, wholly satisfying in elementary, by which I mean fundamental, terms of this area of the law, namely that the aim is to put the claimant in the position in which he, she or it would have been but for the wrongdoing, which means would have been able to use that vehicle which, by the tort, is no longer available for use temporarily by reason of damage inflicted by the negligence of the defendant.

That provides, in our submission, a satisfyingly simple – not simplistic – and, as it happens, not coincidentally, morally appropriate adjustment of the matter between the plaintiff and the defendant. It is true that in paragraphs 121 and 123, while I am in this part of Justice Emmett’s reasons and seeking to vindicate the principle, which his Honour has expounded in paragraph 120, the expression, no doubt rooted in Roman law, of fungibles, is used by his Honour.

It may be that there could be a challenge, if there ever were an expert assisted factual inquiry into such a matter, to the notion that even motor cars, all of which can be described by the same make, model and year are not interchangeable in the eyes of the market, particularly after they have enjoyed or not enjoyed the ministrations or care or lack of care of their different owners.

So, in that sense we would accept, as it were, the stricture, which we say goes nowhere in the argument of this case, that to introduce the concept of fungible is not helpful, but it is not an error. It does not deflect from the proper course, which his Honour had set in 120. It might be that other words might have been used to reflect the fact that notoriously motor cars are made in multiples rather than custom‑made one‑offs, at least for ordinary humanity, and that therefore it makes sense to talk, as countless judges have, of reasonably similar motor cars by reference to such factors of comparison as make, model, year, specification, et cetera.

It is, in our submission, clear to demonstration that Justice Emmett, in his paragraph 121, is not using the suggested presence of fungibility to drive any particular outcome, let alone any controversial one. It starts with, in effect, a generalised advice on evidence, where the phrase “could as well have been made in the case of mass‑produced items”, that is, items of which there will be, relevantly, very similar multiples.

In paragraph 123, it may be that his Honour is using the question of fungibility slightly more but not in a way that shows any error with respect to the issue which is before the Court today. The two steps that his Honour there talks about, the first is as to the replacement and the second is as to the cost. That is common ground between the parties, that is, both of those elements need to be considered when considering leaving to one side for the moment questions of onus or shifting onus, the question of the assessment of damages for the damage constituted by the loss of use of the vehicle while under repair.

KIEFEL CJ: Mr Walker, how would you describe the loss or damage? How would you identify it?

MR WALKER: It is the loss, the availability to use the vehicle during the period of repair. That is why the repeated, somewhat gruesome, example given in the cases bears consideration, that is, a car accident so bad that the only driver will be in hospital, flat on his or her back, for the whole of the period of the car being repaired. Then, one can say, nothing has been lost by the car being unavailable for use because there is no user in a position to avail himself or herself of it.

But leaving aside such ironic positions, in our submission it is the availability to use a vehicle which, properly understood, is conveyed by the briefer but less exact expression “loss of use”. Your Honours will note the difference between having something available in case you want to use it and knowing in advance, to a degree of certainty which may be unrealistic, whether you were going to use that motor car before it was damaged in the then future.

Yes, habits are relevant, and will allow a common law court easily, without any pause, to make findings on the balance of probabilities, but in our submission, the notion that one has to show on the balance of probabilities that there would have been a school run on Wednesday as opposed to I wish to have it available in case it is raining on Wednesday is, in our submission, the kind of fine factual distinction quite alien to the assessment of damages when the ownership or possession interest of a chattel has been infringed by negligence and the chattel is one which is owned for the purpose of being used.

Being owned for the purpose of being used means being available for use and, in our submission, the notion that, as it were, a garaged car that is not available for use is unmaintainable – untenable is the proposition – differences of course will emerge at the margin, extreme cases which are not useful to the adumbration of principle such as the car collector who would never dream of driving the prized Ferrari anywhere, let alone on a public road.

Now, that car, the use of which is display, it does not mean there will not be damages, general damages for loss of that use, but certainly it will be idle to talk about availability for use by way of driving. Those examples are not useful and that is why the notion of specific or unique feature, to which I will come in Justice Meagher’s reasons, distracts from the true inquiry. The true inquiry is what is the interest infringed. It is that feature, aspect or component of the ownership or possession interest of the motor vehicle which is constituted by its availability for use.

EDELMAN J: Mr Walker, when you talk about availability for use, it seems to me the paradigm example might be the Mediana where what was lost was the availability of use of a spare and the damages were calculated on the basis of replacement of - or the value of maintaining a spare. But is that any different from speaking of the convenience of having available or the desire to have available?

MR WALKER: It is different, but not in ways that, in our submission, point up any different route to be followed, let alone destination to be reached in terms of the principle. In particular, if inconvenience preserves rather more of its 18th century usage than it does perhaps in its broad use nowadays, such as in the phrase of “mere inconvenience”, then yes, the notion comes very close to what, in our submission, is inherent in the ownership or possession interest. That is, one owns a car - unless you are a collector of rare and undriveable Ferraris - in order to be able as you wish from time to time in a future which is never truly predictable to use by driving.

It is that convenience that renders your capital outgo or your periodical payment, to which I will be coming, the source of your ownership or possession which is of course the interest infringed by the damage to what I will call loosely your chattel. In that sense, any difference between availability and convenience disappears. The convenience is having the availability. The availability is convenient. Deprivation – destruction of the availability temporarily – is the inconvenience.

Now, there is another word that is found in the authorities, and unmistakably in the arguments, particularly below, and that is the word “need”. One needs, if you will forgive my use of the word in yet another sense, to put firmly to one side any notion of a need created by the wrongdoer such as informs the by no means unproblematic area covered by Griffiths v Kerkemeyer.

In our submission, that was, in effect, a wrong turning or distraction in Anthanasopoulos, for example, and is unnecessary for this Court to devote any analysis to, because the need, as talked about in the arguments here and reasons below, is a need that precedes the wrongdoing, that is, the need that is talked about as being common ground between the parties to be demonstrated by the plaintiff in order to obtain damages for loss of use is a need which is shown by what I will call a pattern of use in the past, with no reason sensibly to suppose that anything much different would occur in the future, or to put it another way, it is not so much the need – I will start again.

To put it another way, whatever one characterises the need as directed to, the evidence to prove its existence comes from the combination of how the car has been used in the past, so as to ground an inference as to how it would have been used, counterfactually, during repair period, and that same evidence is used even if one engineers, in an intellectual sense, the need as a need created by the wrongdoer, because, again, that is simply a need to have a replacement to enable you to have the use of the car, including the embedded availability to use, during the period when, in fact, the car is in the workshop.

It is for those reasons, in our submission, that the word “need” adds nothing to the principled analysis here. There has been something lost, and one of the many meanings of the word “need” is to describe a deficiency created by something having been lost. That is not, in our submission, a particularly helpful step of analysis, if it be analysis at all.

KIEFEL CJ: Mr Walker, on your approach to loss, being the availability to use the vehicle, do questions such as potentially loss of amenity or enjoyment, are they matters which would require special proof for additional loss to be shown? Is that how it would work on your ‑ ‑ ‑

MR WALKER: No, it is not additional loss. Because it is the loss of the use, in the shorthand, of the actual motor car damaged, it is everything that is inherent that motor car, the use of which has been lost, which will inform the assessment of damages. It is, in our submission, artificial and unnecessary to divide off as if it were a divisible feature or attribute of a motor car matters such as its reliability followed by its economy, followed by its comfort as to ride and as to physical seating, as to what I will call its accessories – showing my age, no doubt. All of those are matters which can, and as my learned friend I think was suggesting, are seen in the colourful brochures which, above all else, promise of course amenity and enjoyment.

But they are not sensibly in the eyes of the law hived off as individually measurable incremental additions to build up a total of what you have lost. One would not think, with respect, of suggesting that a defendant’s cheese pairing could say you could do without your stereo for two weeks. “I had a car with a stereo. You’ve deprived me of the use of that.”

In our submission, the fact that there could be a kind of social mockery that a person so precious as to acquire, in the sense of expressing a need for a radio in the car for the commute, is, in our submission, utterly inappropriate because it wrongly sees features and attributes which will strike different individuals differently, no doubt, because humans are all different, with respect to the desirability that all of them who owned that particular kind of motor car uniformly expressed by their purchase is quite wrong when there is a globalised homogenised state that they all sufficiently desired that kind of car to buy that kind of car. It is wrong for this Court.....subjective weighting by them.

EDELMAN J: Mr Walker, what do say about the result in the Souaid Case?

MR WALKER: We are certainly not bound to say it was right, and we do not. The critical matter in Souaid - you conveniently see it in Justice Emmett’s paragraph 137- was the factual finding, not capable of being challenged on appeal to the Supreme Court, that Mr Souaid was content with any car, as long as he had a car there “for my wife, the kids and stuff”.

That then led to the magistrate’s conclusion of the appropriate measure, the cost of hiring a replacement vehicle that was not equivalent to his damaged vehicle. There are some unspoken premises involved in that conclusion by the magistrate because obviously enough “any car” includes a car equivalent to the one of whose use he had been deprived. But any car has been, perhaps understandably, interpreted by the magistrate to say, “and of a far more basic and less desirable kind than the car I did in fact pay for in order to own or possess”.

It is for those reasons, in our submission, that in the absence of the kind of factual challenge, both at trial and, had it been available jurisdictionally on appeal, to an exploration of what the hapless Mr Souaid meant by saying “content with any car” there is nothing of any principled kind, constituted by the particular decision on those facts in Souaid, for the consideration of your Honours in the principle presented for argument today.

An exploration of what it means to say you are content with any car obviously triggers at least in a number of people dialogue such as, “What - any?”, and of course one could imagine, had that kind of thing been pursued, one would fairly rapidly find that there was a class of acceptability that did not extend to everything that could attract the appellation, “car”. So, it is a misuse of a particular outcome based upon some slightly, if I may use the word, idiosyncratic evidence in Souaid to insert it into the reasoning of principle in this case.

We have accepted that if a plaintiff were the kind of person who decides to replace, to use examples from these facts, a BMW temporarily with a Toyota of what I might call roughly comparable types, then presumably that is a plaintiff who will not present a bill for a BMW. That plaintiff will have chosen a Toyota replacement and it will be an odd case indeed, when, having presented the defendant a bill for a BMW, the plaintiff says, “But I did not actually prefer having a BMW. I was entirely content with a Toyota”. Those are the kinds of argument from extremes, if really quite odd scenarios in a forensic setting ‑ ‑ ‑

EDELMAN J: Although, I think Mr Gleeson’s submission was that actually that might even be the standard scenario in a credit hire case, where the credit hirer might say to the claimant, “What sort of car do you want?”, and the claimant says, “I am happy with a Corolla”, and the credit hirer says, “No, no, no, I can give you a BMW”.

MR WALKER: If and when that ever arises, factually, then that would no doubt give rise to matters of fact‑finding, and they may involve rather more serious matters. But there is not a shred of evidence of any such thing operating in these cases. Neither is there any issue before this Court concerning what I will call the business model of credit hire companies. This is a case bereft of that which has dominated much of the litigious battleground in the United Kingdom. We do not have the earlier effusions about champerty, we do not have problems about gratuitous provision, et cetera, et cetera.

GAGELER J: Mr Walker, can I ask, in principle, if your argument is correct, why could not a plaintiff hire a Toyota and send the bill for the BMW?

MR WALKER: Your Honour, in principle the bill for the BMW will not be obviously a cost incurred either by way of mitigation or as the measure of the loss of use of the damaged BMW, so that seen as special damage it is impossible to say the notional, not actual, hire for a BMW not actually hired could provide an assessment of damages. So it is not special damage.

In relation to general damage it is, in our submission, difficult on the authorities to see some critical distinction between general and special damages which would have the notional hire of an equivalent that you did not hire unavailable as special damages because you did not in fact incur it but nonetheless available by way of general damages.

But I have to say that in principle it would be wrong for the Court, particularly if rather more weighty chattels than motor cars ever come into question, it would be difficult, in our submission, to put to one side as general damages for loss of use how the market value’s use of such a chattel for a period and mostly, if not always, the market will value that, if a market exists at all, by reference to higher rates.

So that in such a case it is possible that what defendants might find unattractive, namely the plaintiff pocketing the money rather than spending it on a replaced use could exist, but that is the common law concerning such damages. You are given them for an infringed interest and how you spend the money is a matter for you.

Of course, general damages for loss of use have more traditionally, in our submission, in accordance with principle, reflected the fact that the availability of use is inherent to the ownership or possession interest which has been infringed by damage, by injury, and that you obtained that ownership or possession interest by either the payment of a capital sum upfront, for which traditionally and for good reason, and subject.....factual demonstration to the contrary, an appropriate recompense is the so‑called time value of money, the borrowing cost or foregone investment return, that we conveniently bundled into the notion of “interest”.

Where there is a loose finance, where possession is gained by the payment of the periodic payment, then it would be very difficult to understand why, as a matter of general damages, for the two months off the road, the defendant should not be bearing the cost of the lease finance which has been paid in order to enjoy the possession which has the availability for use, as either the or a main purpose.

In our submission, one of the weaknesses in our friend’s approach, overcomplicated as we submit it is, is that it does not deal with the straightforward proposition that somebody who pays several thousand dollars a month to possess and use a motor car ought to be compensated in full for the payment of those sums to obtain the possession for the purpose of use, while use is being denied by reason of the defendant’s wrongdoing.

That, of course, is payment which is set by yet another financial entity, namely, the providers of leased finance for their return, no doubt, in a market which is competitive. It could hardly be said that the common law would step in and say you are paying too much for your leased finance, or it would have been better if you bought it outright, upfront, et cetera, et cetera. It is the particular motor car, and the particular expense which, entirely reasonably, that is, according to behaviour in a lawfully proper market, will have produced that monthly outgo for no possession and use during the two months off the road.

Nothing in the authorities, and in the two, nothing in principle, has suggested that a wrongdoer should be able to moderate that by saying you should not have been paying loose finance that expensively, because that was for what is called, deprecatingly, a prestige vehicle rather than a plain, vanilla vehicle. That, in our submission, is a mode of thinking alien to the common law’s respectful and, indeed, encouragement of lawful markets. Is that a convenient time, your Honours?

KIEFEL CJ: Yes, thank you, Mr Walker. The Court will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please the Court. May I return to completing an answer to Justice Gageler. The issue of the availability of general damages alongside special damages has been considered in some of the judicial observations about such cases. For example, in Lord Hope’s paragraph 27 of Lagden v O’Connor [2003] EWCA Civ 927; [2004] 1 AC 1067 at 1077 to 1078. That is the paragraph that ends with “the equivalent”

At the beginning of that paragraph, his Lordship noted that it was open to a plaintiff claiming for the loss of use of the car to avoid or mitigate that loss by hiring another vehicle while his own car was unavailable to him, the expense becoming the measure of the loss, and then it will be substituted for his claim for loss of use by way of general damages.

What his Lordship did not have before him there, and what we do not have before us here, is a case of what might be called partial replacement. Replacement could be partial in what might be called the temporal sense, and also in what I call a substantive sense. By temporal sense, I mean there was a replacement got for part of the period during which the plaintiff was deprived of the use of the damaged car and, in our submission, there would be nothing contrary to principle or authority in such a case for there to be claim for that period sans replacement for general damages including by the conventional, if not inevitable, measure of the time value of the capital spent to have a car available for use or the periodic payment to obtain its possession.

But if there is only a partial replacement in what I might call a substantive sense, that is, a means of transport is obtained but it does not have features that render it what on the authorities would be a reasonable equivalent, then it may be supposed that the common law’s regard for market valuation and the multifarious ways in which the participants in a market produce market value by valuing different features differently but producing something in the nature of the wisdom of the crowd, then you will have the capacity to say, for example, that the damaged car was what might be called a $100,000 vehicle and the replacement car is a $30,000 vehicle, in which case it may well be, drawing for inspiration on what might be called the robust and commercial approach seen in the earlier Admiralty Cases, that one might see that there is in such a case a 30 per cent equivalence only, whereby 70 per cent of general damages by reference to the time value of the money or the periodic payment would be an appropriate supplement by way of general damages.

But it is to be recalled, if that ever arises – it does not arise in this case – that would need to deal with the observation by Lord Hope that the election, as it were, is made between special damages, expenditure incurred for hiring a replacement, be it modest or otherwise, or in place of general damages which will very often be, as I say, a reference to the time value of the capital which was spent in order to achieve the availability for use of that particular vehicle. The facts of our cases do not provide much of a setting for those problems to be perhaps other than stated.

Your Honours, our learned friend, in both written submissions and in address has called in aid some authorities, chiefly English and Welsh. I do not want to respond beyond what has already been written about them in our written submissions, except for a couple of observations. The first is that, as your Honours appreciate, in the speech of Lord Hoffmann in Dimond v Lovell [2002] 1 AC 400, at 400G to H, there is an untroubled acceptance, with respect, by his Lordship that a germane question was to examine the state of affairs concerning the hire of a car similar to the damaged Ford Mondeo.

That is at odds with there being an inappropriateness, by reason of some so‑called idiosyncratic or merely personal preference, in looking to what the market understands to be a description of a fair equivalency. Similarly, Lord Hope in Lagden v O’Connor [2003] EWCA Civ 927; [2004] 1 AC 1067 in paragraph 27, as your Honours well appreciate, had little doubt in simply robustly using the word “equivalent”.

Now, obviously enough, there will be problems, not thrown up in these cases, according to what might be called marginal cases in future. The replacement of a perfectly operating but relatively elderly motor car, where a comparison of capital value, depreciated value of the damaged motor car, and the purchase price of the hire car might prove quite bizarre in terms of supposed substitutability. But those are problems that can and should depend upon factual consideration of a perfectly ordinary, straightforward, common law kind, governed by the notion of reasonableness and the notion that there ought to be degrees of approximation when the common law contemplates the notion of a so‑called equivalent.

That, after all, all falls within the rubric of reasonable foreseeability. It is reasonably foreseeable that if you innocently collide with a person damaging their five-year-old motor car which is sensible to repair, then there may need to be some approximation, some give and take in working out the reasonable hire rate of the reasonable kind of car to replace that vehicle temporarily.

It is for those reasons that, in our submission, to speak as your Honours have read of parties in our position seeking to promulgate some axiom concerning similarity of models is really to set up a strawman. Common law assessment of damages using resort at several junctures to standards of reasonableness does not lend itself at all to the notion of axioms and we do not embrace it.

Your Honours, in this regard as well, our learned friend, in answer to a question by your Honour Justice Edelman, ventured we think an explanation that there might be a difference between the measure of damages to compensate for damage, in this case loss of use of a motor car, depending whether the cause of action for which damages are available as a remedy be unintentional, as in negligence, or intentional, as in trespass to goods.

In our submission, the compensatory principle for what I am going to call damages in the general sense cannot possibly alter as between the antecedent wrong, the adjudication of which produces the same relief, namely compensatory damages. Of course, as I think with respect our learned friend noted, there is room for a different overall remedy, bearing in mind either aggravated or exemplary damages which may well be more readily contemplated in particular cases in the case of intentional torts as opposed to negligence. But in our submission in principle they would have to be the same.

Your Honours, proposition 4 of our learned friend’s outline, where our learned friend started with respect to what might be called the common ground and to be seen in the leading treatises, is one which in our submission is at odds with the project advanced by the appellants.

The diminution in the value of the chattel is the diminution in what the market would give for the chattel ex hypothesi knowing of the damage. That would depend on whether it is repairable damage or not. That diminution is of course a diminution below that which the market accorded to that chattel before the damage, whether it had been purchased by the plaintiff or given to the plaintiff by an indulgent father. It had a value set by the market according to its features which may have something as depreciable, according to the appellants, as leather upholstery or as essential as a boot with a lid, so from one end of the spectrum to the other in terms of what might be called a spartan approach to the functionality of a motor car.

No one suggests that if damaged or destroyed, and the primary measure of diminution in value is to be looked to as the measure of damages, that there ought to be a cap set by reference to a common law ‑ and I stress “a common law” as opposed to legislated disapproval of what might be called extravagant expenditure on particularly fine motor cars - I stress where it is the judgment of the market rather than the idiosyncratic choice or preference of an individual that accords value to the car pre‑damage and assigns a diminution, if there be any, following damage. That is not idiosyncratic. That is how the market sees the matter.

Similarly, if one turns to the matters which our learned friend advances as proposition 5 then, in our submission, it would be inappropriate for this Court to pay regard, as a matter of common law principle, to the notion of what my learned friend called a scale, to which resort has been had apparently particularly in the inferior courts in England and Wales.

That may be nothing other than a perfectly sensibly applied professional conspiracy to save litigation costs by taking a sensible approach to what is likely to be the outcome to factual inquiries that really do not need to be tediously repeated in “crash and bash” litigation.

Putting that to one side, there is, in our submission, no scope for the Australian common law to promulgate, as it were, a scale. However, the common law in Australia can, and does, with respect, accord as damages to compensate for the damage that has been kept from the available use of a damaged chattel, as I say, the time value of the acquisition cost, taking into account depreciation or, of course, in a leased case the hire being paid while the chattel cannot be used.

In all of those cases it is the actual chattel in all its glory, be it highly regarded by the market or not, that is in question, and again it has nothing to do with the idiosyncrasies of the personal preferences of the plaintiff, it will be the market that will have required the price to be paid by way of upfront capital or the market that will require the lease payments to be set at a particular level, usually by reference to the wholesale capital price.

It is for those reasons, in our submission, that there is a yawning gap between the approach, perfectly conventional, that the defendant cannot, as it were, obtain a discount by complaining about the extravagance of a plaintiff’s life choices, on the one hand, when there is no replacement hired, and then the notion that when a replacement is hired there should be a cap imposed by reference to the features, accessories, optioning and desirability according to the market of the vehicle in question.

Your Honours, in relation to proposition 6(c) advanced by our learned friends, the proposition was explained this morning as answering an argument on our part for what might be called a step to be taken, as our learned friend put it, in Australian jurisprudence. There is no step, in our submission, to be perceived in the reasons either of Justice Meagher on the one hand or of the majority in the court below. There did not seem to be any perception that there was virgin territory being conquered with respect to the principles for the common law concerning the assessment of damages.

They were general principles, if not starting certainly finding early and authoritative voice in the Greta Holme, which were called in aid. It is for those reasons, in our submission, that there is nothing in the attribution to us in proposition 6(c) of a claim to compensate for what is called there “idiosyncratic, non‑pecuniary disappointments” where the interest – the scope of duty as it is put in 6(c) – is said not to “extend to protect subjective preferences”.

Now, for the reasons I have already put, that is not at all how a market value approach which treats equivalent vehicles, roughly equivalent in value, would operate. But neither, in our submission, is it proper on the facts of our cases to say, as is said in 6(c), that there are here some subjective preferences that I think translates to what does the plaintiff want which are said to be divorced from the likely use of the damaged chattel.

Now, there is, in our submission, no divorce shown by any of the cases that succeeded below. There was, ultimately, an acceptance that the evidence was such as to render reasonable the hire of the kind of replacement vehicle which was hired, and there was, as your Honours know, no evidentiary tussle concerning the reasonableness of the market rates which were claimed in that regard.

It is for those reasons, in our submission, that your Honours ought to reject the notion that there is some step being taken to have the common law value as if it was a strange notion, the cost of meeting a loss caused by the defendant given the plaintiff’s position. Now, the plaintiff’s position here is the owner or possessor of a motor vehicle with an assignable set of features and accordingly value, and, in our submission, it is wrong to propose that there is some alien element of idiosyncratic preference being introduced.

Your Honours have observed in the written submissions and in our friend’s outline proposition 7 the attachment of the epithet “conceptual” to an alternative way of thinking about the matter. Of course, if you will forgive me, everything is conceptual at this level of argument and consideration of common law principle. But, as we understand it, that is a label which is particularly designed to introduce the notion from Griffiths v Kerkemeyer which we submit is quite alien here.

I do not want to repeat what I have already said about the different meaning of the expression “need” and the fact that all of them come back to the same proposition, it is the loss of the availability to use the motor car, tersely and appropriately called the loss of use, which is in question. None of that, in our submission, calls for conceptualisation differently from the orthodox approach that was employed below.

Your Honours, as to the notion that one should see the proper approach being taken in Watson Norie, in our submission, a proper understanding of that case ‑ I do not want to add to it, the way in which it has been dealt with in the reasons below, including Justice Basten’s – the proper approach to that case is to appreciate that factually that was a case where pricing of the rapidly obtained so‑called replacements did not involve even elementary precautions of finding out what else was available and at what prices. It is a case that failed factually in a number of different levels of reasonableness inquiry. It does not, in our submission, provide by reason of the obiter remarks of their Lordships concerning different qualities of motor car anything that stands as a matter of principle.

Your Honours, entailed in what I have said in answer to our friend’s address this morning includes everything I wanted to say about proposition 1, as I said, but also proposition 2 and proposition 3. Can I in relation to proposition 3, this notion of a normative judgment that says there comes a certain point in the market desirability of a motor car damaged and, hence, the putative replacement motor car that the common law regards it as unreasonable that there be replacement of the damaged car by something near equivalent.

It is inseparable, in our submission, from that notion that there is a common law judgment that something is unreasonable about the conduct, the choice or freedom, which has been exercised to spend money or to own the market desirable vehicle in question. That, as I have said before, is alien to a regard of the common law for judgments of the market.

But it evoked, as we understand it – and I apologise if I have misunderstood this – a notion that our learned friend dubbed a “ranking of interests”, and, in our submission, that is not a useful way to analyse what ought to be a plain and straightforward approach to the assessment of damages by means, obviously, of the proper identification of the damage or loss in question.

There is no ranking of interests. In our submission, as soon as one accepts, as we do, and the courts have, that the interests in question are interests the infringement of which is regarded by the law as causing a position of loss on the part of the plaintiff. Now, whether it be loss which can be compensated by a relatively modest sum or only by an enormous sum is a matter of fact varying between different cases having no moment for the enunciation of principle.

But once one accepts that the interests in question are those which the law contemplates as upon infringement producing a loss, then, in our submission, there can be no useful concept of any ranking. Or, to put it another way, if there be an interest infringed by the tort about which the law does not care then, obviously, there will be no justiciable loss and no damages because no damage.

That then confronts the court with what might be entailed in our learned friend’s argument, namely, that somehow or other the common law regards the loss of use, or the loss of the availability for use, of a motor vehicle as an interest which, upon infringement, will produce a loss for which damages can be paid up to a certain level of market desirability of the car in question and not beyond that.

That, of course, your Honours, is the hallmark of legislation, and if I may say so, with great respect, beyond judicial legislative capacity. That is the hallmark of the capping of damages for reasons that no doubt will produce, would produce, social and political controversy if attempted. We are familiar with it in other fields, including personal injuries. It has, in our submission, no place whatever in common law.

I have also covered proposition 4, about which I do not need or want to add any more. In proposition 5, the particular point that we would wish to emphasise, I hope without repetition, is that the reasonableness inquiry no doubt can be engaged throughout the process of assessing the plaintiff’s claim, and that is a proposition that is separate from and unaffected by notions of allocation of onus, including the shift of an evidentiary burden, or even the allocation of a legal burden on a defendant with respect to certain aspects of failure to mitigate.

In proposition 5 we accept that of course it is through the common law prism of reasonableness that what I am going to call the equivalence issue falls to be determined, but that Justice Emmett was correct, with respect, in proposing as a simple approach, drawing upon the operation of markets for mass‑produced motor cars, that the reasonableness of asking for a motor vehicle no better than the one you have been deprived of temporarily, speaks for itself, and that is a familiar approach to what might be called the discharge of a prima facie burden.

Then, of course, there is a question which does not present to this Court with facts that make it critical for these cases but a question always as to the reasonableness of the costs of the hire, sometimes the period of the hire, that the plaintiff claims by way of damages for the damage constituted by the loss of use of the damaged car. That, again, will familiarly involve examination of market behaviour, shopping around for quotes is a colloquial way of putting it, and obviously there will be no great tenderness shown for a defendant who captiously requires formal complex or onerous tendering processes for something as modest as replacing your family sedan for a month or so.

But those are, in our submission, all plainly, and in accordance with entirely conventional approach to common law principle of damages, dealt with simply by requiring there to be reasonableness. This is not a case that raises for examination what might be an open question when such a case arises, namely, whether the defendant is entitled to insist on the lowest price in the range of reasonable prices for the rent of an appropriate vehicle, that is for another day.

In our submission, for what it is worth, the simple question is whether the cost actually incurred was reasonable. If so, it is simply not to the point, but with the luxury of hindsight and long after the period of repair has passed the defendant can point to some other trader who may have done a keener deal to rent out a replacement.

As to proposition 6, I hope we can avoid the accusation of trying to avoid a difficult doctrinal question. There is, undoubtedly, a convergence through the mechanism of the standard of reasonableness being applied in the way we have just argued in relation to proposition 5 when one considers the operation of markets such as are in operation in this case. Yes, there are onus differences, but these are not cases which provide the occasion for your Honours to observe any difference of outcome, depending upon allocation of onus. This, with great respect, is not a forum in which, as it were, advisory opinions can be given to those who appear for defendants in the future.

I have already dealt with everything I wanted to say in elaboration of proposition 7 by responding to our learned friend’s argument about the conceptual approach. Then if I may very briefly, and without rehearsing what we have already written, note the way in which we would characterise, with respect, that which fell from their Honours below.

The notion that under the rubric of practical inconvenience some basic functionality, which is utterly disconnected from the comfort, performance, features of the damaged vehicle, preferring something which becomes simply – as Justice Meagher appears at one point to suggest – a mode of motorised conveyance, that, in our submission, is rejected for reasons that neither of their Honours regarded as involving any pioneering jurisprudence

In our submission, it is probably of vanishing significance, or diminishing significance, for there to be continued dispositions upon the development of case law in England and Wales on this point. In our submission, it is better to go by the straightforwardly and principled approach of Justice Emmett, agreed in by Justice White, subject to the qualifications that Justice White then, with respect, occasionally expresses.

Could I conclude by reminding your Honours in the reasons under review of the approach that one sees, even in Justice Meagher, that your Honours are familiar with and have been taken to today, to his Honour’s paragraphs 20 and 21. I have just touched upon our criticisms, with great respect, of paragraph 20. In paragraph 21, it is significant that his Honour contemplates not as something that the law would never countenance but rather as something that the facts did not throw up on these cases what he calls:

a specific, and perhaps unique, characteristic or feature –

Now, it might be that his Honour had in mind simply what might be called the backwards ambition of somebody with a very specially optioned four‑wheel drive, a problem that will have to be dealt with probably by a magistrate when it arises, if it ever does arise.

But that, in our submission, cannot possibly be what I would call a common law category, namely, fully optioned four‑wheel drives: does it have a winch, does it have a snorkel, et cetera. All motor cars have characteristics or features. They may have it in common with every other motor car produced in that run. They may have it in common with rival motor cars produced by other marks. In our submission, they are all inherent in the item for which money has been paid and the use of which has been taken from a plaintiff by the defendant’s wrong.

In paragraph 21, Justice Meagher seems to contemplate, furthermore, that there might be a case in which the owner’s pleasure to drive on social occasions so as to enjoy an exceptional experience of what is called a prestigious car could arise, again, not as one that his Honour is saying the law would not countenance as worthy of compensation but, rather, not a case that resembled the facts of these very much humbler positions.

In our submission, paragraph 21 therefore contains, with respect, a slide away from anything in the nature of a principle that could be justified on the basis that prima facie every plaintiff in cases like this must start with a.....supplied by the most basic of wheeled motorised conveyance to be built up only by references to highly subjective consideration of the vehicle, the use of which has been missed.

We do not have to worry about highly subjective consideration because the price paid, or the market value of the vehicle obtained by ownership or leasing, is one which, as it were, encapsulates and combines the desirability of that vehicle with all its features, no doubt variously appreciated by all the different owners and possessors of such cars in such a way, in our submission, as to satisfyingly remove this spectre that our learned friends have raised of the law of damages being subject in some
captious or arbitrary fashion, to the expression of.....preferences for which one should really read, insofar as the force of the appellant’s argument is concerned, preferences which the common law ought frown on as being outside the realms of reasonable conduct.

That, in a nutshell, in our submission, your Honours, is why the appeals ought to be dismissed. May it please the Court.

KIEFEL CJ: Yes, thank you, Mr Walker. Do you wish to reply, Mr Gleeson?

MR GLEESON: Yes, your Honours. Could I concentrate our reply around six points. The first is that you have not received from Mr Walker a full‑blooded defence of Justice White’s approach in paragraph 69 or a reconciliation of that approach with Justice Emmett at paragraph 120, and we would submit the issue in the appeal is essentially Justice Emmett at paragraph 120 against Justice Meagher at paragraphs 20 to 21.

The second proposition is if your Honours go to paragraph 120 of Justice Emmett, perhaps the central – not the only, but the central – difference between the parties is the level of abstraction at which one identifies the position of the claimant prior to the wrong to which he or she is to be restored.

Your Honour the Chief Justice asked Mr Walker to identify as precisely as he could what is the interest which is infringed and he said the interest was the loss of the availability for use of the damaged vehicle during the repair period, and that is what he said paragraph 120 reduces to.

Our response to that is that that identification of the interest is too abstract in general for the purposes of the tort and it does not grapple with the differences between general and special damages, assuming the Court preserves the traditional distinction.

What I mean by that is that if one is in the field of general damages, simply to say that I have lost the availability to use the vehicle as and when desired during the repair period, may well entitle you to some damages in the jury assessment but will not get you the cost and hire of the equivalent vehicle, absent some further inquiry into the likely specific uses during the repair period, and that is the reason why, as Justice Meagher indicated at paragraphs 4 and 5, at least in England, the general damages tend to be relatively modest amounts.

However, if we are in the field of special damages as per the present case, and if one is to use the language of availability, Mr Walker’s language, we respectfully submit that the interest should be defined more precisely as the loss of the availability of the vehicle for the suite of purposes or uses for which it was likely to be put during the repair period.

That description, which is less abstract to Mr Walker, it is more grounded in the real world and more grounded in the purposes of the tort, simply requires one to look at availability by reference to the suite of likely uses.

Now, that adequately captures his point that one may not know with complete assurance in advance whether on Wednesday the car will be used to take the children to school or to go to the shops, the range of purposes can be identified as a suite, but when one comes to special damages and the reasonable hire of a replacement we would submit it is the availability for that suite of purposes which ought to ground the exercise, and that is a central difference between the parties.

Your Honours, the third point is in terms of fungibles, which is Justice Emmett, paragraphs 121 to 123. Mr Walker did not ask you to introduce Roman law into the common law in its full glory. He said that he does not need to tie himself to the mast of fungibles, if I may mix metaphors, but if it is an unhelpful excursion by his Honour it does not matter to the principle.

We would submit it does matter for the reason that is in paragraph 122 in the third sentence ‑ which I am not sure Mr Walker addressed ‑ which is Justice Emmett has recognised that if it is a non‑fungible, whatever that is:

it may be necessary to have regard to the function of the particular vehicle and the particular use to which that vehicle would have been put during the period of repair.

Our proposition is that regard to those matters, that is, function and particular use, is necessary and central to special damages, irrespective of whether the vehicle is a fungible or a non‑fungible, and that is a central difference between the parties.

Your Honours, there are two final points. The first is in terms of lease payments. Mr Walker asserted that where the innocent party has a pre‑existing and continuing obligation to make lease payments on the vehicle, and during the period of repair is deprived of the benefit of those payments, the law would inevitably recognise those payments as a head of special damage.

To our researches, that proposition has not been definitively adopted in England or Australia. Lord Herschell in the Greta Holme, volume 4 at page 343, expressed some support for that proposition in one line of obiter. It may or may not be correct. It will raise a question very different to this case, which is whether the choice to incur those lease payments prior to the wrong is to be something attributed to the negligent wrongdoer or to be left as a matter of choice, which is not compensated in the tort. Whatever the answer to that question, we submit it does not govern by analogy in this case.

Your Honours, could I come to the final point, which is whether Mr Souaid’s result can be left as just a possible aberration, and related to that, whether Mr Walker’s reference to the market adequately deals without complaint about idiosyncratic and subjective notions of preference. If your Honours could go back to paragraph 137 of Justice Emmett, the reason Mr Souaid lost was because he said he:

was content with any car, just as long as he had a car there “for my wife, for the kids and stuff”.

The actual findings of the Local Court which are there summarised are found at volume 4, page 393 – perhaps 392 of volume 4. They are the findings. Now, Justice Emmett has said for a person who has that degree of contentment they do not get the cost of hire of the replacement. If one tries to settle that, to match that, back to paragraph 120, which is the principle, a very real difficulty emerges because in paragraph 120 after the emphasised words, his Honour says:

On the other hand, where the claimant can demonstrate that the damaged vehicle would have been used, the need is for a replacement for that damaged vehicle -

and, therefore, you must get axiomatically the equivalent vehicle or one as close as possible.

Now, Mr Souaid passed that test. He demonstrated the need for a replacement vehicle for a range of purposes and yet he did not get the equivalent. The only reason it seems he did not get the equivalent is because in paragraph 137 he expressed his contentment with a broader range of cars. So it is very difficult to see at that point that Mr Walker’s principle is about the market, it is about whether a person expresses or not the state of contentment that Mr Souaid did.

If you compare that with, for instance, Mr Rixon who succeeded – he is paragraph 135 – at the top of that page Justice Emmett said:

The magistrate was not satisfied that Mr Rixon had “a particular need” for a vehicle similar . . . That entailed an error of law on the

part of the magistrate in so far as it entailed a conclusion that a desire to use an equivalent vehicle while the damaged vehicle was being repaired –

I think a word is missing there, I think it should be “meant”:

that Mr Rixon was not entitled to –

restitutio. So if one compares 135 to 137 it seems that it is an expressed desire by Mr Rixon as compared to a broader contentment by Mr Souaid which has driven the different results in the cases, and yet from paragraph 120 it should not have mattered. It is for that reason, we submit, that the approach of Justice Meagher at paragraphs 20 to 21 is preferable in principle.

Unless your Honours had questions, they are our submissions in reply. Thank you.

KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for the pronouncement of orders and otherwise to 9.45 am.

AT 3.03 PM THE MATTER WAS ADJOURNED