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Duncan v City of Edinburgh Council - Edinburgh Sheriff Court, 6th November 2009


In a Summary Cause action, the Pursuer claimed damages following an incident in which his parked vehicle was struck and damaged by a vehicle driven by the Defender's employee. It was not disputed that the Pursuer needed a replacement vehicle. He hired a vehicle for 19 days at a cost of just under £5,000. Although prepared to pay the cost of repairing the Pursuer's vehicle, the Defender disputed liability to pay the cost of an engineer's report and also part of the hire charges incurred by the Pursuer. The Sheriff took the view that the cost of the engineer's report was incidental to the cost of repairs and was a way of making sure that the repair costs were reasonable. It was common practice to obtain such a report and reasonably foreseeable that this cost would be incurred in mitigation of damages. On that basis it was recoverable. As regards the cost of hire, the Defender referred to the case of Lagden v O'Connor and argued that the Pursuer was not entitled to recover the full credit hire charges as far as these exceeded spot hire Rates.The Defender had obtained an alternative quote for the cost of hire for 19 days and this was just over £1,500. The Defender argued that it was for the Pursuer to show that he had been justified in hiring a replacement vehicle. The Sheriff pointed out, however, that the decision in Lagden v O'Connor made clear that if the Defender wished to argue that the Pursuer could have mitigated his loss more cheaply,the onus was on the Defender to establish this. In addition, it was for the Defender to show that the Pursuer had acted unreasonably. In this case, the Pursuer had already mitigated his loss considerably before hiring the vehicle. He did not hire a replacement vehicle until 28 days after the accident. He waited until his own vehicle was taken for repair, rather than hiring a replacement straight away. The Sheriff was of the view that the Pursuer had acted reasonably in relation to the replacement of a vehicle. He had been guided by his insurance company and they had referred him to the credit hire company he had used. The Sheriff did not think that the Pursuer was obliged to carry out a wide search to find an alternative hire company. In addition, he required a specialist vehicle with a tow hook. Under the circumstances, the Pursuer was entitled to recover the hire charges in full.