Shaun Clark v. The City of Edinburgh Council [2010] CSOH 144

In November 2007, the pursuer's Toyota Celic motor vehicle was damaged by a City of Edinburgh Council refuse collection vehicle, whilst parked outside the pursuer's workplace. The pursuer had recently purchased his vehicle for the sum of £1,700. On 10 March 2008 the defenders' insurers wrote to the pursuer acknowledging liability and subsequently settled the pursuer's claim for damage to the vehicle at the sum of £1,400.

The pursuer had engaged the services of Accident Exchange Limited, a company who provide replacement vehicles, on a credit basis, to individuals whose own vehicles require repair as a consequence of a road accident for which they were not responsible. It was heard in court that their daily rates tend to be grossly in excess of normal spot hire rates for replacement vehicles. Accident Exchange Limited provided the pursuer with a Honda Civic 2 litre VTEC Type R GT motor car with 900 miles on its odometer. The court heard that such a vehicle would have had a purchase price of around £18,000 and was described as a sports or sports coupe and the top of the range model. Accident Exchange Limited charged the pursuer £12,857.13 for the use of this replacement vehicle. In the action the pursuer sought payment of this sum from the defenders.

The defenders contested the claim on the basis that no car hire had been necessary at all, failing which it was unreasonable to expect the defenders to meet the cost of the particular type of motor car hired. They also contended that the period of hire was unnecessarily long. It was accordingly submitted that the pursuer had made no attempt to mitigate his loss.

Having heard evidence and submissions, the Lord Ordinary concluded that it was plain the pursuer had given no thought to the question of whether he had a duty to mitigate his loss by selection of one type of car over another. The Lord Ordinary also did not accept that the vehicle which was provided to the pursuer by Accident Exchange ought to be seen as an equivalent to the pursuer's own damaged car or that it fell into the same broad range of quality and nature as the damaged car. The Lord Ordinary noted that the pursuer was provided with a vehicle which was greatly superior in every sense to his own, and that the pursuer ought reasonably to have been able to hire a suitable replacement at a much lower daily rate than that claimed for. The Lord Ordinary accordingly awarded the pursuer the cost of fifty days hire at the spot rate of £39 per day, giving a total of £1,950 decree.