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Bent v Highways & Utilities Construction Ltd (1) & Allianz Insurance Plc (2), Court of Appeal, 18 March 2010

1 April 2010
The issues

Credit hire – spot rates – comparable replacement car – Aston Martin DB9.

The facts

In February 2007 Darren Bent, a footballer, had an accident when he was driving his Mercedes V12 car, valued at £72,000.00. The accident was not his fault. The Defendant accepted liability. Mr Bent had another car, a 4×4 left hand drive Cadillac, which he did not want to use. The Judge at first instance accepted the Claimant’s reasons for not wanting to use it. There was no Appeal on this point. Mr Bent hired an Aston Martin DB9 worth about £105,000.00 provided by a credit hire company called Accident Exchange Ltd. The credit hire charges amounted to £63,406.90. The Defendant argued that the Aston Martin was more expensive than Mr Bent’s own car and therefore more likely to be more costly to hire and that in any event Mr Bent should have mitigated by hiring from the “spot” market which would have been cheaper rather than by taking out a credit hire agreement. The Judge rejected both arguments.

The Defendant Appealed.

The decision

The authorities established that in the case of a person who was not impecunious damages that were to be awarded should normally be assessed at spot hire rates, the rates at which a broadly similar car could be had on the market. The Judge had not attempted to assess the spot hire rate because he had said that the Court had to deal with a very specialised market – top of the range powerful sports cars. The Judge had not accepted that there was proper evidence before him as to what the spot rate was at the material time in February 2007. Although the Defendant had provided a considerable amount of evidence, none of it had dealt with the real issue which was what was the cost of hiring a Mercedes or an Aston Martin of the type he had hired on a daily rate (because nobody knew it was going to last for 94 days) as at February 2007.

The Judge was in error. His reasoning was that evidence of the position at a later date than that of the hire was irrelevant. That was wrong. Very often when assessing valuation evidence in all sorts of fields, there was evidence of price of the same or similar thing at different dates and adjustments had to be made. Working with comparables and making adjustments was the daily diet of Judges concerned with valuation in all sorts of field. Evidence of the spot rate a year or so later than the relevant date was likely to throw considerable light on what the spot rate would have been at the time.

The Court should not be hypnotised by a supposed need to find an exact spot rate from an almost exactly comparable car. Normally the replacement need be no more than the same broad range of quality and nature as the damaged car. There might be a bracket of spot rates for cars rather better and rather worse and the Judge who considered that bracket and aimed for some sort of average would not be going wrong.

Appeal allowed. Matter remitted for a re-Trial.

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