The plaintiff's vehicle sustained damage totalling
$29,091.67 as a result of the defendant's negligent driving,
and brought a proceeding in the Magistrates' Court for that
amount. The plaintiff's repairer had carried out repairs to the
vehicle without written approval from the plaintiff, and was
prevented from recovering any sum by the Accident Towing
Services Act 2007 (Vic) (the Act). The
Magistrate therefore disallowed the plaintiff's claim for the
repair costs on the basis that the plaintiff had suffered no loss
in relation to them. He was not required to pay the repairer.
On appeal to the Victorian Supreme Court the plaintiff was
awarded the repair costs. The defendant then appealed to the Court
of Appeal. He relied on the general principle of compensation and
submitted that the plaintiff was entitled to receive the amount
which would put him in the same position as he would have been,
were in not for the collision. The defendant argued that the
plaintiff could not recover more than he had lost, and that the
cost he had incurred in repairing his vehicle was nil.
The Court of Appeal referred to numerous cases in which courts
had ignored a variety of benefits in assessing damages. The Court
referred to the leading case of Bradburn v Great Western
Railway Co (1874) where the plaintiff was awarded damages over
and above the payment of an insurance policy. Another example was
where Courts had disregarded the receipt of invalid pensions in
awarding damages for personal injuries.
The Court of Appeal considered that the legislature must have
understood that the effect of the Act, would in many cases, be that
the owner of the damaged vehicle would receive a windfall. Its view
was that the benefit of the legislation was intended to be directed
to the owner of the vehicle and not to the wrongdoer or the
In dismissing the appeal, the Court held that the principle of
compensation, that the plaintiff could not recover more than he had
lost, was trumped by the intent of the legislation. The provisions
of the Act were not intended to confer any benefit on the
defendant. On the contrary, the provisions were intended as a
penalty to be levied against the repairer for failing to obtain
authority for its work.
Saric v Tehan  VSCA 421
Current judicial thinking seems to be that a person found liable
for causing damage is a wrongdoer who should be punished and whose
liability should not be reduced just because the plaintiff has not
actually suffered a financial loss.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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