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 wrongdoer's insurer.
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 [2011] 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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