There can be many issues involved when dealing with hire claims. Some problems could be avoided and many claims could be dealt with extra-judicially if more detailed consideration was given to certain aspects of these claims at an earlier stage.
Frequently, the level of hire charges claimed is considered to be excessive and cases are litigated in order to determine this point. This is especially true when the claimant was driving a relatively expensive car which was damaged in the accident and where he has hired a similar model.
A hire charge claim could be considered excessive for many reasons. The list below is not exhaustive, but the following issues could be addressed when a hire claim is intimated to you:
- Was the hire car of a similar type to the vehicle involved in the collision?
- Does the period of hire equate to the time taken for the vehicle to be repaired?
- Did the Pursuer obtain alternative estimates from other hire companies?
Type of Car
The claimant is entitled to hire a similar car to the one which has been damaged. Therefore, if you are faced with hire charges whereby the claimant has hired an Audi TT when he or she had been driving a Fiat Punto, you could object to the hire charge. The idea is for the claimant to be put back into the position that he or she was in prior to the accident - not for him or her to benefit from having had an accident. You should compare the car which is being repaired to the hire car. If, for example, the specifications of the vehicles are similar, it is unlikely you will be able to object to the hire charge on this basis.
Period of Hire
You should always request sight of the vehicle repair documentation in order to determine the time taken for the damaged vehicle to be repaired. Thereafter, you should check this with the period of hire. For example, if the claimant’s vehicle has been available for collection and the hire does not cease after a reasonable period following that date then it could be argued that any additional hire costs should not have been incurred and as a result should be borne by the claimant.
Alternative Estimates
A claimant has a duty to mitigate any loss which he or she suffers. However, the courts do not require the claimant to “shop around” extensively for the cheapest alternative hire vehicle. (Clark v Ardington [2002] EWCA Civ 510). The Clark case is an English decision and, therefore, the courts in Scotland are not bound to adhere to it. However, the decision would be persuasive. On the basis of this case, to argue successfully that there was a failure on the part of the claimant to mitigate his loss, you would require to show that it would not have been reasonable for the claimant to use the hire company he or she chose. To do so, you would require to prove that another hire company in the area would have been able to provide the claimant with a vehicle at a lesser cost at that time. It is therefore necessary to investigate the rate of hire as soon as the claim is intimated in order to avoid problems in the future obtaining this information retrospectively.
Hopefully, if the above considerations are taken into account when a hire claim is intimated, such claims could be dealt with extra-judicially and savings made in terms of expenses.
Contact
Karina McShane
(Information posted in September 2006 and may not have been updated at time of reading).