Case No: B2/2012/2887
Neutral Citation Number: [2013] EWCA Civ 1299
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EDMONTON COUNTY COURT
(HIS HONOUR JUDGE MAY QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 5th July 2013

Before:

LORD JUSTICE PATTEN
LORD JUSTICE McCOMBE
and
LORD JUSTICE BEATSON

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Between:

	OPOKU
	
Appellant	
	- and -		
	
TINTAS	

Respondent	
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(DAR Transcript of 
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Ms Angela Georgiou (instructed by Mohammed Yusuf Patel Solicitors) appeared on behalf of the Appellant.

Mr Jonathan Hough (instructed by Keoghs Solicitors) appeared on behalf of the Respondent.
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Judgment 
Lord Justice Beatson:

1.	This appeal arises out of the assessment of damages for car hire and vehicle storage arising out of a road traffic accident on 18 June 2010 ‑‑ an accident commonly known as a “rear end shunt” -- in which a Seat Alhambra driven by the appellant Mr Kwame Opoku, and used as a minicab at times, was hit in the rear by a Renault van driven by the respondent, Mr Heseyin Tintas.  Mr Opoku claimed damages for personal injuries and consequential loss.  The claim was strongly resisted by Mr Tintas' insurers, Zurich Insurance plc ("Zurich").  Zurich believed the accident was caused by sudden braking by Mr Opoku and that some of the damage claimed for had in fact been sustained in a previous incident.  At one stage Zurich considered the claim to be fraudulent.  After a trial in the Central London County Court on 24 and 25 September 2012, on 16 October 2012 in the Wood Green Crown Court Her Honour Judge May QC ordered judgment for Mr Opoku in the sum of £63,796.04.  

2.	The order reflected the judge's decision that Mr Opoku failed to mitigate his loss by not having his car repaired sooner.  The judge assessed damages on the basis of reasonable car hire and storage charges incurred by Mr Opoku to Matrix Hire ("Matrix"), an accidents claims company based in Preston.  The charges were incurred over a period of some nine months between the date of the accident and 15 March 2001.  She arrived at that period by taking a date in February 2001 when an engineer instructed by Zurich inspected the Seat and allowing a period thereafter within which she found the repair could reasonably have been, and should have been, completed.  

3.	This appeal concerns her rejection of the claim for the period from that time until the date the car was in fact repaired.

4.	Mr Opoku maintains that damages should have been awarded for the period from the date of the accident until April 2012.  The car was then repaired after Zurich had paid him the £3,435.92 estimated cost of the repairs on a without prejudice basis.  The total cost of car hire he incurred from the date of the accident until the time the car was repaired was some £130,000 and he incurred around £19,600 for recovery and storage.  

5.	It was submitted on Mr Opoku’s behalf by Ms Georgiou that the judge erred in law in limiting the period of hire in the way that she did because her finding that Mr Opoku ought to have paid to have the repairs done after Zurich's engineer had inspected was inconsistent with her finding that he was impecunious and could not afford to hire a replacement car.  She also submitted that the judge made an error of fact, as she was mistaken in her recollection of the repair costs following an earlier incident and the costs resulting from the accident under consideration in these proceedings.  That error maintained Mr Georgion fed into the judge’s conclusion as to by when it would be reasonable for Mr Opoku to fund the repair himself.

Factual background
6.	At the trial, part of the background to the accident which has given rise to these proceedings concerned damage to Mr Opoku's Seat which he claimed had been sustained in an earlier incident.  He maintained that the Seat had been stolen in a car-jacking incident in April 2010 and, while in the hands of the thieves, sustained damage to the nearside front and rear passenger doors, the nearside and offside wings and the bumpers.  After it was recovered by the police, as Mr Opoku's insurance did not cover the damage, he arranged repairs at his own expense and had the work done by a firm called Zaki Motors at a cost of £1,475.

7.	After the accident on 18 June 2010, Mr Opoku contacted Matrix.  Matrix arranged for him to have a series of replacement cars on hire and for the Seat to be stored in Preston, presumably at or near its base.  It extended credit to Mr Opoku and pursued his damages claim on his behalf.  He signed a number of credit agreements with Matrix; the first on the day of the accident for a cost of £175 plus VAT per day.  His evidence was that he understood that he was liable for this cost.

8.	The Seat was inspected by an independent assessor, IP Assessors, on 25 June.  The likely cost of repairs was assessed at around £3,400 plus VAT and Mr Opoku was informed of this assessment.  He did not have the car repaired and the vehicle was, as I have stated, taken for storage in Preston at a daily cost of £25 plus VAT.

9.	Proceedings were issued in August 2010.  Zurich disputed liability from the outset and requested access to Mr Opoku's Seat so it could be inspected by a forensic engineer.  Zurich believed that the Seat had stopped suddenly for no apparent reason, causing the van to collide into the back of it.  Mr Metcalfe, Zurich's engineer, inspected the damaged car at the beginning of February 2011.  His report, dated 11 March, concluded that the damage to the rear had resulted from two separate incidents.  

10.	The defence to the claim was that the accident had been caused or contributed to by Mr Opoku's negligent driving, the damage was at least partly due to causes unrelated to the accident -- presumably a reference to the earlier car-jacking -- and that the hire and storage charges were excessive.  During this period Mr Opoku continued to hire replacement vehicles from Matrix and to sign fresh agreements from time to time.  In total, between the date of the accident and the time the Seat was repaired he signed ten agreements.  

11.	The car was not repaired until Zurich had made its without prejudice payment.  The repairs were carried out by a garage in Tottenham between 21 March and 3 April 2012 and on 10 April 2010 Mr Opoku returned the last hire car to Matrix.

The judgment
12.	The judge made the following findings:

1.	The accident had been entirely caused by the negligent driving of Mr Tintas who had failed to attend at trial.

2.	The entirety of the damage to the Seat was the result of the accident on 18 June and was thus damages for which Mr Tintas was liable to compensate Mr Opoku.
3. The judge considered the position between Matrix and Mr Opoku at 7C-G.  She did not accept Mr Opoku's evidence that he had not discussed his liability for the hire with Matrix.  She found it hard to believe that Matrix had not come to some sort of arrangement with him for his apparent liability to be waived in the event of an adverse finding.  But she concluded that, on the evidence, and however unlikely she thought this to be, the agreement created an ostensible liability on Mr Opoku to pay Matrix the full car hire charges.

4. As to Mr Opoku's financial position at the time of the accident, the judge stated his bank account showed a balance of £1,300, he had debts of £20,000 outstanding on a bank loan and £1,026 outstanding on his credit card.  She found (8E-F) that because of his financial position Mr Opoku was entitled to recover the full amount of the car hire charges at the higher credit rates charged by companies such as this and not the lower spot rates that are available to a cash payer.  She concluded (9A-C) that Mr Opoku's duty to mitigate did not require him to ask family or friends for help or to go into debt in order to mitigate the damage caused by Mr Tintas in respect of car hire.  Because Mr Opoku was "legally impecunious" he was entitled to recover vehicle hire charges at the higher credit rate for the allowable period of hire.

5. As to the allowable period of hire, the judge stated (transcript, page 10B-C):

"as the days, weeks and months went by, he was incurring substantial hire charges on credit.  His car was languishing unrepaired 300 miles or more away in Preston, Lancashire, where Matrix's offices are.  He was under a continuing duty to mitigate his losses, which by then were huge, at least by comparison with the damage to his car.  The car was not a write‑off, but it could not be driven, still less as a minicab, unless the repairs to the back door had been done, door and bumper."

She concluded that, over the eight months between June 2010 and February 2011, Mr Opoku could have obtained the means to have the car repaired by saving small sums regularly and/or using his credit card facility, and that by late February 2011 he should have decided to have his car taken out of storage and sent for repairs, "It would not have been reasonable to have expected [Mr Opoku] to have called for his car to come out of storage to be repaired until at the earliest Zurich's engineer had visited", but once the engineer had visited and  examined the car Mr Opoku "ought to have called for it to be delivered to his local garage, as he did a year later, to be repaired": transcript, 10D-G.  The judge concluded (transcript 11A-B) that in her view "it was unreasonable for [Mr Opoku] to have continued to hire a substitute vehicle after" the engineer's inspection.  She did not consider that waiting until the insurers advanced the cost of repairs was consistent with Mr Opoku's duty to mitigate given the relatively low cost of repairs and the extremely high cost of credit hire charges.

The legal principles
13.	There was much common ground between the parties as to the relevant legal principles.  They can be summarised as follows:

(1) A person's claim for damages will be reduced if and to the extent that he has failed to take reasonable steps to mitigate his loss: see McGregor on Damages 18th Edition at 7‑004; British Westinghouse v Underground Electric Railways Companies [1912] AC 613 at 689 and Derbyshire v Warren [1963] 1 WLR 1068 at 1075.  The reason for this is that a tort feasor is not to be exposed to an additional cost by reason of his victim not doing what he or she ought to have done as a reasonable person.  In Burdis v Livesey [2002] EWCA Civ 510 reported at 2003 QB 36 at paragraph 148, this court stated that:

"what is reasonable and whether a loss is avoidable are questions of fact, not law, which district and county court Judges regularly decide."
 
(2) In the context of credit hire claims such as this, the courts emphasise the need for careful and proper control of the claims by the application of the doctrine of mitigation: see Giles v Thompson [1994] 1 AC 142 at 167; Lagden v O'Connor [2004] 1 AC 1067 at [28] and [34]; and Singh v Yaqubi [2013] EWCA Civ 23 at [39].  The need for this careful and proper control is the result of three features of such claims:-
i)  The first is that the charges by the “credit hire” providers are higher than those on the “spot” or “basic” car hire market.  
ii) Secondly, the schemes are marketed on the basis that the charges will be met by the defendants’ insurers.  
iii) Thirdly, the customer in general also receives the additional benefit of having the company manage and pursue the claim against the other driver or his insurers.

As to the last of these features, additional benefits obtained as a result of taking reasonable steps to mitigate loss must be brought into account when calculating damages: see the British Westinghouse case to which I have referred.  Logically, and in the light of the second feature of these claims, the case for scrutiny exists not only in respect of the rate charged.  It also exists in respect of the period for which a car may be hired under such a scheme; that is the duration of such scheme, although in that case the fact that there is no objective difference means that the general approach to mitigation will often yield the same result.
 
(3) The practical way of recognising that rates are higher in credit hire cases and avoiding including irrecoverable benefits is to award damages by reference to the spot or “basic hire rate”: see Dimmock v Lovell per Lord Hoffmann at 400 to 403, Lord Hobhouse at 407 and Lord Browne‑Wilkinson at 390.
 
(4) Where a person is “impecunious” in the sense of being unable to afford to hire a car from a conventional hire company at the spot or basic hire rate, the damages claimed will not be limited by reference to that rate because the impecunious person has no choice but to use a credit hire service.  In Lagden v O'Connor the test for impecuniosity was stated to be "inability to pay car hire damage charges without making sacrifices the plaintiff could not reasonably be expected to make": see [9] and see also [35] to [37].  It was also stated by Lord Nicholls that "lack of financial means is, almost always, a question of priorities".
 
Discussion
14.	I have been greatly assisted by the excellent submissions of Ms Georgiou on behalf of Mr Opoku and Mr Hough on behalf of Mr Tintas.  Ms George advanced three grounds of appeal in an attractive and efficient way.  

15.	Her first ground was that a material error of fact by the judge in relation to the relative significance of the repairs carried on by Zaki Motors after the car-jacking and those carried out after the accident that has given rise to these proceedings fed into her conclusion that by March 2011 Mr Opoku was or should have been able to fund the repairs to the Seat.  Ms Georgiou accepted that this was not a freestanding ground, but maintained that it clouded the judge's judgment as to what it was reasonable for Mr Opoku to do.  The repairs after the car-jacking cost some £1,400, while those for the accident with which the judge was concerned cost some £3,400.  She contended that as the amount that Mr Opoku would have to fund was much smaller if the £1,400 figure is taken, the fact that it might be reasonable for him to fund that does not mean that it is reasonable for him to fund the £3,400.

16.	I do not consider that the judge did fall into error, but, if she did, her error is irrelevant to the question of whether the full hire charges claimed for the entire period should be awarded.  The judge's comparison with the amount paid for the repairs after the car-jacking was undertaken in order to assist in considering how long to allow for the repair of the damage sustained in the later accident with which the judge was concerned.  She concluded that the repairs could be done in two weeks.  The repairs did in fact take two weeks.  Any error in her assessment of the relevant significance of the damage in the two incidents did not affect her crucial conclusion.  In any event, earlier in her judgment she correctly described the damage inflicted on each occasion and identified the cost of each repair correctly.

17.	 Thirdly, Mr Opoku's own account was that the damage inflicted after the car-jacking was to a much wider range of parts on the vehicle.  Mr Opoku knew the owner of Zaki Motors, but it is entirely speculative to suggest, as it was on his behalf in the written submissions, that the difference in price reflected the extent of the damage.  It is also speculative to suggest (as it was on behalf of Mr Tintas) that the difference reflected lower rates charged by Zaki Motors.  The fundamental point is that, since the repairs took two weeks and since the judge allowed for that period, this point does not take Mr Opoku anywhere.

18.	Ms Georgiou's submissions were focused on the second ground.  She submitted that there is inconsistency between the finding that Mr Opoku was “impecunious” in the relevant sense in the context of the cost of car hire on the credit hire rates, but had failed to mitigate by not saving sums of money and extending his credit limit so as to have the car repaired after the insurer's expert had inspected it.  When giving permission Lewison LJ stated that although he considered the appeal essentially to be appeal on fact, there was tension between these two findings.  He considered the evidential foundation for the judge's finding that Mr Opoku ought to have saved the money needed for the repairs was far from clear in the light of the earlier findings about his financial position.

19.	Ms Georgiou accepted that terminology and focused on what she described as the tension in the findings.  There are two elements to this part of the appeal.  The first concerned the basic principle of whether there came a point at which Mr Opoku could reasonably be expected to fund the repairs.  The second is, if a date did come, when was it reasonable for him to fund them, and was the judge's finding that the date was March 2011 sustainable?

20.	As to the wider submission, the claim of inconsistency between the conclusion that Mr Opoku was legally impecunious in relation to the car hire rates and the conclusion that after a period of saving and with some borrowing it was reasonable for him to fund the repairs, I accept Mr Hough's submission that on a true analysis there is no inconsistency.  Before explaining why, I remind myself of the calls for careful scrutiny of claims in cases of this sort and the fact that underlying the application of the mitigation principles is the requirement that a person must take all reasonable steps to mitigate his loss, but he is not obliged to make sacrifices he could not reasonably be expected to make.  In respect of the particular item of damage claimed it is a question of fact and evaluation as to whether Mr Opoku had no choice and whether what he did was reasonable or whether what was reasonable was for him to fund the repairs.

21.	I also observe that in Dimmock v Lovell and Lagden v O'Connor the dispute concerned only the applicability of the “basic hire” or the “spot” rate as opposed to the credit hire rate.  It did not concern the period of hire.  In Dimmock v Lovell Lord Hoffmann made this clear and in Lagden v O'Connor there is no discussion of the duration of hire in the speeches, only of the rate.  The explanation may be that the period in those cases was on any view reasonable.  They were concerning claims for total sums much smaller than the £130,000 for a period of almost two years between 18 June 2010 and April 2012 in this case.

22.	The determination of whether it was unreasonable for Mr Opoku not to make plans to enable him to finance the repairs but to await the resolution of this matter has a significant impact on the damages recoverable.  I, of course, accept Ms Georgiou's submission that in determining reasonableness one does not apply the clarity of hindsight reasoning but one determines it at the time.  But the judge, in my assessment, did determine, as at the time.

23.	The appeal on this ground is in effect advanced on the basis that the judge's conclusion of impecuniosity in relation to daily hire charges for a replacement car was, or should have been, conclusive in relation to Mr Opoku's position in respect of his ability to fund the repairs.  It does not, however, follow that because a person is not able to pay a conventional hire rate for similar cars to be used as minicabs for an open-ended period that it was unreasonable for him to fund a total cost of some £3,200 for the repair of the car.  The conventional hire rate on the evidence ranged from about £120 to £190 per day and that would have been incurred for an open-ended period.

24.	In relation to the hire of a car, the judge concluded that seeking family support or a commercial loan would be an unreasonable sacrifice, but in relation to the repair the judge concluded that, within the eight-month period involved, Mr Opoku could and should have made provision to fund the repairs, particularly when the hire charges were mounting and there was no obvious end point to them.

25.	I have dealt with Ms Georgiou's non‑freestanding submission about the effect of any error on the respective costs of the repairs.  Apart from that, her submission was that, taking account of the sum £140 per month which Mr Opoku said he would be saving because he did not have to insure the Seat and an unquantified sum saved because he did not have to service the Seat while it was garaged, given his means and his existing debts the judge erred in concluding that at any stage before Zurich made the without prejudice payment it was reasonable to expect Mr Opoku to fund the repairs.  I accept Mr Hough's submission that this -- what he described as an arithmetical approach -- is not the correct one.  The judge's task was to consider all the evidence before her, including Mr Opoku's account of his income and his pattern of expenditure and the family expenses and of the arrangement with Matrix.  The latter exposed him to a liability of some £5,000 a month, some £60,000 a year.  The judge’s task was to assess in the light of all that evidence what it was reasonable for Mr Opoku to do.

26.	As seen from the extract from the decision of this court in Burdis v Livesey from what I have quoted, whether conduct by the victim of a tort is reasonable or unreasonable, and whether a loss is avoidable are questions of fact not law.  Accordingly, Mr Opoku faces the high hurdle an appellant must surmount in order to overturn them: see Burdis v Livesey at paragraph 148 and see Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642 at 15 to 22.  In the much cited decision in Biogen v Medeva [1996] UKHL 18 at 54, Lord Hoffmann stated that the reason for the need for appellate caution in reversing a judge's evaluation is because specific findings of fact are inherently an incomplete statement of the impression made upon the judge by the primary evidence, and expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance.

27.	On the evidence before the judge, I consider that she was entitled to reach the conclusion that she did in respect of the funding of the repairs.  I deal first with the question about whether she was entitled in principle to conclude that there came a time when it was reasonable for him to fund them and I will then deal with the March cut‑off point.  

28.	As to the first, the judge did not say that it would have been reasonable for Mr Opoku to fund repairs straight after the accident.  As to whether it was reasonable for him to seek to make some provision to enable him to undertake them once it became clear that the claim was fiercely contested there was evidence before the court as to his means and those of his wife.  There was evidence of their earnings, his bank account, his credit card and the increases in the limit on his credit card from £1,200 to £3,200 in November 2010, and to £4,200 in May 2011.  There was evidence as to the background in which he had funded the earlier repair of the car after the car-jacking himself and had taken out loans in relation to the arrangements after his father had died.  There was also evidence before the judge as to the amount that Mr Opoku was saving because, by using the hire cars, he did not have to pay for the insurance, servicing and maintenance of his own car, although the latter was unquantified.  The judge accepted that Mr Opoku was not living an extravagant style.  She was fully aware of the situation, notwithstanding her scepticism about the evidence about Mr Opoku's arrangements with Zurich (to which I referred when summarising her decision).  She was also entitled to take account of the fact that on Mr Opoku's evidence he had incurred a liability of some £5,000 a month to Matrix in respect of which, after eleven months, interest would begin to accrue.

29.	As to the cut‑off date, I was at one stage attracted by the submission that there was no justification for the March date.  There is no logical connection between the date on which Zurich's engineer inspected the Seat and the date on which Mr Opoku would reasonably have been able, by a combination of saving and borrowing, to fund the repairs.  The position after the inspection was that some months passed before Mr Opoku's representatives were informed of the report.  During that time Mr Tintas had been subjected to sanctions for non‑compliance with standard fast‑track directions for disclosure, and only on 18 August did His Honour Judge Banks give him permission to rely on Zurich's engineer's report.  Ms Georgiou's submitted that, assuming her primary argument was not successful, it was only then that Mr Opoku was obliged to consider his position.  She contended that in those circumstances he was entitled to wait until his own engineer had inspected the car before repairing it.  His own engineer only did so in October 2001, and for those reasons, she submitted, the judge was not entitled to take the March cut‑off date.

30.	Despite the power of Ms Georgiou's submissions, I concluded that they are not ones which can prevail in an appellate court.  The question for this court is whether the judge went outside the wide margin a trial judge has in making an evaluative finding.  I accept that some judges might have concluded that the procedural complications, if I can describe them in that way, meant that Mr Opoku, or rather Matrix, was entitled to instruct a forensic engineer, and that would put the date back to at least October or some date after that.  Other judges might have considered that the relevant date was November 2010, the date at which it became clear that there was a real dispute and the vehicle was to be subjected to a forensic inspection.  But Mr Opoku maintained that he was aware that he was accruing liabilities to Matrix for repairs and storage, and by February 2011 the charges incurred were over £40,000.  In the light of that background and the evidence as to Mr Opoku's financial position, the judge was entitled to conclude that Mr  Opoku could reasonably be expected to have found the means to have the car repaired by a combination of his existing credit card facility, the amount saved by not having to pay for insurance and maintenance, and by saving modest sums over the eight month period.

31.	This was not the case of a person who was being asked to put himself in a debt position where the alternative is not to be in debt, or not to increase his debt.  It is a balance between the debt of £5,000 a month and the alternative of funding £3,400 on a one‑off basis to repair the car.  I have referred to Lord Nicholls’ statement that lack of financial means is almost always a question of priorities and I cannot conclude that it was unreasonable and out with the judge's legitimate scope to find that given that position this choice of priorities was not reasonable on the part of Mr Opoku.

32.	By February 2011 Mr Opoku had known for some months that Mr Tintas's insurers wanted to have his car inspected, but did nothing to instruct his own engineer.  He was entitled not to do anything.  Zurich's inspection took place at the beginning of February.  The judge gave a period of four weeks from that time which would have allowed Mr Opoku to arrange or to begin to arrange for his own forensic inspection.  At the end of the four weeks there was no indication that the insurers had changed their stance that which was strongly contesting the claim.

33.	For these reasons I have concluded that the learned judge did not fall into error in the ways in which it is submitted that she did, that her order should be undisturbed and that this appeal should be dismissed.

Lord Justice McCombe:   

34.	I agree.

Lord Justice Patten:   

35.	I also agree.

Order: Application refused