Opoku v Tintas

In a credit-hire claim, impecuniosity for recovering credit-hire rates does not conclusively determine whether the claimant should fund repairs to the damaged vehicle. The claimant must take all reasonable steps to mitigate loss, but need not make sacrifices that cannot reasonably be expected. Whether repair funding should have been obtained, and when, are evaluative questions of fact. The court may compare continuing open-ended hire costs with the one-off cost of repairs and consider the claimant’s resources, debts, credit facilities, savings, expenditure and other relevant benefits. An appellate court should not interfere with such an evaluation unless the trial judge exceeded the available margin or made an error of principle or material fact affecting the result.

The appellant’s vehicle was damaged in a road traffic accident caused by the respondent. The vehicle was placed in storage and the appellant obtained replacement vehicles from a credit-hire company while liability and the extent of the damage were disputed. He claimed hire and storage charges until the vehicle was repaired after the respondent’s insurers made a without-prejudice payment.

The county court awarded damages for an initial period but held that the appellant should thereafter have arranged repairs and ceased hiring a substitute vehicle. The appeal challenged that conclusion on the grounds of factual error, inconsistency between the finding of legal impecuniosity and the mitigation finding, and lack of justification for the cut-off date. The central issue was whether the judge was entitled to find that the appellant could reasonably have funded the repairs earlier.

1. Appeal dismissed. The trial judge’s order remained undisturbed.
2. The mitigation principle required the appellant to take all reasonable steps to reduce his loss, but did not require sacrifices that could not reasonably be expected. In relation to a particular item of damage, whether the claimant had no reasonable choice but to incur the claimed expenditure, and what course was reasonable, were questions of fact and evaluation. The court applied the principles in British Westinghouse v Underground Electric Railways Companies [1912] AC 613 and Lagden v O’Connor [2004] 1 AC 1067.
3. The finding that the appellant was legally impecunious for recovering credit-hire rates did not determine his ability to fund a one-off repair. A person may be unable to pay conventional daily hire charges for an open-ended period while reasonably being expected to arrange a substantially smaller repair cost. The relevant comparison was between the continuing accumulation of hire and storage liabilities and the cost of repairing the vehicle.
4. The judge was entitled to consider the whole evidential picture, including income, expenditure, family finances, existing debts, credit-card facilities, savings from not insuring or maintaining the damaged vehicle, the earlier self-funded repair and the continuing liability to the credit-hire company. An arithmetical calculation based only on monthly savings was insufficient.
5. The judge was also entitled to select the period allowed after the insurer’s engineer had inspected the vehicle. Other judges might have selected a later date in light of the procedural complications, but the date selected fell within the wide margin available for an evaluative trial-court finding.
6. Questions of reasonableness and avoidability are ordinarily factual. Consistently with Burdis v Livesey [2002] EWCA Civ 510 and Biogen v Medeva [1996] UKHL 18, the appellate court found no material error of law or fact.

• Court of Appeal (Civil Division): The appeal from the county court’s assessment of damages was dismissed and the order was left undisturbed.
• Edmonton County Court: Her Honour Judge May QC awarded the appellant damages of £63,796.04, allowing hire and storage charges only for the period before repairs should reasonably have been arranged.

Order: application refused.