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Can you claim for loss of use of your vehicle after being paid out for a total loss, whilst waiting for your new vehicle?

By 19th June 2019 No Comments

When involved in a claim that is subject to a “tort”, the claim is always for “financial restitution” ,though the loss of a “chattel” deprives the owner of the “use and enjoyment” , they are only entitled to the loss of use until financial restitution is provided.
I have covered virtually every aspect of credit hire and loss of use on my website  https://www.motorclaimguru.co.uk/?s=credit+hire+case+law
The primary leading cases are Parry v Cleaver, Giles v Thompson, Dimond v Lovell, Clark v Ardington, Lagden v O’Connor, Bee v Jenson, Sayce v TNT, Bent v Highways, Copley v Lawn, Umerji v Zurich, Opoku v Tintas, Singh v Yaqubi, W v Veolia, Salat v Barutis, Stevens v Equity Syndicate Management, McAteer v Kirkpatrick, Smyth v Diamond, Salt v Helley, McBride v UKI, and Clayton v EUI Ltd.
There is an argument for being “deprived of the enjoyment of” rather than “loss of use”. There is also an argument for ” The defendant must take the claimant, as they find them ” which is recognised the in court. BUT the courts expect the claimant to take “reasonable actions to mitigate loss”, Ie It is not the at fault insurers problem that the manufacturer cannot supply the vehicle for a designated time. The counter-argument , is that it is not the claimant’s problem either, In this situation, it is highly likely a court would kick the claim out if it was for a long period of time. The claimant could easily purchase another vehicle in the interim time whilst waiting for their car that is under order.
It may well be that a judge would allow for cost bourne in doing this though, Ie you purchase the car for 2k, used it for 6 months whilst waiting for the new car, and have lost £500 when the old vehicle was sold.
The absolute expert in this is Jonathan Hogan http://credithirebarrister.com
He has listed his notable cases here http://credithirebarrister.com/notable-cases/
Another Barrister I deal with “Guy Vickers” handled a  case with a Mclaren that was interesting, https://www.motorclaimguru.co.uk/blog/mclaren-owner-awarded-damages-for-deprived-enjoyment-after-tractor-crash
It may well be that a claim could be made under the header of “General damages” rather than for “loss of use”.
The courts are a funny place to be, you never know how they are going to rule!
It is a very very complex area.
Tim Kelly

Tim Kelly

Tim is a highly qualified Independent Engineer with over 20 years experience as an Engineering Assessor of damaged vehicles.