COPLEY V LAWN; MADEN V HALLER

[2009] EWCA Civ 580, Court of Appeal, Lord Justice Waller, Lord Justice Longmore and Lord Justice Jacob, 17 June 2009

Insurance (motor) – Vehicle damaged by defendant’s negligence – Claimant entering into hiring agreement for replacement car – Defendant’s insurers offering replacement car free – Whether claimant failing to mitigate by refusing offer

In the first case, Copley v Lawn, C’s car was damaged in an accident caused by the negligence of L on 23 November 2006. C needed a replacement car immediately, and on 26 November she made an agreement with Helphire under which she hired a car at £39.90 per day while her car was being repaired. On the same day, shortly afterwards, she received a call from L’s insurers offering her a replacement car. She did not accept that offer. She subsequently made a claim against L for 71 days’ hire charges. The Deputy District Judge awarded only seven days hire because C had a right to cancel the Helphire agreement within seven days and by failing to do so had not mitigated her loss. In the second case, Maden v Haller, M’s car was damaged on 26 July 2006 as a result of H’s negligence. H’s insurers offered a replacement car within 24 hours, but M ignored the offer and entered into an agreement on 18 August with Helphire for a replacement vehicle costing £156.80 per day – he subsequently claimed for three days’ hire. His claim was dismissed by reason of his failure to mitigate. The Court of Appeal held that neither C nor M had acted unreasonably and that they could no be said to have failed to mitigate their losses. However, if there had been a failure to mitigate then there was a right to recover at least the actual reasonable cost of hire.