SAYCE V TNT (UK) LTD

[2011] EWCA Civ 1583, Court of Appeal, Lord Justice Pill, Lord Justice Moore-Bick and Lord Justice Aikens, 19 December 2011

Insurance (motor) - Damage to vehicle - Credit hire for replacement vehicle - Whether claimant mitigated loss

The claimant's vehicle was damaged in an accident which was the fault of the defendant's driver. At the time of the accident the driver gave the claimant a card asking her to contact TNT as soon as possible. She did so and was told that the defendant would provide a courtesy car. Her attention was drawn to the card which stated that if she did not take advantage of the offer it could affect her entitlement to damages. The claimant rejected the offer and obtained a replacement vehicle on credit hire terms. The trial judge held that the claimant had failed to mitigate her loss and awarded nothing. On appeal, the appeal judge, without hearing argument on the point, held that the decision of the Court of Appeal in Copley v Lawn [2009] Lloyd's Rep IR 496, which indicated that the claimant was entitled to reject an offer of this type from the defendant's insurers, was wrongly decided, and he held that the claimant had failed to mitigate her loss. The Court of Appeal held that the appeal judge had been wrong to proceed on a basis not argued by the parties, and allowed the claimant's appeal on the basis of procedural irregularity. The Court of Appeal further held that the ratio of Copley was that it was not unreasonable for a claimant to refuse an offer from the defendant if it was not at the time possible for the claimant to work out what would be the cheapest option for the defendant.