S1022 - Foundations of Law Case Note Assignment

Assignment Task

Introduction and Overview

1. On 11 March 2020, Mr Charlie Kelpie’s 2008 motor vehicle (‘the vehicle’) was parked in Brand Road, St Kilda. The parked vehicle was struck and damaged by a car driven by Ms Daisy Bluey (‘the collision’)

2. By complaint dated 21 May 2020, Mr Kelpie, the plaintiff, claimed damages due to the collision which he alleged was caused by the negligent driving of Ms Bluey, the defendant. The vehicle was a writeoff. Mr Kelpie claimed (among other things) the write-off value of the vehicle and hire-car expenses.

3 In its defence dated 10 July 2020, the defendant admitted liability. On 23 September 2020, Ms Bluey’s insurer (‘RACV’) paid an amount of $24,600 to Mr Kelpie via his solicitors representing the write-off value of the vehicle (‘the write-off payment’).

4. At hearing, the sole issue for determination related to Mr Kelpie’s claim for hire-car expenses. The sum claimed for hire-car expenses was $33,325 (being 215 days at a rate of $155 per day).

5. At the time of the collision, the vehicle was comprehensively insured by RACV. It was not disputed that Mr Kelpie’s comprehensive policy included provision of a hire car (with some conditions). However, Mr Kelpie opted to pursue a claim against the ‘at fault’ driver rather than to claim under his own policy. In essence, the defendant contended that in taking this course of action Mr Kelpie had not acted reasonably and had failed to mitigate his damage. The defendant took issue with the duration of the hire car claim (on various grounds) as well as the daily rate.

6. Mr Kelpie’s evidence was as follows:

(a) On the day of the collision, his partner (who was then 8 months pregnant) had parked the vehicle in order to attend a medical appointment. After the collision, it was apparent the vehicle was undriveable and it was towed to Mr Kelpie’s Carrinyup address.

(b) At the time of the collision, Mr Kelpie had no other vehicles registered to his name and no other car available to him. A chef by occupation, he needed a car to travel to and from work (and to transport equipment such as kitchen knives). Additionally, a car was needed for family reasons, especially with his partner about to give birth, for attending medical appointments, for household shopping and so on.

(c) Shortly after the collision, Mr Kelpie telephoned Ms Bluey’s partner to exchange further details. On either 11 or 12 March, he made a brief telephone call to RACV, as his comprehensive insurer, about the collision. He was told that, as he was not at fault, he would be ‘better off’ making a claim against the ‘at fault’ driver rather than under his own policy. He followed that advice. 3

(d) His understanding was that, had he claimed under his own policy, there would have been deducted from any pay-out, the remaining eight or nine monthly instalments of the annual premium. He didn’t know whether his ‘no claim’ bonus would be impacted. He did know that if he claimed under his own policy, he would be responsible for stamp duty and transfer fee. He had no awareness of whether his policy was for ‘agreed value’. He did not know that he was entitled to a hire car had he claimed under his own policy.

(e) Within two days, the vehicle had been assessed as uneconomical to repair.1 After a salvage tender process, Mr Kelpie received a cash sum of $3,500 (‘the salvage sum’) and disposed of the vehicle.

(f) On 20 March 2021 a letter of demand was sent to Ms Bluey. On 31 March 2021, a further letter of demand was sent to RACV, as Ms Bluey’s insurer. Both letters included documents regarding the assessment and the salvage.

(g) Within weeks of the collision, Mr Kelpie was laid off by his employer due to COVID-19 restrictions. At some stage, he began receiving government support (the ‘Job Keeper’ allowance). He could not afford to buy a permanent replacement vehicle before being paid out. His partner was on parental leave due to the birth of the baby within weeks of the collision.

(h) On 12 March 2021, Mr Kelpie took possession of a hire-car (a Toyota Corolla) through an accident hire car company, Youbetchya Rentals. He had never rented a car before and thought the rate of $155 per day was reasonable as it included insurance, zero excess, roadside assist and a baby capsule. At some point, he made enquiries with a market hire car company (Amazing Insurance) to arrange a hire car, but was told he needed a credit card (which he did not have) nor did he have funds for an upfront bond.

(i) On 23 September 2020, his solicitors received the part pay-out sum on his behalf.

(j) On 13 October 2020, he took possession of permanent replacement vehicle which had been used by him and his family ever since (a Jeep).

(k) On 13 October 2020, the hire car was returned. Cross-examination of Mr Kelpie

7. After the collision, Mr Kelpie had engaged the services of Frodo’s Recovery, a ‘one-stop shop’, who arranged the towing, the damage assessor, the salvage tender and the hire car. Mr Kelpie saw the assessor’s report of 13 March 2020 within a day of two. The decision to salvage was taken within one to two weeks.

8. In December 2019, Mr Kelpie had renewed his RACV comprehensive insurance policy. RACV’s renewal letter dated 16 November 2019 (‘the renewal letter’) stated that the vehicle had an ‘agreed value’ of $31,700.

9. Mr Kelpie did not dispute he could have claimed under his own policy. He opted not to do so based on what he was told when he rang the RACV. He didn’t know (and it didn’t occur to him) that he might have been better off claiming under his own policy given the ‘agreed value’ of $31,700.

10. As for the phone-call to the RACV on 11 or 12 March 2020, he explained how the collision occurred and gave the other driver’s details. He mentioned having a comprehensive policy but did not given the policy number. He did not ask whether it was for an ‘agreed value’.

11. Mr Kelpie corrected his summary of evidence saying the replacement vehicle was not a Jeep, but a Ford Ranger (‘the Ford Ranger’). The explanation was that he misunderstood what was said. The Ford Ranger was purchased for $12,500 (including registration and stamp duty) from an acquaintance, Mr Juniper Brekker.

12. Mr Kelpie was asked to explain a signed VicRoads transfer history form that recorded that the Ford Ranger was acquired by him on 19 February 2020 from ‘Construction Management’. He said that information was incorrect. He didn’t acquire the Ford Ranger until about November or December 2020. Mr Brekker had told him he was employed by Devo Management up until 19 February 2020. On that date, Mr Brekker acquired the Ford Ranger from his employer. Mr Kelpie did not dispute he signed the VicRoads document knowing it contained false information. He did this at Mr Brekker’s request because he was getting a cheap car and to help out Mr Brekker who wanted to avoid extra stamp duty. Mr Brekker had since died and a Facebook memorial page was produced to verify that.

13. Mr Kelpie agreed the write-off payment landed in his bank account on 23 November 2020. There was a delay due to him misplacing the first cheque sent to him on around 9 November 2020. He was unaware his solicitors had received the write-off payment on or around 23 September 2020. 

14. Mr Kelpie did not recall making a phone call to RACV on 5 March 2020 about an overdue premium instalment for his comprehensive policy (‘the 5 March phone call’). He initially denied telling the RACV representative that his partner had purchased another car, an Alfa Romeo. Later, he conceded it was possible he had told RACV that. He also disputed that he would have referred to having three bank accounts. The Court then heard a recording of the 5 March phone call in which Mr Kelpie was heard discussing an overdue premium instalment. Mr Kelpie identified himself on the call. He is heard to say on the call that: (a) the direct debit didn’t go through due to his account being overdrawn; (b) he had three bank accounts; (c) they needed insurance as his partner had just bought a 2002 Alfa Romeo vehicle (‘the Alfa Romeo’).

15. The Alfa Romeo purchase hadn’t gone ahead because he and his partner couldn’t obtain finance. The provisional insurance was cancelled on 20 April 2020.

16. As for his bank accounts, Mr Kelpie had two accounts in his name. His partner and mother both had access to these accounts. There was a third bank account which was in his partner’s name (‘the third account’) over which he had no access nor control. His gambling was the reason why his mother and his partner had access to his two accounts. Mr Kelpie could not explain why premium instalments had continued to be debited for the comprehensive policy on six or seven occasions after the vehicle was written-off. When on a couple of occasions, the payment ‘bounced,’ the debit was repeated. Legal Principles

17. The legal principles that apply to this case are as stated by Bell J in the Victorian Supreme Court decision of Fallon v Johnson. 2 Where a plaintiff suffers loss due to their motor vehicle being written off in a collision due to the negligence of the defendant, the ordinary principle that damages are compensatory applies, as does the ordinary principle that the plaintiff must mitigate their damage3 . It is well-established that the cost of hiring a replacement vehicle, when needed, can represent the element of damages relating to loss of use of the damaged vehicle4 .

18. The evidentiary onus of quantifying and proving the loss lay with the plaintiff. As for the period claimed for the loss of use of the vehicle, the plaintiff must establish the beginning, end and duration of the loss of use as caused by the defendant’s negligence. The extent of the actual compensation for the loss is not loss of money but loss of use being the inconvenience of being without a vehicle.

Within the casenote, you should address the following questions:

• What are the material facts of this case?
• What is the ratio decidendi of the case? 
• What was the final decision of the court?
• To what extent do you find the Magistrate’s analysis convincing? Explain your reasoning

The Parliament of Victoria enacts as follows:

Purpose

The purposes of this Act are to 

a) to facilitate the efficient running of leisure activities in the State of Victoria; and

b) to ensure public safety in outdoor activities; and

c) to define and limit necessary powers for Victoria Police in their dealings with the public involving the use of weapons in public places

Scenario

Organizers of a ‘Family Fun Day’ (being held on 1 May 2021) are concerned that participants in the fun day may bring weapons to the event. Accordingly, In 20 February 2021 they make a request to the Secretary to designate Hyams park in Clayton to be a Weapons Alert Zone for the event. Accordingly, Hyams Park is designated to be a Weapons Alert Zone under s 6 of the Act for the entire duration of that day. On the evening of 1 May 2021, Charley and Hibby decide to join in the final activity of the day, known as “Frodo’s Fun Run” in which participants are encouraged to dress up as characters from “Lord of the Rings” and run around the entire perimeter of Hyams park. Neither of the girls remembered to bring any form of identification with them, so they avoided the entrance to the event and climbed under a fence and entered the park without being seen. Both girls have been involved in amateur theater and they see the fun run as an opportunity for some publicity for a play in which they are currently appearing. Accordingly, Charley dresses as the wizard Gandalf, borrowing her grandfather’s walking stick as a wizard’s staff.

Hibby dresses as the dwarf “Gimli” and wears an old army helmet that she bought many years ago at an auction. During the run, some other participants are concerned when they see Charley running around the park swinging the stick and loudly shouting lines from “Lord of the Rings”. Hibby is seen doing ‘cartwheels’ on the grass whilst singing very loudly. Someone rings the police as they think that the girls’ behaviour is scaring the children and not within the spirit of a ‘fun run’. In due course, the police arrive and Charley’s walking stick is pulled from her hands by the police officer. Both girls are then searched roughly and police discover and confiscate a pair of nail scissors from Hibby which she keeps in her backpack. They also confiscate Charley’s cigarettes, cigarette lighter and matches and wrench off Hibby’s helmet and refuse to give it back to her.

1. Were Charley & Hibby in possession of ‘prohibited items’?

2. Can Charley & Hibby be prosecuted successfully under s 9 of the Act?

3. Were the Police Officers entitled to use force in their actions against Charley and Hibby?

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