High Court rules insurers to pay all replacement vehicle hire charges, regardless of ‘need’

Up to now, insurers for a road accident vehicle-at-fault have resisted paying an innocent driver’s replacement vehicle hire charges unless the damaged vehicle was used in the course of a business.

The “mere” inconvenience of being without wheels, was insufficient – insurers have said – to put them to that expense.

Such practice has finally been put to bed by the unanimous decision of the High Court of Australia which has ruled that an at-fault driver – or their insurer – is obliged to compensate in all cases for the inconvenience resulting from the unavailability of a damaged vehicle and for the loss of enjoyment of its use.

The HCA was considering an appeal against the decision of the NSW Court of Appeal that ruled insurers must pay – where a need for a substitute vehicle had been made out – not just for any car, but one of similar standard of luxury to that damaged in the collision.

Four not-at-fault owners whose cars were temporarily unavailable after road accidents had been given a replacement vehicle of the same quality to their own, by a “credit hire” company.

No upfront charge was payable and the company claimed the full hire cost as damages on their behalf against the at-fault driver’s insurer.

At issue was whether the replacement vehicle hire charge should be referenced to a base model hatch or sedan or a superior model with equivalent luxury and prestige.

For the insurers, it was contended that a Toyota Corolla was a sufficient substitute for Azad Cassim’s damaged BMW 535i, Alex Rixon’s Audi Q3, Bilal Souaid’s Lexus IF 250 F Sport Prestige and Seung Lee’s Toyota Camray.

The Court of Appeal decided – by a majority – the owners had to be compensated for all the features of the vehicle’s use of which they were deprived, not just for the transportation value of their cars.

Thus the hire of luxury vehicles of the same model or a of a similar standard was reasonable in the case of Cassim and Rixon because of their preference for the highest safety standards and performance.

Not to be deterred – and signalling the impact of the issue on annual claim costs – the insurers appealed to the High Court where all five judges ruled that the compensable loss Cassim and Rixon had suffered included “intangible elements”,ie loss of pleasure or enjoyment as well as the inconvenience from being without their wheels.

“A loss of amenity … in the sense of loss of pleasure or enjoyment” is a recoverable head of damage in relation to the negligent damage to a chattel. The “concept of ‘need’ should be eschewed”.

“Compensation for the loss of the availability of a vehicle for use, is inadequate because it does not identify the manner or extent of any loss to a plaintiff,” they observed. “An assessment of consequential loss always requires the identification of the manner in which the loss of use of a chattel has adversely affected the plaintiff”.

Even Mr Souaid – who had failed in the Court of Appeal to recover the hire cost of a BMW 735i and did not appeal – should be allowed the full cost of hire of the luxury substitute.

Souaid’s statement that he would be “okay with just a Holden sedan or a Camry” was – in the judges’ view – insufficient to displace his entitlement to reimbursement of the full hire charges that would have provided him the amenity and luxury akin to that of his own damaged vehicle during the repair period.

Likewise Ms Lee – who failed in the Court of Appeal because she took up the use of the temporary replacement only “because the hiring company delivered the vehicle to her home address” and also did not appeal – should not have been disqualified from recovery when it was clear that she was deprived of the convenience of a car to visit family and friends and take her children to and from school.

The only qualification to the right to recover hire charges appears to be – particularly in relation to “credit hire” – that the hire charges incurred be within market rate parameters.

Although it might be inferred that “credit hire” fees would be greater than those in the conventional hire car market, the Court of Appeal noted the charges in all four cases it considered, were no greater or at least similar to rates charged by conventional hire car companies.

Not-at-fault parties in road accidents are therefore entitled to be paid the hire charges for a substitute vehicle of an equivalent standard at market rate, regardless of whether it is used for employment, business or simply for convenience. Hire charges must be paid for the entire period they are deprived of their own car’s use.

Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40 Kiefel CJ, Gageler, Keane, Edelman, Steward JJ, 8 December 2021

source https://cartercapner.com.au/blog/high-court-rules-insurers-now-up-for-all-replacement-vehicle-hire-charges-regardless-of-need-2/

“Torrent of abuse” hurled at vulnerable worker: QIRC allows animal control psych claim

A vulnerable worker has rolled a workers’ compensation provider on its rejection of her statutory psychological injury claim arising out of daily abuse received from the customers she was required to deal with in the animal control division of the Gladstone Regional Council.

Prior to starting work in that division in May 2015, Aleesha Skinner’s “previous normal” was described by husband Andrew – a fitter in the LNG production plant on Curtis Island – as “always happy to go to work” and “excited about her job”.

She initially kept the unpleasant features of her work to herself but gradually opened up to her family about the “torrent of abuse” directed to her at work.

Her calls about unpaid dog registrations and animal noise complaints were frequently met with threats to her safety – including one caller threatening to shoot her – and other aggressive and demeaning behaviour.

From July 2016 she sought treatment from her GP for a stress condition which escalated to anxiety and panic attacks from March 2017 and to “worsening depression” by July that year.

The record of her consultation with her psychiatrist Dr Lynne Steele – whom she had also consulted a decade earlier as a teenager – in early August  confirms “suicidal ideation”. She ceased work a few days later.

Aleesha lodged an application for assessment of permanent impairment in June 2019 which was rejected by Local Government Workcare. It claimed there was insufficient evidence that the occupational abuse she had suffered was the “major significant contributing factor” of her psychiatric condition.

She appealed.

When the matter came before the Queensland Industrial Relations Commission, Industrial Commissioner Roslyn McLennan conducted the appeal as a hearing de novo.

The Commissioner heard evidence from Dr Steele that Alicia had a long-standing history of depression through her teenage years. She nevertheless considered the recent presentations to be quite different and swore that her current condition was a “completely different type of depressive illness”.

Colleague Trevor Lotz – acknowledging the pre-existing history of anxiety and depression – concluded she had a relapse “as a result of exposure to difficult clients telephonically and in person”.

On the other hand Jennifer Gunn – also a consultant psychiatrist – ruled out a psychiatric injury concluding instead that her “Recurrent Major Depressive Disorder” was the same condition she suffered from as a teenager that had simply recurred.

Critical to the issue of whether her condition was that contended for by Dr Gunn and her employer i.e. “recurrent”; or that supported by her colleagues i.e. an injury, was whether the exhaustion that coincided with birth of second child was in the nature of postnatal depression.

In the absence of any records of such diagnosis or of antidepressant medication being prescribed at that time, Commissioner McLennan rejected that contention and concluded Aleesha to have been simply “exhausted by the challenges and rewards of caring for her two very young infants around the clock”.

She also rejected Dr Gunn’s theory of a “recurrent” disorder, preferring the evidence of Dr Steele that the recent presentation was quite different to that of her teenage years.

With those issues decided, the Commissioner set about examining whether the current disorder arose – in a temporal sense –  “in the course of” and then, “out of” her duties at the Council.

She quickly arrived at an affirmative answer to the first part of that question given that the disorder arose while she was engaged in the work she was employed to do in the relevant period and that her job “required her to deal with ratepayers and residents who were unhappy, upset, angry and difficult to deal with”.

An instance of the abuse that occurred while she was shopping in her work uniform in the company of her young daughter on the journey home from work, was – she ruled – “reasonably incidental to” her employment”, thereby further satisfying the “in the course of employment” nexus.

The Commissioner then noted the proximity between the dates of particular abuse of events and Aleesha’s GP visits, something that Dr Gunn – who concluded that the abuse had nothing to do her depressive condition – had been unaware of.

When this was bought to Dr Gunn’s attention while giving testimony, she conceded that work was a significant factor in Aleesha’s resulting psychiatric disorder.

With Drs Steele and Lotz having always been of that opinion, the Commissioner was also able to answer affirmatively to the second part of the employment nexus question, ie that the injury arose “out of” her employment.

Finally, she had to consider whether the employment was a “major significant contributing factor” and in doing so had to weigh all three “significant” factors.

She quickly discounted her sinus condition as having been “a major significant contributing factor” and likewise “genetic vulnerability and past history” as “the major significant contributing factor”.

The fact that she may not have suffered the injury but for an underlying genetic vulnerability and past history of adolescent depression, did not of themselves qualify those things as “major contributing factors,” the Commissioner observed noting that as in the case of an “eggshell skull” the employer must take their employees “as they find them”.

She then arrived at the conclusion – even allowing the possibility of the genetic predisposition favoured by Dr Gunn because of Aleesha’s “low” tolerance of hostility – that her work was the major significant contributing factor because after all, if she had not been exposed to the “onslaught of abuse in the course of her work” any genetic vulnerability would be unlikely to have been triggered so as to deliver such a severe illness.

It was the “persistent onslaught of abusive interactions she experienced in the course of her employment over a period of time that so triggered the emergence of that illness, ” Commissioner McLennan decided.

By way of addendum, the Commissioner excluded any ‘reasonable management action’ as having been a cause of any injury thus clearing the way for a final ruling that the claim be taken as one for acceptance.

As a result Aleesha is entitled to any unpaid time off work benefits plus a lump sum, equivalent to her impairment rating. Whether or not she also has a claim for negligence damages will depend on proving that the council ought to have known that her exposure to such abuse posed the risk of foreseeable injury to a person of ordinary fortitude.

Skinner v Workers’ Compensation Regulator [2022] QIRC 19 McLennan IC, 28 January 2022

source https://cartercapner.com.au/blog/torrent-of-abuse-hurled-at-vulnerable-worker-qirc-allows-animal-control-psych-claim/

Royal Caribbean overturns sex assault suspect false imprisonment ruling

A cruise ship passenger awarded $97,000 for being locked up for five days in a windowless cabin as the suspect of an on-board sexual assault must return the payout to the cruise line following its successful appeal of a 2020 ruling.

Daniel Rawlings – a 28 year old Sydney tradie – departed Sydney for a 10-day Pacific cruise on 10 November 2016 aboard the Royal Caribbean vessel Explorer of the Seas.

In the early hours of 15 November – while the ship was in international waters near Vanuatu – he became the suspect of a sexual assault upon “Amy”, an 18-year-old female passenger.

He was confined in the ship’s conference room and subsequently in a guest cabin, from around 9am that day until he disembarked back in Sydney 5 days later.

Amy had been found naked and disoriented in an unrelated guest’s room with no recollection of events of the previous evening. She reported her drink had been ‘spiked’.

Rawlings’ account was that he had been talking to another passenger – Tegan Miles – in Dizzy’s Nightclub when her first saw Amy who they both agreed was “attractive”. He suggested to Tegan they invite Amy to join them for “a threesome.”

Tegan is said to have reported back to Rawlings that Amy was agreeable, something Amy confirmed to him when he came over to her table.

Security footage revealed Amy had entered Rawlings’ cabin with another female guest at 2:10 am and left naked some two and a half hours later.

The cruise operator initially decided Rawlings be released on condition that he have no contact with Amy or her family.

But in response to an outburst from Amy’s mother that she would throw the suspect overboard if he were released, the captain decided to keep Rawlings in confinement and incommunicado until the ship docked in Sydney.

His NSW District Court false imprisonment action adjudged that the detention was justified only up to midday on 17 November 2016 that being a suitable period to ensure the “the preservation of order and discipline or the safety of the vessel or persons on board”.

Judge John Hatzistergos concluded the captain did not consider continued confinement was reasonably necessary for the preservation of order or for the safety of the vessel and had only kept Rawlings in following the outburst from Amy’s “not happy” mother.

The damages he awarded included aggravated damages of $20k for the period of unlawful detention. A claim for a PTSD injury was rejected

According to the appeal judges, the trial judge’s conclusions as to the captain’s state of mind for keeping the suspect confined were not supported by the evidence.

Rather, the evidence showed the captain continued to believe that it was reasonably necessary to keep Rawlings detained until arrival in Sydney to maintain the safety and security of passengers including that of Amy and her family.

Such action was permitted under Australian law.

But also under Australian law, the law applicable to a commission of a tort committed on a vessel while on the high seas is the law of the state in which the vessel is registered. The ‘flag state’ of the Explorer of the Seas is The Bahamas.

Such law is however presumed to be the same as the law of the forum unless the applicability of foreign law and its content is pleaded and proved.

As neither party pleaded the applicability of any foreign law or led evidence as to its content, the correct law to apply was that of NSW and Australia.

Thus the captain’s action was ruled to not to have constituted false imprisonment and the lower court decision was overruled.

Royal Caribbean Cruises Ltd v Rawlings [2022] NSWCA 4 Bell P Meagher JA Leeming JA, 4 February 2022 Read case

source https://cartercapner.com.au/blog/royal-caribbean-overturns-sex-assault-suspect-false-imprisonment-ruling/

Employer defeated: ‘trivial event’ not the cause of delayed onset severe pain

A sheet metal worker whose delayed onset severe pain began several hours after the injury event has defeated his employer’s contention that his symptoms were caused by a trivial incident unconnected to his work.

Michael Kup-Ferroth’s role with A1 Custom Stainless and Kitchens was the fabrication and installation of commercial kitchen fit-outs.

In July 2016 the 26-yr-old was directed by boss Colin Powell – who arrived at the ‘Aussie Rooster’ installation site for an inspection – to help him position a 120 kg kitchen benchtop for repair.

The two lifted the damaged benchtop off the floor and manoeuvred it out of the storeroom – with Ferroth walking backwards and struggling to carry the weight – into the kitchen and positioned it on top of the fitted cupboards.

Powell then directed he lift one end so it could be “chocked up” to enable repair work to be done underneath.

Subsequent to the first lift, Ferroth started to have pain in his lumbar spine, which persisted during the second lift and for the rest of the day.

It wasn’t until later in the day – when back at the A1 workshop he turned to wave goodbye to a colleague – that the excruciating pain began.

He attempted to work the next day but left within the first hour and has not worked since.

The inevitable injury compensation claim asserted the lifts were unsafe and several more employees should have been enlisted to assist.

In its defence, the kitchen outfitters contended his injury was the exacerbation of an existing back condition caused by the twisting of his back when turning to wave goodbye.

On that basis it asserted that his employment was irrelevant to the injury occurrence.

Neurologist Don Todman observed that the biomechanical forces placed on his spine during the lifts were consistent with the injury and were “compounded by the twisted and bent over positions he had to adopt while performing his work that day”.

He concluded that the L5/S1 disc protrusion was a long-standing injury that was aggravated by the July 2016 events and reported a 7% impairment attributable to that aggravation.

He also noted that Mr Ferroth “had been mostly symptom-free” prior to the incident and that it was not unusual for the onset of severe pain to be delayed until sometime after the trauma that is responsible for it.

Spinal surgeon Bruce McPhee of the other hand – premised on his view that the post-incident images of the L5/S1 disc protrusion showed the same pathology that could be seen in a 2012 MRI – swore that the cause of the aggravation was indeed the trivial incident the worker reported at the end of the day.

Dr McPhee did not however know of the earlier lifting incidents. Although he testified that he “probably would have asked” about any prior work-related triggering events, he did not keep any consultation notes which might have confirmed that.

The kitchen company also pointed to Ferroth’s differing explanations of what had occurred – to co-workers, safety engineer Roger Kahler, his treating doctors and various medical specialists – about what it happened. Some referred to the heavy lifting and others referred to the “trivial incident” of turning to say goodbye.

In cross examination the worker explained that the accounts only differed because the questions to which they responded were different.

In accepting that explanation, Judge Ken Barlow QC observed Ferroth did not think to mention the lifting incidents as a possible cause of his pain except when he was specifically asked about his earlier-in-the-day activities.

“All these answers appeared to be spontaneous and had the ring of truth about them,” His Honour noted in concluding that the different reports were of no consequence and that Mr Ferroth’s evidence should be preferred about what had occurred.

He also accepted Mr Kahler’s evidence based on the Hazardous Manual Tasks Code of Practice 2011, that the weight carried by the worker exposed him to 3 times the risk of injury than would have been the case if a safe lifting limit (23kg) had been observed.

After concluding that the those incidents were the cause of his severe back pain and that A1 was negligent in requiring the worker to perform the lifts without further manpower to assist, Judge Barlow went on to assess damages.

He allowed – evaluating the reports of psychiatrists Karen Chau (12% WPI) and Harvey Whiteford (4% WPI), an ISV of 6 for his psychiatric injury. The spinal injury – because it was “so serious and affects him so substantially” – merited an ISV of 10.

That permitted an overall ISV of 12 that – despite the patent severity of his condition – resulted in a mere $19k for general damages.

Past economic loss was reckoned at $229k and for future he was allowed $460k making up a total assessment of $821k.

Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd [2022] QDC 3 Barlow QC DCJ, 21 January 2022

source https://cartercapner.com.au/blog/employer-defeated-trivial-event-not-the-cause-of-delayed-onset-severe-pain/

Federal Court tops up injury damages with Fair Work compensation

Can an employee who suffers psychological injury from bullying and harassment, recover injury damages as well as Fair Work compensation?

Consider the case of Vivienne Leggett, a sponsorship and marketing manager at the Hawkesbury Racing Club Limited, who had been in continuous service there from age 28.

Vivienne terminated her employment in March 2017 as a result of bullying and harassment at the hands of new CEO Greg Rudolph.

Rudolph – a former senior racing steward and son-in-law of NSW chief steward Ray Murrihy – who took up his position in May 2016, confronted Leggett two days into the job telling her that she “was earning too much money”.

He immediately challenged her by way of repetitive emails on the legitimacy of this expense and that expense – all of which were routine –and unnecessarily putting her to task to document every aspect of her role and her commission-based remuneration package.

By declining to sign off on various requests and withholding payment of her FY 2016 bonus, he signalled to her a distrust in her execution of a job she had carried out in an exemplary fashion for 25 years.

Vivienne warned in July that as a consequence of his bombardment she was “losing sleep and constantly thinking about these emails”, complaints she also revealed privately to several board members.

Confrontations continued over the next few months until she complained in writing to Rudolph in October 2016 about the “untenable situation” and being “downtrodden”. She requested that the board be notified of her complaint.

His response was to summon her the next day for a performance discussion – with the option of bringing a ‘support person’ – implying there were deficiencies in her work performance that she was required to address.

Sickened by that intimidatory email, she consulted her GP who issued a medical certificate to the effect that she was unable to work or answer emails or calls for the following week due to stress.

Rudolph complained that she had “pulled a ‘stress leave’ certificate” and then withheld payment of commissions on sponsorships she had organised and managed.

In later doctors’ reports, Vivienne reported depression, fatigue, anxiety, feelings of worthlessness, and suicidal thoughts.

She terminated her employment in March 2017 by accepting the club’s repudiation of her contract in that it failed to honour her employment terms. She has not worked since.

Proceedings were begun in the Federal Court of Australia in 2019 for compensation under the Fair Work Act and the Workers Compensation Act.

She had by then already received $120k by order of the NSW Workers Compensation Commission for her psychological injuries in December 2017.

The matter came before His Honour Justice Steven Rares in Sydney for a three-week trial in October and December 2021.

Vivienne’s FWA claim alleged “adverse action” on the Part of HRC by its failure to pay her commissions because such failure was in retaliation for taking sick leave; and by summoning her to the performance meeting because that was in retaliation against her written complaint the day before.

Justice Rares took the view that Rudolph’s bullying behaviour was intended to manoeuvre Ms Leggett into a forced resignation. His evidence was considered ‘implausible’ and he was found to have a contemptuous disregard for the employee.

The judge found such conduct met the Safe Work Australia definition of workplace bullying namely, “repeated and unreasonable behaviour directed towards a worker… that creates a risk to health and safety [for example] abusive comments, aggressive or intimidating conduct, unjustified criticism or complaints, setting unreasonable timelines or changing work arrangements to deliberately inconvenience a particular worker”.

FWA s 361 creates a presumption that the actions – namely the performance review and the withholding of commissions – were taken for the reasons alleged, it was up to the racing club to prove otherwise, ie that they were not in retaliation.

Notwithstanding, Justice Rares was “positively satisfied” that Rudolph had demanded her attendance at the meeting and withheld the commissions inter alia, because of her complaint and because she had “pulled a ‘stress leave’ certificate”.

He agreed with Vivienne’s contention that the club “was evincing an intention not to be bound by the contract” and that she was entitled to accept that conduct as a repudiation.

He then went on to give directions as to how the “substantial damages” should be assessed taking into account her damages entitlement for her psychiatric injury under the NSW Workers Compensation Act, ie past and future loss of income which is all the Act allows to be recovered.

His Honour held that HRC was estopped by way of issue estoppel from denying the content of the Workers Compensation Commission ruling as to the extent of her injury – a 19% impairment – and that her condition was as a result of the conduct of its CEO.

He held that Vivienne’s cries of help and the obviously “demeaning” and “increasingly intense” nature of Mr Rudolph’s conduct, calculated as it was to cause stress to the employee, was such that a reasonable employer ought to have been aware of the risk of injury.

Vivienne’s annual remuneration was upwards of $150k. His Honour awarded her the present value formulation of $2,300 per week – the maximum weekly earnings figure under the Act – escalated annually at 2%, until age 67 with a 17.5% discount for vicissitudes.

In addition, because the club contravened a civil penalty provision – by its adverse actions and by withholding long service leave – a compensation order pursuant to FWA s 545 (1) and 29 (b) was warranted.

In doing so, Justice Rares noted the FWA “is not constrained in respect of the compensation that can be awarded by the separate operation, in a different sphere, of the State Workers Compensation Act”.

Mr Rudolph “effectively destroyed Mrs Leggett’s life,” he wrote in a 55-page judgment. “She cannot work and is permanently incapacitated from doing so by a very serious psychiatric illness that may never be cured or ameliorated to any significant degree”.

The FWA compensation awarded was for the additional sum of $200k.

Leggett v Hawkesbury Race Club Limited (No 3) [2021] FCA 1658 Rares J, published 2 February 2022

source https://cartercapner.com.au/blog/federal-court-tops-up-injury-damages-with-fair-work-compensation/

High Court rules insurers now up for all replacement vehicle hire charges, regardless of ‘need’

Up to now, insurers for a road accident vehicle-at-fault have resisted paying an innocent driver’s replacement vehicle hire charges unless the damaged vehicle was used in the course of a business.

The “mere” inconvenience of being without wheels, was insufficient – insurers have said – to put them to that expense.

Such practice has finally been put to bed by the unanimous decision of the High Court of Australia which has ruled that an at-fault driver – or their insurer – is obliged to compensate in all cases for the inconvenience resulting from the unavailability of a damaged vehicle and for the loss of enjoyment of its use.

The HCA was considering an appeal  against the decision of the NSW Court of Appeal that rule insurers must pay – where a need for a substitute vehicle had been made out – not just for any car, but one of similar standard of luxury to that damaged in the collision.

Four not-at-fault owners whose cars were temporarily unavailable after road accidents had been given a replacement vehicle of the same quality to their own, by a “credit hire” company.

No upfront charge was payable and the company claimed the full hire cost as damages on their behalf against the at-fault driver’s insurer.

At issue was whether the costs of the replacement vehicles should be confined to one that performs the same function as that which was damaged as opposed to the charges for the hire of an equivalent vehicle in terms of luxury and prestige.

For the insurers, it was contended that a Toyota Corolla would have been a sufficient substitute for Azad Cassim’s damaged BMW 535i, Alex Rixon’s Audi Q3, Bilal Souaid’s Lexus IF 250 F Sport Prestige and Seung Lee’s Toyota Camray.

The Court of Appeal decided – by a majority – they all had to be compensated for all the features of the vehicle’s use of which they were deprived, not just for the transportation value of their cars.

Thus the hire of luxury vehicles of the same model or a of a similar standard was reasonable in the case of Cassim and Rixon because of their preference for the highest safety standards and sound performance.

Not to be deterred – and as a sign of the economic significance of the issue in terms of annual claim costs – the insurers appealed to the High Court where all five judges ruled that the compensable loss Cassim and Rixon had suffered included “intangible elements” of the loss of pleasure or enjoyment as well as the inconvenience from being without their wheels.

“A loss of amenity … in the sense of loss of pleasure or enjoyment” is a recoverable head of damage – as a consequential loss – in relation to the negligent damage to a chattel. The “concept of ‘need’ should be eschewed”.

“Compensation for the loss of the availability of a vehicle for use, is inadequate because it does not identify the manner or extent of any loss to a plaintiff,” they observed. “An assessment of consequential loss always requires the identification of the manner in which the loss of use of a chattel has adversely affected the plaintiff”.

Even Mr Souaid – who had failed in the Court of Appeal to recover the hire cost of a BMW 735i – should be allowed the full cost of hire of the luxury substitute.

Souaid’s statement that he would be “okay with just a Holden sedan or a Camry” was – in the High Court’s view – insufficient to displace his entitlement to reimbursement of the full hire charges that would have provided him during the repair period, the amenity and luxury akin to that of his own damaged vehicle.

Likewise Ms Lee – who failed in the Court of Appeal because she took up the use of the temporary replacement only “because the hiring company delivered the vehicle to her home address” – should not have been disqualified from recovery when it was clear that she was deprived of the convenience of a car to visit family and friends and take her children to and from school.

The only qualification to the right to recover hire charges is – particularly in relation to “credit hire” – that the hire charges incurred be within market rate parameters.

Although it might be inferred that “credit hire” fees would be greater than those in the conventional hire car market, the Court of Appeal noted the charges in all four cases were no greater or at least similar, to rates charged by conventional hire car companies.

Not-at-fault parties in road accidents are therefore entitled to be paid the hire charges for a substitute vehicle of an equivalent standard at market rate, regardless of whether it is used for employment, business or simply for convenience. Hire charges must be paid for the entire period they are deprived of their own car’s use.

Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40 Kiefel CJ, Gageler, Keane, Edelman, Steward JJ, 8 December 2021

source https://cartercapner.com.au/blog/high-court-rules-insurers-now-up-for-all-replacement-vehicle-hire-charges-regardless-of-need/