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Copley v Lawn (2009)

Copley v Lawn (2009)

Court of Appeal
Date: June 2009

The Issues:
If the defendant's insurer offers a “free” car to the claimant following a road traffic accident, but the offer is refused, can the defendant argue that the claimant has failed to mitigate his loss?

Held: Although the defendant's insurers purportedly offered a “free” car, in reality the car was not being given to the claimant, but instead the cost of hire would be met by the defendant's insurer. Therefore in order for the claimant, or their, adviser to consider whether the defendant was offering a hire vehicle at a cheaper rate than they had been able secure themselves, the defendant's insurer would have to make the cost of hire clear within its offer.

In the circumstances, the Court of Appeal concluded (at para 32):

  1. that, looking at the matter objectively, it is not unreasonable for a claimant to reject or ignore an offer from a defendant (or his insurers) which does not make clear the cost of hire to the defendant for the purpose of enabling the claimant to make a realistic comparison with the cost which he is incurring or about to incur,
  2. that, following Strutt v Whitnell , if a claimant does unreasonably reject or ignore a defendant's offer of a replacement car, the claimant is entitled to recover at least the cost which the defendant can show he would reasonably have incurred - he does not forfeit his damages claim altogether

To that extent, the general rule that the claimant can recover the ‘spot' or market rate of hire for his loss of use claim was upheld, unless and to the extent that a defendant can show that a car could have been provided by them at a cheaper rate.

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