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):
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.