CREDIT HIRE AND PHYSIOTHERAPY: COURTS CUT CLAIMS
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the Court of Appeal upheld its own approach in Stevens v Equity Syndicate  EWCA Civ 93, that is that the basic credit hire rate was to be calculated by reference to the lowest reasonable rate.
The Court of Appeal held that the exception to that rule applied only when the claimant was impecunious and was a narrow exception.
As a matter of principle a credit hire company cannot recover the full rate simply because it was not possible to obtain a basic higher rate with a nil excess.
The Court of Appeal said:
“76. Accordingly, in my judgment, where a nil excess is not available from car hire companies, the correct approach is to treat the nil excess separately from the comparison exercise between the default credit hire rate and the basic hire rate with an excess. It will almost invariably be the case that it was reasonable for the claimant to seek a nil excess for the reasons given in Bee v Jenson and, on that hypothesis, the only question for the Court will be how much should be recoverable as the cost of purchasing a nil excess.”
At paragraph 95 the court said:
“…one should never lose sight of the fact that the “stripping out” exercise advocated by Dimond v Lovell is necessarily an approximate and artificial one because, by definition, the claimant did not in fact hire a comparable car from a mainstream or reputable local car hire company. He actually hired from the credit hire company, so that inevitably the evidence is sought after the event of what rate of car hire could have been obtained, on the hypothetical basis that he had hired from a car hire company instead.”
The Court of Appeal said that the adjustments made by the judge, doing the best that he could on the evidence, were not to be criticized and nor would it have been appropriate for the judge simply to award the credit hire in full because of the absence of direct evidence of a seven day hire rate or an excess waiver product for the vehicles hired.
The Court of Appeal gave guidance as to the question of excess waiver insurance:
“…I consider that where there is evidence of the availability of an excess elimination insurance as a stand-alone product from Questor or other providers such as Insurance4carhire.com, the Courts should admit and accept such evidence as evidence of the reasonable cost of obtaining a nil excess, provided of course that the quote obtained from such a provider is for a car which is comparable with the one hired from the credit hire company and is for the same period as the period of actual hire from the credit hire company. Certainly the Court should not reject such evidence because the judge or the claimant has not heard of the product, as the district judge did here. The exercise is an objective one and such evidence should be admissible irrespective of the subjective knowledge or lack of it of the Court or the claimant. Information about the availability of such products can, in any event, be readily accessed on the internet. It is apparent that, whilst some judges in the County Courts have not been admitting such evidence, others have: see the findings of the judge in one of the cases appealed in Dickinson v Tesco  EWCA Civ 36;  RTR 27 referred to at  of the judgment of Aikens LJ. The admission and acceptance of evidence of these stand-alone products should be the norm.”
Physiotherapy costs: Credit Hire Principles Apply
In Nuttal v Chew, 22 March 2017, Leeds County Court, Unreported
the judge at a stage 3 road traffic damages assessment held that the recoverable physiotherapy treatment fees were limited to the rates charged by the physiotherapist offered by the defendant’s insurers.
The Claimant suffered a lower back injury in a road traffic accident on 28 April 2016.
By letter to the Claimant’s solicitors dated 5 May 2016, which was included in the Stage 2 documents, the Defendant’s insurers stated,
“Please note we are able to and willing to instruct a Rehabilitation Provider to assess your client’s needs for rehabilitation and provide rehabilitation as required at a cost of £41 per session. We will therefore only consider any rehabilitation costs up to £41 per session, as per the Rehabilitation code 2007. We also bring your attention to the judgement in the case of Copley v Lawn in respect of mitigation”.
Six sessions of physiotherapy were recommended by the Claimant’s medical report dated 24 May 2016.
The Claimant obtained treatment from a physiotherapist of her own choice and claimed special damages of £455, comprised of invoices for £50 for “telephone triage”, £75 for “initial assessment”, and £55 each for six sessions of physiotherapy treatment.
The court accepted the argument that special damages for physiotherapy treatment should be limited to the cost of six sessions of treatment at the rate of £41 per session, which would have been charged by the physiotherapist offered by the Defendant’s insurers, totaling only £246.
The Deputy District Judge found that the principles, applied by the Court of Appeal to the rates of charge for credit hire vehicles which were recoverable in damages, in the case of Copley v Lawn  EWCA Civ 580 were applicable to the rates recoverable for private physiotherapy treatment: and that a Claimant could not recover the full costs resulting from her making her own choice of physiotherapy treatment at a rate higher than the rates which she knew would have been charged had she accepted an offer of alternative treatment made by the Defendant’s insurers.