If your mechanic crashes your car while it is in his/her possession, are you entitled to compensation for loss of use? What if it’s a Ferrari out of commission for the summer months?
In last week’s case of Miller v. Brian Ross Motorsports Corp. 2015 BCSC 1381 (http://www.courts.gov.bc.ca/jdb-txt/SC/15/13/2015BCSC1381.htm) the plaintiff took his Ferrari to the dealership for an annual servicing. During the road test element of the servicing, the technician crashed into a parked delivery truck, damaging the Ferrari. Due to a series of unfortunate events, the plaintiff did not retrieve his Ferrari for seven months. When he received it, the Ferrari had not yet been repaired. The plaintiff personally arranged the repairs, and was finally able to use his Ferrari almost a year after he delivered it to the dealership for the service that went awry. In concluding that appropriate compensation for loss of use was $15,000.00, Madam Justice Dardi provided the following reasons:
[59] In assessing the appropriate quantum of damages for the loss of use, I have considered the following factors:
- The plaintiff derives great pleasure from driving his Ferrari and he was deprived of driving it for many months including through the summer months of 2013.
- During the Material Period, the plaintiff had an alternative vehicle, the Acura, available for transportation purposes.
- Although the plaintiff endeavoured to drive his Ferrari as frequently as possible, he would not have driven it on a daily basis throughout the Material Period. On his own testimony, he did not drive the Ferrari in the rain, or for work purposes. The Ferrari was insured for “pleasure” and could only be utilized for work purposes a maximum of six days per month.
- The plaintiff travelled away from Vancouver for work and for pleasure during the Material Period.
- Although the plaintiff adduced evidence of a rental rate from Mr. Stirrat of the Vancouver Car Club for a substitute Ferrari, he did not take steps to rent such a vehicle. The defendant challenges the reliability of Mr. Stirrat’s evidence on the rental rate. The rate the plaintiff urges this court to apply is the advertised price and notably, Mr. Stirrat was unable to confirm if any vehicle had, in fact, been rented at that price. In addition, the advertised vehicle is not the same model or year as the Ferrari. Further, although the plaintiff calculated the annual rate by extrapolating the monthly rate, no evidence was provided regarding whether the price would differ for long term renters. Overall, I found the evidence regarding the advertised rental rates to be of limited assistance.
[60] The plaintiff points out that if he had rented a replacement Ferrari, he would have been entitled to special damages for incurring that cost. However the plain fact is that he did not rent a replacement vehicle. Here, the plaintiff’s claim is for general or non-pecuniary damages for loss of use. The doctrinal underpinnings related to general damages are distinct from special damages. Special damages are awarded to compensate a plaintiff for out-of-pocket expenses and generally are calculable monetary losses. In contrast, an award of general or non-pecuniary damages is intended to compensate the plaintiff for more intangible losses and is not a matter of precise arithmetical calculation.
[61] Finally, in assessing general damages, the court must, on a balanced consideration of the evidence, endeavour to tailor an award that is reasonable and fair as between the parties: Kates v. Hall, 53 B.C.L.R. (2d) 322 (C.A.) at 322; Nason v. Aubin (1958), 16 D.L.R. (2d) 309 (N.B.S.C.) at 314.
[62] On a balanced consideration of the relevant factors, I assess the plaintiff’s damages for loss of use of the Ferrari during the Material Period as $15,000.
Authored by Jill Bishop
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