Under the law of restitution, damages for loss of use of a vehicle are recoverable where an injured party has not received a replacement vehicle but has been without the use of his vehicle for a period of time.
Vouching documentation should be obtained to support the claimant’s need for a vehicle however the case law authorities are very clear as regards the entitlement of an injured party to a loss of use claim. Loss of use often arises when a claimant is using his vehicle for business purposes however a claimant may, for instance, require a vehicle to visit or care for a sick relative on a regular basis.
Rate of loss of use
As with many issues surrounding credit hire or, as in this case, alternatives to credit hire there is a certain amount of room for negotiation and there is no definitive formula for calculating a loss of use claim. In theory, where an injured party is entitled to damages in respect of loss of use, the Claimant may be entitled to the cost of hiring an equivalent replacement vehicle.
In Cabrini Deighan v A Armstrong and others, loss of use was assessed at £10.00 per day. The writer has noted a nominal rate of as much as £30.00 per day claimed previously. In January 2009, His Honour District Judge Wells advised that it was years since he had dealt with a loss of use claim and queried whether the rate was now £18.00 per day. In discussion with others our understanding is that in England loss of use is allowable at £10.00-£15.00 per day. However a reasonable weekly rate can often be agreed for a long hire duration and £60.00 is a reasonable weekly rate which has been used to resolve a claim for loss of use.
Duration of loss of use
A claimant should be aware of their duty to mitigate their loss. Regard must be paid to the period for which loss of use is claimed. After all, had a claimant made use of an accident management company then the period of loss of use would have been regulated as the accident management company would have a duty to monitor the duration of a claimant’s loss of use.
Often a repair invoice will indicate the reasonable loss of use period.
Factors to be considered when compensating loss of use
It might be considered that, in light of the prevalent credit hire claims, often judges will favour a Claimant who is claiming loss of use rather than credit hire therefore there is a risk in allowing a Claimant to go before the court to have loss of use damages assessed.