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[COURT OF APPEAL]

DARBISHIRE v. WARRAN.
[Plaint No. T. 19.]

1963 July 3, 4, 30.

Harman and Pearson L.JJ. and Pennycuick J.

Damages - Market value - Secondhand motor car - Well-maintained reliable secondhand motor car - Cost of repairs greatly exceeding market value - No sufficient effort by owner to replace damaged car by comparable secondhand car - Whether owner acting reasonably in having car repaired - Whether owner entitled to cost of repairing replaceable chattel. Damages - Mitigation - Damage to motor car - Duty on plaintiff to mitigate damages Replaceable chattel - Cost of repairs exceeding market value - Whether owner acting reasonably in having chattel repaired - Measure of damages market value.
In 1958 the plaintiff, a mechanical engineer, bought a secondhand 1951 Lea Francis shooting brake for 330. He kept it in good repair; it was reliable; and it suited his family purposes. In July, 1962, it was badly damaged in a collision for which the defendant admitted liability. At that date the list price of the particular model in the price guide used in the motor trade (which makes no allowance for good maintenance and reliability of secondhand vehicles) was 85. The owner, having recovered 80 under his own insurance policy (bearing the first 5 loss himself), had the car repaired at a total cost of 192, despite advice from the repair garage and insurers that repairs would be "uneconomic." In an action in the county court the owner claimed the cost of the repairs plus hire charges during the repair period, giving credit for the 80 recovered under his own policy. The evidence showed that at the relevant date it would have been difficult to obtain a 1951 Lea Francis in the secondhand market, but that similar

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shooting brakes could be had for 80 to 100. The owner's own evidence was that he had not attempted to find a comparable car, preferring to have repaired a car which he knew to be reliable and suitable to his needs. The county court judge gave judgment for the owner, holding that he had acted reasonably in having this car repaired. On appeal by the defendant:Held, allowing the appeal and reducing the damages, that though the plaintiff was entitled to recover such sum as would place him in as good a position as if the loss had not occurred, the measure of damages in the case of a replaceable chattel such as a secondhand car was its market value; and where the plaintiff who was under a duty to mitigate the loss, had had the car repaired at a cost exceeding its market value instead of trying to replace it with a comparable car at the market price, he had not acted reasonably vis--vis the defendant and was not therefore entitled to recover the cost of the repairs.

Per Pearson L.J. As the standard market value of a secondhand vehicle does not include any allowance for good maintenance and reliability, the exact market price may not be the appropriate measure of damages in every case, and there should be some flexibility in the assessment of damages in a particular case to achieve a fair and just result as between the parties (post, p. 1077). O'Grady v. Westminster Scaffolding Ltd. [1962] 2 Lloyd's Rep. 238 distinguished.

APPEAL from Judge Harold Brown, sitting at Haywards Heath County Court. In 1958 the plaintiff, Stephen Hamilton Darbishire, a mechanical engineer, bought a 1951 Lea Francis shooting brake for 330. He kept it by his own efforts in a high state of efficiency having regard to its age, found it reliable, had an affection for it, and it suited his purposes particularly well from the family point of view. He had done a number of mechanical repairs and renewals and in July, 1962, he was in the course of repairing a damaged door which was actually off the car when the vehicle was badly damaged in a collision with the vehicle of the defendant, Mrs. Warran, who admitted liability for the collision. At the date of the accident the market value of the 1951 Lea Francis according to Glass's Guide, the list in use in the secondhand motor trade, was 85. The plaintiff's insurers advised against having the damaged car repaired, and valued it at 85; and as the plaintiff was liable under his policy for the first 5 of damages, he was paid 80 by his own insurers. Despite the advice of his insurers, which was also the advice of a garage to which he took the damaged car, that it would be "uneconomic" to have it repaired, the plaintiff determined to have the car repaired, his view being that he could not buy a car of the same worth to him for less than the cost of the repairs - 192 - and he had the car repaired at that cost. He then brought an action in the county court claiming the cost of repairs - 192 14s. 9d., less the 80 received from his own insurers - and also hire charges of 31 incurred while waiting for the car to be repaired. The defendant, while admitting liability for the collision, denied that the plaintiff had suffered damage or loss as

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alleged or at all. The plaintiff in his evidence stated that he could not have replaced the car for 85, and in cross-examination said that he had not attempted to find another car; that he liked the car which had been damaged, that he knew it, that it was reliable, and that it was suitable for his family. He agreed that its market value at the date of the accident was 80 to 100. The works manager at the garage which had carried out the repairs stated that in September, 1962, he would not have expected to get a reliable replacement for 100, while a consultant engineer called on behalf of the defendant said that while between July and September, 1962, it would have been difficult to find a 1951 Lea Francis it would have been possible to find other estate cars. Judge Harold Brown, giving judgment on March 22, 1963, in favour of the plaintiff, said that the question which he had to decide was whether the plaintiff had acted reasonably in spending 192 on the repair of that particular motor car. He went on: "I do not think I ought to look at it merely from the point of view of a lawyer or a hardheaded businessman or the precise mathematician. What would the ordinary man in the street do in a case like this. I cannot help feeling that he would say to himself: 'I've got these alternatives. This car is 11 years old and I know it was only worth about 80 at the

time of the accident. What can I do with 80? One can do nothing with 80 except buy a repair bill. If I put another 110 to that 80 I can put this car in such a condition that it would be every bit as good as immediately before the accident. Should I do this? The car is safe and reliable and I would much sooner add 110 than spend 80 on the same type of car - if I can find it - and maybe spend over 100 on repairs over the next five years.' The reasonable man would say he would sooner have his old car which he knew than spend 80 on a similar car if available. He would get a car about 11 years old with unknown history and unknown mechanical condition and probably worn tyres. Did the plaintiff act reasonably? What would a jury say? Would a jury say that the plaintiff had acted so unreasonably that he is not entitled to a penny piece more than the market value of the car? I do not think they would. Certainly if they had had any experience of buying an old secondhand car they would not." The judge then made a small reduction from the cost of repairs because of the type of repairs and materials used, and awarded the plaintiff 100 plus 5 for the excess insurance, and 25 for hiring charges, giving judgment for the plaintiff for 130 with costs on scale 4. The defendant appealed, the appeal being brought on behalf of insurance companies as in the nature of a test case on a matter of principle of considerable interest to insurers. The grounds of appeal were as follows: (1) that the judge having found that the market value of the car in its pre-accident condition was 80, misdirected himself in law in holding that the plaintiff was

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entitled to spend 192 in repairing it; (2) that he misdirected himself in failing to hold that the duty of the plaintiff to mitigate damage barred him from recovering more than the preaccident market value; (3) that he misdirected himself in holding that the rule that when a chattel with a market value had been damaged the measure of damages was the difference between the pre-accident and post-accident market value of the chattel only applied where the chattel was damaged beyond repair; (4) that he ought to have held that the plaintiff was not entitled to recover anything in respect of the sum claimed in the action in respect of repairs; and (5) that on his findings the judge ought to have entered judgment for the plaintiff for 30 and no more. Patrick O'Connor Q.C. and Alastair D. Gavin for the defendant. Patrick Garland for the plaintiff. The cases referred to in the course of argument are all referred to in the judgments of the court. Cur. adv. vult. HARMAN L.J. The facts of this case are simple and except on one point, a matter of quantum, not seriously in dispute. The plaintiff's car was in collision with the defendant's and was seriously damaged by what was admittedly entirely the defendant's fault. The plaintiff therefore sued the defendant in damages. These damages he based on the cost to him of

repairing his car. The defence is that the cost of doing this was unreasonable and not recoverable from the defendant having regard to the duty lying upon the plaintiff to mitigate his damages which in the circumstances it is said were not more than the market value of the car at the time of the accident together with some damages for the loss of its use while he was reasonably engaged in looking out for a comparable one. The facts are that the plaintiff's car was a 1951 Lea Francis which he had bought in the year 1958 for the sum of 330. He is by profession a mechanical engineer and had always kept the car by his own efforts in a high state of efficiency having regard to its age. He had done a number of mechanical repairs and renewals and at the time of the accident was in the course of repairing a damaged door which was actually off the car at the time. The market value, that is to say, the replacement value, of the car according to the ordinary guide in use in the trade was at the time 80. The garage to which the plaintiff took the car originally took the view that repairs were uneconomic or, as the manager said, not an economic proposition. The engineer called by the defendants took the same view and the insurance company advised against repairs. The insurance company valued the car at 85 and, as the plaintiff was liable under his policy for the first 5 of damages, he was paid 80.

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Notwithstanding the advice he received, the plaintiff determined to have the car repaired and this he did at a cost of 192. He took the view that the car was worth that to him. It suited his needs and the needs of his family and his opinion was that he could not buy a car of the same worth to him for less than 192. He accordingly gave the defendant credit for the 80 received from the insurance company and sued for the balance together with the cost of hiring a car during the period of repair of his own. The county court judge made certain deductions from the hire charges owing to delay in doing the repairs and awarded 25 under this head together with 5, being the first 5 of the insurance: otherwise the judge in effect acceded to the plaintiff's claim, which, however, he reduced to 100 and gave the plaintiff judgment for 130, that is to say, 100 for repairs plus the 5 and the 25. The defendant appeals. The law of damages arising out of collisions on land has been developed out of the Admiralty rule on collisions at sea and the rule of liability is the same in Admiralty and common law cases: see Lord Dunedin's speech in The Susquehanna (Admiralty Commissioners v. S.S. Susquehanna).1 The principle is that of restitutio in integrum, that is to say, to put the plaintiff in the same position as though the damage had not happened. It has come to be settled that in general the measure of damage is the cost of repairing the damaged article; but there is an exception if it can be proved that the cost of repairs greatly exceeds the value in the market of the damaged article. This arises out of the plaintiff's duty to minimise his damages. Were it otherwise it would be more profitable to destroy the plaintiff's article than to damage it. In the latter cases the measure is the value of the article in the market and this, of course, supposes that there is a market in which the article can be bought. If there is none, then the cost of repairs may still be claimed. This appears from J. & E. Hall Ltd. v. Barclay,2 where it was held that the appellant was entitled to the value of the articles converted which was ordinarily the price of similar articles in the market. As there was no market in the articles concerned, the measure of damages was the cost of replacement. That was a case of conversion but the principle applies. Greer L.J. said this3:

"In my judgment, it is an undoubted fact that there are two rules with which we begin in ascertaining how the damage should be ascertained. The first is this: A plaintiff who is suffering from a wrong committed by a defendant is entitled, so far as money can do it, to be put into the same position as if he had not suffered that wrong. That is what is referred to as restitutio in integrum. The second principle which is accepted is that what he is entitled to, as damages for conversion or detention in respect of the articles so detained or converted and not returned, is

1 [1926] A.C. 655, 661; 42 T.L.R. 639, H.L. 2 [1937] 3 All E.R. 620, C.A. 3 Ibid. 623.

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the value of that article. Then the question is, what is the meaning of 'the value of that article'? Where you are dealing with goods which can be readily bought in the market, a man whose rights have been interfered with is never entitled to more than what he would have to pay to buy a similar article in the market. That rule has been acted upon over and over again, and that, I think, means that, where there is a market, the man whose rights have been interfered with is bound to diminish the damages by going into the market and buying the goods in the market, so as to put himself in the position in which he is entitled to be put, namely, the position in which he would have been if he had not suffered any wrong at all; and, in my judgment, the case to which our attention has been called of Banco de Portugal v. Waterlow & Sons Ltd.4 has really nothing to do with the question that we have to decide here, except in so far as I think it supports the view which I have been expressing." He then decided that as the article in that particular case was one for which there was no market and which you could not buy in the market, the loser was entitled to have it replaced. The judge here held that the plaintiff was reasonable in having the car repaired notwithstanding that the cost was more than twice the value. It may well be that the plaintiff, so far as he himself was concerned, did act reasonably and that what he got was of more value to him than the damages represented by the value of the car. The plaintiff, however, did not show that he had any special use for which this car alone was suitable, as, for instance, in his business, or anything more than that it was a sound car very well maintained and suited to his ordinary life. In my opinion the judge asked himself the wrong question. The true question was whether the plaintiff acted reasonably as between himself and the defendant and in view of his duty to mitigate the damages. The evidence was that a Lea Francis 1951 car might be difficult to find but that other similar estate cars were on the market and could be had for between 85 and 100 which the plaintiff himself stated to be the value of his car. The judge relied on O'Grady v. Westminster Scaffolding Ltd.,5 where Edmund Davies J. held the plaintiff entitled to the cost of repairing his car at a cost considerably exceeding its market value. This case, of course, is not binding on us but if it be right it may be supported perhaps on the ground that the car there in question was unique and could not be replaced. It was a

remarkable vehicle, having been supplied by the plaintiff, the apple of whose eye it was, with no less than three new engines, a new body, and other replacements. In my judgment the facts are very different from those in the present case. Our attention was also drawn to a case in the Court of

4 [1932] A.C. 452; 48 T.L.R. 404, H.L. 5 [1962] 2 Lloyd's Rep. 238.

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Session, Pomphrey v. James A. Cuthbertson Ltd.6 That case went off on a point of pleading and the plaintiff in fact asserted a new measure of damages in that he went into the market and bought a new car, the cost of which he claimed against the defendant together with the cost of adapting it upon the footing that this was in fact cheaper for the defendant than the cost of repairs would have been. Nevertheless the court delivered itself of the following opinion: at the end of the headnote you will find this: "Opinions that, on the footing that the damaged car was a constructive total loss, the true measure of damages was its market value at the date of the collision plus the cost of hiring a substitute until a new car could be procured and made ready for use, less the 'scrap value' of the damaged car," so that the decision, such as it was, is in the defendant's favour. To the same effect is the decision in The Minnehaha7 (Italian State Railways v. "Minnehaha"), an Admiralty case where Lord Sterndale M.R. said this: "That applies to a matter between assurer and assured, but it is a convenient way of stating the question because unless there is some circumstance to justify him the shipowner does not act reasonably in repairing the ship if the repaired value is very much less than the cost of repairing her. Prima facie that is not reasonable. It may be shown to be reasonable if there are certain special circumstances which make the ship of such great value to him that it is better for him and reasonable to spend a very much larger sum than her repaired value. But it requires some special circumstances to show that, because what lies at the bottom of taking the repair value in a case of this kind is that it is assumed that the owner can go into the market and replace his ship at that value. If he can satisfy the tribunal that he cannot be replaced in the position in which he was before the collision by being paid the repair value of the ship, because he cannot replace the ship and cannot buy another in the market, that is another matter, but unless he can show these two points he is not acting reasonably in spending this very large sum." In my judgment the defence succeeds. This was not an irreplaceable article and therefore as the cost of repairs greatly exceeded the value, the car should be treated as a constructive total loss and the measure of damage is its value. What is the result? It is now agreed that the cost of hiring as found by the judge is right and this amounts to 25. The value of the car in the market must I think be taken to be 85. I do

not wish to be understood to hold that the market value is always the true measure. There may be exceptional circumstances, as my brother Pearson L.J. shows in his judgment about to be delivered, which justify a higher figure, but for myself I do not think there is enough evidence of that in this particular case. The plaintiff has received 80 from the insurance company and

6 1951 S.C. 147. 7 (1921) 6 Ll.L.Rep. 12, 13, C.A.

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for this he must give credit, so that he was entitled against the defendant to 30 and judgment should be entered for him for that sum. What effect that will have on the costs is a matter for discussion hereafter. PEARSON L.J. In August, 1958, the plaintiff bought a used motor car for about 330. It was a 1951 Lea Francis shooting brake. Being a mechanical engineer the plaintiff maintained it well and it was reliable. There was no special adaptation of it. On July 26, 1962, it was seriously damaged in a collision caused by the defendant's negligence. The plaintiff sued the defendant in the Haywards Heath County Court for damages for negligence, and the defendant admitted liability but denied the alleged loss and damage. The issue in the appeal arises in this way. The judge included in his assessment of the damages a sum of 180, being the cost of repairing the damage to the vehicle, but he also made a finding that the market value was 80. It is contended by Mr. O'Connor for the defendant that the assessment should have been based on the market value and not on the cost of repair. The other figures can be mentioned briefly. The plaintiff is admittedly entitled to a sum of 25 for the cost of temporary hiring of a substitute vehicle. The plaintiff gives credit for 80 received from his own insurance company. As between the plaintiff and his insurance company the market value was taken at 85, but the plaintiff under his policy bore the first 5 of the loss. This point is unimportant, but I think the judge's figure of 80 for the market value should be adjusted to 85, and Mr. O'Connor does not contest that. There is no complete definition of the expression "market value" in the evidence or the judgment, but I understand it as meaning standard replacement market value, that is to say, the retail price which a customer would have to pay in July, 1962, on a purchase of an average vehicle of the same make, type and age or a comparable vehicle. It is not the price for a sale to a dealer or between dealers. It appears from a passage in the judgment that the "market value" does not include any allowance for the good maintenance and reliability of the plaintiff's vehicle. What are the principles applicable? The first and main principle is that the plaintiff is entitled to receive as damages such a sum of money as will place him in as good a position as he would have been in if the accident had not occurred. In Liesbosch Dredger v. Edison S.S. (Owners)8 Lord Wright said: "It is not questioned that when a vessel is lost by collision due to the sole negligence of the wrongdoing vessel the owners of the former vessel are entitled to what is called restitutio

in integrum, which means that they should recover such a sum

8 [1933] A.C. 449, 459; 49 T.L.R. 289, H.L.

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as will replace them, so far as can be done by compensation in money, in the same position as if the loss had not been inflicted on them, subject to the rules of law as to remoteness of damage." Now, but for the accident, the plaintiff would have continued to have the use of his existing motor car, the 1951 Lea Francis shooting brake, undamaged. The accident deprived him of it. To be restored to substantially the same position, he needed such sum of money as would enable him to provide himself with an equivalent vehicle either by having the existing damaged vehicle repaired or by finding and acquiring another vehicle equally good. There is, however, a second principle which was stated by Viscount Haldane in British Westinghouse Electric and Manufacturing Co. Ltd. v. Underground Electric Railways Company of London Ltd.9: "The fundamental basis is thus compensation for pecuniary loss flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps. In the words of James L.J. in Dunkirk Colliery Co. v. Lever,10 'The person who has broken the contract is not to be exposed to additional cost by reason of the plaintiffs not doing what they ought to have done as reasonable men, and the plaintiffs not being under any obligation to do anything otherwise than in the ordinary course of business.'" For the purposes of the present case it is important to appreciate the true nature of the socalled "duty to mitigate the loss" or "duty to minimise the damage." The plaintiff is not under any actual obligation to adopt the cheaper method: if he wishes to adopt the more expensive method, he is at liberty to do so and by doing so he commits no wrong against the defendant or anyone else. The true meaning is that the plaintiff is not entitled to charge the defendant by way of damages with any greater sum than that which he reasonably needs to expend for the purpose of making good the loss. In short, he is fully entitled to be as extravagant as he pleases but not at the expense of the defendant. Now did the plaintiff in this case take all reasonable steps to mitigate the loss consequent on the breach? He knew from his dealings with the insurance company that they assessed the replacement market value at 85, and he accepted payment from them on that basis. The insurance company advised against repairs. He was told, at one time at any rate, by the repairers that it was uneconomic to have the vehicle repaired. He had estimates of the cost and there is no evidence of the estimates being inaccurate. After spending about 180, he would have a vehicle worth only about 85. And yet he made no attempt to

9 [1912] A.C. 673, 689, H.L. 10 (1878) 9 Ch.D. 20, 25, C.A.

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find another car. It is true he said in his evidence in chief that he could not replace the car with one of similar type and quality for 85, nor for less than 192, but that evidence cannot carry conviction, as he admitted in cross-examination that he did not attempt to find another car. The witness Langley, the works manager of the repairers, said in evidence that he would not have expected to get anything reliable for 100 in September, 1962. He also said that the plaintiff discussed the repairs with their manager Redhouse and that Redhouse said it was not an economic proposition. Barnes, the defendant's expert witness, gave the figures of prices from Glass's Guide, and said that in July to September, 1962, it would be difficult to find a Lea Francis but you could find other estate cars. Then in the notes of his evidence there is the word "uneconomic." In my view it is impossible to find from the evidence that the plaintiff took all reasonable steps to mitigate the loss, or did all that he reasonably could do to keep down the cost. He was fully entitled to have his damaged vehicle repaired at whatever cost because he preferred it. But he was not justified in charging against the defendant the cost of repairing the damaged vehicle when that cost was more than twice the replacement market value and he had made no attempt to find a replacement vehicle. The judge in his judgment stated his view very cogently and at first I thought it was right; but after consideration of the arguments in this appeal I am unable to accept it, because he was not giving due effect to the principles of mitigation of loss or minimising of damage. He was not paying sufficient regard to the economic aspect of the matter. He said: "Evidence has been given on behalf of the defence that it was uneconomical to repair, but I do not think that kind of phrase really helps. What was reasonable for the plaintiff to do?" Later he said: "What would a reasonable man do? I do not think I ought to look at it merely from the point of view of a lawyer or a hardheaded business man or of the precise mathematician. What would the ordinary man in the street do in a case like this?" In my opinion there is an error of principle involved in these passages. It is vital, for the purpose of assessing damages fairly between the plaintiff and the defendant, to consider whether the plaintiff's course of action was economic or uneconomic, and if it was uneconomic it cannot (at any rate in the absence of special circumstances, of which there is no evidence in this case) form a proper basis for assessment of damages. The question has to be considered from the point of view of a business man. It seems to me the practical business view is that if the cost of repairing your damaged vehicle is greatly in excess of the market price, you must look around for a replacement and you would expect to find one at a cost not far removed from the market price, although unless you were lucky you might have to pay something more than the standard market price to obtain a true equivalent of a wellmaintained and reliable vehicle.

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In my view the defendant succeeds on the issue of principle. The assessment should be based on the market price and not on the much higher cost of repairing the damaged vehicle, and therefore the judge's assessment was made on a wrong basis and should be reduced. In considering what reduction should be made, it may not be appropriate to take the exact figure of the market price, which I understand to be the standard market price of an average vehicle of the make, type and age of the plaintiff's vehicle. There should be an element of flexibility in the assessment of damages to achieve a result which is fair and just as between the parties in the particular case. In the Liesbosch case11 Lord Wright quoted Lord Sumner in Admiralty Commissioners v. S.S. Chekiang (Owners)12: "'The measure of damages ought never to be governed by mere rules of practice, nor can such rules override the principles of the law on this subject.'" Lord Wright went on to say13: "Lord Sumner also distinguishes 'a rule of thumb' from what is binding law. In these cases the dominant rule of law is the principle of restitutio in integrum, and subsidiary rules can only be justified if they give effect to that rule." Although I am not able to agree with the judge that 180, the cost of repair, can be regarded as a reasonable figure as between the parties, I do agree with him that the bare market value seems too low, as he accepted the plaintiff's evidence as to good maintenance and reliability, and there was the evidence of Langley that he would not have expected to get anything reliable for 100 in September, 1962. I am impressed by this passage in the judgment: "Did the plaintiff act reasonably? What would a jury say? Would a jury say that the plaintiff had acted so unreasonably that he is not entitled to a penny-piece more than the market value of the car? I do not think they would. Certainly if they had had any experience of buying an old secondhand car they would not." As it would be no kindness to either party to order a new trial on this merely residual question as to what the exact figure should be, it would be appropriate for this court to fix it by a rough and ready estimate. I would fix it at 105 less 80 received by the plaintiff from his own insurance company plus 25 for hiring charges, and the resulting figure is 50. I would allow the appeal, reducing the damages to 50. However, as both my brethren take a different view as to the extent of the reduction which should be made on the evidence given in this case, their view as to the final figure of damages prevails. I should add this. In O'Grady v. Westminster Scaffolding Ltd.14 the decision was justified by the very unusual facts, which made the vehicle unique, so that the standard market value was irrelevant. This is clear from two passages of the judgment

11 [1933] A.C. 449, 463, H.L. 12 [1926] A.C. 637, 643; 42 T.L.R. 634, H.L. 13 [1933] A.C. 449, 463. 14 [1962] 2 Lloyd's Rep. 238

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referring to the car known to the plaintiff and his family as "Hortensia"15: "But it is clear that she was regularly maintained by a competent firm of motor engineers and the defendants did not seek to dispute that this cost him some 300 to 400 per annum. During the period of his ownership, her engine was replaced on three occasions, an entirely new one having been put in in the year before the accident at a cost of 162 10s. and that same year the coachwork had been completely renewed for the sum of 180. Work had also recently been done on, among other things, the wheels, the steering column and the hood"; and later16: "... the remainder of the letter significantly adds: '... we appreciate that this figure' (that is 200) 'is in excess of what a car of this type would normally fetch, but owing to its condition' (and I stress that word) 'it could be considered as unique and it is doubtful whether a car in similar condition would be available.'" The present case is quite different, as the plaintiff's vehicle was an ordinary Lea Francis shooting brake of the year 1951, though according to the evidence it was better than average in respect of maintenance and reliability. PENNYCUICK J. I agree that this appeal should be allowed. The basic measure of damage, so far as now material, is restitution. In the case of injury to a chattel, it may happen that restitution can be effected either by repair of the existing article or by the purchase of a comparable article, namely, an article possessing broadly similar attributes though not necessarily identical. In such a case the measure of damage is restitution by whichever method it would be reasonable for the owner of the chattel to adopt in the particular circumstances. In considering what is reasonable one must, I think, having regard to the owner's obligation to mitigate damage, treat him as looking only to his pecuniary interest, and leave out of account matters of mere taste or convenience. The injured party can in these respects suit his fancy at his own expense but not at the expense of the other party. Where the cost of repairs would exceed the market value of the article, and in the absence of special circumstances, the reasonable method must be to purchase a comparable article. By "market value" in this connection is meant the price at which the article before damage, or a comparable article, could be purchased. As a rule the scrap value of the damaged chattel must be brought into account but this is not a factor here. Turning to the present case, the market value of the damaged car was admittedly 80. It was, however, taken by the insurance company at 85 and I will treat the latter figure as being the market value. The cost of repair was 192. On these figures,

15 [1962] 2 Lloyd's Rep. 238, 239-240. 16 Ibid. 240.

[1963] 1 W.L.R. DARBISHIRE v. WARRAN. (C.A.)

1079 Pennycuick J.

in the absence of special circumstances, it is clear that the reasonable course for the plaintiff would have been to purchase a comparable car rather than repair the damaged car. The judge correctly held that the test was whether the plaintiff acted reasonably in spending 192 on repairs to the damaged car. He proceeded to answer this question in the affirmative as regards the 180. The grounds for this conclusion may be taken from the following passage in his judgment: "The reasonable man would say he would sooner have his own car which he knew than spend 80 on a similar car if available. He would get a car about 11 years old with unknown history and unknown mechanical condition and probably with worn tyres." Then a little later: "The plaintiff preferred to repair something he had got and knew than take his 80 into the market and buy an unknown quantity. He acted reasonably by and large." In so far as the judge is here taking into account the personal convenience of the plaintiff, he is, I think, departing from the correct test of pecuniary interest. In so far as he is taking into account pecuniary interest, his reasoning seems to me to contain a flaw. In reaching the market value of the car, the hypothetical valuer must be regarded as having taken into account all its relevant attributes, that is, mechanical condition, state of tyres and the like. It cannot be legitimate to take the market value and then make an addition for good condition. To do so is to bring the same factor into account twice over. The point may be illustrated by reading two answers by the plaintiff in the notes of evidence. (i) "Could not replace for 85, i.e., not of similar type and quality - not for less than 192." (ii) "Market value at accident 80 to 100." The judge accepted the plaintiff's evidence completely. But these two answers are in truth irrecon-cileable. If one could not obtain a car of similar type and quality for less than 192, then that would be the market value of the car; and vice versa. It is to be observed that there is no evidence to suggest that it would have been impossible to obtain a comparable car. The plaintiff deposed that he did not attempt to find one. O'Grady v. Westminster Scaffolding Ltd.17 may be distinguished on the ground that the car "Hortensia" was a unique article and that no comparable article could have been purchased. It is as though someone had elected to drive around in a mechanised replica of the Lord Mayor's coach. I would prefer not to express any view of the measure of damage which falls upon a party unfortunate enough to injure a freak article. I would reduce the damages here to 30, namely, 25 for hire and 5 for damage not covered by insurance. I do not myself

17 [1962] 2 Lloyd's Rep. 238.

[1963] 1 W.L.R. DARBISHIRE v. WARRAN. (C.A.)

1080

think there is any evidence in this case which would justify an award over and above this amount. Appeal allowed with costs. Plaintiff to have costs in the county court down to date of delivery of defence and defendant to have costs of that action thereafter. Scale 2 for plaintiff up to date of defence and Scale 4 for the defendant. Solicitors: Burton, Yeates & Hart for Nye & Donne, Brighton; Montague, Williams & Piper, Brighton. M. M. H.