There has been a large increase in the number of self-employed minicab drivers over the last 10 years, many earning relatively small amounts, driving their own vehicles which are also often for some family/social use as well When such a car is damaged in an accident what should be the measure of loss? Do you treat the case as if it was an accident to an ordinary car where the owner can hire/credit hire a replacement during the repair period and claim that hire cost as part of the loss? Or is the loss limited to the loss of profit because the car is being used as a commercial chattel? The loss of profit is often tiny in relation to the cost of credit hiring a replacement vehicle such that it does not appear to make commercial sense to hire a replacement. There have been numerous decisions both ways over the past few years in the County Courts but Hussein -v- EUI is the first High Court case. Pepperall J decided on appeal that:
The starting point is that the claim is for loss of profit but (and it is a big but) there are exceptions being:
• Where the claimant might lose valuable customers if he did not hire a replacement and keep driving. In this scenario the potential loss of profit over time is more than the actual hire cost. (Whilst this might not look a likely argument for the standard Uber driver, minicab contracts sometimes gives the company a right to terminate if the driver is not able to drive for a period and so the driver may argue he could have lost his livelihood had he not hired a replacement car.).
• Where the claimant used the car for private and family use as well as business the replacement cost would usually be recoverable if a private motorist would have been entitled to recover the costs. (This is going to cover a large number of standard situations)
• It might be reasonable for an impecunious driver to hire a replacement because he simply could not afford not to work. Impecunious professional drivers should not be forced to look to the state to provide for their families whilst they wait for a defendant payment for loss of profit.
Hussain gives some welcome certainly in this area. In Hussain itself the claimant was limited to loss of profit because he was debarred from arguing impecuniosity and it was found he did not need his vehicle for private use. But in the majority of cases, the claimant is likely to benefit from the exceptions set out by Pepperall J.