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Case Summary: Entwhistle v Wells
Defence + Indemnity

Where a plaintiff’s vehicle is damaged to the point of becoming a constructive total loss due to a defendant’s negligence, the plaintiff was awarded damages for the time, effort and expense of finding a replacement vehicle.

Entwhistle v Wells, 2019 ABPC 15, per LeGrandeur, P.C.J. [4303]
 
FACTS AND ISSUES

The Plaintiff’s (Entwhistle’s) claim related to a motor vehicle accident caused by the negligence of Megan Wells, while operating a vehicle owned by Edith Wells. Entwhistle had employed his vehicle in his business.  The alleged damages to the Plaintiff’s vehicle exceeded its market value. The parties had agreed at trial that the Entwhistle vehicle was worth approximately $3,000, plus $150 GST, which would be adjusted depending on which party received the salvage credit.
 
Entwhistle also claimed expenses relating to acquiring a new vehicle.  He sought an hourly rate for himself and the person who accompanied him  from Lethbridge to Edmonton (and back) for the purpose of obtaining a replacement car, per diem meal expenses, accommodation costs, fuel costs, and storage costs for the vehicle.
 
While Wells admitted liability for damages to the vehicle, they disputed Entwhistle’s claim for additional expenses as either too remote or that Entwhistle had not reasonably mitigate his alleged losses.
 
The issue was whether or not Entwhistle is entitled to compensation for the effort expanded and the expenses incurred in finding and acquiring the vehicle to replace his destroyed business vehicle. 
 
HELD:  For the Plaintiff, $3,997.51 - $4,762.51 awarded in damages pending the Plaintiffs election regarding salvage credit.

The Court held that Entwhistle was entitled to damages for the time and expenses incurred to find a vehicle to replace his damaged vehicle that was written off as a constructive total loss.

  1. Judge LeGrandeur held that when property is damaged or destroyed, “the Plaintiff is entitled to full restitution (restitutio in integrum). The Plaintiff is to be put back into the position he was in before the accident happened.” The scope of being “made whole” was held to include repairing or replacing property, and plaintiffs are entitled to any “consequential losses arising from the damage to the property”, subject to mitigation issues and remoteness of damages (para.9).
     
  2. The Court held that “just as it is foreseeable that property may be destroyed by negligent operation of a motor vehicle which could result in loss of use and consequential loss of income to the owner thereof, it is also foreseeable that destroyed goods, particularly those necessary to a business, would have to be replaced and that some time may be expended in finding a replacement; and that expenses may be incurred in finding such a replacement (para. 11)
     
  3. Therefore these damages were held not to be too remote, nor was it unreasonable in the circumstances for Entwhistle to have obtained the particular vehicle from Edmonton rather than Lethbridge.

Entwhistle was held to be entitled to general damages for having to go to the trouble of finding a replacement vehicle.

  1. The claim for time and effort focused on Entwhistle’s claim for half of the hourly rate he would have charged if he was able to work in the course of his business. However, Entwhistle failed to provide evidence of his occupation at the time, that he paid his associate who accompanied him, or that he was obligated to pay his associate.
     
  2. However, the Court found that it was clear that Entwhistle was “inconvenienced by the necessity of searching out and acquiring a replacement vehicle” and that but for the negligence of Wells it would not have occurred. Therefore, it was “reasonable and necessary for him to acquire a replacement vehicle for personal and business purposes and as such he was necessarily inconvenienced in having to devote time and effort in that regard. Accordingly in [the Court’s] view he was entitled to a nominal award of general damages for inconvenience”, in this case $750 (para 15). 

The Judge awarded the out of pocket expenses of $362.51 for gas, food and accommodation as claimed by Entwhistle as they were all reasonably incurred.

  1. However, he did not allow damages for storage costs for the vehicle as the judge found Entwhistle had two options with respect of the damaged vehicle, to turn the salvage over to Well’s or her insurer and receive a higher payout, or retain the salvage and receive a lower cash payout. “In either case he would not be entitled to storage charges as he would have either divested himself of the property or retained ownership. In this case he did neither and is entitled to no storage fees with respect to the vehicle.”  (para. 16)

COMMENTARY

As we read the logic of the Court in this case, a Plaintiff’s entitlement for damages to replace a constructive total loss vehicle would not depend on whether or not it was a business vehicle. Also, in the case of a business vehicle it may still be open for the Plaintiff to claim for damages in terms of his/her hourly rate along with that of a necessary associate/employee if the plaintiff can prove those amounts. Where the Plaintiff does not, he/she would be entitled to nominal general damages. If it is a non-business vehicle, Judge LeGrandeur’s reasoning suggests that the Plaintiff is entitled to nominal general damages. While the quantum would be nominal, this may raise disputes in future cases as to exactly what that should be.