Kinkhead v Rositani  VMC 009 is a case about crash and bash litigation, a field of endeavour for lawyers which is fertile as a generator of professional misconduct prosecutions. That is because the Victorian Legal Services Commissioner has a fascination with the lawyers who act for plaintiffs who elect to sue the other driver in the courts rather than claim on their insurance. And it is because the big insurers are merciless in their pursuit of the plaintiff lawyers whom they loathe for using the law to interfere with their preferred way of dealing with things, and because they are canny in their lobbying of regulators. RACV will not be amused by this very civilised judgment by Her Honour Meghan Hoare.
Ms Rositani crashed into Mr Kinkhead’s parked BMW which was 12 years old and comprehensively insured by RACV. She was clearly at fault. Within a couple of days it was clear his vehicle was a write off. Sounds simple, right? Mr Rositani was told that he would be better off suing the clearly negligent tortfeasor directly than claiming on his own insurance, which, it turns out, would have entitled him to a hire car, but he didn’t know that. Also turned out that Ms Rositani was also insured by RACV.
The day after the accident, Mr Kinkhead, a chef, hired a Toyota Corolla through an accident hire car company, Mainstream Rentals. This usually comes about through the plaintiff’s repairer, and the plaintiff generally does not have to pay the fee from their own pocket; the rental car company gets its fees from the damages obtained through the plaintiff’s solicitor if the plaintiff’s suit succeeds, and the plaintiff’s solicitor also generally acts no win no fee.
In this case, a ‘one-stop shop’ arranged the tow-truck, the assessment, the salvage tender and pay-out and the car rental (see ). It came with insurance, a zero excess, roadside assist and a baby capsule, for $155 per day (there was evidence that Hertz might have rented him one for less than $90 per day). Within weeks, Mr Rositano’s partner gave birth and he lost his job. He didn’t have a credit card and couldn’t rent a car through AVIS, of whom he made enquiries, because he couldn’t stump up the bond, and he couldn’t afford to buy a car.
RACV failed to admit Ms Rositani’s legal liability for the damage occasioned by its insured crashing into a parked car for 122 days and did not pay Mr Kinkhead damages for loss of his car ($24,600) for 196 days.
The Court awarded damages of $33,325 for 215 days’ car hire. It rejected RACV’s argument that Mr Kinkhead’s obligation to mitigate his loss required him to claim on his own insurance, on the basis that Mr Kinkhead’s relations with his insurer were res inter alios acta vis a vis the tortfeasor: National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569.
The case is also interesting as an example of a witness who was revealed by the litigation to have engaged in a fraud, and who was a compulsive gambler, being nevertheless believed (see ).
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