Motorcycle hire claims – beware.

In circumstances where a motorcyclist claims to lead a ‘biker lifestyle’, attending biker meets and using the motorbike for most of their day-to-day needs, but has the availability of a car, should they be entitled to claim the cost of hiring a replacement motorcycle whilst repairs are taking place?

The question recently became the subject of an oral permission to appeal hearing before Her Honour Judge Brownhill, sitting at the County Court in Winchester.

On behalf of the Defendant in advance of trial, Liam Knight of DWF Law identified concerns regarding the Claimant’s alleged use of his motorbike, despite the Claimant’s assertions as to its extensive use for commuting to work, for social domestic and pleasure needs and to attend events. Under cross examination by Martin Ferguson, the Claimant accepted that pre-accident MOT’s demonstrated his actual mileage to be considerably less than his alleged commuting mileage and revealed that he had a car which was, at the time of the accident, unroadworthy. He went on to accept that he had previously used the car to commute to work on occasion and could himself have repaired the car within a day or so.

The judge accepted that the Claimant had not proven his need to hire a replacement motorbike. The authorities were reviewed extensively and it was accepted that whilst need is a low hurdle to overcome, it is not self-proving and any inference as to need can be displaced where other modes of transport are available. Significantly, the judge did not accept the Claimant’s position that leading a ‘biker lifestyle’ overcame even a low hurdle in respect of need. The judge considered whether the act of hiring a replacement motorbike could be considered an act of mitigation and found that it was not.

At the permission to appeal hearing, HHJ Brownhill noted the Claimant’s reference to the case of Gow v NFU, an appeal heard in London, often cited in similar cases, where a Claimant hires a vehicle but has access to one or more other vehicles which could arguably have fulfilled their transport needs. In the present matter, on appeal the Claimant stressed the principle of restitution in integrum, but HHJ Brownhill noted that: “With reference to Gow, things have moved on. If matters started and ended with restitution in integrum there would be no consideration of need.”

Accordingly, the Claimant did not recover hire charges incurred at over £23,000.

The case is a reminder to both sides of the fence. For Defendants, this and other recent cases provide encouragement that the courts are ready and willing to displace inferences of need, even in circumstances where a Claimant claims that a certain mode or type of transport fulfils his lifestyle needs. For Claimants, it is a reminder that where other vehicles are available it is better to be upfront with the Defendant and court and to provide clear evidence as to the use of all vehicles.

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