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- Never swapped to a lesser car
Almost everyone in this area still says loss of use. Insurers say it, hire companies say it, and it appears in correspondence constantly. The High Court said the phrase is inadequate and identified two different heads of damage instead. That is not pedantry. The substitution is the entire reason a not-at-fault owner can claim an equivalent car rather than merely a functioning one.
Deprived of your car?
Tell us what it was and we will tell you what we run that is genuinely comparable.
Why the Words Mattered
Legal categories are not decoration. They determine what evidence is relevant and what
arguments are available, and in this area the old phrase was quietly doing the insurers' work for
them.
Loss of use frames the loss as functional
If what you lost was the use of a car, then the obvious remedy is the use of a car.
Any car. Once the loss is described that way, the argument that a small hatchback cures it becomes
almost irresistible, because a hatchback does provide use.
The Court replaced it with two heads
In Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40 the High Court held that "loss of
use" is inadequate terminology and identified the correct heads of damage as
physical inconvenience and loss of amenity.
Physical Inconvenience
This is the practical disruption of not having your vehicle. Rearranging how you get places.
The time cost. The trips not made, or made awkwardly. It is the head of damage that most closely
resembles what people mean when they say loss of use, and it is generally the easier of the two to
understand.
It is real, but on its own it would not get you far past a basic replacement, because a basic
replacement does relieve most of the physical inconvenience.
Loss of Amenity
This is the one that changes the outcome, and it is worth stating precisely because it is
frequently mischaracterised as a claim about feelings.
Loss of amenity is the loss of the benefit and enjoyment you derive from the particular vehicle
you chose and paid for. A person who bought a large, quiet, quick, comfortable car has not merely
purchased transport. They purchased those characteristics, and being deprived of them is a loss
even while sitting in something that technically drives.
Why this is not a claim for hurt feelings
It is a recognised head of damage for interference with property, not a claim for distress. The
Court was not compensating people for being upset. It was recognising that the benefit of a chattel
includes more than its bare function, and that removing it removes all of that benefit rather than
only the functional part.
What follows from it
Once loss of amenity is on the table, a replacement that restores only the function has not
made you whole. That is the reasoning that supports a broadly comparable or equivalent vehicle
rather than the cheapest thing that moves.
The Death of the Need Argument
The old framing carried a companion argument: that a claimant had to prove they needed a car at
all. If you worked from home, if your partner had a vehicle, if there was a train, then the
argument ran that your need was limited and so was your entitlement.
The Court held that the concept of need "was a distraction from the proper focus". Both heads
of damage are suffered by being deprived of your vehicle, regardless of what alternative
arrangements you could have cobbled together. That single sentence removed an entire line of
cross-examination.
What This Does Not Mean
Being accurate about the limits is more useful than overstating the case.
It does not mean any replacement is recoverable. The measure is still the
reasonable cost of a broadly comparable vehicle. It does not fix a rate, and it
does not define comparability, which the Court deliberately left to the facts of each case. And it
does not create an entitlement where there was no real deprivation, which is why the Court
acknowledged exceptions such as a claimant overseas, hospitalised, or holding idle fleet vehicles.
How to Use the Right Language
If you are corresponding about a claim, describing the loss accurately is genuinely useful.
Rather than saying you lost the use of your car, describe both limbs. Set out the practical
disruption, and separately set out what the vehicle was and what benefit you were deprived of:
the space, the seating, the capability, the character of the car you chose. That second part is
the part that supports an equivalent replacement, and it is the part most people leave out
entirely because the old vocabulary never asked for it.
A short worked example
"I was deprived of a seven-seat diesel SUV that I use to carry four children and tow a trailer.
The physical inconvenience was that I could not complete the school and sport runs in a single
trip. Separately, I was deprived of the amenity of a vehicle with that capacity and capability,
which a five-seat hatchback does not provide." That is a materially stronger position than "I did
not have my car for six weeks."
Three Misunderstandings Worth Clearing Up
"Loss of amenity means I can hire whatever I like"
No. Recognising the head of damage does not remove the requirement that the cost be reasonable
and the vehicle broadly comparable. It widens what counts as making you whole; it does not remove
the ceiling. Hiring something markedly grander than your own car undermines the claim rather than
strengthening it.
"The Court said I am entitled to a prestige car"
Not quite. The Court said a not-at-fault owner is entitled to the reasonable cost of a broadly
comparable or equivalent vehicle. If your car was a prestige vehicle, a broadly comparable
replacement will be one too. The entitlement follows from what you lost, not from a category the
Court created.
"This only applies to expensive cars"
Also no. The principle applies to any vehicle. It simply produces a more visible difference at
the top of the market, because that is where the gap between what was lost and what is typically
offered is widest. Someone deprived of a seven-seat family car has exactly the same argument
against being handed a hatchback.
How the Two Heads Get Assessed in Practice
In the ordinary case neither head is quantified separately. The reasonable cost of hiring a
broadly comparable vehicle for the relevant period operates as the practical measure of both, which
is why nearly every dispute is really about rate, duration or comparability rather than about the
concepts themselves.
Where it becomes live is when someone did not hire at all. The heads of damage are suffered
whether or not you went out and rented something, but without a hire invoice the loss has to be
quantified some other way. That is a harder exercise and a good reason to take advice rather than
assume that going without a car means going without a claim.
Why This Matters More at the Top of the Market
The gap between function and amenity widens as the vehicle gets better. For a modest car, a
modest replacement restores most of both heads. For a large prestige vehicle, a small hatchback
restores the function and almost none of the amenity, which is precisely why comparability is
fought over hardest on expensive claims.
The claimants in the High Court cases drove an Audi A3 and a BMW 535i. The reasoning is not
confined to that bracket and applies with at least as much force above it.
If the replacement vehicle is booked
We never move you down a tier. If your dates are taken, these are the luxury cars we will offer instead, and we will tell you plainly if none of them is free rather than substituting something lesser on the day.
Range Rover Sport
- 294kW
- 5.9s
- AWD
- 5 seats
The kind of broadly comparable replacement the principle contemplates when the damaged car was a prestige SUV.
Mercedes-Benz GLS
- 243kW
- 6.3s
- AWD
- 7 seats
Seven seats, for when the car off the road was the family vehicle and a hatchback genuinely will not do the job.
Offered something smaller?
Send us the make and model and we will give you an honest view on whether it matches.
General information only. Every claim turns on its own facts.
Frequently Asked Questions
Is loss of use the right term?
Not according to the High Court, which held it is inadequate terminology. The correct heads of damage are physical inconvenience and loss of amenity. The phrase is still used widely in correspondence, but the distinction matters to the outcome.
What is physical inconvenience?
The practical disruption of being without your vehicle: rearranging how you get places, the time cost, trips not made or made awkwardly. It is the limb that most resembles what people mean by loss of use.
What is loss of amenity?
The loss of the benefit and enjoyment of the particular vehicle you chose and paid for. Someone who bought a large, quiet, quick or capable car purchased those characteristics, and being deprived of them is a loss even while driving something that technically works.
Is loss of amenity a claim for being upset?
No. It is a recognised head of damage for interference with property, not compensation for distress. The Court was recognising that the benefit of a chattel is more than its bare function, not awarding damages for feelings.
Why does the distinction change what car I get?
Because a basic replacement relieves the physical inconvenience but not the loss of amenity. Once amenity is recognised, restoring only the function does not make you whole, which is what supports a broadly comparable vehicle.
Do I still have to prove I needed a car?
No. The Court held the concept of need was a distraction from the proper focus. Both heads of damage are suffered by the deprivation itself, regardless of what alternatives you might have arranged.
Does this mean any replacement is recoverable?
No. The measure remains the reasonable cost of a broadly comparable vehicle. The Court did not fix a rate or define comparability, and it acknowledged exceptions where there was no real deprivation.
Does this apply to an ordinary family car, or only prestige vehicles?
It applies to any vehicle. The principle simply produces a more visible difference at the top of the market, because that is where the gap between what was lost and what is offered is widest. Someone deprived of a seven-seat family car has exactly the same argument against being handed a hatchback as the owner of a prestige SUV does.
How should I describe my loss in correspondence?
Set out both limbs separately. Describe the practical disruption, then describe what the vehicle was and what benefit you were deprived of, such as seating, space or capability. The second part is what supports an equivalent replacement and it is the part most people omit.
Is this legal advice?
No. This is general information about how replacement vehicle claims usually work in New South Wales. It does not take account of your circumstances and no solicitor-client relationship arises from reading it. For advice on your own claim, speak to a solicitor.
Does Drive Tribe run my claim?
No. We are a vehicle hire business. What we can do is supply a broadly equivalent replacement from a prestige fleet, and tell you honestly whether what we have is a reasonable match for what you were driving.