Background
When we think about property damage, we often focus on the physical damage, transport expenses, and loss of property. However, there is another significant aspect that is often overlooked: the loss of amenity of use. This legal concept recognises the intangible impact that injuries can have on a person's enjoyment of life, their ability to engage in their activities, and their ability to earn income. In this blog, we will briefly discuss the concept of loss of amenity of use, its significance in property damage cases, and how it contributes to the assessment of damages. We will briefly discuss the recent decision of the High Court of Australia, in the case of Arsalan v Rixon; Ngyuen v Cassim [2021] HCA 40. An analysis of the facts of Arsalan’s case is beyond the scope of this blog. Similarly, an analysis of the arguments for and against loss of amenity is beyond the scope of this blog. The main focus of this blog is understanding the concept of “loss of amenity of use”.
Loss of amenity of use has been the subject of vigorous litigation for a number of years. For quite some time, it fogged the minds of the lawyers and judges and instilled doubt into the minds of the claimants and defendants. It questioned the very definition of the general principle of damages in common law which is, that “an injured plaintiff is entitled to receive an amount of damage that would put them back into the position they would have been, if the injuries had not been caused by the defendant”. This principle of damages received the stamp of approval from the High Court of Australia in the case of Arsalan. Much of the litigation pertaining loss of amenity of use claims relates to motor vehicle property damage claims. However, loss of amenity of use is not only limited to motor vehicle claims, it extends to any chattel which produces income and/or enjoyment.
So what is loss of amenity?
The term "loss of amenity of use" is a legal concept that relates to damages, typically in the context of personal injury or property damage claims. It’s a concept that was developed by common law in England but had been lingering in the shadows due to it’s uncertainties. It refers to the loss or reduction of the enjoyment, pleasure, comfort, or utility that an individual or property owner experiences as a result of an injury, accident, or other harmful event. It takes into account the impact of the injury or damage on the persons quality of life, their ability to engage in activities they previously enjoyed and whether as a result of the loss of the property, the person suffered any damage as well as any “inconvenience”.
The High Court in the case of Arsalan clarified some of the misconceptions of the principle of loss of amenity of use claims. The Court in that case held that where a plaintiff’s chattel is damaged as a result of the negligence of a defendant, the injured plaintiff is entitled to a broadly equivalent make and model vehicle. The court categorised an injured plaintiff’s damages as:
direct damages (cost of repairs / replacement vehicle); and
consequential loss (loss of amenity of use).
On loss of amenity, the High Court clarified loss of amenity as being recoverable as head of damage. That is, an injured claimant is not only entitled to the direct damages caused to their property and the replacement of an equivalent make and model property until their damaged property is repaired – but the injured claimant is also entitled to the loss of pleasure or enjoyment in the use of the relevant property / chattel. The court followed the general common law approach that the plaintiff receive an amount of damage that will put them back into the position they would have been, if the collision had not occurred. And extended its definition to include loss of pleasure or enjoyment.
It's important to note that in the context of property damage, loss of amenity is not only limited to motor vehicle property damage claims, it extends to any chattel or property that is for example: an income earning chattel (i.e. vehicle, vessel); fixture that produces a benefit (i.e. an automatic roller door); and could even include an equipment (i.e. a Camera).
For example, in a property damage claim, if a defendant collides into an automatic roller door which has the dominant purpose of providing security for the premises in question, the claimant is not only entitled to the replacement costs of the automatic roller door, and the costs of a temporary door, until the door is repaired – but also for the loss of pleasure and enjoyment of the use of the door. If the automatic roller door had a special sensor installed within it that would alert a security guard patrol to arrive in case of an emergency which is irreplaceable for a number of days, the claimant is entitled to the loss of that particular feature as well as the temporary replacement automatic roller door.
Loss of amenity is not limited to motor vehicle property damage claims, it extends to loss of pleasure and enjoyment of any chattel and/or property.
Note: This is a general guide only. Circumstances may vary and advice should be sought about your specific circumstances.