When seeking special damages, there is often an issue that is raised by the compensating Defendants, putting the Claimant back into the position but for the accident and avoiding a windfall (aka betterment).
Betterment occurs when remedying a damaged chattel leaves the owner in a better position than before the incident that caused the damage. Quite often, a Defendant will argue that there needs to be a reduction of value to account for wear and tear and appreciate the value of the chattel at the time of the loss to account for the general diminution of value over time. This is often seen in road traffic accidents, where engineer reports determine the pre-accident value.
However, in a recent case of mine, it was seen that it is not always the case and in fact, even if there was a betterment, a reduction was inappropriate.
Avid cyclist
In a recent stage 3 hearing, the claimant was seeking the replacement cost of his high-spec bicycle, which he originally paid £4,100 for. It was accepted that the Defendant’s negligence could have caused the damage, but the claimant was now seeking a sum in excess of £5000 for a new spec bicycle, as it was the claimant’s position that the original bicycle was no longer available. Understandably, the Defendant argued that it was betterment and that if this were a car, then the Claimant would be accepting that the value was only as much as the pre accident value was at the time of the collision.
I argued that there was no other marketplace like that of motor vehicles where there wouldn’t be an option for a second-hand dealership to provide the reassurances under the Consumer Rights Act 2015 that were available for motor vehicles.
The judge accepted my argument but elaborated further by referring to a case within McGregor on Damages called ‘The Gazelle’.
The Gazelle
The admiralty case that the Judge referred, The Gazelle [1844] 2 E Rob (Adm) 279, established a key principle. Dr Lushington said that even if a Claimant (or Plantiff as they were called then) benefits more than just compensation, full recovery of costs is still allowed if the benefit is unavoidable. If repairs or replacements are necessary for proper indemnity and incidentally benefit the claimant, no deduction is needed. The Court also refused to use the marine insurance rule of deducting “one-third new for old” because it would unfairly impose a loss on the Claimant.
Other cases
In the case of Harbutt’s Plasticine Ltd v Wayne Tank & Pump Co Ltd [1970] 1 Q.B. 447, the following was said:-
The destruction of a building is different from the destruction of a chattel. If a second-hand car is destroyed, the owner only gets its value; because he can go into the market and get another second-hand car to replace it. He cannot charge the other party with the cost of replacing it with a new car. But when this mill was destroyed, the plasticine company had no choice. They were bound to replace it as soon as they could, not only to keep their business going, but also to mitigate the loss of profit (for which they would be able to charge the defendants). They replaced it in the only possible way, without adding any extras. I think they should be allowed the cost of replacement. True it is that they got new for old; but I do not think the wrongdoer can diminish the claim on that account.
In another case of Bacon v Cooper (Metals) [1982] 1 All ER 397, the Court noted that:-
“if a secondhand car is destroyed, the owner only gets its value; because he can go into the market and get another secondhand car to replace it”:
This is why the Judge accepted that the Claimant had not had a betterment, because there was no second-hand market (or a sufficient professional second-hand market), which put the Claimant at a disadvantage and should not have been put out as a result.
Whilst the principle was what I argued, the case law that the Judge took note of himself was crucial in making that point.
Further example
I was able to further argue the same principle on behalf of another cyclist whose clothing was damaged. The Judge accepted the points above that there was no secondhand market and quite simply allowed the sums claimed as they were, with no reductions.
In fact, the Judge had already anticipated my argument when I quoted the Gazelle.
Concluding thoughts
Of course, this does not apply to a situation where it is cost-efficient to repair the chattel. In that case, it is a diminution of value. In that situation, it would be that the diminution of value is measured by the cost of repair as per Coles v Hetherton [2013] EWCA Civ 1704.
There may be a situation where the cost of repair far exceeds the value of the chattel, but the chattel is so rare or irreplaceable that the cost of the repair is justified.
It ultimately depends on individual factors and possessions. Comparing the second-hand market for motorcars to that for bicycles and bicycle equipment is not straightforward, as they are very different. While you can buy these items second-hand, you won’t have the same assurances typically provided by professional dealers for motorcars.
The key evidence for the Claimant is that there is no professional second-hand market, and for the Defendants to demonstrate to the contrary.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.