‘I’m being slugged $280 for car hire damage I didn’t do’

A woman in NSW has been caught in a “crazy situation” after being charged hundreds of dollars for damage to a car she didn’t cause.

The car hire company’s terms and conditions may stipulate that the borrower is liable for the damage. Picture: unsplash/Samuel Foster

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise about a woman’s sneaky car hire fee.

Question:

I recently hired a car for the weekend through a car share company.

Unlike other car hire companies, you don’t pick it up and drop it off at an outlet. Instead, you pick it up from the street and enter photos into the app to show the condition of the car before and after the trip.

The app is not very user-friendly and it was my first time using it, but I thought I had logged enough photos to show the car’s condition.

However, a week after renting the car, I was slugged with a $280 bill for a damaged mudguard. The company’s “proof” that I needed to pay for the repair was a photo taken on April 16, five days before I hired the car, showing the mudguard intact, then a photo of the damaged mudguard when I dropped it off on April 23.

I don’t remember doing anything that would have damaged the mudguard so I have disputed the claim, but they keep pushing back, saying they are going to take the money from my account.

Through my investigations, I have discovered that the car was hired twice more between the last photo they have of the mudguard intact and me hiring the car. The owner of the car could also have used the vehicle in that time.

However, as none of these logged photos show the mudguard sufficiently, they say that I’m liable for the bill. They say that their terms and conditions state that if it’s unclear who caused the damage to a car, then the last person to hire the car is liable.

This seems like a crazy situation. Can they really take money from me when there are three other parties that could have done the damage?

What can I do, as they keep saying they are going to take my money? – Hayley, NSW

Hayley conducted her own investigations into who could have caused the mudguard damage. Picture: iStock.

Answer:

We’ll provide you with general advice only, because you haven’t identified the name of the car share company to enable us to comment on the precise terms and conditions of the arrangement or the damage and loss cover they may have offered (if any).

Most of these platforms act as an intermediary between the owner of the car and the person who borrows the car, so you won’t be dealing with the car owner directly.

With that in mind, the car share company will have an internal dispute resolution procedure you can follow if you disagree with their decision about payment for the damaged mudguard.

You should familiarise yourself with the internal dispute resolution procedure, which would be on their website.

You’ll also need to read the company’s policy with respect to responsibility for damage and understand details of any damage and loss cover that was provided with the hire of the car.

This will assist you in being able to determine if you may have grounds to dispute their assertions you are responsible for the damaged mudguard.

The method used by the car sharing community to identify who is responsible for any damage is usually based on photographs of the inside and outside of the vehicle taken from different angles by the borrower.

In the app you used to pick up and return the car, we expect you would have been notified, in writing, that it was your responsibility to upload numerous photos of the car at different angles. The app would have likely provided you with a warning to ensure that the photos you upload carefully show any damage to the car before you drive it.

As a rule of thumb, the borrower of the car is responsible for all damage to the car that occurs from when you pick it up to when you return it, even if the damage is not your fault (for example, if another car goes through a stop sign and runs into you).

The exception to this is that borrowers are not usually responsible for general wear and tear to the car, so for example, wear and tear to tyres – which require regular maintenance.

This all means that ultimately, the responsibility is on the borrower of the car to carefully inspect the vehicle and identify any damage before it is driven. Failing this, you risk a repair bill, which is the situation you are now in.

It is likely that on a literal reading of the terms and conditions, you will be liable for the damage.

That said, the terms and conditions of the car share arrangement do have to comply with the Australian Consumer Law, in that the contract terms can’t be applied in an unfair, confusing or obscure way, and the company can’t act in an unconscionable way.

The car hire company’s terms and conditions may stipulate that the borrower is liable for the damage.

If you have any chance of disputing the bill, it would be on these grounds.

The steps you have taken to identify the timeline of when the car was hired to others is a good first step.

You should now write an email to the car share company that sets out the reasons why you believe you are not responsible, and include any evidence you hold.

You should clearly assert that others had hired the car in between the time the last undamaged photo of the mudguard was taken, and when you hired the car.

Also state that you believe they are applying the terms and conditions in a way that breaches the Australian Consumer Law, as we have outlined above, and ask that they do not deduct the money from your account, and warn them that any such deduction would be unauthorised.

Ultimately, we expect that under a strict reading of the terms and conditions, they have the right to deduct these funds, and you will need to bring an application in the New South Wales Civil and Administrative Tribunal to dispute the transaction.

To do so, you can lodge a claim online or complete a ‘consumer claim application about goods and services form’ within three years of the deduction of the money from your account.

If you would like further advice you can contact NSW Fair Trading.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email [e-mail]. Get more from Alison and Jillian on their Facebook page