Boumelhem v Jogia Holdings Pty Ltd

[2017] NSWCATCD 81

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Boumelhem v Jogia Holdings Pty Ltd [2017] NSWCATCD 81
Hearing dates:	15 August 2017
Decision date:	24 August 2017
Jurisdiction:	Consumer and Commercial Division
Before:	Francesco Corsaro, SC, Senior Member
Decision:	1.   The respondent, Jogia Holdings Pty Ltd, is to pay the applicant, Ms Christina Boumelhem, the amount of $2,440.00 within 14 days of the date of this decision.
Catchwords:	Consumer Claim – services – compensation for loss and damage resulting from hairdressing services – implied term to provide services with reasonable care - breach of implied term of the services contract to provide hairdressing services with reasonable care – causation - loss and damage
Legislation Cited:	Fair Trading Act 1998 (NSW)
Category:	Principal judgment
Parties:	Christina Boumelhem (Applicant) Jogia Holdings Pty Ltd trading as Simply My Hair Myer, Macquarie Park (Respondent)
Representation:	Applicant in person The Respondent company was represented by its director, Mr J Jogia
File Number(s):	GEN 17/23686
Publication restriction:	Unrestricted

reasons for decision

INTRODUCTION

1. The applicant, Ms Boumelhem, claims compensation for damage to her hair when she attended the respondent’s hairdressing salon to have her hair washed and blow-dried.

2. The respondent (JHPL) operates a hairdressing salon, which is part of the Myer store in the Macquarie Shopping Centre at North Ryde, in Sydney (the Salon). There is no dispute that Ms Boumelhem went to the Salon on 24 April 2017 to have her hair washed and blow-dried. Ms Boumelhem and JHPL agree that Ms Boumelhem had previously had her hair done at the Salon on other occasions.

3. Although there is disagreement as to whether Ms Boumelhem went to the Salon on 24 April 2017 because she had pre-arranged an appointment, nothing turns on this.

4. Ms Boumelhem’s version of events are that on 24 April 2017 she had her hair washed at the Salon using a shampoo or other product that caused a stark and an unwanted change in her colour; her natural hair was streaked and the hair extensions which were bonded to her hair changed to a uniform, and a very noticeably pale, colour in contrast to her natural hair. Ms Boumelhem complained about this. The JHPL hairdresser applied treatments to her hair to try and reverse the colour changes. The first caused Ms Boumelhem’s natural hair and hair extensions to change colour again, but at least to look more consistent. The resulting hair colour was uneven, and unacceptable to Ms Boumelhem. The hairdresser tried again. She applied further hair products containing chemicals. The effect of this second treatment was also unsatisfactory. By this time, the hair extensions were slipping. This was obvious in the photographs taken by Ms Boumelhem during the course of the hair treatment.

5. Ms Boumelhem’s position is that she is entitled to compensation. She claims that the treatment to her hair at the Salon on 24 April 2017 damaged her hair and her hair extensions. There is no real issue that the hair extensions were replaced at a cost of $2,000.00. Her hair has had ongoing remedial treatments at significant cost.

6. Ms Boumelhem’s claim has the support of a report from another hairdresser, Ms Bray. She has assessed the cause of the damage to Ms Boumelhem’s hair, and explains that Ms Boumelhem has had ongoing treatment.

7. JHPL denies it has any liability to Ms Boumelhem. JHPL says that the colour change was what Ms Boumelhem wanted. The further treatment was unfinished because Ms Boumelhem left the Salon.

PROCEDURAL HISTORY

8. Ms Boumelhem lodged her application with the Tribunal on 22 May 2017.

9. The Tribunal first listed the application on 13 June 2017. On that occasion, the Tribunal made procedural orders for the matter to proceed to a hearing, These included orders requiring Ms Boumelhem and JHPL to provide each other and the Tribunal with a copy of all documents on which they intended to rely at the hearing.

10. The Registrar listed the application for hearing on 15 August 2017.

11. Ms Boumelhem lodged a paginated bundle of documents with the Tribunal, in accordance with the Tribunal’s procedural orders (the Application Bundle). JHPL did likewise (the Response Bundle).

12. Ms Boumelhem appeared at the hearing on 15 August 2017 in person. Mr Jogia, a director of JHPL appeared in person to represent JHPL. Both Ms Boumelhem and Mr Jogia gave sworn oral evidence. Both relied on the material served. I asked questions designed to limit the issues, and to obtain assistance on the matters which separated the parties. Both Mr Boumelhem and Mr Jogia addressed the respective version of events and the material on which each relied.

13. After the hearing, I indicated to the parties that I would reserve my decision, and provide the parties with my written determination.

JURISDICTION

14. The Tribunal’s broad jurisdiction to hear and determine a ‘consumer claim’ is in Part 6A, Divisions 1, 2 and 3 of the Fair Trading Act, 1987 (NSW) (the FTA) – relevantly, sections 79B to 79V.

15. Section 79D of the FTA provides a list of people or bodies who are ‘consumers’ to whom, or to which, a ‘supplier’ has supplied, or agreed to supply, goods or services (whether or not under a contract), or with whom or with which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services.

16. Section 79E of the FTA states:

(1)    For the purposes of this Part, a "consumer claim" means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services:

(a)    the payment of a specified sum of money,

(b)    the supply of specified services,

(c)    relief from payment of a specified sum of money,

(d)    the delivery, return or replacement of specified goods or goods of a specified description.

(2)    For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.

17. Section 79I states that any ‘consumer’ may apply to the Tribunal for determination of a ‘consumer claim’.

18. Section 79J of the FTA, gives the Tribunal jurisdiction to hear and determine a ‘consumer claim’, the subject of an application under Part 6, Division 2 of the FTA, except as otherwise provided in that Division.

19. The word ‘services’ is defined in section 79F of the FTA. It includes (subsection 1(a)), ‘the performance of work (including work of a professional nature), whether with or without the supply of goods.’ The meaning of the word ‘supply’ when one is concerned with services is in section 79G(2) of FTA. That section states:

(2)    For the purposes of this Part, a reference to the supply of services includes a reference to any of the following:

(a) providing, granting or rendering services for valuable consideration,

(b)    agreeing to supply services,

(c)    supplying services together with goods.

20. I find that a hairdresser providing hairdressing services to a client in a professional salon, as in the present case, constitutes the supply of services within the meaning of the FTA.

21. Section 79H of the FTA operates to create a presumption that anyone who claims to be a consumer is a consumer, unless the person wishing to prove the contrary can establish the contrary. Ms Boumelhem claims to be a consumer for present purposes, and JHPL has offered no evidence, nor made any submission, to the contrary. Accordingly, I find Ms Boumelhem to be a consumer in respect of the hairdressing she obtained from JHPL at the Salon on 24 April 2017.

22. Sections 79K, 79L and 79S of the FTA contains statutory limits on the Tribunal’s consumer claims’ jurisdiction. These are not presently relevant. JHPL did Ms Boumelhem’s hair in the Salon in New South Wales, under an arrangement made with Ms Boumelhem in New South Wales (section 79K). Ms Boumelhem’s claim against JHPL did not first accrue more than 3 years before the date on which she lodged her application with the Tribunal (section 79L). Ms Boumelhem’s claim is within the prescribed monetary limit in section 79S of the FTA (section 79S).

23. JHPL made no objection to the Tribunal’s jurisdiction. Accordingly, I find that the Tribunal has the jurisdiction to deal with the present application. Ms Boumelhem is a consumer.

FINDINGS

24. The Response Bundle contains statements by the JHPL hairdressers that witnessed the events on 24 April 2017. These include a signed statement by the hairdresser that did Ms Boumelhem’s hair, and other hairdressers who state that they saw and heard what Ms Boumelhem was told. According to this material, the hairdresser that washed Ms Boumelhem’s hair used high-quality Italian brand shampoo, which was ‘no blonde’ or ‘purple’ shampoo. Ms Boumelhem was told that the hairdresser intended to use this shampoo, because Ms Boumelhem wanted some change in hair colour, and Ms Boumelhem advised the hairdresser she had used that product before on her hair. JHPL accordingly maintains that the colour changes to Ms Boumelhem’s hair were to be reasonably expected.

25. Although Ms Boumelhem accepted at the hearing that she was aware that ‘no blonde’ or ‘purple’ shampoo would change her hair colour, her evidence was that the Salon’s hairdresser informed her that she would be using shampoo as a ‘grease remover’ before using ‘purple’ shampoo, and it was this first product used on her hair which resulted in the dramatic colour changes illustrated in the photograph she took following her hair being washed (image 1 of the Application Bundle).

26. The statements in the Respondent Bundle are is irreconcilable with the version of events given on oath by Ms Boumelhem. This results in my having to determine which of the two versions of events I accept as to the events that happened when Ms Boumelhem had her hair done at the Salon on 24 April 2017.

27. I have given significant weight to the fact that Ms Boumelhem gave sworn evidence of the events that occurred at the Salon on 24 April 2017. I assessed Ms Boumelhem as a reliable and credible witness. I had regard to her demeanour in giving evidence. I had regard to the fact that her evidence was consistent, and she was able to answer with my questions with clarity and in a way that I considered to be truthful. I also had regard to the fact that the report of Ms Jasmin Bray supported Ms Boumelhem’s version of events. This report described the damage to Ms Boumelhem’s hair as being extremely dry and burnt, and as exhibiting the marked symptoms of a substantial amount of fresh and scattered hair breakage consistent with the application of chemicals within hair products and hair wash products used within extremely minimal time periods, overuse of toners and a high degree of heat being applied repeatedly on Ms Boumelhem’s hair.

28. The Respondent Bundle contained a letter from the supplier of the Italian brand shampoo that JHPL maintained was used to wash Ms Boumelhem’s hair. That letter made clear that the use of that particular shampoo would tend to change the colour of hair, but would not damage good quality hair extensions, nor damage natural hair. However, the evidence establishes that Ms Boumelhem’s hair extensions were damaged on 24 April 2017. The photographs on which Ms Boumelhem relied establish that the bonds between the hair extensions and Ms Boumelhem’s natural hair were, in fact, sliding at the end of the treatment she received at the Salon on 24 April 2017. I consider this a good indicator that it was the treatment that Ms Boumelhem received at the Salon on 24 April 2017 that caused the damage to both her hair and the hair extensions.

29. Although the colour changes to Ms Boumelhem’s natural hair, and possible changes to the hair extensions, might be explained by the use of ‘no blonde’ or ‘purple’ shampoo, the use ‘no blonde’ or ‘purple’ shampoo does not reasonably account for the damage to Ms Boumelhem’s hair, as observed by Ms Bray, nor account for why Ms Boumelhem’s hair extensions were slipping at the end of the hair treatments applied by JHPL at the end of Ms Boumelhem’s 24 April 2017 hairdressing session, or why the hair extensions were so compromised that they had to be replaced, nor why Ms Boumelhem’s hair has required continuing restorative treatment.

30. Having regard to all of the material placed before me, and on the basis of Ms Boumelhem’s sworn evidence, and the report of Ms Bray, I find that the most likely explanation of the damage to Ms Boumelhem’s hair and hair extensions was the products and hair treatments applied to Ms Boumelhem’s hair, particularly in an attempt to correct the initial colour changes following Ms Boumelhem’s hair being washed. The product of these attempts are clear in images 2 and 3 in the Application Bundle. This is consistent with what Ms Bray states in her report, commencing at page 20 of the Application Bundle.

31. Ms Boumelhem gave sworn evidence that she was informed that a Korean product had been used to wash her hair. Although Mr Jogia denied that this type of product was used in the Salon, I accept that Ms Boumelhem was informed that a product different to an Italian brand shampoo was used. I see no credible reason why Ms Boumelhem fabricate that she was informed that the shampoo came from Korea, and she gave sworn evidence to this effect after the hairdresser checked the bottle, unless some comment to this effect had been made to her. Her evidence was that a product was used as a ‘degreaser’ and that she was not told that it was ‘no blonde’ or ‘purple’ shampoo.

32. Mr Jogia could give no direct evidence of the events of 24 April 2017. He was not present, and had no direct knowledge of what occurred beyond what he may have been told by his staff. The statements in the Response Bundle do not challenge Ms Boumelhem’s evidence that her hair was undamaged when first washed at the Salon. When I asked Mr Jogia to address me on what JHPL maintained to be the cause of the damage to Ms Bray’s hair and hair extensions, his position was that this must have been the result of other hairdressing treatment that Ms Boumelhem received from someone else in the days following 24 April 2017. Ms Boumelhem flatly denied this, and I accept her evidence. The suggestion that Ms Boumelhem had her hair treated between 24 April 2017 and 1 May 2017 is also inconsistent with the nature and extent of the hairdressing treatment she had in Ms Bray’s salon in the period after 1 May 2017.

33. I find on the evidence that a contract for hairdressing services was made between Ms Boumelhem and JHPL, and the terms of that arrangement included a term that JHPL would provide hairdressing treatment as required by Ms Boumelhem with reasonable care. I find that as the arrangement between Ms Boumelhem and JHPL was a contract for services, JHPL also owed Ms Boumelhem a duty to take reasonable care to provide any hairdressing services to Ms Boumelhem. I find that by the three hair treatments that JHPL provided which firstly changed the colour of Ms Boumelhem’s hair, and then the treatments undertaken to rectify that situation, JHPL applied products with chemicals that damaged both Ms Boumelhem’s natural hair and her hair extensions. I find that in providing the three hair treatments, within a relatively compressed time frame, JHPL failed to take reasonable care, and in those circumstances breached the agreement they had with Ms Boumelhem, or did Ms Boumelhem’s hair negligently.

34. Accordingly, I find JHPL liable to pay Ms Boumelhem compensation for the loss and damages suffered as a result of the hair treatment that she received at the Salon on 24 April 2017.

35. As revised by Ms Boumelhem on the day of the hearing, the application is for the payment of a specified sum of money; the amount of $2,495 made up as follows: (a) the amount of $2,000.00 paid by Ms Boumelhem to replace the hair extensions that paid to replace because so claims that were so badly damaged by what occurred at the respondent’s salon on 24 April 2017; and (b) the amount of $495.00 paid for an initial hair remedial dressing consultation, with follow up restorative treatment to repair the damage to her hair.

36. Although the original application also claimed compensation for distress and inconvenience and car parking, Ms Boumelhem abandoned those claims at the hearing.

37. Ms Boumelhem made an application to claim an additional $300.00 for ongoing treatment to the date of the hearing. Ms Boumelhem was unable to provide the Tribunal with any evidence to support those alleged payments, and had not notified the respondent that this claim would be made. I indicated that as the respondent had not been fairly notified of that additional claim, and the documents were not available for either the Tribunal or the respondent to examine.

38. I did not permit Ms Boumelhem to modify her claim to include those additional payments, and accordingly I have dealt with the application on the basis that the maximum claim for compensation is the amount of $2,495.00. On that issue, Ms Boumelhem was able to produce documentary proof that she had incurred all of these items of loss and expense, and accordingly I find that JHPL liable to compensate Ms Boumelhem for that loss and damage, in the amounts claimed.

39. I accept Mr Jogia’s evidence, that Ms Boumelhem would have been charged $55.00 for the hair treatment, if she had been charged for what happened on 24 April 2017. I find that this amount should be deducted from the amount of compensation otherwise payable to Ms Boumelhem.

CONCLUSION

40. For these reasons, I find JHPL liable to pay Ms Boumelhem the amount of $2,440.00 in compensation within 14 days.

F Corsaro

Senior Member

Civil and Administrative Tribunal of New South Wales

24 August 2017

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 September 2017