Larsen v Grace Worldwide (Aust) Pty Limited (No 2)

[2015] NSWSC 1224

Supreme Court

New South Wales

Medium Neutral Citation:

Larsen v Grace Worldwide (Aust) Pty Limited (No 2) [2015] NSWSC 1224

Hearing dates:

21 April 2015, 22 April 2015, 23 April 2015, 24 April 2015, 27 April 2015, 28 April 2015, 29 April 2015, 4 May 2015 and 5 May 2015

Date of orders:

28 August 2015

Decision date:

28 August 2015

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

While the bulk of Mr and Mrs Larsen’s claims have failed, there must be judgment in their favour.

Catchwords:

TORTS – negligence – personal injury – mishandling of goods – whether substance on goods was toxic – not established – whether substance contaminated possessions and property – not established – whether substance caused ill health – not established – issues of credit – whether anyone tried to kill or seriously injure plaintiffs – not established – whether defendant had any responsibility for such conduct as bailee – not established – damages – damages for certain goods damaged in transit established – costs

 

BAILMENTS - bailment for reward - duties and liabilities of bailee

  EVIDENCE - admissibility and relevancy - opinion evidence - failure of expert to comply with code of conduct

Legislation Cited:

Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (NSW)
Evidence Act 1995 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW),

Cases Cited:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Deatons Pty ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 (1949) 79 CLR 370
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Hobbs v Petersham Transport Co Pty Ltd [1971] HCA 26; (1971) 124 CLR 220
Larsen v The University of New England (District Court (NSW), Robison DCJ, 16 March 2000, unrep)
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
UNE v Larsen-Walsh [2000] NSWCA 363
Vu v New South Wales Crime Commission [2013] NSWCA 282

Category:

Principal judgment

Parties:

Terry Larsen (First Plaintiff)
Uta Larsen (Second Plaintiff)
Grace Worldwide (Aust) Pty Limited t/as Grace Removals Group (Defendant)

Representation:

Counsel:
Mr R Cavanagh SC with Mr Potter (Defendant)

Solicitors:
Mr Larsen, unrepresented (Plaintiffs)
Curwoods Lawyers (Defendant)

File Number(s):

2010/212858

Publication restriction:

None

Judgment

1. In 2004 Mr and Mrs Larsen engaged Grace Removals to transport their furniture and household goods from Australia to Germany. On their delivery in Germany Mrs Larsen found that two boxes had a swastika drawn upon them; that some goods inside boxes which she opened were disordered; and that some of those goods had been damaged. Mr and Mrs Larsen have never unpacked all of those boxes. Most of them remain unopened, stored in their barn in Germany. In March 2005, Grace Removals apologised to Mr and Mrs Larsen for the offensive drawings and the transit damage, for which an ex gratia payment was offered, but not accepted.

2. Mr and Mrs Larsen claim that it was in October 2006 that they first discovered damage to part of a piece of furniture, the top of a welsh dresser, on which their claims in these proceedings depends. They made no claim about any such damage until 2008. In 2009 they made a claim for some $A544,052. The damages which they now press exceed 20 million Euro. They also seek exemplary and aggravated damages, because, they now claim that someone for whom Grace Removals has responsibility, tried to kill or seriously injure them by application of that substance to the top of the dresser.

3. Mr and Mrs Larsen pursued claims in contract, bailment, for negligence and intentional damage, breach of the Trade Practices Act 1974 (Cth), and trespass to chattels in their amended statement of claim. Amongst other things, they sought orders for damage to their property, personal injury, loss of future income and future costs

4. By a further amended defence filed at the commencement of the hearing in April 2015, finally without objection, Grace Removals denied Mr and Mrs Larsen’s allegations; its liability for other than a limited number of damaged goods; or that it caused or was otherwise responsible for the personal injury and other damages which Mr and Mrs Larsen pursue. It also claimed contributory negligence on their part.

5. Mr and Mrs Larsen were legally represented earlier in the proceedings. They appeared unrepresented at the hearing, in which they both participated by cross-examining witnesses and making submissions.

6. It was then Mr and Mrs Larsen’s case that they had moved from their home on an isolated property at Black Mountain, near Armidale, in 2000. There they had built a house and had for some years operated an art gallery, healing centre and had run workshops. That, it should be noted at the outset, involved a significant departure from the case which Mrs Larsen had earlier successfully pursued in the District Court, against her former employer.

7. They moved to Germany where they lived, caring for a property owned by a friend. Before returning to Black Mountain they purchased a property at Überlingen, near Lake Constance. They later returned and renovated that property, while residing in it, with the result that they were eventually able to rent out three apartments and a shop, when they again returned to Black Mountain. They claim that they sold that property in 2007 at what was an undervalue, because of ill health caused by Grace Removals. .

8. In 2004 Mr and Mrs Larsen purchased a second property at Stahringen, on which there was an old house and a barn, which they also planned to renovate, turning it into three separate apartments. They returned to live at Überlingen. It was then that they contracted Grace Removals to transport their goods to Germany. The goods were removed from Black Mountain in August and were delivered to the Stahringen property in October. Mrs Larsen opened some of the boxes transported and claimed to have found that the goods had been repacked, vandalised and damaged.

9. Mr Larsen was then in Australia. He delivered a letter of complaint to Grace Removals in Tamworth. Despite an investigation, how the goods came to be in the state in which they were delivered, was not revealed. Mr and Mrs Larsen invited Grace Removals to have a local representative inspect the boxes. That invitation was not taken up and negotiations over compensation for the damage failed to produce an agreement.

10. Mr and Mrs Larsen first built a new home on the Stahringen property, which adjoined the old home and was separated from the barn, by a wall. They then sought and obtained approval to renovate the barn into two apartments. They also claim that they were unable to complete that work, because of the ill health which Grace Removals caused.

11. Mr and Mrs Larsen moved some of their Australian furniture and goods into the new home, when it was completed in 2006, but most of the boxes remained unopened. They claim that it was then they then found that the top part of the welsh dresser was so contaminated with a foul smelling tar-like substance, when they removed the bubble wrap in which it had been transported, that it was left in the barn. Only the bottom half of the dresser was moved into the house. It was in April 2008 that it dawned upon them that the cause of the ill health they were suffering was the substance which they had observed on the top half of the dresser.

12. They had the substance tested, with the result that they were advised that it was toxic. Despite this, they did not take steps to remove the top part of the dresser from the barn, or the other items they later claimed had also been contaminated. They moved out of the house, but later repeatedly returned with, they claim, further detrimental effects on their health.

13. Mr and Mrs Larsen finally pressed damages for personal injury, for damage to their possessions, as well as for other consequential loss and damage which they claim the contamination of the top of the welsh dresser caused to their Stahringen property. They claim that their home and the barn both have to be demolished and rebuilt as the result of that contamination and that they are also at risk of other claims being made against them.

14. Mr and Mrs Larsen’s cases depend on their claims that not only was the top of the welsh dresser contaminated by a toxic substance, exposure to which seriously damaged their health, but that it also contaminated all of their other goods and furniture which Grace Removals transported in 2004, as well as their Stahringen home, barn and their other contents. They claim that the toxicity of this substance was established by the testing undertaken in Germany in April 2008.

15. After that testing, Mr and Mrs Larsen took advice about this substance from toxicologists, notified German authorities of its existence and what analysis had revealed about it. They have not, however, been required to dispose of any of the goods they say are contaminated. They are all still stored at their German property, apart from the top of the dresser, which is now lying outside in their yard.

16. They claim, nevertheless, that the result of Grace Removals’ failure to deal with their complaints, to properly investigate what happened to their goods, or to take responsibility for the removal and destruction of their contaminated goods and furniture, is the destruction of their health, their possessions and their property.

17. All of these claims are denied, although Grace Removals has accepted responsibility as bailee, for damage caused to their possessions while in its custody. What that damage is, remains in issue.

18. For reasons which I will explain, I am satisfied that Mr and Mrs Larsen have not established the cases which they pressed, other than in relation to a very limited number of goods, which they have established were damaged in transit.

Issues

19. In its final submissions, Grace Removals identified what lay in issue between the parties as falling into two broad categories: the first, relating to the mishandling of the Larsens’ goods while in its custody and the second, that it had introduced a toxic substance into those goods. There is also an issue as to Mr and Mrs Larsen’s credibility, which has to be resolved.

20. As to the toxic substance aspect of the Larsens’ cases, the issues lying between the parties include whether the tar-like substance found on the top of the welsh dresser was toxic; whether it was placed there while Mr and Mrs Larsen’s possessions were in Grace Removals’ custody; the extent of Grace Removals’ responsibility as bailee for that substance being placed on the top of the dresser; whether the substance contaminated their home in Germany and the possessions which they have acquired over the course of their lifetimes, which remain there; and whether exposure to that substance has damaged Mr and Mrs Larsen’s health.

21. That Mr and Mrs Larsen’s possessions will, as a result of the contamination, have to be destroyed and their German house and barn demolished and rebuilt, was also in issue, as was the question of whether the evidence established that there had been an attempt made either to kill, or seriously injure them.

22. As to the mishandling claim, Grace Removals accepted that the evidence was capable of persuading the Court that some of Mr and Mrs Larsen’s goods had not been handled with the level of care required of a bailee such as it and that the documentation it had kept, was not completed as it should have been.

23. What remained in issue was whether Mr and Mrs Larsen had established that any particular possession had been destroyed or damaged, or what the value of such a possession may have been.

Summary

24. It is convenient here to summarise the conclusions which I have reached:

1.   As bailee of Mr and Mrs Larsen’s possessions, Grace Removals is liable for those items it transported in the boxes which they had packed, which on being unpacked in 2004 after delivery, were found to have been damaged, either during repacking or transport, as it accepted.

2.   Mr and Mrs Larsen’s evidence was neither credible nor reliable.

3.   Mr and Mrs Larsen have not established that the substance on which their case depended was deliberately placed on the top of the welsh dresser, while it was in Grace Removals’ custody and control.

4.   Nor have they established that Grace Removals had any responsibility for such conduct, even if it had occurred.

5.   The evidence does not establish that this substance was toxic, contaminated their possessions and property, or caused the ill health which they claim to have suffered.

6.   Mr and Mrs Larsen have not established that they have suffered any damage for which Grace Removals is liable, other than that which it conceded.

7.   Mr and Mrs Larsen are not entitled to either aggravated or exemplary damages.

Mr and Mrs Larsen’s credit

25. It is convenient to first deal with the issue of Mr and Mrs Larsen’s credit and the conclusion which I have reached, that their uncorroborated evidence is not a reliable basis for any findings of fact to be made.

26. It emerged that the evidence of both Mr and Mrs Larsen had to be approached with considerable caution, not only because of the seriousness of the allegations which they each pursued against Grace Removals, but also because aspects of the evidence which they each gave, was shown to be untrue. Further, parts of their evidence was inconsistent with other objective evidence; aspects of their evidence was shown to be unreliable; and some of the evidence which Mr Larsen and Mrs Larsen each gave was contradicted by the evidence which the other gave.

27. Both Mr and Mrs Larsen are highly educated, intelligent people. Mrs Larsen is a former university lecturer and Mr Larsen a former pilot. They have strongly held beliefs about the causes of ill health which they presently suffer and have suffered in the past. On their own evidence, they do not accept medical advice or treatment which does not accord with their own beliefs. They prefer natural remedies and believe that their refusal to accept certain medical advice which they have received in the past, has been to their advantage.

28. What Mr and Mrs Larsen claim in this case rests in large part on evidence which they each gave as to events which they claim occurred at particular times after 2004, including ill health which they claim to have suffered only after exposure to the contaminated top of the welsh dresser, after it was unwrapped in 2006.

29. In Mrs Larsen’s case, despite having suffered serious ill health for many years beforehand, for which she received very considerable compensation in 2000, on the basis that she would continue to suffer those problems for the rest of her life, she believes that she recovered her health soon afterwards and that all of the ill health which she suffered after 2004, was as the result of deliberate steps pursued by someone intent on killing her. No rational basis for those beliefs was established on the evidence.

30. Nor was a rational basis established for Mr Larsen’s belief, that various health problems which he has suffered since 2004, particularly skin conditions, including cancer, were the result of deliberate steps pursued by Grace Removals to seriously injure him.

31. Mr and Mrs Larsen called no evidence from any lay witnesses to support their evidence as to what had happened to them in Germany. The evidence which they called from some witnesses, Mr Joyner, for example, as to what had happened to their goods in Australia, finally did not support their case. In final submissions they both advanced arguments which, if they were to be accepted, necessitated the rejection of his evidence. There was simply no basis on which that evidence could be rejected.

32. Nor was there evidence called from doctors who had examined and treated Mr and Mrs Larsen at relevant times since 2004, apart from Dr Walters who examined them in 2013.

33. There were various medical records tendered, some predating 2004. Some of those records, as well as other relevant documents, did not support the evidence which Mr and Mrs Larsen gave. In Mr Larsen’s case, he disputed the accuracy of such medical records. Given the conclusions which I have reached about the credibility and reliability of his evidence, that possibility had to be approached with considerable caution.

34. In Mrs Larsen’s case, the evidence established that she has suffered considerable ill health for decades. She successfully pursued workers compensation and common law claims against the University of New England, for illness which she established in the District Court proceedings, had been caused by exposure to chemicals during the course of her employment in its Art department. Mr Larsen gave evidence in those proceedings, to support her claims. In 2000, Mrs Larsen received very considerable compensation for these injuries, including for care which Mr Larsen said he had had to provide Mrs Larsen, on a daily basis, for years.

35. Mrs Larsen was not candid about this history in the evidence which she served in these proceedings, even after it came to light. It is relevant that after the litigation she successfully pursued against the University came to Grace Removals’ attention, Mrs Larsen served a revised evidentiary statement, which still did not deal with the matters the subject of the earlier litigation, but removed an aspect of her statement which did not accord with the case she had advanced in the District Court. The evidence which she finally gave at the hearing about these matters, over her objections and those of Mr Larsen, was in parts unbelievable and not supported by any medical evidence.

36. Mr and Mrs Larsen were unrepresented at the hearing. Mr Larsen gave his evidence first, while Mrs Larsen was not present, due to illness, it was explained. He was then cross-examined about the evidence which he had given in the 2000 proceedings, as well as about Mrs Larsen’s health. He objected to that cross-examination on the basis of relevance. He was required to answer those questions, I having concluded that they were relevant. Mr Larsen’s approach was then to deny as relevant or reliable, evidence which did not support the case he and Mrs Larsen were advancing.

37. When Mrs Larsen later gave her evidence, she began with the observation:

“Because I have been away the last week, I would like to briefly revisit the last case, court case, because that was referred to while I was away, as it supposedly links in with this one. I just want to get a few things straight. It is not much, it is only half a page.”

38. Mrs Larsen’s knowledge of the matters raised with Mr Larsen about the earlier litigation was obvious from what she then said and yet when she was cross-examined about this, Mrs Larsen denied having discussed the matter with him. That evidence was plainly not true.

39. Later, in her final submissions, Mrs Larsen objected to submissions advanced for Grace Removals, that her denial cannot have been true. When her attention was drawn to what she had herself said when she began giving her oral evidence, Mrs Larsen first said that she could not understand what was being drawn to her attention and eventually, that she was unwell and could not remember.

40. That Mrs Larsen is suffering ill health was not in issue. That her health provides an explanation, either for any confusion on her part, or an inability to understand the problem with her evidence, or the basis on which the submissions as to her credibility was advanced for Grace Removals, cannot be accepted.

41. Mrs Larsen was also cross-examined about the matters the subject of her earlier litigation and the state of her health before 2004. She also objected to this cross examination on the basis of relevance. The cross examination was also allowed, given its relevance to what here lay in issue between the parties, namely, the cause of the ill health which she suffers.

38. I am satisfied that Mrs Larsen was not prepared to answer some of the questions then asked of her in a way that strict adherence to the truth required. Her attention to the case being advanced against her and her understanding of and attention to what was being put for Grace Removals was, however, apparent, throughout the hearing. She not only participated actively whenever she was present, both when Mr Larsen was presenting his case and through her own cross-examination of witnesses and the submissions which she advanced.

39. The evidence established that Mrs Larsen suffered multiple chemical sensitivity for many years before 2004, as the result of her exposure to chemicals while she was employed at the University. In the District Court proceedings, she claimed that exposure resulted in her being unable to work. Mr Larsen gave evidence to different effect in these proceedings. In the case she successfully advanced against the University, she claimed that it had also resulted in her having to live an isolated life at the Black Mountain property, where she required Mr Larsen’s constant care. She was not able to come to Sydney for the hearing and even going to Armidale, then caused her considerable health problems.

40. In his evidence, Mr Larsen said that despite the evidence led and conclusions reached about Mrs Larsen’s sensitivity to even everyday chemicals in those proceedings in 2000, she recovered. In 2002, Mrs Larsen was thus able not only to travel and live in Germany, but to become involved in the building work they pursued there, on the two properties they bought to redevelop. He said that Mrs Larsen not only supervised contractors engaged in the renovation work they undertook, but that she was able to live at the Überlingen property, while renovations were undertaken there. She was also later involved in the renovation and building work at the Stahringen property.

41. Mr Larsen described the Überlingen building having been stripped bare and totally rebuilt, by him working with the contractors they engaged. On his evidence, Mrs Larsen was able to tolerate these conditions, while living there, because they only used natural products, which were also later used when they redeveloped the Stahringen property. That evidence proved to be untrue.

42. Mr and Mrs Larsen tendered numerous photographs, including photographs of products which they had used in the renovation work, some of which were still stored in the barn at Stahringen. That barn was used throughout the renovation work undertaken there, for various purposes, including storage Mr Larsen and the workers engaged to help him undertook various work in the barn. Building products, including glue and paints, were used and then stored in the barn, where the top of the welsh dresser which Mr and Mrs Larsen claimed was the cause of all of their ill health after 2004, as well as other furniture and unpacked boxes, were also kept.

43. Mr Larsen denied that any of the products they used posed any problems for Mrs Larsen’s health, but finally, when pressed in cross-examination about safety warnings which could be seen on one of these products, Mr Larsen was forced to concede that it contained chemicals which Mrs Larsen could not tolerate.

44. Mr Larsen’s evidence was then that Mrs Larsen had not been exposed to that product, because it was he who had used it, to paint the eaves of the house at Stahringen. This and evidence given by Mrs Larsen about the nature of the products which were used and how she was able to tolerate them, simply cannot be accepted, in the face of the evidence as to her longstanding chemical sensitivity and its connection with the compensation she received for her serious ill health prior to 2000.

45. The result was that I came to conclude that neither Mr nor Mrs Larsen’s evidence was credible and that without other corroborating evidence, their evidence did not provide a reliable foundation for any findings of fact.

46. All of this also raised the obvious question of whether the substance on which their claim rested, was in fact spilled on the welsh dresser while it was in Grace Removals’ custody. The other obvious possibility was that it was spilled after the welsh dresser was moved to Germany.

Mr and Mrs Larsen did not establish that anyone tried to kill or seriously injure them, or that Grace Removals has any responsibility for such conduct

51. Mr and Mrs Larsen finally pressed their cases in different ways.

52. In his closing submissions Mr Larsen conceded that the evidence had not established that an attempt had been made to kill he or Mrs Larsen, but he argued that whoever had placed the substance on the top of the welsh dresser, had intended to seriously injure them both.

53. Despite this concession, Mrs Larsen pressed her view that an attempt had been made on both their lives. She appears, fervently, to hold the beliefs about which she spoke at length in her evidence and submissions.

54. It was this aspect of their cases on which Mr and Mrs Larsen’s claims for aggravated and exemplary damages rested. That there is a rational basis for any of these beliefs was not established.

55. The evidence and submissions which Mrs Larsen advanced also revealed that she holds a belief that she has been the victim of efforts by other unidentified people intent on harming her, even before the events which became the subject of these proceedings occurred in 2004. She described, for example, having had a gun pointed at her from a helicopter, which hovered over her home at Black Mountain, after the conclusion of the 2000 District Court proceedings in which she had recovered considerable damages for injury to her health, from the University of New England, where she had formerly worked in the Art department. It will be necessary to return to this earlier litigation, which came to play an important role in the resolution of various matters lying in issue between the parties.

56. Such beliefs, however, no matter how fervently held, are not a basis on which the cases which Mr and Mrs Larsen pursued, can be established. As I will discuss below, no evidentiary basis for the case which either Mr or Mrs Larsen finally pressed, that someone had acted to kill or seriously injure them, was established.

Onus

57. It is convenient to begin explaining why I have concluded that Mr and Mrs Larsen did not establish this and other aspects of their cases, by saying something about onus.

58. The onus lay on Mr and Mrs Larsen to establish each of the claims which they pressed, on the balance of probabilities. No onus fell on Grace Removals to disprove anything which they advanced, even though it called evidence from witnesses such as Mr Cumerford, who in 2004 was its State Manager (Queensland), to give evidence about matters such as how its normal procedures for international transportation then operated, how their complaints were dealt with and what its investigations had revealed.

59. His cross-examination and the evidence given by Mr Wells established, it must be accepted, that advice given to Mr and Mrs Larsen in 2005 that Grace Removals’ investigations had resulted in appropriate corrective action being taken with the staff concerned, was misleading at best. The staff who had dealt with the Larsens' goods in Brisbane were not identified, although the problems with the adherence to the details of its required documentation for international transportation of goods had been. This resulted in the offer of settlement which Mr and Mrs Larsen did not accept in 2005 and the later offer in 2006, after their complaint to the Office of Fair Trading, which they also refused.

60. Given the very serious allegations which both Mr and Mrs Larsen advanced in these proceedings, however, all of the evidence has to be examined in light of s 140 of the Evidence Act 1995 (NSW). It requires that, in determining whether a party has proved the case advanced on the balance of probabilities, regard must be paid to the nature of the cause of action, the nature of the subject-matter of the proceedings and the gravity of the matters alleged.

61. As discussed in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362, that requires account to be taken of matters such as the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding. There it was observed that “reasonable satisfaction” of such matters “should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

62. The more serious the consequences of what is in issue, the more the Court must have regard to the strength and weakness of the evidence before it, in coming to a particular conclusion (see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [30]) and Vu v New South Wales Crime Commission [2013] NSWCA 282).

63. For reasons which I will explain, I am satisfied that neither Mr nor Mrs Larsen met the onus which fell upon them, to prove the serious allegations which they advanced. Other than in respect of certain matters, which were finally not in significant contention, they have not met the onus which fell upon them, to establish their case.

Grace Removals’ obligations as bailee

64. It is long settled that a private carrier such as Grace Removals, who undertakes to carry goods for reward, as a bailee of the goods, is bound to use due care and diligence to keep the goods safe and to deliver them undamaged. The standard of care is “that which a careful and vigilant man would exercise in respect of goods of his own of the same kind in similar circumstances” (see Hobbs v Petersham Transport Co Pty Ltd [1971] HCA 26; (1971) 124 CLR 220 at 238).

65. Schedule 2 of the Competition and Consumer Act2010 (Cth), the Australian Consumer Law, requires in s 60 that a private carrier who provides such services guarantees that the services will be rendered with due skill and care. If not, under s 267, (the successor to the Trade Practices Act1974 (Cth)), then if the failure is not a major failure, the consumer can require the failure to be remedied within a reasonable period of time. If the supplier does not do so, the consumer can recover the reasonable cost of doing so from the supplier and may also recover damages.

66. If the failure cannot be remedied, or there is a major failure, compensation for any reduction in the value of the services and damages, can both be recovered. A “major failure” is defined in s 260 relevantly to include in (e), that the goods are not of acceptable quality because they are unsafe.

67. Mr and Mrs Larsen did not, however, finally press any claim under the Competition and Consumer Act and so it is not necessary to consider this aspect of their pleaded case any further.

68. For its part, Grace Removals accepted that, as bailee, it was liable for the conduct of any of its employees or contractors, for work performed or steps taken within the scope of their employment or contract. It did not accept any liability for any deliberate attempt to either kill or seriously injury Mr or Mrs Larsen. Neither Mr nor Mrs Larsen attempted to establish any basis on which Grace Removals could be found to have any liability for such conduct.

69. That it does have such liability, is inconsistent with authorities such as Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 at 379, where it was concluded that an employer has no liability for unauthorised acts of employees not performed on behalf of their employer, or not connected to or incidental to the work the employee was employed to perform.

70. Placing a toxic substance on a piece of furniture in an attempt to kill or seriously injure Mr and Mrs Larsen, like the throwing of a beer by a beer maid which was considered in Deatons, would unquestionably involve an act which has nothing to do with the performance of the work involved in preparing the Larsen’s goods for international transportation, or its transportation, whether such work was performed by an employee or a contractor.

71. In the result, Grace Removals could not be found to have any liability for such an independent, unauthorised act, even if the evidence had established that someone for whom Grace Removals had responsibility, had placed the tar-like substance on the top of the welsh dresser.

When was the substance placed on the welsh dresser?

72. If the substance was placed on the top of the welsh dresser in Australia, it had to have been after the furniture was collected from Mr and Mrs Larsen’s home in Black Mountain by Grace Removals’ employees, Mr Islip and Mr Joyner, in July 2004 and before it was bubble wrapped and placed in the international container in Brisbane. If it did not occur then, it could only have occurred in Germany, after it was delivered to Mr and Mrs Larsen. On their evidence, until the bubble wrap was removed in 2006, the furniture was stored in their barn, which was being used by Mr Larsen and the contractors they engaged, to undertake the renovation work on their Stahringen property.

73. The conclusion that the substance was spilled on the top of the welsh dresser in Australia, depends on Mr and Mrs Larsen’s evidence that no-one had disturbed the bubble wrap, before the top of the welsh dresser was unwrapped in 2006, being accepted. They called no evidence from anyone who might have corroborated their evidence. Given the reservations which I have finally come to have about the reliability and credibility of their evidence, as I have explained, I am not satisfied that any finding in their favour can rest on their uncorroborated evidence, unless conceded. It was not.

74. The evidence was that their furniture was wrapped for transport by Mr Islip and Mr Joyner and placed in the container, with their other possessions in the boxes they had packed themselves. They took the container to Tamworth. The container was kept in a secure location at the Tamworth depot, before being transferred to the Brisbane depot, where the container was unpacked in another secure area and the furniture bubble wrapped for international carriage. On Mr Cumerford’s evidence, there employees would have neither cause, nor opportunity, to bring the substance spilled on the top of the welsh dresser near the furniture.

75. Mr Larsen urged the rejection of this evidence, having regard to other departures from Grace Removals’ usual practices, including the repacking of the boxes which Mrs Larsen opened in Germany, which she described as being in a state as if all of their carefully packed belongings had been tipped onto the floor and thrown haphazardly into other boxes. They also relied on the departures from Grace Removals’ normal documentation of what was done to the goods it had collected, which Mr Wells described; his inability in his investigations to identify the employees responsible for the work done in Brisbane on their goods, given the inadequacies in the documentation kept; and the other departures which he identified from Grace Removals’ normal practices.

76. Mr Larsen also argued that it would be found that the goods had been collected from their property in a van, not a container, which left open, on his case, the conclusion that the furniture had been unloaded and stored at the Tamworth depot and prepared there for export, rather than in Brisbane.

77. Mr Larsen relied on the original defence, to support the latter submission. There it was said that the goods had been collected in a van. This was later corrected to refer to collection by a container. That a container was used was consistent with the evidence of both Mr Islip and Mr Joyner. There is no proper basis for their evidence to be rejected.

78. In the result, when the substance came to be spilled on the top of the welsh dresser was simply not established. Even if it had been, by that fact alone, Mr and Mrs Larsen could not have established their case.

The evidence did not establish that the evidence was deliberately placed on the top of the welsh dresser

79. That the substance found on the top of the welsh dresser was placed there deliberately, by someone intent on killing, or even seriously injuring Mr and Mrs Larsen, was not established by the evidence, notwithstanding their case, that on Mr Cumerford’s evidence, it was possible for someone who wished to do them harm, to have accessed the top of the welsh dresser while it was in Grace Removals’ custody.

80. It is unnecessary to explore further all of the evidence as to Grace Removals’ systems and the actual collection, transportation and storage of Mr and Mrs Larsen’s goods at Tamworth and Brisbane, about which Mr Islip and Mr Joyner gave evidence; Mr Cumerford’s evidence about Grace Removals’ systems for preparation of goods in Brisbane for international transport and how they were transported; or his evidence and that of Mr Wells, as to the investigation into Mr and Mrs Larsen’s complaints, which had revealed that the normal documentation maintained by Grace Removals had not been adequately completed, by those who had handled their goods.

81. It was not in issue that while their goods were in Grace Removals’ possession, no-one should have placed the substance on the top of the welsh dresser. As Grace Removals conceded, if the evidence established that this had occurred, as bailee, it would be liable for the damage to that piece of furniture, as well as for the goods which it accepted had been damaged during transport.

82. Nothing, however, other than the fact that the tar-like substance was found on the top of the welsh dresser, where, all parties agreed, it ought not to have been, supported the conclusion that it had been placed there deliberately. That is not a proper basis on which the serious conclusions for which Mr and Mrs Larsen contend could rest.

83. The more likely explanation for the presence of this substance on the top of the dresser was that it had been spilled accidentally, as Dr Kenyon postulated. That was consistent not only with the way the substance appeared to have fallen onto and then dripped down the welsh dresser, but also with the apparent attempt made to clean it up and its nature, to which I will return.

The evidence did not establish that the substance was toxic

84. Nor did the evidence establish that the substance was highly toxic, so that exposure to it was capable of either killing, or seriously injuring Mr or Mrs Larsen. The former possibility was certainly not put to the toxicologists who the parties called to give concurrent evidence, Dr Crank and Dr Kenyon, and is quite contrary to the opinions about which they gave evidence, which finally did not even support the conclusion that the substance was capable of seriously injuring either of them, particularly given their limited exposure to it.

85. It emerged from Mr Larsen’s evidence and the submissions finally made, that Mr Larsen does not share all of Mrs Larsen’s beliefs about relevant matters. His evidence and submissions reveal, however, that the cases which they both pressed rest in part on a misreading of an EU directive on air pollution, and in part on an understanding of Dr Crank’s 2009 report, which it emerged, contained a significant error.

86. That became common ground between the experts during the concurrent evidence. In light of the common view which emerged, it cannot be concluded that the substance was toxic at all, even though that was not accepted by either Mr and Mrs Larsen.

87. The 2004 EU Directive recognised the need to reduce pollution to levels which minimised harmful effects on human health, paying particular attention to sensitive populations and the environment as a whole. Mr and Mrs Larsen consider that Mrs Larsen is a member of such a part of the population. Mr Larsen drew attention to what was provided in the introduction to the Directive, at (3) and (4), to submit that certain chemicals, PAHs (“polycyclic aromatic hydrocarbons”), identified on testing the substance in 2008, had caused his and Mrs Larsen’s ill health. They provide:

“(3)   Scientific evidence shows that arsenic, cadmium, nickel and some polycyclic aromatic hydrocarbons are human genotoxic carcinogens and that there is no identifiable threshold below which these substances do not pose a risk to human health. Impact on human health and the environment occurs via concentrations in ambient air and via deposition. With a view to cost-effectiveness, ambient air concentrations of arsenic, cadmium, nickel and polycyclic aromatic hydrocarbons, which would not pose a significant risk to human health, cannot be achieved in specific areas.

(4)   With the aim of minimising harmful effects on human health, paying particular attention to sensitive populations, and the environment as a whole, of airborne arsenic, cadmium and nickel and polycyclic aromatic hydrocarbons, target values should be set, to be attained as far as possible. Benzo(a)pyrene should be used as a marker for the carcinogenic risk of polycyclic aromatic hydrocarbons in ambient air.”

88. The Directive selects one PAH, benzo(a)pyrene, as a marker for the carcinogenic risk of PAHs in ambient air. Article 3 (which refers to the target values laid down in Annexure 1) requires member states to ensure that from 31 December 2012, concentrations of arsenic, cadmium, nickel and benzo(a)pyrene, do not exceed the specified target value, in the case of the latter at a value of 1ng/m3.

89. Article 4 deals with assessment of concentration and deposition rates and requires monitoring of benzo(a)pyrene and other specified PAH’s at specified monitoring sites. On the experts’ evidence, contrary to Mr Larsen’s approach, the target value for the PAH specified, does not translate to a requirement for PAH concentrations generally.

90. Dr Crank’s error as to the level of PAH found on testing the substance was identified in the joint report prepared by Dr Kenyon and Dr Crank in 2015. The experts then agreed that Dr Crank had misunderstood the chemical analysis of the substance, with the result that his report was in relevant parts incorrect. Dr Kenyon considered that the tar-like substance found to have been spilled on the top of the welsh dresser, which was dry to the touch but had a strong unpleasant smell Mr Larsen said, when the dresser was first unwrapped in 2006, was likely to have been some kind of building product.

91. Neither Mr nor Mrs Larsen accepted that this view had any real impact on the case which they advanced, but the unavoidable result of the correction of Dr Crank’s error was that what their claim depended on, that the substance was toxic, could not be established by the evidence.

92. The experts agreed that it is conceivable that people such as Mrs Larsen, who are highly sensitive to chemicals, might react to contact with that substance, including by developing a rash, for example. The evidence did not establish that persons like Mr Larsen, who did not have such sensitivity, would have had such adverse reactions, even from the type of contact which he had.

93. The tar-like substance had been analysed in 2008 by the Eurofins laboratory; in 2009 by the Aurachtal Laboratory; and in 2013 by Mr Holz, an employee of Dr Graner & Partner GmbH, who was engaged by Grace Removals, to test the substance, as well as various other materials, including air and soil. It initially engaged a toxicologist, Mr Scobie, to consider this analysis. He became unavailable to give evidence and it then engaged another toxicologist, Dr Kenyon, who was called to give concurrent evidence with Dr Crank.

94. Various chemicals were found in the substance on testing PAHs, phthalates and allphatic carboxylic acids. Dr Crank explained in his October 2012 report that phthalates, which are used to make plastics more flexible, are used in a wide range of consumer products. The acids are constituents of animal fats and vegetable oils, part of our daily diet and non-hazardous. Neither the phthalates nor acids were toxic.

95. Dr Crank explained that PAHs are formed by the incomplete combustion of organic materials. They are not normally found in consumer products, but are the main carcinogens in cigarette smoke. He and Dr Kenyon agreed that 16 PAH’s have been classified as carcinogens and one of them, Benzio(a)pyrene, is used as a proxy to signify the carcinogenicity of PAH complex mixtures and for standard setting and regulatory measures. Dr Kenyon said that everyday living exposed people to PAHs, typically through vehicle emissions, combustion in fireplaces, pitch/tar products and diet.

96. In his 2012 report, Dr Crank said that the time between exposure to such chemicals and the development of cancer, could be as long as 20 years. As well as carcinogenic effects, PAHs have other adverse health effects, including immune suppression. They also have the potential to affect metabolisation of enzymes, used in the body to metabolize drugs and medicines.

97. Dr Crank also said that the PAH’s detected in the substance found on the welsh dresser top were highly toxic and found to be at significant levels in the Larsen’s goods. He considered they were the most likely cause of their health problems and that Mr and Mrs Larsen would also possibly have inhaled toxic fumes over a period of time from being in the barn where the contaminated goods were stored. This arose from the possibility of outgassing.

98. In his April 2015 report, Dr Kenyon considered that possibility to be low, because even pure PAHs have low vapour pressure and this stain had been impregnated in the timber dresser and absorbed into the structure of the wood.

99. In his report, Dr Crank referred to German Technical Regulations for Hazardous Substances, which considers substances containing more than 50 mg/kg of PAHs to be carcinogenic. He found that the substance on the dresser had been analysed to contain 1570mg/kg of PAH’s, 31.4 times the level considered carcinogenic by German authorities and 157 times the level proposed for materials which contact the skin for more than 30 seconds. That demonstrated, in his view, that the substance was highly carcinogenic and toxic and not a common consumer product.

100. Dr Crank considered, in the result, that Mr and Mrs Larsen’s house was not safe to live in; that their goods would have to be incinerated in a high temperature incinerator; and that their home and the barn would require cleaning and decontamination, before it was suitable for habitation, in accordance with German Regulations. It is apparent that Mr and Mrs Larsen had acted on his opinion before his error was identified, including by notifications made to German authorities, as to the contamination of their property at Stahringen, by a highly toxic substance.

101. The experts met in 2015, when Dr Crank agreed with Dr Kenyon, that his earlier opinions had rested on his misreading of the analytical reports.

102. In his April 2015 report Dr Kenyon observed that the testing of the welsh dresser top in 2013 had found an even higher level of PAHs than the earlier testing, but it was only 54 mg/kg of benzo(a)pyrene, which exceeded the 50 mg German standard only marginally. Dr Kenyon considered that the dresser thus posed no significant cancer risk from infrequent skin contact, given that the Standard probably contained a significant safety factor. He also considered that the PAH’s were absorbed into the wood and that, together with the low vapour pressure of even pure PAHs, would ensure that outgassing of the PAHs would be extremely low.

103. Dr Kenyon noted that testing of other furnishings stored nearby, indicated no migration of contamination from the dresser; testing of the barn wall was consistent with low level PAH contamination, different to that on the dresser and consistent with contamination from the environment. Testing of books in the house and elsewhere, disclosed results below the limit of detection. Soil analysis was consistent with environmental contamination, such as sump oil. Ambient air tested inside the house: an upstairs bedroom, the kitchen/dining room in the new house, a storage room and ground floor of the old house, were low molecular weight PAH likely to have originated from cooking oil. No carcinogenic PAHs were detected. Dust testing was all below the specified German limits.

104. Dr Kenyon considered that the top of the dresser posed no significant risk to health, but that “it would be sensible to dispose of it in the current circumstances”. He found no evidence of migration of the PAHs either by air or direct contact, to other articles.

105. In the result, there was only a small risk of transfer of a small amount of PAH to a person making direct bare skin contact with the substance, but any absorbed PAH would be excreted, within a day or so. The only foreseeable risk of infrequent contact with the dresser was a rash in the area of contact, but even that was extremely unlikely. Dr Kenyon considered the exposure resulting from such contact would be less than that experienced by a person living in a modern environment exposed to diesel exhausts, cigarette smoke, ignition of food and breathing ambient air. In the result, decontamination of the house or even the goods stored near the dresser was unnecessary.

106. Dr Kenyon was strongly of the view that Mrs Larsen’s symptoms were not the result of exposure to PAHs, whether air-borne or by skin contact. Her symptoms could be the result of other stimuli, including pollens, moulds, chemicals climate change or stress. He considered that Merkel cell carcinoma, which she had suffered, was caused by Merkel cell polyoma virus, but not chemical exposure.

107. Dr Kenyon also considered that while long term exposure to PAHs could be associated with squamous cell carcinoma, which Mr Larsen suffered, as the result, for example, of work involving contact with creosote and pitch or work in coke ovens or aluminium production. Mr Larsen’s condition was not consistent with the PAHs found in the dresser. It was more likely associated with his sun exposure at his farm in northern NSW.

108. Dr Kenyon also confirmed a joint report prepared by Dr Crank and Dr Scobie in November 2013, where he identified a fundamental error in Dr Crank’s interpretation of the results of analysis of the substance, which he there described. It is not necessary to deal with all of his observations, given Dr Crank’s acceptance of the error so identified.

109. Dr Kenyon considered that the low level of PAH contamination in the substance thus posed a small risk of transferring a very small amount of PAH by direct contact and that it this did occur, any PAH absorbed would be excreted in urine within a day or two. The only risk posed by infrequent contact was the unlikely possibility of a rash or skin irritation in the area of contact.

No exemplary or aggravated damages can be awarded

110. Section 21 of the Civil Liability Act2002 (NSW), provides that in an action such as this, a court cannot award exemplary, punitive, or aggravated damages where the act or omission that caused the injury or death was negligence.

111. All of this evidence simply does not leave open the conclusion, on the balance of probabilities, that the substance spilled on the top of the welsh dresser, was toxic, as Mr and Mrs Larsen claimed. Further, that the sensitivity which Mrs Larsen does have, to which I will return, was known to Grace Removals, or whoever spilled the substance on the top of the welsh dresser, was also not established on the evidence. To the contrary, Mrs Larsen’s known sensitivity to even ordinary, everyday chemicals was not disclosed to Grace Removals by Mrs Larsen, even after these proceedings were commenced.

112. Also to be remembered, on the cases finally pressed, Mrs Larsen had recovered from the ill health which she had long suffered as the result of her sensitivity. That has also not been established on the evidence, as I will explain, but underscores the difficulty with the case which Mr and Mrs Larsen advanced, that the substance had been placed on the welsh dresser, as part of a deliberate attempt to kill or injure them.

113. On all of the evidence, it cannot be concluded that someone either deliberately tried to kill or seriously injure, either Mr or Mrs Larsen. Not only has the evidence not established that the substance was toxic, it did not establish that it was placed there deliberately.

114. There is, in the result, no basis on which any order for exemplary or aggravated damages in favour of either Mr or Mrs Larsen could rest, depending as those claims did on a deliberate attempt to either kill, or seriously injure them.

What contact did Mr and Mrs Larsen have with the substance?

115. There was no issue that both Mr and Mrs Larsen suffer from various health problems. Their claims depended, however, on them establishing that the contact which they each had with the substance on which their case rested, was such that it was not only capable of causing them harm, but was the cause of the ill health which they each suffer.

116. This was also not established.

117. Mr Larsen was in Australia when the goods were delivered in Germany. It was Mrs Larsen who first saw the swastikas and opened some of the boxes, to find them disordered and some things inside damaged. She notified Mr Larsen and he raised the matter with Grace Removals.

118. After his return, they opened some more boxes, including some clothing. Later they unpacked some boxes of books, which they took into the house, but they left most of the boxes in the barn, unopened, where they remain. They also moved some of the furniture into the house when it was completed, but not the top of the dresser. Mr and Mrs Larsen pursued their complaints about the damage they had found with Grace Removals, who did not, as Mr and Mrs Larsen suggested, inspect their possessions. Ongoing discussions failed to resolve their complaints.

119. Mr and Mrs Larsen identified three foreign substances in what they unpacked. The first was a grey jelly like substance, the second a white powder and the third, the tar-like substance which had absorbed into the top of the welsh dresser. Mr and Mrs Larsen’s personal injury claims do not rest on either the grey jelly like substance or the white powder.

120. The jelly was analysed in April 2008 and found to be a mixture of pinene and limonene, which Dr Crank explained in his first report, are natural products found in tree gum which is used in perfumes, cosmetics and cleaning products. In the concurrent evidence, Dr Kenyon observed that the white substance was likely to be talcum powder.

121. Mr and Mrs Larsen’s evidence was that they first saw the stain on the dresser when it was unwrapped in 2006. It was dry, but had a strong, unpleasant smell, which they had not noticed during the preceding two years, even though the barn where they stored the welsh dresser and their other possessions, was where Mr Larsen was working with the contractors, while the renovations were undertaken. There is no evidence that the smell interfered with the ongoing work in the barn. It must have dissipated quite quickly in 2006, because the dresser top was left in the barn, until Mr Larsen put it out into the yard, some years later, where it remains.

122. The welsh dresser was unwrapped, on Mr and Mrs Larsen’s case in the presence of neighbours and tradesmen, who were all overcome by the foul smell which then came from the substance. It was later that Mrs Larsen told Mr Larsen, while he was in Australia, that she had suffered an aggressive red rash, after she had unpacked some books. She continued suffering that rash, improving only a little even when she went to Australia in February 2007. In March they returned and commenced their next building project, converting the barn into three apartments, for which they had obtained approval in 2006. It was then that Mr Larsen said he began suffering considerable ill health, as did Mrs Larsen. He improved when he returned to Australia, but Mrs Larsen had a stroke in December 2007. It was in June 2008, that he was treated for nose cancer.

123. On her evidence, Mrs Larsen has never touched the stain and went near the dresser top only once, when it was unwrapped in 2006. In his August 2011 statement, however, Mr Larsen said that since 2004, Mrs Larsen had experienced rashes whenever she unpacked boxes. These rashes, as Mr Larsen also there said, developed at a time when they were building at Stahringen, a process in which Mrs Larsen was involved, he said, by supervising the renovation, ordering materials and dealing with bureaucratic matters. Her health deterioration was consistent with Mrs Larsen’s exposure during that building process, to substances to which she had a sensitivity, while pursuing a lifestyle entirely inconsistent with the life she had claimed in the earlier proceedings, she had to pursue in isolation at Black Mountain.

124. Mr Larsen’s evidence was that it was in April 2008, while having coffee at home with a friend, that he and Mrs Larsen felt unwell and he decided that the welsh dresser must have been the cause of their problems. It was then still in the barn and in cross-examination he could give no explanation for why this had then occurred to him, rather than at some other time.

125. It was this that caused Mr Larsen to cut off a piece of the stained wood of the dresser top and send it to the Eurofins laboratory for testing. It was when they obtained the results, he said, that they sought information for the best way to treat PAH poisoning. They tried then to stay away from the house.

126. For the first time, during cross-examination at the hearing in 2015, Mr Larsen claimed that earlier, in 2006 he had also touched the substance on the top of the dresser, when he sanded the stain on the dresser, to see if it could be removed. This sanding came to be an important piece of evidence in the case which Mr and Mrs Larsen finally pressed.

127. This was, however, quite implausible evidence, not only because Mr and Mrs Larsen had not conducted themselves as might have been expected, had this been what Mr Larsen did in 2006, but also because it was evidence which emerged for the first time in 2015, only after Dr Crank had met in conclave with Dr Kenyon and agreed that he had made a significant error in his October 2012 report. That development significantly undermined the basis on which Mr and Mrs Larsen were advancing their case in these proceedings, which they had commenced in 2010.

128. Dr Walters had the view that it was likely that the substance outgassed and so Mr and Mrs Larsen also had had contact with it in that way. That was not a view which the toxicologists shared, as Mr Larsen was aware.

129. If Mr Larsen truly had sanded the stain in 2006, it would have obviously been important information, not only to instruct those who had tested the stain in 2008 with, but also to mention in the correspondence sent to Grace Removals in 2008 and later, to instruct the toxicologists they engaged to advise them, Professor Winder and Dr Crank. They were not so instructed. Nor was it mentioned in the letter sent by their solicitors in June 2009. It would also have been important to mention in Mr and Larsen’s statements. Yet that information did not emerge until the hearing in 2015, and then only from Mr Larsen in oral evidence, after he came to appreciate the problems with the case he and Mrs Larsen were advancing.

130. The instructions which Dr Crank was given were inaccurate in relevant respects, but did not refer to Mr Larsen having undertaken any sanding in 2006. To the contrary, Dr Crank was instructed that Mr and Mrs Larsen had been exposed to toxic chemicals when they unpacked and handled their possessions in 2004, which they found had been contaminated with powdered and liquid substances and that they had become progressively ill and suffered various conditions, despite avoiding contact with the contaminated goods, after the initial unpacking.

131. The claims advanced in the pleadings, including the amended statement of claim filed in August 2011, also gave no particulars of such sanding having been undertaken.

227. Further, it was apparent that some of Ms Merklin’s opinions must have rested on other documents, which had not been disclosed. Accordingly, what little explanation was given in the report of the opinions there expressed, which rested on such documents, was simply not intelligible and could not be tested.

228. Ms Merklin also did not disclose the reasoning process by which she came to the conclusions she reached, either in relation to rent which she considered could have been commanded by the property at Stahringen, or the value of the Überlingen property, which had been marketed for a particular sum. There was simply no mention made of the method of valuation which Ms Merkel used, or what it was applied to.

229. What appeared in the report was a bare statement of opinion, not revealed to have rested on Ms Merklin’s apparent area of expertise, namely that of a real estate agent. Indeed, at one point Mr Larsen submitted that Ms Merkel did not have expertise in valuation and that in part her opinion relied on what he and Mrs Larsen had told her about a bank valuation which they had received, but which they could not find. This was also not disclosed in the report.

230. The report evidenced no understanding of the responsibilities of an expert, or any attempt to adhere to them. In the result I concluded that the report was not admissible. Its basis had not been disclosed and its reliability could simply not be tested. Failure to adhere to the Code is not necessarily fatal, depending on the nature of the failure. In this case, however, it had to be concluded that Ms Merklin’s report was inadmissible.

231. The same conclusion had to be reached in relation to the second report from a builder Mr Kraenkel. This document did not even take the form of a report, it was simply a list of identified costs, in relation to the demolition of the existing buildings on the Stahringen property and the construction of new buildings there.

232. The document disclosed nothing as to its basis. It did not disclose what instructions had been given. The letter of instructions tendered said simply:

“…

We refer to our previous communications. Could you please provide us with:

A quotation for:

1   the demolition and the disposal of all the buildings at Vogelsangweg 5, Stahringen, 87315:

ie the agricultural building, the old house and the new house.

2   the new re-construction of the buildings in the same form as they stand there now.

Could you please send the complete quotation to us by fax and the same by mail to

…”

235. Again, this report comprised a series of bare statements of opinion. What assumptions had been made, in relation to, for example, the cost of labour and materials; what other documents or information had been referred to in reaching the opinions expressed as to the costs identified; and the reasoning process by which those opinions had been arrived at, were simply not revealed.

236. That the opinions expressed were all opinions which rested on this claimed expert’s specialised knowledge and training, was not also apparent. From Mr Larsen’s submissions, it became apparent that they were not. Mr Larsen revealed that at least in part, the opinions were based on other undisclosed opinions. In the case of the demolition costs, for example, Mr Larsen said that opinions of some unidentified specialist in demolition of buildings had been relied on. This was not revealed in the report. Given the nature of Mr Larsen’s case, that person may have been someone with expertise in demolition of buildings contaminated with toxic substances, although whether that person had such expertise, was also not revealed by the report and so could also not be tested.

237. In the result, it had to be concluded that this report also evidenced no understanding on the part of this claimed expert as to the responsibilities of an expert, or any attempt to adhere to them. In the result, I concluded that this report was also not admissible, the basis of the opinions expressed not having been disclosed or the reasoning explained and its reliability simply not being able to be tested.

Claimed damages which were not established

238. Mr and Mrs Larsen also did not establish, on the balance of probabilities ,that they had suffered the claimed damages in respect of either the Überlingen property, claimed to amount to some 125,000 Euro; or the Stahringen property, claimed to amount to some 1,391,710.00 Euro for demolition, as well as 10,0000 Euro for decontamination; or the 20,000,000 Euro claimed for other unspecified, potential damages in Germany, because of the contamination.

239. The evidence did not establish that the substance on which their claim depends is toxic, as I have explained. It is likely, in fact, to be a building product. Mr and Mrs Larsen have not established that the sale of the Uberlingen property was connected with the substance on the top of the welsh dresser. Nor have they established that the Stahringen property has to be demolished or rebuilt, or that they are likely to have to live elsewhere during that reconstruction.

240. The evidence which they relied on, for example, the advice which they received in October 2012 from the Bureau for Abfallrecht & Gewerbeaufsicht, that they had to dispose of “Toxically contaminated waste” rested on:

“According to the description of what happened, we understand that the contaminated articles and materials which are still stored in the garage and/or the barn on the property in Radolfzell/Stahringen, is a so-called a "toxic waste site" in the terms of the legal description. Such a toxic waste site must be forceibly[sic] cleaned up due to their potential danger.”

241. That description came from Mr and Mrs Larsen, which depended on their understanding of the EU Directive and Dr Crank’s report, which, as has since transpired, contained a material error. The advice received from the Department of Waste Law and Occupational Health and Safety, on 16 November, concerning the high PAH contamination which it was there noted was such “that the contaminated items stored at the property are classified as dangerous waste which has to be disposed of”, still had not resulted in any decision that it was necessary for the Council to intervene.

242. On the expert evidence received in these proceedings there is no foundation for those conclusions, but even if there was, the contamination was confined to the top of the welsh dresser. It could only be that item which has to be disposed of by an expert firm, before the building is inhabited again.

243. The evidence did not suggest that Dr Crank’s error, or, Dr Kenyon’s report, or their joint views, have ever been conveyed to the Germany authorities. Nor does the evidence establish that these authorities would adhere even to the views expressed in the earlier correspondence, as to the steps which need to be taken to dispose of the top of the dresser, if those reports were made available to them. On the evidence led in these proceedings, the substance spilled on the dresser has not contaminated the Stahringen property, or the other goods there, and has not caused the ill health which Mr and Mrs Larsen suffer.

244. In the result, there is simply no basis on which an order can be made in favour of Mr and Mrs Larsen in respect the damages claimed in relation to the two properties, or any potential claims made against them by others in relation to the substance on the top of the dresser. Even if the latter were possible, consideration would have to be given to the fact that it was they who have left that item lying in the yard, despite the advice received from the German authorities.

245. The evidence does not establish that the substance has precluded their pursuit of the renovation of the Stahringen property, or caused loss of income from the rental that they could have earned, if those renovations had been completed.

246. The evidence as to their ill health also does not establish any basis on which it could be concluded that when they sold the Überlingen property, it was sold at a loss, because Mr and Mrs Larsen were incapable of making decisions in their own commercial interests. The evidence also does not establish any basis on which their claims for future medical expenses and health aids could be ordered in their favour.

247. Mr and Mrs Larsen also claimed for the loss of all of their personal property, comprising “non-container” goods in their barn at Stahringen, claimed to amount to some 111,050 Euro; their “non-container” goods in the house, claimed to amount to some 68,717 Euro and their “container goods”, claimed to amount to some 280,442 Euro. These damages have also not been established.

248. They also sought to be compensated for the time that they had spent in collating, packing and labelling 180 cartons, before they were shipped. No basis for such an order has been established.

249. Mr and Mrs Larsen’s claims for personal injury rest on their claims that they have suffered significant injury as the result of the cumulative effects of the PAH contamination of their home in Germany, as the result of the deliberate application of toxins to their goods, while in Grace Removals’ care in Germany. As I have explained, this was not established on the evidence and so there is no basis now which such an award can be made in their favour.

Damages which were established

250. As Grace Removals submitted, it is relevant to the mishandling aspect of Mr and Mrs Larsen’s claims that while the evidence establishes that they themselves packed the 180 boxes that Grace Removals transported and that when the boxes were delivered in Germany, some of the goods in a few of those boxes were found to have been disturbed and damaged while in its custody. Not all of the goods in the boxes which were opened, were in that condition. Further, most of the boxes have never been unpacked.

251. The onus lay on Mr and Mrs Larsen to establish the damages on which their claims rested. Not opening the boxes was a matter for them. Up until the time that they claim they unwrapped the top of the welsh dresser, to find it stained and smelly, there was no reason for them not to have done so, other than that they had then not finished building their new home. Given the failure of their claim that the substance spilled on the top of the dresser was toxic, it is not possible to award damages in respect of any goods which have not been established to have been otherwise damaged. That includes all of the goods in the unopened boxes.

252. Grace Removals submitted that in Exhibit 8 there was evidence of the Larsen’s quantification of damage to their goods, in an amount of some 10,230 Euro, in a letter they sent on 20 January 2005, but the majority of this claim was for compensation for collating and organising papers found to have been mixed, for which no basis was established. In February 2006, in the Fair Trading proceedings, $180,000 was pursued. In May 2009, when a claim was pursued for the entirety of their possessions, this increased to some $544,000.

253. Grace Removals submitted that in the result, the damages awarded in respect of this claim should be nil, but no more than some minimal amount.

254. There are photographs in evidence which establish damage to goods in the boxes opened in 2004. That this damage was suffered was not challenged in the cross examination, nor was the quantification of the loss in the January 2005 letter.

255. Doing the best I can on the cases which the parties each advanced, in light of the evidence, I am satisfied that Mr and Mrs Larsen must have an order on the basis of the claim advanced in January 2005, in relation to damage to goods there identified, namely the items such as a missing television set and damaged hand washing machine, shoes, books, tape recorder, photos, art works, platter, bowl and stereo player. No order can be made for the claimed work involved in collating papers and research materials, for which no basis has been established.

256. On my calculation from the figures appearing at Exhibit 8, this amounts to a total of 3,270 Euro.

Costs

257. The usual order as to costs is that they follow the event. Mr and Mrs Larsen claim their legal expenses.

258. The proceedings were commenced in the District Court in July 2010. In 2011 the proceedings were transferred to this Court, where they proceeded with certain difficulty, before being listed for hearing. On the evidence of Mr Johnson, Grace Removals’ solicitor, since June 2009 Mr and Mrs Larsen have been represented at times by five different firms of solicitors and at other times they have been self represented.

259. Given the conclusions which I have reached, it may be necessary to hear the parties as to costs.

Orders

260. While the bulk of Mr and Mrs Larsen’s claims have failed, there must be judgment in their favour.

261. The matter will be listed at 9.30 am on 8 September 2015. The parties are directed to confer and then to provide to the Court the orders which they propose should be made, to give effect to the conclusions which I have reached and as to costs. If necessary, the matter will then be listed for a further hearing as to costs.

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Decision last updated: 28 August 2015