Marnica v Carter
[2014] VSC 274
•12 June 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2012 00851
| TONY MARNICA | Plaintiff |
| v | |
| DAVID CARTER | Defendant |
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JUDGE: | RUSH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 – 8 May 2014 | |
DATE OF JUDGMENT: | 12 June 2014 | |
CASE MAY BE CITED AS: | Marnica v Carter | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 274 | |
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ACCIDENT COMPENSATION – Plaintiff suffered crush injury to right foot when excavator fell from trailer ramp when being unloaded from trailer – Home-made trailer supplied to plaintiff by defendant in a private capacity – Injury occurred when plaintiff was using his own ramps not supplied with trailer – Whether defendant is liable for breach of agreement or negligence – Whether implied conditions of fitness for purpose and merchantable quality under s 19 of the Goods Act 1958 applies - Whether plaintiff made the intended purpose known to defendant – Whether defendant made any representations about fitness for purpose - Whether plaintiff relied on the skill and judgment of defendant – Plaintiff’s claim dismissed – Goods Act s 19.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr C. Hanson | Heinz & Partners Lawyers |
HIS HONOUR:
Introduction
On 20 June 2007, the plaintiff was unloading his Melroe excavator from a trailer to the roadway in Drysdale Court, Alfredton, when a ramp dislodged from the trailer, causing the excavator to fall from the ramp. The plaintiff was thrown from the excavator and became pinned underneath it (‘the Incident’). As a result of the Incident, the plaintiff suffered a severe crush injury to his right foot and leg which required surgery. After surgery, the plaintiff’s right leg became infected and he was eventually required to undergo a below knee amputation of the right leg.
The plaintiff had purchased the trailer with ramps from the defendant on 13 June 2007 for $2,000 cash. The ramps supplied with the trailer fitted into slots mounted on the rear of the trailer. Shortly after purchase of the trailer, within ‘the next day or two’,[1] when the plaintiff was using the ramps supplied by the defendant to load the excavator onto the trailer, the ramps failed due to the weight of the excavator. This caused the plaintiff to begin using his own ramps to load and unload the excavator. On the day of the Incident, the plaintiff was using his own ramps, which he attempted to secure to the trailer by using bolts that slipped through his ramps into holes on the tray of the trailer.
[1]Supreme Court hearing transcript (‘Transcript’) at 16.9.
The Transport Accident Commission, pursuant to s 93 of the Transport Accident Act 1986, certified on 21 December 2011 that the plaintiff had sustained a serious injury and consent was given to the plaintiff to bring proceedings for the recovery of damages in relation to the injury.
The plaintiff’s claim
The plaintiff alleges that prior to, and at the time of making the agreement to purchase the trailer with ramps from the defendant, he made known to the defendant that he required the trailer for the purpose of transporting his excavator and that the trailer would be used for that purpose either with the defendant’s ramps purchased with the trailer, or with the plaintiff’s own ramps.[2]
[2]Plaintiff’s Amended Statement of Claim (‘ASOC’) at paragraph 2.
The plaintiff further alleges that prior to the making of the agreement, the defendant represented the trailer was suitable and safe for loading and unloading the excavator from the trailer, and such loading or unloading could be performed with either the defendant’s ramps or the plaintiff’s own ramps.[3]
[3]ASOC at paragraph 5.
The plaintiff claims the trailer and the defendant’s ramps were not fit for the plaintiff’s intended purpose and were not of merchantable quality, relying on the following particulars:
(a)the trailer was adequate for a pay-load of approximately 1,080 kilograms,[4] but the excavator weighed 1,500 kilograms;[5]
(b)the trailer was fitted with a raised border or combing at its rear, which meant the plaintiff’s ramps could be dislodged when the excavator was being driven from the trailer down the plaintiff’s ramps; and
(c)the defendant’s ramps were not able to bear the weight of the excavator.[6]
[4]The plaintiff stated in his evidence that the pay-load of the trailer was actually 1,240 kilograms (see Transcript at 61.25).
[5]The plaintiff stated in his evidence that the gross weight of the excavator was about 1,700 kilograms (see Transcript at 57.31) but later stated the gross weight was between 1,500 and 1,700 kilograms (see Transcript at 61.28).
[6]ASOC at paragraphs 7 and 8.
The plaintiff claims the defendant knew or ought to have known the plaintiff would attempt to transport the excavator by use of the trailer and the plaintiff’s ramps[7] and the trailer was not fit for use with the plaintiff’s ramps.[8]
[7]ASOC at paragraph 11.
[8]ASOC at paragraph 7(b).
The plaintiff also alleges that s 19 of the Goods Act 1958 is applicable; that it was an implied condition of the agreement that the defendant’s trailer and ramps would be fit for the plaintiff’s intended purpose and of merchantable quality.[9]
[9]ASOC at paragraph 4.
The plaintiff further alleges his injury was caused by the negligence or breach of duty owed by the defendant to the plaintiff.
The defence
The defendant denies the plaintiff informed him that he required the trailer for the purpose of transporting the excavator or that he would use the defendant’s ramps or the plaintiff’s ramps for the purpose of loading or unloading the excavator onto the trailer.[10] The defendant denies the plaintiff sought any advice from him as to the trailer, the defendant’s ramps or the plaintiff’s ramps, and their fitness for carrying the excavator.[11]
[10]Defendant’s Defence (‘Defence’) at paragraph 2.
[11]Defence at paragraph 3.
The defendant denies making any representations concerning the suitability of the trailer, the defendant’s ramps or the plaintiff’s ramps for the purposes of transporting the excavator.[12]
[12]Defence at paragraph 5.
The defendant denies he knew or ought to have known the plaintiff would attempt to use his own ramps in attempting to transport, load, and unload the excavator. Further, the defendant alleges the plaintiff’s decision to use his own ramps on 20 June 2007 was made by the plaintiff in the exercise of his own judgment, independently of any conversation with the defendant, in circumstances where he knew the defendant’s ramps had previously failed by reason of the excavator’s weight.[13]
[13]Defence at paragraph 11.
The trailer
The defendant built the trailer. The tray of the trailer was taken from an unregistered Nissan utility. The defendant equipped it with axles, brakes, tray and towing attachments. The trailer was first registered in 2001. The registration label attached to the trailer at the time of the sale recorded that the trailer was a ‘home-made box trailer’.
The plaintiff stated he at no time asked who had made the trailer – ‘The trailer was there. It was ready to be bought. I wanted it. I bought it’.[14]
[14]Transcript at 51.22. The defendant stated he informed the plaintiff that the trailer was home-made prior to purchase (Transcript at 86.1).
The trailer’s registration label recorded that the tare weight of the trailer was 760 kilograms. The maximum load for towing, the gross weight, was 2,000 kilograms and was recorded on the certificate of registration. Both of these weights were stamped on the compliance plate, which was also attached to the trailer at the time of sale. The plaintiff agreed the pay-load for the trailer was 1,240 kilograms, and stated that he knew the purchased excavator weighed between 1,500 and 1,700 kilograms.[15] Thus the trailer, when loaded with the excavator, would exceed the maximum weight permitted to be towed according to the certificate of registration and the compliance plate. Neither the registration label, the certificate of registration, nor the compliance plate were checked by the plaintiff prior to purchase, and the fact that the trailer would be overloaded when carrying the excavator appeared to be of little concern to him.[16]
[15]Transcript at 61.28.
[16]Transcript at 62.6.
Trailer sale
The plaintiff was self-represented. During the course of his evidence, he indicated he had had extensive experience, ‘since 1980’,[17] in the use of bobcats and diggers. He held a licence permitting him to drive a heavy rigid vehicle with a vehicle mass of up to eight tonnes.[18] In June 2007, the plaintiff owned a Mazda tipper truck and a Case skid steer vehicle and, despite being in receipt of a pension for many years prior to the Incident, performed ‘a lot of’ earthmoving work for himself.[19] The plaintiff would transport the skid steer vehicle in the tip truck.[20]
[17]Transcript at 37.7.
[18]Transcript at 38.27.
[19]Transcript at 10.6.
[20]Transcript at 41.10.
The plaintiff bought a one and a half tonne bobcat excavator from Mr Rick James in early June 2007. Mr James gave evidence for the defendant. He stated he was retired after a career with the Department of Primary Industry. He bought and sold earthmoving equipment to make ‘a dollar on the side’.[21] Mr James is the brother-in-law of the defendant. The plaintiff was unaware of this relationship at the time he purchased the trailer from the defendant.
[21]Transcript at 110.26.
Upon purchasing the excavator, Mr James stated that the plaintiff took delivery of it by attaching his own ramps to his own tip-truck and driving the excavator up the ramps onto the truck.[22]
[22]Transcript at 112.11 – 112.15.
At the time the plaintiff took possession of the excavator, he asked Mr James if he knew of anybody that had a trailer to transport his just purchased excavator. Mr James stated that he knew of somebody and telephoned the defendant, in the presence of the plaintiff, to check if the defendant still had the trailer that Mr James knew he was attempting to sell. Upon being informed by the defendant he was away, but the trailer was still for sale and was in his backyard, Mr James stated he drove the plaintiff to the defendant’s home so that the plaintiff could inspect the trailer.[23] Mr James stated the plaintiff was interested in the trailer and the plaintiff and the defendant sorted out, over the phone, details of when and where they would meet.[24]
[23]Transcript at 112.25 – 113.4.
[24]Transcript at 113.24.
The plaintiff, in his evidence, denied that he was shown the trailer by Mr James. The plaintiff indicated that the first time he saw the trailer, he was shown it in fact by the defendant. This occurred, he said, on the day he purchased the trailer on 13 June 2007. The plaintiff stated that after inspection, he came back later in the day to pick up the trailer, paying $2,000 cash, to the defendant. There is a deal of conflict between the plaintiff and the defendant as to the events and conversations leading to the sale on this day. I will deal with some of this evidence in due course. However, there is a fundamental issue that is central to the success or otherwise of the plaintiff’s claim, and that concerns representations as to the use of the plaintiff’s own ramps with the trailer.
The plaintiff deposed to the following conversations occurring when he inspected the trailer with the defendant:
(a)that Mr James had sent him, and that the defendant said ‘he knew about the machine I was buying’;[25] and
(b)that the defendant said the trailer would be a ‘good one as a plant trailer’.[26]
[25]Transcript at 12.15.
[26]Transcript at 11.22.
In relation to the defendant’s knowledge of the proposed purpose of the plaintiff buying the trailer and the weight carrying capacity of the trailer, the plaintiff stated:
I can’t speak for Mr Carter but I – I think that Mr James would have known that it was a tonne and a half machine.[27]
[27]Transcript at 11.23.
There is no evidence the defendant knew the weight of the machine. On the evidence of the plaintiff, it is apparent a number of the alleged representations he relies upon were in fact made by Mr James and not the defendant. The plaintiff gave the following evidence concerning the use of his own ramps with the trailer:
And did you get any advice from Mr Carter about putting the bolts in, to use your own ramps?---Well no, the bolt holes were there so I naturally thought - Mr James had already told me about them. And he said – I said, ‘What ramps could I use with it?’, he said, ‘Any ramps you want’, so I did. [28]
[28]Transcript at 19.17.
Later, the following evidence was provided:
Did you tell him [the defendant] you were going to use your own ramps?
---No I didn’t because – because at the time, when I went down to pick up my – the excavator off Mr James, it was a Sunday morning, and he noticed that all my back of the truck [sic] – I can show you photos if you want – but the back of my truck has got a lot of holes in it and he said, ‘You’ll be right – you’ll be able to use any ramps you want on it’. So I didn’t mention it to Mr Carter. Mr Carter’s plan was a good one but the only thing is that the ramps weren’t strong enough to support it [sic]. All I did was, later on, I got me – welded and I just dropped the whole of the back of the combing down and it works like a charm [sic], no, no problems. [29]
[29]Transcript at 20.11.
In cross-examination, the plaintiff repeated this evidence, that it was Mr James that told him he could use ‘any ramps on it [the trailer] even my ramps’.[30]
[30]Transcript at 92.16.
In his evidence, Mr James stated he did not think any such conversation occurred.[31]
[31]Transcript at 115.14.
Thus, the plaintiff, in his evidence, is contending Mr James, not the defendant, informed him of the suitability of the plaintiff’s ramps for use on the defendant’s trailer. The plaintiff, in his evidence, failed to make good conversations he pleads in his Amended Statement of Claim that are integral to the agreement between himself and the defendant concerning the suitability of the trailer and his own ramps for the transportation, loading and unloading of the excavator. Moreover, there is no evidence the defendant knew of the weight of the excavator. Further, the limits of the load the trailer could carry were displayed on the registration label and compliance plate, both of which were attached to the trailer on the date of sale.
I attempted to have the plaintiff expand on his evidence concerning the conversations between himself and the defendant on the day he bought the trailer:
What other conversation?---And we spoke about just bits and pieces and what I was doing and how I was doing it and I think it just – it was – it was – we had quite a good conversation in his shed, yeah.
Doing the best you can…what was the substance of the conversation?---Most of the conversation was what am I doing with the actual equipment, with the one that I bought, and what I wanted the trailer for. That’s what – I mean, that’s about it. We spoke – we spoke probably for half an hour, an hour, and then I just took the trailer and went. [32]
[32]Transcript at 12.14 – 12.24.
I asked the plaintiff a number of times about any conversation between himself and the defendant concerning ramps to be used with the trailer:
You’ve got to understand the allegations that you make in your statement of claim…are about conversations that occurred between you and Mr Carter?
---Right.What I’m trying to understand…is what you say you said to Mr Carter about the ramps and what you say he said to you about the ramps?---Nothing. The ramps – he said they were good and they will do the job, that’s all it was, and I took him as – as his word. I’ve never had a trailer or a plant equipment registered in my name and you know, as far as I was concerned, it was his trailer, he’d built it in 2001 and he had it registered for five or six years before I even got it, so he would’ve known his trailer better than I would have, so I took it at – on his experience, that it was all right for what I wanted it for.
What did you say you wanted it for?---For the actual excavator that I bought off Mr James, Mr Carter’s brother-in-law.
What I’m driving at is, do you want to tell me exactly what you said to him and what he said to you?---About what?
About the nature of why you wanted the trailer?---Yeah.
How were you going to use the ramps?---Yes.
Right?---I’d bought the excavator I’d bought off Mr James on 9 June and I needed a transportable trailer to take the excavator around with me. Now, at the time, I had me truck [sic] and I had my ramps that were on the back of the truck and they – I’ve had the damn truck for five years – 12 years and I’ve never had any problems with it. So he said that it’ll be fine, you know to
do - - -Who said it’ll be fine?---Mr Carter. I believe that he would’ve known about the excavator Mr James had, so he would have – he would’ve at least told me that, you know – we agreed that it would’ve been all right for the job. He told me that it’d be all right. He knew about the excavator because Mr James would have told him that I bought it.
How do you know that?---I suppose he would’ve told him because I even told him that, I bought Mr James’ excavator on the day I saw him and that’s why I needed the trailer. [33]
[33]Transcript at 14.22 – 15.30.
As discussed above, the ramps supplied with the trailer by the defendant failed within a day or two of the sale. During submissions, the plaintiff agreed there was no evidence that he made any complaint to the defendant about the failure of the ramps. The plaintiff submitted that it was because of his own ignorance he did not complain.[34] He submitted: ‘I could have said that but I didn’t think of it at the time because I knew I had ramps and Mr James said I could use any ramps’.[35]
[34]Transcript at 147.29.
[35]Transcript at 148.7.
The defendant, in evidence, stated there were no holes in the trailer he sold to the plaintiff that would have permitted a bolt to be dropped through ramps and through the tray of the trailer. Mr Hanson, counsel for the defendant, put to the plaintiff in cross-examination that he had in fact drilled the holes himself after the ramps the defendant supplied with the trailer failed because of the excessive weight of the excavator.[36] This was denied by the plaintiff. As discussed later in these reasons, I note that it would be unnecessary for the defendant to have placed holes for ramps in the tray of his trailer when his own ramps supplied with the trailer did not need such holes, but rather slotted into fixtures at the rear of the trailer.
[36]Transcript at 9.25.
The plaintiff has not satisfied me that the defendant made any representation to him that the trailer would be suitable for use with the plaintiff’s own ramps.
In my opinion, it is highly unlikely such a conversation would have taken place. The trailer was sold with its own ramps, and the idea that there was a conversation about use of other ramps carries with it an air of unreality. There was no purpose in such a conversation.
In any event, the plaintiff’s evidence is that the representations concerning the suitability of the trailer for use with the plaintiff’s ramps were made by Mr James and not the defendant. I also doubt that Mr James made representations at the time of sale of the excavator concerning the use of the plaintiff’s ramps. The plaintiff’s evidence that Mr James saw holes in the rear of the tray of the plaintiff’s tip truck and volunteered that the plaintiff could use any ramps he liked with the defendant’s trailer is, in my opinion, improbable. Mr James denied any conversation with the plaintiff concerning the use of holes for ramps on the trailer.[37] But, in any event, there is no evidence the defendant knew of any such alleged representations concerning use of the plaintiff’s ramps made by Mr James. Apart from Mr James making a call to the defendant to check whether the defendant’s trailer was still for sale there is no evidence of any form of discussion, arrangement or agreement between Mr James and the defendant that would support any form of agency agreement between the two of them; no evidence that could in any way justify a finding that Mr James had authority to make representations concerning the trailer and the use of ramps on behalf of the defendant. Further, no agency agreement is pleaded by the plaintiff in the Amended Statement of Claim.
[37]Transcript at 124.22.
In circumstances where there is no evidence the defendant made any representation or warranty as to the suitability of other ramps, including the plaintiff’s ramps, for use with the trailer, the defendant cannot be held liable for any incident occurring as a consequence of the unsuitability of such ramps. Even if Mr James represented to the plaintiff he could use any ramps with the trailer (which I do not accept), the defendant cannot be responsible for a representation or warranty made without his knowledge or consent by somebody else.
There is no dispute that the trailer, as sold, was not suitable for use with the plaintiff’s ramps. As the plaintiff pleads,[38] the trailer was fitted with a raised rear border or combing, which meant that the plaintiff’s ramps could be dislodged when the excavator was being driven from the trailer down the plaintiff’s ramps. I am satisfied the conduct of the plaintiff in connecting up his own ramps to the trailer by placing them over the rear combing on the back of the trailer and the use of bolts placed through the ramps into holes on the back of the trailer was undertaken independently of any conversation or of any knowledge of the defendant.
[38]ASOC at paragraph 7(b).
This finding means the plaintiff’s claim cannot succeed. Even if I were to find that the defendant had represented at the time of sale that the trailer and the defendant’s ramps were suitable and safe for the purpose of transporting, loading and unloading the excavator and they were not, the plaintiff could not succeed on his claim.[39] The manner in which the plaintiff suffered injury by using his own ramps and in so doing adopting a methodology for securing the ramps to the trailer that in the circumstances was unsafe (and unknown to the defendant) could not be said to be conduct which would occur to a reasonable man in the position of the defendant.[40] Nor could it be said to be conduct to have reasonably been in the mind of the plaintiff and the defendant at the time they made the agreement for sale of the trailer as being the probable result of a breach of a term of the agreement; it was not damage that could be said to arise in the normal course of things from any breach.[41] The plaintiff’s use of his own ramps on the trailer, when the defendant was ignorant of the circumstances and manner of such use and when such use was inherently unsafe, are, in my opinion, circumstances that both in tort and breach of contract are too remote.
[39]There is no evidence the defendant was aware of the weight of the excavator. The fact that the plaintiff made no complaint to the defendant that the defendant’s ramps failed because of the weight of the excavator, in my opinion, supports the finding that the defendant did not warrant his ramps were safe for loading and unloading the excavator from the trailer.
[40]See Batt JA in National Australia Bank Ltd v Nemur Varity Pty Ltd (2002) 4 VR 252 at 268 [43].
[41]See Batt JA in National Australia Bank Ltd v Nemur Varity Pty Ltd (2002) 4 VR 252 at 269-270 [44].
My finding that the defendant did not represent the trailer was suitable for use with the plaintiff’s ramps means the plaintiff’s case must fail. There were other issues raised during the hearing and for completeness I deal with some of the major conflicts of evidence.
Holes in the tray of the trailer
The plaintiff claimed that the trailer, as purchased, had holes in the rear of the tray suitable for taking his own ramps. The defendant denied there were any such holes, stating that ‘they weren’t there when I sold the trailer’, [42]and that the only holes were in the rear corners of the tray of the trailer for drainage.[43]
[42]Transcript at 94.9.
[43]Transcript at 94.23.
As stated above, the trailer was fitted with particular slots on the rear of the trailer designed to take the defendant’s ramps, which were provided with the trailer. The defendant had no need for holes in the tray of the trailer to take other ramps. In my opinion, the more likely explanation for the holes being in the rear of the trailer is that they were made by the plaintiff so he could use his own ramps when the defendant’s ramps failed under the weight of the excavator within a day or two of purchasing the trailer.
Plant trailer
The plaintiff, in his evidence, was keen to advance the proposition that in discussions with the defendant at the time of purchase of the trailer, he made it clear he wanted a ‘plant’ trailer. In his evidence, the plaintiff stated that the defendant said to him the trailer ‘will be a good one for a plant trailer. That’s what I was after, a plant trailer’.[44] Later, he said, ‘I’ve never had a trailer or a plant or a plant equipment in my name [sic]’.[45] The plaintiff was attempting to indicate he was relying on the defendant in relation to the use of the trailer he was purchasing, that he relied upon the defendant’s experience.[46]
[44]Transcript at 11.20.
[45]Transcript at 14.31.
[46]Transcript at 15.5.
I was informed by the defendant that a ‘plant’ trailer is a heavy trailer designed to carry heavy machinery. A plant trailer has a much heavier construction and capacity than the defendant’s trailer.[47]
[47]Transcript at 95.6.
I do not find the plaintiff’s evidence on this point at all convincing. It is no part of his pleading that the defendant represented his trailer was a ‘plant’ trailer. His evidence that he has not had heavy plant equipment registered in his name did not properly describe the plaintiff’s experience with heavy equipment. In fact, the plaintiff’s tip truck, used to carry heavy plant and earthmoving equipment, was registered in his wife’s name, but it was used exclusively by the plaintiff.
As stated above, the defendant’s trailer is registered as a home-made box trailer with a tare weight of 760 kilograms and a gross weight of 2,000 kilograms. A box trailer is a lighter form of construction compared to a ‘plant’ trailer. The maximum weight to be carried on the trailer was 1,240 kilograms. This detail was not hidden, it was there for the plaintiff to see and observe on the compliance plate and certificate of registration.
I do not accept the plaintiff’s evidence that the defendant represented the trailer would be good as a ‘plant’ trailer or that it was capable of carrying heavy plant and machinery. I do not accept that the defendant sold to the plaintiff a trailer with ramps knowing that the plaintiff intended to carry plant and equipment well in excess of the weight permitted by the trailer’s registration. The best that can be put for the plaintiff, if I accepted his evidence as to the pre-purchase conversation, is that he informed the defendant on the day of purchase of the trailer that he had bought an excavator from Mr James.[48] The plaintiff stated that ‘he [being the defendant] knew about the machine I was buying’,[49] and that ‘Mr James would’ve known that it was a tonne and a half machine’.[50]
[48]Transcript at 15.28.
[49]Transcript at 11.20.
[50]Transcript at 11.25.
In my opinion, this evidence does not provide any basis for inferring the defendant knew the excavator weighed a tonne and a half or for inferring that the defendant warranted to the plaintiff the trailer was suitable for carrying a weight over 760 kilograms, its registered maximum carrying weight, which was clearly displayed by the registration details and compliance plate on the trailer. Further, I do not accept the suggestion that the defendant was attempting to hide the limited carrying capacity of the trailer as was suggested by the plaintiff.[51]
[51]Transcript at 70.2.
During the course of submissions, I asked the plaintiff to address the point that the registration and compliance plate both referred to the weight the trailer was permitted to carry. This information was there for the plaintiff to see at the time of the purchase. The plaintiff’s attempt at explanation was as follows. He said:
Because why would I – if I was going to go there and get it at night, I’m not going to see anything. Whether the lights were, you know, are on everywhere. I wasn’t going to be able to see anything anyway. [52]
[52]Transcript at 142.27.
This answer is unsatisfactory. The plaintiff’s evidence was that he attended the defendant’s home to inspect the trailer on the day he purchased the trailer at 12.30pm ‘on a Wednesday’.[53] He decided to buy the trailer and re-attended at the defendant’s premises at 7.30pm that night to pick it up.[54] There was ample opportunity to inspect the registration label and compliance plate in daylight. The plaintiff’s attempt to explain away this information by indicating his purchase occurred at night was disingenuous.
[53]Transcript at 11.4.
[54]Transcript at 11.29.
In referring to the description of the trailer as a plant trailer, the plaintiff stated a plant trailer does not have three inches of raised combing at the rear of the trailer making it ‘unbalanced’.[55] The plaintiff here is referring to the raised combing which made the plaintiff’s own ramps unsafe because it meant the bolts inserted through the ramps into holes in the tray of the trailer could be readily dislodged. The fact that there was combing, according to the plaintiff, meant the trailer ‘wasn’t built properly as a plant trailer’.[56] As stated above, this alleged representation concerning a ‘plant’ trailer is not pleaded in the plaintiff’s Amended Statement of Claim. Further, I do not accept that the defendant made a representation that the trailer was a ‘plant’ trailer – a representation that would have been in direct contradiction to the description on the registration label attached to the trailer at time of sale which described the trailer as a ‘home-made box trailer’.
[55]Transcript at 13.19.
[56]Transcript at 13.20.
Goods Act
The plaintiff alleges that by operation of s 19 of the Goods Act, an implied condition of the agreement of sale of the trailer with ramps was that they would be fit for the plaintiff’s intended purpose and be of merchantable quality.
Mr Hanson submitted that s 19 of the Goods Act could only have application in circumstances:
(a)where the seller is in the business of selling or dealing in the goods supplied – ‘the buyer relies on the seller’s skill or judgment and the goods are of a description which it is in the course of the seller’s business to supply’;[57] and
(b)where ‘goods are bought by description from a seller who deals in goods of that description’.[58]
[57]Goods Act s 19(a).
[58]Goods Act s 19(b).
There is no evidence that the defendant operates a business of supplying or dealing in trailers. The evidence, which I accept, is that this trailer was home-made by the defendant, used by him for domestic purposes and, when his need for the trailer dissipated, he placed the trailer on the market and eventually sold it to the plaintiff in a private capacity. It is clear that the Goods Act limits implied conditions of fitness and/or quality to persons in the way of business supplying goods in the course of that business as distinct from private persons.[59]
[59]See Robson J in Industrial Conveying (Aust) Pty Ltd v SKM Recycling Pty Ltd [2012] VSC 278 at [489], citing the judgment of Lord Wilberforce in Christopher Hill Limited v Ashington PiggeriesLimited [1972] AC 441 at 494.
Further, to imply a condition that the goods are fit for purpose under s 19(a) of the Goods Act, the plaintiff must demonstrate reliance on the defendant’s ‘skill and judgment’ after having made known to the defendant the particular purpose for which the goods, in this case the trailer, are required. I do not consider the plaintiff relied upon the skill or judgment of the defendant concerning the plaintiff’s proposed use of the trailer. On the evidence it could not be said the defendant, in the course of conversations with the plaintiff concerning the sale of the trailer, put himself forward as a person with any particular skill or judgment as to the capacity of trailers to carry heavy plant and equipment. Indeed, on the evidence in this case, it was the plaintiff who had the most experience in working with and the carriage of heavy earthmoving equipment.
The Goods Act has no operation in the circumstances of this case. In any event, the incident occurred as a consequence of the inappropriate use of the plaintiff’s own ramps rather than those supplied with the trailer – an occurrence that is too remote.
Conclusion
The plaintiff has suffered a major injury. The amputation of the right leg below the knee has caused him significant pain, restriction and hardship. However, the circumstances of the plaintiff suffering the injury in the Incident do not give rise to liability on the part of the defendant for breach of agreement, for negligence or for any cause of action under the Goods Act.
The plaintiff’s claim must therefore be dismissed.
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