Marskell and Anor v Davis and Ors t/as The Local Bloke Removals

[2015] NSWCATCD 34

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Marskell & Anor v Davis & Ors t/as The Local Bloke Removals [2015] NSWCATCD 34
Hearing dates:	5 March 2015
Decision date:	19 March 2015
Jurisdiction:	Consumer and Commercial Division
Before:	J Levingston, General Member
Decision:	The respondents are to pay the applicants the sum of $600.00 within 14 days of this Order.
Catchwords:	CARRIER – household goods and chattels – bailment – common carrier - damage during transit – delay in delivery – items not delivered – personal injury arising from stress and anxiety - damages
Legislation Cited:	Australian Consumer Law (NSW) 2011 s 60, 64, 64A, 236 Civil and Administrative Tribunal Act 2013 (NSW) ss 28, 29. Schedule 4 clause 3 Civil Liability Act (NSW) 2002 ss 3 & 16 Common Carriers Act (NSW) 1902 ss 9 & 11 Fair Trading Act 1987 (NSW) s 28
Cases Cited:	Biggin & Co Ltd v Permanite Limited (1951) 1 KB 422 Callaghan v William C Lynch Pty Ltd (1962) NSWR 871 Enzed Holdings Ltd v Wynthea Pty Ltd [1984] FCA 373; FCR 450 Flight Centre v Louw [2011] NSWSC 132
Category:	Principal judgment
Parties:	Graeme Bruce Marskell & Helen Parker-Hyde (applicants) Paul Davis, Michael Davis and Cathy Davis t/as The Local Bloke Removals (respondents)
Representation:	The parties appeared in person.
File Number(s):	GEN 14/55802
Publication restriction:	Nil

REASONS FOR DECISION

Application

1. This is an application filed 18 November 2014 by the applicants for loss and damage arising from the carriage and storage of their household goods and chattels pursuant to the Australian Consumer Law (NSW) 2013 (“ACL”). There is a claim for unlawful detention of goods, and the applicants also claim for consequential losses and non-economic loss arising from stress and anxiety.

Appearances

2. Both parties appeared and the application was contested.

Jurisdiction

3. The Tribunal has jurisdiction to determine claims arising under ACL: see Fair Trading Act 1987 (NSW) (FTA) s 28 and Civil and Administrative Tribunal Act 2013 (NSW) (CATA) s 29 and Sch cl 3 (Functions allocated to Division), and power to make orders under ACL.

Facts

4. The material facts are:

1. The applicant is a consumer who made an agreement with the respondent for the supply of goods or services;

2. The respondent carries on business in trade or commerce for the supply of services as a road carrier and removalist;

3. On 14 July 2014 the parties made an agreement for the respondent’s removalist services to transport the applicants’ goods and chattels from Gunnedah NSW to Bunbury WA for the sum of $12,000.00. The agreement was made by the applicant accepting the respondent’s quotation dated 4 July 2014 (the Agreement). The Agreement (evidenced by the quotation) has none of the usual terms and conditions to be found in a carrier’s contract which limit the carrier’s liability. There is no term which requires delivery by any date. The only relevant term is that a 50% deposit is required on acceptance of the quote with the balance payable on uplift;

4. On 15 July 2014 the applicants paid $5,500.00 deposit;

5. On 30 July 2014 the respondents commenced the uplift and this was completed on 31 July 2014. The applicants goods were to be stored pending delivery;

6. On 30 July 2014 the respondent issued a tax invoice for the balance of $6,500.00 which was paid on 1 August 2014;

7. The respondent sub-contracted the carriage;

8. On 1 September 2014 the applicants advised the respondents they would be able to take delivery in Bunbury on 21 October 2014;

9. On 14 October 2014 the respondents advised delivery on 28 October 2014. This did not suit the applicants as they would not be in Bunbury on that date;

10. On 21 October 2014 the respondents advised delivery on 1 November 2014. There were subsequent exchanges and the delivery date changed a number of times;

11. On 3 November 2014 the respondents delivered the goods to the applicants at Bunbury, but some items were to be delivered later;

12. The trailer was delivered on 13 January 2015, not to the applicants’ address but to a different location;

13. The applicant’s checked the contents of the trailer and found that some items were missing and they advised the respondents by email of 4 November 2014;

14. On 28 January 2015 the applicants obtained a quote to replace the Harley Davidson keys at a cost of $38.20 each, total $76.40;

15. On 29 January 2015 the applicants obtained a quote to replace the mini keys for the remote key $400.00 and the slide key $117.00, total $517.00;

16. The Mini vehicle was not delivered until February 2015 and the applicants had to collect it from Perth railway.

17. Gunnedah NSW to Bunbury WA is over 3,900km by road.

The Dispute

5. The applicants’ claims are:

1. Broken antique silver ash table $700.00;

2. Parts of Brimnes bedframe missing, replace bed $289.00;

3. Missing mattress support (timber slats) of Stirling king size bed missing, replace bed $1,099.00;

4. Missing second set of Mini Cooper remote keys $517.00;

5. Missing set of keys for Harley Davidson chain lock and second set of motor bike ignition $194.25;

6. Purchase of temporary sofa bed from Harvey Norman (as bed parts missing and elderly guest could not be expected to sleep on mattress on the floor) $750.00;

7. Accommodation expenses paid on 24 November 2014 $924.00, 3 December 2014 $920.00 and 19 December 2014 $920.00, total $2,764.00;

8. Accommodation expenses of $1,580.00 (including Staywest Apartments 21 October 2014 to 30 October 2014 10 nights at $80.00, total $800.00);

9. Costs incurred for time, phone calls and sms’;

10. Unlawful detention of goods;

11. Stress and anxiety.

6. The respondents deny liability for the claims and particularly say:

1. They only received one set of keys from the applicants for the Harley Davidson and the Mini vehicle;

2. They are not liable for the purchase of the sofa bed;

3. They have paid for several nights’ accommodation which they believe is reasonable.

Law

Preconditions for claim

7. To succeed under ACL, the applicants must be consumers: ACL s 3; with a consumer contract for the supply of goods or services and their interest is wholly or predominantly for personal, domestic or household use or consumption, and the claim is brought within 3 years. The Agreement was for the carriage of the applicants’ personal, domestic and household goods, and the other conditions are satisfied.

ACL

8. By ACL s 60 (Guarantee as to due care and skill) the following is a term of the Agreement:

“If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.”

9. Due care and skill is a statutory duty based on the common law duty, the breach of which duty results in damages or compensation for loss and damage caused by that breach. The respondents cannot exclude liability: ACL s64. In addition the law of bailment and common carrier’s apply, discussed later.

Defences

10. ACL sets out the defences available to the respondent, and by ACL ss 64 and 64A entitles the respondent to limit, but not exclude, liability. An agreement may limit liability if there is a failure to comply with a guarantee: ACL s 64A. The respondents have not included any limitation clause in the Agreement. Further as common carriers they are prima facie liable for the applicants loss and damage from carriage of the goods.

Bailment

11. The law of bailment also applies and provides that the respondents as a bailee must safely keep and redeliver the goods to the applicants (the bailor) in the same good order and condition as when received, and if they are not, the applicants have a claim against the respondents for their loss or damage. The respondents are liable as bailees unless they can prove the loss was not caused by them. They have the onus of proof.

12. In bailment, the applicants must prove that the goods were in good order and condition when delivered to the respondent which is usually proved by a receipt (consisting of an inventory of the goods and chattels) which is given by the respondents and if no exceptions are marked it is known as a clean receipt for the goods and chattels. Such a receipt is prima facie evidence of the condition of the goods and chattels at the time they are delivered to a bailee, in the absence of other evidence to the contrary.

13. In this matter the applicants did not provide an inventory to the respondents and did not obtain a receipt from the respondents. The respondents did not prepare their own inventory. The applicants did however have a list of some goods (see Ex A, tab 10.1 “Remaining Items – Asset List”) which identifies missing items as the steel support for the Ikea Double bed, timber slats for the King sized bed. This does not include any of the other items either missing or damaged.

14. There was no receipt for the applicants’ goods, so that the applicants are unable to prove whether or not the goods alleged to be missing were delivered to the respondents. However, this can be resolved on the balance of probabilities, namely that the beds had no parts missing as they were being used before shipment and when delivered the parts were missing.

Common Carriers

15. The respondents have acted as a common carrier as the Agreement does not include words to the affect “We are not a common carrier and accept no liability as such”: see Common Carriers Act (NSW) 1902. In the absence of these words, the respondents are a common carrier, and are liable to the applicants for loss and damage if caused by the respondents’ neglect or default: see s9; to the extent that the applicants have declared the value of the goods and the value is proved: see s 11. The applicants did not declare the value of their goods to the respondents. The Common Carriers Act does not assist the applicants.

Determination of the claims

16. There is uncertainty as to the applicants' loss and damage, but nevertheless the Tribunal must do the best it can: Biggin & Co Limited v Permanite Limited (1951) 1 KB 422, at pp 438-439 per Devlin J (as he was); Callaghan v William C Lynch Pty Limited(1962) NSWR 871 at p 877; and Enzed Holdings Ltd v Wynthea Pty Ltd[1984] FCA 373; FCR 450 at [68]; even if it involves a degree of speculation and guess work, and if actual damage is suffered, the award must be for more than nominal damages.

17. The claim for the damaged antique table succeeds in part. The claim is for the whole value, but the table is capable of repair by a cabinet maker or carpenter. There is no evidence of the cost or repair, but doing the best I can I determine this loss at $300.00 allowing for a tradesman to fix the breaks, gluing and clamping, say three hours work.

18. A claim for the missing bed parts succeeds in part. However, the beds were not new, and the applicants are not entitled to the full replacement cost on a “new for old” basis. They have a duty to mitigate their loss, which can be done by purchasing the missing parts from the supplier, or obtaining replacement parts from elsewhere. The Ikea products could have replacement parts available unless the goods are a discontinued line, in which case the applicants can obtain substitute parts from elsewhere. A steel centre bed support, a timber centre bed support and timber bed slats can be sourced from a hardware store and modified by a tradesman, if required Doing the best I can with the information available I assess these losses as $300.00 to obtain the timber and a steel bracket from a hardware store.

19. The claim for replacement of the missing keys fails. There is a conflict in the evidence between the parties about whether two sets or one set of keys were given to the respondents. This is resolved by the onus of proof. The applicants have the onus of proving the keys were delivered to the respondents which they cannot do as they obtained no receipt. In addition, the balance of probabilities assists, as it is improbable that the respondents (or their sub-contractor) would keep one set of keys as they would have no use for them.

20. The claim for the purchase price of sofa bed from Harvey Norman was based on the need to provide a bed for an elderly guest who could not be expected to sleep on a mattress on the floor. However, the sofa bed is a capital item which the applicants still have and they have suffered no loss. In addition, the applicants had a duty to mitigate their loss, by borrowing or hiring a temporary bed for their guest. There is no evidence that they were unable to do so. This claim fails.

21. The claim for accommodation expenses was put on the basis that the tenants were paying rent for premises they could not use as their furniture had not arrived, and they had to stay in temporary accommodation. The problem with this claim is that the Agreement made with the respondents does not include any contractual obligation to deliver the goods on or by a particular date. The obligation of the respondent is to deliver the goods within a reasonable time. The Agreement was made in July and final payment on 1 August 2014. There were discussions about the delivery date and the applicants requested delivery by 21 October 2014. The respondents advised they could deliver on 28 October 2014 but this did not suit the applicants, and after some discussion the majority of the goods were delivered by 3 November 2014, with two other deliveries following.

22. In the absence of a specific contracted date for delivery in the Agreement, the obligation on the respondents was no more than to use their best endeavours to deliver at a time as requested by the applicants, having regard to the distance involved in the carriage of a large amount of goods and chattels from a remote part of western NSW on the east coast of Australia to a relatively remote part on the west coast and the logistics issues involved. The delivery of the first goods in November 2014 was within a reasonable time. In any case the respondents paid for motel accommodation for several nights. The later delivery of the trailer was also within a reasonable time. The Mini vehicle was delivered later and beyond a reasonable time but no loss was proved as arising therefrom. The applicants say that because some of the bed parts were missing they could not take up residence and were justified in continuing in motel accommodation. I do not agree. Their decision to stay on in the Motel was a choice for convenience rather than necessity. They had a duty to mitigate their loss which they could have done by placing the mattresses on the floor. It was only the beds that could not be fully assembled on 4 November 2014. There is no economic loss proved and the claims for accommodation fail.

23. In my opinion the trailer was also delivered within a reasonable time, but the Mini vehicle was not delivered in a reasonable time. However, there is no economic loss as a result of the late delivery of the Mini.

24. The claims for expenses incurred for time, phone calls and sms’ fail as they must be based on a breach of the Agreement, and be foreseeable and not too remote. On balance the goods were delivered within a reasonable time. These claims fail.

25. The claim for unlawful detention of goods fails as it is not a matter within the Tribunal’s jurisdiction. In any case the facts do not support this claim.

26. A claim for stress and anxiety must fail as they are claims for personal injury within the Civil Liabilities Act 2002 (NSW) (“CLA:) s3: Flight Centre v Louw [2011] NSWSC 132 at [31] per Barr J. The CLA provides that damages for non-economic loss cannot be made unless the thresholds in the CLA are met. CLA provides that no personal injuries damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case: s16(1): see Flight Centre v Louw [2011] NSWSC 132. This means no damages can be awarded where the injury is below 15% of a most extreme case. In Coggins v Ourimbah-Lisarow RSL Club Ltd [2009] NSWDC 84 the District Court held that the injuries of a 74-year old plaintiff; who slipped over at RSL en route to bingo, and suffered injuries to her face, neck, elbows, hands and knees, only constituted 8-10% of a most extreme case. In Briscoe-Hough v AVS Australian Venue Security Services Pty Ltd [2005] NSWCA 51 the NSW Court of Appeal agreed that a back injury suffered by being attacked by dog, with resulting disc protrusion, excision of the disc and four months off work only amounted to 13.5%.

27. Further, there was no expert medical evidence to support the claim. Accordingly the claim for compensation for non-economic loss fails.

Remedies

28. The remedies available to the applicants include an Order for the payment of money under the CCA s 8 as compensation; a refund of the purchase price: ACL s 64A; or damages: ACL s 236. The applicants seek damages.

Conclusion

29. In all the circumstances it is in the interests of justice to make the above Order.

J Levingston

General Member

Civil and Administrative Tribunal of New South Wales

19 March 2015

**********

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

Registrar

Decision last updated: 29 May 2015