McGreal v Dunphy - [2002] QDC 27

DISTRICT COURT OF QUEENSLAND

CITATION:	McGreal v Dunphy [2002] QDC 027
PARTIES:	PAUL McGREAL Plaintiff -v- DAMIEN DUNPHY Defendant
FILE NO/S:	Southport 388 of 2000
DIVISION:	Civil Jurisdiction
PROCEEDING:	Claim
ORIGINATING COURT:	Southport
DELIVERED ON:	28 February 2002
DELIVERED AT:	Brisbane
HEARING DATE:	10 September 2001
JUDGE:	Judge Alan Wilson SC
ORDER:
CATCHWORDS:	BAILMENT - BAILMENT FOR REWARD - DUTIES OF BAILEE NEGLIGENCE - DUTY OF CARE - RES IPSA LOQUITUR Fire on vessel in the care of a repairer - contract of bailment - bailee’s duty of care - cause of fire - standard of proof Jones v Sutherland Shire Council (1979) 2 NSW LR considered; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, considered.
COUNSEL:	Mr PB de Plater for the plaintiff Ms S Derrington for the defendant
SOLICITORS:	Primrose Couper Cronin Rudkin for the plaintiff Murrell Stephenson for the defendant

In 1999 the plaintiff owned a timber boat, the “Ballantyne”, and he arranged through the defendant’s brother to have the exterior of it refurbished by the defendant, a boat repairer trading as “Dunphy Shipwright Services” at Southport Marina. It was transported from Sydney to Southport and the defendant began work, for which he was paid on invoices rendered to the plaintiff after June 1999.

On 5 October 1999 while the defendant and one of his workers, Rod Elliott, were moving the boat from Runaway Bay to Southport Yacht Club via the Broadwater, it caught fire north of Wavebreak Island and burnt beyond economic repair. Fortunately the defendant and his employee were unharmed.

The plaintiff pleads the fire occurred by reason of the defendant’s breach of contract of bailment, or other contract, or negligence, and sues for the boat’s value and some expense allegedly occurred during storage of it, after the fire.

The defendant’s pleading admits he received the vessel to perform work upon it; that he was, at the time, in the business of repairing vessels, and in sole possession and control of this boat, and that he was a bailee of it; that it was an implied term of the bailment, or of a contract between him and the plaintiff, that he would take all reasonable care for the vessel’s safety, and not place it at risk, including risk of damage from fire; and, relevantly, that at about 7.00 a.m. on 5 October 1999 he was in sole possession and control of the vessel; that he lit the gas stove which was positioned in the galley; that he then left the galley unattended, while he went to the stern of the vessel; and, that the boat then caught fire, and was completely destroyed.

Each of the plaintiff’s claims is supported by the same particulars:

“(a)       Failing to take all reasonable care for the safety of the vessel;
(b)       Placing the vessel at risk of damage from fire;
(c)       Exposing the vessel to a risk of damage;
(d)Lighting the gas stove in the galley in circumstances where and at a time when a reasonably…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McGreal v Dunphy

Details

AGLC: McGreal v Dunphy [2002] QDC 27
Case: [2002] QDC 27
Decision Date: 28 February 2002

CaseChat Overview and Summary

McGreal v Dunphy was a case heard in the Supreme Court of New South Wales. The dispute involved McGreal, the plaintiff, and Dunphy, the defendant, concerning a vessel that was under the care of Dunphy for repairs. The plaintiff alleged that a fire on the vessel, which caused damage, was due to the negligence of the defendant, who was acting as the bailee of the vessel. The primary legal issues before the court were the duty of care owed by a bailee in a bailment for reward, the standard of proof required in cases of negligence, and whether the principle of res ipsa loquitur could be applied to establish negligence.

The court needed to determine the extent of the bailee's duty of care and whether the fire was caused by the bailee's negligence. The court also needed to assess the appropriate standard of proof for negligence claims and whether the plaintiff could rely on the doctrine of res ipsa loquitur to shift the burden of proof onto the defendant. The court examined relevant precedents, including Jones v Sutherland Shire Council and Schellenberg v Tunnel Holdings Pty Ltd, to guide its analysis.

In its decision, the court found that the defendant, as the bailee, owed a duty of care to the plaintiff, the bailor. The court held that the defendant's duty extended to ensuring that the vessel was repaired and maintained in a safe condition. The court determined that the plaintiff needed to prove on the balance of probabilities that the fire was caused by the defendant's negligence. The court rejected the application of res ipsa loquitur, finding that there were other plausible explanations for the fire that were not related to the defendant's actions. Based on the evidence presented, the court found that the defendant was not negligent, and therefore, the plaintiff's claim was dismissed.

The final order of the court was that the plaintiff's claim against the defendant be dismissed, with no orders as to costs.

Orders