Neuman (T/As Traditional Floors of SA) v Faehrmann No. Scgrg-99-506 Judgment No. S307

[1999] SASC 307

NEUMAN (T/AS TRADITIONAL FLOORS OF SA) v FAEHRMANN

[1999] SASC 307

Magistrates Appeal - Civil

1 WILLIAMS J.  This is an appeal by the defendant Neuman against a final judgment in favour of the plaintiff in civil proceedings in the Adelaide Magistrates Court.
2 On 21 April 1999, after a two day trial, the Magistrate ordered that judgment be entered for the plaintiff in the sum of $5254, together with costs.
3 The defendant carried on the business of floor sanding and polishing under the name "Traditional Floors of SA".  The plaintiff was the owner of domestic premises at Elizabeth Street Nairne.  The plaintiff’s claim was for damages for breach of an oral contract whereby he engaged the defendant at a price of $1200 to sand, polish and stain a baltic pine floor which had been laid in the upper storey of the plaintiff’s house.  In the alternative, the plaintiff asserts that the defendant negligently failed to advise him as to what the job required.
4 After the job had been completed gaps developed between the boards and cracking of the timber occurred.  The Magistrate found that matters of complaint were caused by a phenomenon called "edge bonding".  This is described in exhibit P6, a Technical Bulletin dated 10 February 1997 No. 14 issued by Polycure Pty Ltd which is the manufacturer and supplier of timber coatings for tongue and groove timber floors.  Polycare supplied the products used by the defendant in his treatment of the plaintiff’s floor.  Not only does the bulletin describe edge bonding and its cause but it also sets out the steps to create an environment whereby the high shrinkage of timber can be avoided.  The evidence to support the contents of the bulletin was given by the plaintiff’s expert witness, Mr Kent Hopkins, whose explanation the Magistrate preferred to that proffered by the defendant’s expert, Mr Dawson.  The latter attributed the observed defects to sag in the floor joists.  I have read the evidence and the Magistrate’s reasons.  I consider that the Magistrate’s reasons are persuasive and they find compelling support in the evidence.
5 The Magistrate found that the defendant was negligent in his performance of his obligations, whether in contract or in tort.  In particular he found:

1. ...that the defendant was at all material times negligent in not advising the plaintiff of any potential problems associated with the materials that the defendant proposed to use in or about the subject floor.

1. ...that the defendant used a high-gloss polyurethane varnish which edge-bonded the floorboards.

1. ...that the defendant failed properly to advise the plaintiff as to the most suitable materials (e.g. an oil finish) to carry out the work in question."

6 The Magistrate discounted the evidence of the defendant’s witness, Mr Ivan Perkovich, who undertook the work on behalf of the defendant, and his memory of observations made nearly eighteen months earlier.  The Magistrate found it "difficult to believe that he had any independent recollection whatsoever".  The Magistrate made a similar finding as to the recollection of the defendant as regards his dealings with the plaintiff as his customer.
7 Counsel for the defendant recognised his difficulty in challenging these findings upon appeal (see Devries & Anor v Australian National Railways Commission & Anor (1992) 177 CLR 472 at 479.) The defendant’s counsel was content to challenge only the Magistrate’s preference for the opinion of the plaintiff’s expert as abovementioned.
8 The grounds of appeal are as follows:
"The Learned Magistrate erred in that:-

(a)     He accepted the expert evidence of Mr Hopkins over that of the expert of Mr Dawson.

(b)     He failed to give any weight to the method the builder fixed(sic) the baltic pine flooring to the sub-floor.

(c)     He determined that "panelisation" within the baltic pine flooring was only consistent with the theory advanced by Mr Hopkins.

(d)     His finding gaps had occurred in the baltic pine flooring where no sagging was detected, was against the weight of the evidence.

(e)     He determined "edge bonding" had occurred when the respondent had failed to produce physical or scientific evidence of that phenomenon.

(f)     He failed consider(sic) the evidence of Mr Dawson that splits and gaps within the baltic pine flooring could also occur for reasons other than edge bonding.

(g)     He failed to adjourn the proceedings to allow the experts to take up portion of the flooring to test and determine if "Edge Bonding" had occurred.

(h)     He failed to take a view of the flooring which the appellant requested which would have given the Magistrate evidence of the floor sag and the degree and placement of gaps and splits in the baltic pine floor.

1. His findings in paragraph 1(a) and 1(c) herein were against the weight of the evidence.

(j)     He placed too much importance on the alleged failure of the appellant to test the floor with a moisture meter or give advice to the respondent about other types of finishes.

(k)     Failed to find on the whole of the evidence that the respondent had not proved his case on the balance of probabilities."

9 In my opinion, this is a case where the Magistrate does have an advantage with regard to the assessment of the evidence which is not available to me.  This is so even in the assessment of the experts themselves where the Magistrate preferred the observations of fact and technical explanation of Mr Hopkins to the evidence of Mr Dawson.
10 In deciding whether "edge bonding" was the cause of the failure of the plaintiff’s floor rather than "floor sag", I consider that the following points are of importance.

1. There was evidence accepted by the Magistrate of relevant defects such as cracking in areas where floor sag had not been detected, for example in the narrow hallway.

1. The defendant’s expert, Mr Dawson "could not discount that some edge bonding may be occurring in some areas".  He acknowledged that there was some evidence of this phenomenon.

1. The random pattern of the bonding or "panelisation" which the Magistrate found to have occurred is only consistent with the plaintiff’s expert’s opinion.

11 The findings of the Magistrate deserve to be treated with respect, but there is nothing which can deprive me of the power and duty to review the Magistrate’s conclusions of fact (see State Rail Authority of NSW v Earthline Constructions (1998) 160 ALR 588 especially Kirby J at 614.) In undertaking that review I am particularly impressed by the three matters which I have mentioned. I am satisfied that the Magistrate understood the competing hypotheses. There was ample justification in the evidence for the conclusion he reached.
12 The defendant complains as to the failure of the Magistrate to take a view of the floor.  However, a view is only to assist in the understanding of the evidence and does not itself constitute evidence, unless the parties otherwise agree.  The Magistrate was entitled to adopt the position, as he explained in his reasons for judgment, that the evidence alone was sufficiently clear.
13 There is a complaint that the Magistrate should have adjourned the proceedings to allow the experts to take up portion  of the floor for testing.  It was only after the trial had commenced that the defendant took this stance.  In my view, any application to make tests were properly part of the pre-trial procedure.  Whether destruction tests and the associated costs of reinstatement could have been justified, is debatable.  The Magistrate was entitled to refuse the application in the exercise of his discretion.
14 A report was prepared by a Court appointed building expert Mr Robinson.  He did not give evidence and the plaintiff’s expert, Mr Hopkins, disagreed with the report.  The Magistrate concluded that Mr Robinson’s statement was "given short shrift by the experts."  Upon the appeal the defendant argued that the report gave some support to his position.  Having reviewed the evidence, I consider that the Magistrate has properly brought to account Mr Robinson’s  untested opinion as a matter which had been put to the experts.
15 The defendant’s case is that the baltic pine was laid over a sub-floor comprising a material called Structaflor.  This sub-floor, which is laid across the joists comprises 900mm wide panels joined by a plastic tongue.  The defendant’s counsel summarised his case upon appeal as follows:
"...we say that what has happened is that because the floor has sagged, the Structafloor(sic), which doesn’t expand or contract because it’s one thick sheet 900mm wide, comes adrift a little at its joins, and that you therefore get the strip flooring on top of it being pulled apart or gapped in the vicinity of those joins because the strip flooring, which is nailed onto the Structafloor(sic), should have been glued.  So where the Structafloor(sic) has not come apart, that is within its width of 900mm, the strip flooring on top of it remains intact, together.  Where there’s a separation of the Structafloor(sic) at its join, you get the tensional forces on the strip flooring above it which either have to pull apart or split, and you then get the next 900mm width Structafloor(sic) with the floorboards on it staying together.  The next join of the Structafloor(sic) where it pulls apart a bit, you get the tensional forces again on the pine strip flooring above it gapping and splitting."
....
The Structafloor(sic) is laid across the joists, so if there’s a sag in the joists, the Structafloor(sic) has, in effect, got to cover a greater area than if it was dead level, but of course it can't because it can’t expand, so it moves apart at its joins."

16 The defendant argues that the Magistrate did not properly appreciate his case.  I reject this submission.
17 The Magistrate has made his assessment of the experts in terms of their respective expertise and in terms of their competing theories.  He was entitled to conclude, upon the evidence, that the plaintiff’s expert was better qualified than the defendant’s expert.  He considers that the defects observed in the floor are consistent with the explanation of the plaintiff’s expert and inconsistent with that put forward by the defendant’s expert.  The Magistrate found that groups of floor boards had bonded together in a random pattern whereas joist sag, if it had caused the problem, could have been expected to bring about a degree of uniformity in the separation of the boards.
18 The Technical Bulletin No.14 abovementioned, sets out the steps which should be taken to avoid edge bonding.  The Magistrate considered that the defendant should have been aware of these steps but did nothing to meet the problem either by moisture testing of the floor before work commenced or by the use of an alternative floor coating.  The fact is that the defendant was not aware of the potential problem.  The defendant’s failure, through lack of knowledge, to take steps to avoid a well-known problem resulted in the Magistrate’s conclusion that the defendant failed to discharge his responsibility to the plaintiff. Moreover, he concluded that the defendant failed to advise the plaintiff as to the process which should be used or, alternatively, the defendant carried out the work without taking the precautions outlined in the Polycure brochure.  Upon the evidence the conclusion reached by the Magistrate as to liability was open to him.
19 Although the defendant presented his case upon the basis that it was a matter of assessing the opinions of experts, there is an added difficulty.  The finding of the Magistrate was that where there was a conflict between Messrs Hopkins and Dawson as to their respective observations of the plaintiff’s floor then he "unreservedly prefer[red] the evidence and the observations of Mr Hopkins."  This finding accentuates the difficulty for the defendant to find a toe hold for argument upon appeal. 
20 The defendant’s argument is made even more problematic given the Magistrate’s finding as to Mr Dawson’s lack of qualifications to give evidence regarding structural issues.  I reject the contention in the ground of appeal that the Magistrate "failed to give any weight to the method the builder fixed(sic) the baltic pine flooring to the sub-floor."  Upon Mr Hopkins’ evidence this was not the cause of the problem and the Magistrate demonstrated that he was aware of the construction method.
21 Grounds of appeal (i), (j) and (k) relate to the weight of the evidence and the importance which the Magistrate attached thereto.  In my view the findings are amply supported by the evidence.
22 The plaintiff has put forward an outline of argument which effectively answers point by point each of the appellant’s contentions in the grounds of appeal.  The Magistrate has carefully weighed up the competing theories and upon the evidence has properly recognised the "edge bonding" phenomenon and its consequences.  The Magistrate has properly considered and rejected other possibilities as the cause of the problem.
23 In my opinion, it has not been demonstrated that the Magistrate was in error in reaching his decision.  The appeal will be dismissed.