Peel v Global (WA) Pty Ltd - [2009] WADC 27

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PEEL -v- GLOBAL (WA) PTY LTD & ANOR [2009] WADC 27

CORAM: O'SULLIVAN DCJ

HEARD: 1-5 DECEMBER 2008

DELIVERED : 6 MARCH 2009

FILE NO/S: CIV 1205 of 2003

BETWEEN: STEPHEN GEOFFREY PEEL
Plaintiff
AND
GLOBAL (WA) PTY LTD
First Defendant
DINNERDALE PTY LTD
Second Defendant

Catchwords:

Negligence - Claim for damages for personal injuries - Liability in issue - Matter turns on own facts

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff:     Mr D M Bruns
First Defendant              :     Mr J R Criddle
Second Defendant         :     Mr S R Brooksby

Solicitors:

Plaintiff:     Separovic & Associates
First Defendant              :     Pynt & Partners
Second Defendant         :     Williams Handcock

Case(s) referred to in judgment(s):

Nil

O'SULLIVAN DCJ: The plaintiff in this matter was injured when the back of a chair upon which he was sitting collapsed.
He brought an action against the first defendant as manufacturer of the chair and the second defendant which, he alleges, assembled and supplied it.
The claim against the first defendant has been discontinued and contribution proceedings between the first and second defendants have been dismissed by consent.
What remains to be determined is the outcome of the plaintiff's claim against the second defendant. Quantum has been agreed and the only issue is liability.

The accident

The plaintiff who is 52 years of age suffered injury on 4 June 2000 when he was working for Australian Correctional Management Pty Ltd ("ACM") at the Curtin Detention Centre ("the centre"), not far from Derby.
The chair upon which he was sitting was of a secretarial or typist's kind. There is an important issue concerning its precise mechanism and I will return to that matter shortly.
The plaintiff said that on the day in question he was sharing an office with Mr Paul Reeves. He had just returned to the centre after some months and a desk and chair had been provided for his use. He was seated at the desk preparing a management plan for a detainee. Mr Reeves was sitting behind him and he swung around to speak to him, raising his hands behind his head and resting back in the chair. According to the plaintiff there was a loud bang, "almost like a gun going off", and the back of the chair fell from a vertical position to an almost horizontal one causing the plaintiff to fall backwards and sustain injury.

The chair

The plaintiff was in great pain in the lower back as a result of the accident and was taken off to the medical centre. Accordingly he had no opportunity to examine the chair closely at the time, but he said that he saw it the following day. Unfortunately it is not now available to be inspected but he said that he was given some broken parts from it by a Mr Colin Robinson, a fellow worker at the centre. Those parts were contained in a white plastic bag and he gave them to his solicitor but they too have been lost.
Nevertheless a chair which Mr Peel said was similar to the one on which he was injured was tendered and became Exhibit 3. It has a back support which is attached to a hinge situated beneath a base plate to which the seat is fixed. The hinge is approximately 15 centimetres from the rear edge of the base plate. The back support which appears to be made of steel curves in under the base plate to meet the hinge. There is a bolt which protrudes downwards from the base plate and through a hole in the back support approximately 7 centimetres from the hinge. A spring fits over the bolt and is held in place by a plastic cup. A washer fits over the end of the spring to protect the end of the plastic cup which has an integrated steel nut which screws onto the bolt. The cup operates as an adjusting handle, allowing the spring to be compressed or loosened. Photographs of this mechanism and of these components are to be found in Exhibit 10.

Did the defendant supply the chair?

There is no doubt that the plaintiff was injured on a chair of the kind he described, being one fitted with a seat back spring support mechanism. I turn to examine the evidence concerning whether the second defendant supplied it.
The defendant company which trades as Derby Retravision owns and operates a store selling electrical and other goods and at all material times also sold office furniture. It has been effectively controlled by Mr Richard Hardy who gave evidence that from time to time the defendant supplied office furniture and equipment to the Department of Immigration for use at the centre. The furniture included chairs of a kind identical to Exhibit 12 which has a fixed back. Mr Hardy denied ever supplying chairs fitted with a spring back adjustable mechanism, such as is to be found in Exhibit 3.
At the time of the plaintiff's accident Bradley John Lingard was the operations manager of the Curtin Detention Centre and was responsible for preparing it to take detainees and later managing it on a day‑to‑day basis. He was employed by ACM which had a contract with the Department of Immigration to run the centre.
Preparations began to reopen the centre after it had been dormant for some years in about September 1999. At that point it was contemplated that it would hold 150 detainees but its capacity was rapidly increased so that by about June 2000 there were between 1100 and 1200 detainees and approximately 200 ACM staff, in addition to some officers of the Department of Immigration .
Mr Lingard said that before commencing his duties he was instructed to follow a "buy local" policy in acquiring equipment needed for the centre. He said that he would usually make requests for items from Mr Greg Wallis of the Department of Immigration. He would meet regularly with Mr Wallis and ask him to acquire furniture and equipment.
In relation to office furniture Mr Lingard said:
"There were occasions when we needed immediate office furniture supplied for various reasons and I would ask someone to go and acquire that equipment locally. The main office we used locally was the Retravision Store in Derby – depending on the type of equipment required, but Derby Retravision had basically – was a one-stop shop for us as far as things that we needed and that was always the place we went to get … supplies of that equipment."
Mr Lingard said that in his dealings with Mr Wallis the latter stressed the need to follow the "buy local" policy.
Mr Lingard said that the office furniture supplied pursuant to these arrangements included office chairs and he was not aware of any chairs coming from any organisation other than Derby Retravision.
Asked whether he thought the chairs might have been purchased from a retailer in Broome he said:
"I find that illogical based upon our discussions initially with Mr Wallis in regard to buying locally. The other thing is that one has to take into account the tyranny of distance that we were working under and we were some 2000 or 3000 kilometres north of Perth and it was very important that we had very dedicated tried and proven logistical supply contracts in place to ensure what we ordered was going to be delivered and we didn't really have the time to even think about looking elsewhere. If we had a contractor or a supplier who could give us what we wanted within a reasonable period of time‑frame and guarantee that, well then we would always go back to that person and that was Retravision in Derby. As far as I was aware we always went there to get what we needed to get. We didn't go anywhere else because it just seemed illogical and to go to Broome to buy things like what we're talking about here, I never heard that from Mr Wallis, nor did we actually exercise that option at all because it was just – well, Broome was nearly a three hour drive away for us one way so it's a six hour trip there and back and why would you want to waste that time and staff resources to go and pick up something from Broome when you can get it from Derby delivered. It just didn't make sense."
Mr Gregory Clyde Wallis is now the Deputy State Director of the Department of Immigration and Citizenship in Western Australia. He ran the centre for the Department between about 1999 and 2003 and was responsible for mothballing it after it had been open in 1994 and 1995 and for re-opening it in September 1999.
Mr Wallis said that when the centre was reopened there were some desks and chairs which had been stored and which were still in good condition and they were put to use. However, many more desks and chairs were required and these items were purchased.
Mr Wallis confirmed that there was a "buy local" policy and said that this was a policy of buying equipment from businesses in the local community provided that it was not more than about 10 per cent more expensive. However, he said:
"But there is (sic) no restriction on us buying items elsewhere, and certainly we purchased a lot of equipment out of Perth and we purchased equipment from other locations as well."
Other locations included "Kmart" in Port Hedland and "Broome Office Supplies" although Mr Wallis did not recall specifically buying chairs from these outlets. There was also another outlet in Derby known as "Derby Office Supplies" but again Mr Wallis did not recall buying items from it.
As far as office chairs were concerned Mr Wallis said that there "always seemed to be a need to replace" them. He said that they always seemed to be breaking:
"So office chairs I recall were the bane of my life and had to be replaced fairly regularly".
Mr Wallis also said that he specifically recalled chairs at the centre which had a spring adjustment on the base and that he thought that they were there "early in the piece". He said further:
"I can vividly picture these chairs as, say, sitting outside buildings with the backs collapsed on them. So the screw piece had actually been taken off, had come undone, and they were sitting there not being able to be used because you couldn't screw the back up again."
Asked what he did about these chairs he said:
"I have a very vivid memory of buying – and because of the concerns I had about the way in which chairs were being treated around the complex, looking at an option for a chair, while not a cheap chair, would have been more robust than the chairs that [were] there, and I – I have a very good memory of actually going to Retravision in Derby and buying a chair which had a different back fitting to it. It was a rigid back and the part of the chair slipped into a bracket under the chair and did up with a ‑ with a screw – screw arrangement, but it wasn't a spring loaded chair."
Mr Wallis recalled buying chairs similar to Exhibit 12 but could not recall the number he ordered.
In cross‑examination Mr Wallis confirmed that he wrote the note (Exhibit 17) which reads "Access Office Industries Perth 94933776" and that he might have given it to the plaintiff after his accident. He said that he "imagined" that it would be correct to say that he would have got the name "Access Office Industries" from Derby Retravision whom he had contacted to get the name of the chair supplier.
Mr Wallis said:
"That's the only place I could have got that information from."
However, he was also asked and said:
"So as of that time you believe the chair that was involved in the accident came from Derby Retravision? – I had no idea where the chair came from but if it had of (sic) been said to me that they wanted the supplier of the chair, I would have given that information in my role as the manager – the Immigration manager at the facility.
The information you haD was that it came from Derby Retravision who in turn got it from Access Office Industries? – I believe that to be correct."
Mr Wallis also said (about Exhibit 17):
"I don't recall who I gave it to I'm assuming I gave it to Mr Peel, but I can’t recall that. I can only assume that he or somebody else asked me for the details of the office chairs that we'd recently purchased and I would have found that information out for that person and given them that information".
Asked whether he had any recollection of making these enquiries, Mr Wallis said:
"Not really…but as with any person working on the site, if they had wanted information that I had access to I would have given them that information".
Mr Colin Burns Pace is an insurance investigator who was instructed by Royal Sun Alliance Insurance Company to investigate Mr Peel's accident for workers' compensation purposes. He said that he spoke to Mr Wallis on the phone, and that Mr Wallis told him that a Retravision store in Derby had supplied the chair upon which the plaintiff was injured. Upon receiving that information Mr Pace said that he contacted Mr Hardy and spoke to him but, he was not asked and gave no evidence of what Mr Hardy said to him.
Mr Pace did say that Mr Wallis told him that he had taken digital photographs of a chair identical to the one upon which the plaintiff had been injured and that Mr Wallis sent him a floppy disk containing those photographs, copies of which are Exhibit 8. They show a spring backed adjustable chair and its component parts.
Mr Wallis was asked about what he might have told Mr Pace and said that he did not have "a good recollection of the interview". He could not remember telling Mr Pace that the chair had come from Derby Retravision.
Mr Richard Hardy has run the business of Derby Retravision for the past 18 years. He said that he recalled that after the centre reopened in late 1999 he assembled and supplied chairs to it. The chairs were of the kind depicted in Exhibit 12 and were not spring backed. He said:
"… they were a fairly simple chair. They were just screwed – the bases were screwed in onto the seat."
Mr Hardy gave a demonstration and an explanation of how the component parts of Exhibit 12 were put together by him or his assistant, a Mr Anderson. He also said the chairs came packaged in boxes and were taken to the centre by him and his assistant and assembled there.
In the course of his evidence Mr Hardy said that before becoming involved in the business of Derby Retravision he had been a panel beater and spray painter and was experienced in "all sorts of mechanical work" and "in putting things together and taking things to pieces". However, when asked to examine Exhibit 11 a spring backed adjustable chair similar to Exhibit 3, he said:
"I don’t really know how it unscrews because I've never seen it before…and I've never put one together".
Mr Hardy said that he had never stocked a chair of that kind or any chair having a back secured by a spring and washers and bolts.
In the course of cross-examination of Mr Hardy a number of invoices from Derby Retravision to the Department of Immigration were tendered. The invoices were variously dated late 1999 and early 2000 and were for items described as "office chairs with arms", "office chair", "chair without arms", and "chairs". One invoice dated 15 November 1999 and being for office chairs with arms specified a price of $129 per chair. One dated 1 October 1999 specified a price of $259. One dated 8 February 2000 for "chair without arms" specified a price of $149. Another invoice dated 5 March 2000 for "chairs" also specified a price of $149. A further invoice dated 26 May 2000 for "office chairs" specified a price of $159 per chair. Another one dated 27 April 2000 included office chairs with arms at a price of $159 per chair.
Another invoice tendered (Exhibit 19) is dated 9 November 1999 and is addressed to the Department of Immigration at a postal address in Northbridge, Perth. It was for 30 office chairs at a price of $99 each.
Mr Hardy explained that the difference in prices for the chairs reflected the fact that different kind of chairs were sold from time to time, but he was adamant that the business of Derby Retravision had never stocked nor supplied chairs with a spring backed mechanism.
Mr Hardy said that he would have ordered the chairs the subject of these invoices from Access Office Industries in Perth. Asked in cross‑examination whether, in giving discovery in this matter, he looked for written documentation relating to those orders he said he was never asked to look for them and he doubted whether he would have had them. He relied upon his wife to look for relevant documentation.
Mr Hardy had no recollection of speaking with Mr Wallis about the accident nor with Mr Pace but he admitted that he might have told Mr Wallis that Derby Retravision might have ordered the chair from Access Office Industries. He also admitted that he might have informed the plaintiff's solicitor, Ms Lisa House, that that was the case.
Mr Dean Anderson worked for Derby Retravision from time to time as a general handyman and gave evidence that he specifically recalled working for the business in the late 1990's delivering chairs to the centre and assisting Mr Hardy in assembling them. He said that the chairs were of a kind such as Exhibit 12 with arms or without arms. He said that he never assembled a chair with a spring back mechanism and "wouldn't have a clue how it works". He said he would have remembered putting in washers or springs when assembling the chairs and definitely did not use such components.

Finding

In my view, it has not been established on a balance of probabilities that the chair upon which the plaintiff was sitting when he was injured had been supplied by the second defendant.
It is true that at the time of the accident, and perhaps for some time before, the Department of Immigration had a "buy local" policy and that Derby Retravision had been a significant beneficiary of it. That is not to say, however, that it must have supplied the chair.
It is also true that Mr Wallis gave the plaintiff the note (Exhibit 17) upon which he had written the name "Access Office Industries" and that he said that he "imagined" that he got that name from Derby Retravision, saying that that was "the only place I could have got that information". However, he also said that he had "no idea where the chair came from".
Mr Wallis did, of course, tell Mr Pace that the chair had been supplied by Derby Retravision but what grounds he had for saying that are not known and there is nothing to suggest that he had first hand knowledge that that was the case. I have already noted that when asked about the circumstances in which he came to write the note which is Exhibit 17, Mr Wallis said:
"I can only assume that he (the plaintiff) or somebody else asked me for the details of the office chairs that we'd recently purchased and I would have found that information out for that person…"
In these circumstances, it may well be significant that Mr Wallis did not write down any details of the defendant but only noted the name of the supplier in Perth, Access Office Industries.
It is true that Mr Pace did contact Mr Hardy after speaking with Mr Wallis but curiously, he was not asked about any conversation which he might have had with Mr Hardy. It is true also that Mr Hardy may not have told Mr Pace or Ms House, the plaintiff's solicitor, that he did not supply the chair upon which the plaintiff was injured but I can find no basis for concluding that his conduct in that regard amounts to an admission that the defendant did supply it.

Conclusion

I have already noted that the chair upon which the plaintiff was injured was clearly of the spring-backed kind. In the light of the conclusion that the evidence does not establish that the defendant supplied a spring-backed chair, the claim fails.