Sabbarton v Bentram Pty Ltd

[2014] NSWCATCD 121

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Sabbarton v Bentram Pty Ltd [2014] NSWCATCD 121
Hearing dates:	19 June 2014
Decision date:	11 July 2014
Before:	P Boyce, Senior Member
Decision:	1.The respondent pay to the applicant the sum of $1,678.00 immediately
Catchwords:	Acceptable quality of consumer goods
Legislation Cited:	Consumer Claims Act 1998 Australian Consumer Law
Category:	Principal judgment
Parties:	John Sabbarton (applicant) Bentram Pty Ltd trading as Camzilla (respondent)
File Number(s):	GEN 14/17986

reasons for decision

APPLICATION

1. This is an application by a consumer for an order that the supplier of goods refund to the consumer the price paid by the consumer for goods that were not of an acceptable quality.

JURISDICTION

1. The applicant is a consumer within the meaning of Section 3 of the Consumer Claims Act 1998.

1. The matter falls within the definition of "consumer claim" under Section 3A of the Consumer Claims Act 1998.

1. The cause of action arose within the 3 years prior to the commencement of proceedings, and the value of the claim is less than $30,000.00.

1. The Tribunal is satisfied that it has jurisdiction under Section 7 of the Consumer Claims Act 1998.

BACKGROUND

1. The consumer applicant purchased from the supplier respondent DJI Phantom 2 Quad-copter, gimbal and aerial camera ("Drone").

1. The applicant paid a price of the $1,678.00 for the Drone.

1. After taking delivery of the Drone and familiarising himself with the use and operation of the Drone in accordance with the manual supplied with the Drone, the applicant used on a test flight.

1. On the test flight the remote controllers battery discharged and the controller lost power.

1. The representation by the respondent and in the manual was that if this event took place then the Drone would return to the point of take-off.

1. The Drone did not return to the point of take-off and disappeared in the air space.

1. The applicant seeks orders that the respondent pay to him the sum of $1,678.00 being the purchase price of the Drone.

LAW

1. The Australian Consumer Law ("ACL") prescribes certain guarantees in respect of the supply of goods. In particular, S 54 prescribes that there is a guarantee that goods are of acceptable quality.

1. An acceptable quality is defined by s 54(2) as goods being:

(a)   Fit for all the purposes for which the goods of that kind are commonly supplied; and,

(b)   Acceptable in appearance and finish; and,

(c)   Free from defects; and safe; and,

(d)   Durable;

As a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defect of the goods), would regard as acceptable having regard to the natters in subsection (3)

1. In considering what is acceptable, s 54(3) prescribes:

(a)   The nature of the goods; and,

(b)   The price of the goods (if relevant); and,

(c)   Any statement made about the goods on any packaging or label on the goods; and,

(d)   Any other relevant circumstances relating to the supply of goods

1. If a consumer takes action against a supplier for the failure to comply the guarantee in s 54 that the goods are of an acceptable quality then the provisions of s 259 (1) and (3) of the ACL apply in that:

(1)   A consumer may take action under this section if:

(a)   a person (the supplier) supplies, in trade or commerce, goods to the consumer; and,

(b)   a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3-2 (other than sections 58 and 59 (1) is not complied with.

(3)   If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a)   Subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds of rejection; or,

(b)   by action against the supplier, recover compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods

EVIDENCE

Applicant's evidence

1. The applicant has the onus of proof to establish that the goods supplied not of acceptable quality.

1. The applicant's sworn evidence is that he made inquiries about the purchase of the Drone to the respondent. He also saw on the respondents website that the Drone was represented to "If the Phantom 2 and its controller disconnects during flight, the systems fail safe protection will come to the rescue and if the signal is good enough, the Phantom 2 will return to home and land automatically" and "You can also program a One Key Go Home function through the Assistant software".

1. In particular, he asked the respondent's sales assistant about the failsafe system before purchase. The applicant tenders to the Tribunal his and his wife's declaration in support of this contention.

1. At the time of purchase of the Drone, the applicant sought to also purchase a FPV screen and transmitter, which were both out of stock.

1. The purchase of the Drone was made.

1. In a telephone conversation with the respondent's representative after about a week of purchase of the Drone the applicant inquired about when the FPV screen and transmitter, which were still not available, would be available. He also inquired about his concerns about the "course lock" on the Drone was not working and he had difficulty connecting the Drone to the computer software and his evidence is that he was told by the respondent's representative "don't worry about it". He was not told to avoid flying the Drone.

1. The evidence tendered to the Tribunal is packaging on the box with instructions for the Drone stating that the aircraft would be ready fly, just add four AA batteries.

1. Before flying the Drone, the applicant accessed the product website and read the manual which he printed and is tendered to the Tribunal. He also watched an on line tutorial video.

1. He then operated the Drone in accordance with the quick start manual and the online manual.

1. In accordance with the manual he recalibrated the Drone before each flight.

1. The applicant in calibrating the system raised the aircraft off the ground to about eye height to confirm that the colour of the warning lights were correct and indicated that it was ready to fly. He would then land it before turning on the camera and then be ready to fly the Drone.

1. On 20 February 2014 the applicant felt confident to fly the aircraft with camera attached. He travelled to open space near his home and followed the start-up procedures and calibration of the fail safe system. The weather was fine with little wind and no visible power lines.

1. The Drone was launched and after about 10 minutes of operation a warning beep sounded on the controller indicating the batteries charge was low and the applicant tried to fly the Drone back to his location. It stopped responding to the controller.

1. The applicant switched on the failsafe system as instructed in the manual. The Drone did not respond and disappeared from view and was lost.

1. On that day the applicant contacted the respondent and complained that the Drone stopped responding to the controller and rather than switch to auto return home had flown away and was lost.

1. On 26 February 2014 the applicant requested a refund of the value of the Drone from the respondent.

1. On 11 March 2014 the respondent by email refused the request for a refund citing that it had contacted the manufacturer of the Drone and determined that the cause of the Drone disappearing was operator error and it could not be replaced under warranty. The respondent also cited that the reason for the disappearance of the Drone was caused by the applicant not waiting at least 30 seconds for the Drone to locate satellites to fix its location prior to take off and quoted the manual "It is recommended to lift off only after Ready to Fly status is confirmed for the safety of being able to fly back home point successfully in case the Failsafe mode is initiated".

1. The applicant asserts that on the evidence before the Tribunal on the packaging or in the manual there is no mention of the need to keep the aircraft on the ground for 30 seconds to set a home point.

1. Although of little evidentiary value, the applicant tenders to the Tribunal a blog page of DJI Phantom users complaining about the problem of fly away aircraft and the response to those complaints by US retailers and manufacturer as blaming user error.

Respondent evidence

1. The respondent's evidence is that the applicant failed to set the Global Positioning System Home Point on the Drone correctly.

1. The respondent says that on the applicant's evidence he relates how he starts up the aircraft by raising it to eye height to confirm the colour and status of the warning lights. The respondent says that, critically, the applicants evidence is that the applicant confirms that he started flying before (emphasis added) confirming that the Drone was in "Ready to Fly with GPS" and that the applicant says that this confirmation took place after (emphasis added) the aircraft took off.

1. The statement made by the respondent's manufacturer tendered with the evidence confirms that this is the cause of the fly away.

1. The respondent's further evidence is that the applicant displays a misunderstanding and interpretation of the manual and that is the cause of his operator error and not an inherent fault with the goods or their instructions. The respondent cites instances of this misunderstanding through the applicants references;

(a)   to the instructions on the box and his assumption that there were no critical instructions to operate the aircraft,

(b)   the return of the aircraft to the ground to then turn on the camera which required just as much dexterity as observing the indicator lights, which the applicant says because of his age he found to be difficult; and,

(c)   flying it to eye level before confirming GPS status;

(d)   operating the S1 switch to the bottom position, which the respondent says does not operate in that manner unless configured in the software, which the applicant admits he did not do.

1. The respondent asserts that it has sold over 200 of the Drones in Australia without any other report of a fly away, that the manual provides instructions that are capable of being understood and that there is no basis to conclude that the product was faulty in any way.

FINDINGS

1. There has been a significant amount of evidence put to the Tribunal in support of the claim and its defence.

1. There is no expert evidence adduced by either party about the cause for the Drone to disappear and fail to return home.

1. To succeed in his application the applicant must establish on the civil standard of proof that his evidence supports the claim that the respondent has failed to comply with the guarantee contained in s54 of the ACL.

1. The applicant bases his claim on the fact that the Drone was not of acceptable quality as it failed to comply with the criteria of acceptability in that the representations made by the respondent's employee, the instructions on the packaging and all other circumstances were sufficient to negate its acceptability.

1. The test for the Tribunal is what a reasonable consumer fully acquainted with the state and repair of the goods would regard as acceptable when considering the matters that the applicant relies upon.

1. To consider this test, the Tribunal must examine the terms of the manual to determine whether a reasonable consumer would be properly instructed to operate the aircraft so that it would perform the function that the applicant relied upon as a significant feature of his decision to purchase the goods.

1. The Tribunal is satisfied that the applicant relied on the feature of the aircraft to return home with a failsafe function in the event of a malfunction. The applicant and his wife attested this was made known to the respondent's employee before purchasing the Drone and the applicant had seen the representations on the respondent's website that the Drone had this feature.

1. The applicant's evidence is that he had taken the time and effort to familiarise himself with the instructions in the manual and to carry out at least 5 test flights before embarking on his first major flight. The Tribunal is satisfied and accepts the applicant's evidence in this regard.

1. The respondent says that the applicant's loss was caused by user error. It supports this statement by relying on the applicant's evidence of how he operated the Drone. That is, the incredulity of the assumption that the applicant relied on the statement on the box, the applicant's lack of dexterity to bend over to see the light indicators beneath the aircraft, lifting off to eye level to view the lights and then landing again thereby resetting the GPS system and the reliance on the S1 switch which the respondent says does not work unless configured with the software.

1. An examination of the manual tendered by the applicant in his evidence provides clear warnings about the calibration of the compass to ensure the flight control system does not work abnormally. It is the applicant's evidence that he followed the calibrating procedure as described in the manual.

1. The failsafe function of the Drone is set out in the manual. It requires configuration in the Phantom 2 Assistant software (Instruction 6.4 (2)). The applicant's oral evidence is that he was not able to have the software recognised on his computer and telephoned the respondent about this about a week after purchasing the Drone. The applicants statement tendered with his evidence is that when he discussed the problem with the course lock with the respondent's employees he was told "don't worry about it" and that they would have a look at the problem when and if he came back to their store to pick up other equipment that he had ordered. His evidence is that he was not warned after raising this concern with the respondent's employees to stop flying the aircraft and that it would cause problems with the failsafe system.

1. The manual is quite clear that the failsafe system will fail if the software system has not been installed.

1. The Tribunal is satisfied that the failsafe system did not work as the software had not been installed by the applicant.

1. However, the applicant relied on the respondent's advice to purchase the Drone. It was reasonable for him to turn to the respondent when the applicant reported to the respondent that the software could not be loaded and the failsafe function configured. It was the respondent's employee's advice "don't worry about it" and that the next time that the applicant was in the store they would look at it that exposes the respondent to liability that the applicant relied upon.

1. That advice should also have included not flying the aircraft until the problem was remedied. It is reasonable to expect that the applicant relied on the advice of the respondent's particularly in regard to the failure of a feature that the respondent knew or ought to have known was so important to the applicant in his purchase of the Drone.

1. Accordingly the Tribunal finds that the respondent has failed to comply with its obligations in accordance with the ACL and the applicant is entitled to the damages he seeks in the sum of $1,678.00.

(signed)

P Boyce

Senior Member

Civil and Administrative Tribunal of New South Wales

11 July 2014

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

Registrar

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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: 04 September 2014