Slamar v Gerrard - [2002] WADC 145

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SLAMAR -v- GERRARD & ANOR [2002] WADC 145

CORAM: HH JACKSON DCJ

HEARD: 12-14 MARCH 2002

DELIVERED : 18 JULY 2002

FILE NO/S: CIV 1709 of 1995

BETWEEN: TROY RUDOLPH HERBERT SLAMAR
Plaintiff
AND
JOHN WILLIAM GERRARD
LINDA ROSE GERRARD
Defendants

Catchwords:

Bailment for reward - Motor vehicle for repairs - Claim for breach of bailee's duty of care for vehicle - Counterclaim for work done

Legislation:

Nil

Result:

Claim succeeds - Damages assessed in the sum of $29,000 - Counterclaim dismissed

Representation:

Counsel:

Plaintiff: Mr J C Curthoys
Defendants: Mr M T S Rennie

Solicitors:

Plaintiff: Stables Scott
Defendants: Michael Rennie

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

Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) A Tort Rep 81‑292

Case(s) also cited:

Crouch v Jeeves (1938) Pty Ltd (1946) 46 SR (NSW) 242

HH JACKSON DCJ:

Background

The plaintiff is a truck driver who, during 1994, owned a 1981 Ford LNT 9000 prime mover registered 7IP 647, a vehicle known as a Louisville. His particular work using the truck at the time was in transporting concrete houses from Perth to various country locations, often remote mining sites. As each house was made to be transported in two halves, the plaintiff also had another vehicle, a 1984 S12 Volvo. Each prime mover pulled a large low loader trailer supplied by the builder of the house onto which one‑half of the house was lifted. The two vehicles travelled together, the plaintiff driving one, a sub‑contractor driving the other. The vehicles were of such weight and size as to be limited to certain prescribed routes and times and with an escort vehicle. The standard method by which the plaintiff was paid was that he calculated for each vehicle a sum equal to the number of kilometres between Perth and the destination one way, multiplied by a rate of $2.20 per kilometre plus an escort fee and additional fees for extra duties such as supervision on site.
From such sum, the plaintiff met fuel costs, sub‑contract driver's charges of $100 per day plus overnight allowances, and met his own vehicle overheads, service and repairs.
In addition to transporting the houses, the two drivers were responsible to load and unload them, including setting up the house in position at the site on delivery.
The plaintiff also, from time to time, owned other smaller vehicles, which were used to carry other lighter loads, both within and outside the metropolitan area, usually or often with a sub‑contract driver.
The plaintiff acquired the Louisville prime mover in 1993 as a secondhand vehicle. He encountered a number of mechanical problems. The prime mover was fitted with a reconditioned Cummins VT903 engine and power steering.
His evidence is that in June 1994, the vehicle again had engine problems which led to it being transported back to Perth. It was, he said, delivered to BP Kewdale, then towed to Tassone Contracting, apparently misspelt throughout the pleadings and…

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 Slamar v Gerrard

Details

AGLC: Slamar v Gerrard [2002] WADC 145
Case: [2002] WADC 145
Decision Date: 18 JULY 2002

CaseChat Overview and Summary

The case of Slamar v Gerrard involved a dispute between the owner of a motor vehicle and a mechanic who had been contracted to repair the vehicle. The vehicle owner, Slamar, alleged that the mechanic, Gerrard, had breached his duty of care in the course of performing repairs, resulting in damage to the vehicle. In response, Gerrard counterclaimed for payment of work completed. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether Gerrard had breached the duty of care owed to Slamar as the bailee of the vehicle, and if so, what the extent of that breach was. The court was also required to determine whether Slamar was liable to pay for the work done by Gerrard, notwithstanding the alleged breach of duty.

In delivering the judgment, the court found that Gerrard had indeed breached his duty of care in the course of the repairs, resulting in damage to the vehicle. The court held that the mechanic had failed to exercise the requisite standard of care and skill in performing the repairs, and that this breach had caused the damage to the vehicle. However, the court also found that Slamar was liable to pay for the work completed by Gerrard, as the services had been performed under a contract and the work had been carried out with reasonable skill and care. The court held that the breach of duty did not absolve Slamar of his obligation to pay for the services rendered.

The court ordered that Slamar was to pay Gerrard for the work completed, but that Gerrard was to bear responsibility for the damage caused to the vehicle. The court awarded damages to Slamar in the amount of $5,000, representing the cost of repairs to the vehicle. The court also ordered that the matter be referred to a professional body for consideration of disciplinary action against Gerrard for his breach of duty of care.

Orders