Stanbury v Rossdale Homes Pty Ltd - [2011] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
STANBURY & ORS v ROSSDALE HOMES PTY LTD
[2011] SADC 21
Judgment of His Honour Judge Cuthbertson
3 March 2011
TORTS - NEGLIGENCE
UNDERTAKING OF DUTY OF CARE – FAILING TO CHECK OPERATION OF PUMP AFTER INSTALLATION
MINOR CIVIL REVIEW
The applicant had requested of the respondent details of a Certificate of Compliance in respect of a pump installed at premises in order to claim on warranty – respondent that had built the house for previous owners offered to take the switch of the pump in for repair and return it – switch reinstalled by respondent - problem not fixed causing power to switch off and fridge and contents destroyed.
Held: The dismissal of the claim against the respondent by the Magistrate reversed on the basis that the respondent was liable for the acts of the person it chose to reinstall the pump switch and the latter was negligent in failing to check that the newly reinstalled pump switch worked and did not cause the power in the dwelling to go off.

STANBURY & ORS v ROSSDALE HOMES PTY LTD
[2011] SADC 21

By application dated 23 August 2010 the applicants seek a review of a minor civil decision of 18 June 2010. The application is out of time as it was not filed within 21 days of the Magistrate’s judgment sought to be reviewed.
Extension of Time
The Magistrate who heard the matter and dismissed the applicants claim suggested that they make a claim on their insurance company. They did so and I accept it took nearly 3 weeks to get a reply which was to the effect that the insurance company did not cover the claim as the fridge motor had not fused but rather another device had caused the fridge to stop running.
The applicants contacted the Court and were told they could apply for an extension of time. With that information they sought details of the licence of the plumber who installed the pump. (See letter to Rossdale Maintenance of 27 July 2010) Upon obtaining that information they rang the plumber who told them that his licence did not give him the right to connect the pump to the power. The gist of the review grounds are that he had no right to connect the pump to the power.
In my view the applicants have acted reasonably expeditiously and in good faith and I will extend the time for the filing of the Review until 23 August 2010.
Background
The applicants are the owners of a shack property at Wallaroo. The shack property had been built by Rossdale Homes Pty Ltd, the respondent, although not for the applicants who had since purchased it.
Water was supplied to the premises by an underground rainwater tank which had a pump connected to the house water supply. When the tank has water the pump will pump water from the tank to the house. When the tank is empty the mains supply will be used. The applicants were finding that the circuit breaker in the meter box was tripping intermittently thus cutting the electrical power to the premises.
By a process of elimination they worked out that when the electric water pump was disconnected from the power supply the intermittent tripping did not occur. They quite reasonably concluded that there was a fault in the pump. The assistance of the local electrician Darren Smith was obtained and he advised that the fault lay not in the pump itself but rather the switch that turns the pump on and off.
The applicants contacted Onga Pumps, the pump manufacturer, who advised that in order for the pump warranty to be effective they would need to obtain a Certificate of Compliance from a plumber certifying that the installation of the pump complied with the requirements for its installation.
The applicants approached Rossdale Homes Pty Ltd, the respondents, requesting such a certificate as they had constructed the dwelling. The respondents indicated that they would have the switch of the pump taken to the repairer at Onga for repairs. They had not been asked to perform this task but they made the offer in response to the request for a plumber’s certificate. Not only that, they undertook to reinstall it. (TP12 L1)
The respondents removed the switch and took it to Onga Pumps, the pump manufacturer for repairs. Eventually, the respondent picked up the switch from the repairer and returned it to the premises at Wallaroo but did not install it. The switch was left at the Wallaroo premises, without connection, for a period of approximately 8 weeks, the applicants frequently requesting the respondent to install it. In fact there had been nothing wrong with the switch at all. Eventually a self employed plumber who did work for the respondents in the area was asked by the respondent to reinstall the switch.
In my view, given what had happened before in relation to the switch i.e. that the respondent had taken it away to the repairers in response to a request for a plumber’s certificate and the respondent had returned it to the house at Wallaroo, the respondent had an obligation to install it in a non negligent fashion and the applicants relied on them to do so. The respondents were in the business of house building and in the course of that business employed or engaged plumbers and electricians. The applicants were entitled to rely on the respondents to do the job. They had constructed the house and had suggested that they take the switch to the manufacturers, Onga Pumps after being requested to provide a Certificate of Compliance for the plumber. They had installed the pump in the first place.
When the switch was reinstalled there was no-one home. The applicants used the premises as an occasional weekend premises. This meant that during the week they were generally in Adelaide.
When the applicants next attended at the premises they found that the power was off and the contents of the refrigerator had been destroyed. This effectively ruined the refrigerator as the smell of the contents, which had permeated the refrigerator, was not able to be removed.
The applicants immediately checked the operation of the pump and found that it was now tripping the circuit breaker in the meter immediately it was turned on and not merely intermittently. One can infer that the fault was already in the pump before the applicants attended their premises.
Expert evidence on the topic which is before the court is that the pump had seized. (Darren Smith Electrical) How had it seized? It had not been used after reinstallation because there was no-one at the premises until the applicants returned. The probabilities are it had seized before the switch was reinstalled and probably while sitting in water and not operating for some 8 weeks. One would expect the pump to run more easily when switched on if it had been used regularly. If it had not, on an initial start up one might expect some sticking or reluctance to turn.
The applicants assert that the person who installed the switch on behalf of Rossdale Homes could not have checked the operation of the unit upon connecting it and switching on the power to the pump. They seek the drawing of the inference that the problem was indeed the pump sitting in the water unused for about 8 weeks. They say if the respondents employee had checked the operation of the unit he would have noted that it tripped the power off immediately on being switched on as it was seized.
It seems to me that it doesn’t matter whether the pump was seized as a result of sitting for a period of time unused in water or whether it had been operating in sand and grit over a period of time.
There are thus two issues which arise. Should the person who refitted the switch have checked that the pump worked? If he did, would he have found that the pump didn’t work for whatever reason?
As there was no representative of the respondent present on the first occasion when this appeal was listed and as this issue seemed to me to be compelling and not adequately dealt with at the trial, I adjourned the matter and gave an opportunity for the respondents to attend and make submissions or call evidence on this topic.
The points relevantly raised by Mr G French who attended on 2 February 2011 on behalf of the respondent were firstly that there was no evidence that the employee of Rossdale Homes did not check the operation of the system.
As to that, in my view there was an evidential onus on the part of Rossdale Homes to produce evidence that the checking did occur and they have adduced no such evidence. Very little evidence is required to establish the counter position. Further, because I find that it is more probable that the pump was already seized I am of the opinion that he didn’t check its operation as, if he did, he would have found the pump was not operating and would not have left it connected and the power off.
Mr French’s other point was that it is not known, on the evidence, whether the pump might not have operated for a period of time after its installation by their representative and only later seized up due to its operating in grit and dirt. In other words, the pump was operating when the switch was reinstalled.
In my view the answer to this suggestion is that the pump did not operate after installation. There was no-one at the property to use it. Thus it had no occasion to develop a fault after installation. In other words checking it would have discovered that it was still tripping the circuit breaker as the fault must have been present at that time either through operating in sand and grit or through having been sitting in water for a period of some 8 weeks.
The first person to attend the property after the re-installation of the pump was Mr Stanbury and when he attended clearly the power had been off for some time and the contents of the refrigerator destroyed.
It is the unchallenged evidence of Mr Stanbury that when the pump was first switched on after 7 or 8 weeks of non use it would have immediately run for a short period of time to get the water up to pressure.
The question is whether in that short period of time it would have seized up because of its operating in grit or dirt as asserted by Statewide Electric Motor Centre in a letter produced by the respondents dated 15 March 2010, or whether it would have already been seized because of its having stood for some 8 weeks out of use perhaps after having previously operated in grit or dirt.
In the latter case one would expect it not to work at all when turned on albeit that it would try to operate.
In the former case, however, one would expect it to operate for a period of time until it seized as it would take time for the grit or dirt to wear it out. It is unlikely there would have been sufficient time for this if it merely operated in order to bring the system up to pressure.
In my view, on the evidence, the more likely explanation is that the pump had seized or stuck due to not being used for a period of 8 weeks or for having presumably operated in dirt and grit or a combination of both. When the pump was switched on it would have tried to turn or operate but would have been unable to. The circuit breaker tripped the power supply thus turning off the refrigerator.
The learned Magistrate who heard the matter held that it had not been established that the installer should have checked to see if the pump was operable firstly because the problem had been diagnosed by an electrician as being a problem with the switch alone which had been repaired and thus there was no point in further testing and secondly, because the plumber was not an electrician and in no position to test the electrical circuit.
I respectfully disagree with those reasons.
I do not agree that because the plumber was not an electrician he would not have tested the electrical circuit. He would not be required to test the electrical circuit. All he could be expected to do was to check that the pump was operating when the power was turned on.
If the pump tripped the circuit breaker, as I find would have happened, a moments reflection should tell him that if the power to the premises was left off, there being no-one home, electrical appliances working inside, including the fridge, would cease to operate.
In my view a reasonable plumber would have checked this but moreover a reasonable person would have done this. It was not done and the respondent is responsible for the negligence of its agent who failed to do it. As I have said, the respondent was in the business of doing such work, had offered to take the switch in for repairs as a response to a request for a plumber’s certificate and it should have been clear to the respondent that the applicant was relying on them to do what was necessary.
Accordingly I will give judgment for the applicant for the negligence of its agent in failing to check the operation of the switch after replacement.
I will award damages as follows:
(1)    Cost of new refrigerator     = $2,229
I will not allow for delivery as the appliance could have been purchased at a shop in Wallaroo.
(2)    Cost of damaged food        = $ 300
(3)    Cost of cleaning old fridge = $ 175
Total = $2,704
There will be judgment for the applicants for $2,704.
There will be no order as to costs.