Tipping v Skyline Landscaping Service

[2014] QCAT 599

CITATION: Tipping v Skyline Landscaping Service [2014] QCAT 599

PARTIES:	Steven Tipping (Applicant)
v
Skyline Landscaping Service ABN 15 114 488 041 (Respondent)

APPLICATION NUMBER: MCDO442-14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 8 August 2014

HEARD AT: Southport

DECISION OF: Adjudicator Trueman

DELIVERED ON: 10 November 2014

DELIVERED AT: Southport

ORDERS MADE: 1.    The claim is dismissed.

CATCHWORDS:

Minor civil debt – Consumer claim – jurisdiction – alleged motor vehicle property damage – whether sufficient evidence to prove claim

Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Steven Tipping

RESPONDENT: Brendan Smith representing Skyline Landscaping Service

REASONS FOR DECISION

1. Mr Steven Tipping (“Mr Tipping”) is the owner of a 2000 Holden Commodore registration CHAMPS. He alleges that an employee of Skyline Landscaping Service (“SLS”) was mowing grass for the Gold Coast City Council on 6 February 2014 on Napper Road at Arundel when the mower strewed rocks, hitting Mr Tipping’s car causing damage to the vehicle. Mr Tipping filed a Consumer claim on 6 June 2014 seeking payment of $6,506.30 for the cost of the repairs and filing fee of $101.40.

2. SLS deny that their employees or contractors were mowing in the alleged area at the time and date of the alleged incident and refuse to make any payment to Mr Tipping.

3. SLS claim that Mr Tipping had the vehicle repaired prior to them admitting liability and before any insurance loss assessor could inspect the vehicle.

Legislation

1. A consumer dispute involves disputes against another person, trader or company arising out of a contract for the supply of goods and services[1], valued up to and including the prescribed amount of $25,000.

   [1]Queensland Civil and Administrative Tribunal Act 2009 s 12(4)(b).

2. A consumer claim can be for a sum not more than the prescribed amount for damage to property caused by, or arising out of the use of a vehicle.[2]

   [2]Ibid s 12(4)(d).

Evidence

1. Mr Tipping alleges that he was driving his vehicle on Napper Road in Arundel when he noticed that workers were mowing the grass on a ride-on mower near the highway. He said that rocks were hurled by the mower and hit his vehicle and caused damage. He said that he did not stop at the time, as it was difficult to pull over onto the side of the road when he was hit. He claims that he pulled over further down the road and another motorist who allegedly saw the incident stopped and provided his name and details for a witness statement regarding the alleged damage. 

2. Mr Tipping provided photos of the alleged damage[3] and quotes from Charlies Smash repairs dated 21 February 2014 and D&P Panel & Paint Smash repairs quote number 6358.[4] He also provided a map of Napper Road[5] and the alleged scene of the damage caused by the mower and rocks.

   [3]Exhibit 2.

   [4]Exhibit 4.

   [5]In a bundle of documents marked “Exhibit 5”.

3. Mr Tipping said that after the incident, and after having pulled over and exchanged names with the witness, he turned around and drove back to the incident location to talk to the employee. He said that he could not find a safe place to pull over so he kept driving.

4. Mr Tipping claims that he went back to the scene of the alleged damage later that day and took photos of the utilities, employees and the mowing works to support his claim. He said he did not take any photos at the time of the incident or speak to the person driving the mower as he was on his way to work and did not have time. Mr Tipping did not have copies of the photos he took but the photos were provided to the tribunal as attachments to submissions provided by SLS[6].

   [6]In a bundle of documents marked “Exhibit 3”.

5. Mr Tipping said he initially thought the Gold Coast City Council were responsible for the damage as he assumed Council workers were doing the mowing. He said he telephoned the Council and had numerous email communications with them. He said the Council informed him subcontractors do the mowing, and not council workers.

6. Mr Tipping provided a Statutory Declaration of Shane Robert Harris declared on 26 February 2014, a witness that allegedly witnessed the incident. Mr Harris declared, ‘on 6 February 2014 at around 2.30pm he was driving from Smith Street Motorway onto Napper Road and was behind a gold motor vehicle’.  He stated that both ‘his car and the car in front were hit with rocks by people mowing the grass’.  He claims that they pulled over and he noticed the car had registration number ‘CHAMPS’ and that he had ‘paint chips down his driver side’. He claims he had chips to his car as well but as his car was old, he ‘didn’t care’. He said he witnessed about ‘20 chips to the paint’ on Mr Tipping’s car.

7. Mr Tipping provided a Tax Invoice for the repairs in the sum of $6,506.30 and proof of payment from his St George Bank account, payment made on 23 February 2014.[7]

   [7]In a bundle of documents marked “Exhibit 2”.

8. A map from Whereis[8] was provided that both Mr Tipping and SLS jointly provided sketches to the tribunal indicating where the alleged rock damage occurred.

   [8]In a bundle of documents marked “Exhibit 5”.

9. SLS appointed Mr Brendan Smith (“Mr Smith”) to represent the Company and provided a Directors authority and Australian Securities & Investments Commission and evidence of the Company status[9].

   [9]Exhibit 1.

10. Mr Smith stated that SLS did provide contracted mowing services to the Gold Coast City Council but denied that SLS were in the area where the alleged damage occurred on the date specified by Mr Tipping. He stated, further, that the photos taken by Mr Tipping and provided to SLS of the employees, their utilities and ride on mower were not taken on the day as alleged. Mr Smith alleged that Mr Tipping may have fabricated his evidence and that the photos taken on the date he suggested were not correct and he had evidence to prove his contention.

11. Mr Smith said that Mr Tipping came into the office and claimed that he had his vehicle damaged by rocks thrown up by a mower driven by an employee of SLS. Mr Smith provided evidence on a map that Mr Tipping completed, as to where the alleged damage occurred. Mr Smith said he would investigate the allegations made by Mr Tipping. Mr Smith said he requested Mr Tipping fill out a Liability Assessment[10] so he could further investigate the allegations made by Mr Tipping.

    [10]In a bundle of documents marked “Exhibit 2”.

12. Mr Smith said the Liability Assessment completed by Mr Tipping on 13 February 20134 noted the time of the incident about 4pm on 6 February 2014. Mr Smith provided a copy of two quotations, one from Gosneys Euro Collision Centre and Gemini Accident Repair Centres P/Ltd both dated 13 February that were attached to the Liability Assessment. The quoted costs were for $3,602.90 and $2,863.74 respectively.

13. Mr Smith provided a copy of client run sheets[11] which he stated proves that any employees of SLS were not in the area of Napper Road in Arundel as alleged by Mr Tipping.

    [11]In a bundle of documents marked “Exhibit 2”.

14. Mr Smith provided some emails and communications from their insurance company (Allianz) and from the Gold Coast City Council. He stated that the insurance company thoroughly investigated the claim by Mr Tipping and denied liability and advised they would contest and challenge any claim by Mr Tipping for costs.

15. The Gold Coast City Council sent an email dated 20 February 2014 from Mr Alistair Dunn (Manager Contracts) to Mr Tipping stating that:

    I have made enquiries as the area that you mention. It turns out to be the junction of 4 separated mowing areas with some different contractors. From my enquiries with the various supervisors it would appear that the only contractor working in the vicinity of the corner you mention and on the day you mention was skyline but I can’t be more accurate as to exactly where they were at any particular time.

16. Mr Smith stated that the photos of the alleged SLS employees reportedly the persons responsible for the mowing and rock damage provided evidence to the tribunal by way of statutory declarations to disprove the allegations made by Mr Tipping. The statutory declaration of Dean Austin, machine operator employed by SLS states:

    I declare that it is me pictured in the photographs provided.  On the 6 February 2014 I was working on the S22 mowing run which is situated in the suburb of Elanora/Tallebudgera. As per attached timesheet.

17. Mr Austin had annexed to his statutory declaration a copy of the photos taken by Mr Tipping as the same photo allegedly taken by him the day of the incident. A weekly mowing time sheet indicates from 6:30am to 3pm he was mowing in location S22.  

18. Mr Smith stated that the insurance company did undertake an independent assessment regarding repairs to the vehicle. The vehicle was inspected post repair. The Allianz Motor Vehicle Assessment Report dated 10 July 2014 indicates the quoted cost of repairs by Charlies Smash repairs to be excessive in the circumstances. The report further stated

    the vehicle has been repaired prior to our desktop assessment. Stone chip damages were to the left hand front guard, bonnet, front bumper bar, right hand front guard, right hand front and rear doors, and right hand rear quarter panel body section. However, the vehicle shows signs of pre-existing stone chips that have been brushed touched.

    The total cost of assessed repair damages estimated at $2,794.19. 

Findings

1. I find that this application is a consumer claim, as it is a claim for a sum of less than $25,000.00, for damage to Mr Tipping’s vehicle that was allegedly caused by the use of his motor vehicle. I find therefore that the tribunal has jurisdiction to hear and determine the matter.

2. The evidence of Mr Tipping was at times inconsistent and his actions and conduct in this dispute is relevant to highlight and discuss. 

3. Mr Tipping sent an e-mail to the Gold Coast City Council on 17 February 2014[12] where he alleges that on the day of the alleged damage caused by the mower he had his partner and two children in the car. In other evidence, he said he was going to work. If Mr Tipping had another witness to the incident, as alleged his partner, it is difficult to understand why he did not call this witness to give evidence to support his claim.

   [12]In a bundle of documents marked “Exhibit 2”.

4. I find that I can place little weight on the statutory declaration of the witness to the alleged damage, Mr Harris, as the witness was not available for cross-examination and the evidence did not prove if the rocks caused the damage he saw to the vehicle or if the damage was already present.

5. Mr Tipping said that he had insurance on his vehicle but that he did not want to claim on his insurance as he had never made a claim and did not want to lose his bonus. Mr Tipping provided evidence that his vehicle had been repaired, he produced photos of the alleged repair works and an invoice for $6,506.30 claiming he had the repairs done and had paid for them. It is hard to believe that Mr Tipping would have the repairs done and paid for them if he was insured. Mr Tipping did not provide any evidence regarding insurance on the vehicle and I could find that he has claimed on his insurance, has been paid, and not disclosed that fact or that he does not have insurance at all. In the absence of any evidence regarding insurance, it is impossible to reconcile this issue.

6. I find it difficult to understand that Mr Tipping had the repairs done to his vehicle on or around 21 February 2014, just a couple of weeks after the alleged incident.  Clearly, Mr Tipping intended on claiming insurance from someone, whether it be the Gold Coast City Council or SLS, yet had the repairs done before any Insurance Assessor could inspect the vehicle and determine damage and costs.

7. Mr Tipping gave conflicting evidence about the time the alleged damage occurred.  His witness, Mr Harris said it was about 2:30pm, Mr Tipping wrote in the SLS Assessment claim it occurred at about 4pm, in an email to the GCCC dated 17 February 2014[13] he states the ‘incident occurred between 3 – 4pm’. It is difficult to understand that if Mr Tipping intended pursing the cost of the damages to his vehicle that he did not accurately record the exact time the alleged incident occurred. He would have been aware that the exact time of any alleged accident would have been crucial to any consequential claim for damages.

   [13]In a bundle of documents marked “Exhibit 2”.

8. The Council advised Mr Tipping that four different contractors work in the area he nominated as to where the damages occurred. For whatever reason he believed, it was SLS. Mr Tipping could not explain why he did not stop to talk to the contractor who had allegedly damaged his vehicle. The vehicle in question appears to be a vehicle he uses for hire out for weddings. He provided evidence that the vehicle is particularly valuable and he has spent a lot of money on its restoration and maintenance. I find it difficult to accept that if an employee driving a ride-on mower; flung rocks that caused damage to Mr Tipping’s “expensive and treasured” vehicle he would have been very upset, he would have stopped immediately, spoken to the driver of the mower, exchanged details and recorded the incident immediately with the mower’s employer. 

9. Further inconsistent evidence of Mr Tipping was that he said he was running late for work so he had not time to stop and talk to the driver of the mower. In his evidence, Mr Tipping said he went back to the site later the same day and took photos of the employees who damaged his vehicle with the mowing. In an email to the insurance company dated 17 June 2014[14] from Mr Tipping, after a request to provide all his evidence to the insurer, he stated, ‘I went back to the scene just minutes after it happened and took photos of the workers and a company ute that was on site, guess what all skyline’.  The evidence is inconsistent with Mr Tipping’s prior evidence that initially after the incident occurred and his vehicle was damaged, he went back to the site but could not stop as access was difficult and he was in a hurry to get to work. If I accept his evidence that he said that he knew the utilities were all marked ‘Skyline’, then I find it hard to understand why he would telephone the Gold Coast City Council to report the damage, as he believed the council were liable for the mowing and damages. If as he alleges in the email to the insurer, that is, he saw that all the utilities at the site were Skyline, it would be inconsistent to accept that he thought the Gold Coast City Council workers were liable.

   [14]In a bundle of documents marked “Exhibit 2”.

10. Mr Tipping provided photos as evidence of the contractors who were mowing and caused the damage to his car. He stated he took the photos the same day the damage was caused. Mr Smith provided evidence to prove that the person in those photos was not at that site on the date alleged by Mr Tipping. The evidence suggest that Mr Tipping has lied about the date the photos were taken, they are photos of the site where the alleged damage occurred and are photos of SLS employees. However, the photos could not have been taken on the date Mr Tipping alleges they were as the work sheets of SLS and the evidence of the employee proves that on the date of the incident they were working in the Elanora and Tallebudgera areas.

11. I find that it is more likely than not Mr Tipping did not take the photos he presented in evidence as taken on the day of the alleged damage. I find that Mr Tipping, upon finding that the insurer might need photos and all his evidence to process the claim he realised he did not have any photos of the alleged location, and that he went back later and found SLS workers and machinery there and took photos on a date, well after the alleged event. I find that Mr Tipping lied about the date the photos were taken and he did so to support and bolster his claim

12. I find that the evidence of Mr Tipping was inconsistent and inaccurate. I find that where the evidence of Mr Tipping and Mr Smith differ, I prefer the evidence of Mr Smith. Mr Smith provided reliable and truthful evidence to the tribunal that the company had commenced the appropriate action to make an insurance claim and that if proven that SLS employees caused damage to Mr Tipping’s vehicle that they were authorised to pay the appropriate reasonable costs of the repairs. The insurer declined the claim and found that SLS were not liable. I agree with the insurer on that point.

13. I accept the evidence of the Loss Assessor engaged by the insurer, Allianz, and I accept that the cost of the repairs Mr Tipping seeks to be reimbursed were excessive and over inflated. I find that the amount paid by Mr Tipping, that he now seeks to be reimbursed, contains costs for repairs to pre-existing and old dents and damages.  I find that Mr Tipping has not provided sufficient evidence that would warrant an order in his favour.

14. I find that Mr Tipping most likely had his vehicle repaired prior to assessment as he had other repair work performed. I find that even if SLS were liable for some damage to Mr Tipping’s car on the date suggested, Mr Tipping has provided false and misleading evidence about who was present on that day of the 6 February 2014 when rocks allegedly hit his car. The fact that the repairs were undertaken to other parts of the vehicle not subject to the alleged damage, I find that Mr Tipping has contaminated the evidence that would be necessary for me to rely upon to make an adverse finding against SLS. In this case, based on all the evidence and for the reasons given the orders I propose to make are:

ORDERS

1. The claim is dismissed.