The cupboard is bare in defective goods action
Dec 2014 |
The New South Wales Court of Appeal has upheld the decision of a District Court trial judge who dismissed a claim for property damage arising out of the delamination of kitchen cupboard doors through several kitchens at a development of fifteen units.1
The trial
At trial, the appellant (Barrak) argued that the manufacturer of the doors (Nu-Door) was responsible for Barrak’s losses based on the principle of res ipsa loquitur (the concept that ‘the thing speaks for itself’) on the basis that the doors had delaminated and so they must have been negligently manufactured. The appellant did not obtain any expert evidence in support of its claim.
Initially, Barrak had pursued claims against other parties including the installer but those claims were resolved prior to the trial.
The trial judge found for Nu-Door, who led evidence of other possible causes for the delamination of the panels that did not involve any negligence on its part. For example, it was proposed that the doors may have been stored incorrectly, mishandled after delivery, installed negligently or treated poorly after installation.
While the trial judge excluded proximity to heat or moisture and the use of harsh cleaning products as potential causes for the widespread problem, it was accepted that mishandling or incorrect storage may have caused the defect, as opposed to the alleged negligent manufacture of the doors.
The appellant therefore failed to prove any breach of duty or causation in its claim against Nu-Door at trial.
The appeal
On appeal, several grounds were raised in an effort to have the trial judge’s decision overturned.
Initially, Barrak argued that it was inappropriate for the trial judge to require the appellant to present evidence of the cause of the delamination of the doors, considering the manufacturing process was solely within the knowledge of the respondent. It was also argued that the trial judge should have found that Nu-Door failed to present any evidence explaining the cause of the delamination of the doors.
The Court of Appeal rejected that argument on the basis that the appellant’s inability to present evidence to explain an event was not fatal to its claim and the doctrine of res ipsa loquitur does not extend to a process as sophisticated as the thermolamination of panels. The Court of Appeal further held that, although the manufacturing process was purely within Nu-Door’s knowledge and control, the other possible causes such as the storage, handling and installation of the panels after Nu-Door had delivered them was a matter within the knowledge of the installer and Barrak had an onus to exclude other possible causes.
Having failed to present expert evidence, Barrak’s witness, the installer Mr Sarkaya, was the only person capable of excluding causes such as mishandling after delivery of the doors. However, his evidence was rejected based on his inaccurate account of the timeframe between delivery and installation, and questions as to his credibility in circumstances where he gave evidence in favour of the appellant at trial shortly after resolving the appellant’s claim against him.
The Court of Appeal rejected Barrak’s argument that Nu-Door was obliged to adduce evidence to explain the cause of the delamination or to exclude negligent manufacture as a possible cause of the damage. Those grounds of appeal therefore failed.
An alternative ground for the appeal was raised on the basis that the trial judge should have found that Nu-Door negligently supplied panels which were not reasonably fit for their purpose. That conclusion should, it was argued, have been reached on the basis that it was accepted the laminate had separated from the panels for a reason unrelated to exposure to heat or chemicals after installation.
This ground was also dismissed, with the Court of Appeal finding that the argument relied on false premises that the trial judge had concluded the delamination had occurred in all kitchens (when in fact eight of fifteen were affected) and because the exposure of the panels to heat or chemicals after installation was only one of a number of potential causes. While heat and chemicals were excluded, the appellant had failed to satisfy the trial judge that the damage did not occur due to some other potential cause such as unsuitable storage, negligent handling or negligent installation.
For the same reason, an argument that the trial judge erroneously drew an inference that storing the panels after delivery for many months increased the prospect of mishandling and consequent damage was unsuccessful.
The appellant also sought to dispute the outcome of the trial by challenging the finding as to the time between delivery and installation of the doors and the consequent opportunity for mishandling and damage to the panels. The Court of Appeal did not accept that challenge, concluding on the evidence that the last door was installed in a kitchen ten months after the first delivery and four months after the second, providing ample time for storage and handling issues to have potentially caused the delamination.
All five of the appellant’s grounds for appeal were therefore unsuccessful and the appeal was dismissed.
Lessons to be learned
The appellant attempted to succeed in its claim not by proving causation or negligence by the respondent, but by pointing to perceived shortcomings in Nu Door’s defence of the claim to argue that negligence could simply be inferred.
In the absence of its own clear evidence from an expert or a credible witness, the appellant simply did not do enough to make out its allegations.
In circumstances where one of a number of causes may have resulted in the damage, it appears to have been premature for the appellant to resolve its claims against the other defendants where a court may have been given an opportunity to determine which party (if any) was truly at fault.
However, in the absence of evidence led by the appellant, it is unclear whether such a conclusion could have been reached by the trial judge in any event, with all causes being postulated as possible scenarios and no clear evidence of one cause being any more likely than another.
This decision reminds those involved in a direct claim for damage or a recovery for apparently faulty goods to take the critical steps required to establish a scenario for the cause of the loss and, if possible, obtain direct evidence in support of that position. At the very least, that party must obtain evidence to rule out other potential causes with a view to leaving a court with little option but to accept that the remaining scenario is the only plausible one.
1 Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395.
