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- Unreported Judgment
Gardner-Hoyle v PRB Constructions Pty. Ltd. QCAT 332
Gardner-Hoyle v PRB Constructions Pty Ltd  QCAT 332
PRB Constructions Pty Ltd
16 September 2016
19 September 2016
The application is dismissed.
BUILDING DISPUTE – CAUSATION – roofing component of a building construction in 2009 – category 2 cosmetic damage
REASONS FOR DECISION
- In 2009, the applicant engaged the respondent company to build a home for her in Gympie. She has lived in the home as an owner-occupier since that time. In 2013, she noticed discolouration on the roof of her home which caused her to make further enquiry.
- During the course of investigations, the applicant engaged a representative of the Queensland Building and Construction Commission to inspect the property. The conclusion of the QBCC was that the damage sustained was appropriately described as Category 2 (cosmetic) damage. The respondent conceded that there was damage to the roof. That point was not in dispute.
- The applicant says that the respondent is responsible for rectification of the defect. The application argued that the appropriate order of the tribunal is one that compels the respondent to replace the entire roof.
- The preliminary question for the tribunal is whether the respondent is responsible for the damage. I have come to the conclusion that the applicant has failed to convince me that the respondent is responsible.
- The applicant’s case theory is that the discolouration was caused as a result of the effects of a certain sunscreen coming into contact with the steel colourbond roof, which over time effectively through bleaching, has left a discolouration that amounts to cosmetic damage to the roof. In effect, the respondent acknowledges that to be the case, or at least does not argue against that fact.
- The applicant’s hypothesis as to the cause of the damage is supported by the facts. What is not established on the facts is that the damage was caused by the respondent, or a contractor of the respondent, during or after the construction of the home. That is where the applicant’s case falls down.
- As part of the applicant’s case, she called Mr Lewie Ivanovski of BlueScope Steel Limited who was accepted by the respondent as a person with specialist knowledge about the matter before the tribunal.
- Mr Ivanovski gave evidence to the effect that he is employed by BlueScope Steel Limited as a warranty claims specialist. He holds a Bachelor of Engineering (applied) from Monash University. I am satisfied that he did provide his evidence to the tribunal in a way that is consistent with his obligations contained in the QCAT Practice Direction number 4 of 2009 with respect to expert evidence and rule 428 of the Uniform Civil Procedure rules. The tribunal accepts his expertise to comment with respect to the damage to the colourbond roofing installed at the home of the subject property.
- The evidence from Mr Ivanovski is that he viewed a photograph of the damaged areas of the roofing. Following that, on 17 July 2014, he went to the property and inspected the roof, as installed. He climbed onto the roof to do so. He took 4 photographs during the inspection. Relevant to these proceedings, he expressed confidence that the damage to the colourbond roof was caused by contact with sunscreen containing titanium dioxide and zinc oxide. The existence of the sunscreen coupled with exposure to the sun had the effect of bleaching the affected area of the roof over time.
- He went on to state that his employer has been able to replicate a similar effect in laboratory tests by applying sunscreens containing titanium dioxide and zinc oxide to colourbond steel. The damage he observed to the colourbond roofing as installed at the property was consistent with other examples of colourbond roofing that had been in contact with sunscreen containing titanium dioxide and zinc oxide.
- He came to the conclusion that the defect occurred subsequent to or during (emphasis added) the installation of the colourbond roofing at the property. He said that damage to the affected sections of the sheet are consistent with handling practices of the roof sheets during installation. He was clear to point out that the damage was not consistent with handling procedures during manufacture of the material. He said nothing about whether the damage to the affected sections was consistent with contact after installation.
- He relied upon and gave reference to a BlueScope published Technical Bulletin (TB 13 November 2017) which provides for educational assistance to installers dealing with BlueScope Steel installation coupled with the use of sunscreen.
- The evidence by the technical expert, Mr Ivanovski, is accepted by the tribunal. What is interesting about the evidence, is his statement to the effect that “the defect has occurred subsequent to or during the installation of the colour bond roofing at the property”.
- The respondent’s representative seized upon the quote and argued that the discolouration could well be caused by contact made by a person or persons subsequent to the installation. I accept that argument.
- The applicant gave evidence on oath that the only people on her roof subsequent to the installation of it, were representatives of companies that were responsible for installing solar panels and satellite television. The tribunal notes that her own witness gave evidence at the hearing that clearly contradicts this statement. Mr Ivanovski gave sworn evidence to the effect that he was on the roof. The applicant’s assertions about who was on her roof following installation of the roof cannot be accepted.
- Having come to the conclusion that a number of people have been on the roof subsequent to the installation it is clear that the roof damage may have been caused by persons other than those employed or engaged by the respondent.
- The applicant says that it must have been damage caused through the installation, when one considers the location of the discolouration. Under cross-examination, the applicant did concede that the installers of the solar panels may have gone close to what appeared to be the main area of discolouration, but denied that they would have gone near certain parts of the capping and guttering to the property.
- In the opinion of the tribunal, the applicant is only surmising this to be the case.
- It may be that the applicant’s case theory is correct. However, even though the tribunal operates in such a way as to make justice accessible and quick, partly by relying upon any means it sees fit to accept evidence, ultimately it remains the responsibility of the applicant to prove her case on the balance of probabilities.
- The simple fact is that the applicant asks the tribunal to consider her proposition as correct, but to do so, the tribunal would have to ignore other reasonable hypotheses consistent with the respondent’s case theory that the damage occurred as a result of the actions of others.
- Indeed, the damage may have been caused before the installation. While the manufacturer’s representative did state that the damage was not consistent with handling procedures during manufacture of the material, so too did the installer say that he and his staff take care not to allow sunscreen to come into contact with the sheeting when installing. The respondent engaged Cooloola Roofing to install the roof to the dwelling. The respondent called the managing director Cooloola Roofing, Gary Stolberg, who gave evidence that representatives of his company are aware of the fact that certain chemicals (sunscreens) may cause a fading effect to colourbond sheeting and they do not use sunscreen containing these chemicals. That evidence effectively remains un-contradicted by the evidence of the applicant.
- The applicant has the legal burden to make her case on the balance of probabilities. The effect of this evidential burden is to prove the case theory advanced by the applicant as more likely than not to be the correct version.
- Legal commentator, David Field, reminds us that “in order to discharge the ultimate burden of having the theory of the case accepted by the court, a party to a civil action must adduce sufficient evidence to allow the court to draw a ‘positive inference’ that this case theory has been established to the requisite standard of proof.” Associate Prof Field goes on to refer to an example of what can go wrong if this simple rule is overlooked in the English case of Rhesa Shipping Co SA v Edmunds  1 WLR 948. In that case a shipping company sued an insurance underwriter for compensation with respect to the loss of the ship, which had sunk for no immediately obvious reason in the middle of the Mediterranean in calm seas. The evidence suggested that the ship had sprung a large hole just before it went down. The shipping company’s theory of the case was that the vessel had struck a submerged submarine and the opposing theory was the vessel had been badly maintained. The judge found in favour of the shipping company on the basis that its theory, although improbable, was less improbable than the respondent’s theory. The House of Lords overturned the judgement on the ground that the judge was not obliged to accept either theory if you found them both improbable.
- In this case, there is not clear evidence that establishes that the damage to the roof was probably caused through the installation process. Neither is there clear evidence that establishes that the damage was probably caused prior to or subsequent to the installation process. I am not obliged to accept any one option as opposed to the others. To do so would be to engage in speculation. The applicant bears the burden of proof on the balance of probabilities. In that regard, I must consider the seriousness of the allegation and in effect adopt a Briginshaw v Briginshaw test. In this case, the applicant requires the respondent to completely reinstall the roof with brand-new materials. In the context of the cosmetic damage suffered, that is a serious consequence. Accordingly, I must consider the consequences of the applicant’s case in the context of the seriousness of the allegation.
- I am not satisfied that the applicant has proved that the respondent is liable for the damage caused when adopting the causation test based on the balance of probabilities.
- Given that I have found the respondent not liable to the applicant, I need not consider the question as to whether the applicant’s request for a full reconstruction of the roof is an appropriate remedy.
- I dismiss the application.
- Published Case Name:
Gardner-Hoyle v PRB Constructions Pty. Ltd.
- Shortened Case Name:
Gardner-Hoyle v PRB Constructions Pty. Ltd.
 QCAT 332
19 Sep 2016