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O'Hara v Kmart Tyre & Auto Service[2019] QCAT 152

O'Hara v Kmart Tyre & Auto Service[2019] QCAT 152

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

O'Hara v Kmart Tyre & Auto Service [2019] QCAT 152

PARTIES:

MICHAEL O'HARA

(applicant)

 

v

 

KMART TYRE AND AUTO SERVICE

(respondent)

APPLICATION NO/S:

MCDO2000/17

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

12 June 2019

HEARING DATE:

22 October 2018, 11 March 2019

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Walsh

ORDERS:

The Application for minor civil dispute - consumer dispute is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE  TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – consumer claim – where trader serviced motor vehicle pursuant to contract for services – whether contract terms required that trader do whatever needs to be done – where motor vehicle destroyed by fire nine months later whilst driven by consumer – whether engine fuel lines were defective and required replacement at time of service

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – where consumer sued trader for compensation for breach of contract and implied statutory warranties – whether trader breached contract and implied statutory warranties

EVIDENCE – PROOF – STANDARD OF PROOF – where expert reports filed – where evidence fire possibly caused by split rubber fuel hose – where no forensic inspection by experts – where expert reports and conclusions based solely on client instructions and photographs – whether and what weight ought be accorded to expert reports in the circumstances - whether evidence established fuel line required replacement at the time of service – whether res ipsa loquitur applies – whether circumstantial evidence established prima facie case by inference – where motor vehicle prior service history not in evidence – whether consumer discharged onus of proving claim – whether trader liable to compensate consumer for market value of motor vehicle destroyed – whether sufficient evidence of market value

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, Schedule 3 - definitions

Competition and Consumer Act 2010 (Cth), Schedule 2 – The Australian Consumer Law, s 60, s 61, s 62, s 63

Bradshaw v McEwans Pty Ltd (unreported, High Court of Australia, 27 April 1951)

Browne v Dunn (1893) 6 ER 67

Guest v The Nominal Defendant [2006] NSWCA 77

Holloway v McFeeters (1956) 94 CLR 470

Jackson v Lithgow City Council [2008] NSWCA 312

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132

Schellenberg v Tunnell Holdings Pty Ltd (2000) 200 CLR 121

State of NSW v Hunt (2014) 86 NSWLR 226

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    Consumer rights and remedies for breach of implied statutory warranties under the Australian Consumer Law (‘the ACL’), whether relating to goods or services, or both, always arise in a contractual context and fall to be ascertained on the facts by reference to the terms of contract between parties in any given case. The consumer claim against a trader in this case arises from contracts between the parties in August and September 2016 for the service and repair of a motor vehicle.
  2. [2]
    Subject to section 63 for excluded services, section 61 of the Australian Consumer Law (ACL) implies guarantees of due care and skill,[1] reasonable fitness for a particular express or implied purpose,[2] and, where a consumer expressly or by implication makes known the result the consumer wishes the services to achieve, that the services and any resultant product will be of such a nature and quality, state or condition that they may be expected to achieve that result.[3]
  3. [3]
    Section 62 of the ACL implies a guarantee that the services will be supplied within a reasonable time but that is not in issue in this case.
  4. [4]
    On 31 August 2016, the Applicant, Michael O'Hara (‘Mr O'Hara’), contracted[4] with the Respondent, Kmart Tyre & Auto Service (‘Kmart’), at Browns Plains for the automotive service of his car, a 1973 Mercedes Benz 350SL Sports Coupe (‘the car’). Kmart carried out an essential service for which Mr O'Hara was invoiced, and paid, $467.36 when he collected the car. The tax invoice number was 70202566.[5] The car’s odometer reading at that point was 105,093. It is unclear as to whether that was kilometres or miles travelled, however there is a reference in the body of the invoice to a review interval of 500 kilometres for oil leaks.
  5. [5]
    The Vehicle Notes on the tax invoice identified a slight shudder on acceleration requiring monitoring, perished and cracked cooling and vacuum hoses requiring monitoring, a badly worn left outer tie rod end which it was recommended be replaced, badly worn front lower control arm bushes, hard brake hoses requiring monitoring, a cracked and perished rear drive shaft coupling requiring monitoring, and that a rechecking of oil leaks after ‘500KM’ to pinpoint was recommended.[6]
  6. [6]
    The Vehicle Inspection and Service Schedule[7] completed during the service, initialled by Kmart staff, shows that the car was checked for ‘fuel line condition/leaks.’ That item received a ‘tick’ which, according to the legend, meant ‘OK’. A number of other items in the ‘Hoist Fully Raised’ section of the Schedule received a ‘cross,’ signifying ‘Requires Attention.’ Essentially, they are the items referred to in the Vehicle Notes on the tax invoice to which I have referred.
  7. [7]
    On 14 September 2016, Mr O'Hara returned the car to Kmart at Browns Plains a second time for some of the further work identified in the invoice for the essential service on 31 August 2016. The car’s odometer read 105,189 at this stage, the difference of 96 being the kilometres or miles travelled since the service on 31 August 2016. Mr O'Hara made no complaint about the standard and sufficiency of the earlier essential service of the car on 31 August 2016.
  8. [8]
    Kmart supplied and fitted new tie rod ends and carried out a wheel alignment as instructed by Mr O'Hara who signed another Pre Work Order for that purpose and, by tax invoice number 70242392[8] of that date, Mr O'Hara was invoiced $394.90 which he paid when he collected the car.
  9. [9]
    The Vehicle Notes on the invoice dated 14 September 2016 identified that the right hand reverse light was out, both front brake hoses were worn and rubbing with replacement recommended, the engine mounts were worn requiring monitoring, the front and rear shock absorbers were worn and should be replaced, the indicator stalk was suspected to be faulty due to the indicators not staying on, a full hand brake clean and adjustment was recommended, the driver sun visor clip was broken, the power steering box was leaking and should be replaced, the power steering hose was cracked, wheel stud(s) were worn and coming out, all cooling hoses were in poor condition requiring monitoring, the rear differential was leaking oil requiring monitoring, the rear drive shaft coupling was worn, and the spare tyre was ‘no good’ and should be replaced.
  10. [10]
    Also noted in the Vehicle Notes section of the invoice dated 14 September 2016 was a recommendation that the spark plugs be replaced because they were ‘worn out.’ However, that was apparently incorrect in that the spark plugs had been replaced with new ones in the service performed by Kmart on 31 August 2016. Nothing really turns on this error because Mr O'Hara was not billed for plugs a second time.
  11. [11]
    The underlying Vehicle Inspection and Service Schedule[9] completed and initialled by Kmart staff on 14 September 2016 indicates that the car was not raised on the hoist for inspection on this occasion. That is apparent from the fact that a squiggly line is drawn through that part of the document and is explicable by the fact that the car was not booked in for an essential service.
  12. [12]
    Mr O'Hara visited Kmart at Browns Plains a third time on 28 September 2016 for the supply and fitting of a new Goodyear Optilife tyre for the car for which he was invoiced, and paid, $82.00. There is no suggestion that the supply and fitting of the tyre was defective in any way. Mr O'Hara did not make any complaint about the standard and sufficiency of the work previously performed on the car on 31 August 2016 and 14 September 2016 either.
  13. [13]
    In oral evidence, Mr O'Hara said that he parked the car at an apartment in Surfers Paradise three or so days later where it stood covered, safe and unused for about nine months whilst he did a ‘stint of work’ in Melbourne.[10]
  14. [14]
    In his affidavit sworn 19 June 2017, which is exhibit C to the bundle of material filed with his original application, he said that the car was parked in his personal secured garage space from Monday 3 October 2016 to Monday 5 June 2017 when he drove the car to Brisbane where it remained until 11 June 2017.
  15. [15]
    Whilst driving the car along the M1 Motorway towards the Gold Coast on 11 June 2017 at approximately 11.50 am,[11] Mr O'Hara noticed a strong smell of petrol and his fuel gauge dropping ‘at an alarming rate’ but he continued driving the car in a southerly direction and left the M1 Motorway at the Helensvale North exit. The car then lost power completely. It came to a halt on the driveway at a Caltex Service Station.[12] At that point, an explosion occurred under the bonnet.
  16. [16]
    The ensuing petrol fire engulfed the car and incinerated the engine bay before an alert Caltex tanker truck driver, who happened to be refilling the service station storage tanks, put it out. Mr O'Hara escaped the inferno before it completely took hold though he says that he suffered physical injury and relies on medical evidence filed in the proceedings. However, particulars of his injury are jurisdictionally irrelevant for purposes of this case.
  17. [17]
    Ambulances and fire trucks attended at the scene soon afterwards. So too did the Queensland Police Service. Their report, which is included in Mr O'Hara’s documentary evidence, concluded that the fire, i.e. the cause of the fire, was not ‘suspicious’ and the investigation ended on that basis.
  18. [18]
    The police report referred to a witness driving in a vehicle behind Mr O'Hara on the M1 Motorway who told police that she had smelled petrol and followed his car to the service station where she restrained Mr O'Hara from returning to the car to collect his documents after he escaped the burning vehicle.
  19. [19]
    The police report also reveals that Mr O'Hara told police that the car was ‘mechanically fine’ before catching fire.[13]
  20. [20]
    Mr O'Hara blames Kmart for the explosion and the loss of the car which was damaged beyond economical repair. He says that he is making this consumer claim to ‘expose Kmart Tyre & Auto Service in the public domain in the public interest.’[14]
  21. [21]
    Originally, Mr O'Hara sought judgment against Kmart for $500,000[15] for compensation for property damage and personal injury in these proceedings but this Tribunal has no jurisdiction to adjudicate personal injury compensation claims and its monetary jurisdiction in minor civil disputes such as this is deemed to be limited by the filing of an application for minor civil dispute to $25,000 by section 12(3) read with the definition of ‘prescribed amount’ in Schedule 3 of the QCAT Act.
  22. [22]
    Alerted to the limitation, Mr O'Hara later formally amended his claim for compensation to the amount of $25,000 for the loss of the car,[16] though he says that the market value at the time of the loss was substantially more.
  23. [23]
    Kmart Tyre & Auto Service denies any liability to Mr O'Hara.
  24. [24]
    The success of his claim depends upon Mr O'Hara satisfying the Tribunal on the balance of probabilities that he should be compensated for its market value at the time because the services of Kmart Tyre & Auto were not rendered with due care and skill, were not reasonably fit for purpose and did not achieve the expected result in breach of the ACL implied guarantees.
  25. [25]
    Mr O'Hara says that Kmart omitted to identify and rectify a fuel line fault (the omission) which he says caused the explosion and fire some nine months later. In other words, he submits that the omission proves the breach. Mr O'Hara relies on the evidence of two experts in support of his claim as well as his own lay evidence.
  26. [26]
    The first expert is a person by the name of Stefan[17] from Gullwings Pty Ltd,[18] of 4 Kamholtz Court, Ashmore, to whom Mr O'Hara sent a narrative and photographs for the purpose or providing a report.
  27. [27]
    Stefan did not inspect the car and his qualifications and experience qualifying him as an expert are unstated. In an email to Mr O'Hara dated 26 June 2017, Stefan concluded as follows:

Regarding the damage to the Mercedes 350sl. (sic) It is very difficult (sic) to know exactly what caused the fire. It looks like it started in the engine bay. These vehicles use rubber fuel hoses to the fuel rail and the injectors. Usually if (sic) a (sic) injector hose splits it fills the centre of the engine with fuel. If (sic) the fuel came into contact with the exhaust this would be sufficient to start the fire causing the damage to the vehicle.

  1. [28]
    That evidence proves that the fire probably started with, or in the vicinity of, the rubber fuel hoses. In other words, it identifies the likely location of a fuel leak leading to a fire but is of little or no evidentiary value in establishing the probable cause of the petrol leak on 11 June 2017 because it is not based on a forensic inspection of the car after the fire, the conclusions are heavily qualified, inconclusive and speculative in the respects that I have indicated in the quotation, and they rely entirely on the hypothesis of a rubber injector hose ‘splitting.’ That is conjecture. There is no reliable evidence that this is what probably happened.
  2. [29]
    The report does not establish how the rubber injector hose/s were connected to the fuel rail, whether there was a failure of a connection mechanism, for example a clip or clamp holding the hose on the fuel rail, or another possible cause of petrol spraying from the fuel injection line. The service history of the car is not considered. Nor is the history of its use. No consideration is given in the report to the possibility of vermin having compromised the rubber hose whilst the car stood unused for nine months whilst parked at an apartment in Surfers Paradise. No Mercedes Benz service specification and mechanical information is provided for the car.
  3. [30]
    Insofar as the amount of the claim is concerned, Stefan emailed Mr O'Hara on 7 November 2018, referring to a ‘chat’ the previous day. He said that a 1972 Mercedes Benz SL Sports Coupe[19] is worth between $5,000 and $25,000 depending on the condition of the vehicle but was not asked by Mr O'Hara to venture an estimate of his car on the basis of its condition noted in the service invoices. There is evidence that Mr O'Hara paid $28,000 to acquire the car ‘as is’ on 31 July 2015 from a seller in Kalgoorlie,[20] Western Australia, but the estimate does not prove what the car was worth. Mr O'Hara sold the post fire wreck as scrap for $500 in cash.
  4. [31]
    Mr O'Hara’s second expert is Geoffrey Senz,[21] an Automotive Consultant.
  5. [32]
    Mr Senz provided a report dated 30 July 2017[22] concerning the fire based on an affidavit of Mr O'Hara sworn 27 June 2017 which is not in evidence, emails between Stefan of Gullwings and Mr O'Hara dated 26 and 27 June 2017, and eleven (11) colour photographs of the vehicle. He concluded that:

Having considered the available (sic) evidence and without further evidence (sic) I believe it is reasonable (sic) to make the following statements:

  • Evidence indicates the initial fire seat/fuel source was from flexible fuel lines.
  • The initial fuel was petrol which was raised to flashpoint by reduced airflow over the hot engine.
  1. [33]
    The reference to ‘available evidence and the absence of further evidence’ suggests that Mr Senz regarded the evidentiary basis for his report as incomplete. I infer that the rubber fuel hoses will have been damaged, if not destroyed, in the fire. However, Mr Senz does not say that they were completely destroyed or that a forensic analysis of the remainder could not be performed. Overall, his conclusions suffer from the same deficiencies as those of the Gullwing report on which Mr Senz relies in part.
  2. [34]
    Though Mr Senz was able to say from photograph 2 provided by Mr O'Hara that the initial fire seat was most probably under the nearside rear of the bonnet, he said that this was: ‘assumption supported by a fanning out of the burnt paint area towards the driver’s side consistent with flames being projected or concentrated in that general direction.’[23] The assumption does not establish the likely condition of the rubber hoses either nine months earlier or at the time of the fire.
  3. [35]
    Mr Senz expressed no opinion on that critical issue. Nor does he refer to the invoices dated 31 August 2016 (in particular) and 14 September 2016 and that the condition of the fuel line was inspected and found to be ‘OK’ on 31 August 2016. Mr Senz was not given a copy of these seminal invoices by Mr O'Hara.
  4. [36]
    Mr Senz said that photograph 3 of the engine bay showed that the likely fire seat was most probably:

… at (sic) one of the pressurised flexible fuel hoses which bring fuel to the engine from the rear mounted tank’ consistently with the sudden development of a strong smell of petrol and rapid fuel usage followed by loss of engine power.[24]

  1. [37]
    Mr Senz did not however go on to explain the likely mechanism or cause of the petrol leak from the flexible fuel lines.
  2. [38]
    Mr Senz said that photograph 4 ‘suggested that petrol was initially sprayed across the rear of the engine which then vaporised and increased in temperature to flashpoint by reduced airflow over the hot engine and exhaust system.’[25]
  3. [39]
    Mr Senz’s conclusions based on photographs 2, 3 and 4 at face value do not establish that the petrol spray from one of the rubber hoses was caused by a defect in one or more of them or that they were compromised by age and deterioration and required replacement nine months earlier when Kmart serviced the car.
  4. [40]
    Mr Senz emphasised in his annotation of the photographs that each was ‘NOT’ taken by Geoff Senz & Associates. In other words, he did not verify that the photographs were of the car in question, relying rather on Mr O'Hara’s assurance that they were.
  5. [41]
    Neither of Mr O'Hara’s experts appear to have turned their minds to the following questions:
    1. (a)
      Was the explosion and fire the result of a split in the hose hypothesised by Stefan as a theoretical possibility or was it attributable to the failure of a clamp or some other device by which the hose was joined to the injector rail or some other possible cause?
    2. (b)
      How was each rubber hose connected to the injector rail?
    3. (c)
      What was the age and life expectancy of the rubber hoses at the time of the fire?
    4. (d)
      Had the hoses been previously replaced in the life of the vehicle and, if so, when?
    5. (e)
      What was the service history of the car prior to 31 August 2016?
    6. (f)
      Was there a perhaps a failure of some other associated injector componentry?
    7. (g)
      What were the manufacturer recommendations for rubber hose replacement intervals during the life of the car?
  6. [42]
    Neither of Mr O'Hara’s experts have noted in their respective reports that the Gullwings repair estimate dated 1 July 2017 referred to the car’s odometer reading as 0 (zero). In his report, Mr Senz said that the odometer reading at the time of the fire on 11 June 2017 was ‘not supplied.’ There is simply no evidence from anyone of the distance that the car travelled between 31 August 2016 and the day of the fire. 
  7. [43]
    No attempt appears to have been made by Mr O'Hara to have the car inspected by an authorised Mercedes Benz dealer, or by Mercedes Benz Australia, for purposes of an expert report.
  8. [44]
    The only other evidence relating to the cause of the fire is that from Mr O'Hara himself.
  9. [45]
    In cross examination, Mr O'Hara put it to Mr Larfield, Kmart’s technical service assistant at the time, that ‘… the fuel lines exploded’,[26] but himself accepted that there was no evidence of that.[27] He repeatedly put to Mr Larfield that the fuel lines were ‘perished, decayed and rotten,’[28] however, he could not identify any source of evidence to establish that[29] when I asked him to do so,[30] and he gave no evidence of his personal observation of perished, decayed and rotten rubber fuel hoses in the car at any stage.
  10. [46]
    In the course of cross examination, Mr Larfield denied Mr O'Hara’s statement that the fuel lines were perished, decayed and rotten[31] or defective. So did Mr Glen Newbolt, Kmart’s operations manager.[32] Their denial is supported by the Vehicle Inspection and Service Schedule completed during the essential service on 31 August 2018 to which I referred earlier. Mr O'Hara’s allegations are unsupported by any evidence. I therefore accept the evidence given by Mr Larfield and Mr Newbolt in all respects.
  11. [47]
    Negligence, i.e. the tort or negligence in the sense of a failure to render the services with due care and skill in accordance with the ACL implied statutory guarantee, may not readily be inferred merely from the fact of the fire and that it started at, or in the vicinity of, the rubber fuel hose/s under the bonnet. More is required for the doctrine of res ipsa loquitur (the thing speaks for itself) to apply in establishing negligence in these circumstances.
  12. [48]
    While the Tribunal is not bound by the rules of evidence, this case must be decided on the available evidence of the parties and their witnesses. Mr O'Hara’s evidence and that of his experts is insufficient to establish on the balance of probabilities that the fire which destroyed the car does not ordinarily occur without negligence.
  13. [49]
    As the High Court held in Schellenberg v Tunnell Holdings Pty Ltd,[33] the doctrine of res ipsa loquitur involves the application of inferential reasoning and a plaintiff bears the onus of proof even when the principle applies.[34] Where an occurrence is outside the experience of a lay person, and the evidence, expert or otherwise, does not establish that the occurrence ordinarily does not occur without negligence, res ipsa loquitur is inapplicable.[35]
  14. [50]
    Albeit in the context of section 140 of the Evidence Act 2008 (Vic) and the standard of proof for inferences in civil proceedings,[36] the following concise and helpful summary of Australian common law on onus and inference appears in a published Judicial College of Victoria paper:[37]

When a case relies on circumstantial evidence, the party bearing the burden of proof must establish that the more probable inference supports the case alleged. The court cannot choose between several, equally likely, possibilities where the competing possibilities can only be resolved by conjecture (Jackson v Lithgow City Council [2008] NSWCA 312 at [9] per Alsopp P; see also Holloway v McFeeters (1956) 94 CLR 470; Bradshaw v McEwans Pty Ltd (unreported, High Court of Australia, 27 April 1951).

In some cases, it will be dangerous to examine merely whether the case put forward by one party is more likely than that of the other party. Such an approach is only suitable when the respective cases address all possible explanations (Guest v The Nominal Defendant [2006] NSWCA 77 at [5] per Mason P).

  1. [51]
    Neither of the expert reports of Stefan from Gullwings or Mr Senz address all possible explanations for the cause of the fire and neither establish lesser and more probable inferences to support Mr O'Hara’s case. Both experts rely on conjecture and hypothesis based upon incomplete evidence for the conclusion that one ‘possible’ cause of the fire was the splitting of a rubber fuel hose whilst not identifying and explaining other possible causes, if only to discount them.
  2. [52]
    I find that the fuel lines were inspected by Kmart staff and not found wanting at the essential service on 31 August 2016. There is no credible evidence to the contrary in support of Mr O'Hara’s case. The second limited service, two weeks later, on 14 September 2016 did not require a further inspection of the fuel lines. Nor did the third attendance for a change of tyre on 28 September 2016 require it. 
  3. [53]
    The nine-month interval between the last Kmart attendance and the fire does not permit the inference that one or more of the rubber hoses were defective when Kmart performed the essential service on 31 August 2016 and the other services on 14 and 28 September 2016.
  4. [54]
    It matters not that Mr O'Hara told Kmart staff that ‘… whatever needs to be done, just do it’ when the car was taken in for service on 31 August 2016. That Mr O'Hara said that is not in dispute. What is in dispute is that the fuel hoses in question were defective in August and September 2016 and ‘needed to be done’ as alleged by Mr O'Hara. There is simply no evidence to prove that they were in poor condition and required replacement at that time.
  5. [55]
    In one of his affidavits sworn on 29 June 2017, exhibit B filed with the original application, Mr O'Hara said:

I told Mr Larfield that I required a comprehensive ‘all round’ inspection and report of my vehicle and told Mr Larfield that despite the overall outstanding performance of my 1972 Mercedes Benz 350SL Sports Coupe in general terms, I had concern about the age and condition of the various electrical wiring, cabling and fuel lines (sic) on the vehicle.

I also made it very clear to Mr Larfield that any and all new requirements regarding new rewiring, cabling and/or fuel lines (sic) should be done immediately if they posed a risk to the safety of the vehicle

  1. [56]
    I do not accept that evidence because it is inconsistent with the instructions given by Mr O'Hara in the Pre Work Orders which Mr O'Hara signed for the work carried out on 31 August 2016 and 14 September 2016 and because it seems to me to be an attempt at historical reconstruction to suit Mr O'Hara’s case in this proceeding. As I found earlier, on no occasion did Mr O'Hara ever complain to Kmart staff about the adequacy and sufficiency of their services, whether after each of the attendances on Kmart at Browns Plains on 31 August, 14 and 28 September 2016 or at any other time.
  2. [57]
    On the other hand, I accept Mr Larfield’s evidence in his affidavit affirmed on 8 March 2019 that, when Mr O'Hara was told of the cost of proposed work, he would back pedal and opt not to get the work done.[38] I also accept that Mr O'Hara didn’t get certain work done because he couldn’t afford it.[39]
  3. [58]
    If it were a contractual term as contended by Mr O'Hara, which is not the case, the car would have been kept by Kmart at Browns Plains at considerable expense to him whilst parts were sourced for rectification or replacement of the rear differential oil leak, the power steering box leak, the rear drive shaft coupling, the indicator stalk, the sun visor clip, the power steering hose, the loosening wheel studs and the cooling hoses.
  4. [59]
    The uncontradicted evidence of Kmart is that Mr O'Hara never gave its staff instruction to do that work. That is why it was never done. Contrary to what Mr O'Hara told the police who attended the scene of the fire on 11 June 2017, the car was not mechanically fine in any of those respects. In combination they rendered the car unsafe. Mr O'Hara well knew that from the vehicle notes in the first two invoices.
  5. [60]
    On the other hand, I found no reason to doubt the credibility of Kmart’s witnesses. They gave their evidence in a forthright manner. It was corroborated in material respects by the Kmart documents filed in the proceedings. Wherever there is a material conflict between the evidence of Kmart staff and the evidence of Mr O'Hara, I prefer their evidence to his.
  6. [61]
    I find that it was never a contractual term that Kmart do whatever had to be done, particularly in circumstances where no such instruction was given in the Pre Work Orders which Mr O'Hara signed for the work carried out on 31 August 2016 and 14 September 2016 or subsequently.
  7. [62]
    In the circumstances and for the reasons to which I have referred, I find that Kmart did not breach any of the implied ACL guarantees with respect to the services it actually performed or those identified as needing to be performed that weren't for lack of instruction. There was no omission that involved a breach of the service contracts and statutory guarantees as alleged by Mr O'Hara either.
  8. [63]
    In the result, having not discharged the onus that rests with him, Mr O'Hara’s claim in terms of the amended application for minor civil dispute – consumer dispute against Kmart Tyre & Auto Service fails. The application is dismissed.

Footnotes

[1]Schedule 1, The Australian Consumer Law, s 60.

[2]Ibid, s 61(1).

[3]Ibid, s 61(2).

[4]See the Pre Work Order signed by Mr O'Hara on 31 August 2016 which is part of exhibit R1 filed by leave at the hearing on 22 October 2018.

[5]Also part of exhibit R1.

[6]Ibid.

[7]Ibid.

[8]See exhibit R3 filed by leave at the hearing on 22 October 2018.

[9]Ibid.

[10]T1-30, lines 45 to 48;, T1-31, lines 1 to 10.

[11]See the last unnumbered paragraph of Mr O'Hara’s affidavit sworn 19 June 2017 filed with the Application.

[12]See the background summary of Geoff Senz & Associates who describes himself as an Automotive Consultant in a report dated 30 July 2017 based upon Mr O'Hara’s instructions and filed with the Application.

[13]See page 3 of RTI/21080 attached to a letter responding to Mr O'Hara’s freedom of information request.

[14]See the penultimate paragraph of a document entitled “CLAIM” filed with the Application.

[15]See Part C, paragraph 1, at page 3 of his Application filed on 3 November 2017.

[16]See the Amended Application for minor civil dispute – consumer dispute filed on 29 June 2018.

[17]No surname is supplied in the report. 

[18]According to its logo, a Mercedes Auto Parts Recycler also offering repairs and servicing.

[19]As owned by Mr O'Hara.

[20]See MO1 and MO2 to Mr O'Hara’s affidavit dated 11 December 2018.

[21]M.I.A.M.E, A.M.S.A.E.A, A.M.S.A.E.I, M.A.S.P.A.C.I.

[22]See item number 5, exhibit E, of the documents filed with Mr O'Hara’s application.

[23]See 3.1 at page 2 of the report.

[24]See 4.1 at page 2 of the report.

[25]See 5.1 at page 2 of the report.

[26]Transcript 11 March 2019, T1-6, lines 20 to 29.

[27]Ibid, lines 30 to 41.

[28]T1-7, lines 13 to 19; T1-11, lines 16 to 19.

[29]T1-7, lines 20 to 39; T1-12, lines 2 to 46; T1-13, lines 5 to 44; T1-14, lines 1 to 25, and see lines 40 to 48; T1-18, lines 12 to 46; T1-19, lines 1 to 46; T1-20, lines 25 to 46; T1-27, lines 45 to 48; T1-28, lines 2 to 48; T1-29, lines 41 to 46; T1-30, lines 1 to 48; T1-31, lines 1 to 11.

[30]Consistently with the rule in Browne v Dunn (1893) 6 R 67. See also SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132, State of NSW v Hunt (2014) 86 NSWLR 226, and Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, [67].

[31]T1-10, lines 42 to 47 and T1-11, lines 1 to 3.

[32]T1-16, lines 20 to 39; T1-17, lines 20 to 34; T1-21, lines 34 to 47; T1-22, lines 1 to 14; T1-24, lines 11 to 20; T1-25, lines 2 to 36.

[33](2000) 200 CLR 121.

[34]Ibid, [22].

[35]Ibid, [41] and [43].

[36]Identically worded to section 140 of the Evidence Act 1995 (Cth) but there is no similar provision in the Evidence Act 1977 (Qld).

[37]http://judicialcollege.vic.edu.au/eManuals/UEM/28948.htm.

[38]Affidavit of Mr Larfield sworn 8 March 2019, paragraph 7.

[39]Ibid, paragraph 8.

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Editorial Notes

  • Published Case Name:

    O'Hara v Kmart Tyre & Auto Service

  • Shortened Case Name:

    O'Hara v Kmart Tyre & Auto Service

  • MNC:

    [2019] QCAT 152

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Walsh

  • Date:

    12 Jun 2019

Appeal Status

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