O'Hara v Kmart Tyre & Auto Service
[2020] QCATA 180
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- Unreported Judgment
- O'Hara v Kmart Tyre & Auto Service[2020] QCATA 180
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O'Hara v Kmart Tyre & Auto Service[2020] QCATA 180
O'Hara v Kmart Tyre & Auto Service[2020] QCATA 180
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | O'Hara v Kmart Tyre & Auto Service [2020] QCATA 180 |
PARTIES: | MICHAEL O'HARA (applicant\appellant) v KMART TYRE & AUTO SERVICE (respondent) |
APPLICATION NO/S: | APL150-19 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 20 May 2020 |
HEARING DATE: | 23 March 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: | Leave to appeal is refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where respondent carried out service inspection of the applicants vehicle – where vehicle’s engine destroyed by fire 9 months after the inspection – where probable cause of fire due to defective/perished fuel line – where applicant sought to lead fresh evidence in the appeal – whether the respondent prejudiced by fresh evidence – whether the respondent failed to identify faulty fuel line on inspection – whether causal connection between service inspection and cause of fire – whether reasonable basis to disturbing findings of fact – whether evidence support a finding that fuel lines defective at the time of the service inspection – whether any basis for leave to appeal. Queensland Civil and Administrative Tribunal Act 2009 section 142(3)(a)(i) Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39. Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404. Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43]. Terera & Anor v Clifford [2017] QCA 181. |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]The applicant was the owner of a 1973 Mercedes Benz 350 Sports Coup. On 11 June 2017 the engine was badly damaged as a result of a fire in the engine compartment of the vehicle. It would seem probable that the fire was caused by fuel leaking into the engine compartment which ignited and quickly spread out of control. Fortunately for the applicant, he was aware something was amiss because as he was driving down the M1 motorway towards the Gold Coast when his fuel gauge suddenly dropped. He managed to pull off the highway near Helensvale and got to a Caltex service station before the fire took hold. The applicant blames the respondent for the cause of the fire and commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal to recover damages.
- [2]On 31 August 2017 the applicant took the vehicle to Kmart Tyre & Auto Service Centre Browns Plains (“Kmart”) for a service and inspection. On the Inspection Report (the report) it is noted that the ‘fuel line condition/leaks’ box was ticked indicating there was no visible issue or defect with them. However in the body of the report it is also noted that ‘hoses old and perished’. The applicant says this should have alerted Kmart to the condition of the fuel lines and they should have been replaced or at least he should have been told of their condition. Had it done so the problem could have been addressed and the fire would not have occurred. As the applicant contends the fuel lines failed which caused fuel to leak, thus starting the fire, and Kmart are liable for the applicant’s loss. Because of the extensive damage the vehicle was sold for salvage value only.
- [3]The applicant initially made an informal claim against Kmart for damages as a result of the damage to the vehicle. Kmart denied liability so the applicant commenced proceedings the proceeding in the Tribunal. He initially made a claim for $500,000.00 but that was abandoned and reduced to the limit of QCAT’s minor civil disputes jurisdiction of $25,000.00. He contended that Kmart breached implied warranties under the Australian Consumer Law to carry out work with due care and skill and coupled with that, as the learned adjudicator who heard the matter identified, there was a claim in negligence and although not specifically articulated, potentially a claim for breach of contract. In any event, the basis of any cause of action was that on 31 August 2016 when the vehicle was handed over to Kmart for what was referred to as an essential service, Kmart should have detected faulty fuel lines in the engine compartment to the fuel injector rail and replaced them. It was that failure which was causative of the fire. That was the issue for determination by the Tribunal at the hearing which was conducted over 2 days. On 10 June 2019 the learned adjudicator dismissed the application and provided comprehensive reasons for his decision.
- [4]The applicant then filed an application for leave to appeal or appeal on 19 June 2019. The grounds of appeal are very general and although an applicant is usually confined to the specific grounds of appeal, because QCAT encourages self-representation[1] latitude is given so long as the complaint about the decision under appeal can be identified. The grounds of appeal are as follows:
The appellant submitted prima facie evidence that was sufficient to establish to beyond a reasonable doubt guilt of a respondent.
The applicant’s evidence proved beyond a reasonable doubt that Kmart Auto fatally (sic) erred in its duty of care in failing to inspect the vehicle fuel lines on 31 August 2016, but ticked the inspection box, falsely confirming that the fuel lines were in good order when they were not. It was proven fact that the fuel lines that were perished, were the sole cause of the explosion and destruction of the vehicle and were the sole cause of the injuries and mental stress of the applicant/driver.
- [5]What the applicant is saying is that the learned adjudicator should have concluded on the evidence before him that in fact the fuel lines were in such an unserviceable condition that Kmart should have replaced them or at least brought their condition to the attention of the applicant. Further, that the learned adjudicator failed to have regard to the evidence about the condition of the fuel lines when inspected, the failure of the fuel lines caused the fire which was a foreseeable outcome and therefore his conclusion in dismissing the claim was against the weight of the evidence.
- [6]An appeal from the minor civil dispute jurisdiction is not an appeal as of right. Section 142(3)(a)(i) of the Queensland Civil & Administrative Tribunal Act 2009 (“QCAT Act”) provides that in respect of a decision in a proceeding for a minor civil dispute an appeal may be made only if the party has obtained the appeal tribunal’s leave to appeal. Leave to appeal will usually only be granted when there is a reasonable argument that the decision was attended by error, or an appeal is necessary to correct a substantial injustice caused by the error.[2] An application for leave to appeal is not simply an opportunity to reiterate the arguments made at the hearing below in the hope of obtaining a different outcome.[3] Put another way, it is not a rehearing on the merits of the matter that was before the primary decision maker/s. The grounds of appeal do not specifically identify error on the part of the learned adjudicator but essentially argues that the case that was argued below ought to have reached a different conclusion.
- [7]There was preliminary matter to be dealt with at the commencement of the appeal hearing in relation to what the applicant regarded as new evidence. The new evidence was attached to an application filed in the Tribunal on 20 March 2020. That application sought directions from the Tribunal requiring Kmart’s named employees ‘be instructed to appear in person before the Tribunal in order to be cross-examined by the applicant on the incontrovertible fresh evidence supplied with this application’.
- [8]The fresh evidence is a submission based on evidence that was already submitted in the primary hearing and apart from any further evidence from the applicant about photos, the three page document did not advance the evidentiary basis for the conclusions reached by the learned adjudicator. The reference to photographs was to three additional A4 colour photos of the engine compartment showing the burnt engine up near the firewall, the rocker cover and adjacent carburettor and various hoses and lines. The final photo was of the air filter and battery in undamaged condition. Presumably this is to show that the fire was confined to that area around the carburettor where the fuel is dispersed to the cylinders. There are also diagrams of the fuel line system from the tank to the engine.
- [9]In respect of fresh or new evidence generally it is well settled that the appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests:
- (a)The evidence could not have been obtained with reasonable diligence for use at the trial;
- (b)The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and
- (c)
- (a)
- [10]Even though the application does not satisfy the above test, it is questionable whether the three page statement/submission is in fact new or fresh evidence. Also the additional photographs are not substantially different to those in the first photograph attached to the application. This photograph was the one examined by Mr Senz. The diagrams of the fuel system are new, but they do not take the case any further because there really is no dispute about the way the fuel system in the car operates.
- [11]There was some issue as to whether Kmart had been served with this application so during the hearing it was emailed to Ms Rawson who appeared for Kmart. She raised an objection to the new material so I decided to reserve the decision as to whether the applicant should be permitted to rely on these documents in the appeal. In view of the conclusions as to the substance and effect of this material I don’t see that there is any prejudice to Kmart if it were to form part of the appeal record. I therefore propose to allow the applicant to rely on it.
- [12]In addition to this material, the applicant has filed a written submissions in support of his appeal which does go through in some detail the evidence that ought to have been accepted by the learned adjudicator in support of his case. The submission is a critique of the adjudicator’s findings but does not with any precision identify why the conclusions reached were not open to the adjudicator on the evidence that was led at the hearing. The way the appeal has been conducted by the applicant is more in the nature of a rehearing.
- [13]At the hearing, the applicant relied on the statements of two ‘experts’ in support of his contention that not only was the seat of the fire in or around the fuel rail and fuel injectors, fed by the rubber fuel line, but also that fuel must have leaked from the lines, vaporised in or around the engine the top of the motor resulting in the fire.
- [14]Essential to the success of the applicant’s case is to establish causation, in that it was the failure of the Kmart personal to detect that the fuel lines were perished or had deteriorated to the extent that they needed immediate replacement and failure to do so might result in fuel leaking into the engine compartment and cause a fire. It seems reasonable to conclude that if the fuel lines were in fact in such a condition the resultant fire was foreseeable.
- [15]The evidence from Stefan of Gullwings Pty Ltd, presumably a person with some mechanical experience, was addressed by the learned Adjudicator at [28] of his reasons. He concluded from that evidence that the fire probably started with or in the vicinity of the rubber hoses but there is no evidence to conclude that it was the failure of the hose which resulted in the petrol leaking to engine. Stefan did not inspect the vehicle, and the conclusions he arrived at in his report are heavily qualified. In other words the evidence was not convincing that the actual hoses failed and further his evidence did not lead to a reasonable inference that if it was the hoses, they had been in a perished condition for some time, particularly when inspected by Kmart. The learned Adjudicator’s findings and conclusions with respect to Stefan’s evidence were clearly open to him and Mr O'Hara has not identified any basis upon which they should be interfered with.
- [16]The other expert called by Mr O'Hara, Geoff Lenz, certainly does have expertise as an automotive consultant as is evident from the resume attached to his statement. He provided a report of 30 July 2017 after receiving instructions from Mr O'Hara about the history of the fire and photographs of the engine bay. He concluded from the photo of the engine bay that the ‘likely fire seat was most probably at one of the pressurised flexible fuel hoses which bring fuel to the engine from the rear mounted tank’. He also said that the ‘symptoms were consistent with fuel being lost from a high pressure fuel line’. Accepting this to be the case then, again the resultant fire is certainly foreseeable. However, as the learned Adjudicator pointed out, assuming Mr Lenz’s to be correct in his opinion, ‘it does not establish the likely condition of the rubber hoses either nine months earlier or at the time of the fire’. Further, as was pointed out at [35] of the reasons, Mr Lenz expressed no opinion on the critical issue of the condition of the fuel lines at the date of the inspection on 31 August 2016. He did not have the service report to refer to.
- [17]Once again, not only was the conclusion about Mr Lenz’s evidence open to the learned Adjudicator, but having perused his report and evidence I cannot see how any other conclusion could be arrived at about the condition of the hoses when checked by Kmart other than they were ‘ok’. However the applicant’s evidence, as found by the learned Adjudicator, fell short of the mark on being able to determine that the fuel lines were in such a state when inspected by Kmart, because the only evidence of their condition is the inspection report of 31 August 2016 which noted the ‘fuel line condition/leaks’ check was ‘ok’. There was no concession by the witness for Kmart, Mr Larfield the technical service assistant at the time, that the lines were or could have been ‘perished, decayed and rotten and defective’.[5]
- [18]The further evidence led at the hearing of the appeal, photographs, diagram of fuel lines and the email from Mr Puttman do not advance the case of causation. Nor would that evidence, if led in the original hearing, have been likely to sway the learned Adjudicator from his conclusion or the beach of the implied warranties referred to under the Australia Consumer Law.
- [19]More importantly, not to labour the point, the learned Adjudicator made the following finding of fact:
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.
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.[6]
- [20]These findings of fact are, on the evidence, unassailable and there is no basis established by the applicant for this appeal tribunal to interfere with them.[7] The applicant has not otherwise been able to establish any basis upon which leave to appeal should be granted.
Order
- Leave to appeal is refused.
Footnotes
[1]QCAT Act s 43(1).
[2]Terera & Anor v Clifford [2017] QCA 181.
[3]Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39.
[4]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
[5]Reasons [44].
[6]Reasons [50].
[7]Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43].