Matthews v Reardon Towing Pty Ltd
[2022] QCATA 17
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- Unreported Judgment
- Matthews v Reardon Towing Pty Ltd[2022] QCATA 17
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Matthews v Reardon Towing Pty Ltd[2022] QCATA 17
Matthews v Reardon Towing Pty Ltd[2022] QCATA 17
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Matthews v Reardon Towing Pty Ltd [2022] QCATA 17 |
PARTIES: | valerie matthews (applicant/appellant) v reardon towing pty ltd (respondent) |
APPLICATION NO/S: | APL052-20 |
ORIGINATING | MCDO123-19 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 10 February 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: | Application for leave to appeal dismissed. |
CATCHWORDS: | TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – damage to car caused negligently by tow truck operator – whether other damage to car also caused at that time – whether grounds to interfere with decision at first instance – leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13, s 28(3)(a), s 142(3)(a)(i). |
APPEARANCES & | |
Applicant: | Self-represented |
Respondent: | Self-represented 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]This is an application for leave to appeal from the decision of a Member of the Tribunal in a Minor Civil Debt claim. The appellant is the owner of a motor vehicle which was moved by the respondent using a tilt tray truck, as a result of which the appellant claimed it had been damaged negligently. The appellant was partly successful in her claim, the Member on 28 January 2020 ordering that the respondent pay her $2,077.64. She seeks leave to appeal against that decision, on the ground that the amount awarded was inadequate.
- [2]Because this matter was a minor civil dispute, leave is required to appeal to the Appeal Tribunal.[1] As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[2] In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.
Decision of the Member
- [3]The Member set out the background to the claim. The appellant’s car broke down while she was near Casino in New South Wales. The appellant said in evidence that her mechanical problem was a failure of the transmission system; she had just driven over a cattle grid when the transmission “blew it, and there was a whole heap of oil just up from the cattle” grid: p 49.[3] On 13 December 2018 a driver employed by the respondent loaded the car onto a tilt tray truck, and the next day it was delivered to the appellant’s property in Toowoomba.[4] The appellant alleged that while it was being unloaded it suffered damage, apparently when the lip of the tray struck the underside of the car.[5] After speaking to his employer, the driver loaded the car back onto the truck, and it was taken to a dealer in Brisbane where the damaged part was replaced at the respondent’s expense. The car was returned to the appellant about two weeks later.
- [4]The appellant claimed $1,313.40 as the cost of additional repairs to the car, $785 to replace the tyres (and balance and align the wheels) and $7,000 as the cost of a new fuel tank for the car; this last item was hypothetical, since, because of the age of the vehicle, the necessary part was no longer available, and the appellant had not proved the cost of obtaining and fitting a second hand replacement fuel tank. The Member did not regard the appellant as a particularly reliable witness, noting that she was somewhat stressed at the time the car was unloaded and damaged, and that she was prone to exaggeration: p 87.
- [5]On 12 February 2019 the car was taken to a repairer who took some photos of damage, and provided the quote of $1,313.40. There was in evidence a report dated 2 July 2019 from a different repairer listing various items of damage to underneath the car between the front and rear wheels, which the respondent said had not been caused by it. There was another list of things in need of fixing on the car dated 24 January 2020, which the Member discounted because of the time that had passed: p 87. Essentially, the Member did not accept that any of the damage underneath the car had been caused by what happened when the car was unloaded on 14 December 2018; he accepted the analysis of Mr Reardon, who appeared for the respondent: p 87. The Member did accept, however, that there had been same damage to the lights of the car which had not been properly repaired at the time, and allowed the cost of replacing the headlights and fog lights of the car, covered by a quote dated 11 November 2019 for $1,954.44. The Member also allowed the filing fee of $123.20.
Issues on appeal
- [6]The appellant alleged that the respondent had provided additional information to the Tribunal which had not been made available to her, including photos and other documents. She complained that this had made the process unfair and unjust. She also complained that the respondent’s witness had provided false information to the hearing. If information relevant to the issues in the matter was provided privately to the Tribunal by one of the parties without the other party being aware of it or having the opportunity to respond to it, that would be a breach of the requirement that the Tribunal observe the rules of natural justice.[6]
- [7]The written submissions from the appellant are difficult to follow, and it is not clear to what photos and other information she is referring. At one point she referred to a “C A Insurance letter”. There is on the Toowoomba file a letter from C A Insurance Brokers on behalf of the respondent sent to the Toowoomba registry by email on 22 January 2020. With the letter were sent eleven photos (jpg files as attachments) explained in the letter. These were provided as a statement of events and photographs and refer to the mediation, but that was held on 13 November 2019, and the email in fact preceded the hearing on 28 January 2020.[7] Significantly, the email heading shows that it was also sent to [email protected] which appears to be an email address for the appellant.[8] If this is the material referred to, it was not provided without also going to the appellant.[9]
- [8]One matter that was raised by the appellant at the hearing was whether the tow truck had cameras which recorded how the appellant’s car was handled. The C A Insurance Brokers letter refers to “cameras on the towing vehicle” but said that their evidence was not required as the respondent admitted its error in onloading the vehicle. There is no general obligation on parties to a Tribunal proceeding to provide disclosure of relevant documents in their possession to the other party. It would have been open for the appellant to apply to the Tribunal for a direction that the truck camera material be disclosed, but such a direction may not have been made anyway. A mere failure to disclose any such material does not affect the validity of the proceeding.
- [9]It does appear that both parties produced photographs at the hearing, which were shown to the Member and to the other party, but were not (it appears) made exhibits by the Member. There are various other photos on the file, some of which appear to have come from the appellant, but it is difficult to follow clearly just what photos are being spoken of at times in the transcript. From the transcript it does not appear that the Member during the hearing saw any photos which were not also seen, or at least available to be seen, by the appellant. The appellant also complained that she did not have time to respond to the photographs produced at the hearing because she had not seen them in advance, but if this was an issue, it should have been raised at the hearing.
- [10]The respondent produced what he said were photos taken of the car before it was loaded in Casino. There are photos on the file which could match that description, with the vehicle parked outside a shed marked “Automotive Repairs”. One of them also shows a truck with the respondent’s marking, with another vehicle already on the tray.[10] This is not the truck which delivered the car on 14 December 2018. Mr Reardon claimed he could see slight sill damage on one of the photos, and marked a point on the photo close to the rear of the driver’s side door: p 48. I cannot see anything on the copy of the photograph on the file.[11] If the damage shown in photos taken later had been there, it would not have shown up in these photos. It may be that these photographs had not been provided to the appellant before the hearing, but she was certainly given the opportunity to look at them at the hearing, and it seems that all they show is that there was no obvious damage to the car at that time.
- [11]The appellant complained that there were no photos showing damage beneath her car before it was moved from Casino, but such damage would not have been readily visible to someone standing beside the car, except perhaps for some associated scratches on the lower part, below a door. Two photos were marked to show where the damage was supposed to be, but it is not obvious in the copies I have seen.
- [12]There is no material from the appellant to show that there were any other photographs provided to the Tribunal without her knowledge, either before or at the hearing, and nothing to support that proposition apparent from the copy of the file from the Toowoomba registry. This allegation has not been made out.
- [13]The appellant complained about something she was told by a person from the RACQ, but whatever that person said was not said on behalf of the respondent. The appellant has alleged in effect that the RACQ were acting to protect the respondent. The involvement of the RACQ appears to have been that they were asked to arrange to have the vehicle brought back to Toowoomba, as a form of roadside assistance.
- [14]The appellant claimed that the respondent’s statement that the work it arranged to replace the front bumper bar on the vehicle was done at a dealer at Toowong was false, as after the hearing she had contacted that dealer and they claimed not to have any record of a car with her registration number.[12] The invoice for the part came from a dealer in the Valley. There was no dispute that the front bumper was replaced, and who did the job would appear to be relevant only to the credibility of the respondent’s witness. Even if he were shown to have been wrong about this, it would not greatly affect his credibility, and most of the matters in issue were resolved without resort to his direct evidence.[13]
- [15]In submissions with the Application for leave to appeal, the appellant claimed that the rear wheels of her car rolled off the tray before it was lowered, so that the lip of the tray hit the underside of her car, causing the damage. There are difficulties with that version: it is inconsistent with other versions of the incident given by the appellant. On 22 December 2018, the appellant in an email to the respondent said the tray of the truck was “off the ground a little way and when my vehicle got to the end of the tray and came off the tray it hit under the front of the vehicle and then the end of the tray ripped the front right off.” She complained that there was no winch rope restraining the car, and as the tray was put straight up into the air her car went “like a rocket” so that she was concerned it would hit her house. There was no reference to the edge of the tray striking the underside of the car in front of the rear wheels. A version given by her during the hearing was consistent with this: the tray of the truck struck under the bumper bar, the car fell on its wheels, it bounced off the truck, and that was when the damage underneath occurred: p 62.
- [16]In an email on 9 August 2019, she again complained about the absence of a winch rope, and said the tray was too far off the ground. But the tray must have been raised to some extent, because she said that it “began to fly off the tow truck like a missile.” She was concerned for her house. “Then I saw the back wheel bounce off the truck. Then I saw the front of the vehicle just under the motor go bang where it hit the vehicle very hard (loud). Then I watched the front of the vehicle tear off the front of the vehicle.” That is different from the earlier version, but it is not inconsistent with the lip of the tray having hit the front of the car, in front of the front wheels.
- [17]The photographs, said to be of the unloading process in the letter from C A Insurance Brokers, which show the tray fully tilted with the car on the tray, were said by the appellant to have been taken while the car was being reloaded after the incident: p 14. It is plausible that she would not have been taking photographs until after the incident had occurred, and it is likely that some of what was stated in this letter was wrong. It is not apparent however that the Member put any store by it.
- [18]The appellant claimed that the damage under her vehicle was discovered by another towing company when she arranged for it to take her car to a repairer, and that the vehicle had not been drivable between when it was unloaded by the respondent after it was returned to her home and when the other towing company collected it. The appellant also claimed that there had been no such damage present on the vehicle at the time when it was collected by the respondent at Casino. If these propositions had been accepted by the Member, the damage must have been caused while it was under the control of the respondent, even if it did not occur as the vehicle was being unloaded the first time. It does not appear however that the appellant advanced a case on that basis. In her original application (filed 24 October 2019) she focused on damage caused during the unloading on 14 December 2018, and that appears to have remained her approach throughout. At the hearing the respondent did seek to show that there was some damage underneath the car already when it was collected at Casino, or at least, that it had not been shown that the damage was not there then. The appellant claimed that two of the photographs in the first bundle had been taken by her before the car went to Casino (p 77) and the Member said he could not see in them the damage evidence in the photos taken later by the panel beater.
- [19]The appellant said that on 12 February 2019 she had the car taken to John’s Panel Shop, to check the work that had been done.[14] They provided a quote of that date, which referred to repairing both side sill panels, and replacing the outer left hand sill panel, as well as removing and checking the fuel tank for damage.[15] As well, they said a fog light had not been properly installed. That repairer took some photographs which were in evidence, and suggested that the damage had been done by a forklift, although the appellant had no knowledge that any forklift had been used at any time.[16] Later the vehicle was taken to a different repairer at the instance of her insurance company;[17] she said they identified additional damage: p 24. This included some lights not working: p 33.
- [20]The appellant also claimed that the tyres needed to be replaced, because they had been damaged also, but it is difficult to understand how such a thing could have occurred from her description of the incident. At one stage she suggested that good tyres had been replaced by bald ones while the vehicle was in the custody of the respondent, but the Member did not accept that.
- [21]Mr Reardon, who gave evidence for the respondent, said that there were two steel bars under the front of the car which were lower than the sill panels, and the tray of the truck would have hit them before it hit the sill panels: p 49. But the damage to the sill panels was further back than those bars, consistent with the car pivoting on the front wheels. He also claimed that the lights could not have been damaged in the incident (p 54), but the Member apparently did not accept that evidence. He said that the scratch marks under the vehicle visible in the photographs went from side to side, whereas if the damage had occurred in coming off the back of the tray, they would have been in the front to rear direction: p 54. The damage visible in the photos went from one side of the car to the other: p 75.
- [22]Mr Reardon also said that scratches visible in one of the photographs taken by the panel beater came up to the bottom of a door: p 63. That damage was not consistent with its being caused by the lip of the tray as the car rolled off the truck. He also said that if the lip of the tray had been more than a foot off the ground the rear of the car would have been damaged when it came off: p 70.
Conclusion
- [23]There was one apparent error in the reasons for decision of the Member, where he referred to the appellant being concerned by damage to her house when there was no damage caused to the house when the car was unloaded: p 86. That was true, but the appellant had said that her house had been damaged when it was broken into while she was away in New South Wales. It does not appear however that this error was of any significance in the outcome of the hearing. Essentially, the Member did not accept that the damage had been caused by the process of unloading the car. On the evidence, such a conclusion was certainly open. One problem for the appellant was that, on the first version of the incident given by her in an email, only the damage to the front of the car was accounted for.
- [24]In addition, there was no good evidence that the damage under the car was absent at any particular time. It appears not to have been noticed until the car was put on the other truck to be taken to the Toowoomba repairer, but that does not show when it was caused. As well, the appearance of the damage in the photographs seems to me not to be really consistent with the tip of the tray striking a glancing blow as the car rolled off the truck. For what it is worth, the appearance seems more consistent with the explanations that it was caused by the car resting inappropriately on a flat metal object, like a repair stand or a forklift tine, although the scratch marks under the door are still difficult to explain, and the damage is about halfway down the car, a strange place at which to try to support it. Accordingly, there is no basis to overturn the fundamental finding of the Member, that the relevant damage was not caused by the car being unloaded carelessly.
- [25]The appellant in submissions accused Mr Reardon of lying, but the matter was resolved by the Member accepting his explanation about what had happened, which was really in the nature of submissions rather than evidence, based on the evidence before the Tribunal. The appellant has not shown that there is good reason to reject the explanations put forward by Mr Reardon, or that the Member, who had seen and heard the witnesses, erred in accepting the evidence of Mr Reardon.
- [26]The respondent on the appeal submitted that it had been subjected to a letter of demand from an insurer of the appellant’s car, claiming an amount of $3,507.90 in respect of the damage to the car. It does appear from this that additional repair work was done on the car on the instructions of the insurer, but this is not relevant to the appeal. The respondent cannot be sued again by the insurer, since the proceeding before the Member would stand as a bar to any further claim. There may be matters to be resolved between the appellant and the insurer, but that is not relevant to the appeal.
- [27]In a further submission in writing, not contemplated by any directions and apparently not copied to the respondent, the appellant said that the insurer obtained further information about the damage to the vehicle, and then paid out on the basis that the vehicle was written off. The insurer has apparently now claimed the return of that money. Again, any issues between the appellant and her insurer have nothing to do with this proceeding.
- [28]Overall, there is insufficient reason to see any prospect of the appellant being able to overturn the decision of the Member on appeal to justify the grant of leave to appeal in this matter. The decision of the Appeal Tribunal is that the application for leave to appeal is dismissed.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142(3)(a)(i).
[2] Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].
[3] I shall refer to page numbers in the transcript of the hearing in this way.
[4] The car was delivered using a different truck from the one that had collected it in Casino: p 46.
[5] The respondent claimed that this occurred after unloading, when the tray was being lowered and the lip struck the vehicle, knocking off part of the front bumper including the number plate.
[6] The QCAT Act s 28(3)(a).
[7] At the hearing the Member said he had seen it: p 6.
[8] It is identified as such in the Application for leave to appeal, and on other documents on the file.
[9] At the hearing, it emerged that the appellant had taken the photographs, and she produced the originals: p 6, p 14.
[10] Transcript p 46; Mr Reardon said it was an 11 m tray. Such a truck could have carried two cars, and there is no reason to think that the appellant’s car was towed behind it rather than being carried.
[11] Looking at the original photograph might have assisted the Member, but it is not clear that proper prints were provided at the trial.
[12] In evidence Mr Reardon said that the car was repaired by the dealer at Toowong: p 53.
[13] The Member was well aware that Mr Reardon was not present at the incident: p 51.
[14] It is not clear whether this was before or after the transmission was repaired.
[15] A copy was attached to the original application, and before the Member. Mr Reardon said the front of the fuel tank was directly under the driver’s seat, and it ran to the rear: p 58.
[16] She said that later when an assessor from her insurer looked at the damage, he said it was from smash repair stands: See email from appellant 14 August 2019; transcript p 32.
[17] She had made a claim, but said it was denied by the insurer, because the respondent had accepted responsibility: p 28. That appears not to have been correct.