Portsmith Tally Services Pty Ltd v Chatfield
[2008] QDC 220
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- Unreported Judgment
- Portsmith Tally Services Pty Ltd v Chatfield[2008] QDC 220
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Portsmith Tally Services Pty Ltd v Chatfield[2008] QDC 220
Portsmith Tally Services Pty Ltd v Chatfield[2008] QDC 220
DISTRICT COURT OF QUEENSLAND
CITATION: | Portsmith Tally Services Pty Ltd v Chatfield & Anor [2008] QDC 220 |
PARTIES: | PORTSMITH TALLY SERVICES PTY LTD ACN 053 355 383 (Appellant) v SCOTT CHATFIELD (First Respondent) and KIDNER CONTRACTING PTY LTD ACN 010 521 598 |
FILE NO/S: | 221 of 2007 |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Atherton Magistrates Court |
DELIVERED ON: | 12 September 2008 |
DELIVERED AT: | Cairns |
HEARING DATE: | 25 August 2008 |
JUDGE: | Everson DCJ |
ORDER: |
|
CATCHWORDS: | NEGLIGENCE – DUTY OF CARE – BREACH OF DUTY – Reasonable forseeability of damage – Where careless acts or omissions – where damage to gearbox of prime mover after towing. CONTRACT – CONSIDERATION – IMPLIED TERMS – OFFER AND ACCEPTANCE – INTENTION – Where consideration implied in context of towing cases – Where offer and acceptance established – Where commercial arrangement created intention. |
COUNSEL: | D P Morzone Counsel for the Appellant T Fantin Counsel for the first and second Respondent |
SOLICITORS: | Miller Harris for the Appellant Universal Legal Recoveries for the first and second Respondents |
Introduction
- [1]A Volvo prime mover operated by the appellant broke down near Mt Garnet on 8 August 2003. Mr Hare on behalf of the appellant contacted an auto electrician in Ravenshoe. The auto electrician attended upon the prime mover but could not get it to start. He suggested that the prime mover be transported to his Ravenshoe workshop and he recommended the second respondent be contacted for this purpose. Ultimately, the second respondent despatched the first respondent to tow the prime mover to Ravenshoe. However, in doing so the first respondent failed to remove the tail shaft prior to commencing the tow, thereby damaging the gearbox of the prime mover.
- [2]This dispute relates to the nature of the relationship between the parties and whether it was such as to make the respondents liable for the damage to the gearbox of the prime mover. It was litigated in the Magistrates’ Court at Atherton on 28 February 2007. The learned Magistrate decided on 4 June 2007 that the first and second respondents were not liable in either contract or negligence for the damage to the prime mover (“the judgment”). His reasons for judgment are exhibit “MKL 2” to the affidavit of Mr Laycock filed on 23 August 2007 (“the reasons for judgment”).
- [3]This appeal is brought pursuant to s 47 of the Magistrates Courts Act 1921 against the whole of the judgment. This appeal is not a hearing de novo but rather it is constrained by s 47(a) which provides that on the hearing of an appeal this court may “draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed.”
The findings of fact in the Magistrates Court
- [4]In the course of the reasons for judgment the learned Magistrate found that the relevant chain of events began when Mr Hare, a director of the appellant telephoned Mr Kidner, a director of the second respondent, to seek his assistance in moving the prime mover to the premises of the auto electrician in Ravenshoe. The appellant conducts a transport business which operates out of Cairns. The second respondent conducts a transport, earthmoving, quarrying, crushing and concrete batching business at Ravenshoe. Although the second respondent did not generally hold itself out as being involved in the business of breakdown and towing services, it had previously towed at least one vehicle belonging to a third party and Mr Kidner agreed to send a vehicle to transport the prime mover to Ravenshoe.
- [5]Although the learned Magistrate found that the second respondent was not in the business of providing towing services for reward, there is no evidence before me that this fact was ever made known to the appellant. Certainly Mr Hare maintained that he was unaware that the second respondent was not a towing contractor.[1] It is also uncontroversial that in the course of their negotiations at no time did Mr Kidner ever tell Mr Hare that he had no experience of towing Volvo trucks.[2] The learned Magistrate also found that the first respondent “had no experience with Volvo trucks.”[3]
- [6]The learned Magistrate further found that Mr Hare relied on the second respondent to determine the manner in which the prime mover was to be transported. He accepted that Mr Hare effectively said to Mr Kidner, “Do whatever you want – I just want it moved – you are doing it”.[4] Mr Kidner decided to tow the prime mover rather than float it and he despatched the first respondent. When the first respondent arrived at the place where the prime mover had broken down, Mr Hare informed him, “I’ve never done this before” and said, “show me what I’ve got to do”.[5] Preparations to tow the truck were then undertaken by the first respondent in a manner described by the learned Magistrate as a “collaborative effort between them although [the first respondent] did most of the work”.[6] Neither the first nor the second respondent knew that it was necessary to remove the tail shaft from the prime mover before it was towed, although an appropriate warning was contained in the manual for the vehicle and it was possible that a similar warning was printed inside the cab.
Uncontroversial findings below
- [7]The learned Magistrate found that it was not in dispute that the damage sustained to the gearbox of the prime mover was as a consequence of the failure to remove the tail shaft prior to towing it. He further observed that contributory negligence was not pleaded against the appellant. Finally, the learned Magistrate found that the evidence before him did not support a finding that there was a contract in existence between the appellant the first respondent. Although the appeal is against the whole of the judgment below, no submissions have been made contradicting this finding and it appears uncontroversial that the first respondent did not enter into a separate contract with the appellant.
The controversial findings below
- [8]Despite noting that the respondents did not dispute that the damage caused to the gearbox of the prime mover by not removing the tail shaft in the circumstances (“the conduct”) was reasonably foreseeable, and that “the standard and test of negligence is an objective one”[7], the learned Magistrate proceeded to state that he was not convinced that the respondents “ought to reasonably have foreseen that their conduct in towing the Volvo without first disengaging the tail shaft may be likely to cause loss or damage to the [appellant]”[8]. Ultimately he found that the respondents did not owe the appellants a duty of care and stated further that had he found such a duty of care existed, that the appellant had failed to establish a breach of that duty having regard to s 9 of the Civil Liability Act 2003 (“CLA”).
- [9]The learned Magistrate also dismissed the appellant’s claim in contract against the second respondent. He concluded that:-
“There is no evidence from the [appellant] as to the consideration for the service to be provided, there is no evidence from the [appellant] of an intention to enter into legal relations with the [second respondent], there is no evidence of the terms of a contract, and there is little evidence of offer and acceptance.”[9]
- [10]In reaching the conclusions set out above, the learned Magistrate relied heavily on the fact that the actual price to be charged for the towing service provided by the second respondent was not the subject of any negotiations, much less any agreement between the parties. A number of extracts from the transcript of the hearing are quoted in this regard,[10] and I will address these subsequently. It is clear that the second respondent charged for the service at the same hourly rate that it charged the appellant to tow the prime mover on a subsequent occasion[11] and that the appellant paid for the service.[12]
The appellant’s claim in negligence
- [11]The issues in dispute are what duty, if any, did the respondents owe the appellant and whether it was breached. The other elements of a cause of action in negligence are clearly established on the findings of the learned Magistrate set out earlier.
- [12]On behalf of the respondents it is submitted that they owed no duty to the appellant as they merely agreed to help out the owner of the broken down prime mover by towing it to the auto electrician in Ravenshoe. The difficulty with this proposition is that they did so on a commercial basis. So much is clear not only from exhibit 8 but also from the tenor of the oral evidence quoted at pages 10 and 11 of the reasons for judgment. Although Mr Kidner stated that he may have provided the service as a favour for someone he knew, he stressed that he did not know Mr Hare. He intended to charge Mr Hare an hourly rate having regard to commercial considerations. This is exactly what he ultimately did. The overall tenor of this evidence is not in my view altered by an equivocal answer given to a series of leading questions in re-examination by counsel for the respondents which is quoted at the top of page 11 of the reasons for judgment.
- [13]As noted above, the respondents presented themselves to the appellant as having the requisite skill and capacity to transport the prime mover to Ravenshoe. At no time was it represented to the appellant that they were not in the business of providing towing services for reward. At no time was it represented to the appellant that they had no experience of towing Volvo prime movers. Mr Hare was vulnerable, he told Mr Kidner that he was relying on the second respondent to transport the broken down prime mover, he told the first respondent he had never done it before. Whatever the learned Magistrate meant by “a collaborative effort”, it must be seen in this context. In assuming responsibility for transporting the prime mover in these circumstances the respondents did indeed owe the appellant a duty of care. Following Imbree v McNeilly[13] the standard of care owed to the appellant was that of the “reasonable tower”.
- [14]In determining whether the respondents breached this duty s 9 of the CAA must be taken into account. Of particular relevance to the facts before me is s 9(1)(c) which provides that a person does not breach a duty to take precautions against the risk of harm unless “in the circumstances, a reasonable person in the position of the person would have taken the precautions”. Having regard to the acknowledged foreseeability of risk of damage to the gearbox of the prime mover in the circumstances, together with the presence of warnings in the manual and possibly also in the cab of this risk, I am of the view that the respondents breached the duty of care they owed the appellant.
- [15]The appellant has therefore established negligence on the part of the respondents.
The appellant’s claim in contract
- [16]As noted above, the learned Magistrate dismissed the appellant’s claim in contract on a number of bases. Firstly, he concluded that there was no consideration for the service provided to the appellant. As discussed above, the tenor of the evidence quoted in this regard together with exhibits 8 and 9 do not support such a conclusion. Secondly, he concluded that there was no evidence of an intention to enter into legal relations. Such a finding is not supported by the evidence referred to above either. This was a commercial arrangement which Mr Kidner expressly stated was different to doing a favour to someone he knew.[14] Thirdly, the learned Magistrate concluded that there was no evidence of the terms of a contract. On the contrary, it is clear from the totality of the evidence quoted above that the contract was in terms that the second respondent was to tow the prime mover to the premises of the auto electrician in Ravenshoe for a reasonable hourly rate of remuneration. Courts have been willing to imply terms such as these. In the context of towing and storage fees a similar term was implied in AAMI v Eastwood Towing & Auto Salvage Pty Ltd.[15] Finally, the learned Magistrate concluded that there was little evidence of offer and acceptance. Again the totality of the evidence set out above makes it clear that the second respondent offered to tow the prime mover and the appellant accepted the offer.
- [17]It follows that the appellant is also entitled to succeed in its contract claim against the second respondent.
Orders
- [18]Regrettably, the learned Magistrate did not proceed to assess damages in the event he was found to have erred in respect of his findings as to the appellant’s causes of action. It will therefore be necessary to remit the claim to the Magistrates Court for the damages to be assessed.
- [19]I make the following orders:-
- The appeal is allowed.
- The judgment of the Magistrates Court at Atherton dated 4 June 2007 is set aside.
- The costs order dated 3 July 2007 is set aside.
- Judgment be entered for the appellant in respect of its claim in negligence and in respect of its claim in contract.
- The claim be remitted to the Magistrates Court at Atherton for an assessment of the appellant’s damages.
- The respondents pay the appellant’s costs of and incidental to the claim and the appeal on the standard basis.
- There be liberty to apply on two clear days notice by any party to the other parties.