Kuhne v Shastra Holdings Pty Ltd
[2009] QSC 91
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- Notable Unreported Decision
- Kuhne v Shastra Holdings Pty Ltd[2009] QSC 91
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Kuhne v Shastra Holdings Pty Ltd[2009] QSC 91
Kuhne v Shastra Holdings Pty Ltd[2009] QSC 91
SUPREME COURT OF QUEENSLAND
CITATION: | Kuhne & Anor v Shastra Holdings Pty Ltd [2009] QSC 91 |
PARTIES: | MICHAEL KUHNE and CARMEL-ANNE KUHNE v |
FILE NO/S: | 10494/05 |
DIVISION: | Trial Division |
PROCEEDING: | Civil |
ORIGINATING COURT: | Supreme Court, Brisbane |
DELIVERED ON: | 1 May 2009 |
DELIVERED AT: | Supreme Court, Brisbane |
HEARING DATE: | 3, 4 November 2008 |
JUDGE: | Douglas J |
ORDER: | Judgment for the plaintiffs for damages including interest in the sum of $392,802.47. |
CATCHWORDS: | CONSUMER PROTECTION – CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – WARRANTIES – where the defendant had agreed to install curtains in the plaintiffs’ house close to halogen lights – where both parties agreed that the curtains should be designed so that the lights would protrude through cut-outs in the curtains – where the cut-outs did not align with the lights and their brackets - where the lights turned on accidentally and made the curtains ignite – where significant damage occurred to the house – whether the defendant breached the warranty implied in the contract that the services supplied by it were fit for the purpose and of such a nature or quality as might reasonably be expected to achieve the result desired by the plaintiffs - whether the plaintiffs were liable for contributory negligence - whether a duty of care in tort should be treated as governing the parties’ relations when they have sought to regulate them by contract – whether damages should be granted. Law Reform Act 1995, s 5, s 10 Trade Practices Act 1974 (Cth), s 74(2) BHP Coal Pty Ltd v O & K Orenstein & Koppel AG [2008] QSC 141 cited Kim v Cole [2002] QCA 176 applied Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384, 434-435 followed Simonius Vischer & Co v Holt and Thompson [1979] 2 NSWLR 322, 346 applied Wylie v The ANI Corporation Ltd [2000] 1 Qd R 320, 332–333 applied |
COUNSEL: | S. Couper QC for the plaintiffs D. Atkinson dor the defendant |
SOLICITORS: | HBM Lawyers for the plaintiffs Barry & Nilsson for the defendant |
- Douglas J: Mrs Kuhne, one of the plaintiffs, owned a substantial home on land at Runaway Bay in which she and her husband and children lived. They had built the house on the land between 2001 and 2003 and moved in during late 2003. There was still work to be finished inside the house. It included work that the defendant, Shastra Holdings Pty Ltd, had agreed to perform for the plaintiffs in installing blinds and curtains. In particular, curtains were to be installed in a home theatre. They were installed on 25 November 2003 in circumstances where there were halogen lights on the walls of the room in close proximity to the curtain fabric, something both parties had wished to avoid for fear of fire from the heat of the lights. They had agreed that the curtains should be designed so that the lights would protrude through cut-outs in the curtains. The main factual dispute in the case concerned the reason why the curtains as installed did not have cut-outs in the right position to permit the lights to protrude through them and minimise the risk of fire.
- The parties’ intention, when they realised that the lights did not coincide with the cut-outs in the curtains, was to adjust the light fittings to avoid the problem and not to turn on the lights before that had occurred. Unfortunately, because of a problem associated with the interaction of the computer system controlling the lighting and electrical systems in the house with another system controlling the power supply, the lights turned on accidentally, were not turned off by the plaintiffs and caused one of the curtains to ignite during the evening of 26 November 2003. Significant damage occurred to the house assessed at an agreed figure of $285,532.62.
- The plaintiffs have claimed damages against the defendant, alleging a breach of the warranty implied in their contract by s 74(2) of the Trade Practices Act 1974 (Cth) that the services supplied by it were fit for the purpose and of such a nature or quality as might reasonably be expected to achieve the result desired by the plaintiffs, namely that the curtains would not come into contact with the lights because the lights would protrude through cut-outs in the curtains. There is no claim in tort, no doubt to try to avoid the prospect of a reduction of the plaintiffs’ claim for their own contributory negligence in failing to ensure that the lights were not left illuminated.
Why did the lights not match the cut-outs?
- Mr Kuhne dealt with the defendant as part of his overall supervision of the construction of the house for his family. Because of the need for precision in the placement of the curtains and the expense of the fabric to be used the defendant proposed that a mock-up curtain be prepared to identify with precision where the cut-outs should go in the final curtains. The lights were to be placed on wooden brackets fixed to the walls of the home theatre and there was a factual dispute as to whether those brackets were in place when the mock-up curtain was measured. The mock-up curtain was measured on or about 27 October 2003.
- It seems likely to me that the brackets were in place at that time. I have reached this conclusion on the basis that Mr Kuhne said that they were painted at the same time as the walls were spray painted with a special metallic paint which required a one week drying process and because Mr Humphrey, a witness called by the defendant, also gave evidence that the measuring up occurred when the room was painted and the wooden blocks were in place. Mr Kuhne was positive that the brackets were put in well before the painting was done because of the nature of the painting required. Ms Harmston agreed that the wall was painted at the time of this measurement.[1]
- There was a subsidiary dispute as to whether the lights were in place on those brackets at the time of the measurement for the mock-up curtain. It seems likely that they were not installed until sometime in November 2003 after the room was painted and after the mock-up curtain measurement took place.
- There were earlier occasions when the possible position of the lights on the wall was indicated to the representatives of the defendant, including at a time before the brackets were fixed to the wall, when the indication that would have been available was the position of the wires coming through a hole in the wall. Mr Kuhne said he had spoken to one of the representatives of the defendant about the position of the brackets and lights at an earlier stage before the brackets were installed when a wire had been pulled through the relevant holes in the wall at the height at which the lights were to be placed. The electrician for the building, Mr Sullivan, said the wires were installed at a height of 2.1 metres.
- Mr Sullivan also said that the chocks, meaning the brackets, were on the wall before the room was painted and that the lights would have been placed on the chocks about one or two weeks before the curtains were finally installed. That final installation occurred, as I have said, on 25 November 2003.
- There were frustrations for the defendant caused by delays in the installation of the lights on the wall at stages when they were expecting to be able to attend on the premises to measure up for the curtains accurately. The evidence of Ms Harmston for the defendant was that, on an occasion in October when she attended with other employees of the defendant to do the measuring, she discovered that the lights were not there in spite of assurances that they would have been installed by then. The best that was done for them then, on her evidence, was that an electrician placed the lights into position to illustrate where they would be when they were finally installed.
- Mr Humphrey, another witness for the defendant who kept contemporaneous records of his attendances, had a more precise recall of what occurred. He attended at the site on 24 October 2003 to measure up the mock curtains. He was there with Ms Harmston and Mr Costa. Because the lights were not in place on that day he returned on 27 October 2003 when the lights were again not there. Mr Kuhne expressed some frustration to him about the electrician. By that day, however, Mr Humphrey said that the brackets were in place. That enabled the measurement to be done and the mock up curtains were marked up and taken away. He said that lights were also held up to the brackets to allow him to measure up.
- Ms Harmston said that she envisaged that the curtain might fall between the outer surface of the bracket and the light. Even if that were the case, which seems unusual given the heat associated with the halogen lights, it seems to me likely that it would have been necessary that the cut out in the curtain would still allow the bracket to protrude through or at least align with it as well as the light. In that context Ms Harmston said that the information to her was that the lights were not to emit any great heat but that is inconsistent with the other evidence relevant to them and to the need for precision in making sure that they were “proud” of the curtains because of their heat when lit. In fact it was she who warned Mr Kuhne not to leave the lights on before the adjustments were made to match the cut-outs with the brackets.
- Clearly, therefore, there must have been a mistake in the process because the measurements that were made did not fit around the brackets that were already fixed in place. The cut outs had to align with the brackets as well as the lights to be mounted on those brackets. Although Mr Humphrey disagreed with the proposition that the bracket was sufficient to tell him where the light would go, that failure of the finished product to fit around the brackets conclusively demonstrates that some mistake was made in the process. Other areas such as a speaker box needed to be surrounded by a cut out as well. That was done well but the cut-outs for the lights were not measured accurately.
- Mr Humphrey’s evidence was that the cut outs should have been 60 to 70 mm lower to match the position of the lights in the room and he agreed that the length of the lights was shorter than the length of the brackets. If the lights had been in place on the brackets it may have meant that the cut-outs as measured might have needed to have been longer than they were to fit over both lights and brackets, as well as lower, but the basic problem was that they were too high and did not align with the brackets, something that should have occurred had they been measured properly. A proper measurement would have required the cut-outs at least to align with the brackets and, in my view, probably permit them to protrude as well.
What occurred when the mistake was discovered?
- When the problem was discovered at the time of the attempted fitting on 25 November 2003 Ms Harmston said that Mr Kuhne said to her that they were not to take the curtains away and he would get the lights moved. Ms Harmston says that she told Mr Kuhne that he needed to be careful if the lights were turned on. Mr Kuhne said that he assumed that the defendant’s representatives would have just tied the curtains away from the wall light and said that he did not go back into that room thereafter. Ms Harmston’s evidence was that she would not have left the curtains as they were if Mr Kuhne had not said to do that and that he would arrange to have the lights adjusted. The defendant’s employees did not tie back the curtains before they left.
- Mr Humphrey confirmed that Mr Kuhne wanted the curtains to stay and said that there would be an electrician in the building that day and that he would have the lights moved. He confirmed that Ms Harmston told Mr Kuhne that the lights were not to be used because the curtains were leaning on them. He said that they did not unhook the curtain because it was so heavy and that if it were unhooked and left dangling it would have torn the tracks out of the ceiling because the weight would not then have been distributed evenly.
- Mr Kuhne said that he rang the electrician at that time on his mobile phone. The electrician, Mr Sullivan, told Mr Kuhne that he could not come immediately but would get one of his employees to come in as quickly as possible to fix it up. Mr Kuhne understood that would be within two or three days and says that he told that to the representatives of the defendant who were then present. Mr Humphrey’s version of the conversation about when the lights would be moved by the electrician was that it would have been done that day, not in three days.
- It seems more probable to me that Mr Kuhne’s assumption, that the curtains would be tied away by the defendant’s representatives, was the more likely expectation as to what should happen to them. Leaving them simply as they were in a building where work was still being performed by other tradesmen, even in the expectation that an electrician might soon move the brackets, does not seem to have been a sensible resolution of an obvious problem. This seems to me to be the case whether the expectation was that an electrician would arrive that day or within a few days. There was no certainty about the prediction when an electrician would be available but the risk associated with leaving the curtains in place was obvious.
- The evidence of another employee of the defendant, Mr Costa, was that there was a safety issue involved because a layer of the curtain was flammable.[2] Another employee of the defendant, Ms Stevens, also said that Ms Harmston had told her that turning the lights on was a fire hazard.[3]
- Mr Humphrey also gave evidence that the curtains were fixed and would not fall down and could not be tied back to anything as they were too heavy and there were other tradesmen in the room. There was also concern that, if they were tied back, there would be the possibility of the room being marked and Mr Kuhne requiring it to be repainted. He agreed that the only safe course was to take the curtains back down again and send them to the manufacturer and said that he told Ms Harmston that for safety reasons that should be done.
Contractual remedy
- It seems accurate to me to characterise the nature of the contract between the plaintiffs and defendant as one for the supply of services rather than merely the supply of goods. That contract had also been varied so that the curtains to be supplied to the home theatre room would have cut-outs to permit lights mounted on the rear wall to protrude through them. The evidence also supports the view that the purpose of those cut-outs was to prevent the halogen lights from contacting the curtains and creating a fire hazard. In that context, for the reasons I have already referred to, I reject the evidence of Ms Harmston to the contrary.
- In my view Mr Kuhne did not waive any obligation of the defendant to properly measure up those curtains. Although I accept Mr Humphrey’s evidence about the fact that the bracket was in place when he measured up it seems inevitable to me that some error was made by him or those assisting him to measure up the mock curtain around the position of the light brackets. Otherwise the cut outs in the curtains could not have been out by as much as they were.
- In those circumstances it seems inevitable to me that the defendant breached its obligation to achieve the purpose or result made known to it because the lights did not protrude through the curtains as fitted. That they may have been able to perform the job better had they taken the curtains away, treating this installation as a preliminary fitting, does not seem to me to be to the point. They decided not to do that.
- Nor does the fact that Mr Kuhne accepted that the easiest solution to the problem was to ask the electrician to move the brackets mean that there was a release or waiver by him in respect of the breach of contract established. As Mr Couper QC submitted, Mr Kuhne would have been theoretically entitled to claim against the defendant damages calculated by reference to the amount paid to the electrician to move the lights. Nor do I accept that the defendant did not tie back or pull back the curtains because Ms Harmston understood Mr Kuhne to have directed her not to do that. I do not believe that Mr Kuhne gave such a direction. It would have been an unusual thing to say and inconsistent with the normal expectation that some steps would be taken by those installing the curtains to make sure they did not come into contact with the lights. Even if the defendant was of the view that an electrician might be available to change the light fittings and brackets on that day that still does not provide an excuse for not taking steps either to tie back or draw back the curtains or, as Mr Humphrey said was desirable, to take them back down.
- The evidence as to the cause of the damage came from a Mr Fechner and I can see no reason to ignore his conclusion that the fire damage to the house was caused by a light in contact with the curtain being accidentally switched on and left on. This was the risk which proper performance of the contract was designed to avoid and was one that the plaintiffs established was a cause of their loss even if it may not have been the sole cause.[4]
Is a defence of contributory negligence available?
- The defendant sought to argue, in reliance on s 10 of the Law Reform Act 1995, that the plaintiffs’ claim should be reduced for their contributory negligence. That defence applies only if the claimant suffers damage partly because of the claimant’s failure to take reasonable care and partly because of the wrong of someone else where “wrong” is defined in s 5 to mean, relevantly, an act or omission that “amounts to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort”. In my view, a duty to achieve a purpose or result pursuant to the warranty implied by s 74(2) of the Trade Practices Act is not a contractual duty of care concurrent and co-extensive with a duty of care in tort.[5] There is a difference between a failure to exercise reasonable care and skill in carrying out work and a failure to supply what was contracted for.
- This cause of action also arose before the amendment to the Trade Practices Act made by s 82(1B) permitting contributory negligence to be raised in response to a claim for damages under s 82.
The counter-claim
- There was a counter-claim by the defendant based on allegations that Mr Kuhne assumed responsibility for coordinating and directing contractors providing services in the course of the building work and directed the defendant in respect of its work. An implied term was alleged that the plaintiffs would ensure that other contractors’ tasks would be carried out promptly and competently and that, if the plaintiffs directed the defendant to carry out work in a particular way, that the plaintiffs would ensure that the defendant’s compliance with that direction did not expose the defendant to legal liability.
- The counter-claim also alleged, for example, that Mr Kuhne failed to ensure that when the lights were installed curtains could be designed to incorporate cut-outs accurately to accommodate the lights and to ensure that they were fixed in positions previously indicated to the defendant. It also alleged a duty of care in tort that the plaintiffs would ensure that other contractors’ tasks would be carried out promptly and competently and that if the plaintiffs directed the defendant to carry out work in a particular way that the plaintiffs would ensure that the defendant’s compliance with that direction did not expose the defendant to legal liability.
- The evidence was that the builder engaged by the Kuhnes was responsible for the supervision and coordination of the tradesmen on site and I do not accept that it has been established conclusively that Mr Kuhne directed that the position of the lights was to be ascertained by the process of having an electrician hold the light up against the wall. Even if he did it is clear that the mistake in measurement that occurred could not have been caused by that expedient because the cut-outs did not align with the brackets which were in place when the measurements were made.
- The alleged duty of care in tort is not one that should be treated as governing the parties’ relations when they have sought to regulate them by contract. The alleged implied term does not meet the normal tests for implication of such terms, and, as was submitted for the plaintiffs, attempts to create a liability regime contrary to s 74 of the Trade Practices Act. That submission seems to me to be correct and the admittedly adventurous counter-claim was not pressed vigorously by Mr Atkinson for the defendant in his oral argument.
Decision and orders
- Accordingly, there should be judgment for the plaintiff in the agreed sum of $285,532.62. Interest to the first day of the trial, 3 November 2008, was agreed at $93,344.91 plus a further daily rate of $78.23 from and including 4 November 2008. There will be judgment for $392,802.47. I shall hear submissions as to costs.
Footnotes
[1]See T1-84 ll.15-41.
[2] See T1-106 ll.33-34.
[3] See T1-118 l.13.
[4] See Simonius Vischer & Co v Holt and Thompson [1979] 2 NSWLR 322, 346; Wylie v The ANI Corporation Ltd [2000] 1 Qd R 320, 332–333 and Kim v Cole [2002] QCA 176 at [3]-[4], [21]-[23].
[5] See BHP Coal Pty Ltd v O & K Orenstein & Koppel AG [2008] QSC 141 at [477]-[479] and Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384, 434-435.