1
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SIMONS vEUREKA OPERATIONS PTY LTD TRADING AS COLES EXPRESS(Civil Dispute) [2017] ACAT37
XD 1080/2016
Catchwords:CIVIL DISPUTE – damage to car duco after taking car through carwash – whether the respondent breached the implied term that the carwash would be fit for purpose so that it would not damage any vehicle going through the carwash
Tribunal:Senior Member J Lennard
Date of Orders:12 May 2017
Date of Reasons for Decision:12 May 2017
AUSTRALIAN CAPITAL TERRITORY)
CIVIL & ADMINISTRATIVE TRIBUNAL)XD 1080/2016
BETWEEN:
GARY SIMONS
Applicant
AND:
EUREKA OPERATIONS PTY LTD TRADING AS
COLES EXPRESS
Respondent
TRIBUNAL:Senior Member J Lennard
DATE:12 May 2017
ORDER
The Tribunal orders that:
1.The application is dismissed.
………………………………..
Senior Member J Lennard
REASONS FOR DECISION
Material facts
1.The applicant owns a Ford motor vehicle manufactured in 2009. It is ‘black pearl’ in colour. The applicant gave evidence that the colour requires a high level of maintenance and frequent washing to ensure the exterior of the car looks at its best.
2.The respondent operates a petrol station in Dickson ACT and an automatic carwash which is located at the petrol station.
3.On 24 November 2015 the applicant took his car through the automatic carwash operated by the respondent.
The application
4.The applicant alleges that the exterior surface of the car was damaged by the chemicals used in the carwash and that as a result the car has lost colour – the roof is almost white and other areas have faded to grey.
5.The application is for damages for breach of contract. The applicant made submissions that there was an implied term of the contract that the car would not be damaged in the carwash. The Tribunal accepts that it is a term of the contract that the carwash would be operated, properly maintained and regularly serviced, such that any vehicle going through the automatic carwash would not be damaged as a result of the wilful or negligent failure to maintain.
6.The respondent denies liability for breach of contract and says: the automatic carwash was at all times appropriately maintained; that no harmful chemicals were used in the automatic carwash; and that the car exhibited no evidence of damage that could have been caused by the operation of the automatic carwash.
The evidence before the tribunal
7.The applicant gave evidence that soon after taking the car through the automatic carwash, he noticed that there appeared to be marks or swirls on the roof of the vehicle. He had thought that it had not been properly rinsed in the carwash and he immediately hosed the car down. He returned to the carwash, where the manager took photos. The respondent produced a copy of an email from the applicant to the respondent, dated 27November 2015. In that email the applicant stated that he “went through car wash came out with scratch marks swirls hazing and chips all over bonnet roof and boot and stains.”
8.The applicant produced one photograph showing the car prior to going through the automatic carwash and three photographs allegedly showing the condition of the car at some time after it had been through the automatic carwash. The applicant gave evidence that the photos had been taken on 27 November 2015. These three photographs are not of any great assistance to the Tribunal as they do not clearly identify the damage complained of. There is no evidence of the alleged scratch marks, swirls, hazing or chips all over the bonnet and roof. TheTribunal also had before it other photos taken in mid-2016 after the car had been detailed in the damage had reappeared.
9.Three witnesses called by the applicant gave evidence as to the condition of the vehicle before and after it had been through the automatic carwash on 25November 2015. Another witness gave evidence that her vehicle had suffered similar damage at the respondent’s automatic carwash. Each supplied a written statement and gave oral evidence at the hearing.
10.Marietta Rudolph gave evidence that she had taken her own car through the same automatic carwash and that she had noticed the next day that the hood of her car was cloudy and patchy with swirl marks. She gave evidence that she had made no complaint to the respondent; that her car had soon thereafter been damaged in a car accident and needed repair to the damaged areas; that she had spoken to the applicant about this damage and that he had told her that he had had the same experience at the automatic carwash. Her evidence was not clear in relation to the timing of her conversations with the applicant, though it did appear that she alleges she had spoken to him on 12November 2015 about the damage to both her vehicle and his vehicle. The evidence of the applicant is that he did not take his vehicle through the automatic carwash until 25November 2015.
11.Darren Heffernan, George Dordevic and Marcus Eagles each gave evidence in similar terms: that the applicant’s black Ford Falcon was always in perfect condition;that the applicant took great care of his car; and that the applicant had told them that the car had been damaged in the automatic carwash and now had smudge marks with scuffs and discolouration evident on the duco. In cross examination each of these three witnesses conceded that the applicant had written the statements provided to the tribunal after conversations with the witnesses; and that the applicant had drawn the damage on the vehicle to their attention in the days and weeks following 25 November 2015.
12.The applicant produced no evidence of the actual damage alleged to have been caused to his vehicle, except the photographs and the witnesses which stated that the colour had faded and that smudge or swirl marks were now evident on the vehicle. The applicant provided a quote for repairs from Marko Body Repairs Pty Ltd, dated 27 November 2015 in the amount of $4017.86. The quote does not include a report as to why the repairs are needed, nor is there any assessment by Marko Body Repairs of the cause of any damage to the vehicle.
13.The respondent engaged Alfonso Carbone, an assessor employed by Assessing Sydney Vehicles to examine the vehicle following the complaints of the applicant. In his written report the assessor stated:
...in my experience in this industry. This is a case of material breakdown (fading) which does not show overnight, this is lack of maintenance, damage from sun. … poor previous repairs carried out on l/h/r panel, ripple and heavy sink back…. In my opinion vehicle is in below average condition with poor repairs done, unrepaired damages to l/h/f door and r/h/r qtrand rear bumper bar.
14.Alfonso Carbone gave oral evidence that in his view the base coat colour had been affected by fading, but that the clear topcoat was relatively undamaged. In his experience, chemical damage would penetrate the clear top coat. He identified some stone chips on the vehicle which he said had rust which would indicate that they were pre-existing damage and is not caused by the automatic carwash. Mr Carbone gave evidence that he did not identify any scratch marks either in straight lines or swirls on the surface of the vehicle.
15.Sandro Barilaro, a technician who regularly serviced the automatic carwash at Coles Express Dickson, gave evidence that he had, since April 2015, performed routine maintenance and repairs to the carwash at the respondent’s premises. He gave evidence that he was not aware of any fault or need to repair the carwash that could have caused the damage the applicant alleges that his vehicle sustained. In his written report, he stated that the brushes used in the carwash are made from quality chamois material and the products used (foam, shampoo, wax and rinse aid) are not harsh or corrosive. The carwash had been replaced in January 2016 – Mr Barilaroalso stated that this was part of a planned upgrade and not as a result of any fault needing repair in the automatic carwash.
16.After hearing evidence the Tribunal adjourned for a written decision and made directions that each party provide written final submissions: the applicant by 22February 2017 and the respondent by 8 March 2017. The respondent filed written submissions on 8 March 2017. The Tribunal extended the date forthe filing of final submissions by the applicant to 21 March 2017. Neither the applicant nor the applicant’s solicitor has filed any submissions.
17.The respondent’s final written submissions are summarised as follows:
(a)It is conceded that the contract between the parties contained an implied term that the carwash would be fit for the purpose and not cause damage to the vehicle. The respondent denies any breach of that term.
(b)It was incumbent upon the applicant to prove not only his loss, but that his loss was caused by a breach of the relied upon implied term. Neither the Marko Body Repairs estimate, nor any of the applicant’s oral or witness statement evidence provided any basis upon which the Tribunal could find that any damage was suffered by the car.
(c)Photographs tended by the applicant were inconclusive as to whether any fading had occurred. Even if fading had occurred on the car since 25 November 2015, there is no evidence to suggest that the fading was a result of any physical damage or chemical damage caused by theautomatic carwash. The applicant conceded that his motor vehicle was regularly parked outside in his driveway. MrCarbone gave evidence that fading is a side effect of sunlight exposure and so the Tribunal cannot be satisfied on the balance of probabilities that any fading identified was caused by the carwash.
(d)The evidence of Mr Heffernan, Mr Dordevic, and Mr Eagles should be accorded little weight as it is of no probative value. Their evidence amounted to little more than the applicant always took good care of his car and that he told them that it had been damaged in the carwash.
(e)Ms Rudolph’s evidence was that she suspected that her car had been damaged in the carwash, and that she had made no contemporaneous complaint to the carwash and that she had not noticed any fading of any part of the vehicle in the time since November 2015.
(f)The applicant had produced no evidence from Markos Body Repairs as to the likely cause of the damage.
(g)Mr Carbone assessed the applicant’s car on 21 December 2015 and is the only qualified motor vehicle assessor whohas done so. He found thepre-existing state of the applicant’s car to be of a low to average condition, and noted the presence of stone chips which suggested they were present for longer than one month since the vehicle had been taken through the carwash.
Conclusions
18.The applicant’s claim is for breach of the contractual term that the carwash would be fit for the purpose.That is, that the carwash was properly and regularly maintained so that it would not damage any vehicle being put through the automatic carwash process. The applicant bears the onus of proof. The applicant must produce evidence to satisfy the Tribunal, on the balance of probabilities, that there was a breach of contract, that the vehicle was damaged and that the cause of that damage was the breach of contract. The applicant has failed to discharge the onus.
19.On the evidence before me I am not satisfied that the vehicle sustained damage from the automatic carwash process on 25 November 2015. If I am wrong in this and the vehicle has suffered from colour fading, I am not satisfied that the automatic carwash process caused this fading or that the fading was not caused by sun damage.
20.The application is therefore dismissed.
………………………………..
Senior Member J Lennard
HEARING DETAILS
FILE NUMBER: / XD 1080/2016PARTIES, APPLICANT: / Gary Simons
PARTIES, RESPONDENT: / Eureka Operations Pty Ltd trading as Coles Express
COUNSEL APPEARING, APPLICANT / N/A
COUNSEL APPEARING, RESPONDENT / N/A
SOLICITORS FOR APPLICANT / Mr J Horniblow
SOLICITORS FOR RESPONDENT / Bradley Allen Love Lawyers
TRIBUNAL MEMBERS: / Senior Member J Lennard
DATES OF HEARING: / 8 February 2017
1