Beauty-Thru-Nature Skin & Laser Clinic v Aqua One Australia Pty Ltd [2015] QCAT 465

CITATION: Beauty-Thru-Nature Skin & Laser Clinic v Aqua One Australia Pty Ltd [2015] QCAT 465 PARTIES: Beauty-Thru-Nature Skin & Laser Clinic (Applicant) v Aqua One Australia Pty Ltd ABN 64 097 108 971 (Respondent) APPLICATION NUMBER: MCDO1459-15 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 2 October 2015 HEARD AT: Brisbane DECISION OF: Member McLean Williams DELIVERED ON: 15 October 2015 DELIVERED AT: Brisbane ORDERS MADE: The Application is dismissed. CATCHWORDS: Minor Civil Dispute – Applicant sustained water damage to premises after aged water cooler housing failed – Applicant contends that water cooler negligently repaired by Respondent 17 days prior to it bursting by reason that cartridge housing not also replaced at time of that repair - Circumstances of factual dispute regarding scope of repair instructions APPEARANCES and REPRESENTATION (If any): Applicant: Mr John Clifford & Ms Metro-Dora Clifford Respondent: Ms Kelvie Morris REASONS FOR DECISION [1] In an Application for Minor Civil Dispute filed on 7 July 2015, the Applicant, Beauty-Thru-Nature Skin & Laser Clinic, claims the sum of $24,957.53 from the Respondent, Aqua One Australia Pty Ltd (‘Aqua One’). -- 1 of 7 -- 2 [2] The Applicant conducts business from premises at Alderley. Within its premises is an under-sink water cooler, complete with filtration unit, supplied and serviced by the Respondent. [3] On Monday 5 January 2015, employees arrived at the beauty clinic only to discover that approximately three quarters of the ninety square metres of the premises were awash with water. Further investigation revealed this water to be leaking from the back of the aforesaid water cooler. [4] The Applicant now seeks the sum it has claimed before QCAT as compensation for various costs, losses, and property damage sustained by it, all in consequence of this water leak. A full break-down of the claim is as follows: Loss of income due to cancellation of clinic clients for one week, due to water damage: $2,500.00 Staff wages for those involved in the clean up: $244.63 Estimated loss of net profit during closure to allow for repair works @ $625 per day: $4,375.00 Fees paid to the “Claim Assistance Bureau” for professional advice and preparation of the scope of remediation works: $1,069.20 QCAT application fee: $305.00 Builder’s repair quote: $16,463.70 Total claim: $24,957.53 [5] The water cooler at the centre of this dispute is an Aqua One ‘D5C’ water cooler, manufactured in Korea in 2002. [6] On Tuesday, 9 December 2014, Ms Metro-Dora Clifford, who is one of the principals of the Beauty-Thru-Nature Skin & Laser Clinic arrived at the Alderley premises and discovered a shallow pool of water in the reception area, near to where the water cooler is located. By the time of her arrival, staff that had arrived earlier that day had already identified the leak as emanating from the water cooler. Ms Clifford then telephoned Aqua One and spoke to a lady by the name of Kate. Ms Clifford says that she told Kate to send a repairman out to her premises and for the repairman to do whatever was necessary in order to fix the leak. Ms Clifford was adamant in saying that she was very clear in giving an instruction that the Respondent were to take whatever steps were necessary, and no matter what the cost, in order to ensure that the leak was repaired and that it did not re-eventuate. [7] On 17 December 2014 an Aqua One service technician, Mr Matthew Valentine, attended at the Applicant’s premises and repaired the water -- 2 of 7 -- 3 cooler, by replacing the plastic water supply lines. These had become brittle, and hence the reason why the unit was leaking. Beauty-Thru- Nature Skin & Laser Clinic then continued to use the water cooler between the date of Mr Valentine’s repair and 3 January 2015, without the unit leaking any further. [8] Beauty-Thru-Nature Skin & Laser Clinic closed on Saturday 3 January 2015 and did not re-open again until Monday, 5 January 2015. On arrival that Monday staff discovered that approximately three quarters of the clinic was by now awash with water, in some places more than 1 centimetre deep. Investigations revealed water to be spurting from the recently repaired cooler, yet this time through a split in the filter housing. Substantial damage was caused to the premises. [9] Factually, there is no dispute between the Applicant and the Respondent that the source of the leak in the water cooler that was discovered on 5 January 2015 was a burst in the plastic filter housing. There is no suggestion that the leak that appeared between 3 January and 5 January 2015 emanated from the water lines that had been replaced by Mr Valentine 19 days previously, on 17 December 2014. [10] The Applicant contends that the Respondent has been negligent because the Respondent was aware of the advanced age of the filter housing, yet failed to also replace the filter housings when Mr Valentine attended their premises that day. As part of that, Ms Metro-Dora Clifford points to the instruction that she says was given by her by telephone when she spoke to Kate on 9 December 2014. At that time, Ms Clifford says that she told Kate that the Respondent’s on-site repairman should “do whatever is necessary” so as to ensure that the water cooler would never leak again. [11] As part of the Applicant’s case oral evidence was received from a Beauty- Thru-Nature staff member who claimed to be present when Mr Valentine came to the Alderley clinic on 17 December 2014. Her evidence was that she greeted Mr Valentine when he arrived and he told her that he had already been informed regarding what he was supposed to be doing. She then left Mr Valentine to get on with it. Further evidence was adduced by the Applicant in the form of a statutory declaration dated 1 October 2015 from an Ms Vanessa Fernandes, who is another employee of Beauty- Thru-Nature. Ms Fernandes’ evidence was that she had been standing next to Metro-Dora Clifford when she had originally telephoned Aqua One on 9 December 2014. In part, in that statutory declaration Ms Fernandes says: “When Metro arrived at the clinic, she rang Aqua One asking them to do something about the leakage. She was repeating herself a few times, she really wanted someone to come and fix the problem so that it would not happen again.” [12] In my view, this evidence does not specifically confirm that Metro-Dora Clifford instructed Aqua One to do whatever was necessary, to ensure no -- 3 of 7 -- 4 further leaks, and no matter what the cost. This evidence from staff members of the Applicant is, at best, equivocal evidence. [13] Ms Kelvie Roselle Morris represented aqua One. The Respondent’s case was presented predominantly in documentary form. In this regard, Ms Morris had previously provided an affidavit sworn by her on 18 August 2015 (filed before the Tribunal on 24 August 2015). According to that affidavit, the D5C unit was sold to the Applicant on or about 1 December 2002. [14] As part of its business procedures the Respondent maintains service and contact records that record various communications with clients. The service and communication record for this particular unit appears as Appendix “A” to Ms Morris’ affidavit. These reveal that another Aqua One filter unit was sold to the Applicant on or about 31 January 2003 for use in other premises, operated under the name “Natural Difference”. [15] The record also reveals that on or about 21 February 2011 the Applicant reported to the Respondent that one of its two filter units was not operating correctly and that the other had burst its filter housing (after nine years in service). At that time the Respondent provided the Applicant with a quote to upgrade both units. Yet, on 9 March 2011, a representative from the Applicant advised the Respondent by telephone that parts from the two units had been blended together in order to make one operational water filter, and that no further assistance was required from the Respondent at that stage. [16] On 3 December 2012, ten years after the purchase of the original unit, the respondent sent the applicant a standard upgrade letter recommending that the filter housings be replaced. A copy of this proforma letter now appears as Appendix “B” to Ms Morris’ affidavit. That letter is an advisory letter and warns Aqua One customers that filter housings are prone to degrade over time, and that the housing should be replaced after approximately 10 years. [17] The service records also reveal that on 9 December 2014 Metro-Dora Clifford telephoned the Respondent to advise that her unit was leaking. That call was initially taken by Kate, who left a message for Kelvie Morris to telephone Metro Clifford in order to make arrangements for a field technician to look at the leaking unit. [18] In her affidavit, Ms Morris says that she clearly recalls that subsequent telephone call and recalls advising Metro-Dora how old the unit was and recommending that it be replaced, yet Metro-Dora instructed her not to replace the housings, but just to fix the leak. Clearly, that evidence is contrary to the evidence given before the Tribunal by Ms Metro-Dora Clifford. [19] On 17 December 2014 Mr Matthew Valentine attended at the Alderley premises of the Applicant to fix the reported leak. Mr Valentine’s field -- 4 of 7 -- 5 service notes were later typed into the contact records maintained by the Respondent, and these reveal: “Serviced today - invoice posted - fixed leak - was told not to change housings - just fix the leak.” [20] Although Mr Valentine was not called to give any oral evidence before the Tribunal a statement obtained from him and dated 3 March 2015 was previously filed before the Tribunal, and is attached as Appendix “C” to the affidavit sworn by Ms Morris. The Applicant did not require Mr Valentine for cross-examination, despite it having advance notice of the substance of his evidence. [21] In his statement, Mr Valentine says that he attended at the Applicant’s beauty clinic on 17 December and he inspected the water cooler and, after a few minutes, identified that water was leaking from the supply line. He then explained to a female staff member of the Applicant the nature of the problem and advised that the water lines would need to be replaced. Mr Valentine says that he also checked the condition of the water filters and told that staff member that these would require replacing, and that he also pointed out to her the age of the filter housing. Despite that, Mr Valentine says he was advised to only replace the line and the filter cartridges and not to bother with replacing the housing. Before Mr Valentine left the premises he conducted a test of the unit and found it to be operational without any leaks. [22] Mr Valentine also observed that the two housings on the filter on the unit he had serviced were from two different models. One of the units had a double-ribbed housing, yet the other had single-ribbed housing. Mr Valentine inferred from this that one of the filter housings had been salvaged from another system, yet that both of the housings were at least 10 years old. In part, in his statement, Mr Valentine says: “I am aware of the incident which took place on or about 5 January 2015. This resulted from a split in the casing of the left-hand filter housing and had nothing to do with any of the parts that I replaced or repaired on 17 December 2014. In my opinion the casing split because of age and general deterioration. I have viewed the video recording provided by the claimant and it clearly shows the casing has burst. It has not come away from its thread and it has not been caused by over or under tightening or been cross-threaded. Bursting has resulted from water pressure within the system acting on the plastic which deteriorates over time through flexing, water hammer and water pressure. A weak point is created usually in the thinnest part of the casing, being within the thread, which in this case is just above where the burst has occurred. …/ -- 5 of 7 -- 6 It is not possible to tell when a casing may burst but my experience is that they are prone to do so as they get old and used. Because of this it is recommended all housings be replaced after 10 years of use along with the pressure-limiting valve and I was aware the claimant had been advised to replace the casings but chosen not to do so. …/ I do not believe the casing failed due to a manufacturing fault. It was due to usage and age.” [23] The Applicant has framed its claim in negligence. The Applicant contends that, because the Respondent had sent out an advisory note in 2012 recommending that filter housings be replaced after ten years they were effectively on notice as to the risk that the filter housing might burst and leak. Equally, the applicant contends that the instruction given by Ms Metro-Dora Clifford on 9 December 2014 was resolutely clear, and these required the respondent to take whatever steps were necessary in order to ensure that the leaking water filter would never leak again. Inferentially, that must have included a requirement that the Respondent also replace the aging filter housings, during the opportunity presented during the service call on 9 December 2014. [24] Yet, Ms Morris says that when she spoke to Metro-Dora Clifford on the telephone on 9 December 2014 the instruction given to her was a more confined one, and required that an Aqua One technician do no more than the minimum in order to fix the leak. Ms Morris says that she had recommended that the filter housing be changed yet she was told just to fix the leak. Ms Morris told the Tribunal that if her customer had said to her to “take whatever steps were necessary, no matter the cost” then she would quite happily have arranged for the replacement of the entire unit, because this would have been far more profitable for Aqua One. Mr Valentine’s evidence is similar, as he was also told not to replace the filter cartridge housings. In relation to the competing accounts as to what was specifically said as between representatives of the Applicant and representatives of the Respondent on each of 9 December and 17 December 2014, I now prefer the evidence given before the Tribunal on behalf of the Respondent, given it is supported by contemporaneous notes made at the time. [25] In my view, the Applicant’s claim must fail. Aqua One records reveal that the Applicant had been sufficiently advised in relation to the risk of aged filter housings failing through deterioration. Despite advice from the Respondent regarding the need to replace the filter housings, the Applicant nonetheless declined the opportunity to replace them. Equally the contemporaneous communication records maintained by Aqua One confirm that a more limited instruction was given to office staff of the Respondent than that which is now asserted by the Applicant. Nor has the Applicant adduced any evidence to effectively refute the evidence contained in Matthew Valentine’s statement, despite this having been filed before the Tribunal on 24 August 2015. -- 6 of 7 -- 7 [26] In light of the Applicant having acted contrary to advice it had previously received from Aqua One regarding the need to replace the filter housings, the Applicant assumed full responsibility for any adverse consequences that may arise from the aged filter housings subsequently bursting. [27] The application is dismissed. -- 7 of 7 --