General division case study

Under the Consumer Claims Act 1987 there are provisions relating to the supply of goods or services.  In every contract there is an implied warranty that the services will be supplied with due care and skill.

A husband engaged a removalist to move the family’s furniture to their new home located 10 kilometres away.  When he booked the removalist service, the husband asked about their damage policy.  He was told the removalist company's policy was that they guaranteed to repair or compensate any damage caused during transit.

The removalist arrived on the day and loaded the family's furniture on the truck.  However, the truck broke down in transit in the middle of a busy intersection and a second truck had to be called.  The furniture was then transferred to the second truck.  When the truck arrived at the new premises, it was discovered that the leather couch, a marble-top table and a mirror had been badly damaged.
The removalist company then denied any liability for the damage, and the husband then lodged an application to the CTTT for orders that the removalist company either repair the damaged goods or pay them $12,000 compensation.

At the CTTT hearing the husband supplied photos of the damaged furniture, and copies of the booking confirmation and other correspondence from the removalist company.  He also supplied quotes for the repair and/or replacement of the damaged goods.  The removalist stated that the damage most likely occurred when the goods were being moved to the second truck given the difficult location.  He then tendered the company's documentation containing a number of exclusion clauses one of which stated they were not liable for any damage in the event that goods are transferred from a broken down truck to a second truck.  A further exclusion clause stated that the company were not liable for any damage caused if the owner is not present at the time the damage occurred.

The Tribunal Member considered the evidence of both parties and found that in any contract under the Trade Practices Act 1974 there is an implied warranty of due care and skill which cannot be excluded, restricted or modified. The Member found that the removalist had failed to exercise due care in the removal and carriage of the family's goods and as a result certain items were damaged.  Orders were made for the removalist to pay $6,000 compensation for the damaged goods.