Gliderol International Pty Ltd v Skerbic and McCormack and Sheridan t/as Sheridan Garage Doors [2009] ACTCA 16

BETWEEN: GLIDEROL INTERNATIONAL PTY LTD

Appellant

AND: REBECCA MARGARITA SKERBIC

First Respondent

AND: PATRICK MARTIN McCORMACK

Second Respondent

AND: BRYAN JOHN SHERIDAN T/AS SHERIDAN GARAGE DOORS

Third Respondent

ORDER

Judges: Refshauge, Penfold and Cowdroy JJ

Date: 23 October 2009

Place: Canberra

THE COURT ORDERS THAT:

(i) The appeal be allowed and the Master’s orders set aside.

(ii) Leave is given for Ms Skerbic to file and serve a written election for a remedy in negligence or a remedy under the Trade Practices Act 1974 (Cth) by 30 October 2009.

(iii) Leave is given for all parties to file and serve written submissions by 13 November 2009 as to the final orders to be made.

(iv) The parties may apply to the Court for leave to make oral submissions as to the final orders to be made.

IN THE SUPREME COURT OF THE ) No. ACTCA 51 of 2007

) No. SC 120 of 2001

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: GLIDEROL INTERNATIONAL PTY LTD

Appellant

AND: REBECCA MARGARITA SKERBIC

First Respondent

AND: PATRICK MARTIN McCORMACK

Second Respondent

AND: BRYAN JOHN SHERIDAN T/AS SHERIDAN GARAGE DOORS

Third Respondent

Judges: Refshauge, Penfold and Cowdroy JJ

Date: 23 October 2009

Place: Canberra

REASONS FOR JUDGMENT

1. The appellant (“Gliderol”) appeals from the decision of Master Harper delivered in the Supreme Court of the Australian Capital Territory on 23 November 2007 (Skerbic v McCormack & Ors [2007] ASTSC 93) in an action brought by Rebecca Margarita Skerbic (“Ms Skerbic”) against Gliderol, Ms Skerbic’s landlord, Patrick Martin McCormack (“Mr McCormack”), and Bryan John Sheridan trading as Sheridan Garage Doors (“Mr Sheridan”).

2. The Master’s orders were as follows: (i) Judgment be entered for [Ms Skerbic] against [Gliderol] in the sum of $84,000.00. (ii) Judgment be entered for [Mr McCormack and Mr Sheridan] in the action. (iii) Judgment be entered for [Mr Sheridan] in [Gliderol’s] claim for contribution. (iv) The action be stood over to a date to be fixed for submissions as to costs.

3. A costs order was subsequently made as follows: (i) [Ms Skerbic] pay the costs of [Mr McCormack] agreed in the sum of $18,000.00. (ii) [Gliderol] pay [Ms Skerbic’s] costs of the action, those costs to include an amount of $2,000 being part of the costs incurred by [Mr McCormack]. (iii) [Gliderol] pay the costs of [Mr Sheridan] of the third party claim and of the action. (iv) [Ms Skerbic] pay to [Mr Sheridan] the difference between [Mr Sheridan’s] costs as between solicitor and client subsequent to 25 May 2007, and [Mr Sheridan’s] costs as between party and party subsequent to that date.

4. In this appeal Gliderol seeks the following orders: (i) Appeal allowed with costs. (ii) Judgment in favour of [Ms Skerbic] in the sum of $84,000.00 be set aside and there be in lieu thereof judgment for [Gliderol]. (iii) Alternatively, judgment in favour of [Mr Sheridan] against [Gliderol] be set aside and in lieu thereof there be an order for contribution in such sum as the Court considers just. (iv) Order for costs below be set aside and in lieu thereof there be a costs order in favour of [Gliderol].

5. There was no challenge to the quantum of damages awarded. Facts

6. Gliderol is a manufacturer and supplier of roller doors. It is a corporation based in Adelaide and has branch offices in locations outside South Australia but not in Canberra. Mr Sheridan, who trades under the business name of Sheridan Garage Doors, was at all relevant times Gliderol’s sole distributor in Canberra of Gliderol roller doors. Mr Sheridan had been installing roller doors since 1979 and by 1992 his sons had taken over the operation of the business. Mr Sheridan trained his sons and passed on his skills to them and although he is no longer personally engaged in the installation of roller doors he remains the principal of the business.

7. During 1997 a substantial medium-density development of residential apartments known as Belmont Apartments was built at Mawson. Mr Sheridan successfully tendered for the installation of garage doors in the apartment complex, including arranging for the purchase of doors from Gliderol and delivery to the site of such doors.

8. At approximately 8:15 am on 8 December 1999, Ms Skerbic, who resided at unit 57 in the Belmont Apartments, raised the Gliderol roller door for her garage to enable her husband to remove their car from the garage. She waited beneath the door during this operation so that she could close the door and re-lock it after her husband had removed the car. While she was standing under the door, one of the brackets supporting the door came away from the surrounding brick wall. The door fell, striking her on the head and causing personal injury. She sued in the Supreme Court of the Australian Capital Territory claiming negligence and a breach of s 75AD the Trade Practices Act 1974 (Cth) (“the Trade Practices Act”) against Gliderol and also claiming negligence against Mr Sheridan.

9. The Master found that each garage door had been delivered to the site of the Belmont Apartments with two steel brackets; a small bag of hardware including coach screws, nuts, U-bolts and washers; and a four-page printed set of installation instructions (“the instructions”). The instructions contained the following wording: Your GLIDEROL ROLLER door is designed to highest [sic] engineering standards and manufactured from high quality materials. If it is installed in accordance with the instructions given in this folder it will give many years of service with a minimum of maintenance.

The instructions, described as “step by step” on the cover page, specified each stage for the installation of the roller door.

10. Step 1 provided directions concerning the measuring of the overlap of the door on each side of the door opening and step 2 relevantly provided: Firmly secure one of the support brackets with coach screws (in timber) or masonry anchor plugs (in brick) in the position shown in the diagram.

11. The remaining four steps specified the procedures for the installation of the second support bracket, the fixing of guide rails on each side of the door opening to guide the roller door in its operation, and the final stages for the installation.

12. The steps were set out across a double page, with steps 1 to 4 across the top of the double page and steps 5 and 6 at the bottom of the left-hand page. Each step was enclosed within broken lines which divide the pages, not in any symmetrical way but apparently by reference to the space needed for the text and diagram for each step.

13. On the right hand page facing step 6 were four other spaces enclosed by broken lines. These contained material as follows: · Text and a diagram headed “ADJUSTING SPRING TENSION”, which included the words “WARNING” and “IMPORTANT”. · Text headed “LOCK OPERATION”, including the words “WARNING: REMOVE KEY BEFORE LIFTING DOOR”. · Text relating to the fixings to be used in the installation of the door, which contained no headings and no capitalised words except “GLIDEROL ROLLER”. That text is described in more detail below (at [14]). · Gliderol’s name and address.

14. The text relating to fixings, which as described above was separated from any of the successive steps for installation, was as follows: Coach Screws are the standard fixing supplied with the GLIDEROL ROLLER Door. If masonry fixing is required the Use of 10 mm Loxins (or similar): Use 16 mm masonry drill and 60 mm x 10 mm Hexagon Head Bolts are recommended for the brackets. For the guides use No. 20 Fibre Rawl Plugs (10 mm masonry drill) with 8 mm Coach Screws supplied.

For convenience, this instruction will be referred to as the “Loxin instruction”. A “Loxin” is the trade name of a steel mechanical anchor. A “Dynabolt” is the trade name of a similar kind of anchor.

15. Mr Sheridan’s sons, who performed the installation, used a 12 mm coach screw inserted into a plastic plug which was then placed into a hole drilled into the brickwork for fixing the bracket in question. The Master found (at [13]) of his decision that the bracket was fixed using a 10 mm diameter bolt. This appears to be an error, but nothing turns upon this discrepancy.

16. Mr Sheridan testified that the above method adopted for installation was the same as that used by him and that he had trained his sons to use that method. Mr Sheridan claimed that by 1997 his business was installing about 1,000 garage doors per year using such method and that none of the installations had previously failed.

17. Mr Richard Mons, an employee of Gliderol for more than 25 years, testified that plastic plugs were inadequate for the fixing of brackets in masonry. Since the brackets were load-bearing and bore the entire weight of the roller door, a Loxin or Dynabolt was required, as their strength was “infinitely greater” than that of a plastic plug.

18. Mr Andrew Montgomery, an engineer called by Gliderol, explained that the weight of the door on top of the bracket had the effect of pulling the upper bolt from the wall and of forcing the lower of the two fixing bolts into the wall. He considered that plastic plugs did not have the capacity to withstand such ‘pull out’ forces.

19. Dr Kevan Heathcote, an expert engineering witness also called by Gliderol, concurred with the expert evidence of Mr Montgomery that the use of plastic plugs to fix brackets to a brick wall was inadequate. The Master’s findings

20. The Master accepted the evidence of Mr Mons, Mr Montgomery and Dr Heathcote that plastic plugs were not suitable for use in the installation of the bracket, but were suitable for use in the fixing of the guide rails.

21. The Master found that the instructions provided with the Gliderol roller door were inadequate. Specifically, the Master found that step 2 did not contain any detail of the type of anchor plug to be used in brickwork, and that the Loxin instruction was contained in a different part of the instructions and was difficult to follow.

22. His Honour found (at [36]): It seems to me that if Gliderol had intended to convey to installers that metal anchor plugs rather than plastic anchor plugs were to be used in brickwork to secure the brackets, it would have been a very simple matter to say so in the wording for step 2. It would have been less effective, but could have been argued to be adequate, if wording to the same effect had been included in the box I have quoted from the foot of the third page of the instruction leaflet. It does not seem to me adequate to use the expression “Loxins (or similar)” if one intends to convey that it is essential that metal rather than plastic anchor plugs be used.

23. As to Mr Sheridan’s reliance upon the instruction leaflet used for the purposes of the installation of the door, his Honour found (at [37]): It does not seem to me to be any answer to the plaintiff’s claim for Gliderol to submit, as it does, that Mr Sheridan and his sons did not read the instruction leaflet each time they installed a door. It is clear from Mr Sheridan’s evidence that he had read the instruction leaflet and was familiar with its contents, and that he was generally familiar with changes in the leaflet over the years. I am satisfied that if the leaflet had contained adequate instructions, Mr Sheridan and his firm would have followed them.

24. Based upon such findings his Honour concluded in respect of the claim of negligence against Gliderol (at [38]): I am satisfied that Gliderol, as a manufacturer and supplier of garage roller doors, owed a duty of care to members of the public such as the plaintiff to provide installation instructions with its product which, if followed, would ensure safe operation. There was a foreseeable risk that the supply of inadequate instructions might result in garage doors being installed in an unsafe manner, and that this might lead to the collapse of a door causing injury. The duty extended to any member of the public who might be vulnerable to injury upon the collapse of a door. It did not and does not depend upon the injured person having any particular status such as purchaser of the door, tenant or resident. The inadequacy of the instructions amounted to a breach of Gliderol’s duty of care to the plaintiff.

25. As to the plaintiff’s claim pursuant to s 75AD of the Trade Practices Act, his Honour observed that there was no defect in the door as supplied. However his Honour found that the instructions supplied with the roller door were defective, stating (at [41]): The safety of the garage door, in its everyday use, was compromised by the fact that the manufacturer supplied it with inadequate installation instructions. An inadequately installed garage door represented a danger to the safety of persons using it or standing under it. It seems to me that the garage door must be taken to have had a defect for the purposes of s 75AC and s 75AD of the Act. It follows that the plaintiff is entitled to succeed against Gliderol on the statutory count. In the absence of any authority to the contrary, it seems to me that the measure of damages will be no different to the damages recoverable for negligence under the general law.

26. As to the liability of Mr Sheridan, his Honour observed (at [42]): There is no suggestion of any conduct on the part of the third defendant which was less than satisfactory, other than the use of plastic rather than metal anchor plugs for the installation of the brackets.

27. His Honour concluded (at [42]) that there was no negligence on the part of Mr Sheridan, finding as follows: There is nothing I can see in the catalogue capable of putting someone in the position of the third defendant on notice that there was any risk arising from the use of plastic anchor plugs in masonry to secure garage roller door brackets.

First ground of appeal: no negligence by Gliderol

28. Gliderol submits that step 2 of the instructions which referred to the use of coach screws in timber “or masonry anchor plugs” in brick did not comprise the whole instruction and that the Loxin instruction was a clear specification of the nature of the fixing required for brackets in masonry. Accordingly Gliderol submits that the Master erred in concluding that the instructions were inadequate.

29. Gliderol relies upon the evidence of Dr Heathcote who testified that a plastic plug had a very different application. Dr Heathcote deposed before the Master (at p 193 of the transcript): A Lockson [sic] actually engages the brickwork further into the brickwork. That’s why it can carry a much higher load. It has essentially a different tensile capacity, a different mechanism of tensile capacity than a plastic plug. A plastic plug basically works by expanding the plastic plug evenly throughout the length of the plastic plug. Whereas a Lockson engages the – the brickwork further in and therefore has a higher capacity. So it has a different – different mechanism.

Finding

30. In considering the submissions of Gliderol, the Court observes that step 2 of the instructions specified the use of ‘masonry anchor plugs’. The evidence of Mr Montgomery establishes that both plastic plugs and Loxins are ‘masonry anchor plugs’. However, the evidence of Mr Mons refers to a difference between a Loxin and a plastic plug, describing the former as a masonry anchor and the latter as merely a plug. It is accordingly unclear from the expert evidence whether a ‘masonry anchor plug’ includes a plastic plug. However, Gliderol’s evidence establishes that only a steel anchor was suitable for installation of the supporting bracket into masonry.

31. In view of the above evidence, the direction in step 2 of the instructions to use ‘masonry anchor plugs’ was inadequate to convey the essential procedure, although it should have alerted a reader to the fact that different arrangements were needed for installing the brackets in brickwork rather than in timber.

32. Although the instructions are described as “step by step installation instructions”, the Loxin instruction, which relates to step 2, is distinctly separated from the “step by step” procedure and follows after all other instructions have been set out. It is not clear why the Loxin instruction was located in a separate box on a different page of the instructions. Whether this was a deliberate attempt at graphic design that went wrong, or whether it reflected an afterthought dealt with where spare space happened to be available in the instructions, probably does not matter. The result was that what turned out to be an important part of the instructions was effectively obscured from all but the most persistent reader, particularly as there was no pointer to this additional information in step 2.

33. We do not consider that something akin to a “red hand pointing at it” was necessary to draw attention to the Loxin instruction, as Lord Denning did in Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 (at 170), but some further emphasis should have been placed on the Loxin instruction. This emphasis was essential in the context of the remainder of the instructions, which did highlight certain steps with capitalised letters and directions such as “WARNING”, “NOTE” and “IMPORTANT”. The Loxin instruction was not so highlighted, nor was there any reference to it in step 2, and its importance was therefore obscured within the broader context of the instructions.

34. Furthermore, as was found by Master Harper, the text of the Loxin instruction is difficult to comprehend. The problem appears to have resulted from some kind of typographical error as a result of which the words “Use 16mm masonry drill and 60 mm x 10 Hexagon Head bolts” have been dropped into the middle of a sentence that originally read “If masonry fixing is required, the use of 10 mm Loxins (or similar) are recommended for the brackets.”

35. Additionally, although both the Loxin instruction and step 2 distinguished coach screws from the other fittings mentioned (being masonry anchor plugs or “Loxins (or similar)”), neither drew a distinction between that other fitting and plastic anchor plugs of the kind used by Mr Sheridan. Certainly on the face of the instructions it was not clear that plastic anchor plugs were not covered by the reference to masonry anchor plugs.

36. Thus, the apparent attempt to draw attention to the instructions about Loxins has failed on three counts: first, it is not particularly effective to attract the reader’s attention in the first place; secondly, those readers who did focus on it would have found it incomprehensible without some careful deciphering; and finally, the reference to “Loxins (or similar)”, read in conjunction with the reference to “masonry anchor plugs”, did not explicitly exclude plastic anchor plugs.

37. In view of such findings, the Court considers that the Master’s finding relating to the misleading nature of the instructions was justified. The instructions were capable of inducing error: see Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; Keehn v Medical Benefits Fund of Australia Ltd (1977) 14 ALR 77.

38. The first ground of appeal is not made out. Second ground of appeal: no nexus between negligence and failure

39. Gliderol contends that even if this Court should uphold the Master’s findings relating to the inadequacy of the instructions, there was no nexus between such inadequacy and the manner in which the brackets were installed.

40. Gliderol claims that the evidence of Mr Sheridan relating to his reliance upon the instructions was vague and merely established that several years previously Mr Sheridan had read the instructions, that from that time Mr Sheridan had used plastic masonry plugs, and that he had trained his sons using the method he had used.

41. Gliderol submits that there is in fact no evidence that Mr Sheridan relied upon the instructions nor is there any evidence that his sons had ever read the instructions. Accordingly, Gliderol submits that the Master erred in concluding that there was a causal nexus between any inadequacy of the instructions and the failure of the bracket. Finding

42. Mr Sheridan testified that he recognised the instructions from the installation packs provided to him by Gliderol which he had used in 1997 and that he had installed doors in accordance with such instructions. Mr Sheridan testified that he had “used the same system all along” that he had had success using such system, and that he had taught his sons to install garage doors using that system. The transcript records the following evidence concerning Mr Sheridan’s reading of the instructions (at p 212): MR CAVANAGH: It would be fair to say, would it, Mr Sheridan, that after about 17 years of installing garage doors, up to 1997, that you didn’t feel the need to read any instruction booklet or manual provided by Gliderol each time you installed a garage door, did you?---Not after 17 years, I didn’t think so.

Indeed, it would have been a long while before 1997 that you ceased reading any instruction booklets from Gliderol, is that right?---They have changed these so we do look at them.

Well, you’re not aware when prior to 1997 you last looked at the instruction booklet that came in the little package with the door, are you?---I was - - -

You’re not aware, you can’t now remember when prior to 1997 you last looked at the instruction booklet that came with the coach screws and those things, are you?---This brochure?

Yes?---Was changed approximately 2000.

Yes, we’ve heard evidence of that, we accept that, what I’m asking you is just dealing with that brochure?---M’mm.

You’re not aware when prior to 1997 you would have last looked at that particular brochure, because you had been doing it for years and you didn’t feel the need to, is that right?---I wouldn’t see I would need the need [sic] but after the ‘90s I physically didn’t go out and install doors after then.

43. Mr Sheridan also gave evidence of his understanding of the instructions (at p 209 of the transcript): MR LUNNEY: Could I take you to Step 2, Mr Sheridan, I hope you’re able to read the instructions there, they don’t - do you see that?---Yes. Number 1 of Step 2 reads, “Firmly secure one of the support brackets with coach screws in timber or masonry anchor plugs in brick in the position shown in the diagram.” What did you understand masonry anchor plugs to mean in the context of that instruction?---I understood that to be the plastic plug system that we’ve always used. All right, and then going to Step 3, down the bottom of the page in the left-hand box, there’s a reference to, “Coach screws are the standard fixing supplied at” – et cetera, can you see that?---Yes. And half way through it says, “Use” - no, I’m sorry. The second sentence is, “If masonry fixing is required the use of 10 millimetre loxins, or similar”, and there’s no verb there, what did you understand the phrase, “loxins or similar”, to mean in there?---Well, the, “or similar”, I understood that to be the plastic system that we’ve used.

44. It was not suggested in cross examination by Gliderol that Mr Sheridan was untruthful in his evidence. Nor was it put to him that he had never read the instructions. Accordingly, the evidence before the Master established that, whilst Mr Sheridan may not have read the instructions before installing each door, he had carried out his installations in accordance with the instructions provided in installation packs in 1997 and that, because the instructions had changed, he looked at subsequent instructions.

45. The Court is satisfied that the above evidence, in particular Mr Sheridan’s unchallenged evidence that he thought the plastic plugs he was using were “masonry anchor plugs” and were covered by the reference to “Loxins (or similar)” was sufficient to justify the finding by the Master of a nexus between the inadequate instructions and the manner in which Mr Sheridan fixed the bracket.

46. The second ground of appeal is not made out. Third ground of appeal: any negligence was that of Mr Sheridan

47. Gliderol submits that Mr Sheridan, as the installer of garage doors, owed a duty of care to ensure that the door was safely installed. Gliderol submits that it is implicit in the Master’s finding that there was no negligence on the part of Mr Sheridan, that the door was safely installed because Mr Sheridan, using his own experience, considered that the manner of fixing was suitable. Gliderol submits that to justify Mr Sheridan being absolved from liability, it must follow that Mr Sheridan did not exercise his own skill or judgment but relied entirely upon the words used in the instructions. Gliderol submits that the evidence does not establish that Mr Sheridan placed such reliance upon the instructions.

48. Gliderol submits that Mr Sheridan held himself out to the building owner as an expert in the installation of garage doors. If the instructions were inadequate, then the installer must have been negligent since he failed to perceive that the instructions were inadequate.

49. Mr Sheridan submits that he was not negligent since his method of installation of Gliderol garage doors had been successful in thousands of installations over many years. Evidence, such as the instructions and trade brochures for Hilti products, showed that there were various means of attaching brackets to brick, masonry and concrete, including coach screws inserted into masonry plugs, which have in common a means by which the fastener used is inserted into a hole drilled into the material and grips the side of the hole by exerting a horizontal force against the side of the hole, thus resisting any “pull out” force. In view of the long period of successful installation, Mr Sheridan submits that his method was reasonable. Mr Sheridan also relies upon the finding of the Master that the Loxin instruction was inadequate. Findings

50. The evidence establishes that Mr Sheridan had installed Gliderol doors as agent of Gliderol in the Australian Capital Territory for many years. There is no evidence that Mr Sheridan installed roller doors for any other organisation. Nor is there any evidence that Mr Sheridan, or his sons, had the benefit of any engineering or similar training. The expertise of Mr Sheridan in the installation of garage doors has arisen solely from his experience based upon the instructions provided by Gliderol. Accordingly, Mr Sheridan did not posses any knowledge, independent of that provided to him by Gliderol, for the installation of Gliderol doors.

51. Independently, however, Mr Sheridan owed a duty of care to any person who might potentially suffer injury from a defective installation to ensure that the installation was secure. Mr Sheridan held himself out as an expert installer of Gliderol doors. For this purpose it was incumbent upon him to ensure that he had a thorough knowledge of the instructions provided by Gliderol and, to the extent that he could not make sense of those instructions and had no expertise of his own to bring to bear on the issue, to follow up any areas of uncertainty with Gliderol.

52. As has already been determined, the installation instructions provided by Gliderol were deficient. However as a professional installer of Gliderol doors Mr Sheridan should have carefully read all of the instructions, and should either have recognised that the prudent course required that Loxins be used for the installation of the bracket into masonry, or should have sought clarification from Gliderol. To a professional installer, it is immaterial that the warning was not included in the sequential or “step by step” stages specified in the instructions. Resulting from his engagement as a professional installer, a higher duty of care was imposed upon him than, for example, a layperson having no experience in such installation. Accordingly, Mr Sheridan has, by virtue of such failure, contributed to the door falling from the wall resulting in injuries to Ms Skerbic. It follows that both Gliderol and Mr Sheridan are severally liable for the whole of the damage suffered by the plaintiff.

53. Gliderol seeks contribution from Mr Sheridan for damages awarded to Ms Skerbic. As the learned Master found, and as this Court has upheld, Gliderol was negligent in the formulation of its instructions accompanying the Gliderol door, and it is the inadequacy of those instructions which was the primary cause of the failure of the door.

54. The Court respectfully departs from the learned Master’s conclusion that there was nothing in the instructions which might have alerted Mr Sheridan to the use of the Loxins or similar, and accordingly that there was no want of care by Mr Sheridan. There was certainly material in the instructions (however difficult to comprehend) that raised the possibility that Loxins or similar should be used. Even if Mr Sheridan had no engineering or other relevant training before taking up the business of installing roller doors, he must be taken to have had sufficient basic knowledge of building installation work to recognise that a heavy roller door, attached in a position where people would regularly walk or even stand under it, needed to be securely installed, and to recognise that the principles of gravity and leverage would mean that there was substantial force placed on whatever horizontal fixing mechanism was used. Mr Sheridan, professing his expertise as an installer, is to bear a proportion of the blame for not having obtained a thorough knowledge and understanding of the instructions. In the circumstances, the Court attributes the blame as 60% to Gliderol and 40% to Mr Sheridan. Trade Practices Act claim

55. In respect of the claim brought by Ms Skerbic under s 75AD of the Trade Practices Act, the Master found that the inadequacy of the instructions fell within the words of s 75AC of that Act.

56. Section 75AD relevantly provides: Liability for defective goods causing injuries – loss by injured individual If: (a) a corporation, in trade or commerce, supplies goods manufactured by it; and (b) they have a defect; and (c) because of the defect, an individual suffers injuries; then: (d) the corporation is liable to compensate the individual for the amount of the individual’s loss suffered as a result of the injuries; and (e) the individual may recover that amount by action against the corporation; and (f) …

57. The meaning of the word “defect” in the context of s 75AD of the Trade Practices Act is prescribed by s 75AC. That section relevantly provides: Meaning of goods having defect (1) For the purposes of this Part, goods have a defect if their safety is not such as persons generally are entitled to expect. (2) In determining the extent of the safety of goods, regard is to be given to all relevant circumstances including: (a) … (b) … (c) … (d) any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and (e) what might reasonably be expected to be done with or in relation to them; and (f) ...

58. Gliderol made written submissions but no oral submissions in support of its claim that the Master erred in concluding that a breach of the Trade Practices Act had occurred.

59. Gliderol submits that to reach his finding that Gliderol breached the Trade Practices Act, it was necessary for the Master to find that the damage occurred only because of the inadequate instruction. Gliderol submits that its goods only have a defect if their safety is not such as persons generally are entitled to expect, as is provided in s 75AC(1) of the Trade Practices Act. That is, an objective standard is imposed: see Australian Competition and Consumer Commission v Glendale Chemical Products Pty Ltd [1998] FCA 180.

60. Applying such test, Gliderol submits that it is necessary to look at the class of person who might use the product: see Campomar Sociedad, Limitada and Anor v Nike International Limited and Anor (2000) 202 CLR 45.

61. Gliderol submits that its product was not something which was likely to be installed by “an average person”. Gliderol submits that an installer of its doors would have some familiarity with ordinary installation procedures, and that Gliderol was accordingly not required “to spell out in some way what a Loxin was”. It was the responsibility of the installer to ensure that the roller door was properly installed. Finding

62. Gliderol’s submissions overlook the fact that the instructions were not limited for use solely by professional installers. They were clearly intended to be relied upon by anyone who had the skill and ability to undertake an installation and were intended to provide instruction in each progressive step of the installation.

63. The meaning of “defect” for the purposes of s 75AC is broad, the test being what “persons generally are entitled to expect”. In particular, s 75AC(2)(d) is directed specifically to the defect in respect of any instructions or warnings as to the goods supplied. As was found by the learned Master, the instructions were seriously deficient and resulting from such instructions, plastic anchors rather than metal anchor plugs were used in its installation.

64. The Court is satisfied that the instructions were not as safe as persons generally are entitled to expect. The Court is unable to find any error in his Honour’s finding that the wording of the instructions did not make it sufficiently clear that metal anchor plugs rather than plastic ones were to be used for the installation of the brackets. In this respect, the finding that Mr Sheridan was negligent in its installation does not detract from the Master’s conclusion that the “goods”, by virtue of the instructions, were defective within the meaning of s 75AC of the Trade Practices Act.

65. The Court is satisfied that damage was sustained in consequence of reliance by Mr Sheridan upon the defective instructions albeit that Mr Sheridan was negligent in the manner in which he dealt with the defective instructions. Accordingly, the Court rejects the challenge to Master Harper’s findings relating to a breach of s 75AD of the Trade Practices Act. Safety of other roller doors

66. The Court also notes that the evidence accepted by the Master about the inadequacy of plastic plugs for the fixing of the roller doors, and Mr Sheridan’s evidence that he has installed up to 1,000 doors each year since 1997 using this method, raises a question about the safety of the thousands of these garage doors being used by Canberra residents every day. This larger question, which was also raised by the Master, might be expected to be of some concern to Gliderol, Mr Sheridan and their respective insurers. Damages

67. In the original proceedings the plaintiff instituted proceedings against Gliderol in both negligence and under the Trade Practices Act. The claim against Mr Sheridan was brought only in negligence. In the third party contribution claim by Gliderol against Mr Sheridan, the claim was only based on one cause of action, namely negligence.

68. This Court upholds the finding of the Master that the claims made against Gliderol in both negligence and under the Trade Practices Act should be upheld. The Court also finds that Mr Sheridan is liable as to 40% of the damages in respect of the plaintiff’s negligence claim.

69. The High Court of Australia in Graham Barclay Oysters Pty Limited and Anor v Ryan and Ors (2002) 211 CLR 540 referred to the complexity that arises where a defendant is held liable both in negligence and under the Trade Practices Act and observed that it was necessary for the successful party to make an election of which remedy they wish to be awarded. As Gummow and Hayne JJ said (at [130]): The relationship between claims made for relief in respect of contravention of provisions of the Trade Practices Act and common law claims, whether in negligence, deceit or otherwise, has not been examined in detail in any decision of this Court and was not the subject of detailed argument in the present matters. In those circumstances, we proceed on the assumption (which was not challenged) that a plaintiff may frame alternative claims in negligence and under the provisions of the Trade Practices Act relied on here. But it is to be recognised that claims of the kind which were made in these matters, in negligence and under the Trade Practices Act, were alternative claims, and that, if a group member succeeds in establishing the elements of both claims, that group member must elect which remedy will be taken. That election would have to be made no later than at the time of seeking final judgment in the action. [footnotes omitted]

70. In Laws v GWS Machinery Pty Ltd and Ors (2007) 209 FLR 53 (Laws) (at [191]) the same considerations arose as are now before this Court. Rothman J found that the principal claim was made in negligence and treated the Trade Practices Act claim as a subsidiary claim, and he allowed time before the making of final orders so that the plaintiffs could make the required election (at [193]).

71. In these proceedings no express election has been made by the plaintiff. Arguably the Court could conclude that there has been a tacit election to accept damages in negligence, having regard to the fact that damages were awarded by the Master only in negligence, that no submissions were made by the plaintiff concerning damages under the Trade Practices Act, and that no appeal has been instituted against the Master’s damages finding. However, since the need for an election has not been canvassed at all during the appeal hearing or in subsequent written submissions (despite reference to Laws in Gliderol’s written submissions), the Court considers that it is necessary to invite the plaintiff to make an express election before final orders can be made. The Court notes that an election for a remedy under the Trade Practices Act would require the matter to be remitted to the Master for an assessment of the damages payable under that Act. Orders

72. The orders are: (i) The appeal be allowed and the Master’s orders set aside. (ii) Leave is given for Ms Skerbic to file and serve a written election for a remedy in negligence or a remedy under the Trade Practices Act by 30 October 2009. (iii) Leave is given for all parties to file and serve written submissions by 13 November 2009 as to the final orders to be made. (iv) The parties may apply to the Court for leave to make oral submissions as to the final orders to be made.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 23 October 2009

Counsel for the Appellant: Mr R SetonSC and Mr R Cavanagh

Solicitors for the Appellant: Holman Webb Lawyers (by their agents Goodman Law)

Counsel for the First Respondent: Mr W Sharwood

Solicitors for the First Respondent: Higgins Lawyers (in the matter below), Pamela Coward Higgins Lawyers (at hearing), Maurice Blackburn Lawyers (at judgment)

Counsel for the Second Respondent: no appearance

Solicitors for the Second Respondent: Pamela Coward Lawyers (in the matter below), Pamela Coward Higgins Lawyers (at hearing), Maurice Blackburn Lawyers (at judgment)

Counsel for the Third Respondent: Mr G Lunney SC

Solicitors for the Third Respondent: Moray & Agnew Solicitors

Date of hearing: 5 November 2008

Date of judgment: 23 October 2009

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