Mrs Miller, the applicant's wife, gave evidence that a week prior to the items being despatched to the respondent, she opened the boxes for the purpose of obtaining serial numbers. At that time the oven and dishwasher and cooktops were undamaged.

The applicant delivered the items to the respondent's depot in Copland Street, Wagga Wagga by ute on 11 October 2006. Three of the four items were not in original boxes. The applicant had taped three of the boxes with plumber's tape. The fourth box was an original box and was not taped.

The applicant observed the respondent place the items on a pallet with something else which was heavy and get some ply. The applicant paid by bankcard and obtained an EFTPOS receipt. It is common ground that the applicant did not at any time receive a copy or sight the tax invoice - Exhibit A.

The goods were delivered the next day to the applicant's son's address in Canberra. The applicant's son was not called to give evidence. His mother recalled the son advised her that he heard something as the guys unloaded the goods off the truck and enquired "What was that?". The delivery driver responded "Don't know mate. It was there when we got it". The son assumed it was part of a kit with the goods.

A week later upon unpacking for installation, the son discovered that the goods were damaged. There was no damage to the packaging tape when they were unpacked.

Mr Miller tendered the following documents in support of his application:

• Bing Lee invoice for replacement ceramic cooktop
• Detlev's Appliance & Electrical Care invoice for repair and replacement of glass oven door
• Letter from OAMPS insurance Broker Ltd 21/1/07
• Photos of items
• 4 page written submission

The applicant did not seek a refund of the delivery cost.

Ms Pender gave evidence that on the date of transport to their depot an employee who received the goods requested that Ms Pender inspect them.

The employee was not called by the respondent to give evidence. Ms Pender indicated that the employee advised the applicant that the goods were inappropriately packaged. Ms Pender inspected the goods and ascertained that one carton had no tape top or bottom. The respondent arranged for the goods to be shrink wrapped after placing them on a pallet.

The respondent then delivered the goods to the depot in Canberra of Universal Express and Universal Express delivered the goods from the Canberra depot to the delivery address in Canberra.

The respondent indicated they could not account for what occurred whilst the goods were in the custody of Universal Express. On contacting that organisation they advised the respondent that there was no physical evidence of damage when they carried the items upstairs at the delivery address and they couldn't think of any occasion when damage may have occurred.

There was no dispute that the goods were damaged. The respondent gave no alternative evidence on the issue of quantum.

The respondent denied it was a common carrier and relied simply on the terms set out on the invoice - Exhibit A, in particular Clause 1 which states:

"CWD EXPRESS FREIGHT (hereinafter referred to as "the carrier" which expression will include its servant's agents and sub-contractors) is not a common carrier and will accept no liabilities as such. The carrier reserves the right to refuse the carriage of any goods of its discretion."

The parties entered into a contract for the carriage of goods from Wagga Wagga to Canberra on 11 October 2006. The goods were delivered to the delivery address the following day. It is not disputed that the value of replacement and repair of the goods is $1,250.00.

The Common Carriers Act 1902 provides a carrier shall be liable for injury done to any articles or goods occasioned by the neglect or default by the carrier or the carrier's servants.

Whether the respondent is a common carrier is a question of fact. The respondent claimed it is not a common carrier and relied on the clause referred to above on its invoices.

This clause was not incorporated into this particular contract as the applicant had no notice of it not having received the invoice until the Tribunal hearing. The clause is only relevant in relation to the carrier's general terms of carriage.

The party asserting that a carrier is a common carrier has the onus of establishing that fact. The relevant factors are:

1. Whether the person was carrying on business as a carrier.
2. Whether the carrier reserves the right to accept or reject goods irrespective of whether the vehicle is full or not, if so he is not a common carrier.
3. The question is one of fact and is usually to be implied from the conduct of the business.

I find the respondent was carrying on the business of a carrier. There was no evidence from the applicant that supported the contention that the respondent was a common carrier except the observation that the applicant believed the respondent ought to have exercised its right to reject the goods if they were inappropriately packaged which in fact supports the likelihood that the carrier was not a common carrier.

I am not satisfied on the evidence that the respondent was a common carrier and therefore the provisions of the Common Carriers Act 1902 do not apply to this case.

The applicant asserted in its submissions that the respondent breached a duty of care to the applicant. The common law may provide a remedy to the applicant where the respondent is a bailee for reward. The duty owed by a bailee is to take reasonable care of the applicant's goods whilst in its possession. None of the exclusion clauses on the invoice apply as they do not form part of the contract. The difficulty facing the Tribunal is that neither party gave any definitive evidence as to the causation of the damage to the items.

The respondent contends the damage may have occurred during transportation by the applicant to the Wagga Wagga depot. The Tribunal finds this is improbable given the state of the physical evidence of damage. The respondent concedes it cannot speak for the period when the goods were in the hands of Universal Express with whom it arranged the delivery.

The applicant submits some massive force would be necessary to break the reinforced glass on the oven door and the ceramic cooktops. There was no evidence to the contrary.

I have considered the respective arguments of the parties relating to causation and in particular the photos. The first two show the oven inside its packaging box with an accumulation of shattered glass comprising approximately 4/5 of the door resting in the box at the front of the oven. The third photo depicts the shattered ceramic cooktop.

Although the respondent contends the applicant's packaging was inappropriate, it was only in relation to the taping of boxes. There was no evidence given that it was inadequate in any other respect.

The respondent had the opportunity and did inspect the boxed goods and handled them during the process of applying ply and shrinking. There was no sign of damage at that time.

The respondent had taken care in placing the boxes on a pallet and shrink wrapping them to preserve the contents. The respondent inspected the packages, externally wrapped them and lifted them by forklift onto its truck. They were then delivered to Universal Depot and unloaded by forklift.

From that point on the movement of the packages from the depot for loading, location during transport and delivery is not accounted for until the applicant's son signed the receipt for the goods in Canberra. The respondent contends that the applicant's son signed to indicate that the goods were received in good order. The Tribunal finds that the signed receipt was simply that and contains no acknowledgement whatsoever that the goods were in good order.

On the evidence I find that the damage occasioned to the goods occurred during the contract of bailment whilst the goods were in the control of the respondent. The sound of rattling heard by the applicant's son on delivery is consistent with damage occurring prior to receipt by him of the goods.

Accordingly I find the respondent liable to compensate the applicant for the damage occasioned.

The goods were returned in damaged condition and the respondent has not on the balance of probability discharged the onus of proof of establishing it was not at fault.

The Tribunal has power under s.8 of the Consumer, Claims Act 1998 to order a respondent to pay a claimant a specified sum of money. In awarding damages the Tribunal takes into account the fact that the cooktop was originally purchased as a shopfloor product. There was no evidence of the original purchase price. The Tribunal accepts it was not repairable and deducts an allowance of 1/20 for the replacement cost as the applicant has the benefit of a new cooktop in place of a shopfloor model. Thus the respondent is to pay the applicant the sum of $1,216.50.