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No Horsing Around as NCAT Appeal Panel Reverses Decision

On 6 November 2020 the NCAT Appeal Panel (“the Panel”) reversed an earlier Tribunal decision relating to the provision of agistment services to a consumer.

Brief Facts

The appellant to the appeal, Caroline Hooper (“Hooper”), had verbally agreed to provide agistment services to the respondent Joanne Peet (“Peet”) for two horses.  The horses were placed into a single paddock and separated by an electric fence with one horse on each side.  On or about 1 September 2018 an incident occurred involving the electric fence which resulted in one of the horses being euthanized by a veterinary surgeon.

Peet alleged that a business arrangement existed in which the agistment services were provided for a fee of $20.00 per day per horse and that pursuant to section 60 of the Australian Consumer Law (“ACL”) Hooper guaranteed that the service would be provided with due care and skill.  That was accepted by the Tribunal who also stated that Hooper had:

… an unquestionable duty to return Roxy [the injured horse] to her owner in the same fit and healthy condition, or as close as possible to the state that she arrived in [70].

The Tribunal also found that the Hooper had:

… not discharged her onus of proof of proving that she is not liable for the Applicant’s loss of her dressage competition horse Roxy.

Appeal Panel Findings

The Panel agreed that section 60 of the ACL applied and that Hooper had guaranteed that the services would be rendered with due care and skill.  That said, the Appeal Panel did not agree that failing to return the horse in the same fit and healthy condition or as close as possible thereto was an accurate description of the duty and therefore the tribunal had made that finding in error.

The tribunal’s second error related to the onus of proof.  The tribunal stated that in a case of bailment for reward the onus of proof may be reversed but that was not the allegation in the present case.  It was Peet, as the party making the allegation, who had the onus of proving that Hooper was liable – not the other way around.  As such the tribunal had erred in finding that Hooper had not disproved that she was liable.

The Panel however refused to dismiss the application and felt that the tribunal had made errors of law which meant that Peet had not yet had a fair opportunity for her case to be determined. .The matter was therefore resubmitted to the Consumer and Commercial Division of the tribunal for a rehearing.

Commentary

The original decision of the tribunal focused on the outcome of the services rather than the services themselves.  In other words to decide whether the service had been provided with due care and skill it, wrongly, looked at the failure to return one of the horses in the same or similar condition that it was received.  The focus should have been on the actual provision of the services rather than the outcome.  The guarantee in section 60 of the ACL does not guarantee an outcome, it guarantees that the services will be provided with due care and skill.

A clear contract setting out precisely what the services to be provided would have been of significant assistance in this case. 

Mullane & Lindsay has expert lawyers that can assist with:

(a)  Drafting consumer contracts to ensure that the service to be provided is clearly identified, which will in turn define the scope of the duty of care; and

(b) Disputes relating to consumer services; and

(c) Mediation services – if you are involved in such a dispute.

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