Skerbic v McCormack & Ors  ACTSC 93 involved both a claim in negligence and a claim under section 75AD of the Trade Practices Act 1974 (Cth) (TPA) against the manufacturer/supplier, and installer, of garage roller doors which injured the plaintiff. The manufacturer/supplier was ultimately found liable for providing inadequate installation instructions.
In 1999 the plaintiff, Skerbic (and her then husband), were leaving for work. They lived in a rental unit in Canberra, which had a double garage.
Their practice, when leaving for work, was that the husband would reverse the car out of the garage and Skerbic would wait outside to close and lock the roller door.
On the day in question, it was raining and Skerbic was standing underneath the raised roller door waiting for her husband to reverse from the garage. While she was doing so, one of the brackets supporting the roller door came away from the brick wall, causing the roller door to fall and strike her on the head causing injury.
The brackets were attached to the brick wall with plastic plugs rather than steel plugs. This was found to have caused the accident.
Skerbic initially commenced proceedings against her landlord McCormack, and later, the manufacturers and suppliers of the roller door, Gliderol International Pty Ltd. However, prior to the hearing, Skerbic withdrew her action against McCormack.
Gliderol used Sheridan Garage Doors as its sole distributor in the Canberra region, and Sheridan installed the roller door in question. Gliderol and Skerbic joined Sheridan to the proceedings.
Skerbic's case against Gliderol was that the installation instructions provided with the roller door were inadequate. The case against Sheridan was that it held itself to be an expert in the installation of roller doors and should have known the correct method of fixing brackets to brickwork.
Skerbic also argued that Gliderol was in breach of section 75AD of the TPA, and that the goods supplied and manufactured by Gliderol were defective, resulting in her injury.
The main argument in Skerbic's case against Gliderol (as well as in Sheridan's defence) concerned the wording of the four-page printed installation instructions delivered by Gliderol to its installers with the roller doors.
The Court noted that the instructions read as though they were addressed to the '...consumer or individual end-purchaser, rather than to a retailer, distributor or installer...', and later noted that: '...The instructions should have been clear and intelligible to persons without any relevant trade qualifications or experience'.
The Court noted that 'Step 2' of the instructions referred to two types of brackets which were supplied: support brackets with coach screws (for securing to timber); and support brackets with masonry anchor plugs (for securing to brick). The type of masonry anchor plug to be used was not specified.
Gliderol (and Skerbic) argued that an installer such as Sheridan should have read the instructions as requiring metal plugs when fixing to brick masonry.
Sheridan's evidence was that the brackets for the roller door were affixed using bolts screwed into plastic plugs inserted into the brickwork and not masonry anchor plugs. This method was used for all the roller doors in the surrounding units in the complex.
Sheridan stated he had used this method when affixing brackets to brickwork since he first started installing roller doors in 1979. He also gave evidence that, until this case, he was not aware of any complaints or any problems which had occurred in installing the roller doors in this manner.
In assessing liability, the Court found:
- If Gliderol had intended to convey to installers that metal anchor plugs (as opposed to plastic anchor plugs) should be used in brickwork to secure brackets, it should have been at 'Step 2' of the installation instructions.
- The installation instructions provided to Gliderol were inadequate.
- If there had been adequate installation instructions, Sheridan would have followed them.
- Gliderol, as manufacturer and supplier of roller doors, owed a duty of care to members of the public to adequately provide installation instructions with its product which, if followed, would ensure the safe operation of its product.
- There was a foreseeable risk that the supply of inadequate instructions might result in garage doors being installed in an unsafe manner which might lead to the collapse of a door causing injury.
- Gliderol had breached its duty of care to Skerbic.
- There was no evidence of negligence by Sheridan.
Liability for defective goods
In assessing whether Gliderol breached its statutory duty under section 75AD of the TPA, the Court held:
- Although there was no defect in the actual roller door supplied, section 75AC of the TPA provides that goods have a defect if their safety is not such as persons generally are entitled to expect. In determining the safety of goods, regard is to be given to the purposes for which they have been marketed; and any instructions for doing anything with or in relation to them.
- The reference to the word 'instruction' is intended to apply to instructions to consumers as to how to use the goods.
- Although the instructions supplied did not relate to the use of the roller door, they did relate to the installation.
- The inadequacy of the instructions fell within the meaning of 'defective' as described in section 75AC.
- Gliderol had breached its statutory duty to Skerbic under sections 75AD and 75AC of the TPA.
The Court held that Gliderol had breached its duty of care to Skerbic and its statutory obligation under the TPA.
Damages were assessed at $84,000 and judgment was entered for Skerbic against Gliderol for that sum.
The Court found no evidence of negligence against Sheridan and both Skerbic's claim and Gliderol's claim against Sheridan failed.
This decision is interesting on two fronts. First, because all liability was borne by the manufacturer/supplier, with the installer escaping liability despite his apparent installation experience and expertise. Second, because there was encouragement from the bench (at the conclusion of the judgment) for the parties to publicise the need for all the tenants at the complex to check the security and safety of their roller doors. It is surprising that the warning extended only to the other tenants in the block and not nationally to all persons with roller doors of this type!
It is also worth noting that, in absolving Sheridan of any liability, the Court found that the average consumer required better and more precise explanation in the installation instructions. In this case, the consumer was not an 'average consumer' but one chosen and trusted by the manufacturer to install the roller doors correctly. That the average consumer might not have been able to understand the installation instructions adequately was arguably not the correct test to apply.
Finally, the Court extended the term 'defective' in the TPA to apply to the installation instructions (beyond the simple 'use' of the roller door).
Despite the Court's concluding remarks, the matter, surprisingly, has received very little media attention.
An appeal has been lodged against the decision.
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