The call came in the early hours. Martin Cowley heard the landlord repeat the news. “17 Burlington Street is in flames”.
It had been fortuitous that the postman had delivered the package the day before at Martin’s new Holland Park address. He and Jennifer were unloading their furniture and white goods at their new rental.
Martin had bought the rechargeable flashlight on eBay only two days earlier. He read the instructions and plugged it into a power outlet in the garage before midday.
As they were leaving the home, Martin was confident he would be back by seven the next morning. He had seen the warning in the manual that the maximum re-charge period for the torch manual was 24 hrs.
These events were still fresh in Martin’s mind in May 2012, nearly three years later, when he would have stood in the security line to file into the now decommissioned law courts building between North Quay and George Street.
Martin and Jennifer’s journey that far had been arduous. First were the investigations. Martin suspected the torch from the start. The Queensland Fire and Rescue Service investigation could not decide either way.
But they others would swear that the torch fell short of electrical insulation rules.
Their insurers uncovered evidence from eBay International about how amateur online trader Keith Bellamy had himself bought five of the devices from another virtual merchant. Bellamy paid the upstream merchant, River Trade P/L, 99 cents for each flashlight. Martin paid Bellamy $34.99 for his.
The insurers filed a $100k claim against both traders in Brisbane’s district court, to recover what had been paid to the Cowleys.
The May trial was adjourned after its start due to the merchants’ switch in lawyers. Another listing in August was also called-off.
When the parties took their seat in the brand new QEII courts edifice at the foot of George St at the beginning of December to hear the judge finally say that the case was ready to trial, River Trade did not show up and Bellamy was there alone to present the defence his former lawyers had prepared.
Martin gave his testimony to the court remotely, by telephone. His fire experts and witnesses to verify the value of the damaged and destroyed belongings also gave evidence.
After two days of argument, everyone on Martin’s side would have been relieved to hear the judge rule that “on the balance of probabilities the fire was caused by fire being ignited by an overheating connection at the torch or at the plug pins”.
But there were legal defences to overcome. Bellamy was a self-confessed eBay addict but swore he only traded as a hobby. As an amateur seller, the statutory warranties implied by the Sale of Goods Act would not make him accountable. Bellamy was awarded victory by the judge for that part of the battle .
Nor were either merchant liable in negligence. “For there to be a duty of care there must be more than a mere relationship of vendor and purchaser”. No prior knowledge of the defect was proven.
That left the claim under the Trade Practices Act against River Trade who had imported the torches and were deemed to have manufactured them.
At last someone was found liable to compensate the losses. Adding interest of $35,000, Martin and Jennifer – or in actuality, their insurers – will get judgement against River Trade for $137,000.
Cowley & Anor v Bellamy & Anor [2012] QDC 359 Brisbane Samios DCJ 14/12/2012
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