VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Civil DIVISION
civil claims LIST	
vcat reference No. C1779/2019	
CATCHWORDS	
Detection of leak in fire service – metal pipe inside a concrete pipe – leak could only be detected by use of a camera - whether services carried out with due care and skill.	

APPLICANT	Shai Dagan	
RESPONDENT	Inner City Plumbing Pty Ltd	
WHERE HELD	Melbourne	
BEFORE	W Boddison, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	4 July 2019	
DATE OF ORDER	4 July 2019	
DATE Of written Reasons	24 July 2019	
CITATION	Dagan v Inner City Plumbing Pty Ltd (Civil Claims) [2019] VCAT 1086

Order 

The application is dismissed.

W Boddison
Member			
APPEARANCES:		
For Applicant	In person	
For Respondent	Mr Haralabidis, Director	

Reasons
1	I conducted a hearing in this proceeding on 4 July 2019. At the end of the hearing I delivered my decision supported by oral reasons. I made an order that the application was dismissed. The applicant requested written reasons. These reasons reflect the reasons given orally in the hearing, with some additional background, and editing, to improve readability and clarity.
2	The applicant Mr Dagan gave evidence and Mr Haralabidis, Mr Mackenzie and Mr Patos gave evidence for the respondent. 
Facts 
3	Mr Dagan is the owner of premises in Cheltenham. He was informed by the tenant of the premises that there was a leak in the fire service supply line. After making enquiries with the water authorities he was advised that he was responsible to repair any leak. 
4	The fire services supply pipe came from the property across the road and ran under the road. Mr Dagan contacted the respondent and spoke to Mr Haralabidis and explained the situation. I accept Mr Haralabidis’ evidence that he initially advised Mr Dagan that the best course of action was to replace the entire pipe. However Mr Dagan did not want to follow this course and asked Mr Haralabidis whether he provided leak detection services as he wanted to find the leak and repair the pipe. Mr Dagan said he engaged the respondent to find the location of the leak. Mr Haralabidis said they undertook leak detection on the basis they would be doing the job to repair/replace the pipe.
5	Two employees of the respondent Mr Mackenzie and Mr Patos went to the premises. They gave evidence that they conducted the following tests. They turned the water on and observed where it was coming out of the road. They carried out line detection service to determine the depth and the position of the metal pipe. They attached a probe to a pipe and earthed the probe and ran it along the ground to try to ‘kick up’ a current in the metal pipe. They said it was not an exact science and if there is interference or if there is a rubber joiner or rubber or plastic sleeve this can interfere with the current on the metal. 
6	They then used a listening device called an ‘elephant’s foot’. The ‘foot’ is put on the road to detect where the loudest point is, that is where the water is escaping. They walked along the road and found the loudest point. 
7	They were still not sure so they put nitrogen gas through the pipe which gives a louder reading and the loudest reading was at the same point. This was also where the force of the water was lifting the ground. They determined this was where the leak was. They were at the site about 3 hours performing tests.
8	They said they told Mr Dagan at the site that the best course of action was to replace the whole pipe as patching it could led to more leaks and if the pipe was degrading in one part it was likely to be in a poor condition in other parts.
9	They advised Mr Dagan that the leak was most likely in a certain position on the opposite side of the road to his property. They based this view on the results of the tests they performed and because this was where the water was coming out of the ground.
10	Dr Dagan in an email to the respondent stated that they had spent almost 3 hours with special machines, gas pressure testing trying to ascertain where the leak was, which confirms the respondent’s account. 
11	The next day the respondent sent a quote to Mr Dagan for repairing the pipe which had a proviso, “If the pipe is beyond repair or if the burst is in a different location the job will need to be re-quoted”.
12	Five days later, Mr Dagan emailed the respondent advising that their quotation was not successful and said, “please send me urgently the report regarding the location of the leaked fire line and email the invoice”.
13	The respondent then sent an invoice for $1,072.50 that stated “performed leak detection of burst fire service, located leak to be in road next to the curb and channel on the opposite side of the road, pipe is burst in line with sluice valve on the opposite side of the footpath, a patch in the road is a good indicator of were [sic] the burst is.” Mr Dagan paid the invoice. 
14	Subsequently Priority Plumbing attended the premises and Mr Dagan advised these plumbers where the leak was, based on the information from the respondent. The alleged location of the leak was under the road so the repair involved digging up of the road, obtaining the relevant permits and reinstatement of the road. 
15	When Priority Plumbers dug at the designated spot the leak was not in the place identified by the respondents. Priority Plumbers discovered that the metal pipe was inside a concrete pipe. They cut open the concrete and metal pipes and put a camera down the pipe and located the leak which was on the opposite side of the road under a concrete curtain. Mr Haralabidis said that although the hole in the pipe was not under the road, as it was not in Mr Dagan’s property and was in council property, the same permits were required to dig at this location. 
16	When Priority plumbing found the hole they sent a photograph to Mr Dagan stating “please find hole in 80 mm pipe found in the fire service supply line … copper pipe was very fragile and needed a full replacement due to the thin walls of the fire service.”
17	Priority Plumbers then advised Mr Dagan that he had two options. The pipe could be repaired or the entire pipe replaced. Mr Dagan decided to have the entire pipe replaced. 
18	He said he made this decision partly because an unnecessary and costly hole had been dug on the wrong side of the road and this hole could be utilised if the pipe was replaced. This was carried out at considerable cost to Mr Dagan. He agreed that to replace the pipe, two holes needed to be dug but he said if the unnecessary hole had not been dug, he could have just repaired the pipe.  
19	The respondent claims that it undertook the correct tests to locate the leak and there were no other tests they could have carried out. All the tests carried out indicated the leak was where they said it was. Due to the concrete sleeve they were getting a false reading. They in fact were unknowingly detecting where the water was coming out of the concrete sleeve. 
20	Mr Haralabidis said the only way the correct location of the leak was ascertained was because the pipe was dug up, opened, and the camera was put down the pipe to find the hole. It was an option that was not available until a hole was dug and the pipe exposed. 
21	Mr Haralabidis knew the pipe was inside the concrete sleeve because he had spoken to the plumber who completed the work who told him that the copper pipe which had the hole was encased in a concrete pipe. Although this was hearsay evidence the Tribunal is not bound by the rules of evidence. I would not normally give this given much weight. However it was not disputed by Mr Dagan and he produced an email from Priority Plumber that stated:
1. Road and concrete excavation. Both substrates are thicker and stronger the expected and have taken a lot more time than normal to excavate. 
2. Concrete conduit. This have been the main cause of the works changing from a repair to a partial renewal.
3. Existing 80mm Copper pipe. As discussed the copper pipe is not used and is an inferior product due to its wall thickness. It was a relief to actually find the large hole that had been formed near an existing weld.
22	I therefore accept that copper pipe was inside a concrete pipe.  
23	Mr Haralabidis said that this was very unusual and he had never seen this in his 30 years’ of experience as a plumber. The water was leaving the copper pipe then running inside the concrete pipe and leaving the concrete pipe at the location where they thought the leak was. In these circumstances the leak location could only be detected by use of a camera. 
24	In relation to whether this led to Mr Dagan having to dig (and pay for) an unnecessary hole, Mr Haralabidis said that as the entire pipe was replaced a hole would have needed to be dug where they said the leak was in order to feed the pipe under the road. The pipe had to be replaced because it was substandard.
25	When Priority Plumbing found the hole they sent a photograph to Mr Dagan stating, “please find hole in 80 mm pipe found in the fire service supply line … copper pipe was very fragile and needed a full replacement due to the thin walls of the fire service.”
The applicant’s claim 
26	In his application Mr Dagan claimed $14,072.50 being made up of $13,000.00 for double digging and $1,072.50 for failed service. 
27	At the hearing he stated that he asked Priority Plumbing “if the other plumber find the exact location - how much should it cost”. The response was, “if the leak was found exactly where the hole was, …. Around $5,000 would have been the quote. However ... not uncommon for some plumbers to increase quotes by 20-30% due to the risk involved.” 
28	He said that the respondent should have performed other tests but could not say what those tests were because he was not an expert. 
29	He stated that the main reason he replaced the pipe was because of the cost that had been incurred in digging the hole. 
30	As discussed with Mr Dagan, the loss, if the pipe was repaired, was the cost of digging an unnecessary hole. However that hole was needed to put a camera down the pipe and locate the leak and also as he actually replaced the pipe, the hole that was dug where the respondent said the leak was, was utilised in the replacement. 
The respondent’s case 
31	The respondent claims it used due care and skill to locate the leak. Due to the unusual configuration of the pipe, being inside a concrete conduit, the leak could not be detected at the correct location with standard tests. It could only be located by digging up the pipe and placing a camera down the pipe. Further Mr Dagan had not suffered loss as he opted to replace the entire pipe and would have had to dig a hole where they said the leak was (at the end of the concrete conduit) to feed the pipe through. In the end as the pipe was replaced there had been no unnecessary digging. 
The law 
32	Mr Dagan has the onus of establishing his case on the balance of probabilities. 
33	If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
34	This requires a supplier to use an acceptable level of skill or technical knowledge when providing the services and to take all necessary care to avoid loss when providing the services. There is an expectation that services and any resulting products will be of a standard expected to achieve the desired results that the consumer made known to the supplier. 
35	Further the applicant would have to establish that he suffered a loss because the respondent failed to render the services with due care and skill.
36	Mr Dagan suggested that there were further tests that the respondent should have undertaken. He did not call any expert evidence as to what these tests were. He did not contest the evidence that due to the unusual configuration of the pipe, the leak could only be detected by a camera and not by normal leak detection tests. 
37	I am satisfied on the evidence that the respondent used standard industry practises and used an acceptable level of skill or technical knowledge. They failed to detect the leak due to the unusual configuration of the fire service pipe being inside a concrete conduit. Mr Dagan has not established that they did not carry out the work with due care and skill.
38	In addition Mr Dagan has not demonstrated that he suffered any loss. He claimed that he replaced the pipe (rather than repair it) because he had incurred all the additional cost of digging a hole where the leak was not located due to the respondent not correctly detecting the leak location and causing an unnecessary hole to be dug. However the evidence is that the copper pipe was substandard and need to be replaced and according to the plumber that did the work the concrete conduit was ‘a main cause of the works changing from a repair to a partial renewal’. Further Mr Dagan made the decision to proceed with the replacement and utilised the extra hole. He has not established that the respondent caused this replacement to be more costly.  

W Boddison
Member