Adelaide Tipper Hire Pty Ltd v R & S Thorman and Anor No. Scciv-03-1429

[2004] SASC 5

ADELAIDE TIPPER HIRE PTY LTD v R & S THORMAN
[2004] SASC 5

Magistrates Appeal

1. GRAY J.                This appeal relates to repair work to a Volvo truck the property of the appellant, Adelaide Tipper Hire Pty Ltd.  The truck was involved in a rollover in the year 2000. Damage was sustained to the engine and repairs were required.  The repairs were carried out by the respondent, R & S Thorman.

2. The appellant made a claim pursuant to a policy of insurance.  The insurer agreed to pay for part of the cost of the repairs, but was not prepared to replace used parts with new.  The insurer claimed to be entitled to contribution from the appellant in the event that wear and tear was a significant factor.  An agreement was reached about the extent of the insurer’s liability.

3. A meeting was held in December 2000 and attended by the appellant, the respondent and a representative of the insurer.  A quotation was prepared by the respondent for the insurer and a copy provided to the appellant.  The appellant instructed the respondent to do more than bring the motor up to serviceable condition.  The instruction was for the respondent to proceed with rebuilding the motor at the expense of the appellant.  The appellant did not request or receive a written quote for this further work.

4. In due course the respondent was paid by the insurer in accordance with the quotation. The respondent submitted an account for the further work undertaken at the request of the appellant.  The appellant refused to pay the account.  The respondent issued proceedings.  The appellant denied any indebtedness and advanced a counterclaim claiming that work undertaken by the respondent was not carried out in a proper workmanlike manner and that as a result the appellant had suffered loss and damage.

   The Magistrate’s Court Trial

5. The matter proceeded to trial.  The respondent called evidence from its principal Shane Allan Thorman and from John Keith Roberts, the insurance assessor.  The respondent called its director and shareholder, his wife, a diesel mechanic Matthew Lee Glen Arnold who worked on the truck at a later time and an expert, Graham Ross Burton.

6. The learned magistrate concluded that the respondent had made out part of its claim. Judgment was entered on the claim in the amount of $2043.63. The magistrate concluded that the appellant had not discharged the onus of proof of establishing that work had not been carried out in a proper workmanlike manner.  The counterclaim was dismissed.

7. The magistrate addressed the complaints advanced in regard to the water pump oil and cooler dispute and concluded:

   The most that can be said, on the evidence before me, is that no-one asked the plaintiff to replace either the water pump or the oil cooler and that, with some difficulty, a leak was found inside the oil cooler six months after the water pump was replaced without the oil cooler leak being detected and ten months after the truck had left the plaintiff’s workshop.

   I am not prepared to find this leak was in any way due to poor workmanship on the part of the plaintiff. In relation to the complaint about the loss of coolant the defendant has the burden of proof and it has not proved its case. Even if the plaintiff had the burden of proof this claim would fail. Both any malfunction in the water pump and the leak in the oil cooler are probably completely unrelated to anything the plaintiff either did or was asked to do.

8. The magistrate’s conclusions in regard to the complaints concerning the clutch assembly were as follows:

   At the end of the day this is a case where at the time when the trial commences the defendant has only produced a receipt for the contemporaneous purchase of a clutch for an unrelated truck, the evidence is that the problems with the clutch would have been noticeable from the time when the clutch was first used after being wrongly assembled, there is evidence of any complaint being made to anyone or notice at a subsequent “full service and inspection” and there no complaint of any problem about the clutch in any document including a defence the defendant filed six months after Voltruck had shown Mr Weber that the clutch in his Volvo truck had been incorrectly assembled and had caused damage.

   Given all of this I am not prepared to rely on Mr Weber’s word, standing alone and without more, in order to make a finding on the balance of probabilities against a person with no memory of ever being asked to assemble and install a new clutch who made no claim for payment for anything to do with a clutch other than the work associated with rebuilding a motor.

   It is possible that the plaintiff incorrectly assembled a new clutch provided to him by the defendant despite his years of experience in assembling clutches for trucks. It is not so likely that I am prepared to rely on the word of Mr Weber alone and find that the plaintiff wrongly assembled and installed a new clutch when Mr Weber’s testimony is not supported by external evidence and is inconsistent with the defence he signed and lodged with this court on April 22^nd, 2002.

   The defendant has not proved its case in relation to the clutch. There was a clutch in the vehicle that had been wrongly assembled and installed probably at some time between October 2001 and October 2002. The defendant has not proved to the requisite degree that it was the plaintiff who failed to correctly assemble the clutch. It is possible the plaintiff did assemble the clutch. It is sometimes the case that there are things that are true that cannot be proved. Courts only make findings on the evidence put before them.

   The Appeal

9. This appeal sought to re-agitate the issues raised on the counterclaim.  The appellant contended that the magistrate should have concluded that the respondent did not substantially perform its contractual obligations and was in those circumstances not entitled to pursue his claim.  It was further argued that judgment should be entered for the respondent on the counterclaim in the amount of $10,869 together with interest and costs.

   Role of the Appeal Court

10. The powers and functions of a Court of Appeal were discussed by the High Court in Fox v Percy[1]. Gleeson CJ, Gummow and Kirby JJ reviewed the court’s earlier decisions[2] and observed:

    Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes - , the majority of this Court reiterated the rule that:

    [I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.

    As this Court there said, that approach was "not only sound in law, but beneficial in ... operation”.

    After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

    The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

    [1] (2003) 197 ALR 201

    [2] Warren v Coombes(1979) 142 CLR 531; Jones v Hyde(1989) 63 ALJR 349; Abalos v Australian Postal Commission(1991) 71 CLR 167; Devries v Australian National Railways Commission(1993) 177 CLR 472

11. Decisions on credibility and reliability are notoriously difficult for a trial judge to make and for an appeal court to assess. As Kirby J observed in State Rail Authority of New South Wales  v Earthline Constructions Pty Ltd (in liq):[3]

    The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.

    All of the foregoing considerations leave to be weighed, in some cases at least, the impression which the trial judge holds of a particular witness, perhaps influenced by the witness's demeanour and the kinds of considerations commonly referred to such as hesitation or displays of partisanship not readily conveyed, or conveyed at all, by the printed record. One can hold different views about whether such considerations should intrude in the assessment of qualified expert witnesses. One can strive to minimise resort to such considerations in the case of lay witnesses, out of recognition of the fallibility of human assessment of credibility from appearances. But because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.

    This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellate court cannot, in presently available records, recapture all of the information properly used to assist the trial judge's decision, the old strictures about that judge's advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court's rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it.

    [3] (1999) 73 ALJR 306 at [90-92]

12. In Shorey v Pt Ltd[4] Kirby J summarized the position as follows:

    An appeal by way of re-hearing must be ‘a reality, not an illusion’. The appellate court must correct decisions of the trial judge found to be wrong. This includes decisions of law; but also decisions of fact. However, in respect of decisions of fact, the appellate court must perform its functions within the limitations inherent in the appellate process and in accordance with rules validly provided by law. This involves a recognition of the significant advantages of the trial judge in fact finding, especially (but not only) in cases in which the credibility of the parties, or of important witnesses, was in issue at the trial.

    [4] (2003) 197 ALR 410

13. These principles govern this appeal. The dichotomy between the court’s appellate obligations and appellate restraint has been the subject of substantial consideration. The mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute.

    Consideration of the Issues

14. Counsel for the appellant submitted the court should review and set aside the findings of the magistrate in respect of the complaints concerning the water pump and the clutch. With respect to the cooling system it was submitted:

    The combination of the following factors should have led the [magistrate] to find that the problem of leaking coolant was as a result of [the respondent] failing to carry out his work in a proper and workmanlike manner:

    -before the accident the truck did not have a problem with loss of coolant

    -when the truck was first driven by [the appellant] after [the respondent] had carried out the repairs to the truck, it was found to be losing large quantities of coolant

    -although [the appellant] immediately brought the problem of coolant leakage to [the respondent’s] attention, [the appellant] was always too busy to rectify the problem

    -as part of the motor repair and reconditioning process, [the respondent] should have brought the engine to full operating temperature and run it for a period of time to detect coolant leaks generally and leaks in the oil cooler in particular

    -best practice dictated that the oil cooler be replaced during the reconditioning process

    -it was the respondent’s responsibility to bring the motor back to good working condition and this included ensuring that the motor had an effective cooling system

15. The thrust of the appellant’s submission was that the respondent, as part of the motor repair and reconditioning process, should have checked coolant leaks generally and in particular in the oil cooler by bringing the engine to full operating temperature and waiting for a period of time whilst making observations.  Such a test, it was said, would have disclosed problems and that best practice would have required that the oil cooler be replaced.  These matters were said to be supported by the evidence of Mr Burton.

16. However, as the magistrate observed, Mr Burton had assumed that the respondent had not undertaken post start-up checks.  It was pointed out by the magistrate that there was no evidence as to what post start-up check inspections were made by the respondent.  The magistrate concluded that there was no evidence that the respondent had failed to bring the engine to full operating temperature and let it run for a period of time to enable confirmation that there were no fluid leaks either internal or external.

17. Counsel for the appellant submitted that the magistrate overlooked evidence from Mr Weber about the immediate problems he had with leaking coolant following the respondent’s repair work and his complaints to the respondent about the problem.  However, these allegations were not put to Mr Thorman in cross-examination.  It appears that it was accepted that the allegations were disputed.  It has not been shown that the magistrate did not have regard to this evidence.  The magistrate’s conclusions carry the implication that Mr Weber’s evidence was not accepted in this respect.  It is also relevant to observe the nature of the complaint altered fundamentally.  Initially the appellant’s case was that the water pump should have been submerged in coolant.  This was abandoned and the failure to test theory was then advanced.  As the magistrate observed, the factual basis to support this complaint was not made out.

18. Counsel for the appellant has not identified any material overlooked by the magistrate or any irrelevant matters considered by the magistrate.  The conclusions reached by the magistrate were open on the evidence and no basis has been shown to interfere with those conclusions.

19. As the magistrate concluded, the probabilities were that any problems with the oil cooler were unrelated to any work undertaken by the respondent or any work he was asked to undertake.

20. Counsel for the appellants submitted that the findings made by the magistrate with respect to the clutch assembly should be set aside. In particular it was submitted:

    The combination of the following factors should have led the [magistrate] to find that it was [the respondent] who had incorrectly assembled the clutch:

    -[The respondent] told [the appellant] prior to repairs being carried out that, since the engine would be taken out of the truck, it would be a good idea to take advantage of the opportunity to put in a new clutch

    -As a result, [the appellant] bought a new clutch from Adelaide Clutch Services on 18 December 2000 and delivered it to [the respondent]. The new clutch was in parts to be assembled and installed in the truck by [the respondent] when the reconditioned motor was refitted

    -When [the appellant] first started driving the truck after [the respondent] carried out the repairs he noticed that it was hard to get it into gear but thought that it just needed to ‘…be bedded in a bit”

    -When Voltruck had the truck in October 2001 to fix the water leak, they brought to [the appellant] attention that they thought that there was a problem with the clutch

    -Voltruck discovered that the clutch had been incorrectly assembled and took a photograph

    -As a result of the incorrect assembly, the clutch was damaged. [The appellant] therefore bought a new clutch from Adelaide Clutch Services on 18 October 2001 and delivered it to Voltruck for them to assemble and install in the truck

    -After Voltruck put the new clutch in the truck, the clutch worked without difficulty

    -[The respondent] did not deny fitting a new clutch in about February 2001. He said that it was possible that he did so but did not remember. Her [sic] conceded the possibility that if he assembled the clutch, he may have assembled it incorrectly. It would not be expected that the respondent’s invoice would refer to removing the old clutch and assembling and fitting the new clutch as it is part and parcel of repairing and reconditioning the motor.

    -There is no evidence of anyone doing any work on the clutch between the respondent assembling and installing the new clutch in about February 2001 and Voltruck discovering the incorrectly assembled clutch in about October 2001

1. The magistrate concluded that the clutch had been assembled in a defective manner.  A spring had been misplaced causing inappropriate wear.  This was due to bad workmanship.  The issue was whether it had been established that the plaintiff was responsible for the work.

2. As the magistrate observed, there was no record of the plaintiff having performed the work or having rendered any bill associated with the work.  It was the appellant’s case that Mr Weber, on its behalf, had bought a new clutch from Adelaide Clutch Services and that the respondent had assembled and installed the clutch.  However, the magistrate concluded that she was not prepared to rely on Mr Weber’s evidence in this respect.  There were a number of factors that led to this conclusion.  They included:

   - the only purchase receipt produced for a clutch related to a contemporaneous purchase for a different vehicle

   - the lack of any complaint at a time when difficulties would have been expected and any time proximate to the respondents work on the vehicle

   -the absence of any complaint about the clutch in any document, including the defence initially filed

   -the absence of any supporting evidence concerning Mr Weber’s assertions about the provision assembling and installation of the clutch by the respondent.

3. The evidence was unclear in a number of important respects:

   -the description of the new clutch as said to have been delivered was vague.

   -It is not possible to accurately discern whether the offending anti-rattle spring was already assembled and in place or not.

   -no evidence was called from the supplier of the new clutch as to the extent of the assembly of the components of the clutch and in particular, particularly the position of the anti-rattle spring.

   -Mr Weber asserted that he moved the old clutch from the respondent’s premises and took it to the clutch supplier.  No confirmatory evidence was tendered in regard to this issue from the supplier.

   -Mr Weber’s evidence included an assertion that a third party assembled the engine and clutch in the truck.  On other occasions he speaks of the clutch having been assembled and simply put into the vehicle by the third party.  Again there is a lack of clarity about this evidence.

   -The expert evidence about the assembling of the clutch does not assist in allowing a conclusion to be reached as to whether the respondent assembled the offending spring in an inappropriate place.

4. Additional difficulties confront the appellant on appeal.  Evidence from Mr Burton suggested that if the respondent had been involved in assembling the clutch and replacing the old clutch he would have expected there to be entries in the work sheets and accounts.  If, however, all the respondent did was put into the vehicle a new clutch assembled elsewhere, he would not expect such detail to be recorded.  The respondent’s records did not disclose any work being undertaken on the clutch or on the assembling of new clutch componentry.

5. The magistrate’s conclusions were open on the evidence.  There is no reason to doubt the appropriateness of those conclusions.  A review of the evidence does not suggest that Her Honour’s unwillingness to act on Mr Weber’s evidence was inappropriate.  Although the material may allow the emphasis to be drawn there is no basis for suggesting the inferences drawn by the magistrate were inappropriate.

   Conclusion

6. Counsel for the appellant has not identified any evidence overlooked by the magistrate or any matters improperly taken into account. The conclusions reached by the magistrate were open on the evidence. No basis has been shown to doubt the appropriateness of her conclusions.

7. For these reasons this appeal should be dismissed.