Connor & Connor v Kingswood Press Pty Ltd

[1997] QCA 435

IN THE COURT OF APPEAL	[1997] QCA 435
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No. 10974 of 1996.
[Beattie Sales & Admin. P/L v. Ikin & Anor.]
BETWEEN:

BEATTIE SALES & ADMINISTRATION PTY LTD

A.C.N. 010 182 377

(Defendant) Appellant

AND:

CLEMENT IKIN and KAREN IKIN

(Plaintiffs) Respondents

Pincus J.A.

McPherson J.A. Shepherdson J.

Judgment delivered 2 December 1997.

Separate reasons for judgment of each member of the Court, all concurring as to the order made.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	CONTRACT - repairs to tipper trailer - action for damages for breach of contract alleging failure by the appellant to exercise the due standard of care and skill in effecting the repairs - primary judge found in favour of the respondents on both liability and damages - appeal against finding of liability - cracking and cause of cracking a point at issue in the case - drawing of inferences.
Holloway v. McFeeters (1956) 94 CLR 470.
Counsel:	Mr KJ Priestly for the appellant Sir James Killen for the respondents
Solicitors:	Quinn & Scattini for the appellant Mr Bruce S Dulley for the respondents
Hearing date:	21August1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10974 of 1996.

Brisbane

Before Pincus J.A.

McPherson J.A. Shepherdson J.

[Beattie Sales & Admin. P/L v. Ikin & Anor.]

BETWEEN:

BEATTIE SALES & ADMINISTRATION PTY LTD
A.C.N. 010 182 377

(Defendant) Appellant

AND:

CLEMENT IKIN and KAREN IKIN

(Plaintiffs) Respondents

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 2 December 1997

I have read the reasons of Shepherdson J. and agree with his Honour’s conclusions.

The basic point made in Mr Priestly’s lucid argument was that the evidence was insufficient to support a conclusion that the wedges referred to in the reasons of Shepherdson J. caused the damage which the trailer subsequently sustained; Mr Priestly admitted that the use of the trailer in the course of which it sustained that damage was not shown to be of an unusual character. He argued, in effect, that for all one knew the cracking of which the respondents complained was due to a quality of the original design of the trailer, not to the work done by the appellant.

I cannot find in the evidence either a precise or convincing explanation of the way in which the addition of wedges by the appellant caused the damage to which I have referred. But in my view the suggestion that the whole trouble was an inherent design fault has a degree of improbability about it. The primary judge said:

"[t]here is no evidence that repair was impossible. There is no suggestion that the use to which the plaintiffs put the trailer after repair was unreasonable. It seems therefore to be an inescapable conclusion that the defendant’s repair was faulty".

His Honour then went on to identify the respects in which it was faulty; but, whether one accepts that part of the reasoning or not, it is my view that the cracking which followed upon the appellant’s work was properly attributed by the primary judge to that work rather than to the original design of the trailer. It seems plain that after the work was done the stresses to which the bin rails were subjected must have differed from those to which the original design would have subjected them. It is possible that the job the appellant took on, in undertaking the repair of the trailer, might have been beyond its technical capacity and that restoring the trailer to its original condition was a much more difficult task than the appellant, and in particular its managing director, believed it to be. Whether or not that is so, it is plain that the repair work done by the appellant did not in fact restore the trailer to its original condition, the most obvious difference being the addition of wedges. The inference that the cracking in the region of the rails, which followed on the repair, was due to the appellant’s failure to make the trailer as strong and as resistant to cracking as it had originally been was, in my opinion, a compelling one. I agree that the appeal must be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10974 of 1996

Brisbane

Before Pincus J.A.
McPherson J.A.
Shepherdson J.

[Beattie Sales & Administration P/L. v. Ikin & Anor.]

BETWEEN:

BEATTIE SALES & ADMINISTRATION PTY. LTD.
ACN 010 182 377

(Defendant) Appellant

AND:

CLEMENT IKIN and KAREN IKIN

(Plaintiffs) Respondents

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 2 December 1997

For the reasons given by Shepherdson J., I consider that this appeal should be dismissed with

costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10974 of 1996.

Brisbane

Before Pincus J.A.
McPherson J.A.
Shepherdson J.

[Beattie Sales & Admin. P/L v Ikin & Anor.]

BETWEEN:

BEATTIE SALES & ADMINISTRATION PTY LTD
A.C.N. 010 182 377

(Defendant) Appellant

AND:

CLEMENT IKIN and KAREN IKIN

(Plaintiffs) Respondents

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 2 December 1997

The respondents owned a Hamelex tipper trailer. On 12 February 1993 the appellant quoted

to repair the trailer after it had been damaged in a roll-over accident. The respondents accepted the

quote and the appellant did the repair work. The respondents paid for that work.

The respondents sued for damages for breach of the contract to repair alleging a failure by the

appellant to exercise the due standard of care and skill in effecting the repairs. The existence of the duty

was not in issue. The duty was implied under the agreement between the parties and there was an

implied warranty to similar effect by virtue of s.74 of the Trade Practices Act 1974.

At trial a learned District Court Judge found in favour of the respondents on both liability and

damages. This appeal is against the finding of liability against the appellant.

The following description of the tipper trailer taken from the learned Trial Judge’s reasons is not

challenged:-

“The trailer had a metal bin, underneath which two longitudinal aluminium bin rails were attached. The purpose of these bin rails was to stiffen the floor of the bin. when the trailer was lowered the bin rails rested on corresponding steel chassis rails. The points of contact and support were in two places for each set of rails; a three foot section at the front and a six foot section at the rear.”

In that passage “lowered” obviously refers to what occurred when the hoist operated to lower

the bin section to its “resting” position.

In October 1992 the respondents had bought this tipper trailer from Hamelex Pty Ltd of

Melbourne. They then used it in their business of sandmining in North Queensland, the trailer being

towed by the respondents’ prime mover truck.

“In about October 1992 the defendant [appellant] performed some welding repairs on the trailer to remedy cracks under the hoist area and near the cross member which is a support between the bin rails to which the floor is attached. Welding was also performed on cracks near metal wear plates on the bin rails. This work was satisfactory.”

The above extract is taken from His Honour’s reasons and the contents of that extract are not

challenged.

The appellant performed its repair contract and in March 1993 the respondents collected the

trailer from the appellant. On delivery the respondents saw that a wedge had been welded to the front

of each of the two steel chassis rails at the point of contact and support. As His Honour found:-

“These wedges were made of lengths of metal 2-3 feet long and 2-3 inches high.
Whereas prior to the accident and repairs the bin rails had rested on the chassis rails,
after the repairs they sat flush on the rear rails but at the front on these wedges mounted
on the chassis rails.”
In addition, the bin rails after repair were found not to have a positive camber, i.e. the middle

of the rails was lower than the ends when the bin was right way up. The bin rails were welded to the

bin. The evidence of Mr Beattie Jnr. in the appellant’s case showed this work was done at a time when

the bin was inverted and supported by posts at each end with the bin rails in place on the top of the

inverted floor of the bin and stressed down by a bar lying across the rails. It appears this bar was

connected on both sides to hydraulic rams which produced a downward force.

Mr Beattie Snr. checked this work - he did not measure the straightness of the bin rails by the

use of a string line or any other device or instrument. He relied on estimation by eye and his experience.

The evidence showed that the appellant intended to avoid negative camber in the bin rails, i.e.

avoid the middle of the bin rails being lower than the ends when the bin was right way up.

According to the evidence of Mr Beattie Snr. the bin rails should be “dead straight” but the

chassis rails should have a positive camber. Mr Beattie Snr. did not accept that after the appellant had

repaired the truck, there was a negative camber on the bin rails. He did not measure them, saying “my

sight is by eye”. He believed the bin rails were “dead straight”. The learned Trial Judge in his reasons

for judgment noted that Mr Beattie Snr. conceded that he had limited knowledge of the capacities of

aluminium bin rails.

These matters of the wedges and the camber were important in the findings made by the learned

Trial Judge and to which I now refer:-

“I have no doubt that the trailer was not restored, by the defendant’s repairs to proper working condition. There is no evidence that repair was impossible. There is no suggestion that the use to which the plaintiffs put the trailer after repair was unreasonable. It seems therefore to be an inescapable conclusion that the defendant’s repair was faulty. On the balance of probabilities I consider that the fault lay in two respects. First it is probable that the bin rails were not put into positive camber, but into a negative camber, even though that negative camber might have been only a very slight one such that line of sight did not disclose it. Second, it is probable that the length of the wedges fixed to the front of the chassis rails was insufficient.”

Mr Priestly, counsel for the appellant both at trial and in this Court, does not contest the finding

as to negative camber of the bin rails - he correctly recognises this was a credibility issue and that the

learned Trial Judge had before him evidence to justify that finding. I should for completeness add that

His Honour had evidence from Ronald Charles Bird, a factory manager who had worked for Hamelex

for 26 years and who had been involved in the manufacturing of Hamelex trailers and the general

engineering involved in that manufacture. After the appellant’s repairs in 1993 he examined the subject

trailer and found the bin rails had a negative camber of 25 mills down, meaning that at the centre the rails

were 25 mills below the levels of each end. He satisfied himself of this by using a string line and a tape,

the latter to measure the 25 mills. Bird told the learned Trial Judge that the bin rail normally cambered

upwards, i.e. the ends were lower than the middle - he called it a positive camber - and said the positive

camber was to be present because of the weight that the trailer was carrying. He swore that he had

never built a trailer with negative camber and that the respondents’ trailer was the only one he had ever

seen with a negative camber.

I turn now to the learned Trial Judge’s finding that the length of the wedges was probably

insufficient. Mr Priestly accepted that there was evidence from Mr Grijmans, a mechanical engineer

called by the respondent who examined the subject trailer in 1993. Mr Grijmans’ evidence dealt with

the wedges and also the camber. In the course of his evidence, when asked whether he noticed

anything about camber on the bin rails, he said:-

“Basically the camber didn’t seem to be - didn’t appear to me to be consistent with the original design of the trailer in that the modifications that were made had affected the geometry of the support so that the camber no longer seemed to be operating in the way that it was designed to.”

He was then asked what should have been the correct camber and he replied:-

“Well I can’t give you dimensions and tolerances et cetera but the camber should have been such that when the trailer was fully loaded that the trailer - that the bin bore evenly on the support members, and that didn’t appear to be the case.’

He explained the terms “positive and negative camber” as follows:-

“Put simply the bin rails in the unloaded position should be burrowing up so that when the trailer is fully loaded they bear horizontally on the chassis or the supports afforded by the chassis.”

He said that when he observed the trailer in 1993 his memory was that the trailer at the time was

unloaded and the camber did not seem to be working - he added “In other words the camber didn’t

seem to be there”. He spoke of having seen steel wedges welded to the steel chassis of the trailer.

He was asked about having observed any cracking, and he said:-

“The bin rails were where the cracking appeared and from memory the cracking was

in the vicinity of the wedges.”

He described the cracking as severe and as appearing to be consistent with fatigue failures, in other

words constant flexing of the structure in that area.

He said this would be caused if the support structure was moving as the trailer was being towed

along the road and constantly flexing. When asked for his views as to why the cracking would be at

that point as opposed to anywhere else he said:-

“Well I believe there was a load concentration at that point or just before it causing the bin to flex around that point. In other words the load wasn’t evenly distributed along the support. It was more of a point load than a distributed load.”

He said that would have the effect of creating a pivot around the end of the wedge and that would in

turn cause stress or fatigue fractures leading up from around about that point. He said this was his

interpretation of the failure when he observed the trailer and observed the cracking. He was then

asked:-

“Would there have been any difference if those wedges had been longer or would that

condition still have manifested itself.”

He answered:

“I couldn’t really say that but I - what I would say is that if the - if the geometry of the chassis rails had been correct then the load would be distributed evenly along the bin rails and that flexing wouldn’t have occurred. Now whether that was achieved by longer wedges or some other method of returning the chassis geometry to its correct position, either method would probably have worked but my recommendation at the time was that the chassis geometry should be returned to the original manufacturer specification.”

He was then asked:

“And when you refer to the chassis geometry do you mean the correct camber of the

bin rails?”

And he answered:

“Yes. That’s what I’m talking about, yes. The geometry of the bin and the - because the two go hand in hand basically. The two geometries have got to fit together properly.”

When asked he said that he thought the trailer in the condition in which he saw it was unsafe and he

actually recommended that it be taken off the road.

He later said he was not able to comment on what flaw in the permanent rectification produced

the end result in that the geometry was incorrect but did say that it had nothing to do with the welding

as such. When asked to comment further he said:-

“It appeared that the camber hadn’t been reinstated properly on the bin rails, as part of the work and that an attempt had been made to make the chassis rails match what was happening with the bin by welding wedge shaped pieces of steel onto it and - which meant that it was a compromise at the end of the day which obviously didn’t prove to work too well.”

In the light of Mr Grijmans’ evidence there can be no doubt that the appellant’s alteration to the

camber from positive to negative and the insertion of the wedges did alter the design of the tipper trailer.

Mr Priestly recognised the appellant’s repair work had these effects and he submitted, correctly, that

the appellant’s contract was to repair only. He further submitted that his clients’ obligation was only “to

restore, reinstate the integrity of the manufacturer’s design”.

On this topic he argued that the wedges inserted by the appellant provided the same level of support as the support pads in the original design - the support pads were on each chassis rail. The evidence disclosed that when the appellant had completed the repairs to the bin rails there was a gap

between the original support pads on the chassis rails and the bin rails themselves and the wedges were

affixed with the intention of filling this gap.

Unfortunately for the appellant, the cracking of which the respondents complained, appeared

in the vicinity of these wedges after the appellant had performed its repairs.

The evidence of Mr Grijmans makes it clear that the cracking resulted from there being a point

load rather than a distributed load and that if the geometry of the chassis and the geometry of the bin

rails had been correct then the load would be distributed evenly along the bin rails and the flexing [which

caused the cracking] would not have occurred.

Accepting as correct Mr Priestly’s submission that the appellant’s contract to repair obliged it

only “to restore, reinstate the integrity of the manufacturer’s design” nevertheless it is quite plain on the

evidence that the appellant did not do that. Instead it altered the design in two ways - first it introduced

a negative camber (albeit slight) instead of a positive camber, and then as a result of the negative camber

which it had introduced, it affixed to the chassis rails the wedges, which were foreign to the design of

the tipper trailer.

These alterations caused an alteration in the geometries of the chassis and the bin rails, resulting,

as Mr Grijmans pointed out, in a point load rather than a distributed load. The point load caused flexing

which in turn caused the cracking in the bin rails.

The cracking and the cause of the cracking was a point at issue in the case.

Before the February 1993 roll-over and subsequent repairs, there had been, as I have already

pointed out, cracks under the hoist area and near the cross-member which is a support between the bin

rails. The appellant had done welding repairs on these cracks and also on cracks near metal wear

plates on the bin rails. As His Honour pointed out, this work was satisfactory.

Mr Priestly relied on these pre-February 1993 cracks and submitted in effect that the cracking

in the same area after the appellant’s 1993 was equally consistent with having been caused by the same

forces that caused the cracking which had been repaired in October 1992. Thus he submitted that there

were problems inherent in the trailer design irrespective of the wedges which his client had affixed and

of the consequences flowing from their presence.

He relied on these submissions to argue that the learned Trial Judge’s finding:-

“There is no suggestion that the use to which the plaintiff put the trailer after repair was unreasonable. It seems therefore to be an inescapable conclusion that the defendants’ repair was faulty.”

was erroneous and not supported by the evidence.

In my view this argument fails. While it is true that in his reasons His Honour went on to say that

on the balance of probabilities he considered the fault lay in two respects, Mr Priestly’s argument must

be addressed as if those particular findings were absent.

While it is true to say the evidence did disclose cracking in the same area of the trailer before

February 1993, one cannot overlook the alterations to the geometries of the chassis and the bin made

by the appellants in the course of these repairs in 1993, and the consequences of those alterations as

stated by Mr Grijmans in his evidence.

At the end of the day the submission fails primarily because the matters to which I have just

referred enabled the learned Trial Judge to draw the inference and make the finding which he did,

although perhaps he could have expressed it more plainly. In Holloway v McFeeters (1956) 94 CLR

470 Dixon CJ in discussing the drawing of inferences said (at p 477):-

“The inference may be made only as the most probable deduction from the established facts, but it must at least be a deduction which may reasonably be drawn from them.”

At page 480-481 of the same case Williams, Webb and Taylor JJ said:-

“Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause ‘you need only circumstances raising a more probable inference in favour of what is alleged . . . where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture; see per Lord Robson Richard Evans & Co Ltd v Astley [1911] AC 674 at 687 . . . All that is necessary is that according to the course of a common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.’ These passages are extracted from the unanimous judgment of this Court in Bradshaw v McEwans Pty Ltd (unreported, delivered on 27 April 1951).”

I would dismiss the appeal with costs.