DANIELS v BIDGOOD - [2006] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
DANIELS v BIDGOOD
[2006] SADC 116
Judgment of His Honour Judge Boylan
29 September 2006
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK
Plaintiff clailmed his truck's engine failed owing to defendant mechanic's faulty repairs. Defendant argued that engine failed owing to pre-existing fault in engine. Plaintiff's claim failed.
Held: Decision of Special Magistrate affirmed

DANIELS v BIDGOOD
[2006] SADC 116

This is an application to review a minor civil decision.
The plaintiff (Applicant) is a fencing contractor. He owns a diesel tray-top truck. The defendant (Respondent) is a diesel mechanic.
In July 2004, the defendant advised the plaintiff that he needed to recondition the motor of the diesel truck or to replace it. The plaintiff chose to replace it. The plaintiff bought a second-hand imported motor said to have done only sixty thousand kilometres. The plaintiff caused the motor to be delivered to the defendant who installed it in the truck. The plaintiff drove the truck locally for some eight weeks without any sign of trouble. He then drove it to Whyalla. On that journey, the temperature light came on a number of times. On each of those occasions, the plaintiff stopped and waited for the light to go off and topped the radiator up with water. On his return to Adelaide, he took the truck back to the defendant. The defendant replaced the radiator which, according to the defendant, was “forty percent blocked” with a new one, for which the plaintiff paid. The new radiator was supplied by a manufacturer in Brisbane.
Because the plaintiff needed the truck urgently and because the part was not available on the relevant day, the defendant did not install a new water level sensor when he installed the new radiator. A water level sensor is separate from the temperature gauge system. The sensor warns the driver when the water level in the radiator falls below a certain level. The defendant did not tell the plaintiff that he had not replaced the sensor.
In early December 2004, the plaintiff again drove the truck to Whyalla. On the return journey (near Port Germein), without warning, the truck stopped. The engine had failed and the truck had to be towed back to Adelaide. Again, the plaintiff returned it to the defendant.
The motor had “seized”. There was no compression and it had to be replaced. In addition, the radiator tank had “blown” and the radiator had to be replaced also.
The defendant assumed that it was his responsibility to make good the damage. He took the attitude that it was, to use his words, “a warranty job”. He bought a second-hand motor from a wrecker and he also bought another new radiator from the manufacturer in Brisbane. He sent the damaged radiator back to that same manufacturer in the hope that it was under warranty. The manufacturer needed to inspect it. The defendant went ahead and installed the replacement motor and the new radiator. The truck was ready to be collected by the plaintiff. At that stage, the defendant had no intention of charging the plaintiff for the replacement engine, the new radiator or any other parts, or for any labour costs. However, the plaintiff did not want to accept the truck. He complained that the replacement motor was not as good as the imported sixty thousand kilometre motor which he had supplied. Accordingly, his truck remained with the defendant.
In the meantime, the manufacturer in Brisbane reported to the defendant that it was not the radiator which had caused the problem. The manufacturer said that only very high pressure in the radiator could have caused the damage to it: the motor, not the radiator, was the cause of the trouble. Accepting what the manufacturer had said, the defendant formed the view that nothing he had done and no parts supplied by him had been the cause of the motor’s failure and, therefore, he was entitled to be paid something for his efforts. He was not willing to return the truck without some payment. There was a stalemate. Eventually, the defendant decided that he wanted to be done with the dispute. He offered to hand over the truck without payment but only on the condition that the plaintiff signed a disclaimer. The plaintiff refused to sign. Proceedings were issued. At some time, the Magistrates Court ordered the defendant to return the truck. He did so. The plaintiff has maintained his claim to recover the costs of hiring a truck while his was in the defendant’s possession. That period was about three months.
The plaintiff’s claim came on for trial in the Magistrates Court at Elizabeth. The plaintiff gave evidence and called Mr Barter, an experienced diesel mechanic. The plaintiff tendered some documents and called other witnesses, but I need not canvass that evidence. It is now irrelevant. The defendant gave evidence. He asked the learned Magistrate to receive the report from the Brisbane manufacturer but his Honour refused to do so on the basis that it was hearsay.
I shall not repeat the trial evidence. A summary of it is enough. There were two different theories put before the learned Special Magistrate about the reason for the failure of the motor. Those two same theories were put before me on review. It is fair to say that they were more clearly defined before me.
On one point the parties are agreed: the radiator tank “blew” because there was a fault inside the motor. They are at issue about what caused that fault inside the motor. The plaintiff says that, whatever the fault was, it was caused by the motor overheating. He says that, had the defendant installed a water level sensor, he would have been alerted to a drop in the water level and could have remedied the problem before any damage was done to the motor by overheating. On the other hand, the defendant says that the lack of a sensor is irrelevant. There was a problem with the motor, probably a blown head gasket. That fault caused a great increase of pressure in the radiator which, in turn, caused the radiator to blow.
The learned Special Magistrate made these findings:
… I find the most likely cause of the engine overheating was due to either a cracked head, cylinder block or other failure with the new engine purchased by the plaintiff and not as a result of the defendant’s failure to install a low water sensor or other failure on his part. I am satisfied that the installation of such a sensor is highly unlikely to have made any difference.
With great respect, his Honour was entitled to make those findings. The plaintiff’s own witness, Mr Barter, agreed that the scenario suggested by the defendant was quite possible. He agreed that, if the original fault was in the motor, then lack of a sensor would have made no difference as the failure of the motor and the blowing of the radiator would have been instantaneous. The Magistrate found that one of the theories was more probable than the other. Even if his Honour had not been able to make that finding, there was no evidence before him on which he could have found the converse, namely, that the plaintiff’s theory was more likely than the defendant’s. That is, there was no evidence to resolve the competing theories. The plaintiff had the onus of proving that the defendant was at fault. He was unable to do so and his claim had to fail. The Magistrate was right to dismiss it.
The defendant made a submission before me that the two theories could still be tested by stripping down and inspecting the failed motor. If there is a fault in it, inspection will reveal that fault. The motor is still at the defendant’s premises. When the defendant removed it from the plaintiff’s truck, it had no compression and, thinking it worthless, the defendant cast it aside. The defendant says that inspection would now be useless because it has been idle for so long that deterioration would not now allow the original fault to be revealed.
I am of the view that any inspection of the engine would be a useless exercise. Both parties agree that it was a fault inside the motor which caused the motor to fail. Their dispute is whether that fault had been in the motor, albeit latent, at the time of purchase by the plaintiff or whether it appeared shortly before the failure owing to the defendant’s negligence. An inspection now might reveal the fault but it could not reveal the cause of the fault. Therefore I decline to remit the matter for further evidence about the state of the motor.
I affirm the decision of the learned Special Magistrate dismissing the claim.
The learned and special magistrate ordered that the plaintiff pay the defendant’s reasonable costs up to the time the matter became a minor civil action. The plaintiff has submitted that the defendant should pay the costs of the plaintiff’s calling at trial two witnesses whose evidence, it turned out, was not in dispute. I accept that submission and order that the defendant pay to the plaintiff his reasonable costs incurred in calling Mr O’Leary and Mr Gallasch. Otherwise, I affirm the costs order.