GTI International v Maxwell

[2010] VCC 334

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-09-00687

GTI INTERNATIONAL PTY LTD	Plaintiff
(ACN 050 030 585)
v
MATHEW MAXWELL (in his capacity as the	Defendant
authorised representative of certain underwriters of Lloyds)

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 21, 22 & 27 April 2010
DATE OF JUDGMENT:	7 May 2010
CASE MAY BE CITED AS:	GTI International v Maxwell
MEDIUM NEUTRAL CITATION:	[2010] VCC 0334

REASONS FOR JUDGMENT

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Catchwords: Insurance- claim for damage as a result of truck accident- whether defendant has discharged onus in demonstrating that exclusion clause operated given missing brake and/or poorly adjusted brakes - whether absence of one brake contributed to the accident- whether poor adjustment of the brakes could normally and reasonably have been detected - whether defendant entitled to rely on the clause by combining conditions

APPEARANCES:Counsel Solicitors

For the Plaintiff	Mr. J. P. Brett	GK Law
For the Defendant	Mr. D. McWilliams	CLS Lawyers
HER HONOUR:

7

1          GTI International Pty Ltd owns a prime mover truck and trailer which was involved in an accident while descending the South Eastern Freeway in the Adelaide Hills on 17 April 2006.

2          GTI claims the amount of $122,258.98 for the total loss of the truck and trailer pursuant to an insurance policy with the defendant, although it accepts that an excess of $5000 should be deducted giving a total of $117,258.98.

3          GTI also seeks a declaration that the defendant is bound to indemnify the plaintiff within the terms of the policy for legal liability (to the insured limit) arising in relation to the accident. This was sought given GTI is presently a party to litigation with other parties involved in the accident.

4          Due to the sensible approach of the parties, quantum was agreed and, aside from the question of the declaration, the only issue in dispute was whether the defendant was entitled to reject GTI’s claim by reason that clause 3.23 of the policy applies.

5          It was further accepted by Mr McWilliams, Counsel for the defendant, that his client bore the onus in establishing that the exclusion clause applied, although it was only the civil standard of proof which applied.

Clause 3.23

6          Clause 3.23 of the policy is contained in Section 3 of the policy which is entitled “Exclusions” and states:

“These Exclusions apply to Your Policy. We will not pay for any loss, damage or

liability, if:…

…3.23 Un-roadworthy Vehicles

Your vehicle was operated while in an unroadworthy or unsafe condition which would be normally and reasonably detected by You and this condition contributed to the event giving rise to the loss, damage or liability.”

The application of the exclusion clause involves a three step process: condition; and

(b) whether the condition would be normally and reasonably detected by
“You”; and

(c) whether this condition contributed to the event giving rise to the loss,
damage or liability.

8          The policy contained a definition of “You” which was the “insured person(s) named in Your Policy Schedule or other persons specifically covered by Your Policy.” GTI is named as the insured in the schedule of cover. However that schedule also includes an endorsement: “ANZ 13 Approved Driver requirements.” This requirement requires a driver declaration to be completed for each driver. No cover is provided under the policy for unapproved drivers where this endorsement is included (clause 3.19).

9          Mr Bates, the driver of the truck/trailer on 17 April, had completed a driver declaration. The defendant submitted that the effect of this was that the expression “You” included Mr Bates as a person specifically covered by the policy. He also submitted that Mr Bates was an agent of GTI despite the fact that he was paid on a contract basis.

10        Although the matter is not free from doubt, it will be seen, below, that I have considered the defendant’s allegations that there were failures of Mr Bates in considering whether GTI would “normally and reasonably detect” the relevant condition pursuant to clause 3.23.

11        The defendant submitted that the exclusion clause operated in this case since:

(a) the vehicle was unroadworthy and/or unsafe because of the absence of a brake on the front left axle of the trailer. The plaintiff had positive knowledge of the absence of that brake. The absence of that brake contributed to the accident; and

(b) the vehicle was unroadworthy and/or unsafe due to the poor adjustment of the brakes to the trailer. The plaintiff could reasonably and normally have detected that condition. That condition contributed to the accident.[1]

[1]             Defendant’s written closing submissions dated 27 April 2010 para 13

12        In oral submissions the defendant also sought to make a case that the conditions when considered “collectively” satisfied the clause.

13        Accordingly I will consider whether the clause applies in respect of the absence of the brake and the poor adjustment of the brakes both separately and cumulatively.

Evidence

Expert evidence

14        The defendant relied on the oral evidence of two expert witnesses, Mr Christopher Graham and Dr Shane Richardson. No credit issues arose with either expert.

Mr Graham

15        Mr Graham has been a motor mechanic since 1977 with wide experience in the motor industry for 29 years. He is a vehicle examiner attached to the technical support group, major crash investigation unit. He inspected the vehicle at the scene of the crash.

16        Mr Graham also provided the court with an explanation as to the braking system of a truck and of the conditions he found on inspection which were not contested.

17        Briefly the vehicle operated with two types of brakes; the engine brakes and the service brakes.

18        The engine brakes retarded the progress of the vehicle by turning the engine into a compressor. The defendant did not rely on any defect in this system although the evidence suggested that it was essential for this system to work that a driver select an appropriate gear prior to commencing any descent.

19        The service brake consisted of a number of different components: an actuator rod, slack adjustor arm, “S-cam”, brake shoes and drum. As explained by Mr Graham, in order for the service brake to be effective, the actuator rod needs to move out and push the slack adjustor arm which then rotates a shaft and turns the S-cam where brake shoes are resting. The brake shoes then expand against the brake drum which creates friction in the brake drum and retards the progress of the wheel.

20        Because the brake components wear there needs to be adjustments to the linkages to ensure that, as the actuator rod is operated, the brake material still engages onto the brake drum so that it can work effectively. In this case Mr Graham described a “maximum working stroke” of 51 millimetres as the distance the actuator rod should travel. Beyond this amount, brake efficiency is decreased and once the “maximum stroke” is reached of 64 millimetres there is in fact no braking at all. He also explained the importance of the brake actuator rod to slack adjustor arm being correctly adjusted at 90 degrees. Thus, the further the actuator rod travels past the 90 degrees point the more application force is required by the brake actuator to apply the brake shoes.

21        When he examined the vehicle the trailer was lying on its right side with all brake actuators in the fully applied position. He then pressurized the air tanks but found he could rotate the left front wheel and all wheels of the centre axle.

22        He also found that most brake components were missing from the left side of the front axle of the trailer with the slack adjuster, S-cam, pivot pins and brake shoes missing. This meant that when the truck and trailer were assembled the vehicle only had 11 rather than 12 brakes.

23        Finally, the front right actuator rod and the rods at the centre axle and rear axle travelled past the maximum working stroke with slack adjustor angles being also beyond 90 degrees. He described all axles as in “poor condition.”

Dr Richardson

24        Dr Richardson was a mechanical engineer by trade with a PhD in Civil Engineering. He is currently the director of Delta-V Experts which investigates and analyses vehicle collisions and industrial accidents. He had experience which included operating vehicles for the Military but had not inspected the vehicle and was only instructed this year to prepare his report which was largely based on information provided by others.

25        His evidence will be referred to in more detail in considering the application of the exclusion clause.

26        GTI led no expert evidence despite engaging the services of Professor Field. The defendant submitted that the court might draw an inference that his evidence would not have assisted GTI’s case.[2] However, this does not assist the defendant in this case given I have ultimately determined that the defendant’s evidence does not discharge his onus. The failure to call Professor Field does not fill such gaps in these circumstances.

Evidence of driver as to the accident

[2]             Jones v Dunkell (1959) 101CLR 298

27        Mr Bates obtained a licence to drive a prime mover and trailer some 30 years ago although he had not worked as a driver for six or seven years when he first contracted with GTI in February 2006.

28        His evidence as to the circumstances of the accident was that:

• when he came to the top of the Adelaide Hills he thought he dropped down to about 13th gear out of 18- he had the engine brake on;

• that he went down the hill and was gaining speed so he tapped the (service) brakes to slow the vehicle down a little which it did;

• that he gained speed again so he pushed on the brake pedal again to slow it down a little bit more which it did;

• that he gained speed again and hit the brakes for the third time but the vehicle did not slow down;

• that he tried to change down gears and lost the gears and got the vehicle into neutral; he then couldn’t get into any gear;

• that he then just went down the hill at a fair pace “trying to weave in and out of cars” in front of him going “faster and faster” just trying to hang on; and

• that he took the last run off which also didn’t stop him and crashed into an embankment at the end of the run off.

29        The defendant made some criticism of Mr Bates’ evidence which will be referred to below. However, I generally found him to be a forthcoming and honest witness who did his best to give an accurate account of relevant events.

Other evidence

30        A number of witnesses were called in relation to the circumstances in which the brakes on the front left axle were removed in Queensland on about 10 February 2006:

• Mr O’Loughlin who was the director and owner of Sal’s Mechanical Repairs;

• Mr Barry Souter, who was contracted as a driver by GTI from 2004 to February 2007;

• Mr Richard Pang, the director of GTI (called by GTI); and

• Mr Chris Cooney, GTI’s Operations Manager and driver (also called by GTI).

31        The above evidence generally went to whether the missing brake condition “would be normally and reasonably detected” pursuant to clause 3.23. However, for reasons that will become apparent, I have not found it necessary to resolve this question.

Missing Brakes

32        Mr Brett, who appeared as Counsel for GTI, accepted that the fact that the front left brake of the trailer was disconnected rendered the trailer “technically unroadworthy” but did not concede that it rendered it unsafe.

33        It is therefore necessary to consider the other limbs of clause 3.23.

Whether missing brake contributed to the accident

Principles

34        The defendant emphasized the broad words of clause 3.23. He cited tests from various sources as to the meaning of the word “contribution.”

35        Thus he cited the New Shorter Oxford Dictionary wherein “contribute” includes to “make a contribution” and “play a part in the achievement of a result.”

36 He also cited cases decided in the context of s29 of the Compensation (Commonwealth Government Employees) Act 1971 which requires that employment by the Commonwealth be “a contributing factor” to a condition. In this context, it has been decided that the relevant aspects of employment “add their measure” to the creation of a condition regardless of whether the contribution was of any particular size or degree. It must however be “part of the cause” to contribute.[3]

[3]             Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at 328; Mills v Australian Postal Commission (1994) 32 ALD 487

37        The defendant also relied on an insurance case, Trustees Executors Limited v QBE Insurance (International) Limited[4] wherein the High Court of New Zealand was concerned with an exclusion clause in an insurance policy which excluded cover in respect of claims “arising from or contributed to” by depreciation. The phrase was therefore even broader than clause 3.23 as it included the words “arising from.” The court in that case found that “arising from or contributing to” means no more than something that “originates in”, “springs from” or “has its foundation in.”

[4]             [2010] 16 ANZ Insurance cases [16-832]

38        I accept that the word “contribution” in clause 3.23 should be construed broadly, although it must be borne in mind that the employment cases cited by the defendant were considered in a different context where a particularly broad and beneficial construction is warranted. As indicated already, the insurance case cited concerned a clause that was also worded quite differently.

39        In my view it is inappropriate to attempt to define precisely what is meant by “contribution” pursuant to clause 3.23. The preferable approach is to be guided by the general statements of principle in March v Stramare[5] bearing in mind that the court is concerned with the concept of “contribution” in this case. This approach suggests that the relevant question is whether the defendant has shown that the disconnection of the brake was so connected with the accident that, as a matter of ordinary common sense, it should be regarded as contributing to it.

[5]             March v E & MH Stramare Pty Ltd & Anor (1991) 171 CLR 506

40        A similar approach was adopted by the Supreme Court of Victoria in the case of Chief Commissioner of Police v Hallenstein[6].

[6] [1996] 2 VR 1

41        However, I will also consider the case in terms of the broader concepts of contribution relied upon by the defendant.

Dr Richardson

42        In his report of 26 March 2010, Dr Richardson opined that the absence of the brake meant the trailer was “not in a roadworthy condition” whereas the lack of adjustment meant the trailer was “unsafe.” He confirmed this distinction under cross examination.

43        In his oral evidence he explained that there was a requirement that the brakes operate evenly so that the vehicle will pull up in a straight line. By removing one brake from one side you can be out of balance between the left and right hand side so that instead of braking in a straight line, it starts to swerve because one side is more retarded than the other. He later described the problem as not providing a “longitudinally balanced braking effect on the trailer” (emphasis added).

44        Significantly then the effect of the removal of a brake was on the manner in which the truck stopped and not whether it stopped at all. Consistently with this, Dr Richardson said that one option was that the brakes could have been removed altogether from both the left and right side of that front axle. In that case, as long as the truck was able to be retarded effectively it would have been in a roadworthy condition.

45        Despite this, at one point in his written report, he opined that the collision was caused and/or contributed to, by a number of causes, which included the fact that Mr Bates descended in an inappropriate gear and also the maladjustment of the service brakes. He also makes mention of the removed brake on the front left axle of the trailer. However, he then went on to agree with the opinion which he ascribed to Professor Field, that the absence of one brake, in itself, would not cause and/or contribute to this type of collision “if the remaining eleven brakes were correctly adjusted prior to the collision” (emphasis added).

46        He ultimately concluded (at page 33):

“It is the author’s opinion, that the eleven brakes on this truck (prime mover and trailer) were not adjusted correctly prior to the collision.

Therefore, the driver was unable to use the service brakes to stop the truck. Hence, the condition of the brakes caused and/or directly

contributed to the collision.” (emphasis added)

47        Under cross examination Dr Richardson accepted that it is likely that the front left brake, had it been connected, would have been equally out of adjustment as the other brakes. He also agreed that if one brake in 12 is missing “the difference between 11 properly adjusted brakes and 12 properly adjusted brakes is pretty insignificant and the difference between 11 badly adjusted brakes and 12 badly adjusted brakes is again pretty insignificant.”

48        Although the evidence of Dr Richardson may suggest some contribution (albeit “pretty insignificant”) his answer was not tied to the particular accident which concerns the court. Moreover, when regard is given to his evidence as to the actual effect of a missing brake no contribution effect is established. Thus there is nothing to suggest that the driver braked “non-longitudinally.” Rather, the problem was that the vehicle did not stop at all.

Mr Graham

49        In his (undated) report, Mr Graham concluded that the brake efficiency for the trailer would be very low and the prime movers brake system required to be adjusted therefore he “formed the opinion that the trailer was in poor condition prior to the collision and I did find a mechanical fault that would have contributed towards or caused the collision” (emphasis added).

50        Although the paragraph above this extract cites the missing components on the front left axle, the report does not clearly isolate the “mechanical fault” which contributed to the collision as being the missing brake.

51        Further, notwithstanding that he appeared to disagree that one or two brakes was not “of huge significance” in oral evidence, Mr Graham did not say precisely how the missing brake would have actually contributed to the accident on the facts before this court.

52        Mr Graham also agreed that there was no reason why, if the left front trailer brake was connected, it would not have worn itself out similarly. Such evidence was consistent with the evidence of Dr Richardson, above.

53        Overall, the evidence of Mr Graham was more about what he found and observed and did not establish that the missing brake of itself contributed to the accident.

Mr O’Loughlin

54        Mr O’Loughlin had been a qualified motor mechanic for more than 30 years. He agreed that if one brake is not working the rest of the brakes on the trailer and prime mover should provide adequate braking force.

Resolution

55        The “but for” test does not of itself establish causation but may be used as a negative test[7]. The evidence does not establish that the accident would not have happened if the single brake was connected. No-one suggested that this heavy vehicle would have been able to stop in such circumstances. Indeed, there was positive evidence that the extra brake would not be effective since it was likely to be in similar condition to the other brakes.

[7]             March v E & MH Stramare Pty Ltd & Anor (1991) 171 CLR 506

56        Moreover, on the evidence before the court, the accident occurred because the truck was unable to stop which meant that it ultimately ran into an embankment at the end of the arrester bay. There was no suggestion that the missing brake “contributed” to this event given Dr Richardson’s evidence as to the effect of the missing brake. Thus there was nothing to suggest that the truck did not “brake in a straight line” or that it swerved to one side. To the contrary, there is some suggestion in Mr Bates’ evidence that he was able to weave “in and out.” The basic problem, though, was that the truck did not stop at all.

57        When regard then is given to the nature of the accident and the effect of having a missing brake, the evidence does not establish that the missing brake, as a matter of common sense, contributed to the accident. There is simply no nexus established between the missing brake and the truck’s failure to arrest.

58        Even when the broader concepts cited by the defendant are employed, I am also not satisfied, on the balance of probabilities, that the missing brake “added its measure” so that it was “part of the cause” nor even that the accident has “its foundation” in the missing brake or “springs” from it. Again, the evidence does not suggest that the truck failed to “brake in a straight line” rather that, after working twice, the service brakes simply failed altogether.

59        It follows that the defendant has not established that the “contribution” element required by the exclusion clause applies in relation to the missing brake. It is therefore unnecessary to consider whether or not the missing brake condition would be normally and reasonably detected by the plaintiff.

Poorly Adjusted Brakes

60        Mr Brett fairly conceded that there were poorly adjusted brakes which rendered the trailer “unsafe” within the meaning of the policy.

61        The remaining limbs of the clause must therefore be considered.

Normally and reasonably detected

62        There were some unsatisfactory aspects of the evidence of GTI in relation to its maintenance systems. Indeed, Mr Pang accepted that GTI did not have a system in place for inspecting its trailers to see that the brakes were working, rather it was left to the driver to go to service and to tell Mr Cooney if there were mechanical problems.

63        Nevertheless, GTI was a small transport company, with only four prime movers and trailers. Further, the evidence of Mr Cooney was that there was servicing every month or 20,000 kilometres. There was also evidence of invoices adduced into court. An invoice of 3 February 2006 described works done to the trailer as “carry out full grease and adjust all brakes. Check over.”

64        GTI submitted that even if the maintenance programme was shown to be inadequate (which was not conceded), the defendant had not shown that the poor adjustment condition would be normally and reasonably “detected” as an actuality not as a potential.

65        However, the defendant relied on the following:

(a) that the experts suggested that the defect should have been identifiable;

(b) that the “tug test” in particular should have identified the defect; and

(c) that the vehicle should have been serviced again within two months of the
last time it was serviced on 3 February.

Expert evidence

66        There was evidence of Dr Richardson who opined that “the poor adjustment status of the trailer and prime mover would… have been identified if there was an effective preventative maintenance program being operated by GTI prior to this collision” (page 34 of his report).

67        However, the evidence was somewhat vague as to precisely what would have identified the defect concerned in this case. Dr Richardson spoke of the importance of servicing and of driver inspections. However, apart from the use of the “tug test” which will be considered below, it was unclear that an inspection per se would normally and reasonably detect poorly adjusted brakes. The question of servicing will also be separately considered.

68        As emphasised by GTI the expert evidence was also unclear as to when the defect in this case even arose so that it could have been “normally and reasonably detected.”

69        Although Mr Graham stated that the mechanical fault was not going to happen leaving from Melbourne, he could not say when it would have first presented itself.

70        Dr Richardson stated that these problems should have been identifiable “days, if not weeks before if the trailer was in continuous operation. Prior to this event there should have been indications that the brakes were getting to the end of their effective service operations, I would have expected days, if not weeks” (emphasis added).

71        As will be seen below, however, the evidence did not establish that the vehicle was in continuous operation prior to the accident. Moreover the fact that the trailer was “getting to the end” does not necessarily suggest the defect had actually presented.

72        The expert evidence therefore does not clearly establish that the poor adjustment would have been normally and reasonably detected prior to the collision.

Tug test

73        In terms of the tug test Mr Graham described it as a simple method whereby the driver connects the trailer and engages the trailer brakes so as to try and “tug” the vehicle. If the brakes are effective the unit should not move.

74        Both experts suggested that the problems with the brakes should have been identified by a tug test.

75        However, Mr Bates gave evidence that immediately prior to the accident he picked up the trailer on the Thursday prior to Easter from the Topstart yard (where there was an arrangement to park GTI’s loaders) and performed a tug test at that time. That he then went to Narre Warren for Easter at which time he parked the unit in front of the police station, disconnected the trailer to wash the prime mover and then took the trailer back to the police station and hooked it up. He then performed another tug test the night before his departure. He then drove from Melbourne to Ararat the next morning where he stayed for a night and then left for Adelaide the next day. He did not perform another tug test in Ararat.

76        The defendant submitted that I should reject the evidence of Mr Bates and/or find that he did not conduct the test properly. However, as indicated already, I generally found Mr Bates to be an honest witness and am not prepared to reject his evidence as to the undertaking of the tug test. Although there were some gaps in his recollection relating to the traumatic events surrounding the actual accident, this is perfectly understandable given the high stress he must have been under at this time. Moreover, he was forthcoming in conceding that he did not do the test again on departing from Ararat.

77        There was also no reason to find that he did not conduct the test properly. Although he had not been driving for some time (as emphasized by the defendant) he had worked as a driver (albeit “on and off’) for some 30 years. There was no reason to reject his evidence that he conducted the test properly particularly given it was in his interests to do so. The viability of the brakes during the tug test is also corroborated by the initial operation of the brakes (twice) at the start of the Adelaide Hills descent.

78        The evidence of the experts must thereby be considered in the light of what actually happened which is that a tug test was conducted shortly prior to the accident which did not identify the relevant condition.

79        Although Dr Richardson and Mr Cooney suggested that the test be performed daily, there was also conflict in the evidence as to whether this was really so. Thus, Mr Souter suggested it was only necessary when the trailer was first hooked up. Even Mr Graham appeared to suggest that it only should be done every time the driver connects to a new trailer. He then described the “good working practice” of doing it after a period of rest but this only appeared to be directed at circumstances wherein vehicles have been tampered with. Mr Richardson also fairly conceded that he was not aware of any requirements/recommendations given to drivers when they go for a heavy vehicle licence.

80        The evidence did not clearly establish that the “tug test” should have been utilised “normally and reasonably” to detect the defect in this case.

81        Moreover, the evidence does not even establish that an extra tug test at Ararat would have detected the defect in any event. As indicated already, the evidence does not establish when the brakes actually went out of adjustment.

82        Accordingly, I am unable to find that a tug test was one of the ways the defect would have been normally and reasonably detected as required by the clause.

Servicing/Inspections

83        As indicated already, the evidence suggested that the brakes were last adjusted on 3 February 2006.

84        In terms of regular inspections, the evidence of Dr Richardson was that there should be a programmed inspection every two months or every 20,000 kilometres. However, if the program is based on time this should be done on the basis of the time that the vehicle was “actually operating”.

85        The evidence of Mr Graham spoke of regular inspections at 10,000 kilometres or every month although there was nothing to suggest this was “normal and reasonable” or that it should be preferred to the evidence of Dr Richardson.

86        Mr Graham also described the “grease monkey” test wherein a full service and inspection took place through the use of a “grease monkey” and gave an example of it being performed correctly by some “maintenance personnel in Adelaide.” However, the evidence also did not establish that it was “normal” or “reasonable” for such a thorough inspection to take place outside the normal servicing schedule. Moreover, he agreed that if the truck was sitting in a yard for a month there was no point servicing it at the beginning and end of that month.

87        The evidence of Mr Cooney was somewhat vague. He suggested that the vehicle had done “9,000 kilometres….over 9,000 kilometres” since it had been repaired. However, something in the order of 9000 kilometres is well short of the 20,000 kilometres recommended by Dr Richardson (and does not clearly exceed the 10,000 cited by Mr Graham).

88        Nevertheless, the defendant relied on the fact that, by the time of the accident on 17 April, more than two months had passed since the brake adjustment of 3 February.

89        A difficulty is that there is nothing to suggest precisely when the trailer was actually operating during this time period.

90        It is unclear how long the vehicle was off the road when the brakes were adjusted on 3 February. The evidence also suggests that the front left brake was then removed on/about 10 February by Sals in Queensland while the vehicle was being driven by Mr Souter. Mr Souter then returned to Melbourne with the vehicle on about 13 February. However, in closing submissions Counsel for the defendant fairly accepted that there was nothing to suggest that the vehicle was used during 13 February to late March. This was consistent with GTI’s invoices and Particulars of Loss (which Mr Pang accepted to be an accurate reflection of the works done on the truck and trailer) which suggested that the truck had repairs carried out from 13 February to 23 March while the trailer remained in the Top Start yard.

91        Counsel for the defendant then suggested that the vehicle was used by Mr Bates for trips from late March to 13 April (being the Thursday prior to Easter when he picked up the trailer from Top Start). Nevertheless, there was simply no evidence led to support this suggestion. Rather, the evidence of Mr Bates was that he could not recall how long he had been driving the prime mover and trailer combination prior to the accident.

92        The evidence is therefore unsatisfactory. However, given the defendant has the onus I am unable to be satisfied as to precisely when the truck/trailer was in operation from the time its brakes were adjusted (on 3 February) until the date of the accident such that a service was overdue.

93        Moreover, even if I was to accept the defendant’s case at its highest, the result would be that the vehicle was used from late March, but not used from 13 February to late March. The evidence thereby would not establish the two months of use as recommended by Dr Richardson (and does not even clearly establish the one month cited by Mr Graham).

94         In these circumstances the evidence does not establish that any service was “normally and reasonably” due such as might detect the defect.

95        Moreover, the evidence also does not establish whether such a service would detect the defect given the expert evidence was unable to determine when the defect actually arose.

Summary

96        The evidence is somewhat unclear as to precisely what would have normally and reasonably detected the poorly adjusted brakes. However, the defendant has cited both the tug test and regular servicing.

97        In terms of the tug test, the evidence does not establish that an extra tug test would be either “normal or reasonable,” nor that any further tug test would have detected the condition.

98        The evidence also does not establish that an extra service was due, nor that it would have detected the defect, particularly given the uncertainty as to when the defect arose.

99        It follows that the defendant has not established that the poor adjustment was something that would have been normally and reasonably detected in the circumstances of this case.

100       It is therefore unnecessary to consider the “contribution” limb in this case. Even if the poor adjustment of the brakes contributed to the accident, I am not satisfied that GTI could reasonably and normally have detected that condition.

Combination

101       The clause speaks of a “condition” in singular terms. It is inappropriate in such circumstances to consider the conditions in this case on a collective basis. This is particularly so given if there is any ambiguity, the clause should be strictly construed against the insurer contra proferentem[8].

[8]             The Guardian Assurance Company Limited v Condogianis (1919) 26 CLR 231

102       In any event, on my findings above, there is no suggestion that the two conditions worked together to contribute to this accident. Rather, it is only the singular condition of the poorly adjusted brakes which could have contributed to the accident since the evidence does not establish that the missing brake actually made any contribution to the accident at all. It follows that it can only be the (singular) condition of the poorly adjusted brakes which GTI should have normally and reasonably detected on the presumption (but without so finding) that this condition contributed to the accident. On my findings already, I am not satisfied that this is the case.

103       In these circumstances, the defendant gains no assistance from combining the two conditions.

Declaration

104       GTI suggested that the making of a declaration was important so as to create an issue estoppel as to the operation of the exclusion clause.

105        However, the reasons already make clear that the exclusion clause does not operate on the evidence before this court.

106       Accordingly there is no utility in the making of the declaration.

Conclusion

107       The defendant has not discharged his onus in establishing that the exclusion clause applies.

108       There is judgment for GTI in an amount of $117,258.98.

109       I will hear from the parties as to the question of costs.