Hold and Hold t/a Merv Hold Truck and Machinery Sales and Townsend v Hoppe

[1996] QCA 85

IN THE COURT OF APPEAL	[1996] QCA 085
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No. 129 of 1995
[Hold, Trading as Merv Hold Truck & Machinery Sales v. Hoppe]
BETWEEN:

MERVYN HOLD and KAREN HOLD trading as
MERV HOLD TRUCK AND MACHINERY SALES (A Firm)

(First Defendants) Appellants

-and-

KYM TOWNSEND

(Second Defendant)

-and-

PAUL JAMES HOPPE

(Plaintiff) Respondent

Fitzgerald P. Pincus J.A. Mackenzie J.

Judgment delivered 02/04/1996

Judgment of the Court

APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS: DAMAGES - CAUSATION - breach of s.53 Trade Practices Act 1974 (CTH) by first defendant - subsequent negligence of second defendant - whether first defendant liable under s.82 Trade Practices Act 1974 (CTH)

Counsel:	Mr S.D. Rapoport for the appellant Mr R.S. King for the respondent
Solicitors:	Bain Gasteen as town agents for Davidson & Sullivan for the appellant John Davies & Co for the respondent

Hearing date:17 October 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 129 of 1995
Before	Fitzgerald P. Pincus J.A. Mackenzie J.

[Hold, Trading as Merv Hold Truck & Machinery Sales v. Hoppe]

BETWEEN:

MERVYN HOLD and KAREN HOLD trading as
MERV HOLD TRUCK AND MACHINERY SALES (A Firm)

(First Defendants) Appellants

-and-

KYM TOWNSEND

(Second Defendant)

-and-

PAUL JAMES HOPPE

(Plaintiff) Respondent

JUDGMENT OF THE COURT

Judgment Delivered 02/ 04/ 1996

This is an appeal by the first defendants against a judgment in the District Court at Toowoomba

that the plaintiff recover $19,945 damages under the Trade Practices Act 1974. The second defendant

had an interlocutory judgment for damages to be assessed entered against him and by consent the trial

was used to assess those damages as well. The respondent plaintiff purchased a second hand Ford

Louisville Prime Mover from the appellants in about June 1993. There was a finding that the prime

mover and trailer had been acquired by the plaintiff, to the knowledge of the respondents, to enable him

to perform a contract with a tannery at Toowoomba to transport hides from Guyra to its premises.

There was a finding that representations were made to the respondent and to his father by the

male appellant and a salesman employed by him, prior to the purchase on separate occasions, that the

motor had been reconditioned. The trial judge also found that the male respondent's father, although not a proprietor of the carrying business, attended to the paper work and participated in important decisions

in the business. There was a finding that he actively participated in discussions about the acquisition of

the vehicle and that neither he nor the respondent would have been interested in the vehicle but for the

representations that it had been reconditioned.

After the respondent took delivery of the truck it broke down near Allora on the first trip, from

Toowoomba to Warwick. The second defendant attended and got the vehicle started, having diagnosed

the problem as a blocked fuel filter. The trial judge said that he was "not persuaded...that no problem of

overheating was mentioned to him". He found that the second defendant had attended the breakdown

as agent of the appellants. The following day there was an uneventful trip to Warwick to collect hides.

The findings as to what happened subsequently are that it had become clear that work needed to be

done on the engine before the trip to Guyra and back with a heavy load was undertaken. The

respondent took the prime mover to a firm which usually did his maintenance. One of the proprietors

noted significant water oil and diesel leaks and expressed the view that it would not be possible to get to

Guyra, which the performance of the contract to collect hides required the next day. He declined to do

the work necessary to remedy the situation.

The second defendant was then engaged to do the work and having done it to his satisfaction

cleared the vehicle to travel to Guyra. However he did not securely reconnect a stay which secured the

radiator connecting hose as a consequence of which there was overheating of the engine. The driver,

who was a professional truck driver, put in a considerable quantity of water and tightened the clip of the

loose radiator hose with a screw driver borrowed from a resident at Braeside, 27 kilometres from

Warwick. The driver found it necessary to use copious quantities of water on a regular basis but arrived

successfully at Guyra. The next day he replenished the water in the radiator and set off with the load of

hides. When he was about 10 miles towards Glen Innes the engine seized without any indication of

overheating which the driver said, as an experienced truck driver, he had been watching for. The prime

mover was towed to Toowoomba where the respondent's usual mechanic stripped the engine and

discovered that one of the pistons had seized. He also found electrolysis on the liner inside. He also noted that the top radiator stay was not connected to the radiator, the nut and washer being still on the

fire wall near the air cleaner. He said that the radiator support held the top of the radiator and if the

radiator could move around the hose could come loose.

The trial judge found that the condition of the engine when the prime mover was sold to the

respondent was so poor that its early breakdown was inevitable unless substantial work was done on it.

He also found that the second defendant had not assessed what was required competently and was

negligent in the repairs that he did prior to the vehicle going to Guyra. He was also negligent in advising

the respondent that the vehicle was fit to travel to Guyra. He said that the second defendant's negligence

was not the sole cause of the plaintiff's loss. The engine was beyond its useful life without being remade

or reconditioned and would quickly have failed in any event and was never going to be able to service

the contract with the tannery. Although the learned trial judge said that it was not necessary for him to

resolve the issue, he also said there was a strong case that on the occasion when the vehicle was cleared

for the trip to Guyra the second defendant had been engaged directly by the respondent or his father and

that in those circumstances the appellants were not vicariously liable for that work.

The basis of liability of the appellants did not rest upon the quality of the work done by the

second defendant. The learned trial judge found that the misrepresentations as to the engine having been

reconditioned were in contravention of s.53 of the Trade Practices Act and that the plaintiff was entitled

to damages under s.82 for any resulting loss. The basis of liability under the Trade Practices Act and

vicarious liability for the negligent repairs by the second defendant were pleaded in the alternative. A

number of complaints were made about the sufficiency of evidence to support a finding that the damage

caused to the motor was the result of more than the failure of the second defendant to ensure that the

radiator hose remained secured so that water would not escape. It was submitted that the breakdown

of the motor was caused by the failure of the second defendant to tighten the clip and that loss of water

led to the ultimate breakdown of the motor.

There was, however, considerable evidence that the quantity of water required to top the radiator up was not explicable solely on the basis of a loose radiator hose. There was evidence that could quite safely lead to an inference being drawn that there was a fundamental problem with the motor because it

had not been reconditioned as claimed and that was a contributing factor to the breakdown near Guyra.

Had that not been the basis upon which the learned trial judge decided the question of liability, it would

have been necessary to resolve the issue of vicarious liability for the work of the second defendant on

the occasion before the vehicle left for Guyra. Although there are a number of individual grounds of

appeal relating to insufficiency of evidence that the engine was defective the argument before us was

principally put on the basis that it was the defective work of the second defendant which caused the

breakdown. It is sufficient to say that there was a compelling case that there was a fundamental problem

with the engine irrespective of the second defendant's negligence and that the findings by the learned trial

judge of loss due to contravention of the Trade Practices Act based on the proposition that there had

been a false representation as to the condition of the engine and that the condition of the engine was a

cause of the breakdown were open to him. The appeal is dismissed with costs to be taxed.