Montgomery v Cmv Voltruck Pty Ltd No. DCCIV-95-95 Judgment No. D3562 - [1997] SADC 3562

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Hume

Hearing

21/02/96 to 26/02/96, 28/02/96 to 29/02/96, 28/03/96.

Catchwords

BREACH OF CONTRACT - BREACH OF IMPLIED WARRANTY - TRADE PRACTICES ACT - CONSUMER TRANSACTION ACT Repairs to engine of truck carried out without due care and skill; breach of warranty implied by S.74(1) Trade Practices Act and S.9(1) Consumer Transactions Act. DAMAGES - MEASURE OF Assessment of damages for cost of repairs to truck engine and alleged loss of profits;failure of plaintiff to mitigate loss.

Representation

Plaintiff WARREN MONTGOMERY:
Counsel: Mr N Niarchos - Solicitors: Niarchos &; Co

Defendant C M V VOLTRUCK PTY LTD:
Counsel: Mr M Bell - Solicitors: Lawson Downs

DCCIV-95-95

Judgment No. D3562

21 February 1997

(Civil)

MONTGOMERY -V- C.M.V. VOLTRUCK PTY. LTD.

Civil

Judge Hume

The plaintiff seeks damages from the defendant in respect of the performance by the defendant of certain work on the engine of a Volvo Primemover in April l993 and work done in rectification of the apparent defects in that work under warranty, in August l993.

The basic work involved was rectification of an oil leak in the timing cover on the trucks engine.The work involved on each occasion the disconnection of the drive shaft of the fuel injectionpump and its replacement.The substance of the plaintiff's complaint was that the defendant on one or other of the occasions it performed work on the truck, incorrectly set the timing of the fuel injection pump so that it was set in retardation from the appropriate position (the plaintiff alleged by some eight degrees) as a result of which incomplete combustion took place in the cylinders of the motor, giving rise to an excess build up of carbon within the cylinders and in particular within the ring grooves of the pistons therein, leading ultimately to the breaking of various piston rings.In the case of cylinder number 3, the plaintiff alleged that that in turn had lead to seizing of the piston and then to damage requiring a complete overhaul of the engine.The plaintiff claimed damages of the estimated cost of repairs to the engine totalling approximately $16,500. The repairs were not in fact completed.

The plaintiff also claimed the sum of $39,200 for losses alleged from the time of the break down to the date of issue of the summons on 1st February l995 and thereafter at the rate of approximately $800 per week as a result of loss of profits from operation of the truck.

The substance of the defence was that the work was done in a proper manner and in accordance with the procedures laid down by the manufacturer of the engine in its workshop manuals.The defendant denies that the plaintiff suffered any loss and pleads that the plaintiff failed to mitigate any loss by failing to have his engine repaired despite an offer by the defendant to sell to the plaintiff the necessary parts at discounted prices - in March l993 at a fleet cost 10% less than retail, and then in April l994 at trade prices which were significantly less than "fleet cost".

The plaintiff's reply joined issue.

As will appear the central issue in the case is whether the method of timing which was used by the defendant when reconnecting the drive to the fuel injection pump was correct.The plaintiff's casewas that in all the circumstances, particularly in view of the age of the truck the appropriate method of timing was one involving "spill" or "spill port".

This is a method which involves the disconnection of thefuel lineconnecting on the first element of the pump to the injector in number one cylinder of the motor.The first element of the pump of the engine is the one which injects fuel into thenumber one cylinder of the engine. The crankshaft is then rotated by hand.The pump is driven by the crankshaft.As the pump is turned, fuel is emitted from the first element.That emission is observed, and the pump is adjusted or "timed" by reference to timing marks on the flywheel attached to the rearmost end of the crankshaft to ensure that fuel is injected by the first element of the fuel pump into number one cylinder of the engine at the appropriate time to enable proper combustion of the fuel and air compressed by the piston in the cylinder.

After the adjustment, the first element is reconnected to the injector for number one cylinder.

The fuel pump is constructed so that injection by the other elements of the pump into the other cylinders of the engine follow in the appropriate cylinders at the appropriate times.

The evidence advanced by the plaintiff was that the method of timing which I have described in outline is one which takes into account worn components in the drive mechanism of the injection pump and was the prudent and appropriate method to use in the circumstances of the case.

The defendant's position, in summary, was that the appropriate method to use was one by reference to timing marks made on the couplingmechanism between the fuel injection pump, drive shaft and the pump's internal mechanism.This is known as the"witness" or "witness mark system".

The plaintiff acquireda primemover by paying $16,000 to its owner and taking over a debt which was owing to AGC by way of lease.The plaintiffdid not fix the day on which he took possession of the truck but it was in the early part of l989 (tr.7.8).For two years after that acquisition he operated the truck in partnership with his fiance Vicky Paterson. Their relationship ceased for a period of time.The plaintiff then operated the truck on his own account. That was during the period relevant to this case. He was driving the truck himself.The vehicle was used for interstate haulage, mainly to Katherine and Darwin in the Northern Territory.He had a contract to carry houses for a company styled "Nu-Steel Homes" and at the relevant period of time he was taking return loads of sleepers fromdismantledGhan railway from Maree and bringing them to Adelaide.

The primemover was over 20 years old at the time of purchase.The plaintiff described it as then being in poor condition.It was a Volvo, Registered number UDS-429, powered by a diesel motor.The model of the engine was TD100A. The evidenceis a little unclear but I find thatin addition to the payment of $16,000, the plaintiff made lease payments to AGC finances that totalled approximately $6,500.Those werepaid by monthly instalments in the order of $450 per month.(Xn.56.5-.16).

During the four yearsfollowing that takeover it was the plaintiff's evidence that he carried out repairs.He said atpage 9.9 "Over a four year period I completely rebuilt the engine, the gear box, the suspension, the brake system and the steering".His evidence as to that continued.

I receive that evidence with some reservation.The plaintiff said that the work he did himself on the truck wasto the brake system, replacement of suspension parts work as to the steering mechanism. He said that he did some work when the work was done on the engine.I do not think it was accurate of him to describe that as a "complete engine rebuild".The work that was done of the engine was done for its technical part by Complete Transport Repairs.The breakdown giving rise to the repair work on the engine occurred on approximately 22nd July l990 (seethe work diary exhibit P1 which indicates that on Thursday 23rd July the truck was taken "off the road for rebuild" and recommencedwork on the Sunday following the weekend of 31st July l990).

The plaintiff's evidence was that he paid for "the rebuild kit", which was piston rings, gaskets, cylinder liners and associated parts from a firm named Gasco. The plaintiff said the kit was "on special". at that stage and that he paid $2,500 for it.Machining of the engine block was done by Complete Transport Repairs.(tr.11.34)

The cost of parts for a "complete engine rebuild"which the plaintiff pleaded in the claim before me was approximately $6,500. It would appear from the exhibits P2 and P3 that the pleading is approximately correct. I find on the balance of probabilities that it was not a "complete engine rebuild" which the engine of the plaintiff's truck underwentin July l990 but a reconditioning of the top end of the engine involving honing and facing the block to install new cylinder liners, replacement of piston rings and gaskets and associated work which I assume would have included grinding of valves and adjustment of tappets.

Mr Montgomery stated that the fuel injection pump was not removed from the engine blockduring the work of July l990.nor was anything done to affect its drive or timing system (xn.14.7).He said that it was not touched before that occasion, nor afterwards until early in l993 when the engine developed a bad oil leak from the accessory drive seal at the front of the engine.The plaintiff took the truck to thedefendant to have the leak rectified by the fitting of a new seal.He said that it was explained to him by representatives of the defendant that it would probably be necessary to have new bearings fitted to the accessory drive shaft as part of the work because of probable wear.The plaintiff did not purport to be a mechanic but his understanding was that to do the work required it was necessary to remove the grille from the body of the primemover, to remove the radiator, the timing cover, dismantle the accessory drive at the front of the engine and to remove the fuel injection pump. (15.37-16.1)

Exhibit P2 details the work which was done and the parts which were supplied. By invoice dated 30th April l993,the description of labour performed and charged for reads as follows: "rectify oil leak and timing cover, repair radiator, o/no27127, R/rradiator and repair, r/r timing cover, fitted new fuel pump drive, shaft and bearings, reassembled timing chest, retimed engine, fitted all hoses as required, refitted radiator and filled with water and road test."The charges for labour were $1,014.50, for workshop materials were $55.80, and for parts supplied $570.42 making a total of $1,614.72.

It was the plaintiff's evidence that after this work was done he made complaints about a noise emanating from the front of the engine to Mr Anderson, who he knew as Alf, and who he described was the workshop manager for the defendant company, who told him that the noise probably came from a new timing gear or gears which had been fitted as part of the accessory drive train.

Mr Anderson subsequently agreed in evidence that he had said that to the plaintiff butthat he was in error in saying it. It is plain from the exhibits P1 and P2 that no such gear or gears were fitted by the defendant to the plaintiff's truck.

The plaintiff said that immediately after the work subject of invoice P2 was completed he took off on a trip delivering a house to Katherine.He said that at a point approximately 2,800 kilometres before he reached Katherine the alternator "fell off".He continued to Katherine and as he was unloading the house he had an auto electrician attend to the alternator.The bottom bolt of the alternator had, it appears, stripped thread inside the accessory casing. It appears on the whole of the evidence that the auto electrician at Katherine was unable to supply a new bolt or do anything but apply some "Loctite" to the thread and do the bolt up again.(Loctite is an adhesive material used to prevent threads loosening under vibration).The plaintiff said the alternator fell off again a couple of months later and was replaced in Katherine with what appears to me to be a reconditioned alternator by an auto electrician there. (evidence 18.17 - see also Exhibit P6 dated 10.9.95)

It is clear on the evidence that the plaintiff made various complaints to the defendant's officers about the alternator, about the noise at the front of the engine and the fact that the grille and radiator and cabin stabiliser bars were not properly fitted and about poor power and high fuel consumption.Following the work done by the defendant in April l993 the plaintiff said that the oil seal continued to leak despite that work (tr. 20.12) and ultimately the truck was returned to the defendant for work to be done under warranty to rectify the defect.That work was done at no charge to the plaintiff, although a hydraulic hose was also replaced that was charged for.The plaintiff said that he observed that the mechanic doing the work was a person whom he described as "an apprentice", "very young fellow". (tr.20.32).It is clear that the plaintiff was mistaken about that. The work was in fact performed by Mr Steven Jarrett, a tradesman who subsequently gave evidence about the work which he had done.Mr Jarratt was certainly not an apprentice, whatever view the plaintiff may have taken about his age.

The plaintiff deposed that he watched the work being done.On the topic of timing of the fuel injection pump he described it in the following way. (tr 21.27-22.12)

A. He loosened the bolts, drive coupling, he climbed underneath with a long screwdriver on the flywheel and turned the engine over until the time marks lined up on the flywheel with a mark on the bell housing, then came back, aligned the coupling marks up, the marks on the coupling as well, and retensioned the bolts.

Q. Did you see the marks when he was doing this.

A. I didn't take much notice, no.I seen that he was adjusting it, yes.

Q. Could you see precisely what he was doing with the marks and the setting on the timing.

A. No.

Q. But you had a rough idea what he was going about doing.

A. I knew what he was doing, yes.I asked him "was it out very far?" and he said "yes, it was out."I won't mention the work he said.

Q. You say what he said.

A. He was "it was out a f'ing long way."

Q. that is what he said to you.

A. Yes.

Q. Did you say anything to that.

A. "That's a bit funny." I said "The truck has been running rough I have been complaining about it."He said "that is what it would be; the timing was out."

His evidence in cross-examination was somewhat different from that (page 62.26-63.4):-

A. He removed the coupling on the accessory drive again.

Q. that would affect the timing.

A. On that coupling - I'll try and explain it - there is a keyway, or supposed to be a keyway on the coupling.When he removed the coupling from the shaft on the pump, there was no key in the keyway.Now, I asked him, I said 'How do you get that lined up exactly on the shaft if there is no half-moon key in there to line it up?' and it was said to me that they don't use a key any more - it's clamped tight with the shaft and that is sufficient to do the job - and I said to him 'Well, are you going to check the timing again?' and he said 'Oh, yeah, I suppose I'll check the timing again', and so he got underneath and checked it and that's when he said it was an f'ing long way out, and he adjusted the timing again and clamped it to the shaft, still with no keyway in that drive shaft."

Mr Jarrett did not recall any such conversation (tr.368.35-369.23; 369.28-30).

Amongst the plaintiff complaints to the defendant prior to the warranty work being done were that the engine seemed to him to lack the power which it had prior to the work in April l993, and that fuel consumption was poor in comparison with what it had been.Those complaints were acknowledged by Mr Anderson the service manager, and I find on the probabilities that the complaints were in fact made.

After the warranty work was done the defendant continued to operate the truck. Late in January l994 he went to R & LDiesel Services Pty. Ltd. to have some specialised welding done on a trailer.Amongst its advertised skills R & L DieselServices Pty. Ltd. offered services in specialised welding. The defendant had a conversation with Mr Passehl, the principal ofR & L Diesel ServicesPty. Ltd. in which he complained of lack of power and poor fuel consumption.Mr Passehl did a preliminary check on the timing, with an electronic timing light.That device is described in detail inthe evidence but in essence is a light which is activated by the pulse of fuel passing through the delivery line between number 1 element of the injection pump and number 1 cylinder. When shone on the flywheel as the motor is running flashes of that lightgive an indication of when fuel is injectedinto number 1 Cylinder by reference to timing marks on the bell housing and the fly wheel.

The plaintiff said that Passehl advised that fuel was being injected too late or "in retard".The plaintiff asked Passehl to retime the engine.I shall turn to Mr Passehl's evidence at a later stage.In shortMr Passehl retimed the engine using spill timing, or spillport timing, in the way that I have briefly described.

As witnessed by Exhibit P7, an invoice byR & L Diesel Services Pty. Ltd. to the plaintiff that work was done on the 27th January l994.

It was the plaintiff's evidence that both power an fuel performance were improved and that he contacted Mr Passehl, after a round trip to Katherine and back, to tell him so.

The following week the plaintiffhad a loadto Alice Springs.He leftafter lunch.At about 2 o'clock the following morning he was about 20 kilometres out of Alice Springs when "a loud bang came from theengine, followed by three bangs - two or three but short bangs and the engine cut out approximately - 100 k.p.h.I was doing, and the engine stopped, stalled .. It stalled, I knocked it out of gear and the engine was actually stopped the minute I pulled it out of gear it stalled.(32.9-18).

The plaintiff said that he allowed the engine to rest for about five minutes and then attempted to start it again.The engine did start but with a loud knocking.He then walked to a roadhouse about five kilometres up the road and telephoned Mr Passehl.On Mr Passehl's advice he carefully drove into Alice Springs.There he went toa firm called Outback Repairs, who drained the oil, but found no signs of contamination in it.The mechanic at that firm listened to the engine with a stethoscope and told the plaintiff that the knocking was coming from the centre of the engine from no. 3 or no. 4.Mr Montgomery said that the advice given to him was to drive at low revolutions back to Adelaide, which he did.He then took the vehicle to R & L Diesel Services Pty. Ltd. with a request to Mr Passehl to find out what was wrong with the engine and repair it.

A great deal of trial time was spent on the events which followed but at the end of the day there is very little contest.Mr Passehl disassembled the engine.He found traces of aluminium adhering to the bore of cylinder no.3. which indicated to him that the piston had bound in that.There were broken rings on that piston and on some other pistons in the engine.Mr Passehl observed excessive carbon build up on the pistons in the engine and carbon packed behind piston rings in the ring grooves.It was his opinion that the carbon build up had caused the rings to break.That allowed hot gasses to pass the subject piston no.3 causing it to overheat and bind in its cylinder which in turn caused the engine to seize temporarily.Mr Passehl called in Mr Reack, automotive consultant to inspect the engine.Mr Reack had not until this time been known to Mr Passehl except by reputation. Mr Passehl told Mr Reack that when he had retimed the engine by spill-port timing on 24th January, he had found that the timing was 8 degrees retarded.

Based on that information and his observations, Mr Reack's opinion summarised together with his findings in Exhibit P.18, was that as a result of retarded timing fuel injected into the engine had been incompletely burned, causing excessive carbon formation behind the rings, breaking rings in some cylinders particularly no. 3.By reference to tests conducted by Adelaide Fuel Injection Services Pty. Ltd. which demonstrated the fact, he concluded that the injection pump was not delivering excessive fuel but to the contrary was delivering marginally less than the manufacturers recommendations.I shall turn to Mr Reack's evidence shortly.

What happened next is not precise but it is clear that the defendant's representatives were called to inspect the stripped downmotor.The dates are not vital.Mr Anderson came with Mr Aikman who was then manager of the defendant.He was unable to give evidence.Unfortunately he died shortly prior to trial.In summary the plaintiff's evidence, commencing at page 35 of the transcript is that the defendant's representative. Mr Anderson, inspected the parts.He was of the impression that Mr Raeck was present on that inspection but he was not sure..He did not remember Mr Aikman, but thought the Defendant's spare part manager attended (tr.34). Mr Montgomery said (tr 35.2) that he had at that stage threatened the defendant's representatives that he would go to the television media.He said that at the conclusionof the inspection the spare parts manager said to him "What do you want us to do for you? (37.9)" and that he replied (37.24) "Nothing until I speak to a barrister or a lawyer".

The plaintiff's evidence is confused, but I come to the conclusion that before this first inspection he had actually gone to the defendant and obtained the parts necessary to completely rebuild the engine, including work which was required to be done to the bottom end, i.e. the crankshaft, main bearings, and so forth, in addition to the top end -replacement of the cylinder liners, pistons, rings and ancillary work.

The parts of which he obtained delivery are described in invoice P8, at a cost of $5,300 dated 5th March l994 and in invoice P9, totalling $1,515.70 dated 7th March l994.It was the plaintiff's evidence that he obtained those parts and paid for them with a cheque and delivered them to R & L Diesel Services Pty. Ltd. in preparation forthe work to be done.

It was the plaintiff's evidence (41.9-.17) that between the time of purchasing the parts and the inspection by the defendant's representativesof the dismantled engine, he had received Mr Raeck's first report.As a result of that report he cancelled the cheque he had given to pay for the parts.The inference is clear that he had formed the view that the Defendant was responsible for the breakdown.

The plaintiff said that he had borrowed $8.500 from Avco Finance to purchase the parts necessary to rebuild the truck's engine and that he had entered into an arrangement with Mr Passehl that he would work out the labour cost of the rebuild by working for Mr Passehl without wages on other jobs which R & L Deisel Services Pty. Ltd. had to do.

In fact the truck was never repaired.Ultimately after obtaining a court order the defendantseized the parts which had been delivered by the plaintiff to Mr Passehl and held by him.

Beforethe plaintiff cancelled his cheque it is clear on his own evidence (46.9) that, with the arrangements he had in placeas to labour, he was in a position to have the motor of his primemover rebuilt and I make that finding..

There was a second inspection by people from the defendant companyabout a week after the first.It did not advance matters.In addition to making his threat of exposure to the media Mr Montgomery had set up a video camera to record the inspection.I draw the conclusion that after receiving Mr Raeck's report the plaintiff concluded that the whole of his troubles were due to the defendant's fault andthereafter made no effort to continue with repairs when he was in a position to do so. Instead he adopted an adversary stance.I have come to the conclusion that the plaintifffailed to take steps reasonable available to him to mitigate whatever loss he might have suffered as a result of the engine's failure.He turned to litigation at that stage instead of proceeding to effect the repairs and get his vehicle back on the road.That course would have limited his loss, and allowed responsibility for the breakdown to be resolved subsequently, by litigation or other means.The plaintiff used part of the money which he had borrowed from AVCO to fund the costs of two solicitors.He then sought the advice of the solicitor who brought this action to trial.He also used the money borrowed from Avco for living.

At the date of trial the truck remained in its dismantled state, although the crank shaft had been ground and the block had been faced.The plaintiffhad paid $1,000 to Mr Passehl but it is not quite clear in respect of what that payment was made.

I did not regard the plaintiff as a reliable historian, although in the broadesttermsI accept the history he gave surrounding the matter.I find that whatever reasons motivated him,his conduct in his dealings with the defendant after the subject breakdown and his failure to proceed to repair the vehicle were not reasonable in the circumstances.

Mr Raeck gave evidence.I have referred to the substance of his report.Mr Raeck was a man of mature years and very broad experience.He had done an apprenticeship with General Motors Holden at Woodville for five years as a fitter and turner.He obtained technical qualifications in motor mechanics, welding and metallurgy over a period totalling 6 years.He kept himself up to date with current technological manuals.His practical experience spanned five years with General Motors Holden, two years as an engine fitter and turner for New Guinea Airways at Parafield, and two years as a diesel engine fitter on earthmoving equipment with E & W S department, as it then was. He was a leading hand mechanic for Champions for four years; he was a foreman mechanic at Parafield Motors for four years; he was a workshop manager at Jansen Motors at Edwardstown for ten years; supervising engineer for the engine reconditioning department of Southcott Ltd. for a period of six years. Following that he had been self employed as a automotive engineer.He was a member of various professional associations.In l988 he was appointed a member of a "panel of experts" pursuant to s.8(3) of The Commercial Tribunal Act l982 for the purposes of the Second Hand Motor Vehicles Act.

Mr Raeck's opinion in Exhibit P18 as to the cause of the failure of the plaintiff's engine has already been referred to.The opinion was repeated in oral evidence.

He formed his opinion with the advice given to him by Passehl that the engine timing had been tested by Passehl and found to be retarded by 8 degrees He observed on his inspection carbon buildup in the pistons and carbon packing in the piston rings which was consistent with incomplete burning of fuel, (113-114) and accumulation of carbon on the heads of the pistons.He was told that the engine had failed 350,000 kilometres after a major overhaul.It was Mr Raeck's evidence over his years of quite vast experience with diesel engines in primemovers that that distance was insignificant.He gave anectodal evidenceof diesel primemovers of which he was aware when he was involved as consultant to a company which ran large numbers of trucks of vehicles which ran 1.3 million kilometres between overhauls.

His opinion was clearly expressed at 116, that there wastwo causes of carbon buildup of diesel engines of this type.Firstly retarded timing and secondly by overfuelling.He said that Exhibit D15 the report on the test by Adelaide Fuel Injection Services indicated quite clearly that if anything the injection system was marginally underfuelling the engine.The only conclusion which could be drawn from his observations therefore was that the excessive carbon buildup was caused by retarded timing.He referred to Butterworths Diesel Manual at paragraph 16.6.1 - Exhibit D21, in support of his view.I accept on the whole of the evidence that that publication is a recognised text.

Mr Raeck's opinion as to the cause of engine failure can, I think accurately be summarised as follows: retarded timing of the engine led to overfuelling, which resulted in incomplete combustion of the fuel.That in turn resulted in the carbon buildup particularly behind the rings which he described as "carbon packing" which led ultimately to failure of piston rings, particularly in cylinder no.3 That resulted in a bypass of burning gasses overheating the piston in cylinder no. 3causing it to seize, partially welding itself temporarily to the cylinder liner.This was evidenced by aluminium left on the steel liner.

Mr Raeck was firmly of the opinion that the spill time method which I have briefly described was both recommended and should be preferred as the method of timing injector pumps where the injector pump was of the plunger type such as in the present case.He said that on the basis of the whole of his experience in particular from his period of time with E & W S department where he said he was responsible for the reconditioning of some 2,000 diesel units of the subjecttype and his period of time of 15 years at Southcott Engineering as supervisor of the shop repairing diesel engines.The principal reason, on his evidence, that spill timing should be preferred is the fact that it eliminated the factor of wear in the drive mechanism of the injector pump. The number of gearsin that mechanism varied.He said that generally they would be between three and five in number.He explained the method of spill timing in detail at pages 119 to 120 of the transcript in his examination-in-chief.I refer to that passage in its entirety but I do not think that it assists in this judgement to set it out in full here.

He referred to Butterworth'sparagraph .32.5.7. in support of his opinion.I set out the passages in sub-paragraphs (a) and (b) of that publication.

(a)Spill timing method.A convenient method of measuring the point of commencement of fuel delivery from the pump is as follows.The fuel delivery valve, but not the seat, is removed from the pump to be 'timed' and a spill pipe, such as that shown in (c), Figure 32.6, is fitted in place of the high-pressure fuel pipe, so that the flow of fuel through the pump can be observed.If the fuel control rack is in the 'Stop' or 'no delivery' position, fuel will flow continuously from the spill pipe and therefore the control rack must be moved to an intermediate position; or if the fuel pump plunger has a graduated chamfer on its top edge, to the position specified by the manufacturer.

The crankshaft of the engine should be rotated manually in the normal direction of rotation until the cylinder which the pump serves is on the compression stroke.The fuel supply should then be turned on and fuel will flow through the spill pipe.The crankshaft should then be rotated slowly in the same direction as previously, to the point where fuel just ceases to flow from the spill pipe.This is the point at which the top edge of the plunger has completely covered the port in the wall of the barrel and it is therefore, the point in degrees before top dead centre, at which the pump commences to deliver fuel to the injector.

The fuel pump delivery valve should then be replaced and the high-pressure pipe between the pump and fuel injector refitted before priming the system.

(b) Witness mark method.The alternative method of measuring the point of commencement of injection, is to rely on the witness markings on the body of the pump and on the plunger guide or tappet.These provide an accurate indication of the point of closure of the port in the wall of the barrel on a new assembly.This accuracy may subsequently be prejudiced owing to wear on the components during service and therefore the spill method is to be preferred.If this method is not used to record the 'injection timing' during the manufacture of the engine, the corresponding 'spill timing' should also be recorded before the engine is put into service."

Mr Raeck was cross-examined at length with respect to his opinion as to spill timing being the proper method of diesel engines because of the elimination of the factor of wear.He did not move from his opinion, specifically when Mr Bell put to him the section in the Volvo ServiceManual dealing with timing of Volvo engines.He did not agree that the method of witness timing referred to there was appropriate and said he would not follow it but would use spill timing.It is important to set that section of the Volvo Manual out in full (Exhibit D24).

"Adjusting the injection pump on the engine.

The adjusting mark on the injection pump must coincide with the flywheel setting mark:TD 100 A-24 degrees BTDC; TD 100 B: 25-26 degrees BTDC.

1. Turn over the engine in its normal direction of rotationuntil both valves for No. 1 cylinder are closed (compression stroke).Continue to turn over the engine until the prescribed adjustment graduation on the flywheel is opposite the indicator on the flywheel casing.

(Manual contains diagram of flywheel.)

2. Adjust the flywheel to the setting mark.The scribe mark on the pump coupling must then coincide with the mark on the pumpend indication plate. If further adjustment is required, slacken the bolts for the flange on the pump camshaft and turn the flange to the correct position.

then go on with para 2.

(Manual shows diagram of position of scribe mark on pump.)"

The second sentence in paragraph 2, "If further adjustment is required, slacken the bolts for the flange on the pump cramshaft and turn the flange to the correct position", seems to me to be meaningless unless it contemplates an alternative method of timing by which the requirement of further adjustment can be ascertained, and the correct position to which the flange should be turned can be ascertained.

My ultimate conclusion is that this supports theopinion of Mr Raeck as to the appropriate method of timing particularly the engines which are known to have considerable service and presumed to have significant wear (see Butterworth's supra).

Mr Raeck had inspected the engine in its dismantled state.It was his opinion that the general condition of the engine (putting aside carbon build up and the broken piston rings which he believed had arisen from that) was not such as to of itself cause failure.He said that it was not in an unreasonable condition prior to the seizure. His view was, however, that the appropriate course for repair was to fit new liner and piston assemblies rather than attempt to hone the liners and fit new rings, pistons and gudgeons, which might have been a less expensive course.

Mr Passehl was called by the plaintiff.He was born in l942.He commenced his apprenticeship as an automotive engineer in diesel and petrol engine, but his study was diesel engines.He commenced his apprenticeship in the Northern Territory doing his academic segment by correspondence with Croydon Technical College in Adelaide.After three and a half years he came to Adelaide and set up business at Edwardstown.He continued his apprenticeship.That was interrupted by severe injuries which he received in a motor vehicle accident. Theyprevented him from working for a period of about eighteen months.He then worked again as a tradesman maintaining heavy machinery.He then moved his premises and subsequently set up a diesel laboratory as part of his business for which he handled work in the maintenanceand repair of diesel injection systems and turbo chargers.At the time of trial he employed two men in his pump room, two ingeneral diesel repairs and one apprentice.He was continuing his study for advanced automotive certification.

In summary hisevidence was that during his apprenticeship and during his experience working with diesel engines he had been taught, and used, spill timing as the timing method which should be used (188.4-.24).He explained the procedures but I do not need to set the evidence out because it did not vary from Mr Raeck's evidence or the description contained in the Butterworth extract, Exhibit P22.He confirmed his meeting with Mr Montgomery, the complaints of Montgomery that the engine was lacking in power and had excessive fuel consumption.He made an initial test on the timing of the engine with the use of his electronic timing equipment.He had previously had that device tested by a professional service and repair firm dealing with equipment of the like type, and he had also compared it himself with spill timing.It was his evidence that he had found the electronic device consistent with spill timing. That device was an Okuda ER 276G which he had purchased some years before.

He too expressed the view that spill timing wasa very accurate method of timing (tr.217.2) and the view that the witness mark system was prejudiced by wear in components of the pump such as the drive mechanisms.His view was that the appropriate method applied should have been spill timing (tr.224.6 to 225.24) (see in particular the passage of his evidence tr.215 - 220).

Having stripped and inspected the engine he formed opinion that the piston seizure resulted from broken rings caused by carbon buildup which in turn was caused by improperly burned fuel.

His observations on stripping the motor should be set out (tr.231.4-232.16):

Q. Did you check the performance of the engine in any other way before or after you did the testing.

A. Went for a ride I suppose with Mr Montgomery in the vehicle with a flat top trailer that from memory had a small load on it.Having not been operator and driver of the vehicle prior to that Mr Montgomery indicated the performance was considerably better and perhaps twhat he enjoyed prior to having work performed by Volvo on the front of the engine in the drive shaft and seal area -

Q. Did you say better than when he had the work done or better than before he had the work done.

A. No, he indicated to me the performance was similar to that prior to having that work done.

Q. Mr Montgomery had the work done, the timing checked and you saw him again following the breakdown of the vehicle.

A. Yes.

Q. He drove the vehicle back to your workshop.

A. Yes, he did.

Q And reported to you some problems he'd experienced.

A. He indicated that there'd been a loud noise from the engine, the engine had stopped and shortly after that he'd been able to re-start it.The engine was emitting a knocking sound, the knocking sound was consistent withan aluminium piston knocking against a cylinder wall.We advised him that we would have to remove the cylinder heads to make any further diagnosiswhich we did remove and found a piston head seized and consequently it had let go of the bore or the bore had let go of it and which had enabled him to drive back from I believe it was Alice Springs to Adelaide.

Q. Was it still in a seized position when you saw it.

A. No, the piston had seized, it was obvious that the pist (sic) had seized the bore, there was aluminium from the piston had been transferred tot he bore and was torn from the piston.As I say the piston had torn itself away from the bore leaving aluminium welded to the bore.Obviously then the piston was free tot ravel upon and down and perform as it should in an engine.However after seizure and transfer of metal they, the pistons tend to make a little bit of noise.Obviously they are not operating quite how they were intended to.

Q. The vehicle was able to be driven.

A. Yes.

Q. Would you bet getting any power from that particular cylinder.

A. That cylinder when I inspected the vehicle prior to dismantling the engine was firing, the engine was not misfiring, a cylinder not firing would have been obvious in the sound of the engine.

Q. When you inspected the pistons after dismantling what did you see."

Having formed that opinion but without expressing it to Mr Montgomery, he called Mr Raeck in, whom I said earlier he did not know except by reputation, for Mr Raeck's opinion to be obtained. He said, (p.252.30) that Mr Montgomery became very upset when he received Raeck's report. He said at p.253.8 that Mr West, (Service manager of the Defendant) who was known to him had asked "What can we do, how can we put the situation right" or words to that effect.

In Exhibit P30he set out an estimate of the cost of repairs,giving $4,000 as the labour costs involved with the diagnosis of the cause of the engine failure. That was not itemised and I am not satisfied that even if it were damages as opposed to costs I could make a finding that that was a reasonable sum.He gave labour costs for the rebuilding of the engine at $5,500.That was a set cost.I accept his evidence that his company would adhere to that if the repairs proceedednow, despite the lapse of time.He included the cost of Mr Raeck's reports, for which he paid, $100 each for two, making a total of $200. Quite clearly that is an item of costs. The quote for repairs themselves, that is the labour costs, was made on the basis that the parts required to rebuild the engine would be supplied by the plaintiff.

I was most impressed by Mr Passehl.He freely acknowledged that there were business and personal difficulties which had arisen between himself and Mr Aimann of Adelaide Fuel Injection Services Pty. Ltd. dating from roughly the time of these events, but I am satisfied that whatever the cause of those differences and any animosity which may or may not have existed between the two men, that Mr Passehl's opinion was one which I could rely and that I could also rely upon his evidence as to the factual matters to which he deposed.

The defendant's case was that when it worked on the subject engine to repair the oil leak by replacing the seal at the point at which the drive shaft of the fuel pump took its exit from the fly wheel housing, the work was competently done firstly on 21st April l993 and secondly on the 24th August l993.On neither of those occasions was the fuel injection pump moved, but on each occasion the fuel pump was disconnected from the drive shaft.

The plaintiff's case was that on each occasion when the couplings were rejoined the defendant's employees incorrectly timed the injection pump because it used the witness mark method.

It was the defendant's case that it always used that method on Volvo engines in accordance with the manufacturers instructions and that that was the correct timing to be used.

Essentially the defendant argued that there was no proof on the balance of probabilities that anything which it did by its servants or agents in April and August l993 went to the failure of the engine.It postulated by way of opinion advanced by Mr Aimann of Adelaide Fuel Injection Service Pty. Ltd. that in fact at the time of the failure of the engine the timing had been advanced by Mr Passehl to a point some six degrees in advance of the recommended timing, making an allowance for the fact that due to wear, in Mr Aimann's opinion the fuel injection timing had been some two degrees retarded from the manufacturer's recommendation prior to Mr Passehl's intervention.

The first witness called for the plaintiff was Mr Alfred Anderson who had been the workshop foreman for the defendant at the relevant time in l993.Hehad worked four or five years as a floor mechanic for Volvo in Denmark after completing his apprenticeship for Volvo there.He had experience in those days with the TD100A engine - the subject type of engine as fitted to the G88 Volvo Primemover which was the identifying name of the plaintiff's vehicle.He had been to several training schools for Volvo.

It was clear from Mr Anderson's evidence (tr.306.35-307.6) that the Exhibits D31, the repair order, coupled with the workshop invoice P2 demonstrate Mr Steven Jarrettwas the mechanic who performed the work done following Mr Montgomery's order of 27th April l993.Mr Anderson took no part in the work himself.He thought thatin the ordinary course of business. It would be a leading hand who would check the work or the mechanic, Mr Jarrett himself. That check would have included a road test. (tr.308.28-309.2)

Mr Anderson described the work which he said would have been done in accordance with ordinary practice.(tr.309.12 et.seq.)I summarise his evidence by saying that work involving removing the grille and radiator to get to the engine, removing the timing cover, undoing the clamping bolt for the fuel pump drive shaft, replacing the oil seal for timing cover, and reassembling in the reverse order.The removal of the timing cover involved removal of the alternator.On the occasion of the first work done by the defendant the defendant fitted new fuel pump drive shaft bearings.It was Mr Anderson's assumption that that was done because they were worn. The timing cover was replaced with a new sealand the engine was retimed.This involved timing the fuel injection in accordance with the repair manual an extract of which is given in Exhibit D24 to which I have referred.

I refer again to sub-paragraph 2, of paragraph 23672-1, which makes provision for the possibility of further adjustment being required after setting of timing by the witness mark, and my views upon it.

Mr Anderson had been an employee of the defendant company for fifteen years after completion of his apprenticeship and the work which he had done in Denmark.His interpretation of sub-paragraph 2 is set out at tr. 313.8-314.4. It is my view that Mr Anderson misinterpreted the subject paragraph. Mr Anderson was cross-examined on this topic in the passage 325.24 through to 326.18.When referred to the Butterworth text in Exhibit P21, he disagreed with the comments of that author, in paragraph 32.5.7 (a) and (b).He was adamant, it seemed to me to the point of dogmatism, that the witness mark timing method was the only appropriate method and that it was invariably used on Volvo engines and in particular on engines of the type the subject of the plaintiff's claim. He said that Mr Jarrett would not have been instructed or required to use spill timing in respect of the plaintiff's vehicle on either of the occasions on which Mr Jarrett dealt withthe plaintiff's vehicle in April l993 or August l993.

Mr Anderson was present on the occasions at R & L Diesel Services Pty. Ltd. when the disassembled engine was inspected.He remembers that some work had been done on disassembled parts and that there was a conversation in which it was alleged that the defendant had mistimed the fuel injection, but his memory went little further than that.

He acknowledged that it was obvious that the fuel pump itself must have been worn. The date stamped on it indicated that it was then 14 years since it was last worked on by Adelaide Fuel Injection Services.

Mr Anderson acknowledged complaints by Mr Montgomery after the work done in April on the alternator, a noise from the front of the engine and particularly a lack of engine power.He did not consider that his employer's mechanics had incorrectly set the timing.

It is consistent with the fact that Mr Anderson had no personal involvement in the work done on the defendant's truck in April, that in response to the plaintiff's complaints about a noise coming from the front of the engine, he said thatwas the result of new timing gear having been fitted. That statement was admitted on the pleadings.Mr Anderson agreed that he was wrong in making it.I cannot see that it has any major relevance except to re-inforce that Mr Anderson had no personal involvement in the work complained of.

The evidence raised by the plaintiff as to bearings being fitted to the injection drive shaft not being Volvo parts but made in Italy is totally irrelevant.It is quite plain that the subject bearings may have been manufactured in Italy but they were authorised Volvo parts and installed by Volvo in their engines on manufacture and supplied by them as replacement parts.

The plaintiffthen called Mr Steven Jarrett.He was a diesel mechanic Class A and was employed by the defendant.He commenced his apprenticeship with Volvo in March l986.He completed it four years later.During the period of his apprenticeship he worked for the defendant.After he obtained his qualifications he continued his employment with the defendant.The total period of his employment therefore was ten years, four of them working as an apprentice and six as a qualified mechanic specialising in Volvo trucks, although he did some work on other makes of trucks which had been traded in, repairing them for resale.

Mr Jarrett did not recall the specific job done for the plaintiff but he was familiar with the method which he regularly used.I set out Mr Jarrett's words.He described the process step by step in the following way: (xn.351.19)

A. To take the radiator out, you've got to take the grill off.You do that basically before you tilt the cab.

Q. Before you tilt the cab.

A. Yes, before you tilt the cab.

Q. What do you mean by tilting the cab.

A. Basically, just lift it and mechanically use the device that keeps it up, and this is before you tilt the cab, take the grill off, drain the water, unbolt the cross section things at the front, the bolts that hold the radiator in, the hose clamps in the hoses, take the radiator out, just physically lift it out from the front, and take out the steel pipe that goes along the front of the motor.Lift the motor up, undo the sump bolts, take off the cover and alternator mounts on the front of the cover and take the fan pulley off, harmonic balancer, fan pulley, plygon hub.Then you just undo all the brackets.That's as far as various things to the front of the timing cover. Undo all the bolts that hold the front cover on,.Take them off.Take all the gears off.There's camshaft gear, idler gear, timing gear, fuel pump timing gear, and take off the back cover. Loosen the flange, this bolt which couples it to the fuel pump drive.

Q. You are referring to the bolt on the fuel injection pump.

A. Yes, because that comes off the back cover; air compressor, unbolt that. Power steering pump disconnect that, take that pump off.That's about all for the cover.

Q. So you have taken all that off, and what do you do then when, presumably, you fit the new fuel pump drive.

A. Yes.Actually the fuel pump drive that is mounted onto the back housing with six bolts.You take that off.You undo the retaining plate that holds the bearings into the housing, press them out, actually physically press the bearings off the shaft, put new bearings on the shaft.And fit the new shaft and put it all back inside that cast iron housing.Put a new 0-ring on there. Seal it on to the back cover.Put the bolts back in with the new wave washers, using solastic on that 0-ring to cover it - special Volvo solastic- and time the engine on the flywheel, to see if you are up to the assembling bit."

It was his evidence that in retiming the engine he would have relied upon the workshop manual because the plaintiff's vehicle's engine was something in the

order of 20 years old (tr.353).His general description of the method of timing he used is set out in 352.24-354.16.I refer to that passage but it is unnecessary to set it out.It is sufficient to say that in short Mr Jarrett's practice would have been to follow the timingmark system.

Mr Jarrett had no clear recollection of the subject work but he did have some recollection of Mr Montgomery being present at some stage.He could not recall making any comment about the timing being "out" as Mr Montgomery had suggested. He left the courtroom to check his "story sheets" with respect to the job. They are notes made by the mechanic on the completion of each job.There was no mention in them of the discovery of mistiming.(tr.432-438).

The defendantthen called Mr Tragott Aimann.He described himself as a fuel injection specialist.He was the proprietor of Adelaide Fuel Injection Service Pty. Ltd.The author of Exhibit P15.He was born on 27th October l938.He had commenced an apprenticeship at the age of 15 years with a diesel and electric company in fuel injection and auto electrical engineering.It was a five year apprenticeship and involved academic study in electrical engineering aspect of the work.There was no academic course in fuel injection during the course of his apprenticeship. After he had done approximately three years the company was taken over by Robert Bosch Australia and he completed his apprenticeship with that company.He received electrical training at the hands of the workshop manager of the company and there was change of managers during that time.He went from Bosch to Peter's Diesel Service.He worked as a mechanic in mechanical repairsto diesel trucks of various types.After about three years of that type of employment with Peter's Diesel it was his evidence, (308.5) that he set up a fuel pump shop for that company and worked in that shop for a periodof four years until he left to start his own business in Adelaide Fuel Injection Services Pty. Ltd.in l967.That business expanded over the years.It took over the Lucas Fuel Injection Workshop business in about l990 (381.22).Hannon Brothers Fuel Injection Workshop in about l992 (381.34-.38) and bought a fuel injection business in Melbourne in l994. (382.14)At the time of trial he employed 23 people in Adelaide (381.17) and seven in the Melbourne business.

The company runs an authorised fuel injection repair workshop which is authorised to repair fuel injection pumps for various manufacturers and listed them at 382.27 as Bosch, Nippon Denso, Zexel, Cav, American Bosch and Rossamaster.

It was Mr Aimann's evidence at page 362 that it became an authorised distributor for Bosch Fuel Injection Repairs at the time he took over Hannan Brothers.He has kept up to date by attending various courses in diesel fuel injection.His principle day to day activities are supervision of the workshop and hands-on work in diagnostic problems and replacement of fuel injection units which require testing for service and repair.

With the assistance of one of his employees he hadperformed the tests the subject of Exhibit D15.

Mr Bell sought to qualify Mr Aimann as an expert witness in diesel fuel injection.

Mr Niarchos for the plaintiff objected on the basis that the evidence did not qualify Mr Aimann.Mr Bell did not initially persist with that application.

It was plain from his evidence in chief at page 406 that when working as a diesel mechanic as opposed to working in the more specialised area oftesting, maintenance and repair of fuel injection pumps.Mr Aimannhad in all his years of experience from time to timeused the spill time method when fitting pumps to diesel engines.At tr 427.14 he said:

Q. When you do the timing to engines on an every day basis how do you time the various pumps -

A. The timing to the engine, I pick fuel pumps and remove them from the engines every day of the week.There's different ways of doing timing.There's some engines you do spill timing; on other engines you line up the timing marks; on other engines you do with the dial gauge."

He said (tr.423)that the subject pump bore markings which indicated that it was last serviced by his own company in May l977.It was a Bosch T type pump. He said that his own practice was never to spill time that type of pump.He purported to say that other technicians attempt spill timing on the T type pump and experience problems, but I can not rely upon that statement because it did notcome from his own observation

Mr Aimann described the work which he had done on the pump himselfin preparation for the report D15.He proceeded upon the basis that Mr Passehl had moved the pump to a position seven to eight millimetres from the timing marks and described the method of his own testing. (pp.449-454).

It is plain from his evidence page 454.21 that the delivery of the pump was a little uneven as between elements. It is also clear from his evidence and the report D15, that the pump was delivering less fuel than specifications issued by the manufacturers of Bosch, rather than overfuelling.He found (tr. 453.19) that the timing mark made on the pump itself was incorrect by two millimetres as stated on the report D.15 which would result in a four degreeretardation in reference to the rotation of the motor itself, that is to apply injection to no. 1 cylinder at 20 degrees of rotation of the crankshaftfrom top dead centre as opposed to 24 degrees as specified by the manufacturer.I did not allow any expressions of his opinion as to what might have been the effect of that degree ofretardation upon the engine, on the basis that he was not qualified to express that opinion.Nor did I allow from him expressions of opinion as to the operation of the engine itself as opposed to the injection pump, on the basis that Mr Aimann was not proved to be qualified as an expert in the former field as opposed to the latter.(Casley Smith & Ors. v. F C Evans & Sons P/L and D.C. of Stirling (No. 1) 49 SASR 314).Nevertheless Mr Aimann said, and he was eminently qualified to say, that wear in the pump itself would have produced some degree of retardation of injection, and he did not exclude the possibility of further retardation occurring as a result of inaccuracies in marks which may have been applied from time to time to the coupling mechanisms between the injection pump drive shaft and the pump itself.

Subsequently Mr Aimann's firm proceeded to recondition the pump. It was in a reconditioned state when it was tendered in evidence.

During cross-examination of Mr Aimann asserted, I find upon hearsay, that the fuel injection pump drive shaft of the subject vehicle had machined in it a keyway designed for the use of a half moon key to fit a correspondingslot in the coupling of the pump (p.37 - drive shaft with key - and p.38 - coupling - are examples). He was demonstrated to be wrong by Mr Passehl in rebuttal, who established that the subject drive shaft (p.36) did not have a keyway or key. (tr.551-555).

That dispute did little but to reinforce finding which I make that there was animosity between Mr Aimann and Mr Passehl at the time of the trial.Mr Passehl acknowledged that, but managed to step aside from it in giving his evidence.Mr Aimann, on the other hand, was obviously angry at times, and that made it difficult to find his evidence reliable.

Despite that however, I accept the accuracy of the testing done and described in exhibit D15 - indeed the apparent beginning of the animosity between Mr Pessahl and Mr Aimann followed that date. And despite the flurry about Mr Aimann's qualifications and capacity to give opinion evidence in various areas I find it abundantly clear that he is an experienced man.He qualifies as an expert in diesel fuel injection systems. He has worked on andhas an understanding of diesel engines.He acknowledged in re-examination that retarded timing of the fuel injection system leads to the loss of power such as that which Mr Montgomery complained to the plaintiff, although he said, (page 510.11) that there may be many other factors which also result in a loss of power. Generally, that part of his evidence upon which I can place most reliance supports the plaintiff's case rather than detracts from it.

The defendant called Mr West who had been the service manager at CMV Voltruck since mid to late l990 and was the holder of that position at the relevant time.

At the time of trial Mr West was a "logistic analyst" with British Aerospace, explaining that position as one which dealt with maintainability, formal training, documentation and support data in respect of military vehicle produced by British Aerospace.He had held that position since September l995. He had worked for the defendant for a period of five years until that time.Mr West had retired from the Army after 20 years service to join the defendant. He had been a mechanic by trade and by promotion during his career in the Army had taken up a managerial positions and ultimately to the directorate which was in charge of the acquisition of vehicles for the Army.He did not say so specifically, but I assume that it was after his 20 years of service that he retired from the Army to take up his position with the defendant company.With reference to the defendant's work methods he said in examination-in-chief (at p.517):

Q. Was there any rule when you were service manager at C.M.V Volvo in relation to whether mechanics had to follow Volvo manual procedures or not.

A. It was always a procedural effect that when any repairs and that were carried out on the vehicle that the prime source of reference is always the applicable workshop manual.".

As would be expected he had no independent recollection of work done on the plaintiff's vehicle and he said at P.518.7 that"from the established procedures known to him at the time work was done for Mr Montgomery he would have expectedthat the engine would be been retimed in accordance with instructions given by the workshop manual".At 518.11 he said "I wouldn't commit anything to memory".I understood him to mean by that that his own practice and the practice followed by the defendant's mechanics was to rely upon the manual rather than memory.

Mr West recalls warranty work which was done on Mr Montgomery's vehicle in respect of a leaking seal following the work on 27th April l993 and agreed that that was the work involved on 25th August l993.

Mr West recalled in outline conversations he has had the plaintiff on the telephone in which the plaintiff expressed to him concerns about the power output of the vehicle and of the fact that the alternator had become loose quite a few times and caused some concerns. He also recalled some conversations about pins and bolts that had either been incorrectly fitted or not fitted. Again without being able to be specific he remembers in general outline that he thinks that he suggested to Mr Montgomerysee Butler's at Port Augusta.He recalls going to the R & L Diesel Services Pty Ltd premises with Mr Anderson to inspect the partially disassembled engine of the plaintiff's vehicle.Montgomery and Passehl were present then.He recalls that Mr Montgomery requestedconsent to a video being taken of the conversation of the inspection and it was his recollection that he replied that he saw no need to have the inspection recorded by video and he declined.At that stage his recollection was that the crankshaft and the engine blockhad been machined ready for reassembly.He had subsequently became aware that a substantial number of parts for the rebuilding of the engine had already been purchased by Mr Montgomery at that stage.He recalled a second occasion when he went to R & LDiesel's premises, this time with the general manager Mr Bob Aikmann and Mr Verchoor whom he understood to be "from an engineering establishment". (p.524.18)He could not be definite but he thought the Exhibits P8 and P9 related to parts necessary to rebuild the engine of the plaintiff's truck.

Mr West's recollection was only broad.He recalled advice being sought from Mr Aimann but he was not aware of specific complaints.He recalled some conversation to the effect of questions being asked of Mr Montgomery as to what the defendant might do for him but was not able to give any greater detail than that.The defendant would have been criticised if Mr West had not been called, but his evidence did not advance matters greatly.

Mr Anderson was recalled by Mr Bell for the defendant.At this stage Mr Anderson had inspected the company's spare parts bookand computer records which indicated to him that the shaft, P36 could not have been the shaft fitted to the plaintiff's truck.His evidence was inconclusive.I emerge satisfied that the shaft fitted by the defendant to the plaintiff's truck was P.36.

I make the following findings on the balance of probabilities:-

1. I come to the basic conclusion, consistently with the opinions of Raeck and Passehl, which I find reliable, that the failure of the engine in February l994 was the result ofthe seizure of piston No. 3 in its bore.That was evidenced by the finding of aluminium in no. 3 bore.

2. I find that the seizure was the result of burning gases by-passing broken piston rings.

3. I find that the rings broke because of carbon packing behind them, and that the carbon packing was the result of incomplete fuel combustion.

4. I find that the incomplete combustion was the result of the fact that the timing of the fuel injection was retarded.

5. I find that the timing was set in a retarded position by the defendant, on the occasion when it performed work on 27th April 1993 and again on 24th August 1993.

This finding is based upon the following findings which I make on the whole of the evidence:

(a) that the plaintiff experienced a lack of power and lessened fuel economy after 27th April 1993, which continued until Passehl retimed the engine on 27th January 1994.He complained of that and the fact of his complaints was verified by other evidence;

(b) that Passehl found the timing was retarded by 8SS from specifications on 27th January 1994;

(d) over fuelling was eliminated by tests on the pump performed by Aimann, and retarded timing is the only other possible cause of incomplete combustion;

(e) the timing was not interfered with other than by the defendant from the time of purchase in 1989 and Passehl's retiming on 27th January 1994.

6. The defendant should have used an alternative method of timing, i.e. spill timing.

7. It was negligent in not doing so in view of the age of the engine, and with respect to its work of 24th August 1993 in view of all the circumstances including the complaints to it by the plaintiff of lack of power and lessened fuel economy.

In addition to my findings of negligence, I find that the defendant was in breach of implied terms of contract and/or warranty implied by s. 74(1) of the Trade Practices Act 1974 (as amended) and section 9(1) of the ConsumerTransactions Act 1972 (as amended.)

The plaintiff is entitled to damages for the loss arising from the defendant's breaches.

The plaintiff claims:

(a) by paragraph 7.1 of the statement of claim $450 paid to Fletcher Freighters for "vehicle inspection and repairs".I am not satisfied that this item is proved to flow from the defendants fault and I do not allow it.

(b) by paragraph 7.2 the cost of repairs to the engine estimated at $16,000.

The evidence establishes only that repairs to the "top end" of the engine were made necessary by the defendant's default.

It was obviously economically prudent for the plaintiff to rebuild the engine completely but that cost is not a measure of the plaintiff's loss occasioned as a result of the default of the defendant.I accept the opinion of Raeck that it was reasonably necessary to install new cylinder liners, pistons and rings as units.Some allowance must be made for the fact that the engine had travelled 350,000 kilometres since the last "top end" overhaul.The value of that can only be a matter of assessment.

I have already dealt with the question of labour costs.Of the $5,500 set by Passehl, only portion is attributable to the "top end".It is probably a little more than half.I allow $3,500 under this head.

As to the cost of parts, I can only make an assessment by reference to the invoices P8 and P9, doing the best I can to identify the major items obviously involved in a "top end" overhaul, making some allowance for minor items such as small gaskets, seals and so forth, and making an allowance for the fact that the items which would have been replaced had already undergone wear.I allow $4,500 under that head.

I have found that the plaintiff failed to mitigate his loss.His nett profit before income tax from operating the truck, by reference to the profit and loss statement for the period 1.7.93 to 28.2.94, was $12,570, or approximately $390 per week before tax.(see exhibit P12).I think that had the plaintiff behaved prudently, he would have been able to have his truck operating within a maximum of four weeks from the date of break down.I make some allowance for the incidence of taxation and allow $1,200 damages for loss of income.

I therefore award damages as follows:

(a) for labour$3,500

(b) for parts$4,500

$9,200

There will be judgment accordingly.

I will hear the parties as to interest and costs.