Newberry v Scammell
[2020] VCC 1997
•18 December 2020
1
| IN THE COUNTY COURT OF VICTORIA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-01575
| GORDON RENDLE NEWBERRY | First Plaintiff |
| and | |
| NORMA WINIFRED NEWBERRY | Second Plaintiff |
| MAREE JOY NEWBERRY | Third Plaintiff |
| JOHN GORDON NEWBERRY | Fourth Plaintiff |
| v | |
| ELIZABETH LOUISE SCAMMELL | First Defendant |
| and | |
| CARL ARTHUR SCAMMELL | Second Defendant |
---
JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 13, 16, 17 and 23 November 2020 | |
DATE OF JUDGMENT: | 18 December 2020 | |
CASE MAY BE CITED AS: | Newberry & Ors v Scammell & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1997 | |
REASONS FOR JUDGMENT
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Subject: TORT – NEGLIGENCE
Catchwords: Inferences where case based on circumstantial evidence – defendants towing caravan – wheel detached due to catastrophic failure of wheel bearing – consequent grass fire caused damage to plaintiffs’ property – no direct evidence as to actual cause of bearing failure – res ipsa loquitur not applicable – statistically most likely known cause of bearing failure is human error – whether sufficient evidence to make the inference that the bearing failed as a result of defendants’ negligence – probability as to likely potential causes in general insufficient to prove actual cause of bearing failure – proceeding dismissed
Legislation Cited: Wrongs Act 1958
Cases Cited:State of Victoria v Kozarov [2020] VSCA 301; Masters Home Improvement Australia Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88; R v Karger (2002) 83 SASR 135; R v Vivona (Unreported, Victorian Court of Criminal Appeal, 12 September 1994); Scott Fell v Lloyd (1911) 13 CLR 230; Edmunds v Edmunds [1935] VLR 177; Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81; Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640; R v Lowe (1997) 98 A Crim R 300
Judgment: Claims against each of the defendants dismissed. Judgment in favour of the defendants.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S W Stuckey QC | Dawes & Vary Riordan Pty Ltd |
| For the Defendant | Mr T R Messer | Hall & Wilcox |
Table of Contents
Background
Summary of findings
The hearing
Agreed facts
The Plaintiffs’ case in negligence
The Plaintiffs’ lay evidence
Maree Joy Newberry
The Defendants’ lay evidence
Elizabeth Louise Scammell
Carl Arthur Scammell
Colleen Margaret Cattanach
The Plaintiffs’ expert evidence
Jack Alexander Hardy
The Defendants’ expert evidence
Andrew Enkelman
The Plaintiffs’ submissions
The Defendants’ submissions
The inferences relied upon by the Plaintiffs
Conclusion
Orders
HER HONOUR:
Background
1 On 9 February 2014, Mr and Mrs Scammell were returning from a caravanning holiday at Barmah. Mr Scammell was driving the family’s four-wheel drive Pajero, towing their caravan.[1] Mrs Scammell was sitting in the front passenger seat of the car. Her son and his friend were seated in the back, along with three dogs.
[1]The caravan was registered in Mrs Scammell’s name
2 It was an extremely hot day, over forty degrees, and it was a day of total fire ban. It was very windy.
3 Not long after leaving the caravan park, as the car was heading along the Barmah/Shepparton Road at Bunbartha, there was a sudden jerk and bang. The car veered slightly onto the wrong side of the road. Mr Scammell was able to regain control of the vehicle and bring it to a halt.
4 When they got out of the car, Mr and Mrs Scammell noticed that the passenger wheel and tyre of the caravan had come off. They then noticed that a grass fire had started. The fire spread quickly and there was no prospect that they could put it out in the adverse weather conditions.
5 The fire spread to a nearby farm. It destroyed property belonging to Mr and Mrs Newberry.
6 The caravan wheel and tyre dislodged from the caravan because the bearing holding it in place suffered a catastrophic failure. This failure triggered a chain reaction, resulting in the fire.
7 The Newberrys now sue the Scammells, alleging that their negligence caused the fire and was responsible for the consequent damage.
8 It was Mr Scammell who, with assistance, installed new bearings on the caravan, including the bearing that ultimately failed. Mr Scammell was responsible for the maintenance of the caravan. It is common ground that Mr Scammell had vast experience in maintaining all sorts of vehicles including cars, caravans, motorboats and racing cars. His son, a qualified light vehicle mechanic, assisted Mr Scammell from time to time in the maintenance of the caravan and its bearings.
9 Mrs Scammell played no part in servicing or maintaining the mechanical parts of the caravan. She relied on the expertise of her husband and son to do that.
10 It was not alleged that Mr Scammell had ever failed to properly install or maintain bearings in his many years of installing and maintaining bearings. In other words, no evidence was adduced to the effect that Mr Scammell was inexperienced or incompetent in that regard. Nor was any evidence adduced that Mrs Scammell would have any reason to doubt her husband’s capacity to install or maintain bearings.
11 The plaintiffs, who bear the onus of proof on the balance of probabilities, base their claims of negligence against the defendants on two alternative grounds. In essence, those grounds are:
“(a)the failure [of the bearing] occurred because Mr Scammel[l] had made a mistake in his installation [of the bearing] or maintenance of the caravan; and/or
(b)there must have been signs immediately before the accident that should have alerted Mr Scammel[l] to the impending failure [of the bearing] with sufficient time to stop and avoid the accident.”[2]
[2]Exhibit M, plaintiffs’ written submissions, paragraph 9
12 The bearing that failed and caused the fire was destroyed in the accident. There has been no forensic examination of the bearing. The plaintiffs’ case relies entirely upon the drawing of inferences – as to the first ground, that Mr Scammell “made a mistake” in his installation and/or maintenance of the relevant bearing, and as to the second ground, that (a) there must have been signs immediately before the accident that should have alerted Mr Scammell to the impending failure; (b) that those signs must have been apparent in sufficient time to stop the vehicle, and (c) that stopping the vehicle would have prevented the ignition of the fire.
13 There were no eyewitnesses to the accident.
14 The parties each called expert evidence about bearings and the circumstances in which they might fail. As shall be explained later in this judgment, the experts agreed that in the overwhelming majority of cases, bearing failure results from human error in their installation or maintenance; however, in some cases, bearing failure can be due to other factors, such as premature metal fatigue.
15 Mr and Mrs Scammell gave evidence that Mr Scammell was highly experienced in installing and maintaining bearings, that he had installed new bearings on the caravan and regularly maintained them, and that the bearings were in good working order on every occasion that they towed the caravan. Further, Mr and Mrs Scammell testified that there were no signs that the bearing was about to fail on this occasion. They stated that the accident occurred without warning.
16 When the caravan was towed to Shepparton immediately after the accident, the bearing on the driver’s side of the caravan was examined and found to be intact and in perfect order. Mr Scammell had installed both bearings at the same time, and he checked and serviced them regularly.
Summary of findings
17 For the reasons that follow, I find that the plaintiffs have failed to discharge the burden of satisfying the Court on the balance of probabilities that Mrs Scammell was negligent. In the final analysis, when pressed to explain how Mrs Scammell was negligent, counsel for the plaintiff merely submitted:
“It’s her caravan. … [S]he’s entrusted the care of the caravan to Mr Scammell … [when she should have] [e]ntrusted [the work] to a qualified mechanic … [although there is no evidence that this job must be carried out by a qualified mechanic].”[3]
[3]Trial Transcript (“T”) 278-279
18 As to the negligence alleged against Mr Scammell, I accept Mr Scammell’s testimony to the effect that he installed and maintained the bearings with all due skill, care and attention. Even if I were to reject his evidence, I would merely put it to one side. In that case, there would still be no evidence sufficient to establish negligence on his part. There would need to be evidence from some other source sufficient to prove negligence. To say that in the vast majority of cases bearing failure is due to human error in the installation or maintenance of the bearing says nothing about the actual or most likely cause of the bearing’s failure in this case.
19 As to the second ground of negligence, both Mr and Mrs Scammell testified that the accident happened without warning, they did not notice any smoke, sense any additional vibration in the vehicle, or feel a loss of steering power. As mentioned, there were no eyewitnesses. Accordingly, there is no evidence that smoke was seen emanating from the caravan’s nearside wheel prior to the accident. Even if there was smoke, additional vibration or reduced capacity to steer the vehicle, as the plaintiff’s own expert reported:
“ ... Noise, vibrations and possibly smoke would have emitted from the wheel prior to it detaching from the caravan however it is plausible that the driver did not observe any of these signs.”[4]
(Emphasis added)
[4]Exhibit C, report of Mr Jack Hardy dated 24 September 2019, page (“p”) 16
20 Moreover, even if Mr Scammell had observed smoke or noticed any signs that the bearing was about to fail, there was no evidence that this would have made any difference to the outcome. In other words, there was no evidence to the effect that had the brakes been applied, the bearing most likely would not have failed or that the fire would not have started. To the contrary, Mr Hardy, the plaintiffs’ expert witness, stated that the act of braking causes additional friction and heat to be generated in the wheel hub.[5]
[5]T175
21 In these circumstances, I find that the plaintiffs have failed to establish to the requisite degree the case in negligence against Mr Scammell.
22 The claims against each of the defendants is dismissed. Judgment will be entered in favour of the defendants.
The hearing
23 The hearing commenced on 13 November 2020 and continued on 16, 17 and 23 November 2020.
24 Mr S Stuckey QC appeared on behalf of the plaintiffs. Mr T Messer appeared on behalf of the defendants.
25 For the sake of convenience, the parties agreed to call all lay witnesses, regardless of which side’s witnesses they were, before calling the expert witnesses each side had engaged. Accordingly, the defendants and one of their lay witnesses, Mrs Cattanach, were interposed to give evidence during the running of the plaintiff’s case. That meant that all of the evidence as to the circumstances of the purchase of the caravan, the installation and servicing of the bearings, and the events leading up to and following the fire were in evidence before the plaintiff’s expert, Mr Jack Hardy gave evidence of his opinion about the cause of the bearing’s catastrophic failure. The plaintiffs therefore had the advantage of hearing what the defendants would say about these matters before calling their expert.
26 The parties also tendered an agreed statement of facts:
Agreed facts
27 The Statement of Agreed Facts is in the following terms:
“1.The Plaintiffs were at all material times after 2011 the owners of a farm situated at [##] Walsh’s Bridge South Road Bunbartha in the State of Victoria, which is the land in Certificate of Title Volume [#### ] Folio [###] (‘the Plaintiffs’ land’).
2.The Defendants at the relevant times owned a Windsor caravan registration number [###-###], chassis number [#### ##] (‘the caravan’).
3.The Third and Fourth Plaintiffs carried on business in partnership on the Plaintiffs’ land training, breeding and agisting horses for reward.
4.As at the beginning of February 2014 the Plaintiffs’ land had erected upon it, inter alia:-
(a) 1.5m high fencing designed and constructed to constrain stallions;
(b) boundary and internal fencing;
(c) a three bay hayshed measuring approximately 21m x 18m;
(d) 87 large round bales of oaten hay;
(e) a lucerne crop;
(f) various trees;
(g) an MF580 combine seeder.
5.On or about 9 February 2014 the Defendants were towing the caravan along Barmah-Shepparton Road, Bunbartha behind their motor vehicle.
6.On or about 9 February 2014, and while the caravan was being towed along Barmah-Shepparton Road, the caravan lost one of its wheels.
7.The loss of the wheel caused the axel of the Defendants’ caravan to come into contact with the road surface, generating hot sparks which ignited a grass fire which spread from the road verge to the Plaintiffs’ land.
8.The Plaintiffs’ land was severely damaged by the fire including the following;-
(a) destruction and damage beyond repair to 2,000m of stallion fencing being 1.5m high;
(b) the destruction or damage beyond repair to 8.1km boundary and internal fencing;
(c) the damage beyond repair to the three bay hayshed;
(d) the destruction and loss of 90 hectares of lucerne;
(e) the destruction and loss of 87 large round bales of oaten hay;
(f) the damage beyond repair of the MF580 combine seeder; and
(g) fire damage to trees on the property.
9.As a consequence of the damage to the Plaintiffs’ land, the Third and Fourth Plaintiffs were obliged to agist 6 wet mares and foals for 50 days … from 10 February 2014 to 1 April 2014 at a cost of $8.80 per horse per day, inclusive of GST.
10.The Plaintiffs suffered the following loss and damage:
Stallion fencing
$44,500.00
Boundary and internal fencing
$131,175.00
Hay shed
$30,500.00
Combine seeder
$1,500.00
Agistment expenses
$2,400.00
Removal of debris related to the fencing
$4,320.00
Removal of the hay shed debris
$2,500.00
Removal of damaged trees
$7,000.00
87 large round bales of oaten hay
$6,699.00[6]”
[6]Exhibit L
28 In total the plaintiffs seek an order that the defendants pay damages in the amount of $230,594.00, together with statutory interest.
The Plaintiffs’ case in negligence
29 In the Statement of Claim, the plaintiffs allege negligence against each of the defendants as follows:
“6. It was reasonably foreseeable that if the Defendants failed to exercise reasonable care, skill and judgement in the use, maintenance and care of the caravan that it might cause loss or damage to the landowners in its vicinity.
7.In the circumstances the Defendants owed a duty of care to the Plaintiffs in respect of the care, maintenance and use of the caravan.
...
13.The fire caused by the Defendants’ conduct as aforesaid occurred as a result of their failure to exercise reasonable care and skill in the maintenance, care and use of the caravan.
PARTICULARS
(a) Failure to maintain the caravan;
(b) Failure to properly inspect the caravan including its wheels and bearings;
(c) Failure to exercise proper care in the driving of the caravan;
(d) Failure to keep a proper lookout;
(e) Failure to extinguish the fire at its outset when it could be safely and reasonably contained.”[7]
[7]Statement of Claim dated 8 April 2019
30 The defendants sought further and better particulars of paragraph 13 of the Statement of Claim. In response, the plaintiffs responded:
“As to request number 1 regarding paragraph 13 the Plaintiffs say:
(a) It is not possible to give particulars of a simple failure to do something. Aspects of the failure relied upon by the Plaintiffs include:
(i) a failure to inspect the bearings on the caravan;
(ii) a failure to replace worn bearings;
(iii) a failure to replace worn bearings with good quality bearings;
(iv) a failure to repack the bearing with grease regularly;
(v) over packing the bearings with grease;
(vi) contaminating the grease with water, dirt or debris;
(vii) a failure to properly seal the bearing to exclude water, dirt or debris.
(b) It is not possible to give particulars of a simple failure to do something.
(c) Aspects of the failure include:
(i) failing to observe the sound of the failing bearings;
(ii) failing to observe the movement of the caravan caused by the failing bearings;
(iii) failing to investigate unusual sounds, movements or vibrations in the period immediately before the failure of the caravan wheel.
(d) The Plaintiffs refer to and repeat (c)(i) and (ii).”[8]
[8]Further and Better Particulars of Statement of Claim dated 6 November 2019
31 As can be seen, the plaintiffs were unable to specify with precision what acts or omissions constituted the alleged negligence. The plaintiffs made no distinction in the allegations of negligence levelled against each individual defendant.
32 As mentioned above, in closing submissions, the plaintiffs refined their claim in negligence against the defendants as follows:
“(a)The failure [of the bearing] occurred because Mr Scammell had made a mistake in his installation [of the bearing] or maintenance of the caravan; and/or
(b)There must have been signs immediately before the accident that should have alerted Mr Scammell to the impending failure [of the bearing] with sufficient time to stop and avoid the accident.”[9]
[9]Exhibit M, plaintiffs’ written submissions, paragraph 9
33 Again, it can be seen that no distinction was drawn between the alleged acts or omissions constituting the negligence of each individual defendant.
The Plaintiffs’ lay evidence
Maree Joy Newberry
34 Mrs Newberry (the third plaintiff) gave sworn evidence as the joint owner of [##] Walsh’s Bridge South Road, Bunbartha, Victoria (“the property”), the other owners being her husband (the first plaintiff) and his parents (the second and fourth plaintiffs).
35 Mrs Newberry testified to being present at the property on 9 February 2014 and gave a description of the events on that day. Her evidence in large part was uncontroversial and is covered in the Statement of Agreed Facts, referred to above.
36 Mrs Newberry woke in the morning and did some farm work with her husband before returning to the house for lunch and a nap. When they awoke from their afternoon nap, she and Mr Newberry watched Sky News television reports of bushfires burning around Gisborne. It was at this time that she first became aware of the fire spreading through the property, when her neighbour came to the house to tell her he had seen a notification of it on a “fire app”.[10]
[10]T36, Line (“L”) 31
37 When she called triple zero, Mrs Scammell was informed that the fire at the property had already been reported but due to other fires that had started first, most of the local Country Fire Authority units were already preoccupied and could not immediately attend.
38 When cross-examined, Mrs Newberry conceded that there were two other bushfires burning in the area around the property aside from the fire the subject of these proceedings.
39 Mrs Newberry testified that it was a hot, fire ban day, probably 40 degrees, and that there may have been a north wind blowing. She gave a list of the fire-damaged or destroyed property, reproduced in the Agreed Statement of Facts.
40 Mrs Newberry gave no evidence as to how the defendants maintained their caravan or of seeing the accident or the beginnings of the fire.
The Defendants’ lay evidence
Elizabeth Louise Scammell
41 Mrs Scammell gave sworn evidence as the owner of the caravan and as a witness to the accident and fire on 14 February 2014.
42 Mrs Scammell testified that she had been involved with caravans in her private life for over twenty-five years and because of her interest in them, had also worked in the caravan industry. In fact, of the two caravan companies she had worked for, one was the manufacturer of Windsor caravans, the same brand of caravan the subject of these proceedings.
43 Mrs Scammell testified that she and her husband, Carl Scammell, had owned two caravans prior to purchasing the one involved in the accident and fire. Before purchasing the caravan the subject of these proceedings, both Mr and Mrs Scammell inspected it a number of times. Mrs Scammell stated that although the caravan was obviously a number of years old, it was in very good condition, describing it as “[b]rilliant, like new….”[11] The caravan was subsequently purchased and registered in Mrs Scammell’s name.
[11]T50E, L18
44 To refresh her memory, Mrs Scammell referred to a reconstructed spreadsheet she had prepared, containing the dates and locations of various trips with the caravan, approximate distances travelled by the caravan, whether corroborating photographs or Facebook posts existed, notes about the trips, and the dates and summarised descriptions of any maintenance carried out.[12] She explained that any maintenance carried out on the caravan would have been done her husband, possibly with the assistance of their son, Rick, a qualified light vehicle mechanic,[13] and that she would not have witnessed the maintenance being carried out, other than in passing.
[12]Exhibit 4
[13]Exhibit 3
45 Mrs Scammell gave evidence that soon after buying the caravan, she and Mr Scammell went to a friend’s place to finalise upgrades to the caravan’s components.[14] Mrs Scammell had a specific memory of the wheel bearings being replaced at this stage, as it was an unusual occurrence for them to need to travel to a friend’s house for caravan maintenance. She recalled a number of specific events that happened during the time that they were visiting their friends, the Parrishes.[15]
[14]T53E, L16-21
[15]T53E, L24; T57E, L10-18
46 Mrs Scammell testified that every time they went away with the caravan, Mr Scammell would jack up the caravan and carry out an inspection before the trip.[16]
[16]T53-54
47 Mrs Scammell then described in brief compass the trips the caravan made over the next approximately fourteen months before the accident and fire. Interspersed throughout the caravanning trips, Mrs Scammell testified about a number of occasions on which the caravan was maintained:
(i) On 23 March 2013, the caravan underwent “the standard maintenance done before each trip,”[17] noted in exhibit 4 as “Jack up, check van bearings and other components”;
[17]T58E, L26-27
(ii) On 29 June 2013, the caravan underwent an inspection, the bearings were repacked, and the breaks adjusted.[18] The accompanying note in exhibit 4 says “maintenance inspection, repack bearings, adjust breaks”;
[18]T59E, L20-25
(iii) On 14 December 2013, a note in exhibit 4 recorded “Maintenance check, jack up, check brakes and bearings”; and
(iv) Exhibit 4 records an entry for 2 February 2014: “Check brakes and bearings before trip”. Mrs Scammell explained that although she had no specific recollection of Mr Scammell doing so, she was sure that in accordance with his usual practice, Mr Scammell would have checked the “oil, water, the windscreen on the car and obviously brakes and bearings and coupling and gas and whatever on the outside of the van”.[19]
[19]T62E, L18-24
48 Mrs Scammell gave evidence that at the time of the accident, Mr Scammell was driving their silver Mitsubishi Pajero four-wheel-drive wagon[20] with her in the front passenger seat, their son, Jake, and his friend, Alex, in the back seats with their three dogs, towing the caravan behind. She described the weather as “disgustingly hot … and extremely windy”.[21]
[20]Seen in Photograph 2 of exhibit 2
[21]T62E, L30-31
49 When asked to describe the accident, Mrs Scammell testified:
A:“[W]e left Barmah, it was hot, we travelled down the, …. main highway, …. - the Barmah/Shepparton Road. We were just travelling along no problem and all of a sudden, there was a - a large sort of bang and jerk as we had sort of dragged slightly onto the wrong side of the road….. I looked at Carl and he was - …. under control and was pulling it back onto the right side of the road. We pulled up quickly and jumped out.
Q:You got out of the car, is that right?---
A:Yes.
Q:And what did you see when you got out of the car?---
A:That the van was on an angle and that the wheel and tyre were missing from the passenger side of the van.
…
Carl has come around, you know, from the driver’s side and we’ve looked, you know, at the missing wheel. We’ve then observed that the van, that the wheel was back further, and he’s gone back - we’ve probably both gone up to retrieve the wheel. Then he spotted a fire in the grass. I’ve then come back to the van and car to get the fire extinguisher - there was one in both - and I’ve gone to the console to get the caravan keys to unlock the van to get the fire extinguisher out because it’s just inside the door well, in the footwell in the door. I’ve handed that to him as to, you know, we sort of had a bit of backwards and forwarding. I’ve then gone back to the back of the car to get the 2 litres of dogs’ water that would have been in there, to run back to try and extinguish fire, but it had already spread, you know, so much with the wind that I don’t believe we deployed the extinguisher and I’m sure we didn’t get to use the 2 litres of water.
Q:Were calls made to the fire service?---
A:Yes. I made them straightaway, triple-0, and another car had pulled up I think on the other side of the road closer to where the fire was, and they had also called triple-0 because I was on the phone walking back, and a lady was also on the phone. So I sort of spoke to her while we were both still on the phone, and I think the call-taker also acknowledged that someone had reported it. The other person was local to that area, so knew exactly where we were. So I hung up from the call-taker and let them give information of where it was.
Q:Did fire-fighting officers attend the scene?---
A:Not in the traditional sense of a fire brigade truck or whatever. An SES or CFA-type person came in a ute, and sort of observed and spoke to us and said that there were two other fires in the area that were possibly deliberately [l]it and out of control, and that they were dealing with them, and, you know, it was sort of noted but not dealt with.”[22]
[22]T63E-65E
50 When cross-examined, Mrs Scammell explained why she chose to purchase all three of her caravans second hand:
“Our policy with vehicles is if you buy something new you can still buy a lemon so it can be particularly with caravans … the faults …, internally, cannot be known at the time so you want somebody else to iron out the wrinkles, make sure that the aerial works, et cetera, and you’d buy second hand, yes, for price but also to make sure that it’s been proven.”[23]
[23]T69E
51 When asked whether Mrs Scammell was confident that she and Mr Scammell could properly look after and maintain a second-hand caravan themselves, she responded: “Absolutely.”[24]
[24]T69E, L30
52 In relation to exhibit 4, Mrs Scammell conceded that the dates listed are only approximate but that she would have been able to justify each of the dates.[25] Mrs Scammell added that the only record that Mr Scammell would have made in relation to his servicing of the bearings would have been to write dates on the cap of the bearings.[26] She further conceded that there was no such writing on the caps of the caravan after the accident, she had not referred to any service log when making the spreadsheet, and she had picked the dates on which it was possible that caravan maintenance had occurred.[27] Mrs Scammell further conceded that although she did not have specific recollections of the maintenance having happened on each date specified in exhibit 4, she was confident that maintenance would have been undertaken at about those times.[28] In fact, on a number of occasions when pressed about whether she had actually witnessed her husband installing or maintaining the bearings, Mrs Scammell remained adamant that her husband regularly serviced the brakes and wheel bearings as that was his usual practice and they never went on a trip without first undertaking these checks.
[25]T72E, L17-27; T80E, L10-14
[26]T78E, L21-26
[27]T80E, L20
[28]T80E, L25 – T84E, L18
53 Mr Stuckey questioned Mrs Scammell about the contents of a letter from the defendants’ solicitors, Hall & Wilcox, dated 24 November 2015.[29] It was suggested to her that the letter contained inaccuracies, presumably based on Mrs Scammell’s instructions. Omitting formal parts, the letter stated:
[29]Exhibit A
“On behalf of our clients, liability is denied for your client’s claim on the grounds set out below.
Assuming the fire which damaged your client’s property was caused by the wheel coming off our clients’ caravan (which is not admitted), it was an accident which was not caused or contributed to by our clients.
The caravan was inspected after the accident by mechanics at GV Caravan Services Pty Ltd. They ascertained that the wheel came off as a result of a failed bearing. They also confirm that wheel bearings fail from time to time (even very new bearings) and that there was nothing our clients could have done to prevent the failure. A report from GV Caravan Services Pty Ltd dated 18 February 2015 is attached.
Our clients had owned the caravan for approximately 12 months at the date of the accident. Within two months of purchasing the caravan Mr Scammell and his son (a qualified mechanic) carried out a service which included replacing the wheel bearings (with new bearings), bearing seals and split pins on both sides.
Approximately five to six months before the accident Mr Scammell and his son carried out another service on the caravan during which they checked and repacked the wheel bearings.
In addition, prior to embarking on any trip with the caravan our client invariably attached the caravan to their car and jacked it up in order to spin the wheels on both sides to see if the wheel assembly made any unusual noises. They undertook this precaution prior to embarking on the holiday during which this accident occurred and found there to be no problem apparent with the wheel assembly.
Our client’s (sic) otherwise kept the caravan in immaculate condition.
It is quite apparent from this service/maintenance history that our clients conducted themselves at all times in respect of the caravan in a very prudent manner and that they took every precaution to ensure it was roadworthy and safe. There is simply no evidence to suggest that our clients were negligent in any way or that the fire was caused or contributed to by our clients. Our clients could not have anticipated or prevented the bearing failure. It follows that our clients have no liability for your client’s claim.
….”[30]
[30]Exhibit A
54 It was pointed out to Mrs Scammell that her son, Rick Scammell, could not have been present if the bearings were repacked five or six months before the accident, despite the letter stating that he was.[31] Mrs Scammell conceded that she knew Rick Scammell was away and therefore could not have been involved with repacking the bearings at that time, adding that the letter was inaccurate in that regard and whoever wrote it was confused.[32]
[31]T86E
[32]T86E-87E
55 Mrs Scammell denied concocting the dates and details of the maintenance listed in exhibit 4, stating that she knew she and Mr Scammell would not have left on a trip in the caravan without the work having been done first, and it was an inevitable practice “like putting on a seatbelt.[33] She explained that where exhibit 4 mentioned repacking of bearings on 29 June 2013, there must have been some reason, such as a new type of grease receipt, to have prompted her to make that entry.[34]
[33]T87E
[34]Ibid
56 Mrs Scammell stated that she was proud of the care that she took with her vehicles and caravans, and when asked why she would have spent time going to car clubs and collecting information in support of Mr Scammell’s skill in maintaining vehicles, Mrs Scammell replied:
“Because I like to show that, … we’re not just some cowboys off the side of the road that don’t give a hoot about safety and have no experience and have no interest …. I’ve always been in heavy vehicle industries and Carl’s always been involved in, …. mechanical ventures of personal interest…. We were introduced because of our kindred like of said things. And that’s - …. been our hobby and our life and our lifestyle.”[35]
[35]T88E, L19-29
57 Mrs Scammell was asked about the fire and her attempts to stop it from spreading after the accident. She described grabbing a small fire extinguisher from the caravan. When asked whether Mrs Scammell used it, she said:
A:“No, it was too late for that, unfortunately.
Q:Why was it too late?---
A:Because the winds on the day had caused the fire to go from the size of, …. a wading pool, to a swimming pool, to be off into the paddock ….
…
[I]t just took off. It was very quick to spread and jumping, …. over the fence and into the paddock and, …. like a front of a house block so what’s that, …. 50 feet.”[36]
[36]T91
58 In re-examination, Mrs Scammell observed that other people, using a blanket, joined the effort to extinguish the fire in its initial stages.[37]
[37]T92, L29 – T93, L2
Carl Arthur Scammell
59 Mr Scammell testified about his ongoing interest in motor vehicles which had persisted for about forty-five years, starting when he was aged sixteen and stemming from his father’s involvement with rally-cross.[38] Owning a car by age seventeen, Mr Scammell began to do most of the tuning and servicing on his own vehicles at around this time.
[38]T95
60 Mr Scammell described a working life that almost exclusively involved motor vehicles. At age seventeen he was performing general maintenance for a drag car racing team, involving stripping down car parts and assemblies and rebuilding them. He continued in this line of work at a second drag racing team –
“… for probably another five or six years, then continued on and off, I don’t know, for the next 10 or 15 years after that, with those two particular teams anyway.”[39]
[39]T95-96
61 Mr Scammell then worked as a pit crew member of a racing team:
“…. [Doing] … Well anything. It could be changing wheels and tyres, changing bearings, re hooking engines, gearboxes, diffs. One of the cars we had at one time, a Mark 2 Jaguar, we did a complete rolling chassis stripped down, rebuild, built the (indistinct), the whole lot. So that’s generally everything.”[40]
[40]T96
62 Mr Scammell stated that he had started working for a team in Formula 5000 racing ten or twelve years ago and that he continued to do so, even at the time he gave his evidence.[41]
[41]Ibid
63 When asked specifically about his experience with bearings, Mr Scammell testified that he had personally owned approximately thirty-five cars, as well as bikes, motorbikes and go-carts, of which he had changed the wheel bearings on 80 to 90 per cent. Estimating that he would have changed at least 30 to 40 sets of wheel bearings before 2012, Mr Scammell testified that he would change bearings for his race teams –
“… at the start of the season, but then do a maintenance program on the vehicle before each race. So it could be up to six - three times to six times a year at least.”[42]
[42]T97, L4-7
64 In relation to maintenance on caravans in particular, Mr Scammell stated that he and Mrs Scammell had owned three caravans over the last thirty years and that he had done most of the maintenance on them, helped by his son, Rick Scammell, on only one occasion.[43] He described brakes and bearings as being the most important aspect of caravan maintenance, as those parts are being used “all the time on the road”.[44]
[43]T97
[44]T98, L15
65 Mr Scammell identified a number of issues that can arise with bearings, including errors that can be made during installation, such as overtightening or leaving them too loose. If the wheel has been overtightened, there would be resistance when spinning it. If under-tightened, you would notice movement in the bearing itself – “you’ll feel slop.”[45]
[45]T99
66 Mr Scammell stated that before buying the caravan the subject of these proceedings, he and Mrs Scammell inspected it a couple of times. He testified that he checked the outside of the caravan, looking to see whether there was any leaking grease on the underside of the caravan, taking the dust caps of the bearings “off with a screwdriver and just check[ing] to make sure the grease wasn’t contaminated or dirty or water or moisture in there, et cetera”.[46] They then purchased the caravan before checking it again and cleaning it some more prior to their first trip with it.[47] Mr Scammell explained that before their first trip he jacked the caravan up with a trolley jack, checked the bearings, brakes, A‑frame, and did “all the usual maintenance pre-maintenance stuff”.[48]
[46]T100, L5-8
[47]T100, L18-26
[48]T100-101
67 When asked more generally about his practice in relation to inspecting the caravan before making a trip, Mr Scammell made specific mention of checking the bearings by spinning the wheels to test for any bearing noise, taking the dust caps off and checking the grease, and usually writing on the dust caps the date on which they were checked.[49]
[49]T101
68 In terms of Mr Scammell’s practice when driving with the caravan on a trip, he testified that any time during a drive that he would stop for a break, he would put the back of his hand onto the bearings because “[t]he rule of thumb is if it’s too hot to keep your hand on there, there’s something wrong”.[50] He twice testified that he had never felt any excessive heat emanating from the caravan’s bearings when checked during any trip.[51]
[50]T102, L2-4
[51]T102, L14-16; T106, L1-3
69 Mr Scammell testified that just before the Christmas break in 2012, he replaced the bearings in the caravan “just for peace of mind”.[52] He used brand new bearings, stating that they were sealed in their boxes. He described the process that he undertook to replace the old ones:
[52]T102, L26
A:“Again the caravan goes out in front of the court, jacked up. Before we actually jack the caravan up and loosen all the wheel nuts off. It’s just hard to get when it’s in the air. Jack the caravan up, put the actual stand under, remove the wheel nuts, take the wheel off, take the bearing cap off. So before all this, you back the brakes off a little bit so it’s easy to get the drum off. Yes, take the wheel off, take the bearing dust cap off, take the pin off, the nut off, then gently, quietly smoothly - however you want to put it - remove the drum assembly with the bearings intact, and at this stage you’ve got the inner and outer bearings and a rear bearing seal, grease seal sitting in it. So on that particular van, I think we’d done both sides or I know we had done both sides. So we had the caravan in the court on two actual stands. So I repeated the process to the other side of the caravan. So the caravan was in the court on two stands, couldn’t be stolen, so there was no issue with safety. Anyhow I took the complete drums into the garage. From there, I can’t remember whether he cleaned - took the bearings out and cleaned the drums there, or we took them over to Par[r]ish’s and clean them and then regrease them there. But basically pull them apart, left it in the garage. Took the complete drums over less the bearings from memory. I’m not a hundred per cent sure exactly, but took the drums across to my friend Pa[r]rish’s because he’s got a 10-tonne press, you know, pin-punch out the shelves, the bearing shelves as they come and knock those onto the ground, clean the inside of the drum, repacked the middle of the drum with just a little bit of grease, press the shelves in. The new shelves go in with a press. You’ve got … the new bearings in hand, manually packing the bearing with grease itself in a cupping motion. So you’re basically filling up the whole bearing with grease. So you’ve got both bearings sitting in the drum, put the grease seal in the back, put a rag over both ends. On that occasion we would have taken the whole assembly back to our place and re assemble it all; checking the brakes, checking the drum. I always check the drum for thickness and scores from stones getting into the brake shoes.
Q:Would you describe the process of installing the bearing and putting it in place on the caravan please?---
A:Okay. The inner bearing is actually held in place with the seal, the grease seal on the back. So you slide the drum onto the axle, cleaned axle, slide that on, centralise it so you can put the small front bearing in the front of it. These are all pre-greased as described before. Then you get a smear of grease, put that around the inside of the bearing on the front, put the washer on, the nut, and that’s when you start your tightening process.
Q:How do you go about getting the correct tension?---
A:Basically you’d tighten up the nut itself, bearing nut, tighten it up to the point we’re spinning the wheel at the same time. Tight it up. As soon as you start feeling resistance, stop tension out. Make sure it’s tight-ish, but not too tight. Then you back it off half turn or quarter turn, depending where it takes to free it up, make it a nice free-spinning wheel basically, and adjust your brakes up, back them off so there’s no drag on it, and go through the process again. So basically you’ve got a tightened up bearing, and you put your castellated nut on the - obviously takes your split pin. There’s a hole in the axle, and you’ve got to line the slots and the nut, obviously with a hole. If it doesn’t line up perfectly, it’s best not to go too - go another eighth of a turn or whatever to go too tight. You back it off the other way just so it fits the prior anticlockwise hole. Again it would be loose-ish but not over tight. But better have no tightness in it at all, so you have it backed off. As long as you’ve got no slop in the bearing, this is probably the best set, and that’s the same with race car bearings, go-kart bearings we had, and trailer bearings.
Q:Is that what you did when you replaced the wheel bearings on this occasion?---
A:Yes. Well, Rick and I, yes. There’s a standard practice on one of the bearings, getting them to that right - the sweet spot basically.
Q:So you mentioned Rick. Was he assisting you?---
A:Yes.
Q:Where did he assist you?---
A:Sorry. To be honest, I couldn’t say which bits of the job either of us did. It was a case of I could have been (indistinct) off and he was cleaning parts or vice versa.”[53]
[53]T103-105
70 I note here that although Mr Scammell gave his evidence before the plaintiffs’ expert, Mr Hardy was called, Mr Hardy did not state that this process was incorrect or in any way flawed. To a large extent, Mr Hardy’s evidence is consistent with Mr Scammell’s evidence in this regard.
71 Mr Scammell described the day of the accident as “extremely hot, extremely windy”[54] and “very hot, windy and gusty”[55] with the caravan moving around in the wind as he drove.[56] He explained that he usually drains the caravan’s water tanks before driving and while doing this underneath the caravan, he looks at the inside and backs of the wheels.[57]
[54]T107, L13-14
[55]T107, L31
[56]T107, L31 – T108, L3
[57]T107, L18-26
72 Mr Scammell was then asked about the accident itself:
Q:“When did you become aware there was a problem?---
A:The very second I - there was almost like a jerking of the steering wheel as the car veered across on the – over the centre line onto the other side of the road and that was it. I knew there was obviously something going on. I’m trying to gain control of the car. Gained control of the car which was probably a couple of hundred metres, 150, 200 metres, 250 metres, I’m not sure, and pulled over to the side of the road.
Q:What did you do then?---
A:At that stage it was, ‘What the heck’s gone on?’ So I’ve jumped out of the car, Liz has jumped out of the car. I noticed the caravan was on – leaning to one side, leaning down onto the left, so I’ve gone around – I think around the back of the van from memory to have a look at the damage. It was quite obvious the wheel was missing or something severely was wrong and, yes, it turned out the wheel was missing and at that stage I looked back up the road and the wheel was, a guestimate, of 150 metres, 200 metres up the road. So I think from there I started heading back up the road and got a distance back up the highway to pick up this wheel when I noticed a plume of smoke coming off in the distance on the right hand side, which was obviously some part or something had caused a grass fire there, so at that stage I turned around so – I had only had a recently knee operation so I wasn’t running, I was hobbling. I started heading back to the caravan and I’ve yelled out, “Fire,” and Liz had run, grabbed a fire extinguisher, starting running up to me, I’ve grabbed the fire extinguisher, started hobbling back up to the fire and at that stage a passing motorist had stopped, this was while I was on the way back up to the fire, and his boot was open and he was grabbing a blanket out to run over and start putting the fire out with a blanket. By the time I got there he’d sort of given up because the fire at that stage was jumping 50 metres at a time. It had jumped from one side of the fence, on the road side of the fence, over the fence 20, 30 metres into the paddock and then just stopping there and observing that it was just jumping every minute or so, so there was nothing we could do, it was totally out of control. At that stage then I walked back obviously with an unused fire extinguisher.
Q:Did you remain at the scene?---
A:Yes. Yes, we remained there all up I think a good couple of hours.
Q:Did anyone call triple zero?---
A:I think Liz. Liz had rung triple O. A couple of other motorists said they had rung as well and in the meantime a CFA guy turned up and said there was a couple of other fires in the area[58] and he notified his guys as well.
Q:You were at the scene you said for a couple of hours?---
A:I think so, yes. It was a fair while.
Q:How did you come to leave the scene?---
A:The caravan was picked up by the repair chaps. A flat top or someone had organised a flat top to take it back to the repairer, I’m presuming that was organised through RACV or whatever. I was preoccupied with trying to sort out the car and caravan because the fire at one stage started – the wind had changed and the fire was coming down towards the caravan which turned out to be another issue. Because the, I presume, extreme heat caused by the axle dragging on the bitumen we didn’t realise at the time, but when we went to move the caravan the axle had melted itself into the bitumen, so it took three or four decent goes to move the car and caravan over to the other side of the highway out of the fires way.
Q:The caravan was towed to Shepparton. Is that right?---
A:That’s correct. To (indistinct) I think.”[59]
[58]These other fires were nearby, but not in any way connected to the accident
[59]T108-110
73 In cross-examination, Mr Scammell testified that it was the caravan’s drum assembly and hub that he took to the Parrish’s on which he performed maintenance when replacing the bearings on the caravan.[60] He gave a detailed explanation of the maintenance he performed at the Parrish’s with the help of their press:
[60]T112, L21-31
Q:“Do you recall where that occurred?---
A:In Par[r]ish’s garage, next to the press.
Q:The shells were removed but you now recall that they were removed at the Par[r]ish’s garage?---
A:I - yeah, they had to have been.
Q:Why is that?---
A:I - well, basically, you- you pull the bearings out, bearings come out, you clean the drum and leave everything sitting, you basically throw the bearings out and take the drums - with the shells in it and those shells must be knocked out, pressed - knocked out with a pin puncher over there and pressed in there. I would presume that’s the way we would’ve done it. But - either way, the shells were definitely pressed in with the press - - -.”[61]
[61]T113, L8-L21
74 It was not suggested to Mr Scammell that this process was in any way flawed. Nor did Mr Hardy testify that it was.
75 Mr Scammell agreed that for the axle to have melted into the road and for the bearing to have melted, the bearing must have been heated to a very high temperature.[62] While he agreed that such an amount of heat generated in the axle is likely to have caused substantial noise and burning grease in the bearing to emit smoke,[63] Mr Scammell denied that there were any signs that the bearing was about to fail. In particular, he maintained that he did not see anything in his car’s mirrors, he did not feel any vibration, and he did not hear anything to indicate any problem with the caravan before the accident.[64] When pressed for an explanation about why he failed to perceive any warning signs before the bearing’s failure, Mr Scammell replied:
“The only thing I can explain is or - or think is - was a - a bearing failed or something failed somehow. It was - it just seemed to be instant.”[65]
[62]T114, L21-23
[63]T115, L3-6, 18-22
[64]T115, L7-8, 12-17
[65]T115
76 It was during cross-examination that Mr Scammell testified for the first time that he had checked the temperature of the bearings with the back of his hand after arriving at Barmah, before the day of the accident,[66] although this evidence was consistent with his earlier evidence about his general practice of feeling for heat with the back of his hand during caravan trips. He recalled checking them as it was a hot day, and that “both bearings were fine”.[67] When asked to explain why he had omitted giving in his evidence-in-chief,[68] Mr Scammell maintained that he had simply forgotten or missed it, adding that he could say with confidence that he had a clear recollection of checking:
“As I do with every trip I do in a caravan.”[69]
[66]T116
[67]T116, L3
[68]T116
[69]T116, L28-30
77 Mr Scammell was then cross-examined about the Hall & Wilcox letter dated 24 November 2015.[70] It was put to Mr Scammell that there was an inconsistency between the contents of the letter and Mr Scammell’s evidence. Mr Scammell readily conceded that the letter was wrong where it stated that he and Rick Scammell had carried out maintenance to the caravan about five or six months prior to the accident, during which they had repacked the bearings.[71] Mr Scammell immediately said “I definitely didn’t repack them, no”.[72]
[70]Exhibit A
[71]T117, L17
[72]T117, L29
78 The contents of the solicitors’ letter was again raised with Mr Scammell, this time because the letter made no mention of Mr Scammell having checked the temperature of the bearings at Barmah prior to the accident.[73] As he was earlier in cross-examination, Mr Scammell was steadfast in his evidence that he had checked the temperature of the bearings during the trip:
[73]T118
A:“Yes, it may not have been halfway through the trip. It could have been at the end of the trip, but it gets checked either way, at the end of the trip or halfway at a service station, a wayside stop, whenever any of our vehicles or caravans is towed, I check the temperature.”
MR STUCKEY:
Q:“Had you given instructions that you had tested these wheel bearings during this trip and found them to be at the right temperature?---
A:Correct. I did that and if it’s not there, it’s not my issue. I’m just stating as I know.”[74]
[74]T118
79 Mr Scammell testified that he had never seen the letter and that it is usually Mrs Scammell that “does all the correspondence and reading”.[75]
[75]T119
80 Mr Scammell was taken to correspondence sent from Hall & Wilcox to Mr Enkelman dated 13 February 2020, which he had also never seen.[76] Despite this, Mr Stuckey went on to question Mr Scammell about this correspondence. Mr Scammell again confirmed that before any trip –
“… when I go on trips, as usual, jack it up, take the bearing cap off, check the grease, check for slop and adjust the brakes, which is a standard unless there is any strange noises coming from it, and/or the grease has been contaminated with anything, the cap goes back on and that’s it.”[77]
[76] Ibid
[77]T120
81 Mr Scammell denied that he had fabricated additional details when giving evidence in an attempt to strengthen his defence.[78] When again questioned about whether he specifically recollected or just held a belief that he had checked the temperature of the bearings during the trip when the accident happened, Mr Scammell stated:
[78]T122
A:“… I know I did.
…
I know it for sure, I check the bearings every trip, every caravan, every trailer. Every time we go out anywhere, it is always checked. I actually bought a temperature sensor to do the job, which was useless, so I’ve gone back to feeling it with the back of the hand. So I know I did it, but – and yes, if it’s not put down, well it should have been.
…
I’ve got very clear knowing of what I should have done and I know what I did. Because at the time of the accident, I recalled memory wise what I had done in the previous couple of weeks to the van. So no, I know I’d done it.
Q:So is it your recollection you had a very clear idea of this at every moment in time since the accident occurred through to the present?---
A:I couldn’t tell you the time and the day, but I can tell you it was definitely done.
Q:So your recollection is that good, but you didn’t remember to mention it during your evidence (indistinct)?---
A:Exactly. I can tell you 20 years ago if I’d pulled up at a campsite somewhere else, I know for sure that I had checked the bearings’ temperature.”[79]
[79]Ibid
82 Mr Scammell was asked about the grease that he used to pack the bearings. He testified that he had either used Penrite high temperature bearing grease or Nulon brand, but was not sure which.[80] He testified that there is no difference in quality between the two and that he simply had different brands in the cupboard because he used a lot of grease.[81] It was not suggested to Mr Scammell, and Mr Hardy did not testify that these brands of grease were of poor quality or were unsuitable for the purpose in which they were used.
[80]T124
[81]Ibid
83 Mr Scammell stated that he took no extra precautions when storing the grease other than to keep it in a cupboard, in the shade with the lid on.[82] He acknowledged that in 2012, he had a substantial number of motor vehicles and that all were serviced by either himself of Rick Scammell.[83]
[82]T125
[83]Ibid
84 When asked why he had not repacked the bearings with grease during the twelve months following December 2012, Mr Scammell replied that the grease was still in excellent condition and did not require anything other than to have been adjusted a bit.[84] He went on to say that whenever it was time for a grease change in the bearings, he would jack up the caravan, make sure there was no noise coming from the bearing and if the grease looked to be in a good condition he would have no reason to change it.[85] Mr Scammell explained that it would not be necessary to change the bearing grease within six months of the previous change unless the caravan had been through a river or the bearings had been water contaminated since the last change.[86] Mr Scammell testified that every time he would take the caravan for a trip he would take off the bearings’ dust caps and check the grease:
A:“Standard trip pre-preparation was jack the caravan up, check the wheel bearings, pop the cap off, check the grease, make – if there needs to be an adjustment, you adjust it. If it didn’t, you don’t. Adjust the brakes, fill the water tanks and head off, well, within a day or three or whatever. So, yes, it was a common, regular thing.
Q:I understand that is your evidence as to what your usual practice is, what I’m asking is do you have a specific recollection of doing that on any of the occasions in 2013?---
A:I remember doing that prior to the accident when we got to Barmah because after the accident I’d gone back through my mind back then what I’d actually done. While it was fresh in my mind I was trying to work out whether I’d made a mistake, whether I’d left the split pin out, et cetera, et cetera.”[87]
[84]Ibid
[85]T126
[86]T127
[87]T127
85 I should add here that the experts called on both sides agreed that after the accident the split pin was found intact in the castellated nut that would have held the subject bearing in place.
86 Mr Scammell went on to explain how he would replace the bearings in the hub once he had removed them, pressing in the bearings by hand, putting the washer on and then doing up the castellated nut by hand.[88] He gave a detailed explanation why he does not use a torque wrench or power tool to tighten the castellated nut, stating that despite having a torque wrench he would do it by hand:
“I have a torque wrench but I’ve never used a torque wrench on wheel bearings, more of a nut - so it’s generally do the nut up tight by hand, put a shifter on it, pull down on the shifter until you - while spinning the wheel until you feel the resistance, back it off half a turn and then start doing it up again slowly. Probably I would - I’m guesstimating - probably five or 10 pounds pressure on it. There’s not much pressure at all.”[89] [90]
[88]T128
[89]Ibid
[90]Note that, consistent with Mr Scammell’s evidence, Mr Hardy testified that he would not use a torque wrench [to tighten the type of bearings applicable in the present case] and only tighten them to finger tight as “10 to 20 newton metres you’ve overtightened them”: T159
87 I note here that this evidence is consistent with the evidence given by both experts as to the process described by Mr Scammell and why it is not necessary to use a torque wrench.
88 A series of questions were then put to Mr Scammell about what can go wrong when tightening the castellated nut. Mr Scammell conceded that it can be overtightened so that the bearing cannot turn freely, generating extra resistance, and that that extra resistance would cause heat, and over time that would cause the bearing to deteriorate and fail sooner than expected.[91] He conceded that this is a common error, and freely offered under-tightening the castellated nut is another common error, causing slop in the bearing and resulting in the whole wheel moving backwards and forwards.[92]
[91]T128
[92]T129
89 When asked about wheel float, Mr Scammell displayed a good level of understanding, acknowledging that float is an indication that the castellated nut is not tight enough since there should not be any float if the nut is adjusted correctly. He explained that there is a “sweet spot” when tightening the castellated nut, and failing to achieve it would cause premature deterioration in the bearing.
90 Mr Scammell agreed that the wheel nuts should be checked within 80-160 kilometres of installation to make sure they had not been under-tightened or that they had not shifted.
91 Mr Scammell also agreed that at or before both 10,000 kilometres and 25,000 kilometres, the wheel bearing should be checked and adjusted as required.[93]
[93]T130
92 Mr Scammell testified that this was essentially the process he would undertake before each trip he took with the caravan:
Q:“That’s the type of test that you’ve been describing yourself as doing each time you take the caravan out for a trip?---
A:That’s correct. Well, that is basically jacking it up, feeling your slop, putting one hand on top of the wheel, one on the bottom, giving it that alternating shake to see if there’s any slop in it and listening for noise and checking for grease, yes. I’m probably overdoing it by the scheduling on this, but anyway.”[94]
[94]T130
93 Mr Scammell agreed that a trailer that has travelled for 100,000 kilometres should have its wheel bearings checked, adjusted or repacked, or replaced with grease. It should be inspected and serviced at least annually.[95] He also agreed that this is important because contamination or condensation can compromise the lubrication, adding that a discolouration in the grease would be indicative of compromise in the form of condensation.[96]
[95]T131
[96]ibid
94 Mr Scammell agreed that it would be very unusual to find a set of bearings failing within 5,000 kilometres of installation. He conceded that bearing failure is usually caused by overtightening or under-tightening the castellated nut, but it can also be caused by too much or too little lubricant. Mr Scammell agreed that contamination of the grease before it is placed inside the bearings would also cause the bearing to deteriorate more rapidly than expected.[97]
[97]Ibid
95 Mr Scammell testified that although he had never heard of it having happened before, physical damage to the bearing could be another cause of wheel bearing failure. Mr Scammell denied that there had been any such impact to the caravan that could have caused damage to the relevant bearing between 2012 and 2014.[98]
[98]T132 on 16 November 2020
96 Mr Scammell denied having failed to apply the correct amount of torque to the castellated nut and either overtightening or under-tightening it when he reattached the wheel to the caravan after fitting the bearings.[99] Mr Scammell stated that he would have no way of measuring exactly the torque he applied to the castellated nut at the time he replaced the bearings. He testified that he has never used a torque wrench and did not know of any qualified mechanic that does use one.
[99]T133 on 16 November 2020
97 Mr Scammell conceded that if it was true that he had applied the wrong amount of torque when he tightened the castellated nut, that would explain why the relevant bearing failed on 14 February 2014. Similarly, he agreed that if he was keeping a proper lookout at the time of the accident, he would have seen smoke if it was pluming from the relevant bearing, adding that there was no sign of smoke at that time.[100] He maintained that he always kept a proper lookout, regularly checking his mirrors because he was concerned about vehicles intending to overtake the caravan.[101]
[100]T133 on 16 November 2020
[101]T133-135 on 16 November 2020
98 Agreeing that the axle must have been very hot to have sunk into the bitumen and that if it was hot for a long time, one would see the burning grease smoke “for miles”, Mr Scammell expressly denied that there was any sign of smoke at the time of the accident, repeating that it seemed to be an instantaneous failure of the bearing.[102]
[102]T133-134 on 16 November 2020
Colleen Margaret Cattanach
99 Mrs Cattanach was the managing director of G.V. Caravan Services Pty Ltd (“G.V. Caravans”), a business specialising in caravan repairs, servicing, maintenance and smash repairs. Ms Cattanach testified that G.V. Caravans received the 2009 Windsor caravan the subject of these proceedings on the back of a truck, as it had lost its wheel and hub drum.[103] Her father carried out the repairs to the caravan. Mrs Cattanach recalled seeing the caravan in February 2014, testifying that “[t]he condition of the internal and the external of the caravan was in very good nick”.[104]
[103]T133 on 17 November 2020
[104]Ibid
100 In cross-examination, Mrs Cattanach was taken to a G.V. Caravans’ tax invoice relating to the caravan repairs.[105] Mrs Cattanach explained that the first entry in that document was an explanation that the spare tyre and rim was put onto the other side of the caravan’s axle so that the two sides matched. The now used spare tyre was replaced with a new one.[106]
[105]Exhibit 6
[106]T137 on 17 November 2020
101 It was not suggested to Mrs Cattanach that after the accident there were any faults of problems with the bearings on the offside of the caravan such as issues with its tightening, the quantity or quality of the grease, or any other signs that might affect the integrity of those bearings.
The Plaintiffs’ expert evidence
Jack Alexander Hardy
102 As mentioned earlier, Mr Hardy gave evidence after the defendants and Mrs Cattanach had given their evidence. There could be no mystery about the defendants’ version of events. I make this observation to mark the fact that Mr Hardy did not criticise or challenge the correctness of the processes that Mr Scammell described about the methods he adopts when installing, maintaining, servicing, checking or repacking bearings.
103 Mr Hardy is a forensic engineer with a degree in mechanical engineering with honours.[107] He prepared two reports, tendered as exhibits C and D.
[107]T139. For a full list of Mr Gardy’s qualifications and experience, see exhibit C, appendix A
104 Taken to his first report,[108] Mr Hardy explained that he had written it after being provided with a letter of instructions, a report written by the defendants’ expert witness, Mr Enkelman,[109] photographs of the caravan before and after the damage, photographs of the fire and an Excel spreadsheet of the maintenance of a caravan.[110]
[108]Exhibit C, 24 September 2019
[109]Exhibit 7
[110]T140
105 Mr Hardy explained how the caravan’s axle would have become damaged to the extent depicted in sheet 1 of exhibit 7:[111]
“… as the bearings fail, they become very hot due to the increasing friction. And as …. they get hotter and hotter, the (indistinct) to form under the load, under the rotation (indistinct), because it will increase the friction, you’ll increase temperature. And the components begin to melt or deform very rapidly once you’ve got a – you know, a glowing hot metal inside the wheel hub, and they’ll disintegrate and eventually you’ll get axial play. So if you’re looking at the wheel, you could grab it and shake it laterally relative to the axle. So not only do you have an increased friction, you’ll begin to get a lot of lateral play which can create a lot of force on the bearings and eventually if catastrophic failure, the bearings will separate and peel over the castellated nut and the whole wheel hub – the wheel assembly could fall off.”[112]
[111]Mr Enkelman’s report dated 15 July 2019
[112]T145-146
106 In his first report,[113] Mr Hardy opined that “the bearing has likely failed due to incorrect installation. It is highly unlikely a good quality bearing that has been correctly installed will fail within 320 kilometres.” He confirmed that he stood by his opinion despite the fact that the bearing had actually failed after around 4,600 kilometres, not 320 kilometres.[114]
[113]Exhibit C
[114]T146
107 Mr Hardy explained that bearings are designed to last significantly longer than 4,600 kilometres:
“… [M]ost companies have found it’s less than 1 per cent early failures are due to any sort of manufacturing defect. The manufacturing process of bearings is incredibly controlled. It’s all done in controlled environments and there’s a quality control of the bearings as they leave the plant. I personally have never seen a quality bearing from SKF or any of the leading brands fail through some form of defect.”[115]
[115]T147
108 Mr Hardy did not know the brand of the subject bearing.[116]
[116]T147
109 In an account consistent with Mr Scammell’s evidence, Mr Hardy explained what would be observed if a wheel bearing such as the subject bearing had been overtightened or under-tightened. He stated that with the wheel raised from the ground and spun, “there should be a nice amount of rotation. The faster it comes to a stop, the tighter the bearing is. ... [I]f you spin the wheel and it almost stops instantly, and there’s a lot of resistance to rotation, it’s too tight.” For a bearing that is under-tightened, “you can grab the wheel and shake it relative to the axle, and if there’s too much lateral play then it’s too loose”.[117]
[117]T159
110 Again, consistent with Mr Scammell’s evidence, Mr Hardy stated that he would not use a torque wrench to tighten bearings such as the one the subject of these proceedings.[118]
[118]T159
111 Aside from fatigue, overtightening or under-tightening, Mr Hardy testified that impacts are another occurrence that can shorten the life of a bearing. Hitting a pothole or kerb can significantly “bend the axle or you can create a dent in the bearing or races which will … start an early death of the bearing”.[119]
[119]T160.
112 Consistent with Mr Scammell’s evidence, Mr Hardy explained that depending on how quickly the deterioration of the bearing occurs, some ways of detecting the deterioration are to check the wheel hubs for heat or the wheels for lateral movement.[120]
[120]T160
113 Mr Hardy stated that another cause of premature failure of bearings is contaminated grease. He explained that abrasive particles or water caught in the bearing grease can cause early onset of failure. Components such as the grease seal, bearing seal, shaft seal or dust cap can wear or perish, allowing contaminants into the grease, causing premature failure of the bearing. Mr Hardy stated if a bearing has a worn grease seal, driving through water or water crossings can result in water contamination of a bearing;[121] however, if proper care is exercised by a person maintaining a caravan, this should not occur.[122]
[121]T161
[122]T161
114 Mr Hardy disagreed with the opinion expressed by Mr Enkelman who opined that a new bearing could fail within one hour of its installation. Mr Hardy opined:
“… [A] new good quality bearing that is installed correctly will not fail within one hour of operation, this statement from Mr Enkelman indicates Mr Enkelman has misunderstood L10 bearing life expectancy. Bearings support heavy loads and rotate at high speed for significant periods, the rolling elements and the surfaces they contact slowly wear over time, this is known as fatigue. A correctly installed bearing which is well maintained will eventually fail due to fatigue, it is the normal end of a bearing’s life.”[123]
[123]Exhibit C, p21
115 Mr Hardy testified:
“[B]earings are designed around L10 bearing life, so you design a bearing and you harden the materials within the bearing based on design life, so L10 is saying that if you take a sample of bearings, say 100 bearings, 10 per cent of them will fail before the design life, but they’ll fail near the design life, you’re assuming that L10 assumes that the bearing is made of inherent defects. So if you design a bearing to last 100,000 K’s using a reliability factor of 90 per cent 10 per cent of them might fail before 100,000 K’s, but they’re failing near 100,000 K’s.”[124]
[124]T163
116 The explanations given by Mr Hardy to contradict Mr Enkelman’s opinion are at odds with Mr Hardy’s earlier evidence that “L10’s predicting based on a bearing selection that 10 per cent of these bearings could fail prematurely, but it’s a bath tub curve”.[125] Mr Hardy’s evidence that premature bearing failure presents as a “bath tub curve” according to L10 is consistent with Mr Enkelman’s evidence.
[125]T149
117 Mr Hardy also disputed the basis upon which Mr Enkelman concluded “the fact that only one wheel was affected would exclude the possibility of incorrect bearing tightening and the use of abrasively contaminated grease”:[126]
“… Mr Enkelman has not inspected the other wheel hub assembly. It appears Mr Enkelman made this assumption based on the fact that only one wheel bearing set failed resulting in separation of the wheel hub from the axle. The other wheel bearing set could have been on the brink of failure when the subject wheel bearing failed, it is highly unlikely that both bearing sets would fail at the exact same time.
Mr Enkelman excludes the possibility of human error being the cause of failure since only one of the wheel bearing sets completely failed. The other wheel bearing set may have been installed incorrectly and may have been rapidly deteriorating however the subject wheel bearing set happened to fail first. It’s also possible that one wheel bearing set was installed correctly and the other was installed incorrectly, human error cannot be excluded solely because only one of the bearing sets failed.”[127]
[126]Exhibit C, p18
[127]Exhibit C, pp18-19
118 Mr Hardy reiterated his view that –
“… [j]ust because one’s installed correctly doesn’t mean … the other one could have been installed incorrectly. It’s two separate assemblies. You put them together at different times.”[128]
[128]T164
119 I note that with regard to Mr Hardy’s attack on Mr Enkelman’s opinion based on the fact that Mr Enkelman had not inspected the “other wheel hub” before expressing his view that contaminated grease was not implicated in the bearing’s failure, the same criticism can be made of Mr Hardy’s opinion. He did not inspect any part of the caravan either.
120 Mr Hardy also disagreed with Mr Enkelman’s opinion that incorrect tightening would result in bearing failure within significantly less than 320 kilometres:[129]
“How rapidly … [a bearing] fails is going to depend purely on how tight, [h]ow lo[o]se, how contaminated the bearing is …
…
It will depend on the preload on the castellated nut on the bearings.”[130]
[129]T164. See also Exhibit C, p19
[130]T164-165
121 In his first report,[131] Mr Hardy also disagreed with Mr Enkelman’s opinion that impact to the wheel can cause instant bearing failure without significant damage to the suspension and axle, although he agreed that such an impact could cause premature bearing failure. That said, Mr Hardy excluded impact as a cause of the bearing failure in the instant case.[132] Despite this, when giving evidence before me, Mr Hardy stated that it was possible that wheel impact had caused the failure of the subject bearing.[133]
[131]Exhibit C, p20
[132]Exhibit C, p20
[133]T165-166
122 In relation to the opinion of Mr Enkelman that contamination of the bearing grease by water could not have been the cause of the subject bearing’s failure because both wheel bearings would have been affected, Mr Hardy stated in his first report that he disagreed with this conclusion and that it is plausible that one side’s rubber seals could have perished without the other being similarly affected.[134]
[134]Exhibit C, p20
123 In a critical passage of his evidence, Mr Hardy effectively conceded that due to the lack of evidence, nothing could be reasonably ruled out as a potential cause of the bearing’s failure, adding that his opinion as to the most likely cause in this case was based on statistical information:
“With lack of evidence, wheel bearings once they fail catastrophically, then (indistinct) they fall apart. If you caught any failure early, you can look at the wheel bearing whilst it’s attached and you can see the fatigue, you might be able to sort of ascertain what had happened, but on that evidence provided, it’s not reasonable to exclude any sort of failure. My opinion is based on the probability of the wheel bearing failing. As I said in previous bearing failures and studies, less than 1 per cent of wheel bearings fail due to some sort of defect whereas a quarter or a third will fail due to increased lubrication, one third fails in incorrect handling. So off the lack of evidence, if it’s just a failed bearing knowing that the wheel separated from the trailer, you can’t reasonably exclude anything.”[135]
(sic)
[135]T167
124 When cross-examined, Mr Hardy conceded that in his first report he was in error when he stated that the bearing had travelled fewer than 320 kilometres before it failed; however, having been informed that the distance travelled was 4,640 kilometres, he did not alter his view about the most likely cause of the accident.[136]
[136]T172
125 Mr Hardy conceded that if the bearing failed within 4,640 kilometres of installation, and if overtightening was the cause of its failure, then that overtightening must have been by a significant degree.[137] I take this to mean that if the bearing was not overtightened to that degree, it would have survived that number of kilometres. Mr Hardy agreed that based on the state of the evidence, he could not say to what degree the bearing was overtightened, if at all.[138]
[137]T172
[138]T174
126 Mr Hardy agreed that applying the brakes adds friction to the bearing, increasing its heat:
“… sometimes people come off the highway and touch their wheel bearings and they think they’re hot, but it’s just because you’ve performed a brake as well. Obviously, heat’s generated through friction in braking.
…
… if you’ve braked off the highway from 100 kilometres per hour, you’ve got a car that weighs two or three tonnes, a trailer that weighs two or three tonnes it’s a lot of braking effort so you’ll heat your hub up regardless.”[139]
[139]T175
127 Mr Hardy repeated that he could not identify the cause of this bearing’s failure by reference only to the photograph of the stub axle post accident. He reiterated that his opinion was based entirely on the probabilities of potential causes referred to in “the SKF documents”.[140] He explained:
“… as I said before once a bearing’s failed how it fails doesn’t matter once it catastrophically fails. It’s very difficult to look at this image and tell you exactly what’s happened. The opinions formed in my report are based off the probabilities I’ve taken out of the SKF documents suggesting that, you know, one-third of bearing failures are incorrect installation, one‑third are incorrect lubrication, so if I consider that a bearing should last say a hundred thousand kilometres, that’s about 4000, but these bearings in these case studies that tend to fail at say 90,000 kilometres you’re looking at a bearing failure that’s just an absolute fraction of when it should have failed and then you’re looking at these probabilities of early bearing (indistinct) I think it’s much more likely that bearings fail due to incorrect installation or incorrect lubrication than it is to have failed from that 1 per cent of some defect, yes.”[141]
[140]Exhibit F
[141]T178-179
128 Mr Hardy conceded quite frankly that he could not, on the evidence provided, explain why this particular bearing failed:
MR MESSER:
Q:“But you don’t know why this bearing failed?---
A:No. Neither Mr Enkelman or I can tell you why this bearing’s failed. It’s catastrophically failed and if you’d caught it early and pulled the bearing off before the wheel hub completely disintegrated and fell apart, pulled it apart, did an analysis on it then maybe you could tell exactly why it’s failed, but post failure it’s like a crack through a plate. There’s a single crack. If you look at the crack before you dropped the plate I could tell you where the crack is. Once I’ve dropped the plate it’s shattered into a million pieces I can’t tell you where that crack was.”[142]
(Emphasis added)
[142]T179
129 Mr Hardy agreed that he could not exclude manufacturing defect as a cause of the bearing’s failure.[143]
[143]T183
[176]Exhibit 10, p3; T205-208
[177]Exhibit 9, sheet 3; exhibit 10, p3; T207-208
154 The accepted research holds that when properly installed and maintained, bearings designed for use in the wheels of road vehicles, including cars or caravans, have an L10, or predicted life expectancy of 100,000 kilometres, or more. L10 assumes that the bearing has been properly installed and maintained.
155 The literature also holds that not all bearings will reach their L10 or life expectancy of 100,000 kilometres (that is to say, on the assumption that they have been installed and maintained properly). It is accepted that as many as 10 per cent will fail prior to achieving L10. The L10 failure rate follows a probability curve, so that the fewer the kilometres travelled, the less probable it is that the bearing will fail. At or before 5,000 kilometres, according Mr Enkelman’s interpretation of the probability curve, as many as 0.03 per cent will fail.
156 In the present case, it is not in controversy that the bearings on the defendants’ caravan had travelled approximately 4,640 kilometres before one of them failed. According to the L10 probability curve, the bearing had a 90 per cent probability of achieving 100,000 kilometres but a 99.97 per cent chance of achieving 5,000 kilometres if it was properly maintained and installed. To put it another way, the subject bearing had a 10 per cent chance of failing before 100,000 kilometres but a 0.03 per cent chance of failing around the 5,000 kilometre mark despite being properly installed and maintained. It is upon this probability that the plaintiffs seize to discharge the burden of proof. Put simply, the plaintiffs contend that because, according to the probability curve, only 0.03 per cent of bearings fail around the 5,000-kilometre mark, it is inherently improbable that this bearing would have failed if it was installed and maintained properly, ergo it is more likely than not that this bearing failed because Mr Scammell “made a mistake”. This is the central piece of circumstantial evidence upon which the plaintiffs rely.
157 It must be noted that evidence based on statistical analysis or evidence that establishes that the occurrence of an event falls within a probability curve does not equate to actual proof, to the requisite degree, of the occurrence of that event.[178] In other words, merely because the L10 probability curve shows that there is a greater than 50 per cent chance that the bearing would not have failed at the 5,000-kilometre mark if it had been properly installed and maintained, it does not mean that it is more probable than not that this bearing must have failed due to the negligence of either or both of the defendants. The probability curve is no more than one piece of circumstantial evidence that must be weighed, together with all of the evidence, in order to determine whether the plaintiffs have proved the case in negligence against each defendant.
[178]See for example how DNA evidence may and may not be used in a criminal trial: R v Karger (2002) 83 SASR 135; R v Vivona (Unreported, Victorian Court of Criminal Appeal, 12 September 1994)
158 The dangers inherent in circumstantial evidence based on statistical probabilities are well illustrated in the criminal law’s experience of DNA evidence where the DNA sample of a suspect is compared to DNA evidence found on a victim of crime or at a crime scene. Expert evidence explains, according to statistical information, the probability of the suspect’s DNA matching that of a random member of the population. In such cases, judges must consider warning juries against misusing DNA evidence. As the Bench Notes contained in the Victorian Criminal Charge Book observe:
“Warning Against Misuse of [DNA] Evidence
38.Expert evidence on the likelihood of a match with a random member of the population is apt to mislead the jury. In particular, it creates a risk that the jury will adopt the following erroneous reasoning (known as the ‘prosecutor’s fallacy’):
· Only one person in a million has a DNA profile that matches the forensic sample;
· The accused has a DNA profile that matches the forensic sample;
· Therefore there is a million to one probability that the accused is responsible for the forensic sample and is guilty (R v Doheny & Adams [1997] 1 Cr App R 369; R v Karger (2002) 83 SASR 135; R v GK (2001) 53 NSWLR 317).
39.This line of reasoning fails to recognise that even though only one person in a million has a DNA profile that matches the forensic sample, in a country the size of Australia (with over 21 million people), it is statistically likely that the DNA of at least 20 other people will also match that sample (R v GK (2001) 53 NSWLR 317; R v Doheny & Adams [1997] 1 Cr App R 369).”[179]
[179]Victorian Criminal Charge Book, Chapter 4.14.2, paragraphs 38 and 39
159 In the present case, the evidence about where the defendants’ wheel bearing falls within the probability curve must be regarded in context. The expert witnesses agreed that each year, “millions” of these types of bearings are imported for use in Australia.
160 Applying the probability curve to the figures referred to by the experts and accepting that they are speculative in nature, it is possible that each year in Australia, through no fault of any person in the installation or maintenance of bearings, many bearings will fail. According to Mr Hardy’s evidence, as many as 1,000,000 could fail before reaching L10. That is a staggering number of failed bearings – approximately 2,740 per day ((10,000,000 x 10%) / 365). As to those that could fail at or before the 5,000-kilometre mark, the number is also extremely high – 3,000 or 8.22 per day ((10,000,000 x 0.03%) / 365). Using Mr Enkelman’s evidence of around an approximate average of 2,500,000 imported bearings per year, the total potential number of bearings that could fail according to the L10 probability curve is as high as 250,000 or almost 685 per day ((2,500,000 x 10%) / 365). As to those that could fail at or before the 5,000-kilometre mark, the number is significant at 750, or over two per day ((2,500,000 x 0.03%) / 365).
161 In his final written submissions on behalf of the plaintiffs, Mr Stuckey invited the Court to infer from the statistical information about the most likely causes of premature bearing failure that Mr Scammell made a mistake in the installation or maintenance of the bearing:
“27.Save for fatigue, defect or injury, all of the other causes of failure involve human error in the installation or maintenance of the bearing. It is not possible to reconstruct which of these matters occurred in this case, because all evidence of it has been destroyed. However, on the balance of probabilities one of them is more likely than not to have occurred. The evidence of Mr Hardy is that they are by far the most common causes of premature bearing failure. The other alternative cause open on the evidence in this case is fatigue, which is extremely unlikely.
…
29.Mr Scammel[l], despite his experience, is not a trained mechanic. He did install the bearings that failed. He was responsible for lubricating them. He was responsible for checking them from time to time. Everything that was done to them was done by him. Each of the steps he took afforded an opportunity for error. Those errors, such as under-lubricating or over or under-tightening or contamination, are known causes of the type of failure observed in this case. They are also the commonest causes of such failure. They cannot be excluded on the evidence because the most fastidious person may make a mistake without realising it.
30.It is respectfully submitted that, considered in the light of all of the evidence, it is more likely than not that a want of care by Mr Scammel[l] led to the bearing failing and the resultant fire.”[180]
(Emphasis added)
[180]Exhibit M, paragraphs 27, 29 and 30
162 To make the inference that Mr Scammell “made a mistake”, it must be the most probable inference to be drawn in all the circumstances having regard to the totality of the evidence. I now turn to analyse the evidence pertaining to the inference for which the plaintiffs contend:
163 Mr Hardy’s conclusion that the bearing was highly unlikely to have failed within 4,640 kilometres is based in most part, if not entirely, upon that statistical information. As he reported:
“According to the records the bearings were checked approximately 320 kilometres prior to the incident. The service records indicate the wheel bearings were replaced approximately 4,640 kilometres prior to the incident occurring, they were replaced on 15 December 2012.
… [A] correctly installed wheel bearing is highly unlikely to fail after 4,640 kilometres due to normal wear. A bearing[‘]s life varies based on a few factors however a correctly installed and maintained wheel bearing can last for hundreds of thousands of kilometres, failure within 4,640 kilometres is indicative of installation or maintenance issues.”[181]
(Emphasis added)
[181]Exhibit D, p4
164 Mr Hardy also reported:
“The evidence available indicates the wheel bearings were replaced approximately 4,640 kilometres prior to the incident occurring, they were replaced on 15 December 2012. The wheel bearings were checked on 23 March 2013, 4,050 kilometres prior to the incident. On 29 July 2013 the records indicate that the bearings were repacked, approximately 2,950 kilometres prior to the incident. The wheel bearings were checked on 14 December 2013, approximately 1,370 kilometres prior to the incident. The bearings were checked a final time before the incident on 2 February 2014, approximately 320 kilometres prior to the incident. If the bearings had failed due to normal wear, the bearing wear should have been observed and acted upon during the alleged regular bearing checks and repacking. Based on the available evidence it is more likely the bearing failed due to incorrect installation or poor maintenance as opposed to normal bearing wear.
The bearings were checked 320 kilometres prior to the incident and presumably no issues were observed otherwise they should have been replaced, the Author finds it highly unlikely that the wheel bearings went from serviceable condition to complete failure within 320 kilometres due to normal wear. It is therefore more probable that the bearings were installed incorrectly at some stage.”[182]
[182]Exhibit D, p6
165 Mr Hardy concluded:
“Based on the available evidence and research undertaken, it is the Author’s considered opinion that:
1.The image of the subject stub axle indicates the stub axle overheated. The bearing has likely failed due to incorrect installation, it is highly unlikely a good quality bearing that has been correctly installed will fail within 320 km;
2.Mr Enkelman states the failure falls into L10 bearing life expectancy and that a correctly installed bearing could fail within one hour of installation, the Author disagrees with Mr Enkelman’s interpretation of L10 bearing life. L10 bearing life expectancy is a bearing selection method used to select a bearing for a given application. The purpose of L10 bearing life is to select bearings such that 10% of identical bearings installed may fail prior to the desired operation time. If the bearing is selected correctly 90% of bearings installed for the given application will operate for the desired time, 10% of them may fail prematurely however they will generally fail close to the desired operation time.”[183]
[183]Exhibit C, p22
166 Mr Stuckey sought to reconcile the competing opinions of Mr Hardy and Mr Enkelman in this way:
“19.The method of specifying bearings for a particular application adopts a measure of reliability that accepts that 10% will fail before that lifespan is reached[184]. The spread of failure likelihood follows a probability curve[185]. 90% of failures will occur after the expected life is reached.
20.This form of failure is caused by repeated cyclic loading of the bearing in use[186]. Mr Hardy and Mr Enkelman are at odds on the question of whether this can occur only after a long period of use[187] or at any time[188], but they are in agreement that, if it may occur at that time, it is ‘incredibly unlikely’[189] or a 0.03% chance[190], which it is submitted amounts to the same thing.
21.The likelihood of a bearing failing at a particular moment in time will increase as it approaches the intended life and will continue to rise until the mean or average life is reached[191]. The average life is about 5 times the intended life[192].
22.On the above evidence, the likelihood of a bearing failing early in its life as this did due to fatigue is very small: Mr Enkelman estimates the chance as 0.03%. He attributes such failure to the inherent irregularities in the bearings[193].
23.The evidence is therefore consistent that it is extremely unlikely that this bearing failed when it did through natural fatigue.”[194]
[184]Transcript 148, L1; p.149, L4
[185]Transcript p.227
[186]Exhibit F CB574-578; Transcript 152-153
[187]Hardy Transcript T152-154
[188]Exhibit 7, Enkelman Report 15 July 2019 CB104
[189]Hardy Transcript 154 line 27
[190]Enkelman Transcript 227 line 26; 250
[191]Enkelman T. p. 226-227; Hardy T. p.
[192]Transcript p.150 line 23
[193]T 230 line 20ff
[194]Exhibit M, paragraphs 19-23
167 On the other hand, there is both direct and circumstantial evidence as to the defendants’ care, skill and attention to maintaining their caravan in general, and, in particular, as to Mr Scammells’ care, skill and attention to installing and maintaining the bearings.
168 Mr Scammell was highly experienced in installing and maintaining wheel bearings. That evidence was not challenged. Although it is true that any person, no matter how experienced, can make a mistake when undertaking work within their field of experience, that is not evidence that a mistake has in fact been made.
169 Both Mr and Mrs Scammell gave evidence as to their history with caravans and motor vehicles. They both testified that Mr Scammell was consistent in his attention to checking, maintaining and servicing the brakes and the wheel bearings before every caravan trip. Although Mr Scammell could not recall the details of each occasion on which he undertook servicing of the bearings, he had adopted the practice of always checking the brakes and bearings before all caravan trips. He also adopted the practice of regularly checking the temperature of the bearings after towing the caravan by placing the back of his hand on their coverings.[195] Although challenged in cross-examination, that evidence was not contradicted by other evidence.
[195]T101-102
170 As to the state of Mr and Mrs Scammell’s evidence, Mr Stuckey, on the one hand, sought to discredit the evidence given by Mr and Mrs Scammell, yet on the other, submitted that the plaintiffs’ case did not turn on it:
“The Scammel[l]s’ Evidence
31.The Scammel[l]s both gave evidence about Carl Scammel[l]’s installation and maintenance of the bearings. It has been addressed after the expert and mechanical evidence because it is submitted that this case does not turn upon whether their evidence is accepted or not. One of the left-hand bearings failed. There is a limited number of things that could occur to cause them to fail. A failure in the absence of human error is said by both experts to be extremely unlikely.
32.That raises a strong inference that an error was made by Mr Scammel[l] in the replacement or maintenance of the wheels and their bearings, regardless of whether he was attempting to exercise care or not, and regardless of whether he was aware that he had made a mistake or not.
33.The evidence of the Scammel[l]s ought be treated with great care, as it cannot be tested and is self-serving. The only inconsistency available to test the evidence is its internal consistency. There are serious grounds for doubting the reliability of the evidence.
34.The list of trips that is Exhibit B[196] has been reconstructed from documents[197]. It was not prepared until Mrs Scammel was asked to prepare it by Hall & Wilcox[198]. The list of service activities that have been added to create exhibit 4 are almost entirely reconstructed[199]. The one written record that did exist, notes on the bearing caps, has not been used for this purpose[200]. Mrs Scammel[l] had not actual recall of most of those events[201].
[196]CB p.455
[197]T. p.72 line 24 ff, p.78
[198]T.77 line 22.
[199]T. p.78 line 20; eg. Page 80
[200]T p.79 line 2
[201]T. 80 line 22; 81 line 7
35.Only the replacement of the bearings in December 2012 is supported by any genuine recollection[202]. The balance of the entries depend upon reconstruction from what is said to be Mr Sammel[l]’s practice[203] or the likelihoods[204].
[202]Even then the recollection is hazy T. 113 line 2
[203]T. 84 line 17
[204]T. 80 line 9; 81 line 1 & 19
36.That reconstruction is not reliable. Early in the post-accident period, on 24 November 2015 the Defendant’s solicitors wrote[205] stating that 5 to 6 months before the accident Mr Scammel[l] and his son carried out a service on the caravan during which they checked and re-packed the wheel bearings. Such a service appears on spreadsheet that is exhibit 4 in July 2013. Rick Scammel[l] could not have participated in such a repacking as he had been away from his home for several months as at that time[206].
[205]Exhibit A CB 640
[206]T 86 line 17
37.Mr Scammel[l] gave no evidence of such a service, with or without Rick’s participation. When initially asked in cross examination he confirmed that replacing the bearings and doing his pre-trip check was the extent of the work he had done before the accident[207]. When first asked about repacking he stated ‘I definitely didn’t repack them, no.’[208] However, later asked again about replacing the grease, he could not remember whether he had repacked the grease or not[209].
38.He could not remember whether he used extension mirrors to enable him to see behind the caravan[210]. When asked about testing the bearing caps for heat during the trip to Barmah in evidence in chief, Mr Scammel[l] said ‘I’d be guessing if I said we stopped in between the destinations. If we stopped, I would have checked the wheel banks with the back of the hand, but nothing untoward’[211]. When cross examined he suddenly remembered that he had checked the bearings on arrival and that they were fine[212], a fact that he said he had forgotten during cross examination[213] although he understood that it was a crucial piece of evidence[214].
39.It is submitted that the evidence given by the Scammel[l]s is not of sufficient cogency to displace the natural inferences that arise from the evidence as to the nature of failure and the causes of such failure in bearings of this type.”[215]
(Sic)
(Emphasis added in bold)
(footnote errors in original document).
[207]T 111 line 31- 112 line 1.
[208]T 117 line 29
[209]T 126 line 27
[210]T 114 line12
[211]Transcript 106 line 24
[212]Transcript 115-116
[213]T. 116 line 14
[214]T. ibid line 18.
[215]Exhibit M, paragraphs 31-39
171 I do not treat the evidence of Mr and Mrs Scammell as if they are one person. Each gave evidence independently of the other. Each played a different role with respect to the care and maintenance of the caravan. It was Mr Scammell, either alone or with the assistance of others, who dealt with the wheels and the bearings, mostly in the absence of Mrs Scammell. It was Mrs Scammell who made the entries in the Facebook account, and she was the one who prepared the posts and other records about their caravan trips. Each of Mr and Mrs Scammell played different roles on the day of the fire. It was Mr Scammell who drove and maintained control of the car and the caravan being towed behind it, just prior to and at the time of the accident.
172 Whilst it is true that the list of trips[216] is a reconstruction, the dates are consistent with the Facebook entries that Mrs Scammell posted about the dates and places that Mr and Mrs Scammell visited. The details of the service records accord with Mr Scammell’s usual practice of performing maintenance on the caravan before each trip.
[216]Exhibit 4
173 Mr Stuckey sought to undermine the credibility of both Mr and Mrs Scammell using an alleged prior inconsistent representation contained in the Hall & Wilcox’ letter,[217] which asserted:
“Approximately five to six months before the accident Mr Scammell and his son carried out another service on the caravan during which they checked and repacked the wheel bearings.”
[217]Exhibit A
174 It will be recalled that five to six months before the accident, Rick Scammell could not have been present to assist with repacking the bearings as he was away.
175 Whilst the letter was admitted into evidence without objection, the circumstances in which the letter was composed are unclear. It may be accepted that a solicitor’s letter is usually written on instructions from the client. In the present circumstances however, there are two defendant clients. The evidence does not enable the Court to conclude, if the representation was made, which of Mr or Mrs Scammell made the representation, whether the defendants were together when the representation was made, and, if not, whether the one who made the representation did so with the authority of the other. Regardless of which of the defendants made the representation, both testified that it was wrong: Mrs Scammell stated that the author of the letter must have been confused, as Rick Scammell was away doing army training at the time.[218] Mr Scammell stated that he had never seen the letter, adding that usually his wife “does all the correspondence and reading”.[219] In any event, Mr Scammell testified that he had not repacked the bearings approximately six months after the new bearings had been installed.[220]
[218]T86E-87E
[219]T119
[220]T117
176 Although the Hall & Wilcox letter may have contained an error about the repacking of the bearings, I am satisfied that it was an honest mistake.
177 As to the other points that Mr Stuckey made in an effort to undermine the credibility of Mr and Mrs Scammell, I respectfully agree with Mr Stuckey’s submission that this case does not turn on whether the evidence of Mr and Mrs Scammell is accepted or not. The defendants could have chosen to call no evidence and the plaintiffs would still have been left in the position of attempting to discharge the burden of proof by merely relying on the statistical information around the L10 probability curve. So much is evident from Mr Stuckey’s submission:
“31. … One of the left-hand bearings failed. There is a limited number of things that could occur to cause them to fail. A failure in the absence of human error is said by both experts to be extremely unlikely.
32.That raises a strong inference that an error was made by Mr Scammel in the replacement or maintenance of the wheels and their bearings … .”[221]
[221]Exhibit M, paragraphs 31-32
178 Even if I disbelieved the evidence of both Mr and Mrs Scammell, that would not provide positive proof of the opposite. As the Victorian Criminal Charge Book observes, disbelief of a denial provides no evidence of the fact denied:
“[Disbelief of] the answer of a witness, … does not amount to positive evidence of the opposite of that answer. Disbelief of a denial provides no evidence of the fact denied. For a matter to be sufficiently proven, there needs to be independent, positive evidence (Scott Fell v Lloyd (1911) 13 CLR 230; Edmunds v Edmunds [1935] VLR 177; Gauci v Cmr of Taxation (Cth) (1975) 135 CLR 81; Steinberg v FCT (1975) 134 CLR 640; R v Lowe (1997) 98 A Crim R 300).”[222]
[222]Victorian Criminal Charge Book, chapter 1.5, paragraph 4
179 As the authorities cited in the passage above show, this rule of evidence applies in both criminal and civil proceedings.
180 Having stated that the evidence of Mr and Mrs Scammell could in theory be put to one side, I do not propose to do so. I am satisfied on the balance of probabilities that they were credible witnesses. Their evidence was consistent and not contradicted.
181 Mr Enkelman, a highly experienced expert in the field of bearings, was of the opinion that the wheel bearing failed due to the premature expiration of its L10 bearing life, which caused wheel separation from the axle.[223] In arriving at this conclusion, Mr Enkelman excluded other possible explanations for the bearing’s failure:
[223]Exhibits 7, 8, 9 and 10
· Mr Enkelman took account of the fact the bearing on the offside of the caravan axle was checked very soon after the accident. During that inspection, the assembly was found to be sound.[224] The plaintiffs accept this fact. On the other hand, Mr Hardy contends that it is possible both bearings may have been installed incorrectly, and that the remaining bearing could have been on the brink of failure. He does, however, agree that it is also possible the offside bearing could have been installed correctly while the nearside bearing could have been installed incorrectly.[225]
[224]Exhibit 10, p2
[225]Exhibit C, pp18-19
· Mr Enkelman also ruled out contaminated grease as being implicated in the bearing’s failure. No contaminated grease was found in the intact bearing after the accident. No evidence was tendered by the plaintiffs to prove that the grease in one bearing was contaminated but was not contaminated in the other.
· Mr Enkelman opined that the failure of the bearing was not due to incorrect bearing tightening in view of the fact that the bearing on the other side was found to be intact and relatively few kilometres had been travelled to the point of the accident.[226]
[226]Exhibits 7, p3
· Mr Enkelman also concluded –
“The ingress of water and bearing corrosion is also reasonably excluded as such ingress of moisture due to condensation or traversing of a creek by the caravan would affect both bearings.”[227]
[227]Exhibit 10, p4. Mr Hardy opines that water ingress was not the cause of the failure although he disagreed with Mr Enkelman’s process of reasoning to this conclusion – exhibit C, p20
· Mr Enkelman concluded that it was impossible to say which of the inner or outer bearings failed first.[228] Mr Hardy agreed with this conclusion.[229]
[228]T204; Exhibit 9, p2
[229]Exhibit C, p18
· Mr Enkelman excluded the possibility of severe wheel impact as the cause of the failure of the bearing, a fact both parties agree on.[230]
· Mr Enkelman also noted that incorrect installation was unlikely because after the accident the relevant trailer stub axle, although grossly heat affected, was found with its nut and split pin still inserted on its thread at the end.[231] Mr Hardy also recognises that this is so.[232]
[230]Exhibit M, plaintiffs’ written submissions, paragraph 25
[231]T204, exhibit 9 sheet 1, which is a photograph of the damaged wheel stub
[232]Exhibit C, pp14 and 18
182 I am satisfied on the balance of probabilities that Mr Scammell was highly experienced and competent in the maintenance of cars and caravans, a fact not challenged by the plaintiffs.
183 I am satisfied that Mr Scammell was also highly experienced in the installation and maintenance of wheel bearings, again, a fact not challenged by the plaintiffs.
184 I am satisfied that Mr Scammell regularly checked and maintained the integrity of the wheel bearings of the caravan.
185 I am satisfied that on the L10 probability curve, the bearing had a 0.03 per cent chance of premature failure through no fault of either defendant.
186 In all the circumstances, I am not satisfied on the totality of the evidence that the plaintiffs have established to the requisite degree that Mr Scammell “made a mistake” in the installation or maintenance of the bearing. As mentioned earlier, the plaintiffs have conceded that they cannot point to the specific error that Mr Scammell is supposed to have made. Accordingly, the plaintiffs cannot make out the specific particulars alleged in paragraph 13 of the Statement of Claim (as further particularised).
187 Accordingly, as to subparagraphs 13(a) and (b) of the Statement of Claim (as further particularised), I find as follows:
(a) The assertion that the defendants failed to maintain the caravan is too wide. I am not satisfied that the plaintiffs have established that either or both of the defendants failed to maintain the caravan. If the assertion is read down to mean that the defendants failed to maintain the bearings, I am not satisfied that this is established. I accept Mr Scammell’s evidence that he regularly maintained the bearings. Even if I put his evidence to one side, there would be no evidence of any such failure.
(b) The assertion that the defendants failed to inspect the bearings on the caravan is not made out. Whilst I am satisfied that Mrs Scammell did not personally inspect the bearings, it was not put to her that she was obliged to make such an inspection personally. Rather, Mrs Scammell left it to her husband to carry out these duties. Nor has it been suggested how any inspection of the bearings by Mrs Scammell would have made a difference.
I am satisfied that Mr Scammell did inspect the bearings on the caravan. As the case unfolded, the plaintiffs contended that Mr Scammell made a mistake in his installation and maintenance of the bearings, not that he failed to inspect them.
(c) The assertion that the defendants failed to replace worn bearings with good quality bearings or bearings generally is not made out. The uncontradicted evidence is that very soon after they purchased the caravan, the bearings were replaced with new bearings. There is no evidence that the bearings on either side of the caravan were of poor quality.
(d) The assertion that the defendants failed to repack the bearing with grease regularly is not made out. I accept Mr Scammell’s evidence that he regularly maintained the bearings and packed them with grease when necessary. Even if I were to reject his evidence, it would not provide evidence of the opposite. The Court would be left with no evidence on the subject.
(e) The assertion that the defendants over-packed the bearings with grease is not made out. I accept Mr Scammell’s testimony as to the careful and comprehensive manner in which he greased the bearings and took care to ensure that the correct amount of grease was applied to them. Even if I were to reject his evidence, there would be no evidence to prove the assertion of over-packing.
(f) The assertion that the defendants contaminated the grease with water, dirt or debris is not made out. There is no evidence to this effect.
(g) The assertion that the defendants failed to properly seal the bearing to exclude water, dirt or debris is not made out. There is no evidence to establish this assertion.
188 This is not a case in which res ipsa loquitur has, or could have, been pleaded. This is not a case where negligence on the part of the defendants is the only possible explanation for the failure of the bearing. It is not in controversy that a bearing can fail soon after installed even if installed and maintained properly. The question is whether the plaintiffs have established that this bearing failed because of the negligent acts or omissions of the defendants. I am not satisfied that merely because the L10 probability curve predicts that the probability of bearing failure absent human error in their installation and maintenance is extremely low, that suffices to fill the gaps in the plaintiffs’ case proving the negligent acts or omissions alleged against each defendant.
(b)There must have been signs immediately before the accident that should have alerted Mr Scammell to the impending failure … [of the bearing] with sufficient time to stop and avoid the accident
189 It must first be observed that this inference concerns only Mr Scammell.
190 According to both Mr and Mrs Scammell, the accident occurred without warning. There was nothing to suggest that the bearing was about to fail.
191 Neither Mr Scammell nor Mrs Scammell noticed any smoke emanating from the caravan. No other witness gave evidence about seeing smoke coming from the caravan. Neither Mr nor Mrs Scammell heard any noises prior to the accident which might have alerted them that something was wrong.
192 If I were to put the evidence of Mr and Mrs Scammell to one side, there is no satisfactory evidence to establish that: (a) there must have been smoke, and (b) that even if there was, Mr Scammell must have been in a position to notice it. Similarly, there would be no evidence to establish that either there were other signs that the bearing was about to fail, or that they were of such magnitude that Mr Scammell ought to have noticed them. In fact, Mr Hardy, the plaintiff’s own expert, opined:
“When driving a vehicle that has a worn wheel bearing the affects (sic) can often be felt and heard from the driver[’]s position inside the vehicle. A failing wheel bearing tends to emit a whirring sound which can sometimes be heard from inside the cabin. As the bearing wears and the wheel hub develops some movement relative to the axle a vibration will occur at most speeds, more notable at highway speeds, which may be felt through the body of the vehicle. However, trailers and caravans are attached to a vehicle via the towbar/ball, they are pulled by the towing vehicle. The driver of the towing vehicle will not experience vibrations from a failing wheel bearing on a caravan.
... Noise, vibrations and possibly smoke would have emitted from the wheel prior to it detaching from the caravan however it is plausible that the driver did not observe any of these signs.”[233]
(Emphasis added)
[233]Exhibit C, report of Mr Jack Hardy dated 24 September 2019, pp15-16
193 I am not satisfied that the inference contended for is made out against either defendant.
194 Even if there were such signs, there is no evidence that they would have been apparent in sufficient time to apply the brakes to bring the vehicle to a halt and thereby prevent the fire from igniting. Moreover, Mr Hardy testified that the action of braking causes additional friction and heat to build up inside the wheel hub.[234] There is no evidence that applying the brakes would have made a difference to the impending catastrophic failure of the bearing or that it would have prevented the fire.
[234]T175
195 Returning to paragraph 13 of the plaintiffs’ pleadings as particularised relevant to the second inference:
“h) Failure to exercise proper care in the driving of the caravan;
i) Failure to keep a proper lookout;
j)Failure to extinguish the fire at its outset when it could be safely and reasonably contained”[235]
I am not satisfied to the requisite degree that any of these particulars are made out.
[235]Statement of Claim dated 8 April 2019
196 Although not the point of focus in Mr Stuckey’s submissions, the evidence referred to earlier is clear that on this hot, windy fire ban day there was nothing that either Mr or Mrs Scammell could have done to extinguish this rapidly spreading fire.
Conclusion
197 The plaintiffs have failed to discharge the burden of proving that either or both of the defendants were negligent.
Orders
198 The proceeding is dismissed.
199 I shall hear the parties on the question of costs.
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