Regrowth Karri Pty Ltd v Daynite Towing Service (WA) Pty Ltd - [2015] WADC 44

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: REGROWTH KARRI PTY LTD -v- DAYNITE TOWING SERVICE (WA) PTY LTD [2015] WADC 44

CORAM: STAVRIANOU DCJ

HEARD: 17, 18, 19, 20, 21 & 24 NOVEMBER 2014

DELIVERED : 24 APRIL 2015

FILE NO/S: CIV 2463 of 2013

BETWEEN: REGROWTH KARRI PTY LTD
Plaintiff
AND
DAYNITE TOWING SERVICE (WA) PTY LTD
Defendant

Catchwords:

Torts - Negligence - Breach of duty - Civil Liability Act 2002, s 5B, s 5C

Bailment - Bailee for reward - Breach of bailment - Burden of proof - Whether bailee discharged burden of proof

Bailment - Bailee for reward - Damages - Quantification of loss

Legislation:

Civil Liability Act 2002, s 5B, s 5C

Result:

Judgment for the plaintiff in the sum of $229,965.14

Representation:

Counsel:

Plaintiff: Mr P Jarman
Defendant: Mr J R Criddle

Solicitors:

Plaintiff: Jarman McKenna
Defendant: Walker Hedges & Co

Case(s) referred to in judgment(s):

Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Kelly v Humanis Group Limited [2014] WADC 43
Southern Properties (WA) Pty Ltd v Executive Director of The Department of Conservation and Land Management [2012] WASCA 79
Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) A Tort Rep 81-292
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt & Ors (1979) 146 CLR 40

STAVRIANOU DCJ:

Introduction

The plaintiff claims damages in negligence, bailment, contract, and for misleading or deceptive conduct arising out of the destruction by fire of its coach number TC5857 (the coach) whilst it was being towed by the defendant from Mullewa to Perth on 28 September 2012.
The contract for the towing services was oral and made on 27 September 2012 (the contract).
The fire originated in the rear section of the coach. It was caused by heat developing in its park brake.
The defendant admits that it owed a duty of care to the plaintiff to take reasonable care in the towing of the coach. The pleaded particulars of negligence relate primarily to the defendant's conduct of the tow. Breach of duty is denied and the defendant pleads that it exercised reasonable care in the towing of the coach.
The defendant admits that when it took possession of the coach on the date of the fire it did so as bailee for reward.
The claim in contract relies upon the pleaded particulars of negligence as constituting breaches of contract. The defendant denies breach.
The misleading or deceptive conduct case primarily relies upon representations alleged to have been made by the defendant as to its capacity to perform the contract. The defendant denies that any representations were made as alleged.
Whilst the plaintiff puts its case in a number of different ways, both counsel accepted that the primary determination was whether the defendant had exercised reasonable care in the course of the tow.
The defendant counterclaims for outstanding towing fees pursuant to the contract.

Issues and admissions

The focus of the plaintiff's claim was the manner in which the tow was carried out by the defendant. Specific precautions which the plaintiff submits the defendant should have taken were identified. The plaintiff's case is that a reasonable person in the defendant's positon would have taken the precautions. More specifically, the plaintiff alleges breaches of duty in relation to the monitoring of the coach, monitoring and maintenance of the pressure of the air system, stopping the coach at reasonable intervals to perform inspections and disengaging the brakes. All of the particulars relied upon are identified later in these reasons ([156] and following).
The defendant denies any breach of duty and alleges it exercised reasonable care.
The defendant admits that:
(i)it was a bailee for reward;
(ii)it owed the plaintiff a duty to take reasonable care in the towing of the bus;
(iii)the bus had lost air pressure in the operation of the suspension and brakes;
(iv)it took possession of the bus;
(v)it pressurised the air system to release the bus' mechanical brakes and operate the suspension;
(vi)at approximately 9. 40 pm the bus while in the defendant's possession was destroyed by fire;
(vii)the fire occurred on the Brand Highway near Cataby approximately 300 km from the commencement of the tow;
(viii)the fire originated in the rear tag axle wheels and tyres of the bus;
(ix)the fire spread throughout the bus;
(x)the fire was caused by the unrequested application of the bus' mechanical brakes in the rear tag axle of the bus.
As well as the identified admissions as the trial progressed many factual issues were either agreed or not seriously placed in issue. In the circumstances it is appropriate to now outline some brief background.

Background

From 1996 the plaintiff has carried on a bus and coach charter business and currently operates a fleet of 40 vehicles. Mr Neville George Thomson is a shareholder of the plaintiff and its chief executive officer. He has many years of experience operating coaches.
The coach was manufactured in 1995. It had 47 seats and a gross mass of 13 tonnes. On occasions in the course of reports and evidence witnesses referred to the bus as a coach. The word 'bus' was also used in pleadings and submissions. Nothing turns on the description.
The coach had three axles, a front steering axle, a rear drive axle and to the very rear a tag axle. The tag axle does not drive the coach in any way. Its function is to support the load.
An air compressor driven by the engine of the coach supplies air for the brakes and the suspension system.
There was no issue as to the manner of operation of the braking system of the coach. Following conferral by experts appointed by each party a joint statement in relation to the operation of the braking system of the coach was provided. The statement is annexed to these reasons. At this stage it is sufficient to note that the park brakes are kept disengaged by a supply of air from the compressor of the coach.
The defendant has for a number of years carried on business as a towing contractor.
The plaintiff and the defendant have had a business relationship for a number of years and the defendant was the plaintiff's towing contractor of choice.
On 27 September 2012 Mr Thomson drove the coach north on the Brand Highway from Perth heading towards Wooleen Station, which is approximately 200 km north of Mullewa.
Near Mullewa a problem developed with the gearbox of the coach and it jammed in fourth gear. Because he was unable to remedy the problem Mr Thomson decided to have the coach towed back to the plaintiff's Perth workshop for repair. Thereafter Mr Thomson left the coach parked in Mullewa and returned to Perth in anticipation of collection and towing by the defendant.
On 28 September 2012 the plaintiff engaged the defendant to tow the coach to Perth.
Mr Luke Anthony Salamone, an employee of the defendant, drove to Mullewa to effect the tow. Mr John Kelly was engaged by the defendant and assisted Mr Salamone to set up the coach for the purposes of the tow. As the coach had lost air pressure the air system was pressurised in order to release the brakes and to enable the suspension of the coach to operate.
After connecting the coach Mr Salamone left Mullewa towing the coach behind the defendant's tow truck.
On the day of the tow the defendant's tow truck was fitted with a wireless navigation system which monitored the time, trip distance and location. Data updates occur on the system at three‑minute intervals. At trial there was no dispute as to the accuracy of the data record obtained from the system. The record establishes the following chronology for 28 September 2012:
1.Between 1550 hours and 1815 hours the tow truck was stationary. It was during this period that Mr Salamone and Mr Kelly were connecting the coach to the tow truck.
2.At about 1815 hours Mr Salamone commenced towing the coach towards Perth.
3.Between 1821 and 1825 hours the tow truck was stopped. This was 3 km into the journey.
4.Between 1824 hours and 1924 hours there are two recorded occasions when the tow truck exceeded the speed limit of 100 km per hour.
5.At 1833 hours the speed recorded was 101 km per hour, 17.5 km into the journey.
6.At 1854 hours the tow truck was travelling at 102 km per hour, 47.8 km into the journey.
7.Between 1915 hours and 1918 hours the tow truck's second stop occurred. This was 80.3 km into the journey.
8.Thereafter there are further recorded occasions when the tow truck exceeded the speed limit of 100 km per hour as follows:
(a)At 1933 hours the tow truck was travelling at 103 km per hour, 99.4 km into the journey.
(b)At 2018 hours the tow truck was travelling at 104 km per hour, 172 km into the journey.
(c)At 2030 hours the tow truck was travelling at 108 km per hour, 193 km into the journey.
(d)Between 2124 hours and 2136 hours the tow truck was travelling in excess of 100 km per hour and up to 105 km per hour, 300 km into the journey.
9.Between 2136 hours and 2139 hours the speed of the tow truck reduced from 106 km per hour to 60 km per hour, 306 km into the journey.
10.At 2142 hours the tow truck stopped on the Brand Highway near Cataby. This was 307.8 km into the journey and about when the fire commenced.
Mr Salamone unsuccessfully attempted to extinguish the fire and the coach was destroyed. He thereafter returned to Perth.
Between 29 September 2012 and 16 December 2012 the plaintiff hired a substitute coach to enable it to fulfil its contractual obligations.

The condition of the coach

The defendant's pleaded case included an allegation that 'as a direct result of the unroadworthy condition of the coach' it had caught fire. Given the cause of the fire there was a considerable body of evidence as to the condition and operation of the air supply and brakes of the coach.
The plaintiff adduced evidence from Mr Mario Giovani Zrinscak and Mr Neville Thompson as to the condition of the coach prior to its departure from Perth on 27 September 2012.
Mr Zrinscak is a vehicle examiner and qualified motor mechanic employed by the West Australian Department of Transport. He has worked as a truck driver and has also been a self-employed mechanical repairer. Since about 1973 he has worked almost exclusively with heavy vehicles.
In his role as a vehicle inspector he had cause to examine the plaintiff's coaches. The coaches which he had examined were in his view of 'a reasonable standard, quite a good standard'.
On 27 September 2012 he completed an inspection of the coach and certified that it was compliant with regulatory requirements as to its construction and equipment and that it was in a safe condition to be used on a road.
Mr Zrinscak described in his evidence that the braking system comprised a primary and a secondary circuit. Each circuit is usually tested in the course of an inspection.
Mr Zrinscak's evidence in relation to the inspection of the brakes of the coach was that 'there were no difficulties that came to mind'. Mr Zrinscak gave evidence that he performed a visual inspection of the brake shoes and brake lining. He had not observed what he described as 'any difficulties' that he could recall. Mr Zrinscak gave evidence that he would not have passed the coach if he had detected an air leak.
Mr Zrinscak has many years of experience as a vehicle inspector and with heavy vehicles. He impressed as competent and diligent in the discharge of his employment duties and unlikely to provide certification of a vehicle without a prior thorough inspection.
Mr Thomson gave evidence as to the performance of inspection, maintenance and repairs of the plaintiff's coaches. Mr Thomson's role was to oversee repairs and do some work. Mr Thomson gave evidence that vehicle inspections are performed every 10,000 km and a service and inspection carried out every 20,000 km. Coach drivers are required to inspect their vehicles every day. A checklist must be completed and signed off each day and then submitted to the company. The evidence of Mr David William Gibbs, who on occasions does driving work for the plaintiff, was that there was a preliminary checklist of items to be completed before commencement of a journey.
Mr Thomson produced documentary evidence in relation to the vehicle inspections and repairs which had been performed on the coach on 20 December 2011, 8 February 2012, 15 February 2012, 1 May 2012 and 29 August 2012. I am satisfied based upon the evidence of Mr Thomson, which I accept, that the plaintiff had in place a comprehensive inspection, maintenance and repair system for its fleet of vehicles which included inspection of brakes and air supply. Mr Thomson was clear, cogent and concise. I have no hesitation in accepting his evidence both as to the condition of the vehicles in the defendant's fleet and generally.
I am satisfied based upon the evidence of Mr Zrinscak and Mr Thomson that the coach was in sound mechanical condition and roadworthy before it commenced its journey on 27 September 2012.

The towing contract

The contract between the plaintiff and the defendant was oral and made on 27 September 2012. The communications constituting the contract were by telephone between Mr Thomson on behalf of the plaintiff and Mr Robert Waters on behalf of the defendant. In the first conversation Mr Thomson gave details as to where the coach was located and its mechanical condition. Mr Thomson gave evidence that he told Mr Waters that he had disconnected the tail shaft from the differential but was unable to disconnect it from the gearbox. Mr Thomson also said the coach would need to be raised to remove the tail shaft. He also asked that the tow commence as soon as possible. Mr Waters said he was unable to do the job himself but would 'speak to his young bloke'. In the second conversation Mr Waters agreed to send a tow truck but this would not occur until the next day (28 September 2012).
Mr Thomson was cross-examined as to his recollection of the conversation with Mr Waters. His evidence, which I accept, was that whilst he conceded the first conversation may not have been with Mr Waters, he definitely had spoken to him about the tow. I accept that Mr Waters was involved in the negotiation of the towing contract and had spoken to Mr Thomson. That finding is supported by the evidence of Mr Kelly as to his conversation with Mr Waters concerning the tow.
The plaintiff pleads that there were implied terms of the contract that:
(a)The defendant would exercise due care and skill in the performance of the services.
(b)The tow truck would be fit for the purpose of providing the services.
(c)The coach would not be damaged during the services.
The pleaded basis for the implication of the terms is that they give business efficacy to the contract. Whilst in the defence there was a denial of any of the implied terms, ultimately at trial it was accepted that there was an implied term that the defendant would exercise due care and skill in the performance of services pursuant to the contract. It was also conceded that there was an implied term that the tow truck would be fit for the purpose of providing the services.
The defendant submitted that the effect of the third pleaded term that the coach would not be damaged during the services was to elevate the contract to one of insurance. The duty of a bailee is not that of an insurer of the property and the term cannot be implied.
The statement of claim pleads what are described as two particulars of breach of contract. The first is that the coach was not delivered to the plaintiff in the same condition it was in when it was collected by the defendant. The second particular repeats the particulars of negligence relied upon in the duty claim and which are referred to later in this judgment.

Evidence as to the establishment and progress of the tow

Mr Salamone was the defendant's employee with primary responsibility in relation to the tow of the coach. Mr Salamone is aged 31 years and has experience in what he described in evidence as 'heavy recovery and truck towing'. Whilst he had worked for the defendant on a previous occasion, he had only been employed for a week when the fire occurred. He gave evidence that on the prior occasion when he had worked for the defendant he had received training from Mr Waters.
On 28 September 2012 at about 10.00 am Mr Salamone drove from Perth in one of the defendant's tow trucks to Mullewa to collect the coach. At about 2.00 pm he arrived at the location where the coach had been parked by Mr Thomson the night before. Shortly thereafter Mr Kelly arrived and the hook up of the coach to the tow truck began.
Initially Mr Salamone and Mr Kelly walked around the coach. Mr Salamone gave evidence that the coach 'was literally nearly touching the ground'. Mr Kelly started the engine of the coach and Mr Salamone heard the knock of the disconnected tail shaft. He therefore concluded it was not possible to use the air supply from the coach to inflate the suspension. Mr Salamone gave evidence it was necessary to run an airline to the compressor at the rear of the coach to elevate the coach to enable the hook up to occur and for the tow to proceed. The airline was connected and the coach then rose. Mr Salamone gave evidence that the air supply to the coach was connected by a line from the rear of the tow truck down the side of the coach to the compressor.
Mr Salamone gave evidence that there was a tiny air leak in the system related to the treadle valve (foot brake valve). This was able to be remedied by pumping of the brake pedal of the coach.
Mr Salamone gave evidence that after the coach was attached to the tow truck he had used cable ties to run the airline under the coach. A final check occurred of the tow truck and coach and the tow then began.
Mr Salamone gave evidence that about 2 – 3 km into the journey he had stopped his truck. He had what he described as a quick walk around and described in evidence that 'everything seemed fine'.
Mr Salamone next stopped about 70 – 80 km into the journey. He gave evidence that he had relieved himself during this stop and 'had a quick look around'. Mr Salamone described an inspection practice of checking for excess heat as follows: 'Just run past each tyre, each hub with the back of your hand'. On the occasion of this inspection everything looked normal and fine. There were no leaks, no heat coming from anywhere or smells.
Mr Salamone gave evidence that near Cataby he heard a bang which he thought was a tyre. He slowed down and went around a bend and then stopped. Mr Salamone got out of the tow truck and carried out an inspection from the driver's side. He moved to the coach and inspected it. He saw red embers coming from the passenger side of the coach. At the time he was looking directly at the tag axle of the coach.
Mr Salamone gave evidence he used a fire extinguisher from the tow truck in an attempt to extinguish the embers. There were no flames. He exhausted the contents of the fire extinguisher onto the embers. Unfortunately the embers returned and turned into flames. Mr Salamone gave evidence that he then unhooked the tow truck from the coach and drove forward away from the coach.
Mr Salamone gave evidence that when he had unhooked the coach, he had not unhooked the airline. As a result the airline had snapped and air was draining from the tow truck. Mr Salamone removed the fitting from the rear of the tow truck enabling air to build up again in the tow truck and enable it to drive away.
On the first occasion that Mr Salamone had worked for the defendant he had received hands-on training from Mr Waters. During the week he was employed by the defendant before the incident he had received training for a few days.

It was Mr Salamone's evidence that when the coach was first started by Mr Kelly the tow truck was directly in front of the coach.
Mr Salamone gave evidence that he was unable to recall Mr Kelly doing repairs to any leaks of the coach save to the treadle valve.
Mr Salamone was cross-examined as to the tow. The questioning proceeded as follows:
JARMAN, MR: And I put it to you that two mechanical engineers have agreed that the reason for the fire was an unrequested brake application caused by a failure in the air system and that Mr Tully has confirmed that that would have registered on your gauges? - No.
He said the gauge would go from about a 3 o'clock position to about a 12.30 position? - No. If it got to there, the – the emergency buzzer would go off and you'd have to pull up.
Right. That's your answer to that, is it? - Yeah, definitely.
So I put it to you that you weren't checking those gauges properly? - No. They're – I – you look all the time. It sort of – like I say with the mirror thing, you don't time when you look at it, but you're - you're driving along and your vision – because your steering wheel is there. Your gauge is – as we've seen on the previous pages, you are literally looking – it's in your line of vision. You can't not look at it. You'd have to put a blindfold on not to see it.
And it doesn't matter to you how many air leaks had been detected in the coach before you set off as long as Kelly had repaired them, you don't see the need for any extra vigilance in the tow or any extra stops? - No. Like I say, in those two stops I pulled up, I couldn't hear any air leaks and if they're that fine, they're not going to cause a problem.
You've travelled for 230 kilometres at speeds mostly in excess of the speed limit without a single stop and you think that’s appropriate? - Yeah. It's - - -
Do you have a problem with that at all? - No, standard – that's standard – we sort of do. If you're happy with it, and I was very happy with the way things were on it, there's no reason to stop. If you have to stop you obviously think you've got a problem or issues or - - -
I put it to you that had you stopped - - -? - Yes.
- - - where that other driver stopped you would have noticed a problem with the heat and the hubs and the tyres? - Maybe but maybe not. Like it could have happened within the last two minutes of the journey. I could have stopped and get - get going again and - and still happen in the same spot. I can't say when it happened. If I knew when it happened I would have stopped and rectified whatever issue I could have at the time.
And I put it to you that you have driven for a period of - from 7.21 until - without a stop until 9.39? - Yes.
So two and a quarter hours without a stop? - Yes.
After - at this stage you've been working all day since 7 am? - Yes.
And you didn't feel it was appropriate to have a stop some time in that previous 230 kilometres? - No. No, cos I was happy with the way everything was sitting. And like I say, I was just going to get to Cataby, have a nice dinner, have a shower and then, if I felt like it, continue on, if not go in in the morning. There - there was no issue, there was no concern to stop, there was no issue that warranted me I had to pull up and I was - like every other tyre I do I'm - I'm happy when I leave wherever I leave I'm happy and satisfied that I've set it up right.
Mr Kelly has been a motor mechanic for a number of years and for the last six years has operated a vehicle towing business.
Mr Kelly gave evidence that on 28 September 2012 he received a telephone call from Mr Waters requesting he provide assistance to a tow truck driver in the preparation of a coach for towing from Mullewa to Perth. He agreed to do so and then drove to the scene where he met Mr Salamone. Mr Kelly saw that the air bags which controlled the suspension were deflated and preventing access underneath the coach.
Mr Kelly gave evidence that he sat in the driver's seat of the coach and started the engine to enable air to be pumped into the system and raise the suspension. When the engine was started he heard what he described as a 'massive banging noise from down the back of the bus'. He immediately turned the engine off and then looked under the coach. He saw oil on the road and saw that the tail shaft was still connected to the gearbox. He undid the main air line between the compressor and the brakes of the coach and connected the air system of the tow truck to the coach.
It was Mr Kelly's evidence that notwithstanding air being pumped from the tow truck the coach still would not rise up off the ground. Mr Kelly described in his evidence a massive air leak at the front of the coach. He then went under the coach to investigate. He determined that the leak was caused by the brake treadle valve. Mr Kelly arranged for Mr Salamone to actuate the brake pedal which stopped the leak through that part of the system. Consequently the suspension began to rise up. The tow truck was then driven to the front of the coach to enable the vehicles to be connected.
In order to move the truck to the front of the coach it was necessary to remove the air hose from the tow truck. It was Mr Kelly's evidence that when the tow truck was moved to the front of the coach he and Mr Salamone had listened for air leaks.
Mr Kelly gave evidence that in relation to checking of the air supply there were gauges on the dashboard of the coach. He said these were on the same pressure as in the tow truck. Mr Kelly gave evidence that he had released the park brake of the coach before the tow commenced.
It was Mr Kelly's evidence that before the tow began the manner of connection of the coach was 'as per standard'. Mr Salamone had driven off in the tow truck with the coach attached. He had followed Mr Salamone for about 6 km and had observed nothing untoward.
Mr Kelly gave evidence in cross-examination that he carried out repairs to three or four leaks in the airlines of the coach before it was towed.
Mr Kelly described the road between Mullewa and Mingenew on which the coach was being towed as undulating.
Mr Salamone had only been employed by the defendant for one week when the fire occurred. He had previously worked for the defendant for about 18 months and then had a break for about three to four years before returning. He had training on the job during his first period of employment with the defendant. He had also received some training during the week when the fire occurred, albeit for only a relatively short period. This had involved being out on jobs with another person.
Mr Salamone's evidence and that of Mr Kelly differed as to the repair of air leaks. Mr Salamone said that one leak to the treadle valve was repaired. Mr Kelly said there was a total of five leaks repaired. Three repairs were to airlines as well as repairs to the treadle valve and to the dump valve.
It was Mr Salamone's evidence that at all times he had been aware of what Mr Kelly was doing. In examination‑in‑chief Mr Salamone referred to attention being given to one leak only, namely the leaking from the treadle valve. There was no other noise that could be heard. He did not give evidence that Mr Kelly had repaired other leaks as Mr Kelly said that he had. Mr Salamone could not recall Mr Kelly doing repairs to the dump valve of the coach. In contrast to Mr Salamone's evidence Mr Kelly referred in evidence to the repair of air leaks apart from those to the treadle valve. However, it was only in cross‑examination that he referred to the other repairs done by him. In the course of Mr Kelly's cross‑examination it became clear that the defendant's solicitor had spoken to him. Mr Kelly accepted that in the course of the conversation he had referred to air leaks repaired by him. It was only when in cross‑examination reference to the conversation was made that Mr Kelly gave evidence as to other air leaks repaired by him.
There were other differences in the accounts given by Mr Salamone and Mr Kelly concerning the location of the tow truck relative to the coach and who had released the park brake.
Mr Salamone's evidence as to events on 28 September 2012 was very general and appeared very much to be directed to practice rather than as to what had occurred on the specific occasion. There were many occasions in his evidence where he referred to what 'we had done' and not what he did on the particular occasion. When asked about the leak from the treadle valve he said 'We got in the bus and gave the pedal a couple of pumps'. Similarly he described that once the suspension airbags had filled 'We commenced getting under the front axle'. I accept that witnesses often express themselves in the plural particularly if carrying out an action with another person. However in this case it became clear that Mr Salamone was on occasions referring to practice rather than the specific incident. On occasions his evidence was clearly non‑specific. For example, when asked about what occurs after the airline is tied under the coach he replied 'You just do a final check'.
I do not accept that Mr Salamone was a reliable witness or had a good memory of events. I do not accept that he was unaware of the three air leaks fixed by Mr Kelly. His evidence very much, as I have said, was dependent upon what was his practice. In all the circumstances I am generally not prepared to rely upon the evidence of Mr Salamone except where there is some confirmatory evidence which I accept. Mr Kelly only disclosed repairs to air leaks in cross‑examination. The repair of air leaks was an important issue about which he had not been forthcoming in evidence-in-chief. This does cause me to consider the evidence he gave with care. In the result I do not accept that either of Mr Kelly or Mr Salamone were reliable witnesses or had good memories as to the actual events.
Mr Mervyn George Jesnoewaki and Mr Gibbs were each driving on the Brand Highway and saw the coach being towed by Mr Salamone. Mr Jesnoewaki has driven buses, trailers and road trains for a number of years. He also has driven tow trucks for about five years and has known Mr Thomson for about 30 years and is related to him by marriage and on occasions does work for him.
Mr Jesnoewaki was driving towards Geraldton when he saw the coach being towed in the opposite direction. This was approximately 100 km from Cataby. He described the coach as being 'jacked up at the front' when he saw it. When he had gone past the coach he did not see smoke or anything coming out of the coach. It was being towed at the time and looked a bit high to him.
Mr Gibbs does casual driving work for the plaintiff. He was on the Brand Highway heading to Geraldton and about 140 ‑ 150 km from Cataby. Mr Gibbs gave evidence that when he saw the coach it 'was very high at the front and low at the back'. He gave evidence the back of the coach was very low to the ground. He had rung Mr Thomson at the time and told him that the coach was lifted very high at the front and low at the back. He had not seen any smoke coming from the coach when he looked at it. In cross‑examination he said that he had not seen any 'smoke or anything' coming from the coach when he went past it.
The evidence of Mr Jesnoewaki and Mr Gibbs was not the subject of significant challenge. I have no hesitation in accepting each of them as honest and reliable witnesses.

Expert evidence

Mechanical operation of the coach and the fire

The plaintiff and the defendant each called an expert in relation to the operation of the air supply and brakes of the coach. Each witness also expressed views concerning the outbreak of the fire. There was no challenge to the credibility of either witness and much of the opinion evidence given was agreed.
Paragraph 13 of the amended statement of claim pleads that the fire was caused by the unrequested application of the vehicle's mechanical brakes in the rear tag axle of the vehicle, following a gradual loss of pressure in the air system as a result of the leak. In par 13 of the amended defence the allegation is admitted. However at trial the defendant put in issue the length of time that the brake had been applied before the fire occurred.
One of the principal controversies in the expert evidence adduced concerned whether there had been a sudden event such as the rupture of an airline as opposed to a gradual leaking of air which had caused the application of the brakes. The defendant's case is that no action by the tow truck driver caused or contributed to the outbreak of the fire. The defendant maintained it was impossible to make a finding as to when the brakes which led to the fire were applied.
Phillip Malio Franzone gave evidence for the plaintiff. He is a mechanical engineer with extensive experience in the automotive industry. He operates his own business which he described as a 'failure analysis consultancy' and has undertaken in excess of 300 investigations.
Mr Franzone examined the coach on 3 December 2012 and 4 January 2013 in order to determine the likely cause of the fire and wrote a report dated 17 December 2012.
Mr Franzone gave evidence that the fire damage was the most severe in the vicinity of the rear tandem axles. The majority of the aluminium wheels of the tag axle had been destroyed. All of the rubber fitted to the tyres of the tag axles had been consumed and the reinforcing wire of the tyres was found to be wrapped around the axle. The significance of that observation was that in his view the wheels had been rotating after the tyres had been destroyed.
Mr Franzone noted in his report the degradation of the friction material on the brake shoes of the tag axle brakes. This was in his view far in excess of what would be expected from a truck fire. He explained his opinion in his evidence as follows:
I see. Now, you go on to talk about the degradation of friction material at the bottom of page 74 in paragraph 2(4)(d)(ii)? - Mm hmm.
You say that:
'The friction material on the brake shoes of the tag axle brakes has been subjected to severe overheating.'
Now, is that image 7 on the following page? - Mm.
Is - - -? - Yes, it is showing degradation of the friction material.
Yes? - That degradation is far in excess of degradation that you would expect from a truck fire.
Right? - Um.
So you're saying it's not just the heat from the fire that's caused that degradation. There's something else as well? - Something else. I - far in excess of the heat developed by the fire to cause that degradation.
Now, the next page at page 75, what you say that is - - -? - Mm hmm.
- - - is the extreme temperatures likely to be the result of a dragging partially applied brake.
Can you explain that to his Honour? - Okay. If a brake is dragging obviously great friction is - is - is generated and that friction can be far in excess of the - the temperatures developed in a - in a truck fire or at least equally in them but the problem is that during - when the truck is stationery the heat of the fire would be dissipated through the major components. You'll lose some in the brake drums, et cetera. When the - when the truck - when the bus is travelling you get this constant build up of heat. Eventually a temperature is reached whereby the resins holding the - the friction material together start to basically boil and they release a gas which breaks up the - the actual binding and you see that you get that cracking effect and it also produces a film of gas between the brake lining and the brake drum which renders the braking inefficient therefore more brake pressure is applied - required for the same and the heat dissipation isn’t allowed. So you get a concentrated build up of heat in the shoes and eventually you get the degradation effect. It doesn't normally happen in - it does not happen in truck fires.
In his report dated 17 December 2012 Mr Franzone opined as to the likely sequence of events being that first there would be an unrequested brake application. Second, the friction material is brought into contact with the brake drum developing heat as a result of the friction. Third, the brake drum and wheel hub absorbs sufficient heat to raise the temperature of the bearing lubricant to or near its auto ignition point. Fourth, heat causes bearing seal failure. Fifth, lubricant leaks from the hub, contacts hot brake components and ignites. Sixth, burning lubricant spreads fire.
Mr Franzone gave evidence that minor leaks in the suspension and brake systems are not uncommon and under normal circumstances the air compressor is sufficient to compensate for them. It was his opinion that given all air had been lost from the system the tow truck operator should have been alerted to a potential problem. He explained he reached that conclusion because when the driver arrived there was no air in the system. Consequently one would assume that there was a leak which needed to be looked at before anything could be proceeded with.
Mr Franzone gave evidence that in circumstances where the air supply to the coach came from the tow truck, any loss of pressure in the coach system should have been noted by the operator in the towing vehicle's air pressure gauges. Loss of air would indicate a potentially serious situation and the operator should in his view have stopped and investigated.
Mr Franzone examined a number of possible causes of the fire. Ultimately he concluded that the likely cause was brake failure causing partial brake application resulting in severe brake overheating and subsequent ignition of combustible material.
Mr Franzone provided further reports dated 12 May 2013 and 30 May 2014. In the first report he concluded that the brakes of the drive axle had no part to play in the cause of the fire. In the second report he reached a similar conclusion in relation to the leak from the brake treadle valve. He concluded that it was not the brake treadle valve leaking air that caused the loss of air to the system.
In summary, Mr Franzone concluded, first, that the fire that caused the loss was a consequence of unrequested application of the brakes of the tag axle. Second, the brake application resulted in the development of sufficient friction to generate heat within the brakes which caused auto ignition of the combustible material in the vicinity of the brakes. The likely cause of the unrequested application of the brakes was a loss of air supply.
Mr Franzone gave evidence that the severe wear observed on the brake linings of the tag axle's brakes supported the conclusion that the fire had not started suddenly. Mr Franzone's evidence, which I accept, was that based on the amount of wear and degradation evident on the friction material on the tag axle brakes, the time factor involved was considerable. It was Mr Franzone's evidence that had the driver made regular inspections it is likely that he would have noticed the acrid smell readily identifiable with overheating brake friction material.
Mr Franzone provided a responsive report dated 4 November 2014 to matters raised by Mr Tully (the defendant's expert). It is convenient in the circumstances to set out the relevant passages of his report which reads:
1.The fire would not have developed by way of a sudden event.
This conclusion is based on:
a)On page 22 of Mr Tully's report of 25th June 2013 he concludes that 'a fault within the drive axle has caused a loss of air pressure, causing the spring (park) brake chambers to slightly apply'.
b)On page 4 of Mr Tully's supplementary report, he believes 'the fire started in the rear left tag brake assembly as a result of brake component failure through normal wear and tear'.
I concur that the fire has commenced in the left tag brake assembly but disagree that it was consequence to normal wear and tear. Both tag axle brakes displayed evidence of advanced wear and severe overheating. Giving consideration to the fact that the brakes had recently passed a roadworthiness test, it is difficult to reconcile that a simultaneous mechanical component failure that would allow gradual application of the spring brakes occurred in both tag axle brakes. The commonality shared by both tax axle brakes is the air supply and would appear to support Mr Tully's conclusion at point a) above.
•If a major air loss had occurred, say as in form of an air line or substantial valve failure, and the truck compressor was unable [to] compensate for the loss of air then the pressure gauge within the cabin of the tow truck would register the sudden loss of pressure and all the brakes would have applied resulting in brake lock up. Brake lock up would have been obvious to the driver and he would be able to bring the truck to [a] halt prior to a fire occurring.
•If the air loss was minor and the truck compressor was able to compensate for the loss then the brakes would not have applied and a fire would not have occurred.
•If the air loss was gradual but of sufficient magnitude that the compressor was unable to compensate then the driver would notice an equally gradual loss of air pressure on his gauges (assuming that the bus was supplied from a supply common to the truck as is normal practise) and the driver should have halted to investigate.
The above indicates to me that the gradual application of the tag axle brakes and consequent fire was likely to have been caused by a slow loss of air pressure from the bus air reservoirs and the truck air supply compressor did not detect the loss. The only way that I can think of that the compressor would not detect the loss of air in the bus reservoir is if the supply line from the truck was to become disconnected.
2.If the driver had checked regularly he would have smelt an acrid smell and likely have seen smoke and should have observed that the bus was travelling lower on the ground.
If we accept the hypothesis that a gradual loss of air has occurred and the air was not replenished by the truck compressor then I find it completely consistent it may have taken several hours for the pressure within the bus system to drop from what it would have been when the bus was connected to the truck, (approx.. 110 – 120 psi) to the pressure required to apply the spring brakes. (approx. 60 psi) During this time the air suspension, which is also connected to the brake air supply, would lower in response to the loss of air. Had the driver made regular inspections, it is my opinion he should have noted the lowering of the suspension before air pressure had dropped sufficiently to allow the brakes to apply.
Similarly when the air pressure within the system dropped to approximately 60 psi the brakes would begin to apply. They would not immediately apply with full force but rather apply gradually in response to the slow loss of pressure. It is therefore equally consistent that the brakes would have taken considerable time to overheat to the point that fire ignition occurred. It is not possible to estimate the time involved from initial brake friction material contact to ignition. However, based on the amount of wear and degradation evident on the friction material on the tag axle brakes, it is my opinion that the time factor involved was considerable. Again, had the driver made regular inspections it is likely that he would have noticed the acrid smell readily identifiable with overheating brake friction material. Certainly, based on the degradation evident to the friction material, a copious amount of smoke would have accompanied the smell prior to fire ignition.
3. The driver should have carried with him an infrared pyrometer which would have checked the temperature of the tyres. This is an inexpensive tool which would have enabled the driver to check whether or not the tyres were overheating and fire might have eventuated.
The above is purely a personal opinion and one I pass onto my clients. During a 'walkaround' truck inspection it is common practise to check tyre inflation by striking the tyres with a solid object. The sound indicates the general inflation level of the tyre and will suffice to indicate a deflating tyre. However, detection of an over inflated tyre, consequent to internal heating, is more difficult. To this end I recommend that an infra-red pyrometer is used to ascertain accurate tyre temperature and hence, early detection of a potential fault either to the tyre, wheel or brake.
4.The less speed at which the vehicle was travelling the less friction and less heat would have been generated.
Heat generated between two surfaces is proportional to the coefficient of friction between the materials and the velocity of the materials relevant to each other. Given that the coefficient of friction between the brake drum and the brake shoe material is constant at a time, then an increase in velocity between the brake drum and the brake shoe material will result in greater generation of heat. Hence for a given pressure application, a slower travelling vehicle will generate less heat. However it will take longer to retard the vehicle and the lesser heat will be generated for longer period of time. The total heat energy required to alt the vehicle will be the same. In this instance, where the bus was not allowed to come to a halt because it was being towed it is logical to conclude that the generation of heat would continue and the higher the speed, the greater the heat accumulation.
5.The driver should have wound off the brakes before commencing the tow. This would have prevented the fire and is a reasonable and inexpensive.
All heavy vehicle air brake cylinders, as fitted to this bus, have provision for winding off and locking the spring brakes in the unapplied position for the express purpose of avoiding unrequired brake application during service procedures and recovery action should loss of air occur. The procedure is relatively simple and requires only basic hand tools. Given the length of the proposed tow and the time it was likely to take, it is my opinion that in this instance, the extra time taken to wind off the spring brakes would have been a reasonable precaution. Had the brakes been locked in the unapplied position then it is my opinion that this fire and the consequent loss of the bus would not have occurred.
6.If any leaks had been observed then it was all the more reason why the brakes should have been wound off.
Included with my instructions was a copy of an email from Rob Waters, Heavy Incident Manager (presumably on behalf of the Tow operator's insurer) clearly stating that the site was attended by experienced tow operators and truck mechanics and on their arrival it was noted that the 'coach has loss all air out of the air bag suspension system'. Given that the suspension and brake systems share common air reservoirs it is my opinion that this should have been sufficient evidence that a substantial air leak existed and extreme caution should be exercised. On this basis, and given consideration to the length of time salvage operations were likely to take, then I am also of the opinion that it would have been wise to err on the side of caution by winding off the spring brakes thereby eliminating any potential of unrequested brake application and fire.

Mr Franzone concluded that the most common cause of unrequested brake application in air-operated brakes was loss of air. The loss caused the smaller diaphragm of the tag axle brakes to apply gradually over time, activating the over adjusted left tag axle brake and causing heat to build up, leading to the fire. In his view the most probable cause of the fire was that there was an interruption of the air supply from the tow truck to the coach, or that that supply was inadequate to maintain the requisite pressure in the vehicle's air system.
Stephen William Tully is a qualified motor mechanic and has for many years worked in motor vehicle accident investigations. He was engaged by the defendant and examined the coach on 24 June 2014. He accepted that he had no expertise in towing vehicles and that he was not a fire cause investigator.
Mr Tully agreed in his evidence with much of what Mr Franzone had reported and opined. He agreed that any issue with the treadle valve was irrelevant. He agreed with Mr Franzone's view that the cause of the fire was not a blown tyre. Importantly, both experts agreed that the parking brake to the left tag axle was the problem and not the drive axle.
Mr Tully gave evidence that if the park brake was to be applied something would be visible within 3 – 5 km. It was Mr Tully's evidence that if the park brakes of the coach were fully applied it would be expected that the wheels would be locked. What is important as to Mr Tully's evidence is that he was referring to a situation where the rear tag axle brakes were fully as opposed to partially applied.
In his report dated 25 June 2013 Mr Tully opined (page 19, page 126) that:
If a brake fault had occurred in the spring brake of the left rear tag axle prior to the bus being towed from the scene, the fire would have reasonably expected to have started in about 3-5 kilometres into the tow not after 300 kilometres.
The cross‑examination in relation to that opinion was as follows:
Right. And now to page 126 at the - at the bottom, you - you've made the point that you'd expect a fire to start or at least - sorry, a fire to start in three to five kilometres into the tow, not after 300 kilometres if the brakes were fully applied? - That is correct. If the brakes were fully applied, yes.
Mr Tully's view in relation to the unrequested application of the brakes was that it had happened 'within the last short distance of time'. He explained that he would expect the heat build-up to be 'pretty quick' rather than something that slowly got hotter and hotter. When asked to explain his reasons for his conclusion he referred to the assumption made that the driver had checked his gauges regularly and had also stopped the bus on a number of occasions to walk around and do an examination. He referred to the fact that if the driver had done so he would most certainly have smelled the friction built up in the brakes. He described the smell as being 'quite smelly'.
Mr Tully agreed with Mr Franzone's opinion as to the origin and cause of the fire.
Mr Franzone's view was that if there had been a sudden rupture, or change in the vehicle's air system, then all of the vehicle's brakes would have engaged simultaneously. This would either have been noticed by the driver, or it would have resulted in different patterns of wear in the brakes and in particular, wear to the brake shoes on the vehicle's drive axle, which was apparent on an examination of the components.
As I have said, the experts, Mr Franzone and Mr Tully, agreed on a number of matters. As to the cause of the fire, as counsel for the defendant submitted in closing, 'it was the application of the maxi (parking) brake that caused the heat that caused the fire'.
Specifically in relation to air loss and the application of the brakes the following exchange occurred in the cross‑examination of Mr Tully:
And you both agree that it's not a - a minor loss because if it was a minor loss, there wouldn't have been an effect on the braking system? - That's correct.
If it was a major loss, you both agree that it would have been - that all four brakes would have come off? - Correct.
So we can boil it down to a - a partial application and an intermediate loss in the air system? - That is correct.
So we're in violent agreement on all of that? - Yes.
All right, thank you. And the level of application of the part [sic park] brake or the spring brake would depend on the level of the leak, would that be a fair statement? - Absolutely, yes.
And the time it would take therefore for the spring brake to apply would again depend on the level of the leak, is that right? - Yes.
And then once the spring brake had applied, again the time it would take for the spring brake to generate enough friction to cause a fire once again depends on the size of the leak? - Yes. And - and the length of time as well.
And the length of time? - Yeah.
I accept and prefer the opinions expressed by Mr Franzone to those of Mr Tully. That said, ultimately the differences between the views expressed were minimal.
The evidence of Mr Franzone was logical and accorded with common sense. His explanation for the degradation of the brake shoe being caused by dragging was supported by Mr Lloyd John Radford, an experienced tow truck driver. Mr Tully's explanation of a sudden loss of air was dependent on the assumptions made as to the conduct of Mr Salamone. As I have said, I do not accept Mr Salamone's evidence. One of the assumptions made by Mr Tully was that Mr Salamone made regular inspections of the coach, which I do not accept to be the case.
I am satisfied based upon the evidence of Mr Franzone, which I accept, that there was a gradual rather than a sudden application of the brakes and this arose from a partial air leak.
The configuration of the tow truck and coach meant that a loss of air from the coach would have had an effect on the air pressure gauge inside the tow truck. As Mr Franzone said in evidence any loss of air from the coach should have been noted by the tow truck driver on the truck's pressure gauges. Loss of air would indicate a potentially serious situation and the driver should have stopped and investigated. Mr Tully gave similar evidence and referred to the needle of the gauge dropping from the 2 ‑ 3 o'clock position to 'maybe 1 o'clock, 12.30, probably'. What is clear from the evidence of Mr Tully and Mr Franzone is that the gauges would have demonstrated a drop even if it was insufficient to trigger an alert buzzer.

Evidence as to towing practices

Each of the plaintiff and the defendant adduced evidence as to towing practices. The plaintiff adduced evidence from Mr Radford who has considerable experience in the towing of vehicles. He was an impressive, well qualified witness and I have no hesitation in accepting his evidence and the opinions he expressed.
The defendant adduced evidence from Mr Waters. In opening submissions the defendant had indicated that he would give evidence 'in relation to normal operating procedures relating to towing of buses'.
Mr Radford in his evidence was asked to express his opinion as to the configuration of the truck and coach as depicted in a photograph taken by Mr Salamone when he stopped shortly after the tow commenced. It was his view the coach was 'definitely lifted too high at the front'. In his view the front wheels were 10 to 18 inches clear of the ground. It was his evidence that normal practice was to tow a coach at about 4 ‑ 6 inches clear of the ground on the front axles. In this way the normal ride height of the coach would be maintained as far as possible. In cross‑examination Mr Radford was asked about his opinion that the photograph demonstrated that the front wheels of the coach were 12 to 18 inches above the ground. He gave evidence that he had placed the photograph onto his computer system and then performed a measurement based upon what he observed on the system. On that basis he was able to confirm his view that the wheels were 12 to 18 inches above the ground. He accepted that if the coach had not bottomed out on the towing trip that the configuration of the truck was in the circumstances appropriate. Mr Radford gave evidence that in his experience if the suspension height is not changed the rear tag axle of the coach can 'bottom out'.
Mr Radford had seen a photograph of the left-hand tag axle brake shoe which formed part of Mr Franzone's report. It was Mr Radford's opinion that the heat damage to the left-hand tag axle brake shoe had been caused by dragging. As I have said, this was also the opinion of Mr Franzone. The reason for Mr Radford's view was that the cracking and damage done was not in any way normal. This was notwithstanding the fact the shoe was getting thin cracks in it. In his view the brake shoes had been 'very, very hot' before the fire. Mr Radford had never in his experience seen a brake shoe which had been as badly burnt. In his view the damage to the brake shoe which he observed was consistent with dragging rather than actual braking either normal or even heavy. It was also consistent with dragging rather than damage caused by fire.
It was Mr Radford's evidence that it would normally take approximately 1.5 hours for a coach to be attached ready for towing by a tow truck operator. The period of 1.5 hours would include the time required to remove the tail shaft. The time taken for the coach to be attached to the tow truck suggested to Mr Radford that there was a problem with the hook up. Mr Radford gave evidence that in those circumstances he would have been 'extra vigilant with the tow and would have checked a lot more often than it was'.
It was Mr Radford's evidence that he would have stopped probably three to four times in the first 100 km of the tow. Even on a normal tow he would stop at 5 km and again probably at 30 km into the journey to ensure that everything was in order. In the course of cross‑examination Mr Radford was asked about the number of stops which he made in the course of a tow. It was his evidence that on one tow of 700 km he had stopped nine times. It was Mr Radford's evidence that he would have done a couple of checks during the time when the driver of the tow truck had carried out one inspection whilst driving on the Mingenew road. Mr Radford accepted that the only legal requirement to stop the towing was relating to fatigue breaks.
Mr Radford gave evidence that the vehicle inspection he would perform at each stop involved checking to see the tyres of the towed vehicle had not become hot as well as checking the brakes and wheel bearings.
It was Mr Radford's evidence that the route taken in the course of the tow which involved travel on the Mingenew road involved one of the roughest roads in the mid‑west of Western Australia. Mr Salamone did not accept the road was rough. It was Mr Radford's evidence that coaches did not tow well because of their length. It was his evidence that on the Mingenew road he would drive at 70 to 80 km an hour because of the condition of the road.
It was Mr Radford's opinion that with an air system that was causing trouble it was not unusual to cage the brakes. The effect of caging the brakes is that they are unable to be engaged. The caging is achieved by mechanical means. The effect of caging the brakes is to neutralise the spring (park) brake. The service (foot) brake remains operable. It was Mr Radford's evidence that if he was concerned about the air leaks he would have caged the brakes. Mr Radford accepted that it was not standard procedure to always cage the brakes.
It was Mr Radford's evidence that to charge the air system of the coach he would probably have utilised a fitting located at the front of the coach. Mr Radford was cross‑examined at length. It was his evidence that if the air fitting to the front of the coach was missing then air would not escape. The alternative to attaching the airline to the front of the coach was to utilise the attachment to the rear of the coach through the compressor line. This is what had been done in this case. He would have approached the matter on the basis of an airline being attached to the front of the coach because this would be a quicker and easier process than using the rear attachment. This was because he would rather not have hoses running through to the back of the coach. However, it was Mr Radford's evidence that it was an acceptable method to use a line to the compressor. The evidence was demonstrative of a preparedness to make appropriate concessions and the independence of Mr Radford.
Mr Radford accepted that if there had been dragging on the left‑hand tag axle this would have been evident within 3 to 5 km if the brake was in the applied position. Within 10 km if it continued in that applied position there would be sufficient heat to generate a fire. He accepted that generally within 5 to 10 km if the brake was fully applied or nearly fully applied a fire would result. If the brake had been partially applied then that will result in smoke and excessive heat and ultimately fire. Any contact with the brake shoe would ultimately result in fire. The smell would be the first thing which would be observable and thereafter the temperature of the hub.
Mr Radford gave evidence that it was important to check that there were no air leaks and good air pressure was being maintained in the system.
It was Mr Radford's evidence that he would normally have started up the coach to see whether air could be put into the system. It was Mr Radford's evidence that he uses a laser temperature gauge to check the heat in the tyres. It was Mr Radford's evidence that an inspection of the coach during one of the stops probably would have taken a good five minutes.
In re-examination Mr Radford was asked about the braking system of the coach. His evidence was as follows:
You were also asked by my learned friend about if the brakes had been applied could there be enough friction generated to cause a problem within three to five kilometres and you said:
'Yes, if they were fully applied.'
? - Or nearly fully applied, heavily applied, yeah.
Yes? - Yeah.
If they're only partially applied does that mean it might take longer and more of a distance travelled? - It could do, yes. Yes.
So it really depends - and the question as to whether or not the spring brake is fully applied or partially applied is a question as to how much air there is in the system to keep the spring from applying, is that not right? - Yeah. The spring pressure is usually overcome at about 45 psi.
Right? - So yeah, you'd - you - once you - once you get below 60 pound though the spring is starting to extend as a rule, in my experience.
Robert John Waters is a director of the defendant. He has been involved in the vehicle towing industry for approximately 30 years. He was unable to recall the conversation with Mr Thomson concerning the towing of the coach from Mullewa to Perth. He similarly was unable to recall the substance of the conversation he had with Mr Kelly concerning the towing of the coach.
As part of Mr Waters' evidence a written statement dated 13 November 2014 and signed by him was tendered. The statement relevantly reads:
6.I turn now to the statement of Mr Radford's report concerning the airline and air system which the tow truck had supplying the particular bus. Whilst I have no personal knowledge of the type of tow trucks which Mr Radford operates, nevertheless I generally agree with his explanation regarding the operation of the airline and air system. I note, however, that Mr Radford says that the driver of the vehicle would need to be watching the air pressure gauge within the cabin of the towing vehicle to know whether or not air was leaking out of the towed vehicle which would be likely to cause the brakes to come on. In relation to his statement I say that the towing vehicle which was towing the coach in question not only had an air pressure gauge, it also had a visual and audible alarm system which would have operated if there was a substantial drop in air pressure.
7.With reference to the oil in the air system 'wet tank' I say that the recovery vehicle in this instance was fitted with a receiver air dryer which was fully serviceable.
8.As far as Mr Radford's statement to the effect that it is to be 'noted is the fact that tag axle tyres were flat before the bus caught alight (whilst it was still moving)', I do not know the basis of the information upon which Mr Radford relies to express that opinion and I have no reason to believe that the tag axle tyres were flat before the bus caught alight.
9.Regarding Mr Radford's statement that the 'coach obviously gave them a lot of trouble to hookup as they had to get another person to assist with it and it took almost 2.5 hours to complete' I say that taking two and a half hours to organise a tow of this nature is not out of the ordinary.
10.I am advised that when the two operators arrived at the scene they discovered that the gear box cover had been removed and not replaced and the drive shaft had become disconnected. When the coach lost it air overnight it lowered onto the drive shaft bending it severely out of shape. To my knowledge the coach had not been fitted with an 'out of service tag'. The purpose of an 'out of service' tag is to provide information about potential problems with a vehicle which has broken down and requires towing when left unattended so that the tow truck operator is fully informed of what is required to tow the vehicle safely.
11.I have personally experienced occasions where it has taken nearly four hours to properly set up a tow including one instance where I was asked to tow a coach owned by the Plaintiff which had broken down near the Billabong road House in the Midwest.
12.As far as the need for two individuals to attend the scene is concerned I advise that this was done because of the fact that the coach was in a remote location and I deemed it appropriate to have two people for the safety of the operators.
13.Annexed hereto is a copy of the Regulation 13 of Road Traffic (Tow Truck) Regulations 1971. Subsection 4 clearly states that a person shall not alter the setting of the brake (slack) adjustors of a vehicle fitted with maxi-spring emergency/parking brakes for the purpose of towing the vehicle. In my opinion therefore, if, as suggested by Mr Radford, the brakes were 'backed off' then this would be in contravention to the relevant Western Australian Legislation.
14.Whilst there may be an occasion where it is necessary for brakes to be backed off I advise that in the normal course of events, should that be necessary, the operator will firstly 'clear' that action with the police.
15.In terms of the purpose of which tow truck is used I note that whilst it is the case that a tow truck is used to two unroadworthy vehicles, that is not the sole purpose of a tow trucks use. Tow trucks also tow repossessed vehicles, transfer all types of roadworthy vehicles for auction houses and so on and otherwise transport perfectly roadworthy vehicles.
16.The driver of my company's vehicle at the time of the incident occurred, Mr Salamone, had, at the time the incident occurred been working for my company for approximately twelve months. Prior to that he had worked in his own family's transport business and he was experienced in towing heavy vehicles including buses and trucks. As for the second operator, Mr Kelly my understanding is that Mr Kelly has operated Kelly's Truck Towing based out of Geraldton and had been doing so for approximately four years prior to the incident occurring. He had extensive experience towing heavy vehicles including buses and trucks and as far as I am aware had also been a qualified heavy duty mechanic since 1965.
17.Based on all of the information supplied to me as to how the coach was towed, such information coming from both Mr Salamone and Mr Kelly and based on my knowledge and experience and expertise within the towing industry my opinion is that the towing operation in this instance was undertaken in accordance with proper practice and procedure and I have no information indicating to me that the operators in any way failed to ensure that the vehicle was safe to tow.
18.In providing this statement I advise that I have been supplied with a copy of the Code of Conduct – Expert Witness. I have read that code and agree to be bound by it.
19.I have made all enquiries which I believe are desirable and appropriate and no matters of significance which I regard as relevant have, to my knowledge, been withheld from the Court.

There was no detailed oral evidence from Mr Waters concerning the plaintiff's allegations of negligence. The statement adduced contains conclusions without the reasoning being expressed. In the circumstances I attach little weight to the opinion evidence contained within the statement.
Mr Waters accepted that the defendant's affidavit of discovery sworn in the proceedings did not contain either the defendant's job and/or incident report. Each counsel made lengthy submissions as to inferences that should be drawn arising from the non‑compliance by the defendant with its discovery obligation. I am not satisfied that the defendant deliberately concealed documents in the course of giving discovery. I am satisfied that each document should have been discovered. Clearly in the circumstances there was a failure to adequately identify and isolate the relevant documents. As submitted by counsel for the defendant, this is to some limited extent relevant to an assessment generally as to the defendant's systems.
Mr Waters was vague and unconvincing in his evidence. On many occasions he stated he could not recall and did not understand the question. On occasions he queried the content of the question. He had a poor memory of the sequence of events the subject of the action.
Mr Radford is an experienced towing contractor. His evidence was logical, concise and cogent. He made appropriate concessions and was credible. His explanations for towing practice made sense and were understandable. He was independent and I have no hesitation in accepting his evidence. In the result I prefer the evidence of Mr Radford to that of Mr Waters and Mr Salamone as to appropriate towing practice where there is any difference between them. Mr Waters relied upon assumptions made based upon what had been told to him by Mr Kelly and Mr Salamone. Mr Waters was clearly not independent. Mr Salamone did not have the experience or independence of Mr Radford. Mr Radford was independent, qualified, experienced and reliable.

Legal principles

The legal principles relevant to the obligations of a bailee were summarised by Kirby P in Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) A Tort Rep 81-292, 61,553-5. Whilst that case concerned a claim for damages arising out of the theft of bailed goods, the principles outlined by his Honour nevertheless remain applicable in this case. Relevantly, his Honour observed [61,553]:
1.A bailee for reward, such as a bailee for work and labour of the kind performed by the respondent, assumes a duty to take such care of the bailed goods as is reasonable in the circumstances. See Halsbury's Laws of England, 4^th ed ('Bailment') Vol 2 para 1562 at 727. It is essential to bailment that, unless forgiven by the law, the bailee should restore the property bailed to its lawful owner. See GW Paten Bailment in the Common Law cited by Clarke JA in Brambles Securities Services Ltd v Bi-Lo Pty Ltd (1992) Aust Torts Reports 81-161.
2.In the event of loss of goods during the bailment, the onus is upon the bailee to disprove that the loss is the result of any negligence on its part. This exceptional shifting of the onus of proof to the defendant derives from the essential obligation of the bailee to restore the property to the bailor and from the obligation imposed by the reward which the bailor pays to the bailee for the work and labour done and the safekeeping of the goods. See British Road Services Ltd v Arthur V Crutchley & Co Ltd(Factory Guards Ltd, Third Parties) [1968] 1 All ER 811 (CA), 822; John F Goulding Proprietary Limited v The Victorian Railway Commissioners (1932) 48 CLR 157, 166.
3.The duty of the bailee is not that of an insurer. Thus, the bailee is not obliged to take every conceivable or possible precaution to prevent loss of the goods. Its duty is simply to act reasonably. It is to take reasonable care such as a person would take in respect of that person's own goods. The duty is stringent so that the responsibility assumed by the bailee cannot, at least without consent, be delegated to another. See Brook's Wharf & Bull Wharf, Limited v Goodman Brothers [1937] 1 KB 534 (CA), 544; Metaalhandel JA Magnus BV v Ardfields Transport Ltd and Eastfell Ltd (T/A Jones Transport) [1988] 1 Lloyds R 197 (QB), 203.
…
6.It is a common place that wisdom after an event does not prove negligence before. The fact that a bailee, having suffered the loss of goods, as by theft, takes precautions to prevent repetition of such loss from its premises does not necessarily prove that the bailee was negligent in failing to anticipate the loss. Nevertheless, the precautions taken after a loss has occurred are evidence, available to the bailor, that such precautions were reasonably practicable before the event. See Nibali (above), 68,751. Such evidence is also available, if the precautions are simple, inexpensive and easily adopted, as evidence which tends to show that a reasonable person, bearing a duty to provide security, would the more readily have adopted such precautions than, say, those which involve expensive and continuing outlays. In British Road Services (above) at 822, Sachs LJ observed:
'The common law has always been vigilant in the interests of bailors whose goods are not returned to them by the bailee for a number of reasons: in so far as that vigilance relates to the onus of proof, one of the reasons stems from the fact that normally it is only the bailee who knows what care was being taken of the goods, and another from the number of temptations to which a bailee may succumb. Those temptations may vary in each generation according to the nature of the transactions and in these days of rising costs include that of the bailee wishing to pay as little for security as he can 'get away with' and the complacency that can arise from the feeling 'after all, we are insured'.
7.Foreseeability of damage or loss has been described as invoking an 'undemanding test'. See Shirt v Wyong Shire Council & Ors [1978] 1 NSWLR 631 (CA), 641 approved The Council of the Shire of Wyong v Shirt and Ors (1979) 146 CLR 40, 44. Although this description was used in a context of personal injury litigation framed in negligence, it applies equally to the alleged negligence of a bailee. The test is 'undemanding', in the sense that it embraces a duty to take precautions not only for events which are 'likely to happen' or 'not unlikely to happen' but also for events which are 'not unlikely to occur'. Applied to the present case, and testing the bailee's attempt at rebuttal of its suggested negligence, it is appropriate to ask whether theft of the kind which occurred was 'not unlikely to occur'. Of obvious relevance to that question are the valuable and mobile qualities of the goods typically bailed to the bailee, the ready market for their sale and the ease of their removal once the security of the building was breached.
8.If the bailee, bearing the onus of proof, discharges that onus by establishing that the theft of the bailed goods occurred without negligence on its part, and the evidentiary burden is borne by the bailor to establish the precautions which reasonably could and should have been taken by the bailee to prevent the loss of the goods. See Nibali (above), 68,750. It is then for the bailor to adduce evidence of what those further precautions might have been and from which the decision-maker can infer that it was reasonable to expect that they would have been taken having regard to all of the circumstances;
9.In many cases of claims against a bailee defences are raised based upon the terms of the contract pursuant to which the goods were deposited. This is not in issue in the present case. But it is pertinent to note that the common law's ordinary expectation that a bailee should restore property to its lawful owner finds reflection in the cases concerned with purported contractual exceptions. The bailee will remain liable as such unless it 'did what was reasonably sufficient' to give the [bailor] notice of the condition 'excluding liability'. See Liaweena (NSW) Pty Limited v McWilliams Wines Pty Limited (1991) ASC 56-038, 56-616 (NSW CA); Remath Investments No 6 Pty Ltd v Chanel (Australia) Pty Ltd & Anor, Court of Appeal (NSW), unreported, 24 December 1992; [1992] NSWJB 138.

Breach of duty and causation

The Civil Liability Act 2002 (CLA) applies to the determination of the negligence claim. The defendant as bailee for reward owed a duty of care to the plaintiff. The standard of care which it was required to exercise was that of a reasonably competent tow truck operator.
Section 5B of the CLA reads:
5B.General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless –
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) –
(a)the probability that the harm would occur if care was not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
In Kelly v Humanis Group Limited [2014] WADC 43 [246], I identified the following principles from the judgment of Pullin JA in Southern Properties (WA) Pty Ltd v Executive Director of The Department of Conservation and Land Management [2012] WASCA 79:
1.Whilst 'harm' is defined to include damage to property (s 3), 'fault' is not defined. This expression must include a breach of duty of care imposed by law: [233].
2.Section 5B(1)(c) is directed to the conventional inquiry about what a person is required to do once it is established that a duty of care exists. Precautions which must be taken are those which, in the circumstances, a reasonable person in the defendants' position would have taken: [234].
3.Section 5B(2) outlines what must be considered in determining whether a reasonable person in the defendants' position would have taken the precautions under consideration. This is, in effect, a statutory statement of what is sometimes called the 'Shirt calculus' with minor adjustments: see Wyong Shire Council v Shirt, 47 (Mason J); the Ipp Report 7.9; Vairy v Wyong Shire Council [2005] HCA 62; [2005] HCA 422; (2005) 223 CLR 422 [128] (Hayne J): [235]. Section 5B(2) identifies four relevant things (amongst other relevant things) which must be considered in deciding whether a reasonable person would have taken precautions: [235].
4.The considerations in s 5B(2)(a) and s 5B(2)(b) are to be weighed against the considerations referred to in s 5B(2)(c) and s 5B(2)(d). (This construction is confirmed by the Ipp Report 7.9). The higher the probability that harm would occur, and the more serious the harm, the more likely that those factors will outweigh the other factors and the more likely that the determination will be that a reasonable person would have taken precautions. If the factors in s 5B(2)(c) and s 5B(2)(d) exceed the weight given to s 5(2)(a) and s 5B(2)(b), then it is likely that the determination will be to the contrary: [237].
5.Section 5B(1) and s 5B(2) requires an identification of the 'harm' and the 'precautions' which it is alleged the defendants should have taken and then the balancing of the relevant things referred to in s 5B(2): [238].
In Wyong Shire Council v Shirt & Ors (1979) 146 CLR 40, Mason J explained the approach to be adopted at common law in deciding whether a defendant has breached a relevant duty of care as follows:
In deciding whether there has been a breach of the duty of care the Tribunal of Fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the Tribunal of Fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the Tribunal of Fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of risk and its degree of probability remain to be considered with other relevant factors.
Breach must be assessed prospectively and not with the benefit of hindsight. The inquiry regarding breach must be made looking forward, rather than by way of retrospective assessment of what happened to the particular plaintiff: Roads and Traffic Authority of NSW v Dederer [18], [65], [66]; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420 [31].
As Hayne J stated in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [126]:
When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.
When Mr Salamone and Mr Kelly first inspected the coach the suspension airbags were deflated and the coach was, as counsel for the defendant described, 'on its haunches'. When the coach was inspected by Mr Zrinscak on 27 September 2012 no air leaks were identified by him. I accept that it is not unusual for some air to escape from the suspension system of a coach. By the time Mr Salamone and Mr Kelly first inspected the coach it had been in Mullewa for about 24 hours. It is also the case that prior to the commencement of the tow the air pressure was ascertained to be at the appropriate level. However, importantly, before Mr Salamone and Mr Kelly could inflate the suspension system, repairs to air leaks were required and the treadle valve and dump valve required attention.
Even if, as Mr Salamone said, all air leaks were fixed before departure, this did not relieve the defendant of its obligation to exercise reasonable care and to take precautions against a risk of harm.
The coach was of significant weight and 14 m long. I accept Mr Radford's evidence that the road from Mullewa was, for at least one section, rough.
When Mr Jesnoewaki and Mr Gibbs saw the coach 100 km and 140 km respectively from Cataby they had not seen any smoke coming from it. However each gave evidence that the coach was high at the front and low at the back. I accept that that was their observation in each case. The fact the coach was travelling very low at the rear suggests that the suspension was deflating.
Between his second (last) stop and when the fire occurred Mr Salamone drove the tow truck for approximately 230 km. In that period of just over two hours he did not stop at all.
At about 8.48 pm, and when the tow had been proceeding for approximately 225 km (80 km before the fire), Mr Salamone had a conversation with another person by UHF radio who was driving south on the Brand Highway. That person, who was described as a holidaymaker, did not give evidence. In the course of the conversation there was no mention by the other driver as to anything untoward he may have observed in relation to the coach or tow truck. There may well have been an opportunity for the holidaymaker to view the tow truck as it went past. However, as counsel for the plaintiff submitted, there was no evidence as to the nature of the view the holidaymaker may have had. I accept, as submitted by counsel for the plaintiff, that nothing is established by this particular evidence as to what the holidaymaker may or may not have seen. It is not possible to infer that by that stage the unrequested brake application had not commenced.
The defence submission was that there was insufficient evidence 'to be able to say that unrequested brake application occurred five minutes before the truck stopped, 10 minutes before it stopped, an hour before it stopped, two hours before it stopped'. It was further submitted that the appropriate finding was that at the time of the last inspection by Mr Salamone the unrequested brake application did not occur.
Mr Radford's evidence establishes that there were a number of inexpensive and reasonable precautions that the defendant could have adopted when performing the services, to protect the coach from loss or damage. These would not have been in any way a significant burden upon the defendant and would have alleviated the risk of harm. His views are supported by Mr Franzone and generally supported by Mr Tully.
Mr Salamone inspected the coach on only two occasions in a journey of just over 300 km. In the exercise of reasonable care the defendant should have stopped and inspected the coach more regularly. This was a reasonable and inexpensive precaution to take in the circumstances. At times he drove the tow truck in excess of the speed limit of 100 km per hour. The evidence of Mr Radford was that the speeds the tow truck was travelling at were excessive for the tow. Even accepting Mr Salamone's explanation for speeds over the limit being because of the effect of hills, I am satisfied based upon the evidence of Mr Radford that the speeds in the course of the tow were excessive. It would obviously not have been difficult for Mr Salamone to have driven at a reasonable speed.
The defendant's submission is that the fire occurred, notwithstanding that reasonable care had been taken in the performance of the towing duties. Mr Tully's evidence which the defendant sought to rely upon was that the fire would have reasonably been expected to have started 3 to 5 km into the tow, not after 300 km. However, in cross‑examination the evidence was qualified by him. He agreed that the reference to 3 – 5 km was if the brakes were fully applied.
I accept the evidence of Mr Franzone that it was a partial application of the brakes following upon a gradual loss of air from the system which caused the fire. I do not accept Mr Tully's view that the brakes were suddenly applied. His opinion necessarily depended upon a finding that Mr Salamone regularly inspected the coach.
I am satisfied that if Mr Salamone had stopped more regularly and carried out proper and appropriate inspections of the coach he would have noted heat developing in the tyres. Further, I am satisfied the air pressure gauge in the tow truck would have indicated some loss of pressure. In each case increased heat in the tyres and wheels and changes in the air pressure gauge would have alerted a reasonably competent tow truck driver of the existence of a potential problem with the towing of the coach.
The pleaded particulars of negligence are to some extent repetitive. This was readily acknowledged by counsel for the plaintiff. However what emerges from the evidence is that the defendant did not exercise reasonable care in a number of respects.

First, I am satisfied that there was a failure to ensure the requisite amount of air pressure was supplied to the air system during the performance of the services. In other words, because of the gradual leak within the system the air pressure did drop which resulted in the partial engaging of the brake to the coach. This was the evidence of Mr Franzone which, as I have said, I accept.
Secondly, I am satisfied that the defendant failed to adequately monitor the coach, and the condition of the coach, during the performance of the towing services. The inspections about which Mr Salamone gave evidence were inadequate. Towing a coach with only limited stops to inspect was unreasonable. That is particularly the case in circumstances where air leaks had been detected and required attention. As I have said, the evidence of the experienced towing contractor Mr Radford supports the conclusion that the inspections undertaken were inadequate.
Thirdly, by caging the brakes the possibility of any problem arising would have been eliminated. Mr Radford indicated that he did not always adopt the caging procedure. However, in the present circumstances where there had been problems with air leaks, it was unreasonable not to have adopted the very simple precaution.
Fourthly, I am satisfied that Mr Salamone did drive the tow truck at excessive speeds in the course of towing the coach. As Mr Franzone expressed, the effect of excessive speed would have been to increase the friction on the brakes.
Fifthly, I do not accept the evidence of Mr Salamone that he properly monitored and observed the air pressure by checking the pressure gauges in the tow truck. As Mr Franzone and Mr Tully agreed, there would be a movement of the dial even without an audible warning.
In determining whether the defendant breached its duty of care it is necessary to first consider whether the risk of harm from a failure to take reasonable care was foreseeable (that is, was a risk of which the defendant knew or ought to have known): CLA s 5B(1)(a). The harm was foreseeable. A competent tow truck operator ought to have known of the consequences of the failure to properly establish and conduct the tow. The risk of the plaintiff suffering substantial harm as a result of the defendant's breaches was not insignificant: CLA s 5B(1)(b).
The precautions which the plaintiff contends that in the circumstances a reasonable person in the defendant's position would have taken (s 5B(1)(c) of the CLA) are identified by the particulars of negligence.
I turn now to consider each of the particulars of negligence pleaded in par 15 of the amended statement of claim:
15.1.Failed to connect the tow truck airline to the airlines at the front of the coach.
Mr Radford gave evidence that it was reasonable to have attached the airline to the compressor at the rear of the coach rather than attaching the airline to the fitting at the front. No other evidence was adduced and I accept the opinion of Mr Radford. The particular has not been made out.
15.2.The second particular of negligence was very general and counsel properly amended to remove it.
15.3.Failed to perform the services with due care and skill.
This is again an extremely general particular and is taken up by the matters hereafter referred to.
15.4.Failed to ensure that the appropriate equipment was used to perform the services.
There was no evidence to support the particular save for some evidence as to the use of a thermometer. This particular is not established.
Paragraphs 15.5, 15.6, 15.7 and 15.11 may conveniently be dealt with together and read:
15.5.Failed to ensure the requisite amount of air pressure was supplied to the air system during the performance of the service.
15.6.Failed to adequately monitor the coach and the condition of the coach during the performance of the service.
15.7.Failed to adequately monitor the pressure of the air system during the performance of the service.
15.11.Failed to stop the tow truck to inspect the coach at reasonable intervals during the performance of the towing services.
The tow truck pressure gauges would have indicated a loss of air pressure which should have been identified by the driver. In terms of monitoring of the air pressure, I am satisfied that in the exercise of reasonable care the defendant should have observed a decrease in pressure as identified by Mr Tully and Mr Franzone. Heat developed in the tyres and the coach was travelling low to the ground. I am satisfied that heat developed over a period of time as opined by Mr Franzone. I am satisfied that in all the circumstances the coach in the course of the tow was not being properly monitored. I am satisfied based upon the evidence of Mr Radford that in the exercise of reasonable care the defendant should have inspected the coach more regularly than it did during the course of the tow.
There was no stop for approximately 230 km. That type of conduct is, as submitted by counsel for the plaintiff, totally inconsistent with the evidence of Mr Radford about the sorts of inspections and stops and the duty to exercise reasonable care. The particulars are made out.
15.8.Failed to disengage the coach's mechanical brake system before commencing the journey.
The evidence of Mr Radford establishes that this was a simple procedure and one which would have ensured that the brakes did not engage. He would use that process in the event of air leaks in the system and accepted it was not standard procedure to always cage the brakes. Mr Tully and Mr Franzone each gave evidence that it was prudent to adopt the course of caging off.
The defendant's submission based upon Mr Salamone's evidence was that he was not entitled to cage off the brakes, except in circumstances of an emergency is rejected. Mr Waters made reference in his evidence to a prohibition against disengaging brakes contained in reg 13 of the Road Traffic (Tow Truck) Regulations 1975. I do not accept that the regulation has the effect contended by the defendant. The prohibition relates to the adjustment of what are described in the regulations as 'brake (slack) adjustors' and not to the process of caging off as described by Mr Radford.
Mr Franzone, Mr Tully and Mr Radford all agreed that caging the brakes, which was a simple precaution, would have prevented the fire. Given the length of the proposed tow it was a reasonable precaution to adopt in the circumstances. Had the brakes been locked in the unapplied position then the fire and consequent loss of the coach would not have occurred.
As counsel for the plaintiff submitted, caging the brakes was a clear and obvious, cheap, inexpensive and entirely legal operation to take up. Mr Radford gave evidence that it was not unusual to cage the brakes to ensure they would not apply under tow.
Mr Tully when giving evidence concerning air leaks said:
We're not really too concerned about the brakes, because if there was a leak in the braking system we could, as Mr Franzone said, we use a cage bolt and just line them off.
I am satisfied that in the exercise of reasonable care in all the circumstances the brakes should have been disengaged. The particular circumstances were that air leaks had been repaired and the vehicle was low to the ground when first observed by Mr Salamone. Caging of the brakes should have been undertaken in the circumstances and would have prevented the fire. In not doing so the defendant breached its duty of care. The particular is made out.
15.9.Failed to stop the tow truck when the coach's mechanical brakes began to apply following the drop in pressure of the air system.
I have found the evidence of Mr Salamone to be generally unreliable. If he was exercising reasonable care he would have been aware of a drop in air pressure. The particular is made out.
15.10.Failed to stop the tow truck once the fire had developed in one of the tyres on the rear tag axle of the coach.
I accept that Mr Salamone had stopped by the time the fire had developed. After inspecting the coach he applied the fire extinguisher from the driver's side of the coach between the tag axle and the drive axle where he directed the stream from the fire extinguisher onto the red embers that he could see.
Particulars 15.12 and 15.13 may be dealt with together and read:
15.12.Failed to properly inspect the coach prior to performing the service.
15.13.Failed to properly prepare the coach for the safe performance of the service.
The coach was inspected and prepared at the scene by Mr Salamone and Mr Kelly. It is the case that there were no specific checks to turn off the air system, run down the air and build it up again. This was something Mr Radford said that he would do. Beyond that there was very little evidence as to the practice. The matter was not pressed at trial. I am not satisfied the particular is made out.
15.14.Drove the tow truck at an excessive speed.
I accept that the tow truck was driven at an excessive speed in the circumstances. The effect of increased speed was heat developed in the brakes more quickly. The particular is made out.
The risk of harm (namely, damage to the coach) was foreseeable. It was not insignificant. A reasonable person in the defendant's position would have taken the identified precautions as outlined. The probability that the harm would occur if the precautions were not taken was very high. The coach was large and was to be towed over a long distance.
The burden to the defendant of taking the precautions suggested by the plaintiff to avoid the risk of harm was very small. All of the conduct and precautions suggested were inexpensive, simple and easy to undertake. If care was not taken there was a significant risk of damage or destruction of the coach. The likely seriousness of the harm to be suffered was significant. If the coach was not properly towed there was a significant risk of loss or damage. The issue of the social utility of the activity does not arise. In all of the circumstances, I am satisfied that the defendant did breach its duty of care to the plaintiff.
Section 5C of the CLA reads:
(1)A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements –
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) –
(a)whether any why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault –
(a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
Section 5D deals with the onus of proof and reads:
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
I am satisfied that it is more probable than not, that the brakes would not have applied and the fire developed, but for the defendant's negligence. The plaintiff would not have suffered the harm but for the failure of the defendant to take the precautions. I am satisfied that the identified breaches were necessary conditions of the harm suffered by the plaintiff. There is no issue that it is appropriate that the scope of the defendant's liability extend to the harm caused being in the nature of damage to the plaintiff's property and caused by the defendant's negligence.

Bailment, contract and misleading or deceptive conduct claims

It follows from the findings which I have made in the negligence action that the claims for damages for breach of bailment and contract would similarly succeed. The defendant breached its duty of care to the plaintiff the consequence of which was the coach was destroyed by fire. The finding as to the cause of the fire and responsibility for it means it is unnecessary to consider the claim based upon res ipsa loquitur.
The misleading or deceptive conduct claim was only faintly argued by the plaintiff. There was no specific evidence from Mr Thomson as to express representations made to him by the defendant. The claim also relied upon implied representations, however in the circumstances it is unnecessary to further consider the matter.

Damages

The plaintiff's claim for damages in the sum of $222,965.14 is particularised as follows:
1.Property damage (net of estimated salvage recovery): $159,500.00
2.Vehicle recovery costs        $11,900.39
3.Main Roads WA costs          $9,599.40
4.Business interruption costs       $39,545.45
5.Claims management fees           $2,419.90
By the conclusion of the trial the quantum of each component of the claim was agreed save for the business interruption costs.
The plaintiff's claim was put on the basis that $39,545.45 represented the reasonable cost of hiring a replacement coach to enable it to comply with its contractual obligations.
Mr Thomson gave evidence that at the date of the fire the plaintiff had in place a contract which required the use of the coach. The contract was for the supply of coaches on a monthly basis at a mine site from May 2012 through to May 2013. Because of the contractual obligations it was necessary for the plaintiff to hire an alternate coach.
It was Mr Thomson's evidence that the going rate for a coach was around $1,000 to $1,100 per day. It was Mr Thomson's evidence that on 27 September 2012 the plaintiff had hired a replacement coach from MN and SG Thomson Pty Ltd in order to meet its contractual obligations. A total of $37,354.40 was paid to that company for rental of a replacement.
Michael Thomson is Neville Thomson's son and employed by the plaintiff as a maintenance manager. He is a director of MN & SG Thomson Pty Ltd. It was his evidence that between 1 November 2012 and 16 December 2012 MN & SG Thomson Pty Ltd hired to the plaintiff a coach at the rate of $500 per day. The rate charged of $500 per day was the 'usual standard rate' and his company had been paid for the hire.
The claim for business interruption was made to 16 December 2012 which was the date when the party to whom the plaintiff owed its contractual obligation terminated its contract.
I accept the evidence of Mr Thomson that within the plaintiff's fleet there was no other suitable replacement vehicle that could be used to meet its contractual obligations.
Subsequent to the destruction of the coach the plaintiff had acquired other vehicles. Whilst there is no plea of a failure to mitigate, ultimately that was the plaintiff's submission. It was the evidence of Mr Thomson, which I accept, that the vehicles in question were acquired to meet different contractual obligations.
The plaintiff's conduct in hiring a replacement coach was entirely reasonable in all the circumstances. It was a decision Mr Thomson needed to make quickly particularly in view of the plaintiff's extant contractual obligations.
The sum claimed of $39,545.45 was a direct and foreseeable loss caused by the identified breaches of duty. The damage was in all the circumstances not too remote. The defendant knew of the nature of the plaintiff's business and that the coach was a source of income for it. Because of the defendant's breaches the plaintiff was unable to earn income from the coach.
I am satisfied that the sum of $39,545.45 represents a proper estimate in the circumstances of the damage the plaintiff suffered as a result of not being able to perform its contractual obligations. The inability to perform was because of the defendant's breach of duty. The sum claimed is conservative and reasonable.

Counterclaim

The defendant's counterclaim was for $1,953.50 in respect of towing services provided pursuant to the contract. In view of the findings as to performance the counterclaim must be dismissed.

Conclusion

There should be judgment for the plaintiff on its claim. The defendant's counterclaim should be dismissed.

Annexure

Operation of spring brake assemblies

Spring brake assemblies contain two actuators which use air pressure in opposite ways. The service brake actuator requires air pressure to apply the brakes, while the park brake actuator uses air pressure to release the brakes. Spring brake assemblies consist of two separate brake chambers assembled in line to each other. A brake chamber is a cylindrical container divided in the middle by a flexible diaphragm (often referred to as the piston). One chamber is used to operate the service brake and the other is used to operate the parking brake. The service brake chamber is used to retard the vehicle during normal driving operations and the park brake chamber (often referred to as the spring brake) is utilised to prevent the vehicle from moving whilst parked without the need of the driver to apply the service brake.

Service brake

A pushrod is attached to one side of the diaphragm within the service brake chamber. When the driver applies pressure to the brake pedal to retard truck motion, pressurised air is allowed to flow into the service brake chamber and apply pressure to the side of the diaphragm opposite to the side that the pushrod is attached to (rear of diaphragm). Air pressure acting on the diaphragm forces the diaphragm (and hence the pushrod) to move away from the applied pressure. Movement of the pushrod in response to applied air pressure is used to apply the service brake and retard the vehicle. The force exerted by the pushrod is dependent on air pressure and diaphragm size.

Park brake

The park brake chamber is attached to the rear of the service brake chamber. The park brake diaphragm also has a pushrod attached to it. When the park brake is in the apply position, a powerful mechanical spring acts on the side of the diaphragm opposite to the side that the pushrod is attached to (rear of diaphragm). Movement of the park brake diaphragm in response to the spring pressure causes the park brake pushrod to contact the rear of the service brake diaphragm and forces the service brake diaphragm to move and apply the service brake. The force exerted by the pushrod is determined by the strength of the mechanical spring. When the driver wishes to release the park brake he directs air, via a control valve within the cabin, to the park brake chamber. Air pressure is applied to the side of park brake diaphragm to which the pushrod is attached (front of diaphragm). Air pressure overcomes the mechanical spring pressure and moves the park brake diaphragm against the spring and away from the service brake diaphragm allowing the service brake to release.