Sheather v Icar Service - [2015] QCAT 379

CITATION:

Sheather v ICAR Service [2015] QCAT 379

PARTIES:	Toyah Sheather (Applicant)
v
ICAR Service (Respondent)

APPLICATION NUMBER:

MCDO65-15

MATTER TYPE:	Other minor civil dispute matters
HEARING DATE:	4 September 2015

HEARD AT:

Pine Rivers

DECISION OF:

Member Favell

DELIVERED ON:

11 September 2015

DELIVERED AT:

Pine Rivers

ORDERS MADE:	The application is dismissed.
CATCHWORDS:	Car repair – Costs of engine repair – Whether need for repair caused by respondent.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Toyah Sheather

RESPONDENT:

Mike Ryan

REASONS FOR DECISION

Toyah Sheather owns a Holden Captiva. On the 7 January 2015 she observed that her vehicle was slow accelerating and seemed significantly down on power. The next day she took the vehicle to Roadside Auto-care Pine Rivers Pty Ltd, trading as ICAR Service Pine Rivers.
She explained the problem to ICAR the Respondent checked the on-board vehicle computer and discovered that the diesel particulate filter was blocked. The Respondent completed a clean of the diesel particulate filter twice. When the Applicant collected the vehicle on 9 January 2015, she was told that the vehicle still needed to be serviced. She told the Respondent that she could no longer afford the service at that time, because of the money she had just outlaid for the filter clean.
The next day the Applicant was driving the vehicle when the engine began to make strange noises. The engine was switched off and RACQ was called.
On the 10 July 2015, Tyson Stuart the owner of OPT Off Road inspected the engine and provided a report. He found there to be 11.2 litres of oil which he drained from the sump with approximately an additional 300ml still remaining in the sump.
It is common ground that the engine has an oil sump capacity of 6.2 litres.
Mr Stuart removed the Sump and inspected the engine for damage. He found two connecting rods on cylinders 2 and 3 were bent. Upon removing the tappet cover and associated components he found the rocker on number 3 cylinder broken. He also found a broken lifter.
It was his opinion that “the excessive oil level has caused oil to by-pass into the cylinders and in turn caused the engine to hydro-lock and bend the conrods.” He could not confirm the rocker damage to be caused by the excess oil because the particular engine was known to have weak rockers.
The respondent does not dispute that account.
The Applicant claims the sum of $18,443.08 being the cost to remove and replace the engine and the filter.
The Applicant contends that the Respondent is responsible for the damage done to the engine because it over filled the engine with oil and used the wrong grade of oil.
She contends the oil used in her car by ICAR Service was Castrol Magnatec 5w-30 when it should have been Castrol Magnatec Diesel Dx 5w-40.
The assertions made by the Applicant are drawn from her examination of three invoices provided by the Respondent. Invoice no. 119391 dated 8 October 2013 has on it a statement that 7.5L of Castrol Magnatec 5w-30 was used in the service. Invoice no. 120746 dated 25 June 2014 shows that 6L of Castrol Magnatec 5w-30 was used in that service.
Mr Ryan on behalf of the Respondent told the Tribunal that the description of the oil as Castrol Magnatec 5w-30 was incorrect and in fact that description was a generic descriptive on his software system for the oil used. He told the Tribunal that the oil used had the product code 19104985 which was the product code for ACDelco Dexos 2 engine oil. Mr Ryan produced the invoices showing the purchase of the Dexos oil and showing the product code which appears both on the invoices and the stock inquiry report.
He produced statement from Kevin Stuargiss the Managing Director of AM-WIN Software Pty Ltd who supplied the Respondent with the software product used for invoicing the Respondent. He confirmed that the AM-WIN software does not provide the software user with the ability to change a tax invoice once the invoice number has been generated and the sale finalised. He said the software is designed in such a way that once an invoice is produced, the underlying data such as part number, description, quantity and price cannot be changed. Additionally text lines or notes cannot be added to the invoice after the invoice is produced.
Mr Ryan told the Tribunal that every time a service is carried out the oil in the engine is drained and the new oil put in reflects the volume required to make the dipstick show full. He said that each individual engine varies in capacity.
He accepts however that if there was 11.5L of oil in the engine that would be extreme and result in very quick engine failure. He accepts that engine failure generally would be within a few hundred kilometres of the excess oil being added.
He gave evidence that when the car was examined on 9 January 2015 the bonnet of the car was not opened and there was no oil added by ICAR. The last time oil was added by ICAR was on 25 June 2014. He said that after the car was diagnosed on 9 January 2015 he found a blocked diesel particulate filter which required cleaning and then when the vehicle was returned the vehicle engine was not smoking and was running fine.
Mr Ryan denies that the Respondent was the cause of any engine failure. He says that with the particular engine in the vehicle, broken rockers are a common cause of engine failure and when a rocker assembly fails it creates excessive noise and poor running which could explain the noises observed by the Applicant prior to the engine failure.
Mr Ryan accepts that hydraulic lock and bending of the two connecting rods could occur had excess volumes of oil to the magnitude of 11L being present in the engine. He says that he did not cause 11L to be in the engine.
So far as the allegation of the wrong oil being used, he contends that the oil which in fact was used was superior to the oil known as Castrol Magnetic Diesel Dx 5w-40.
To make out her claim, the Applicant needs to show that there has been some negligence or direct act which caused the engine to fail as it did. On the evidence provided by Mr Ryan, I cannot be satisfied that there has been any negligence or wrongdoing by the Respondent which caused the engine to fail.
In my view it has not been shown that the incorrect oil was used by the Respondent or that excess oil was put into the engine by the Respondent. I accept that if excess oil was put in by the Respondent it would likely have caused hydraulic lock and the bent connecting rods.
In my view however it has not been shown that the excess oil caused the failure of the rockers found to be broken. Further it has not been shown that it is necessary to replace the engine rather than carrying out repairs to it at a much less cost.
I accept the evidence provided by the Respondent and I find that the Respondent did not over fill the engine or use incorrect oil. That being so it follows that the Respondent is not liable for the engine failure.
The application is dismissed.