Shipp v Dawson Motorcycles Pty Ltd - [2004] WADC 212

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SHIPP -v- DAWSON MOTORCYCLES PTY LTD [2004] WADC 212

CORAM: MACKNAY DCJ

HEARD: 18 OCTOBER 2004

DELIVERED : 4 NOVEMBER 2004

FILE NO/S: CIV 1695 of 2001

BETWEEN: PAUL RAYMOND SHIPP
Plaintiff
AND
DAWSON MOTORCYCLES PTY LTD
Defendant

Catchwords:

Contracts - General contractual principles - Breach of implied term to do mechanical repair work in proper and workmanlike manner - Turns on own facts

Torts - Negligence - Whether breach of duty of care - Turns on own facts

Legislation:

Nil

Result:

Defendant liable in contract and in negligence

Representation:

Counsel:

Plaintiff: Mr P J Patterson
Defendant: Mr S F Popperwell

Solicitors:

Plaintiff: Taylor Smart
Defendant: Pynt & Partners

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

Nil

Case(s) also cited:

Nil

MACKNAY DCJ: This was a trial of the issues of breach of contract and/or negligence, the parties having agreed, I was informed, the quantum of the plaintiff's damage, and the defendant not apparently pursuing an allegation of contributory negligence made in the defence.
The plaintiff is, and was at all material times, the owner of a 1981 Yamaha 750cc motorcycle, which he said he purchased in 1996 for $1,800.
It is common ground that on 4 December 1996 the defendant carried out a service and repairs to the motorcycle, with work on the fuel system that included flushing the fuel tank and cleaning the carburettor, all for a cost of $496.
The defendant's invoice or worksheet noted that it "fitted inline fuel filters", those being identified in the section for "parts supplied" as two in number.
The motorcycle did not have an inline fuel filter fitted on the line itself as standard, and the defendant either replaced an existing filter in the line between the tank and the carburettor, or added one, presumably to impede the introduction of any rust from the fuel tank into the carburettor.
Filters of the kind fitted have an overhanging rim or flange, the filter being fitted with that at the lower end.
The fuel line on the motorcycle is adjacent to the throttle mechanism, that having a cover over it, and comprising a cable from the hand throttle to an activating lever which controls a butterfly valve in the carburettor, the lever being pivoted on the righthand end, so that the lefthand end describes an arc upwards when the throttle is opened.
Between the date of the service and 22 December 1997, a period of approximately 12 months, the motorcycle travelled about 1,380 km.
The plaintiff says that on the latter date, and whilst riding the motorcycle in Second Avenue, Bassendean, he had an accident on it as a result of the throttle jamming open, and suffered injury.
The motorcycle was subsequently examined by an engineer, Mr Martin Simms, who reported that when the throttle was sufficiently opened the lefthand end of the lever caught behind the rim of the inline filter and was held there, the throttle thus remaining jammed open in that position.
The plaintiff blames the defendant for that state of affairs, that being denied by the defendant, which alleges in the defence, inter alia, that the work was done properly, the motorcycle was road tested without evidence of throttle malfunction, and in the absence of some subsequent work on the motorcycle the filter could not have caused the throttle to jam.
Alternatively the defendant pleads that if it had left the motorcycle in a condition in which the throttle could jam the plaintiff could not have used it as he in fact did without that occurring or there being evidence of it, or that any accident occurred because the plaintiff failed to properly maintain the motorcycle and to keep it in conditions where it was not exposed to deterioration, it being further alleged that the fuel line on the motorcycle had hardened.
The plaintiff is a truck driver aged 42 years and says that he used the motorcycle for nine months of the period on an occasional basis, taking a daughter for a ride through John Forrest National Park from his house in neighbouring Swan View, or going to a local shop.
A car he also owned was used for commuting to work as he carried tools needed for trucks he drove, the plaintiff said.
For almost the last three months of the period the motorcycle had not been used as he was serving a car related points accrual suspension, the plaintiff said, but the motorcycle engine was regularly turned over.
The plaintiff said that he was conversant with motorcycles, having been a motocross rider in his youth, but would and did not carry out any maintenance work on "road bikes", and did not have anyone other than the defendant work on this one, there being no work done on it after the defendant's service.
In that regard the plaintiff said the motorcycle had been taken to the defendant's workshop after purchase as it had been previously maintained by the defendant, and pursuant to his policy.
On the day of the accident the plaintiff said he rode the motorcycle over to the premises of his employer to advise that his motor driver's licence had been returned so that he was able to resume work, and then went to visit a friend, Richard McFeggan, in Second Avenue, Bassendean.
After arriving in that street the plaintiff said he missed the house, which he had not been to before, and went to turn the motorcycle around so as to return to it when the throttle jammed open and the motorcycle stood on its rear wheel, throwing him to the ground.
As a result he was injured, and Mr McFeggan took him to Swan Districts Hospital, from whence he was transferred to Royal Perth Hospital, being discharged the following day, the plaintiff said.
On checking the motorcycle with Mr McFeggan after Christmas the throttle was still jammed open, the plaintiff said, and that fact was confirmed when the cover was removed and the throttle mechanism examined.
The motorcycle was then taken to the engineer, Mr Martin Simms, for inspection, the plaintiff said.
Mr Simms, who was formerly the engineer in charge of the state government vehicle licensing service, reported that he inspected the motorcycle on 14 January 1998, and:
"Inspection of the fuel line and carburettor linkage of the vehicle (refer to attached photographs) has confirmed that when the throttle is fully opened it catches behind the in‑line fuel filter (refer photograph 4) and is held in this position until the fuel line is moved sideways to release it.
There is no doubt in my opinion that this was the reason for the throttle jamming in the fully open position prior to your accident.
It is my understanding that the fuel filter was fitted by a motorcycle repair shop on or around 4^th December 1996. If this is the case, it is my opinion that the mechanic who installed the filter should have actuated the throttle to ensure that the filter did not interfere with it. Photograph 3 and 4 clearly show the potential for the filter to interfere with the linkage.
When inspected by me the throttle linkage consistently jammed behind the fuel filter and significant sideways pressure was required on the fuel line (away from the engine) to release the linkage. For this reason I do not consider that the linkage would have worked correctly after installation of the in‑line fuel filter or would only have jammed at a later date."
However, in evidence Mr Simms said that the throttle would have to open to two‑thirds or three‑quarters of its capacity before it caught above the filter and "its quite likely that under normal street riding you wouldn't use that much throttle".
In cross‑examination Mr Simms was asked:
"… you would have expected this to manifest itself rather soon after the service has been performed?---No. I certainly wouldn't want to put a time on when it happened. What I meant by that was that if you were to operate the throttle over all of the ranges that the throttle is designed to operate over it would consistently jam, so full throttle will consistently jam.
So accelerating up a hill, for example, in Greenmount Hill, for example, or through the John Forrest National Park, would you be surprised if you didn't accelerate beyond that point where that catching occurred?---It wouldn't surprise me one way or the other simply because it's one of those things that depending on how the rider chooses to drive the bike at that time, if he chooses not to go to that level of throttle then it won't happen and if he goes beyond it then it will."
Resolution of the problem would require movement of the filter along the fuel line to a point further away from the throttle lever, if that was possible, or if not the removal or non‑fitting of the filter, he said.
As to the absence of any zip tie or clamp on the section of the fuel line which housed the filter, Mr Simms said he would not expect to find one there as it was not needed, the pressure in the line being extremely low.
Mr John Prince has been the state service technician for Yamaha Motors Australia for about six years, and said that no in‑line fuel filter was fitted to the motorcycle by the manufacturer, nor would the fitting of one be recommended, and warnings were given during training courses about such.
Mr McFeggan said that on the day of the accident, and prior to it, he had waited out the front of his house for the plaintiff, had seen him go past, turn at the end of the street and begin to come back, and there was then "confusion", the motorcycle engine revving right up and it appearing at one point that the plaintiff was going to turn into his driveway at 60 k/ph, before the front wheel came out and the motorcycle went over.
When the plaintiff eventually came to the house to collect the motorcycle and it was restarted the engine had continued to race, Mr McFeggan confirmed, although he said that when the cover was being removed there was a "click" and the throttle was found to have closed.
Further operation of the engine and throttle resulted in the throttle lever again jamming above the filter, Mr McFeggan said.
The defendant called as its only witness a former employee, Mr Alan Cameron, who identified the handwriting on the job card as his own, and said he would have done the work.
Mr Cameron said he had fitted an in‑line fuel filter to the plaintiff's motorcycle, but was unable to recall whether there was already a filter of that kind on it, whilst he had noted the motorcycle was test ridden and was "okay".
In‑line fuel filters had been fitted by him to many other motorcycles, including those made by Yamaha, Mr Cameron said.
Fitting of an in‑line filter would involve cutting the fuel line in half, shortening it, and then fitting the filter zip ties and a clip, at the fuel tap end, he said.
On the road test he would go to full throttle in first and second gear, Mr Cameron said, if traffic conditions permitted that.
Mr Cameron said that he further examined the motorcycle in February 1998, when the zip ties were missing, without evidence that such had ever been there.
Although he did not know whether the filter was in the same place on the line he said it could not have been there as the throttle would not open beyond one‑quarter without hitting the filter, and a "binding effect" would have been noticeable at that point so that he would have seen and corrected the problem.
He had been aware at the time of the possibility that the throttle might jam on the filter if that was incorrectly sited, Mr Cameron later said.
The fitting of zip ties had never been overlooked by him, Mr Cameron said, and the work was unsatisfactory and not his own.
Further, the filter did not have the appearance of one that had been used over the requisite period, Mr Cameron said although he was unable to say whether it was a different filter.

Findings

Competing possibilities here include one that no further work was done on the motorcycle, and the plaintiff simply rode it in a way which did not result in the throttle jamming open until the morning of the accident, and another that some further interference to the machine occurred, as a result of which at that point it was put into a condition in which jamming of the throttle could occur.
The absence of any zip tie, the documentary evidence supporting the carrying out of a satisfactory road test on the day of the work, the location of the filter on the line, the nature of the problem and the period that had elapsed and distance covered by the motorcycle are all matters to be considered in relation to the latter, together with the evidence of Mr Cameron, as well as the other evidence.
The plaintiff of course denies any further work was done, and says he rode the motorcycle in a moderate manner at all times.
The overall onus of proof rests on the plaintiff.
And plainly, in the circumstances, it is necessary to look at his evidence in a manner that is not uncritical.
It is the case that the evidence of Mr Simms provides support for the evidence of the plaintiff in some significant areas.
There is, however, conflict between the evidence of Mr Simms and that of Mr Cameron.
In that regard I would generally prefer the evidence of Mr Simms, an experienced engineer, more independent in the matter, and having heard the evidence of each.
As stated, Mr Simms considered that the throttle would have to be opened to two‑thirds to three‑quarters of its capacity to jam, and hence it was quite likely that under normal riding the throttle would not be opened to a point where it would jam. Further, he was unwilling to put a time on the period that would be likely to elapse before that occurred, and did not consider a zip tie would be required or would be likely to be present.
Nothing was put to the plaintiff or revealed about him which would affect any view otherwise formed of his character and credibility.
The plaintiff himself revealed that he had served a fine suspension of his motor driver's licence during the relevant period, but his statement that such related solely to the driving of a car was not challenged and that in itself is not something which would cause me to regard him as unreliable or his version as implausible.
The plaintiff appears to have behaved after the accident in a manner consistent with a belief that the defendant's work was the cause of the problem.
After due consideration I accept the evidence of the plaintiff, as well as that of Mr McFeggan and Mr Prince, and find that the plaintiff did not interfere in the mechanism of the motorcycle after obtaining it from the defendant or cause that to occur, but rather rode the motorcycle to the limited extent and in the manner described by him, and in those circumstances did not prior to the day of the accident cause the throttle to open to a point where he noticed any problem or caused it to jam.
The absence of zip ties is explicable in a number of ways, including the possibility that none was fitted.
Mr Cameron's views as to the appearance of the fuel filter and its likely degree of use I similarly find unpersuasive, given in particular the evidence of the plaintiff as to mode of operation, and that of Mr Simms on this subject.
It follows that I find the plaintiff has established on the balance of probabilities that the work carried out by the defendant was done in a manner which caused the throttle to jam, and the accident to occur.
There is no reason why the usual term that the work would be done in a proper and workmanlike manner ought not be implied into the contract between the parties, and the defendant was clearly in breach of that.
The defendant is similarly in breach of the concurrent duty of care that existed.

The plaintiff is therefore entitled to recover in both contract and negligence any damage suffered as a result of the defendant's breach in each case.