Slamar v Gerrard - [2002] WADC 145

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SLAMAR -v- GERRARD & ANOR [2002] WADC 145

CORAM: HH JACKSON DCJ

HEARD: 12-14 MARCH 2002

DELIVERED : 18 JULY 2002

FILE NO/S: CIV 1709 of 1995

BETWEEN: TROY RUDOLPH HERBERT SLAMAR
Plaintiff
AND
JOHN WILLIAM GERRARD
LINDA ROSE GERRARD
Defendants

Catchwords:

Bailment for reward - Motor vehicle for repairs - Claim for breach of bailee's duty of care for vehicle - Counterclaim for work done

Legislation:

Nil

Result:

Claim succeeds - Damages assessed in the sum of $29,000 - Counterclaim dismissed

Representation:

Counsel:

Plaintiff: Mr J C Curthoys
Defendants: Mr M T S Rennie

Solicitors:

Plaintiff: Stables Scott
Defendants: Michael Rennie

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

Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) A Tort Rep 81‑292

Case(s) also cited:

Crouch v Jeeves (1938) Pty Ltd (1946) 46 SR (NSW) 242

HH JACKSON DCJ:

Background

The plaintiff is a truck driver who, during 1994, owned a 1981 Ford LNT 9000 prime mover registered 7IP 647, a vehicle known as a Louisville. His particular work using the truck at the time was in transporting concrete houses from Perth to various country locations, often remote mining sites. As each house was made to be transported in two halves, the plaintiff also had another vehicle, a 1984 S12 Volvo. Each prime mover pulled a large low loader trailer supplied by the builder of the house onto which one‑half of the house was lifted. The two vehicles travelled together, the plaintiff driving one, a sub‑contractor driving the other. The vehicles were of such weight and size as to be limited to certain prescribed routes and times and with an escort vehicle. The standard method by which the plaintiff was paid was that he calculated for each vehicle a sum equal to the number of kilometres between Perth and the destination one way, multiplied by a rate of $2.20 per kilometre plus an escort fee and additional fees for extra duties such as supervision on site.
From such sum, the plaintiff met fuel costs, sub‑contract driver's charges of $100 per day plus overnight allowances, and met his own vehicle overheads, service and repairs.
In addition to transporting the houses, the two drivers were responsible to load and unload them, including setting up the house in position at the site on delivery.
The plaintiff also, from time to time, owned other smaller vehicles, which were used to carry other lighter loads, both within and outside the metropolitan area, usually or often with a sub‑contract driver.
The plaintiff acquired the Louisville prime mover in 1993 as a secondhand vehicle. He encountered a number of mechanical problems. The prime mover was fitted with a reconditioned Cummins VT903 engine and power steering.
His evidence is that in June 1994, the vehicle again had engine problems which led to it being transported back to Perth. It was, he said, delivered to BP Kewdale, then towed to Tassone Contracting, apparently misspelt throughout the pleadings and transcript of evidence as "Torcini", earthmoving contractors, who employed their own mechanic named Bill.
In essence, his evidence is that he discussed the matter with the mechanic and it was suggested that he contact the defendants for engine parts.
The defendants traded, then as now, as Diesel Repair Repower WA. They did not have an engine block or crank. Eventually, the plaintiff says, he purchased an engine from a source interstate. At some point, the first defendant suggested that the plaintiff bring his truck to the defendants to have the necessary work done to install the engine:
"... and I went, 'Someone else is doing it,' I said, 'I felt guilty taking it out of there, you know,' and he said, 'Well, just tell them that you're going to wreck the truck,' so I said to Bill - well, I didn't say it to Bill, I have gone back and said just, 'Don't worry about fixing the truck I'll just leave it,' Then I had a tow truck pick the truck up, deliver it to Gerrardys. Before it was delivered I gave Gerrard - he gave me a quote, $2600 to assemble the motor, not to install it or anything, just to assemble it, plus costs. We agreed to that, then I had the truck towed to Gerrardys. I then paid the tow truck driver his fee, $100. I said to Gerrard, 'I will be back with the parts.' I have gone and got my trailer, I have picked up all the parts that were there in the shed which was the motor, the heads and I think there was a bonnet and stuff like that. I have then taken it to Gerrardy's and he said, 'No worries. 2 and a half weeks.' I asked him on a couple of occasions, 'Are you sure it will be ready,' you know, he said, 'Yes, guaranteed no longer than 2 and a half weeks.' From there, I have left, gone to Cummins, picked up the engine that I had delivered and delivered it to Gerrardy. I said, 'What parts you don't use, you can have because there is two of everything.
When you say 'two of everything', two of - - -?---Long motors minus turbo's. Like mine had a turbo, the other one just the heads, manifold blocks, a complete inside motor. This wasn't a second‑hand one.
Delivered to Gerrard - first of all, there was a prime mover that went to Gerrard?---Yes, the prime mover was towed there.
Did you do the towing or prepare it for towing?---No. I got Kewdale Heavy Recovery to tow it to Gerrard's property, which is from Hazelmere to Bullsbrook. From there, I went back and got the parts with the trailer I had just picked up and I followed the tow truck in case he dropped anything because everything was connected bar the bonnet and motor - was in the motor.
So the motor was - - -?---That wasn't in there. There was no motor or bonnet on the truck."
The defendants' account of these preliminary discussions and events is quite different from that of the plaintiff.
It is common ground, however, that the Louisville prime mover was delivered to the defendants for repairs on or about 2 July 1994 and involved in an accident whilst still in their care on or about 8 September 1994 and that it was towed to the defendants after the engine had been removed from it, and that the plaintiff delivered to the defendants an engine and various other parts for the purpose of repairing and installing the engine. The plaintiff says that he learned of the accident, and thereby the loss of his prime mover, when he checked up on the progress of work on or about 20 September. The wrecked prime mover was sold at the end of September. He acquired a replacement on 8 December in Queensland. There is no evidence explaining the delay, other than that such vehicles were difficult to obtain at that time because of the demand for them. The plaintiff says, and again without dispute, that he was under constant pressure to take on work at that time but had no available vehicle to accompany his Volvo prime mover which ordinarily would have been driven by the sub‑contract driver.

Pleadings as to liability

The agreement between them is pleaded in the Statement of Claim, thus:
"3.Pursuant to the terms of an oral agreement made between the Plaintiff and the firstnamed Defendant on behalf of the Defendants between 30 June 1994 and 3 July 1994 (the 'Agreement') the Defendants in consideration of the Plaintiff agreeing to pay to them the sum of $2,600 undertook to carry out the following works to the vehicle:
Particulars of Works
(i)Completely overhaul and rebuild the engine; and
(ii)Replace and fit a tachometer and a speedometer to the vehicle;
(the 'works').
4.The Agreement provided inter alia that:
(a)The works would be completed in no more than 2½ weeks; and
(b)After the works the vehicle would be in top working condition.
5.Further or alternatively the matters pleaded in paragraph 4 hereof constituted warranties in the Agreement on the part of the Defendants (the 'warranty').
6.It was an express or alternatively, an implied term of the Agreement and the warranty that the Defendants would carry out the works in a proper and workmanlike manner.
7.Further and in the alternative the Defendants owed to the Plaintiff a duty of care to ensure that the works were carried out in a proper and workmanlike manner.
Particulars
(a)The Defendants took delivery of the vehicle for the purpose of carrying out the works for the Plaintiff;
(b)The Defendants knew or ought to have known that the Plaintiff relied upon them to undertake the works in a proper and workmanlike manner.
8.Further or alternatively the Defendants were at all material times whilst the vehicle was in their possession bailees for reward of the vehicle."
The plaintiff then pleads that:
"9.Pursuant to the terms of the Agreement the Plaintiff on 3 July 1994 delivered up to the Defendant the vehicle and various engine parts of the vehicle.
10.The Defendants completed or purported to complete the works on or about 8 September 1994.
11.In breach of the said terms of the Agreement further or alternatively the warranty, the Defendants failed to carry out the works:
(a)within 2½ weeks;
(b)such that the vehicle was in top working condition upon completion of the works;
(c)in a proper and workmanlike manner.
Particulars of sub‑paragraphs (b) and (c) hereof
The Defendants failed to:
(i)Reconnect the steering drive shaft at its upper end to the steering wheel assembly;
(ii)Reconnect the steering drive shaft at its lower end to the steering gear box with the appropriate sized bolt in both length and diameter; and
(iii)Re‑install the cab mounting bolts.
12.In breach of the said duty of care the Defendants failed to carry out the works in a proper and workmanlike manner.
Particulars
The Plaintiff repeats the particulars pleaded in paragraph 11 hereof.
13.On or about 8 September 1994 whilst the vehicle was in the possession of the Defendants and whilst the firstnamed Defendant was driving the same the vehicle suffered damage.
Particulars
The vehicle drifted off the left hand side of the road and into a culvert, and tumbled end to end (the 'incident').
14.The damage to the vehicle was caused by:
(a)a breach by the Defendants of the terms of the Agreement in the manner particularised in paragraph 11(i) ‑ (iii) hereof, further or alternatively
(b)a breach by the Defendants of the warranty in the manner particularised in paragraph 11(i) ‑ (iii) hereof,
Particulars of the allegation in paragraph 12(a) and (b)
The steering shaft came loose thereby causing the steering of the vehicle to fail. The failure on the part of the Defendant to properly re‑install the cab mounting bolts would have resulted in an exaggerated vertical movement of the cab which caused or contributed to the steering drive shaft being pulled away from the steering wheel shaft."
An allegation that, alternatively, the damage to the vehicle was caused by the negligence of the firstnamed defendant in driving the vehicle was abandoned at the commencement of trial.
By way of defence, the defendants:
"3.As to paragraph 3 ...
(a)say that:
(i)it was a term of the contract that the defendants would overhaul and rebuild the engine for the prime mover, and install the engine in the prime mover ('the contract works');
(ii)it was a term of the contract that the plaintiff would pay a deposit of $2,600 for the contract works; and
(b)otherwise deny each and every allegation contained therein.
4.... deny each and every allegation contained in paragraph 4 ...
5.... deny each and every allegation contained in paragraph 5 ...
6.As to paragraph 6 ...
(a)say that it was an implied term of the contract that the defendants would carry out the contract works in a proper and workmanlike manner; and
(b)otherwise deny each and every allegation contained therein.
7.... admit the allegations contained in paragraph 7 ...
8.... do not admit the allegations contained in paragraph 8 ...
9.As to paragraph 9 ...
(a)say that, pursuant to the contract, on or about 2 July 1994 the plaintiff delivered to the defendants the completely dismantled VT903 Cummins engine (but not the cylinder heads or the engine block), and later that day the prime mover was towed to the defendants' workshop; and
(b)otherwise deny each and every allegation contained therein.
10.As to paragraph 10 ...
(a)say that by 7 September 1994 they had completed the contract works and the engine was ready to be Dyno tested; and
(b)otherwise deny each and every allegation contained therein.
11.As to paragraph 11 ...
(a)admit that they did not carry out the contract works within 2½ weeks from 2 July 1994;
(b)say that:
(i)the defendants did not disconnect the steering shaft at either end;
(ii)the steering shaft had been disconnected by the previous repairer namely Allide Pty Ltd ...
(iii)the steering shaft had been reconnected but not properly secured by a person or persons unknown; and
(iv)the defendants had no knowledge, nor would they reasonably have been expected to have knowledge, of the fact that the steering shaft had been disconnected at either end and reconnected but not properly secured in that it was neither necessary nor prudent not in accordance with commonly accepted practice in the motor repair industry to disconnect the steering shaft of a vehicle such as the vehicle in order to carry out works such as the contract works.
(c)Otherwise deny each and every allegation contained therein.
12.... deny each and every allegation contained in paragraph 12 ...
13.... admit the allegations contained in paragraph 13 ...
14.As to paragraph 14 ...
(a)admit that the steering shaft came loose thereby causing the steering to fail and plead further that the cause of the steering shaft coming loose was that it had been disconnected by the previous repairer and reconnected but not properly secured by a person or persons unknown;
(b)repeat their denial in paragraph 11 hereof that they did not disconnect the steering shaft at either end nor did they have any reasonable grounds for believing that the steering shaft had been disconnected at either end and had been reconnected but not properly secured.
(c)say further that the plaintiff knew or ought to have known that the shaft had been disconnected by the previous repairer.
Particulars of Knowledge
The plaintiff had visited the previous repairer's workshop on a number of occasions and had either observed or should have observed that the steering shaft had been disconnected.
(d)say further that the damage to the vehicle was caused solely by the following causes, either separately or in combination:
(i)The fact that the steering shaft had been disconnected by the previous repairer of the vehicle;
(ii)The fact that a person or persons unknown had reconnected the steering shaft but not properly secured it,
(iii)The fact that the plaintiff did not inform the defendants of the fact that the steering shaft had been thereby disconnected as a consequence of which the defendants had no knowledge nor would they reasonably have been expected to have knowledge of the said fact.
(e)otherwise deny each and every allegation contained therein.
15.The defendants deny each and every allegation contained in paragraph 15 … and say further that:
(a)in relation to the particulars of negligence pleaded in particular (i) subjoined thereto:
(i)if the firstnamed defendant was negligent as alleged (which is specifically denied) then in any event his negligence did not cause or contribute in any way towards the damage in that by reason of the disconnection and reconnection of the steering shaft as pleaded above and his ignorance of the said fact, the said damage to the vehicle was inevitable.
(ii)repeat that the disconnection of the steering shaft by the previous repairer of the vehicle and subsequent reconnection and the plaintiff's failure to inform the defendants of the said fact and the defendants' ignorance of the said fact were the sole causes of the damage to the vehicle.
(b)In relation to the particulars of negligence pleaded in particular (ii) subjoined hereto:
(i)The firstnamed defendant did not know nor did he have any reasonable basis for believing that the vehicle was not in a fit state to be driven.
(ii)The defendants repeat all of paragraph 11(b) hereof."
It is unnecessary here to then set out the pleadings as to quantum or to set out the terms of the counterclaim which is for the balance of the cost of work and labour done and materials supplied.
Consideration of those issues necessarily follows consideration of issues of liability relating to the plaintiff's claim.

Applicable law

The law as to the liability of bailees for reward in respect of loss or damage to goods so held, is not in dispute.
In Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) A Tort Rep 81‑292, 61,553‑5, Kirby P said, albeit in a theft, rather than a damage, situation:
"The legal principles governing this case are not in doubt:
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, 4th 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 Paton, Bailment in the Common Law, cited by Clarke JA in Brambles Securities Services Ltd v Bi‑Lo Pty Ltd, Court of Appeal (NSW), unreported, 19 June 1992; [1992] NSWJB 60;
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 safe keeping of the goods. See British Road Services Ltd v Arthur V Crutchley and Co Ltd (Factory Guards Ltd, Third Parties) [1968] 1 All ER 811 (CA), 822; John F Goulding Pty Ltd v The Victorian Railway Commissioners (1937) 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 Brooks' Wharf and Bull Wharf Ltd 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;
4.In respect of goods lost during bailment by theft, the bailee must show that it took steps which were reasonable in the circumstances to keep out intruders who might otherwise be tempted to misappropriate the bailor's goods or damage them. See Pitt Son and Badgery Ltd v Proulefco SA (1984) 153 CLR 644, 646; Houghland v RR Low (Luxury Coaches) Ltd [1962] 1 QB 694 (CA), 700. The relevant circumstances will include such matters as the value of the goods bailed; the location of the place of bailment; the costs paid to the bailee by the bailor; the extent of knowledge of the bailor of the circumstances of safe keeping; and the extent (if any) of evidence of thefts of goods in the vicinity of the place in which the bailee held the subject goods;
5.In modern circumstances, with the prevalence of theft (associated in part with a period of economic difficulty) it will often be reasonable to impose upon a bailee the duty to take positive steps to deter would‑be thieves and to prevent them from gaining access to buildings in which bailed goods are kept. Further, it will be reasonable to impose upon a bailee the positive duty to impede the egress of thieves with bailed goods, if security is breached and access is gained to them. See British Road Services (above) at 818; Nibali v Sweeting and Denney (WA) Pty Ltd [1989] Aust Tort Reports 80‑258 (FC WA), 68,746 at 68,751. The standard remains one of reasonable care not every conceivable or possible precaution to prevent loss as with insurance. But the prevalence of theft, especially of mobile or transportable goods having a ready resale market, imposes affirmative duties of care on a bailee. Thus a bailee cannot simply wait until a theft occurs before it turns its attention to the necessities of such security as is appropriate to the circumstances to ensure the provision of care to the safe‑keeping of the bailed goods;
6.It is 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 and Ors [1978] 1 NSWLR 631 (CA), 641 approved The Council of 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 Ltd v McWilliams Wines Pty Ltd [1991] ASC 56‑038, 56‑616 (NSW CA); Remath Investments No 6 Pty Ltd v Chanel (Australia) Pty Ltd and Anor, Court of Appeal (NSW), unreported, 24 December 1992; [1992] NSWJB 138."

In the present case, the issue of liability was essentially fought on the issue of whether the defendants were, or were not, in breach of the bailee's duty of reasonable care.

Cause of the accident

It is agreed that it was the failure of the steering shaft, whilst the truck was in the control of the defendants and being driven to other premises for the purposes of testing the engine by the first defendant, which caused the accident.
All the evidence points to the fact that the steering shaft had been disconnected and probably disassembled, at least in some regards, prior to the truck being delivered by the plaintiff to the defendants.
The exact time and location of that is not able to be established from the evidence before me. Nor is the identity of the person or persons involved.
The most likely situation can be seen from the evidence of Mr Z A (Bill) Kostrubiec, the mechanic at Tassone Contracting, when the plaintiff brought his Louisville truck in for repairs in mid 1994:
"How long have you been a motor mechanic?---38 years.
What do you do now?---I own a business in Maddington. I repairs trucks.
Do you recall where you were working in 1994?---I was working with Tassone Contracting as a motor mechanic, subcontractor.
...
... Do you know a Mr Troy Slamar at all?---He turned up there with a truck, yes.
When was that?---It would've been very late 93 or very early 94.
RENNIE, MR: You say Mr Slamar brought a truck in?---A truck came in, yes.
Can you tell us more about what happened when the truck came in - sorry, what sort of truck was it?---It was a Louisville. It came in on a tow truck and it was supposed to have a dropped engine valve.
When you say it was supposed to have a dropped engine valve, what do you - - -?---Well, that's what Mr Slamar thought had happened to the vehicle. He brought it in and he said, 'I think it's dropped an engine valve.'
Did he ask you to work on the truck?---He asked us to dismantle the top of the engine to see which one it was. We removed both cylinder heads. We couldn't find anything wrong, so we then turned the engine over by hand and we found out it had a broken crankshaft, so we therefore removed the engine, removed the front of the truck, the bonnet, radiator, removed the engine out of the truck and pulled it completely to pieces.
Did you touch - sorry, is there a steering shaft on that particular truck at all?---There is. I removed it at the steering box end so I could remove all the overhead gear off the engine to remove the cylinder heads.
H.H. JACKSON DCJ: So you removed what, the steering ‑ ‑ ‑?‑‑‑The steering shaft and the steering box.
The steering shaft from the box?---From the steering box, yes.
RENNIE, MR: Is that what you might call the bottom end of the shaft?---That's right. The steering box is bolted onto the chassis.
H.H. JACKSON DCJ: Can you just repeat why you did that?‑‑‑So we could remove the overhead gear off the top of the engine, like the rocker covers and everything. The way the steering shaft is situated on the truck it makes it a lot easier to be able to remove and you can remove the rocker covers without causing a lot of hassle for yourself.
RENNIE, MR: Did you remove those while it was still in the truck, while the engine was still in the truck?---The engine was still in the truck, yes.
Between the chassis rails?---That's right, yes.
I think you said you took the engine out, did you?---Yes, we removed the engine.
Did you have to take anything else out to get the engine out?‑‑‑We had to take the radiator out, like the bonnet off the truck and the radiator out and removed it through the front end.
...
Anyway, you said you took the shaft off at the bottom end?---At the bottom end only, yes.
What happened to the shaft when it was taken off?---Well, it just hung there on the side of the chassis rail and after I had removed the engine out of it - - -
Sorry, just before you go any further, how far would the end of the shaft have been from the steering box?---Maybe 300 millimetres, just laying down there.
...
About a foot roughly. You say you took the engine out. What did you do to it then?---Completely dismantled it to see how much damage was done.
Was there any damage done?---Well, the crankshaft was broken. The engine would've needed excessive machining done to it to the block to get it back to good working order. I spoke to Troy about it. He decided to go and get another engine from somewhere. One turned up, we dismantled that. That was - well, it would've been more expensive to repair than buy another one. After that I just left Tassone Contracting employment and went working elsewhere and the truck was still in the workshop when I left.
How long was it in the workshop while you were still at Tassone Contracting?---It would probably be about 6 weeks - as close as I can recall. It was over 8 years ago.
H.H. JACKSON DCJ: Can you - I don't expect you to but it maybe possible that you can remember exactly when you left Tassones. If you can't remember exactly, you've talked about early 1994 perhaps. Can you place it in respect to, say, Christmas, Easter, winter, football grand final, some other event, your birthday?---I started a business in Maddington on 11 April 1994 and I worked for approximately 2 months at Bayswater Contracting prior to that after I left Tassones, so that's about as close as I can - - -
So that would put it January, February?---Around that area, yes.
RENNIE, MR: You say that the engine Mr Slamar got from somewhere else was no good, you say?---That's correct, yes.
Was it a second‑hand one, was it?---It was a second‑hand engine, yes.
Did Mr Slamar get another engine while you were there?---Not while I was there, no.
And what was the purpose of getting that engine?---It would've been cheaper to get a second‑hand engine than what it was to repair the one we took out of his truck. That's how we worked it out.
You say you left the steering shaft disconnected at the bottom end?---At the bottom end when I left Tassones employment.
Was it like that when you left Tassones?---It was like that when I left Tassones, so what happened to it after that I can't tell you.
H.H. JACKSON DCJ: So when you left the steering shaft was still disassembled?---It was disconnected from the steering box, yes.
RENNIE, MR: If you were standing alongside the truck would you see that the steering shaft was disconnected?---Definitely.
Standing along the right‑hand side - it was on the right‑hand side?---It was on the right‑hand side, yes.
Did Mr Slamar come into the workshop at all?---On a couple of occasions, just to see what damage was done to his engine and what the other engine was like that he purchased.
Did he go anywhere near the truck at all?---Well, everything was around the truck, so he was standing beside it talking to us.
...
CURTHOYS, MR: I take it that the engine was then out of the truck and in pieces around the truck?---That's correct, yes."

Plaintiff's evidence

Cross‑examined, the plaintiff said, in essence, that after the truck had been towed to BP Kewdale, he drove the truck to Tassone Contracting where he discussed the matter with the mechanic, Bill, Mr Kostrubiec, who thought the crankshaft had been broken and probably had damaged the block so that a new block would be required. Mr Kostrubiec showed him the engine disassembled on the floor. The plaintiff did not know if the steering had been disconnected. Later, the plaintiff attempted to obtain parts, including from the defendants. He visited the defendants' workshop:
"I went and seen him first and asked him for the parts. He then advised me, 'Why don't you bring the truck to me?' and I felt guilty. I didn't want to take it off one mechanic to another. I said, 'I'll just tell him I'm going to wreck it,' and then I never - when I went back he rang me - Bill rang me and said, 'What are you going to do?' I said, 'Oh, I'm just going to leave it.' That's the exact words I said to him, 'I'm going to wreck it.'
Bill had left Torcini's at this point though, hadn't he?---No, he rang me and told me, 'What am I doing with this truck? I don't really want it sitting in the yard if they're not working on it.'
In fact, it had been sitting in the yard for quite a while, hadn't it, with nothing happening?---Probably 2 weeks, whatever it took him to take the motor out and me to chase parts up and then decide what I was going to do and where I was going to get the parts from. I had to find the easiest way to get this truck back on the road and working in top condition."
Eventually, to obtain parts, he acquired a motor in the Eastern states:
"I said to Gerrardy, 'Look, how much are you going to charge me to assemble the engine?' He said, '2600 bucks.' I said, 'Deal.' I said, 'How long will it take you?' He said, '2, 2 and a half weeks.'
What day are you talking about now?---The time when I went there after asking him all the parts, which would have been the 2nd, but I didn't go there with a trailer. I don't know what date the truck was towed there. So either the day before the truck was towed there or 2 days before the truck was towed there, there's the date on it.
You asked Mr Gerrard to recondition your engine. Do you agree with that?---Yes, assemble. That's right, recondition, assemble, yeah.
What do you say, assemble or recondition?---No, I gave him the parts. I wanted him to put it all back together and work in top condition. ...
You asked Mr Gerrard for a price to recondition the engine?‑‑‑That's correct.
All right. Mr Gerrard wasn't prepared to give you a firm price, was he?---No, that's incorrect.
He was only prepared to give you an estimate?---No, he give me an estimate if I supplied all the parts, which I did, which was $2,600 plus parts which is what I supplied.
Are you saying you supplied all the parts?---Exactly, which was in chassis rebuild kit and a new long motor minus pump and power steering pump and that because I had all that which I had sent from over east.
...
Mr Gerrard estimated $3000 for labour to assemble the engine, didn't he?---That's right - no, he estimated 2600 plus a bit of oil filters, you know, a little bit of this and that, little miscellaneous things.
I suggest to you that he estimated $3000 plus parts plus machining?---No, he didn't say that. He told me 2600 and I paid him there and then 2600 by cheque, plus oil. He said, 'Don't worry about that.' He said, 'I'll get the auto electrician in and I'll sort out this and this and that, a bit of spotties and connect the sensors. I'll make everything - we'll make sure if it's working.'
..."
The truck was towed to the defendants' premises:
"... do you agree that when it ... was left ... that the steering shaft was in place?---I don't know.
Did you put the steering shaft back on?---I don't know. I didn't put it on.
Somebody put it on though. You would agree with that though, wouldn't you?---Well, I don't know if someone put it on or someone hasn't taken it off. I don't know.
Anyway, on 2 July it went to Mr Gerrard's, didn't it?---That's right. On or whereabouts that date. That's right.
Well, I suggest to you that Mr Gerrard never gave you any sort of estimate about the time it's going to take?---Well - beg your pardon?
That Mr Gerrard never gave you any sort of estimate about how long it was going to take to recondition this engine?---That's not right. He told me 2 to 2 and a half weeks.
Between the time of the accident - sorry, the time that you took the truck to Mr Gerrard's and the time of the accident, you only had any contact with Mr Gerrard once, didn't you?---Look, I think I would've contacted him. By the time he received the truck - because I went there and gave him another 3 and a half thousand bucks - so that's already once. I went there maybe once or twice more and then the rest was phone calls, ...
In fact, you went and gave him another 3 and a half thousand over and above the 2600, didn't you?---That's right. That was for the parts that he had accumulated after, which was all - then he said to do that - to give you warranty on the motor, I have to reflush the radiator and get it all serviced. I had - he said, 'I'm going to get auto‑electricians to wire it up properly, make sure the sensors are all working in the heat,' because my big factor was heat. I'm going out to the desert where it's 50 degrees heat out there. He said, 'No, it'll be all going fine. It'll run beautiful.'
...
But initially, your claim was ... framed on the basis that $2600 cost - that was everything?---Plus - that's right. Just for a little bit of everything which was - - -
He needed to replace - - -?--- - - replace the speedo cable I asked afterwards. Then he checked the clutch and then he done this. Then he put oil. Then he wired it up. Then he made exhaust manifold or inlet manifolds. He says that's where it come from. I'm not denying that it's 3 and a half I've given to him. ... He had to get a head from over east somewhere.
You gave him that 3 and a half because you knew that you owed him - you were going to owe him a lot more than 2600, didn't you?---No, I didn't. Why would I supply all the parts plus give him 7 grand. Think about it. I'm not a mechanic, but I spent about $6000 just on parts."

Mr J W Gerrard

Mr Gerrard is a qualified mechanic. He and his wife are the proprietors of Diesel Repair Repower WA and have specialised in truck repairs for 20 years.
On or about 2 July 1994, he said, the plaintiff came to his business premises towing a trailer carrying a dismantled Cummins V8 903 engine without the engine block, crankshaft and heads. Mr Gerrard was with his son‑in‑law, Mr Rob Collins. The plaintiff informed him the block and crankshaft were at a machine shop in Belmont, Sweeting and Denney. The cylinder heads were at the Cummins workshop in Perth. The plaintiff had an engine rebuild kit in the trailer. The plaintiff asked for an estimated price to rebuild the engine. The defendant said he gave a price of $3,000 for labour to assemble the engine plus the cost of any necessary machining of parts he had not seen and of any necessary parts which required to be purchased. The plaintiff then asked for a price to reinstall the engine in a Ford Louisville truck and Mr Gerrard quoted $500. That was agreed and the trailer unloaded.
Mr Gerrard denied the plaintiff's version of the course of events and of their conversations.
Whatever the truth of those matters, and of questions of price and time, it is clear that, in the end, the parties agreed that the defendants would rebuild and reinstall the engine in the truck. The truck was towed to the defendants, Mr Gerrard said, later that day, rear hitched with the front steering wheel tied to the front outside rear vision mirror to ensure the wheels stayed in line. The plaintiff, he said, accompanied the truck in another vehicle with some further parts. The plaintiff did not ask that a tachometer or speedometer be fitted but, in the course of the work, the existing tachometer was connected up so that the engine could be dyno tested before return to the plaintiff.
The plaintiff, on the same day, paid a deposit of $2,000 plus $600 towards moneys payable to Sweeting and Denney.
In fact, there was a great deal of time and trouble in obtaining and machining parts. On one occasion, the plaintiff came in, asked how the work was going and paid a further amount on account.
The work on the engine was largely done by Mr Collins. Mr Gerrard said when the work was done and the engine installed, he was driving the truck to be dyno tested on 8 September 1994 when the steering failed after about four kilometres on a bend.
Mr Gerrard said he did not see the plaintiff again until he was discharged from hospital on or about 22 September 1994.
Mr Gerrard made it plain that his firm's policy was that the steering was not to be touched unless it was itself being worked on:
"Now, ... at the time did you have any business policy in relation to steering in general - touching steering, working on steering?---The steering is steering when you are working on it. It's a paranoid subject you just don't go near it when you are working on anything else, ...
When you say, you don't go near it. What do you mean by that?---You just don't touch it. Don't take it off, don't touch it. The engine comes out over the front of the cross member where the radiator and bonnet normally are, the engine comes out through there and just under the engine mountings. ...
What about this - have you ever installed a 903 Cummins motor into a Ford Louisville, the same as Mr Slamar's?---Yes.
And how do you do it?---We go in over the front wheel. If we are coming out or we are going; in the bonnet, radiator, roo bars are removed, the gearbox is removed from the engine and moved back out the way so you don't have to pull the mountings and whatever is necessary. The - they not actually being a V8 sometimes they have engine breaks. In the floor on each side there's a panel about ... that size with three screws in - - -
What's that about 8 inches?---Yes.
Is that what - - -?---8 inches, 10 inches. You take them off and that allows the corners of the tappet covers or the covers over the engine, to go up into those holes because you only have to lift an inch and a half and you are off the engine mountings and the engine comes straight out ...
What do you lift it in and out with?---I use a forklift, you know, I have got a proper forklift that will crowd action, up and down, side shift. Specifically for lifting engines in and out.
Do you have to - is there any need to ... remove or touch the steering shaft at all - - -?---No.
- - - in this particular type of truck?---No.
Is it good practice to touch the steering shaft?---Not on an engine overhaul, no.
Have you ever had any - perhaps not the right term but firm policy in relation to that. When I say firm I mean your firm as a firm?---... I have had a number of apprentices and you work by the workshop manual and you instil it into them as they're learning and in the workshop manual for this particular truck ... it tells you in detail what to remove to take the engine in and out and it doesn't say anything about taking the ... steering shaft off to take that engine in and out so my men are trained the same way. I'm the bloke that teaches them."
Each of Mr Gerrard, Mr Collins and the then apprentice, Mr Chandler, denied doing anything to the steering assembly while the vehicle was at the defendants'. Mr Collins and Mr Chandler reinstalled the engine, with Mr Gerrard driving the forklift. He then drove the truck out of the workshop, down the driveway and on to the highway. He added:
"... when you take the engine out of ... a V8 engine out of a Ford Louis you really don't touch the steering so there was no reason for me to look at the steering or check the steering, but ... where the steering failed which makes it difficult, if you have a look at some of the photos it's right up into the dash. It's above the - where your feet pedals - like, your pedal for your clutch and throttle and all that, well, it didn't fall off in the steering box and where my men were working, it fell out from up under the dash and if you look at the photos and brackets that they're showing you they - where it is you can barely see it and then they've got a brother boot bush start to take the photos. When that bush - the boot comes down you wouldn't know - and if that bolt is a pinch‑bolt through that clamp I'm not saying - I'm not trying to make excuses but if that - the steering was with the bolt facing the floor or the dash or the underside of the pan my blokes wouldn't even notice it. The bolt wouldn't be in line for them to see that it was missing. You would really have to get down with your head under the - through the driver's door under the dash to see where the steering let go but when I had the accident the steering actually dropped between my legs."
Later, he was asked:
"RENNIE, MR: Mr Gerrard, with one of these 903 Cummins engines in a Louisville like Mr Slamar's, is it possible to ... do work on ... the engine when it's actually in the truck without taking it out?---Yes.
What about the - say, for instance, if you take a cylinder head off that particular engine?---Still the head can be removed without taking the steering out.
... where is the steering shaft ... which side, right or left?---It's on the right‑hand side.
What about the right‑hand cylinder head? How would you pull the right‑hand cylinder head off?---You lower the exhaust manifold down to the chassis, take the plate out of the floor that I told you if it's got the engine brakes on it, lift your rockers - your top cover or rocker cover as it's called and then the rocker assembly and remove the cylinder head.
... You wouldn't touch the steering in my ... my workshop, no. ‑ ‑ ‑
...
But is it conceivable that some repairers might take that shaft off?---Yes.
...
Have you ever pulled a right‑hand cylinder head off a V903 Cummins in one of these trucks before?---Yes, many times.
Do you take the steering shaft off to do that?---No, I don't, no.
Why don't you do it? ...---Well, basically it's creating work to take it off the other way although they say - I can't see - the time it takes is often against taking the head off but I've trained my guys, if you're going to drain the oil you take the sump plug out, you drain the oil and you put the sump plug back tight, right? This is one of my safety system in the workshop. If they're working on the engine, probably truthfully, if one of the guys happened to touch that steering and he goes away to a mine site to do a 3 or 4‑day job, the other bloke might not know it's off. I mean, we do put notes on the dash when we're working on stuff but you're still asking for it, you know, so - - -
You're asking for what?---You're asking to make a mistake, you know, because I'm paranoid about - - -
By what?---By somebody leaving something loose or something undone. It's got nothing to do with doing the engine job so, you know, it doesn't matter what, you know. I don't know if it's getting away from it but say if I'm doing a big repower and it's a different engine and the steering has to be touched, ... I ring ... vehicle licensing in Perth and tell him I'm taking the steering off that truck and whatever I've got to do to it. So it's in writing on the job and I'm covered. That's the only time that I'd touch the steering, if it's a conversion job, but if you're doing the repairs, no way.
What would be the practice if you did have to undo the steering on a truck?---I beg your pardon?
Would you take any sort of safety precautions if you had to undo the steering on a truck?---Yes, if we, for some reason, the steering or whatever it is, a tail shaft being left lose or something like that, there's a note written and pushed through the key into the dash of the truck so it's there for whoever gets into that to start it up the note is there."

He was then asked about the events of 8 September 1994:
"You say that you drove the truck from your workshop to obviously where you had the accident; did you have to turn the steering wheel at all before you had the accident?---Yes, I turned it to come out of the workshop, I turned it to go up my - the driveway to the highway, I did a full right‑hand turn onto the highway, a couple of slight bends to the - before the accident. That was it.
And the steering?---It was steering perfectly, yes.
After the truck went off the road, can you just tell us what actually happened to the truck itself? Did it go straight ahead, what happened?---From when the steering fell off?
Yes?---Yes, I was just travelling - starting to travel into a right‑hand bend slowly. The steering dropped at my feet. I picked up that I just had not steering. I had to make some fast decisions. ...
...
H.H. JACKSON DCJ: What do you mean when you say the steering dropped at your feet? What do you actually mean?‑‑‑Well, where they explained to you in those photos they've shown you, the steering fell from up under the dash.
You mean a piece of equipment actually basically fell?---Yes. The steering shaft - - -
Yes?---- - - come off the spline and all I had left was the steering wheel and that short male spline.
So you were holding the steering wheel?---Yes.
And the spline, as you call it, unfolded?---Yes, that - - -
And it wasn't - what, it was just in mid‑air?---That's right.
You were sitting there?---Yes.
With the wheel?---Yes.
And - - -?---Nothing.
And the bit?---That's right.
And it's not connected to anything?---That's right.
So when you say it dropped at your feet, you mean what it was connected to physically fell towards the ground?---That's right, from up under the dash.
So it just disappeared?---Yes.
Well, it didn't disappear but it fell out, dropping like that?‑‑‑That's right, yes, and then I had nothing so the truck travelled off to the - the way it was going it followed the camber of the road to the left. I believed that I was safe. I touched - I never touched the brakes - - -"
The defendant was asked whether he looked at the vehicle after the accident, and said:
"Did you have a look around the truck after you got out?---I did, ... at first I rang my son‑in‑law on a mobile phone, got him straight down there. ... we both had a look and we could see where it come off under the dash, and then we had a look at the steering box end and that was okay. The two bolts were there.
Yes?---Being shook up the way I was I didn't ... notice the smaller bolt at the time, but both bolts were in there done up at the bottom end.
...
When you say it was done, what do you mean, the bolt at the bottom end?---Yes, both bolts at the bottom end were done up tight, you know.
Could you perhaps have a look at exhibit 14, the photographs?
...
RENNIE, MR: Would you look at photograph number 12?‑‑‑Yes.
...
Photograph number 14?---14.
...
What are you saying about that one?---Well, that's how the accident occurred. You see how the separation of the female shaft from the male shaft.
Yes?---That's what happened to me. That female tube shaft fell through the floor.
So 14 is as you saw it?---Yes.
And your explanation for that is that the female part of that had fallen down?---Yes, and separated - - -
Through the floor and separated from the steering wheel?---The steering wheel, yes.
I take it that if the steering had been in the position that it was in, in photograph 14, when you started, you would never have got out the yard?---That's right.
So it has fallen during the journey?---That's right."
Prior to the accident, the vehicle was travelling normally. He was not aware of anyone having touched the steering.
His conclusion on the evidence was that the male spline had been in the female spline initially but the bolt securing them was missing and during his driving of the vehicle, the male and female splines had separated. In photograph 13, the male spline is in its correct position under the dash.
If he had been in the position of seeing that the bolt was missing, he would have attended to it. Similarly, if he had seen the wrong bolt fitted as shown in photograph 12, he would have attended to it. It would have caused concern about the steering, which he would then have checked.
He agreed that in reinstalling the engine, it and the exhaust manifold would have been in close proximity to the universal joint: See photograph 11. However, he added that the appearance of the truck showed that the way the engine had been removed was "out over the front, the same as I put it in there and there would be no need or reason for him to have touched the steering and there was no reason for us to look to see if he'd touched it". He did not know where the engine had been removed or who by and made no enquiry.
He agreed that by moving the steering column out of the way, it may assist a tradesman to get the cylinder head and manifold off on that side of the engine.
He said that when he examined the truck at the scene of the accident, the bolt arrowed at photograph 12 of exhibit 14 was done up tight, not as it appears in the photograph.
Shown photographs taken by police officers at 1.00 pm on 8 September 1994, very soon after the accident, Mr Gerrard agreed that they did not show the bolt he was referring to as done up tightly but, rather, showed an incorrectly sized bolt: Exhibit 20 and exhibit 21. That is inconsistent with exhibit 14, photograph 12. It was not that bolt which caused the steering failure. The steering failure was caused by the separation of the splines shown on exhibit 22.

Mr R Collins

Mr Robert Collins, the defendants' son‑in‑law and diesel mechanic, gave evidence that he met the plaintiff in early July 1994 when the plaintiff came to the defendants' premises in a car, towing a trailer loaded with Cummins 903 engine parts and asked for a price to rebuild the engine. The plaintiff did not have an engine block, crankshaft or cylinder heads. Mr Gerrard gave the plaintiff an estimated price. Later, a tow truck brought the truck without the engine, radiator, bonnet and bullbar. The vehicle required various parts. The plaintiff said the crankshaft and engine block were at Sweeting and Denney and the cylinder heads at Cummins. After the engine had been rebuilt, the apprentice, Darren Chandler, and he fitted the engine. Mr Gerrard drove the forklift. To do this, it is not necessary to touch the steering and, in fact, he did not do so nor did he see the apprentice do so.
He agreed that had he seen that a bolt was missing or incorrectly installed in the steering shaft, he would have corrected the position and checked the balance of the steering column. He agreed, in cross‑examination, in essence, that the defendants' firm had done a number of things in close physical proximity to the steering shaft. He did not agree that removing the steering shaft would make the work easier, but agreed that others might find it easier to do so. He did not know who had originally removed the engine or that person's experience or qualifications.

Mr D S Chandler

Mr D S Chandler, the firm's apprentice at the time, agreed that he assisted with the work. There was no reason to remove the steering shaft and he had not touched it or see anyone else do so or know of others doing so.

Mr W K Garrad

Mr W K Garrad, a diesel mechanic, now service adviser at AV Trucks, gave evidence that there is no requirement to remove the steering shaft in removing or reinstalling this engine in this truck and that the steering column should not be touched in doing so. Given the facts of the present matter, there was no reason why an engine repairer and reinstaller would need to look at the steering. "If the steering had been removed, it would be disconnected totally. If it was still on there, you would assume that it hasn't been touched." An unqualified person might, he agreed, work differently. Some people might remove the steering shaft in looking for problems in the cylinder head, but it is not necessary. If the steering shaft is worked on or removed, it should be left disconnected until fully reassembled and reconnected. He agreed that if he saw a bolt such as that shown in exhibit 21, he would tighten it and check both ends of the steering shaft out of concern that someone might have touched it.
He agreed that the coming apart of the splines, as shown in exhibit 22, caused the steering failure. They are normally kept together with a bolt which fits into the cutout between the two splines:
"What would cause it come apart like that?---You'd have to take the bolt out. It's a pinch bolt and when you tighten it up it squeezes around the spline which is already there and if it was loose it - if it had come slightly loose it would rattle, you'd feel it, because it doesn't just fall out. It has to be taken out.
If it was out before you turned the ignition on, you wouldn't get any steering at all, would you?---You would.
You would get some steering?---You would get a little bit of steering but if you moved it - - -
...
...---On that pinch bolt it's also got a little spline.
... Is the pinch bolt that round thing at the bottom that you're talking about, the one with the arrow pointing to it?---That is the clamp that actually - - -
That's the clamp?---Yes, the bolt actually goes through that and it actually clamps that shaft to that.
...
... The clamp fits over the top of the shaft and then you slide it onto your spline.
...
It's a loose part - if the truck is in proper working order the two splines should be fitted together?---Yes.
That clamp should be on it where the join is?---Yes.
And the bolt should be holding it together?---That's correct.
If it were loose when the truck starts to drive off, might it fall apart? Is that what might happen? ... You say you'd still have some steering, at least for a while?---Well, the thing is, with the spline - it has a spline in the shaft and a spline at the top. Now, put the two splines together, you still have a bit of tightness. That clamp is there just to give it extra clamp on that and the bolt goes through the cutout in the top of the shaft and that holds it together. When I say that it still might have had steering is because the two splines were still there. It actually has to strip the - open that shaft, has to open it up under pressure, then it will click over but ... you won't just lose steering, you should be able to feel it. But if it comes out, then you've lost - and in this case it looks like it's dropped down.
What would cause that?---No bolt.
Why would there be no bolt?---It must've been removed.
At some stage by someone?---Yes.
...
RENNIE, MR: Did you say before, Mr Garrad, that shaft could've been in place together with the clamp but minus the bolt and it could've just dropped off?---Well, I mean, it could've been put together with the bolt in there but not tightened. I don't know whether the nut was on there or not. It could've been put up without the bolt.
But it could still be steered?---It could still be steered.
As long as the male spline was partially into the female spline?‑‑‑Yes.
But once the - - -?---Once you put a bit of pressure on it, it will tend to spread the bottom part of the shaft and then turn over or push it out.
But once the female spline dropped off the male spline?---Then you've got no - - -
You've got nothing?---Nothing. You'd spin the wheel."

Mr P E Cross

Mr Cross, in 1994, drove a tow truck towing the plaintiff's Louisville truck from Tassone's in Hazelmere to the defendants' premises. He towed it with it's back wheels off the ground and its steering wheel prevented from moving by being tied to the mirror arms. The engine, radiator and bonnet were missing. The plaintiff followed.
Although a good deal of attention was given at trial to the fact, which I find established, that a bolt had been fitted to the universal joint at the bottom of the steering shaft which was of the wrong diameter and length, it was not, it seems, that fact which caused the steering to fail.

Mr W J Apgar

Mr W J Apgar, an engineer with special experience in the field of motor vehicle failures and collisions, had taken a series of photographs of the Louisville prime mover after the collision, exhibit 14, which he explained in evidence. His evidence establishes, and it is not in contest, that the steering column had been fitted with an undersized bolt in the position normally the universal joint is clamped, photograph 11 and photograph 12, and that at a point higher on the shaft, at the upper end of the steering drive shaft, the spline fittings had come apart relatively quickly, although they could have been fitted together and used for an indeterminate period before failing: Photograph 13 and photograph 14.
Rather, the failure was shown by the evidence of Mr Gerrard to have been the result of the separation of the splines at the top of the steering shaft.
That separation seems to have been the result of faulty reassembly of the shaft prior to the truck coming into the possession of the bailee defendants.
The importance of the incorrect bolt in the universal joint is, the plaintiff argues, that it should have been seen by the defendants and to have alerted them to the need to check and, if necessary, to properly reassemble and reconnect the steering shaft.

Conclusions as to liability

I am satisfied that the steering shaft had been disconnected and not properly reassembled by a person or persons unknown prior to the truck being delivered to the defendants.
I am satisfied by the evidence of Mr J W Gerrard, Mr R L Collins, Mr W K Garrad and Mr W J Apgar that it was unnecessary to disconnect or disassemble the steering shaft prior to reassembling and refitting the engine. I am further satisfied by the evidence of Mr Gerrard, Mr Collins and the then apprentice, Mr D S Chandler, that the defendants did not, in fact, do so.
However, it is clear, in my view, that such a possible course of action having been taken by someone else was reasonably foreseeable to a bailee in the position of the defendants, given the evidence of Mr Kostrubiec.
Clearly the fact that a mechanic or repairer allowed the truck to leave Tassone's with the steering in the condition it was is consistent with the plaintiff's evidence that he told Mr Kostrubiec that the vehicle was to be wrecked. In my view, the plaintiff was himself, in a factual sense, negligent of his own property in failing to alert the defendants to the history described by Mr Kostrubiec but, given the way in which the vehicle came to the defendants, the task they agreed to perform and the available visible evidence close to hand of the fact that the steering had been dismantled and not properly repaired, the defendants have failed to discharge the onus described by Kirby P, as he then was, in Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (supra) especially at pars 2, 5 and 6 of his summary of the relevant legal principles. It cannot be said that disconnecting the steering shaft in the course of removing the engine was not foreseeable. No enquiry was made either of the plaintiff or of Tassone Contracting nor by deliberate observation or in the course of work by simply observing what was there to be seen. This is so notwithstanding that even at that time the steering was apparently working correctly, because it had been tied up for towing and the vehicle had then been steered around the defendants' premises. Of course, the defendants did not know of the steering problems or act recklessly, nor is any complaint now made of the first defendant's driving but, in my view, the defendants did fail to use reasonable care in fitting the engine, given the matters I have referred to, of not visually looking and, therefore, of seeing that the steering had been disconnected when the engine was originally removed by a third party.
I do not accept the defence pleadings at pars 14(c) and 15(a) as relieving the defendants of liability. Contributory negligence is not here an issue.

Assessment of damages

It is agreed that the value of the truck at the time of the accident, that is as I understand it, including the parts supplied by each of the parties and the added value supplied by the defendants' labour, was $32,000.
It is also agreed that following the accident, the truck was saleable only for its salvage value of $13,000. That leaves a loss on the vehicle of $19,000.
The plaintiff also claims loss of income from lost use of the truck between the time 2‑1/2 weeks after its delivery to the defendants, when it was said it was to be returned in working condition, and the time when the plaintiff obtained a replacement vehicle. That is said to be a period of 15 weeks.
It is not in dispute, I think, that the plaintiff's gross return for each return trip was equal to the total number of kilometres travelled one way per vehicle at a rate of $2.20 per kilometre, plus an escort fee of $0.10 per kilometre one way, plus any extra charges for extra duties such as on‑site supervision.
From the amount so charged, the plaintiff was responsible to supply, or pay the cost of, fuel as well as to maintain and service his vehicle. The cost of fuel is difficult, if not impossible, to assess from the evidence. Nor is it possible to adequately assess the cost of maintaining and servicing the vehicles. He was also responsible for the wages of his sub‑contract driver, $100 per day, and overnight expenses of $30 per night for the driver. The expenses of the escort vehicle and its driver were met by the house supplier.
I accept the honesty of the plaintiff's evidence, but on matters of chronology and the like, and of matters of a financial nature, his accuracy and reliability are suspect and incomplete, and, on a number of matters, difficult to follow. It is impossible to calculate the loss of work, or of profit, from the loss of use of the truck. Cross‑examination of the plaintiff made this plain.
It is quite plain, both from the plaintiff's own evidence and from his book work, often done by his then de facto partner and his accountant, that he cannot now recall much of the detail of his financial affairs at the time and that he suffered and continues to suffer inadequacies of literacy and numeracy and lack of financial skills. In addition, it may well be that the passage of time and his own domestic situation has meant that various documents can no longer be located.
By way of documentation, the plaintiff relied on his invoice books, exhibit 3A and exhibit 3B. The most reliable and satisfactory method of assessing the plaintiff's damages is, in my view, by reference to his income tax returns for the relevant years.
The plaintiff's income tax returns show a taxable income of $15,205 in the year 1994‑1995 after allowing for a depreciation expense of $29,572, presumably for loss of the Louisville in the accident. In addition, he said that, in ignorance, at that time, non‑business expenses were sometimes treated as business deductions. In 1993‑1994, his taxable income was $36,192. The returns are exhibit 12 and exhibit 13.
Mr C A Fisher gave evidence, briefly confirming some of that of the plaintiff and essentially that after the Louisville truck went in for repairs, he did further driving for the plaintiff only for a very short period and then drove for Concrete House Transporters which was short of drivers and very busy with work.
On this head, I allow for loss of the use of the truck for a period. The first defendant, Mr J W Gerrard, and his son‑in‑law, Mr R L Collins, gave evidence as to the claim that it was agreed that the work would be completed and the truck returned within 2‑1/2 weeks. It would defy common sense to think that the plaintiff would not enquire as to how long the work would take, given his need to have it finished and the truck available to take work.
That, however, is different from finding that the defendants agreed to a firm timetable of the type alleged.
Mr Gerrard was adamant that he did not so agree and the evidence about the need to obtain parts and the possible need for parts to be machined or otherwise modified by third parties strongly supports his evidence that it would not be sensible to so agree. On that issue, I do not accept the plaintiff's claim to have been established.

The result is that the law would imply a warranty or term that the work be done within a reasonable time. As to what that was, there is a lack of factual evidence and I am not prepared to find that the defendants are in breach in that regard. I allow for loss of the truck from the accident for three months, say $10,000.
For similar reasons, I am not satisfied that the agreement between the parties as to price was as alleged by the plaintiff. Rather, the defendant says that the initial payment of $2,600 was a deposit. I accept that and the evidence that a further sum of $3,500 was paid to the defendants. As I understand it, the parties agree that the value of the truck includes those items.

Counterclaim

The defendants' counterclaim for the balance of moneys claimed to be owing for their work and labour done, and parts and materials supplied to the truck prior to the accident after deducting $6,100 paid by the plaintiff in respect thereof. The invoices are exhibit 16 and exhibit 17. I accept Mr Gerrard's account of the breakdown of the $2,600 originally paid by the plaintiff as being $2,000 deposit and $600 on account of monies owing to Sweeting and Denney.
The plaintiff did not really dispute either the nature of the work done or of the parts and materials supplied on the reasonableness of the charges in respect thereof. In many regards, he was not aware of the detail and called no evidence to challenge the defendants thereon. He only received the claim, and details, some two years or more after the accident and refused to make payment. It is true that Mr Curthoys said that the invoices which collectively make up exhibit 16 are not direct proof of the work done and parts supplied, but there is no real contest as to what was done or supplied or its cost.
On the assumption that liability on the claim was found against the plaintiff, I would allow the counterclaim. However, for the foregoing reasons, it is dismissed.