Sovereign Grange Pty Ltd v Bridgestone Australia Ltd - [2014] WADC 147

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SOVEREIGN GRANGE PTY LTD -v- BRIDGESTONE AUSTRALIA LTD [2014] WADC 147

CORAM: DERRICK DCJ

HEARD: 9-11 SEPTEMBER 2014

DELIVERED : 5 NOVEMBER 2014

FILE NO/S: CIV 3282 of 2011

BETWEEN: SOVEREIGN GRANGE PTY LTD
Plaintiff
AND
BRIDGESTONE AUSTRALIA LTD
First Defendant
GWYNFOR PTY LTD
Second Defendant

Catchwords:

Statutory implied terms of fitness for purpose and merchantable quality - Whether breach of implied terms

Legislation:

Acts Interpretation Act 1901 (Cth)
Australian Consumer Law
Sale of Goods Act 1895 (WA)
Trade Practices Act 1974 (Cth)
Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth)

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff:     Mr J R Criddle
First Defendant             :     Mr C B Kent
Second Defendant         :     Mr G R Hancy

Solicitors:

Plaintiff:     Walker Hedges & Co
First Defendant             :     SRB Legal
Second Defendant         :     SRB Legal

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

Anthony v Esanda Ltd (1981) 55 ALJR 17
George Wills & Co Ltd v Davids Pty Ltd [1957] HCA 6; (1957) 98 CLR 77
Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099; (2000) 102 FCR 307
Kalbasi v The State of Western Australia [2013] WASCA 241
Lowe v Mack Trucks Australia Pty Ltd [2008] FCA 439
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182
Miller v Karaman Pty Ltd [2003] WASCA 249
Varley v Whipp [1900] 1 QB 513
Zuvela v Geiger [2007] WASCA 138

DERRICK DCJ:

Introduction

The plaintiff alleges that a tyre which it purchased from the second defendant, and which suddenly and catastrophically failed on 3 October 2009, was not reasonably fit for the purpose for which it was purchased and was not of merchantable quality. The second defendant denies these allegations.
It is not in dispute that the failure of the tyre resulted in the plaintiff suffering loss and damage. The quantum of the plaintiff's claim against the second defendant has been agreed.
On the first morning of the trial I entered judgment for the first defendant against the plaintiff. The plaintiff did not oppose judgment being entered for the first defendant.

Non-contentious factual background

In 2009 the plaintiff owned and operated a transport haulage business.
At the same time the second defendant owned and operated a retail tyre outlet. The outlet traded as Bridgestone Tyre Centre Spearwood.
On 20 April 2009 the plaintiff purchased a batch of tyres from the second defendant's retail outlet. One of the tyres purchased was a Sailun steel belted radial truck tyre. The model number of the tyre was 385/65R22.5 158 K Sailun S825 (the tyre). The plaintiff purchased the tyre for use as a steer tyre on one of its vehicles.
On 22 May 2009 the tyre was fitted to one of the plaintiff's vehicles, a Western Star Prime Mover registration number 1BUD 186 (the prime mover). The tyre was fitted to the right front stub axle of the prime mover or, to use lay terminology, the right front wheel.
On 1 and 2 October 2009 two employees of the plaintiff, Mr Lyle Callow and Mr Ray Haua, drove the prime mover to Port Hedland. Mr Callow was the more experienced driver. He was teaching Mr Haua how to operate road trains.
At the time the prime mover had three refrigerated trailers attached to it. The trailers did not belong to the plaintiff but to a contractor for whom the plaintiff performed haulage work. Each of the refrigerated trailers contained goods for delivery to the Coles supermarket in Port Hedland.
It took Mr Callow and Mr Haua approximately 19 to 20 hours to drive to Port Hedland. Accordingly, they arrived in Port Hedland some time during the late afternoon or early evening of 2 October 2009.
At sometime around 8.00 pm or 9.00 pm on 2 October 2009, after the goods had been unloaded from the trailers, Mr Callow and Mr Haua commenced the return journey to Perth. The prime mover still had the three refrigerated trailers attached to it, although each of them was almost empty. Mr Haua was driving at the time the prime mover left Port Hedland. Mr Callow went to sleep in the prime mover's rear sleeping compartment.
The plan was to return to Perth via Carnarvon. Mr Callow and Mr Haua were to drop off some of the trailers in Carnarvon so that they could be loaded with produce for another contractor.
At around 1.00 am or 2.00 am, and in any event approximately five hours after he had driven out of Port Hedland, Mr Haua pulled into a parking bay on the North West Coastal Highway near Nanutarra. Nanutarra is approximately 300 km south of Port Hedland. Mr Haua did this so that Mr Callow could take over the driving of the prime mover. This was in accordance with the plaintiff's fatigue management plan for its drivers which required that drivers did not drive for continuous periods exceeding five hours.
During the stop Mr Callow, in accordance with his usual practice, undertook, among other things, a brief inspection of the prime mover's tyres and the tyres on the trailers.
Once Mr Callow took over the driving of the prime mover Mr Haua went to sleep in the rear sleeping compartment.
Mr Callow continued driving the prime mover south on North West Coastal Highway. He was driving at 100 km per hour which was the speed limit.
At about 3.30 am when the prime mover was approximately 1 km north of the turn off to Exmouth, Mr Callow heard a loud bang. The bang was the sound of the tyre catastrophically failing. The failure of the tyre caused the prime mover to pull to the right. Although Mr Callow attempted to straighten the prime mover, he was unable to do so. The prime mover travelled across the north bound lane of the highway and into the scrub on the other side of the road. Once the prime mover was a few metres into the scrub the right front wheel rim dug into the dirt which caused the prime mover and the trailers to jack knife. The prime mover and trailers then continued to skid in the scrub until they all came to a stop. Fortunately, neither Mr Callow nor Mr Haua was seriously injured in the accident.
The prime mover was damaged in the accident. It is the damage to the prime mover which caused the plaintiff to suffer loss.
Subsequent examination of the tyre revealed that the cause of its catastrophic failure was the total separation of the number 1 belt of the tyre from both the tyre's carcass and the remainder of the tyre's tread belt package.
Between 22 May 2009, the date on which the tyre was fitted to the prime mover, and 3 October 2009, the date on which the tyre failed, the prime mover had travelled a total of 170,109 km.

Cases of the parties

The plaintiff alleges that it purchased the tyre from the second defendant pursuant to a contract of sale (the sale contract).
The plaintiff alleges that it was an implied term of the sale contract that the tyre would be reasonably fit for the purpose for which it was purchased, the purpose being to perform as a front wheel steer tyre on the prime mover. The plaintiff alleges that this term is to be implied into the sale contract by reason of s 71(2) of the Trade Practices Act 1974 (Cth) (the TPA) and s 14(2) of the Sale of Goods Act 1895 (WA) (the SGA).
The plaintiff also alleges that it was an implied term of the sale contract that the tyre would be of merchantable quality. The plaintiff alleges that this term is to be implied into the sale contract by reason of s 71(1) of the TPA and s 14(3) of the SGA.
The plaintiff alleges that the tyre suffered from a latent manufacturing or materials defect at the time that it was sold pursuant to the sale contract, the alleged latent defect being poor adhesion between the tyre's carcass and the tyre's number 1 belt. The plaintiff alleges that it was this defect which resulted, during the use of the tyre, in the number 1 belt separating totally from the tyre's carcass and the remainder of the tyre's tread belt package, and that it was this total separation which in turn led to the catastrophic failure of the tyre. The plaintiff alleges that given the existence of the alleged defect the tyre was not reasonably fit for the purpose for which it was purchased and was not of merchantable quality. The plaintiff therefore alleges that the second defendant sold the tyre in breach of the alleged implied terms of the sale contract.
The second defendant admits the existence of the sale contract. The second defendant also admits that by reason of s 71(1) of the TPA it was an implied term of the sale contract that the tyre would be of merchantable quality.
The second defendant does not admit that a requirement of merchantable quality is to be implied into the sale contract by reason of s 14(3) of the SGA. Nor does the second defendant admit that it was an implied term of the sale contract that the tyre would be reasonably fit for the purpose for which it was purchased.
The second defendant admits that the immediate cause of the tyre's catastrophic failure was the total separation of the tyre's number 1 belt from the tyre's carcass and the remainder of the tyre's tread belt package. However, the second defendant denies that the total separation was due to the alleged manufacturing or materials defect or for that matter any defect at all. The second defendant's position is that the most likely explanation for the tyre's catastrophic failure, or an explanation for the failure that is at least as likely as the one contended for by the plaintiff, is that the tyre overheated as a result of under-inflation during the journey from Port Hedland. The plaintiff therefore denies that by selling the tyre to the plaintiff it breached any implied term that the tyre would be reasonably fit for the purpose for which it was purchased or the implied term that the tyre would be of merchantable quality.
In addition, the second defendant also contends that even if contrary to its asserted position the tyre was sold with a manufacturing or materials defect contained in it, this did not in all the circumstances amount to a breach of the implied term of merchantable quality or any implied term of fitness for purpose. In support of this contention the second defendant points to the fact that at the time of the tyre's failure it had travelled in excess of 170,000 km.
As is apparent from the respective cases of the parties, it is common ground between them that given that the sale contract was entered into before 1 January 2011 the Australian Consumer Law has no application and that the relevant Commonwealth statutory provision is the now repealed s 71 of the TPA: Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth), s 6 of the schedule; Acts Interpretation Act 1901 (Cth), s 7(2).

Issues for determination

In light of the respective cases of the parties, and bearing in mind that it is not in dispute that the immediate cause of the sudden and catastrophic failure of the tyre was the total separation of the tyre's number 1 belt from both the tyre's carcass and the remainder of the tyre's tread belt package, the questions for my determination may be stated as follows:
1.Was it by virtue of s 71(2) of the TPA or s 14(2) of the SGA an implied term of the sale contract that the tyre would be reasonably fit for the purpose for which it was purchased?
2.Was it by virtue of s 14(3) of the SGA an implied term of the sale contract that the tyre would be of merchantable quality?
3.Was the sudden and catastrophic failure of the tyre caused by a latent manufacturing or materials defect present in the tyre at the time of the sale contract, namely poor adhesion between the tyre's carcass and the tyre's number 1 belt?
4.If the sudden and catastrophic failure of the tyre was caused by the alleged latent manufacturing or materials defect, did the second defendant, by selling the tyre to the plaintiff, breach the implied term that the tyre would be of merchantable quality and/or any implied term that the tyre would be reasonably fit for the purpose for which it was purchased?

Tyre components and the manufacturing process

As is apparent from both my statement of the non‑contentious factual background and my explanation of the respective cases of the parties, during the trial various industry specific terms were used by some of the witnesses to describe components of the tyre. Given that it will in due course be necessary to refer in some detail to the evidence given by these witnesses it is appropriate, before proceeding further, to describe in brief terms what the evidence established in relation to the components, structure and manufacturing process of a steel‑belted radial truck tyre (steel-belted tyre).
The first layer of a steel-belted tyre is the inner liner. The inner liner consists of two sheets of a rubber composite polymer.
The next layer of a steel-belted tyre is the body ply or carcass (which I will from this point on refer to as the carcass). The carcass is made up of steel cords that are arranged in a parallel matrix. The cords are embedded in a rubber polymer compound. It is the inner liner and carcass which form a steel belted tyre's air chamber.
The next layer of a steel‑belted tyre is comprised of the steel belts. The belts are circumferential as compared to the radial structure of the steel cords comprising the carcass. The steel belts are finely woven steel fibres that are encased in rubber. There are four belts with the number 1 belt being closest to the carcass and the number 4 belt being closest to the surface of the tread of the tyre.
The final and outer layer of a steel-belted tyre is comprised of the tread and the side walls.
The 'shoulder' of a steel‑belted tyre is the buttress where the side of the tyre turns into the tread.
The tread and the steel belts can be referred to as the 'tread belt package'.
So far as the manufacturing of a steel-belted tyre is concerned, the various components are brought together on a tyre assembly machine. They are applied to a rotating drum in the reverse order to which they appear. That is, the inner liner is applied to the drum first, followed by the carcass, followed by each of the four belts, followed finally by the tread and the side walls. Once these components are brought together the steel-belted tyre is what is called a 'green tyre' or an uncured tyre; it is not chemically bonded at this point. The green tyre then undergoes the vulcanisation process. By this process the steel-belted tyre is subjected to heat and pressure so that the various compounds become chemically bonded.

Alleged fitness for purpose implied term

Statutory provisions

Section 71(2) of the TPA implied into a contract for the sale of goods, in certain circumstances, a condition that the goods were reasonably fit for the purpose which the buyer made known to the seller. The section provided as follows:
Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business and the consumer, expressly or by implication, makes known to the corporation or to the person by whom any antecedent negotiations are conducted any particular purpose for which the goods are being acquired, there is an implied condition that the goods supplied under the contract for the supply of the goods are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the consumer does not rely, or that it is unreasonable for him or her to rely, on the skill or judgment of the corporation or of that person.
Section 4B(1)(a)(i) of the TPA relevantly provided that for the purposes of the Act and unless the contrary intention appears a person shall be taken to have acquired particular goods as a consumer if, and only if, the price of the goods do not exceed the prescribed amount. The prescribed amount was $40,000: TPA, s 4B(2)(a). There is no dispute in the present case that the price of the tyres sold under the sale contract did not exceed $40,000.
Section 14(2) of the SGA is in substantially similar terms to s 71(2). Section 14(2) relevantly provides as follows:
Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose …

Relevant evidence

During the trial two witnesses gave evidence relevant to the question whether it was an implied term of the sale contract that the tyre would be reasonably fit for the purpose for which it was purchased. The two witnesses were Mr Mark Preedy and Mr Rex Lovis. Mr Preedy was called by the plaintiff. Mr Lovis was called by the second defendant.

Mark Preedy

Mr Preedy is, and was in 2009, the director of the plaintiff. In his evidence‑in‑chief Mr Preedy said the following.
In 2009 the plaintiff operated between 16 and 18 vehicles. The vehicles were mainly Western Star prime movers.
In the period leading up to 2009 the plaintiff purchased its tyres from the first defendant through its Spearwood tyre centre. The first defendant would check the plaintiff's vehicles to see what was needed at different stages and would provide advice to the plaintiff about what needed to be done so far as tyres for its vehicles were concerned.
At some point Mr Lovis became involved. He is 'pretty sure' that the first defendant sold its Spearwood tyre centre to Mr Lovis although the centre still operated as a Bridgestone tyre centre.
Mr Lovis took over the work that the first defendant had previously performed for the plaintiff. He thinks that once Mr Lovis took over the Spearwood tyre centre Mr Lovis was able to supply non‑Bridgestone tyres.
In April 2009 the plaintiff purchased six Sailun tyres from Mr Lovis' tyre centre. He is 'fairly sure' that the type of tyre that the plaintiff was at the time using for its steer tyres was not available or was out of stock, and that Mr Lovis advised that he could supply the Sailun tyres and that they would probably give the plaintiff the same amount of run or wear as the tyres it had previously been using. He thinks that the Sailun tyres were 'probably a fair bit cheaper' than the other tyres that the plaintiff had been using.
He thinks the plaintiff bought six tyres because it got a better price for buying six rather than just two at a time. The plaintiff would have stored the other four tyres away until they actually needed to be fitted.
The tyre was fitted to the prime mover on 22 May 2009. The tyre was fitted through Mr Lovis' tyre centre. The fitting would have taken place at the plaintiff's yard in Forrestfield.
The arrangement in relation to the fitting of tyres was that the plaintiff would let Mr Lovis know that it needed a couple of steer tyres because something had worn incorrectly or because a tyre needed to be replaced due to the limited amount of rubber or tread left on the tyre.
At this stage Mr Lovis' tyre centre was supplying a representative to come out and look at the plaintiff's equipment. He is not sure whether this occurred once or twice a week. The representative would 'go through and check' and would advise the plaintiff whether it needed to replace tyres, would check the pressures of the tyres to make sure that they were 'okay' and would rotate the tyres on vehicles if that was required.
He is 'fairly sure' that in 2009 the representative from Mr Lovis' tyre centre who attended the plaintiff's premises was a Mr Matthew Clarke. Mr Clarke was one of the tyre fitters employed by Mr Lovis. If there was a problem with a tyre or if a new tyre needed to be fitted, Mr Clarke would deal with it.

Mr Lovis would come to the plaintiff's premises probably once every three months or so just to say hello and to see how things were going.
In cross‑examination Mr Preedy's evidence as to the nature of the plaintiff's business relationship with Mr Lovis' tyre centre was not substantially challenged. Mr Preedy confirmed that when Mr Lovis took over the Spearwood tyre centre Mr Lovis gave to the plaintiff the opportunity to buy tyres other than Bridgestone tyres. He said that the reason the second defendant bought the Sailun tyres was Mr Lovis' 'knowledge of tyres'.
In re-examination Mr Preedy said that at the time of buying the Sailun tyres he had no expectation as to the life that he would get out of the tyres. He said that this was the first time that the plaintiff had used Sailun tyres. He said that Mr Lovis had said, 'Well give these tyres a go and we'll see what we get out of them'. He said that so far as he was concerned the Sailun tyres should have been as good as the tyres that the plaintiff had been using previously.

Rex Lovis

During examination-in-chief Mr Lovis gave the following evidence.
In 2009 he owned the Bridgestone Spearwood tyre retail outlet. The business was operated through the second defendant.
His business sold Bridgestone and Sailun tyres. He did sell some Sailun tyres to the plaintiff.
In cross‑examination Mr Lovis said the following.
He made recommendations to Mr Preedy as to a number of brands of tyres that Mr Preedy could use for steer tyres on the plaintiff's truck fleet and left it for Mr Preedy to decide. He did tell Mr Preedy that the Sailun tyres were suitable for use as a steer tyre on the prime mover.
His business did have a fitter in Mr Preedy's yard two or three times a week. The primary purpose of having a fitter in the yard was for the fitter to report to Mr Preedy and to obtain advice as to what needed to be done in the yard at a particular time. The tyre fitter did make recommendations as to when tyres needed to be changed. One of the jobs of the fitter allocated to Mr Preedy's yard was to check the pressures of the tyres of the trucks in the fleet.
He was aware at the time of the sale of the six Sailun tyres that Mr Preedy intended to use them as steer tyres on his trucks.
In re-examination Mr Lovis said that it was Mr Preedy who made a decision as to whether a tyre should be replaced.

Analysis and conclusions

On the basis of the evidence of Mr Preedy and Mr Lovis, I make the following findings of fact.
First, that prior to the plaintiff buying the tyre from the second defendant Mr Preedy informed Mr Lovis that he needed to buy some tyres for use as steer tyres on the plaintiff's vehicles and that Mr Lovis identified and recommended the Sailun tyres the subject of the sale contract (perhaps along with other brands of tyre) as being suitable for this purpose.
Second, that given what was obviously the close business relationship between the plaintiff and the second defendant as evidenced by the second defendant's provision of a tyre fitter to the plaintiff's yard on a regular basis, Mr Lovis was at all times aware of the nature of the plaintiff's business and the type of vehicles which the plaintiff had in its fleet.
Third, that although Mr Preedy was ultimately responsible for making the final decision as to whether the Sailun tyres purchased under the sale contract were suitable for use as steer tyres on the plaintiff's vehicles, in particular the prime mover, he made this decision taking into account any recommendation as to suitability made by Mr Lovis. Mr Lovis was, after all, the 'expert' who was running a tyre selling business.
It follows from my above stated findings of fact that I am, so far as s 71(2) of the TPA is concerned, satisfied that the second defendant supplied (otherwise than by way of sale by auction) goods, namely the tyre, to the plaintiff in the course of business and that the plaintiff (through Mr Preedy) made known to the second defendant (through Mr Lovis) the particular purpose for which the tyre was being acquired, namely for use as a steer tyre on one of the plaintiff's vehicles. It also follows from my stated findings of fact that I am satisfied that the circumstances do not show that the plaintiff did not rely, or that it was unreasonable for the plaintiff to rely, on the skill or judgment of the second defendant or Mr Lovis. Accordingly, I find that by virtue of s 71(2) of the TPA it was an implied term of the sale contract that the tyre was reasonably fit for use as a steer tyre on the prime mover.
With respect to s 14(2) of the SGA, it follows from my above stated findings of fact that I am satisfied that the plaintiff as the buyer expressly made known to the first defendant as seller the particular purpose for which the tyre was required, namely for use as a steer tyre on one of its vehicles, so as to show that the plaintiff relied on the first defendant's skill or judgment, and that the tyre was of a description which the second defendant sold in its course of business. With respect to the 'so as to show' requirement, I am satisfied that Mr Preedy, by informing Mr Lovis that he needed to buy some tyres for use as steer tyres on the plaintiff's vehicles, made clear to Mr Lovis and hence the second defendant that he was relying on the second defendant's skill and judgment when it came to choosing tyres for use as steer tyres on his vehicles: Miller v Karaman Pty Ltd [2003] WASCA 249 [16]. Accordingly, I find that by virtue of s 14(2) of the SGA it was an implied term of the sale contract that the tyre was reasonably fit for use as a steer tyre on the prime mover.

Alleged merchantable quality implied term

Statutory provisions

Section 71(1) of the TPA provided for the implication into a contract for the sale of goods, in certain circumstances, a condition that the goods are of merchantable quality. The section was in the following terms:
Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business, there is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality, except that there is no such condition by virtue only of this section:
(a)as regard defects specifically drawn to the consumer's attention before the contract is made; or
(b)if the consumer examines the goods before the contract is made, as regard defects which that examination ought to reveal.
Section 14(3) of the SGA is in similar terms to s 71(1). Section 14(3) provides:
Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality: Provided that if the buyer has examined the goods there shall be no implied condition as regard defects which such examination ought to have revealed.
Goods are 'bought by description from a seller' where the purchaser has not seen the goods but buys the goods in reliance on the description of the goods alone: Varley v Whipp [1900] 1 QB 513, 516.

Analysis and conclusions

As I have already indicated, the second defendant admits that by virtue of s 71(1) of the TPA it was an implied term of the sale contract that the tyre was of merchantable quality. Given the findings of fact that I have already made in dealing with the question whether it was an implied term of the sale contract that the tyre would be reasonably fit for its purpose this is a conclusion that I would have arrived at in any event. Clearly, the second defendant, by selling the tyre to the plaintiff under the sale contract, supplied goods to a consumer in the course of business. Moreover, consistently with the second defendant's case that the tyre was not defective, the second defendant quite obviously does not suggest that prior to the formation of the sale contract it brought to the plaintiff's attention any defect with the tyre or that the plaintiff carried out an examination which ought to have revealed any defect.
I am not, however, satisfied that an implied term of merchantable quality should be implied into the sale contract by virtue of s 14(3). I am not so satisfied because the evidence is not sufficient to enable me to conclude that Mr Preedy bought the Sailun tyres the subject of the sale contract solely on the basis of Mr Lovis' description of them without actually looking at them himself. Mr Preedy may not have seen or inspected the tyres prior to their purchase. He may have relied solely on Mr Lovis' description of them. However, on the basis of the evidence that was adduced to which I have already referred, I cannot satisfy myself on the balance of probabilities that this was in fact the case. The simple fact of the matter is that the issue was not addressed by the evidence adduced by either party.

Alleged latent manufacturing or materials defect

I turn to the third of the questions that I have posed for my determination, namely whether the sudden and catastrophic failure of the tyre was caused by a latent manufacturing or materials defect present in the tyre at the time of the sale contract.
The evidence which was adduced during the trial relevant to this question came from Mr Lyle Callow and three expert witnesses, Mr Robert Mackinlay, Mr David Southwell and Mr Keith Spanswick. Mr Callow, Mr Mackinlay and Mr Southwell were called by the plaintiff. Mr Spanswick was called by the second defendant. It is necessary to summarise in some detail the relevant evidence given by each of these witnesses in order to properly address the question whether the tyre did at the time of the sale contract suffer from a latent manufacturing or materials defect.
Before turning to the evidence of the abovementioned witnesses, however, I need to say something about the third of the witnesses called by the second defendant, Mr Peter Makepeace. Prior to the trial Mr Makepeace had, at the request of the second defendant's solicitors, inspected the carcass of the tyre on 6 June 2013 and provided an 'expert' report dealing with the cause of the tyre's failure dated 10 June 2013. Copies of Mr Makepeace's report were provided by the second defendant's solicitors to the plaintiff's solicitors and consequently Mr Mackinlay and Mr Southwell as part of the pre-trial disclosure process. The result was that both Mr Mackinlay and Mr Southwell, in reports that they prepared in response to requests from the plaintiff's solicitors and which were tendered during the trial, addressed some of the statements and opinions expressed by Mr Makepeace in his report.
Despite Mr Makepeace having provided an 'expert' report prior to the trial the second defendant's counsel, in opening the second defendant's case, expressly disavowed calling Mr Makepeace as an expert witness. Counsel stated that he would call Mr Makepeace to give some brief 'factual evidence about his examination of the tyre rim, the photographs that he took and what happened to the remnant'. Counsel adopted this approach essentially on the basis that to call Mr Makepeace as an expert witness would be inconsistent with his contention that Mr Mackinlay and Mr Southwell were not 'experts in the relevant area'. I will return later to the difficulty with this contention bearing in mind that Mr Mackinlay and Mr Southwell were called to, and did, give evidence as expert witnesses without objection by the second defendant.
When Mr Makepeace was called he did during examination‑in‑chief give evidence of the type foreshadowed by the second defendant's counsel. He said that he had worked in every different aspect of the tyre industry for about 59 years. He said that when in 2013 he was asked to look at the remnant of the tyre he requested that it be sent to the premises of a business called 'Get‑a‑Grip Tyres' in Welshpool. He said that he made this request because he had known the owner of the business, a Mr Greg Dick, for probably 20 years and he felt that it would be best to inspect the tyre remnant at an independent location. He said that the remnant of the tyre that he inspected was the tyre's carcass. He said that he asked for the tyre's tread but that it was not provided to him. He identified a number of photographs that he had taken of the tyre's carcass. He said that after he inspected the carcass he 'would have' spoken to Mr Dick and told him to keep the carcass until it was collected by the person who had delivered it to his premises. He said that he did not know what happened to the carcass after this. I note in this context that it is common ground between the parties that the tyre's carcass was lost or disposed of after Mr Makepeace left it with Mr Dick.
Consistently with counsel's foreshadowed approach, Mr Makepeace was not during examination-in-chief asked, and did not give evidence about, what he observed when he inspected the tyre's carcass. Mr Makepeace's 'expert' report was not referred to and was not tendered. However, in cross-examination the plaintiff's counsel, in light of the contents of Mr Makepeace's report, asked Mr Makepeace to confirm that his inspection of the tyre's carcass did not reveal any indication of overheating. Mr Makepeace ultimately, albeit with what appeared to me to be some reluctance, agreed with this proposition but added that he wanted to 'explain something'.
In re-examination counsel for the second defendant asked Mr Makepeace what he had wanted to explain. Over objection I allowed the question to be answered. Mr Makepeace then gave an answer which was in substance that it was not a 'cut and dried case', that the 'tyre industry is a very, very complex business' and that in his view the tyre was under-inflated which led to 'extra heat build up'. Mr Makepeace did not in his answer explain the basis for his view that the tyre was under-inflated. Nor was he provided by counsel with any further opportunity to do so which, in light of the second defendant's position that Mr Makepeace was not an expert witness, was an understandable approach for counsel to take.
In his closing submissions counsel for the second defendant submitted, in effect, that the cross‑examination of Mr Makepeace assumed that he was an expert, that is, that he knew what to look for when it came to indications of overheating in the tyre's carcass, that the assumption was not supported by the evidence, that Mr Makepeace was not qualified as an expert and that I should therefore rely only the factual as opposed to opinion aspects of his evidence. The plaintiff's counsel in his closing submissions did not attempt to place any particular reliance on the opinion expressed by Mr Makepeace.
I accept the submission made by the second defendant's counsel in relation to Mr Makepeace's evidence. While I do not for one moment doubt the very extensive experience of Mr Makepeace in the tyre industry, he was not called in the trial as an expert witness, no evidence was adduced sufficient to qualify him as an expert witness in any relevant area and the basis for the limited opinion type evidence that he did give was not adequately explained. In these circumstances I do not propose to place any weight on Mr Makepeace's evidence that his inspection of the tyre's carcass did not reveal any indication of overheating or his evidence that the tyre was under-inflated which lead to a heat build-up.
I turn to summarising the evidence bearing upon the question whether the tyre did at the time of the sale contract suffer from a latent manufacturing or materials defect.

Non-expert evidence

Lyle Callow

In his evidence‑in‑chief Mr Callow said the following.
In 2009 he was employed as a truck driver by the plaintiff. At the time of the accident he had been working for the plaintiff for about 12 months. During the 12 month period of his employment he had been assigned to drive the prime mover.
In the six months prior to the accident he was driving the prime mover on the twice weekly run to Port Hedland. The roads that he drove on in order to travel to and from Port Hedland were sealed. They were 'good main highways'.
On his trips to Port Hedland he had a second driver with him. He and his co-driver would rotate the driving duties every five hours.
Most of the time he had a regular driving partner. His regular driving partner was Mr Ray Haua.
When he and his co‑driver swapped driving duties they would do an inspection of the prime mover and the trailers. The inspection would involve them walking around the truck and trailers, checking tyres, checking lights and, on the journey up to Port Hedland, checking the temperatures of the refrigeration trailers.
In order to check a tyre he would kick the tyre or tap it with a metal bar to make sure that it was not flat. He would also do a quick visual inspection. The visual inspection would involve him looking at the tread and the condition of the tyre.
The purpose of tapping a tyre with a metal bar was to determine if the tyre had deflated. If he tapped a tyre with the bar and could see flex in the side wall of the tyre this indicated that the tyre had either deflated or was low on pressure. If he detected that a tyre was deflated or low on pressure he would change the tyre.
At the time of the accident he knew that new tyres had been fitted to the prime mover. He knew that the tyres were in 'good nick'.
During the five months prior to the accident he did not notice under‑inflation on either of the front steer tyres.
He would use the metal bar mainly to tap the tyres on the trailers and the drive tyres on the prime mover. However, for the steer tyres, because they were only a single tyre, he could just tell by the height of the side wall whether the tyre had deflated. The height of the side wall would be lower than where it should be if the tyre was deflated.
In the five months prior to the accident he had no difficulty with the steering of the prime mover. It tracked well. It did not pull left or right.
He and Mr Haua left Port Hedland on the night of 2 October 2009 at roughly 7.30 pm or 8.00 pm. Mr Haua was driving.
At about 2.30 am he and Mr Haua pulled over in a parking bay to do a driver change over. The parking bay was near Nanutarra. When they pulled over they did a quick tyre check and cleaned the windscreens, the spotlights and headlights. They also filled out the paperwork for fatigue management. The tyre check which they conducted involved them walking around and visually inspecting the tyres as well as tapping them with a metal bar.
He used a high powered torch that he always carried with him to undertake his visual inspection of the tyres. His inspection revealed 'everything was fine … everything was good'.
As he was driving on a long 'straightaway' approaching the Exmouth turnoff there was no traffic around. There was nothing he could see on the road. The road was bare.
He heard a loud explosion or a loud bang. He felt the right‑hand side of the prime mover dip as the tyre deflated instantaneously. The prime mover began heading right, probably at a 30‑odd degree angle in towards the bush off‑road. He applied the brakes as quickly as he could and yelled out to Mr Haua that they had done a steer tyre and to hang on. The prime mover went into the dirt. Once he got a few metres into the dirt the wheel rim dug into the dirt which caused the prime mover and trailers to jack‑knife. The prime mover skidded and came to a stop.
As soon as the prime mover had come to a stop he got out. There was a massive cloud of dust so he could not see a lot to begin with until the dust settled. It was dark at the time. However, after the dust cleared he could see what remained of the side walls of the tyre.
He walked back out onto the road and saw the main tread casing lying on the road. He removed the tread casing off the road to the shoulder of the road because it was a traffic hazard. This was at about 3.30 am. He had his torch with him at the time.

The next morning, after daybreak, he took photographs of the skid marks and the tyre casing where he had left it on the side of the road. He took the photographs with his phone.
He walked a couple of hundred metres back up the road looking for anything on the road, any debris that might have caused the blowout. However, there was nothing there. There was nothing on the shoulders of the road or the road itself.
He collected the tread and placed it in the passenger side of the prime mover.
He only found the one piece of tread which was the main component of the tread. He did not see any smaller fragments of the tyre.
Before he heard the noise of the tyre exploding he did not notice anything on the road surface. During the period leading up to the tyre exploding he had not noticed anything unusual about the steering of the prime mover. It was not dragging left or right. It was behaving as it should.
In cross‑examination Mr Callow said the following.
He thought that the tyres on the prime mover were only a couple of weeks old at the time of the accident.
He remembers that from the changeover point everything was normal. There had been no blowouts at all with the entire road train on the way up to Port Hedland.
He was not the only driver of the prime mover during the months prior to the accident. There were other drivers apart from Mr Haua who had driven the prime mover. If he had days off so that he was not doing the normal run to Port Hedland his employer would sometimes use the prime mover to do local pickups or a short run. He was, however, the principal driver of the prime mover.
Prior to the time that he commenced doing the run for Coles to Port Hedland he was doing a run up to Argyle mine and back. He did the run to Argyle mine when he first started working for the plaintiff. This run took four to five days.
The round trip to Port Hedland and back was about 3,600 km. So each week he was driving the prime mover more than 7,000 km.
The checks that he carried out during a driver changeover were all 'pretty much' matters of routine.
Before he left Perth on the journey in question he 'flipped the bonnet' of the prime mover to check all fluids and oils. He did a visual inspection of the belts, the fan and the radiator. While the bonnet was up he could see the steer tyres clearly. He checked the steer tyres. They were 'all good'. He checked a lot of things other than the tyres.
The total number of tyres on the prime mover and the three trailers was 76. He did check the 76 tyres.
When he checked the tyres during the changeover before the accident, he visually inspected the tyres and kicked and tapped them with a bar. He only inspected the tyres in their stationary position. He did not turn each tyre.
He spent a couple of seconds looking at each dual set of tyres. This was the time that it took him to kick both tyres and have a quick look at them.
The checking of the tyres was part of a wider range of things that he would be required to do during the break for the driver change over. He would be listening for air leaks, and looking for any electrical troubles with the lights in any of the trailers and the dollies.
At the changeover before the accident he knew everything was good because they had checked things over and they were 'good to go'. There was nothing that concerned him. Nothing was out of the ordinary. He checked all the tyres and then climbed up on the right steer tyre to clean the windscreens and when he looked at the steer tyre it seemed the right height. It did not seem any lower than what the left one was. So nothing seemed to be deflated. There were no markings on the tyre.
It is not correct to say that he does not have an actual recollection of the particular inspection prior to the accident. He remembers it well because it concerned him that 'what seemed to be okay then nearly killed [him]'. The trip has stuck vividly in his mind. It is one that he has not forgotten.
If tyres are running hot they smell. During the driver changeover there was no smell of heat or anything like that.
He may not remember as a fact that he inspected each tyre for a couple of seconds, but he checked all the tyres. Mr Haua did an inspection as well. He likes both drivers to check the tyres so that he knows that it 'is all good'.
It was dark when he went back onto the road with the torch and found the tyre's tread casing. He removed it from the road just moments after the accident when he went out and did the inspection to see what had 'gone on'.
When he took his photographs he was focusing on taking photographs of the tread casing, the skid marks, the damage to the prime mover and the trailers and 'how things had ended up'. He does not remember seeing or finding any smaller pieces of tyre.
He took the photographs of where he had driven off the road to give an indication of how suddenly the incident had happened. The tyre had not slowly deflated and come off. It was an explosion. It came off and that is where the tread casing was resting on the road.
He walked 250 – 300 metres up the road from where the skid marks were initiated. He looked on both the shoulder of the road and on the road itself. There was nothing that he could find.
In re‑examination Mr Callow said that if there is an issue with heat in a tyre and a tyre is running hot the tyre, as well as giving off a smell, will discolour on the side wall; it will become blacker.

Assessment of Mr Callow's evidence

Mr Callow gave evidence in a straightforward and open manner. He was not evasive. He did not prevaricate when it came to answering questions. In short, I am satisfied that Mr Callow was an honest witness.
In his closing submissions counsel for the second defendant submitted that there were some features of Mr Callow's evidence which were sufficient to give rise to doubts about the reliability of his evidence generally. The features of Mr Callow's evidence that were pointed to by counsel in this regard were Mr Callow's errors in relation to timing, his tendency to refer to what he 'would have done' particularly when describing his inspection of the tyres on the prime mover and the trailers, and his error as to the age of the tyres at the time of the accident.
It was not suggested on behalf of the second defendant that Mr Callow's evidence that he and Mr Haua changed over driving responsibilities five hours after they had left Port Hedland should not be accepted. It follows that Mr Callow's evidence that he and Mr Haua left Port Hedland at 7.30 pm or 8.00 pm, or his evidence that the driver changeover occurred at about 2.30 am, must be incorrect. Either the departure time from Port Hedland was later than 7.30 pm or 8.00 pm, or the driver changeover occurred earlier than 2.30 am.
The inaccuracy in this aspect of Mr Callow's evidence is not, in my view, of significance. It is an error in detail which does not cause me to doubt the reliability of his evidence generally.
The same can be said, in my view, for his inaccurate evidence concerning the age of the tyres at the time of the accident. The fact that some five years after the accident Mr Callow mistakenly recollects that the steer tyres had been placed on the prime mover two weeks prior to the accident as opposed to five months prior to the accident is not in my view a mistake of such a nature, even taken in conjunction with his mistake as to timing, that it provides a reason for doubting the reliability of his evidence generally. I note in this regard that it was not suggested on behalf of the second defendant that Mr Callow's mistaken recollection as to when the tyre was fitted may have in some way adversely impacted on the accuracy of his recollection of the level of the tyre's inflation at the time of the driver changeover.
In relation to the issue of reconstruction, it is the case as counsel for the second defendant pointed out that Mr Callow did during his evidence premise a number of his answers with the phrase 'would have'. This was particularly the case when he gave his evidence about his inspection of the tyres on the prime mover and the trailers.
I accept that Mr Callow, some five years after the relevant events, cannot possibly have an independent recollection of checking every one of the 76 tyres that were on the prime mover and the trailers individually. However, I do not think that this lessens the force of his evidence that he did, during the driver changeover, inspect the tyres on the prime mover and the trailers in the way that he described. It is clear that it was Mr Callow's routine practice, during every driver changeover, to check the tyres in the way he described. There is no reason to think that he did not do so during the last driver changeover before the accident. In addition, and as he said in his evidence, he had good reason for remembering that he did carry out his routine checks of the tyres during the changeover prior to the accident, namely that the accident itself occurred.
Another of the points made by counsel for the second defendant during his closing submissions in relation to Mr Callow's evidence was that Mr Callow's inspection of the tyres on the prime mover and the trailers at the time of the driver changeover must have at best been cursory. It was submitted that Mr Callow would only have been looking for, and would only have noticed, a tyre deflated to such an extent that it was 'flat' rather than merely under-inflated.
Mr Callow's evidence was that he would kick a tyre or tap it with the metal bar to make sure that it was not 'flat', that if he tapped a tyre with a metal bar and could see flex in the side wall this indicated that the tyre had either deflated or was low on pressure and that if he detected that a tyre was 'deflated or low on pressure' he would change the tyre. He also said that with respect to the steer tyres he could tell from the height of the side wall if the tyre was 'deflated'. Given this evidence and Mr Callow's experience as a long distance truck driver, I do not accept the proposition that all that Mr Callow would have been looking for or would have noticed was a flat tyre. However, in light of Mr Callow's evidence as to the way in which he performed his inspection of the tyres on the prime mover and the trailers, including of course the tyre, and bearing in mind that it was the early hours of the morning with the result that his ability to conduct a visual inspection was dependent on his use of a high‑powered torch, I do accept that Mr Callow would not have been able to visually detect anything other than a significant amount of under‑inflation in a tyre. More specifically, so far as the steer tyres on the prime mover are concerned, I find that Mr Callow's observations of the height of the side wall of the tyre would not have enabled him to detect anything other than a significant amount of under-inflation.
In summary, I am satisfied that Mr Callow was a reliable witness. I am satisfied that during the driver changeover prior to the accident Mr Callow did inspect the steer tyres and the drive tyres on the prime mover, and the tyres on the trailers in the way that he described. I am satisfied that in carrying out this inspection he did not notice any significant under-inflation or consequential overheating of any of the tyres. I am satisfied that if any of the tyres on the prime mover and the trailers, including of course the tyre, was significantly under-inflated Mr Callow would have noticed this and changed the tyre.
I am also satisfied on the basis of Mr Callow's evidence that he did not at any time during the trip to Port Hedland, or during the trip from Port Hedland prior to the accident, notice anything untoward about the steering of the prime mover. I am satisfied that if there was anything untoward about the steering of the prime mover Mr Callow would have noticed this. To put it another way, I find that at no stage during the journey was the prime mover's steering pulling to the left or the right.
I note in this context that Mr Spanswick in his evidence, to which I will refer in detail in due course, said that although an under-inflated tyre will cause a pull in the steering due to the additional rolling resistance created by the under‑inflation, whether a driver will detect the steering pull depends on the experience of the driver. Mr Spanswick said that 'all he can say' is that there will be drag but that if the loss of pressure occurs slowly over a period of time the driver tends to compensate for this. Mr Spanswick, in giving this evidence, acknowledged that he has no experience in driving prime movers.
As is apparent from my stated finding that at no stage during the trip to and from Port Hedland was the steering on the prime mover pulling, I do not accept this aspect of Mr Spanswick's evidence. In my view a driver in Mr Callow's position, who had been driving the prime mover over long distances for 12 months (and in excess of 7,600 km a week for a period of some six months prior to the accident) would, while driving on a long straight stretch of highway in the north‑west of this State, notice if the steering on the prime mover was pulling to the right or the left even if the development of the pull occurred slowly over time as a result of a slowly deflating steer tyre.
I am also satisfied on the basis of Mr Callow's evidence that the tyre did not experience any significant impact with any foreign object on the road or by reason of any road defect, during the journey to and from Port Hedland prior to the accident.

The expert witnesses

I turn to the evidence of the three expert witnesses. The evidence of each of the expert witnesses was comprised of their respective reports supplemented by oral evidence.
Each of the expert witnesses gave their evidence, at least in part, by reference to photographs of remnants of the tyre, the remnants being a section of the tread belt package and the carcass. Indeed, the expert evidence of Mr Southwell and Mr Spanswick was based solely on photographs of the remnants of the tyre because by the time that they were asked to provide their expert reports the tread belt package and the carcass had either been lost or disposed of. The tread belt package had been thrown away by Mr Mackinlay and the carcass, as I have already indicated, disappeared after it had been left by Mr Makepeace at the premises of Get‑A‑Grip Tyres.
Most of the photographs that were relied upon by Mr Mackinlay, Mr Southwell and Mr Spanswick in giving their evidence were taken by Mr Mackinlay at the time of his inspection of the tyre remnants. However, some of the photographs relied upon were taken by Mr Makepeace when he inspected the tyre's carcass.
A number of the photographs which were referred to by Mr Mackinlay, Mr Southwell and Mr Spanswick when they gave their evidence are crucial to an understanding of their evidence. I have referred to these photographs in my below summary of the evidence of each of these witnesses. In doing so I have used the photograph's exhibit number. Further, I have attached colour copies of the photographs in question to this judgment. The attached photographs are marked with their exhibit numbers.

Robert Mackinlay

Mr Mackinlay is currently employed by Goodyear Dunlop Tyres Australia as a Senior Customer Engineer. He also works as an independent consultant in the tyre industry. As part of his consultancy work he carries out investigations into tyre failures.
Mr Mackinlay is an Associate Member of the Society of Automotive Engineers. He is also a member by examination of the Institute of Automotive Mechanical Engineers. He has allowed his registration as an examiner with the Institute to lapse due to time constraints.
Mr Mackinlay has no tertiary qualifications. He has no tertiary training in physics or material science.
Mr Mackinlay has over 35 years' experience in the automotive industry. He has spent his last 30 years specialising in the tyre industry. He has 35 years' experience in examining tyres.
For five years Mr Mackinlay was employed by South Pacific Tyres in the company's Melbourne factory as the Regional Product Analyst for Western Australia. South Pacific Tyres was the manufacturer of Goodyear, Dunlop, and Olympic brand tyres as well as other brands of tyre.
Part of Mr Mackinlay's work as the Regional Product Analyst for South Pacific Tyres was to analyse failed tyres. All of the tyres that were produced and imported and which had failed prematurely in Western Australia would come through a collection centre in Perth where the tyres were analysed either by cutting sections, measuring components, or doing whatever else was necessary to determine the cause of the failure.
After his five years at South Pacific Tyres Mr Mackinlay was employed for nine years by Goodyear Tyre and Rubber Company as the State Service Manager/Regional Product Analyst. As the Regional Product Analyst he performed the same role as he had been performing for South Pacific Tyres.
Mr Mackinlay has previously given expert evidence in cases involving tyre failures. He has given expert evidence on three or four occasions, with the last of these occasions being in the late 1990s or early 2000s.
In 2009 Mr Mackinlay was asked by McLarens Young International to inspect the tyre and prepare a report. In response to this request Mr Mackinlay inspected the remnants of the tyre and prepared a report dated 8 November 2009.
On 2 June 2014 Mr Mackinlay received a request from the plaintiff's solicitors to prepare a further report in response to a report prepared by Mr Spanswick. In response to this request Mr Mackinlay prepared a further report dated 2 July 2014.
In his report dated 8 November 2009 Mr Mackinlay made the following statements and expressed the following opinions and conclusions:
1.The tyre had an original tread depth of 17 mm. The tread depth readings taken across the tread at 180 degrees to the site of primary failure were 5.4 mm (tyre shoulder), 6.2 mm (tyre centre line), 6.2 mm (tyre centre line) and 6.4 mm (tyre shoulder). Accordingly the tyre was approximately 65% worn.
2.The tyre was of a size, load rating and speed rating suitable for the prime mover.
3.The tyre failed due to the separation of the steel belt package and tread unit from the carcass causing total detachment of the tread and belts. The majority of the number 1 belt was missing from the tread belt package and the carcass. The belt separated from both surfaces and was lost during the ensuing accident.
4.The tyre was worn flat and evenly, indicating correct steering geometry alignment and operation at the correct pressures for the loads carried (exhibit 7.3). There was mild shoulder wear which is quite normal for this type of tyre in steer applications.
5.The inner liner showed no sign of excessive heat build‑up.
6.There were polished areas of the belt package, carcass and shoulder rubber which was caused by the separated components rubbing together during service (exhibits 7.4 and 7.5). This indicates the separation existed for some time prior to failure. The polished areas extended for the full circumference of the tyre.
7.There was a small tread penetration close to the primary area of failure that was confined to the tread rubber only (exhibit 7.2). It did not penetrate into the air chamber. There were also two other small or shallow penetrations that did not penetrate through the belt package.
8.The shoulder rubber at the primary failure area was excessively worn exposing the under tread through the shoulder ribs (exhibit 7.1). This excessive wear was caused by poor support given by the separated components beneath.
9.There were no signs of service abuse such as prolonged operation at low inflation pressures or overloading.
10.The conclusion that the separation of the steel belt package and the tread unit from the carcass pre-existed tyre failure for some time is supported not only by the polishing of the belt package, carcass and shoulder rubber which existed throughout the full circumference of the tyre, but also by the localised shoulder wear that exposed the under tread compound at the site of primary failure.
11.The separation was not the result of localised impact. Localised impact would result in localised separation of tread components directly around the impacted area. The tyre had evidence of pre‑existing separation throughout its full circumference which eliminates this theory.
12.Separation caused by operation at pressures too low for the loads being carried can be ruled out because this would result in excessive wear on both shoulders, evidence of excessive heat build-up on the inner liner and erosion or under cutting of the bead chafer area where contact is made with the wheel flange. These conditions were not evident on the tyre.
13.Separation caused by steering misalignment would result in wear patterns that would clearly be seen across the surface of the tread.
14.If the tyre had been fractured or cut during service causing total deflation there would be insufficient time for such extensive polishing to take place in the period between travelling at 100 kph and coming to a complete stop. Similarly, if the tyre suffered a penetration causing slow loss of air pressure leading to failure, there would be evidence of severe heat build‑up and bead erosion/undercutting caused by over deflection of the tyre carcass.
15.The tyre failed due to poor adhesion of the carcass to belt interface which allowed the components to separate from each other around the circumference of the tyre during normal service. This resulted in separation leading to total detachment of the tread and belt package from the tyre carcass.

In his report dated 2 July 2014 Mr Mackinlay, as already mentioned, responded to a number of the statements and opinions expressed by Mr Spanswick in his report. In responding to Mr Spanswick's report, Mr Mackinlay in essence repeated and to some extent expanded upon the opinions and conclusions expressed in his earlier report. It is not necessary to detail what Mr Mackinlay said in his second report save for pointing out that he made the following additional statements;
1.If the tyre had suffered a deep seated impact causing pressure loss and excessive temperature build up the evidence of this would be seen on the inner liner in the high flex area of the upper side wall. There was no heat induced inner liner wrinkles or creasing.
2.There was no evidence of rubber reversion, that is, a sticky, tacky or in some cases crumbly condition of the carcass or tread rubber caused by excessive heat build-up. This indicates that excessive heat build-up was not the primary cause of the tyre's failure.
3.During the tyre's failure process higher than normal tyre temperatures would have been reached due to the frictional effects of the separated surfaces rubbing together. However, the frictional effects have not lasted sufficiently long to initiate rubber reversion.
4.The photographs forming part of his first report adequately show the contrast between polished sections of rubber where the separated internal surfaces have rubbed together and sections of the rubber that have been torn apart during the tyre's failure.
5.As the carcass to belt package separation existed for the full circumference of the tyre, ride disturbance in the form of vibration or thumping would be less evident and more difficult to detect, even by an experienced driver, than would be the case if localised separation had occurred caused, for example, by an impact fracture.
6.If a tread penetration was the cause of the separation the separation would be localised to that region and would be more likely to cause tread to belt separation or between belt separation. The tyre failed due to carcass to number 1 belt separation.
7.The argument is not that the tyre was excessively hot when it failed. It almost certainly was. It is the cause of the excessive heat build‑up that is in question.
8.A tyre operating well below its normal operating pressure would cause a pull in the steering due to the additional rolling resistance of the under inflated tyre. The truck driver should be able to detect this condition.
In examination‑in‑chief Mr Mackinlay gave the following additional evidence by way of amplification of the contents of his reports.
As a result of the work that he performed for South Pacific Tyres and Goodyear Tyre and Rubber Company he gained an intimate knowledge of how tyres were manufactured and what components went into them. He had to be familiar with the whole range of constructions for passenger tyres through to agricultural tyres and then later through to mining tyres. He has seen the manufacturing process being undertaken.
He inspected the tyre at the premises of McLarens Young International in Victoria Park. When he inspected the tyre it consisted of the recovered section of the tyre's tread and the carcass. The tread was separate from the carcass. There were also a 'few smaller bits and pieces remaining'.
He took possession of the carcass and the tread. He took the carcass and tread components back to his premises and inspected them to determine whether the failure of the tyre was caused by a road hazard or some other mechanism. As a result of his inspection he decided that there was nothing that he could find that 'could determine' that the tyre had failed due to some form of road hazard or maintenance issue.
The tyre failed due to separation of the steel belt package and tread unit from the carcass, causing total detachment of the tread and belts. The number 1 belt was totally detached from both the carcass and the tread belt package. The number 1 belt had left evidence on the carcass at the belt to carcass interface in the form of polished rubber and steel where frictional effects had, between the two surfaces rubbing together, caused the polishing and spread around the tyre so that the full circumference of the number 1 belt had become separated from the carcass. The same evidence existed between the number 1 belt and the number 2 belt where the two belts were supposed to be adhered to each other. The same evidence of frictional effects occurred there.
The number 1 belt was missing. The number 1 belt should have been attached to the carcass and to the number 2 belt.
He had the number 2 belt but not the number 1 belt. He had some pieces of the number 1 belt but the majority of it was missing.
He measured the tread depth of the tyre by using a digital depth meter designed specifically for measuring tread depth on tyres.
The inner liner of the tyre showed no sign of excessive heat build‑up. When a tyre is run overloaded or while significantly under-inflated, the deflection of the side wall, because of either the high weight or low pressure, leaves marks on the inner liner of the tyre. The inner liner is designed to retain the air pressure within the air chamber. Normally if a tyre is run for a long period under-inflated the inner liner will show signs of excessive heat build-up such as creasing or blistering. No such signs existed. In addition, if a tyre is overloaded or significantly under‑inflated with the result that it over deflects the inner liner becomes quite discoloured. It becomes very dark around the high flex area.
There was a section of tread that had a penetration (exhibit 7.2). The penetration did not extend through the steel belts that were still attached to that section of tread. He looked at the underside of the tread and this is how he determined that the penetration did not go any further than just through the tread rubber.
As is revealed by exhibit 7.1, the shoulder rubber in the primary failure area, where the tread split apart, had worn excessively. The under tread had been exposed. The under tread is a different compound to the tread rubber. The under tread is a cushioning device to prevent or reduce road shock being transmitted through to the carcass. It is a slightly different colour to the tread rubber.
The section of the steel belt shown in exhibit 7.4 had a very polished appearance at the belt edge. This indicates that belt edge separation had occurred.
The polishing that could be seen on the underside of the belt that was still attached to the portion of the tread (exhibit 7.5) occurred through frictional effects on the underside of the belt. The polishing could be seen across the entire surface of the steel belt. It was not confined solely to the belt edge. It ran between the belts.
It can be seen from exhibit 7.6 which shows a section of the underside of the tread belt package, that the radial cords have been torn from that section in one place but obliterated in another place closer to the edge of the tread. The area in which the radial cords have been obliterated is quite polished. The cords have been obliterated by the looseness of that section; by the movement of the components. This indicates that there was very poor adhesion between the carcass cords and the number 1 steel belt.
Exhibit 7.7 shows a section of the rubber which was between the steel belts that remained attached to the tread. The rubber had a polished appearance. The polished appearance was produced by the surfaces rubbing together which indicates that the surfaces were separated from each other.
Exhibit 7.8 was taken 180 degrees around the tyre from the site of primary failure. This again shows the radial carcass cord indentations in the rubber left by the cords having been worn away by the frictional effects of the loose surfaces rubbing together.
Exhibits 7.9 and 7.10 show a section of the tyre's carcass with all the main body of the tyre. The radial ply cords are clearly visible. At the edge of the carcass which is closest to the small section of visible tread the tyre's cushion gum (which is another term for rubber compound) can be seen. The cushion gum is very smooth and polished. This indicates that there had been separation for some time.
Exhibit 7.11 shows the carcass cords and the cushion gum that coats them. The photograph shows the difference between a polished separated section of the rubber components and a torn non-separated section.
The separation did not just exist around one shoulder of the tyre. This is shown by exhibit 7.12. The separation actually existed across the carcass from shoulder to shoulder so that underneath the tread the tyre was separated for its full width.
Exhibit 7.13 shows a section of steel belts still attached to the tread. The photograph demonstrates that separation had occurred from shoulder to shoulder.
If the tyre had been operated for a considerable period at a pressure too low for its application then the tyre would not be as evenly worn across the surface as it was.
The excessive wearing of the shoulder rib at the site of primary failure where the under tread has been exposed was likely due to the lack of support given by the separated carcass directly beneath it. That could occur in a relatively short period of time.
The polishing of the carcass shoulder and the belt materials was not just around the circumference of the tyre. It was across the tyre as well.
He does not believe that the separation was the result of a localised impact. Localised impact can cause separation to develop in the area of the impact. However, the separation will be localised. It will not extend for the full circumference of the tyre. That type of deep‑seated impact would also cause the tyre to lose air pressure ultimately. There is no sign that the tyre had slowly lost air pressure.
If the tyre had been fractured or cut during service and if a penetration had occurred, the tyre would not have had time to develop the evidence of all the extensive separation that exists within the carcass. There would simply not be enough time for that to occur. If the tyre was losing air slowly and over a period of several hundred kilometres with the result that it had lost sufficient air to cause the casing to break up, there would be evidence of this in the form of excessive heat within the carcass. There was no sign of excessive heat.
In his opinion there was poor adhesion of the number 1 belt to the carcass. This resulted in the initiation of separation deep within the tyre that developed over a period of time. A period of time could be weeks, months or days. However, he believes that in this particular case it was a long rather than a short period of time.
The poor adhesion would have been present at the time of the sale of the tyre. However, it would not at that point have developed into any separation. There would have been a weakness in the structure of the tyre that over a period of time developed and lead to the separation. The weakness would have been present at the time of sale.
In cross‑examination Mr Mackinlay maintained the opinions that he had expressed in his reports and during his oral evidence-in-chief. He also gave the following additional evidence.
The tyre was 65% worn. It was more than half worn. However, it was not worn out.
There were multiple fractures in the side wall of the tyre. The side wall of the tyre was totally fractured around each circumference on each side of the tread.
The tread belt package which he inspected was not left in a complete circle. It had torn across its width.
The inner lining did not come out of the tyre. The inner liner was intact and in the carcass.
He did not take a photograph of the inner liner, of the entire remnant of the tread belt package, of the underside of the tread belt package where the penetration point was, or of all of the carcass. He did not take a photograph of the tread and belt package refitted to the carcass to see how they compared. He did not take a photograph showing where the tread belt package had been torn across its width.
He took photographs of the sections of the shoulder which remained. The shoulder was not intact all the way around the tyre's carcass. Sections of the shoulder would have been torn off with the tread. So looking at the tyre's carcass there was a section of shoulder, then the torn remnants of the carcass, then perhaps another section of shoulder. Sometimes the sections that remained on the carcass were not even recognisable as part of the shoulder. They were just a vertical section of rubber rather than the horizontal piece that normally comes into contact with the road.
The photographs that he took do not reveal the full extent of the damage that was shown by the remnants of the tyre which he examined.
He did not have all of the tread belt package. Part of it was missing. A penetration could have occurred in the part of the tread belt package that was missing.
He has no personal knowledge of any specific conditions that the tyre may have experienced that might have affected its condition such as running over something at some point. However, he can tell from the condition of the tread whether the tyre had been maintained correctly or whether it had been used in severe off road or unmade road conditions, or whether it had been used on bitumen for the majority of its service life.
The shoulders of the tyre are worn slightly more than the centre of the tyre. This is shown by exhibit 7.3. One condition that can cause this is where a tyre is driven and operated in an under-inflated state. There are other conditions that can cause this.
The area of excessive wear on the shoulder of the tyre is cigar shaped. The cigar shape could be quite easily created because the shoulder of the tyre is worn across its corner and as a result creates a cigar shape externally.
Exhibit 11.6 shows part of the carcass of the tyre with some of the shoulder and side wall of the tyre attached. Three cigar shapes can be seen on the outer edge of the shoulder rib. The cigar shapes are not on the very edge of the shoulder where the shoulder turns down to the side wall. However, they are on the very edge of the part of the tyre that comes into contact with the side wall. This is another example of excessive wear on the shoulder of the tyre. The cigar shapes are where the rubber has worn down to the under tread.
It would be his expectation that in ordinary service and operation the left steer tyre of the prime mover would be operating under similar conditions to the right steer tyre, both as to operation and servicing.
He did not see the right‑hand steer tyre rim. He agrees that a rim can be an explanation for a tyre failure. Once he had looked at the tyre and determined his opinion as to what happened, it was not relevant for him to look at the rim.
He does not agree that the separation damage that he saw might be expected when a tyre has been driven in an under-inflated state and has overheated. The tyre had no signs of excessive heat build‑up. When a tyre has been under-inflated it fails in a completely different manner to the manner in which the tyre failed. Normally what will happen in a case of under-inflation is the side wall will fatigue and will break up. Certainly the tread breaks away from the carcass, but the tyre literally falls apart; it does not separate. The components do not separate as such.
There were fractures in the shoulder of the tyre which ran radially, that is, perpendicular to the shoulder wall. The radial fractures would have occurred during the failure event. At the point in time that the tread parted company with the carcass, there would have been a break or a fracture which resulted in the tread and belt package separating from the side wall of the tyre.
All of the damage to the tyre does not suggest overheating. The explanation for the total destruction of the tyre is that the number 1 belt separated from the carcass and was loose inside the tyre. During service it became loose from number 2 belt to the point where it was weakened enough to be torn free. There may have been pockets of separation but the pockets of separation were extensive and for the full circumference of the tyre. They were not just on one shoulder. They were across the width of the tyre.
The polishing was evident throughout the full circumference of the tyre. The photographs that he took may show localised areas of polishing. However, all he did was take photographs of the clearest areas of polishing or the easiest areas of polishing to get at.
The number 1 belt was separated from the carcass and separated from the number 2 belt. It was totally detached and not returned with the remainder of the tyre. The number 1 belt would have been attached in some places around its circumference, but it became loose enough for the tyre to lose its integrity and for it to fail. In doing so the belt became totally detached and lost.
He would hope that the areas of the tyre shown in the photographs that he had taken could not be explained as arising from the use of the tyre over time for over 170,000 km. If this were the case the tyre would fail in normal use. The failure in this case has occurred where there was nothing external, no damage, no poor maintenance and no loss of air pressure. He knows this from having looked at literally thousands of tyres that have failed in this manner.
The mileage on this tyre is not 'really material'. The mileage on this sort of tyre can vary from somewhere between 80,000 and 150,000 km, or in this case 170,000 km, depending on the type of service. The best conditions for returning high mileage from steer tyres are those which existed in the present case, that is, a long‑haul truck which is going on straight roads for very long distances. Steer tyres wear when they are used under continual or frequent braking and when they are steering around bends. On the long straight roads in the north of this state the amount of turning and the amount of loads on the steer tyres are actually quite benign.
A range of 80,000 km to 150,000 km would be common for a steer tyre. This would be a reasonable range to expect the steer tyre to last.
The fact that the tyre only failed after 170,000 km of use does not by itself make it highly unlikely that there was a defect in manufacturing or materials. It depends on how long it takes for the defect to make itself apparent. If there is a defect in manufacturing or materials a failure can occur sooner than 170,000 km or it may not occur sooner. It depends on what the defect is.
All tyres are individually made although they may share a certain batch of tread rubber or a certain batch of side wall material or carcass ply. He would not necessarily expect that if a tyre failure was the result of a manufacturing defect of some sort, the manufacturing defect would be apparent by reason of similar failures in other tyres. The majority of tyres have a certain amount of human input. One tyre can be made incorrectly and then the following tyre made correctly. People do their best to make sure that all the tyres are put together properly but sometimes this does not happen.
He has no formal training in the materials and adhesives and processes that are entailed in tyre manufacture. The training that he has in his area was obtained under the corporate engineers at Goodyear. He understands the processes that are required for adhesion of a tread belt package to a tyre carcass very well. He understands the requirements of the materials that are used within that process.
He accepts that he has not identified the nature of adhesive that was used for the tyre. The reason for this is that the rubber tends to self‑amalgamate. When the rubber is assembled into a tyre the raw rubber compounds are pushed together under extreme pressure and they amalgamate and they cure. It is a vulcanizing process under extreme heat and pressure. That is what bonds them. Sometimes rubber can be left on the factory floor for a longer period than is necessary with the result that it collects an oxide layer which prevents good adhesion. Sometimes those components are built into tyres and down the track they can come apart. They should be refreshed with a solvent to take away or to neutralise the oxidisation and allow them to bond properly together. There is nothing that he can pinpoint as being the cause of the problem. However, he can eliminate the penetration causing slow air loss type of failure which in turn points to a manufacturing defect.

Second, it was submitted on behalf of the second defendant that the fact that neither Mr Mackinlay nor Mr Southwell could identify a particular departure from the appropriate manufacturing or material standards for the tyre, or identify the particular defect in the manufacturing process or materials used which led to the initial separation, meant that their opinion that the defect was a manufacturing or materials defect was speculative. I do not agree. As a matter of logic it is not necessary to identify a specific problem that occurred during the manufacturing process of a tyre, or a specific deficiency in the materials used in the manufacturing process, in order to come to the conclusion that a defect which subsequently appeared in the tyre was the result of some unidentifiable defect in the manufacturing process or the materials used. If all other possible causes of the initial separation are excluded it is not speculative to conclude that the initial separation was the result of a manufacturing or materials defect.
Third, it was argued on behalf of the second defendant that Mr Mackinlay did not arrange or undertake 'scientific testing and analysis' of the tyre remnants. Precisely what 'scientific testing and analysis' would have been appropriate in the circumstances was never clearly articulated by the second defendant's counsel either in cross‑examination or during his closing address. Indeed, when it was put to Mr Southwell in cross‑examination that 'no‑one did any scientific testing or analysis of the remnants' Mr Southwell responded that he was 'not sure what counsel meant by "scientific" ' (ts 119). It was then put to Mr Southwell that no microscopic examination was done. Mr Southwell agreed with this although he was not then further questioned about what benefits microscopic examination might have provided. It is the case that during examination‑in‑chief Mr Southwell referred to tyres that had operated in excess of 100 degrees Celsius being removed, cut up and inspected for evidence of thermal degradation. However, this evidence without more does not provide a basis for concluding that 'scientific testing or analysis' of the tyre would have resulted in some discernible benefit when it came to identifying the cause of the initial separation in the tyre. In these circumstances the fact that the tyre was not submitted for scientific testing and analysis, whatever that might mean, does not in my view provide a reason for not relying on the opinion evidence given by Mr Mackinlay and Mr Southwell.
Fourth, it was in effect argued on behalf of the second defendant that Mr Mackinlay at the time of carrying out his inspection did not have all of the remnants of the tyre and that as a consequence his opinion and the opinion of Mr Southwell was based on inadequate information. It is of course the position that parts of the tyre were never located including the number 1 belt and a portion of the tread belt package.
There is no question that all of the expert witnesses would have liked to have had access to more of the remnants of the tyre, or to photographs of more of the remnants of the tyre, as the case may be. However, neither Mr Mackinlay nor Mr Southwell expressed any concerns about their ability to express an opinion based on the information which they had. Similarly, Mr Spanswick did not appear to have any reservations about expressing his opinions on the available information. In these circumstances the fact that Mr Mackinlay and Mr Southwell did not have access to all of the remnants of the tyre is not something which causes me to have reservations about the reliability of their opinion evidence.
I note further in this context that during cross‑examination of Mr Mackinlay and Mr Southwell it was suggested to them, as is apparent from my above summary of their evidence, that if the tyre had been penetrated where the tread belt package had torn across its width, or in the area of the tread belt package that was missing, there would be no way of discovering that a penetration had occurred in this area of the tyre. Both Mr Mackinlay and Mr Southwell not surprisingly agreed with this proposition although they of course disputed, for the reasons which they gave, that the cause of the tyre's failure was a puncture wherever the penetration may have occurred. In any event, given that Mr Spanswick ultimately accepted that on the evidence any decrease in pressure was not due to a puncture, the issue of whether there could have been a penetration where the tread belt package had torn across its width, or in the area of the tread belt package that was missing, would appear to be of little significance.
Fifth, it was submitted on behalf of the second defendant that Mr Mackinlay and Mr Southwell had not referred in their reports to the distance travelled by the tyre or the expected life of a tyre measured in terms of distance travelled. It was submitted, in effect, that this failure impacted adversely on the weight that could be placed on their opinion evidence. Inherent in this submission is the assumption that the distance travelled by the tyre or the distance which the tyre would ordinarily be expected to travel is relevant to the determination of the cause of the initial separation.
It is true that neither Mr Mackinlay nor Mr Southwell referred in their reports to the distance that had been travelled by the tyre. However, the reason for this as is apparent from their evidence is that they did not consider the distance travelled, or the distance which the tyre would ordinarily be expected to travel, to be of any particular significance when it came to determining the cause of the initial separation which led to the ultimate total failure of the tyre. Accordingly, the mere fact that neither of them made reference in their reports to the distance travelled by the tyre, or the distance which the tyre would ordinarily be expected to travel, is not something which in my view of itself provides a basis for doubting the reliability of their opinion evidence. Of course, whether or not the distance travelled by the tyre or the distance which the tyre would ordinarily be expected to travel is relevant to the issue of what caused the initial separation is a different question.
Sixth, it was contended on behalf of the second defendant that there were inconsistencies between the evidence of Mr Mackinlay and Mr Southwell, and that these inconsistences were such as to indicate that the evidence of each of them as to the cause of the tyre's failure should not be accepted, or were such as to at least create some doubt about the reliability of their evidence as to the cause of the tyre's failure. One of the inconsistencies identified by the second defendant relates to whether the tyre was excessively hot when it failed. Mr Mackinlay's evidence was that the tyre was 'almost certainly excessively hot when it failed' whereas Mr Southwell's evidence was that he did not, in the absence of evidence to suggest that the tyre was excessively hot, accept that the tyre was excessively hot at the time of its failure. The second of the identified inconsistencies, to which I have already referred, relates to what occurred between the initial separation and the catastrophic failure of the tyre. Mr Mackinlay, as I have already noted, considered that there was a period of time during which there was a total or substantial separation between the number 1 belt and the remainder of the tyre's components prior to the final catastrophic failure. Mr Southwell, however, did not agree that there had for some time prior to the tyre's final failure been a total or substantial separation as described by Mr Mackinlay. In this context, and as I have already referred to in my summary of his evidence, Mr Southwell did not agree that some of the photographs which Mr Mackinlay considered revealed extensive polishing consistent with a period of total or substantial separation (exhibits 7.4, 7.5 and 7.6) did in fact reveal polishing. Mr Southwell's view was that what was shown in the photographs was more consistent with a tearing caused by the final failure of the tyre.
There may well be circumstances in which inconsistencies between the reasoning of expert witnesses called by a party which has led those witnesses to arrive at the same ultimate opinion will be such as to cast doubt on the validity of the ultimately expressed opinion. However, in my view this is not such a case. At the end of the day both Mr Mackinlay and Mr Southwell were of the opinion that there was an initial separation caused by a manufacturing or materials defect and that it was the initial separation which resulted in the eventual catastrophic failure of the tyre. The fact they hold differing views about whether there was, following the initial separation, a period of total or substantial separation of the number 1 belt from the other components of the tyre, or whether the tyre was excessively hot at the actual moment of the failure, is not something which in my view is of such significance that it impacts upon the likelihood or otherwise of their commonly held opinion as to the cause of the initial separation being correct.
Seventh, and with specific reference to Mr Mackinlay, it was pointed out on behalf of the second defendant that Mr Mackinlay did not take photographs of all of the areas of the remnants of the tyre which he inspected and had thrown the remnant of the tread belt package away. Specifically, it was pointed out that Mr Mackinlay did not take photographs of the entirety of the remnant of the tread belt package, of the entirety of the carcass, or of the entirety of the inner lining. It was submitted that Mr Mackinlay's failure to take more extensive photographs demonstrated significant deficiencies in the 'way the work was done in terms of collecting evidence and recording it for the purpose of explaining to someone a view about what had happened'.
Mr Mackinlay should not have disposed of the remnant of the tread belt package. Further, there is no question that Mr Mackinlay did not take photographs of every piece or portion of the remnants of the tyre that he looked at. It would have been preferable if he had done so, although this is easy to say with the benefit of hindsight. However, the point which needs to be made in this context is that save for Mr Mackinlay's evidence that particular parts of the tyre shown in a number of the photographs demonstrated polishing as opposed to tearing, there was at no stage any challenge to the evidence given by Mr Mackinlay as to what he observed when he inspected the tyre. In particular, Mr Mackinlay's evidence as to his observations of the inner liner of the tyre were not challenged. Indeed, as is apparent from my above summary of Mr Spanswick's evidence, his view was that Mr Mackinlay's approach had been 'entirely professional' (ts 218). In these circumstances I do not consider that the approach which Mr Mackinlay took to his inspection of the tyre and the recording of his observations provides a basis for taking an adverse view of the reliability of his opinion evidence, or an adverse view of the reliability of the opinion evidence of either Mr Southwell or Mr Spanswick to the extent that they based their opinions on Mr Mackinlay's reported observations.
Eighth, with respect to Mr Southwell it was submitted on behalf of the second defendant that he had during the course of his evidence accepted that his conclusions could 'possibly be criticised as being largely speculative'. This submission was based on the following exchange which occurred during Mr Southwell's cross‑examination (ts 119):
I've suggested to you in terms of not inspecting physical evidence that you were actually in a worse position than Mr Makepeace to the extent that you would refer to his conclusions or those of Mr Spanswick as being largely speculative, that's a criticism that can be equally directed at you, isn't it? --- Possibly, yes
Mr Southwell's answer 'possibly yes' must, of course, be viewed against the background of the remainder of his extensive evidence and in particular the degree of certainty with which he expressed his conclusions on the basis of the information that had been put before him. When this is done it is, in my view, patently apparent that Mr Southwell's answer was not intended by him, and could not be read as some concession by him, that his opinion as to the cause of the tyre's failure was not based on the evidence before him or was for some other reason not soundly based. In short, I do not consider the answer which the second defendant draws attention to provides any basis for not placing reliance on Mr Southwell's evidence.
Ninth, it was submitted that Mr Southwell's evidence given in cross‑examination that the conclusions reached in the Carlson study were that tyres that have not been over deflected may exhibit bead compression grooves depending upon the design of the bead area and that tyres that are over deflected for a sufficiently long period of operation will, in all probability, exhibit compression grooves (ts 127 – 128), was incorrect and reflected a misunderstanding of the Carlson study. It was submitted that the study was concerned with tyres that had not been over deflected. It was submitted that although this may be 'just a minor matter', the fact that Mr Southwell has misunderstood the conclusions of the Carlson study may be relevant to whether or not I should 'feel inclined to rely on' Mr Southwell's references to studies.
A copy of the Carlson study paper was tendered during the trial. A reading of the paper reveals that the tyres the subject of the study were run in an under deflected state. The results of the study were that relatively large bead compression grooves developed in some of the tyres even though they had been run for low mileage and were not over deflected. The authors of the study concluded that the results established that the mere presence of compression grooves does not indicate over‑deflection, and that the fact that relatively large compression grooves are developed by non over‑deflected operation means that bead compression grooves are a very poor indicator of over-deflection.
On my reading of the Carlson study it does not provide support for the proposition that tyres that are over deflected for a sufficiently long period of operation will, in all probability, exhibit compression grooves (although a number of the studies referred to in the Carlson study do appear to support this proposition). It follows that I accept the submission made on behalf of the second defendant that at least part of the above referred to answer given by Mr Southwell during cross‑examination does reveal a misunderstanding of what the Carlson study establishes. Having said this it does, I think, need to be borne in mind that Mr Southwell, as is apparent from my summary of his second report, actually referred to the Carlson study not as direct support for the proposition that the absence of bead distortion in the tyre was indicative of the tyre not having been 'operated at less than optimal inflation pressure for a significant portion of its life', but rather to rebut the assertion made by Mr Spanswick in his report that 'tyres must be significantly under‑inflated (especially steer tyres) before bead erosion would become evident'. The statements that Mr Southwell made in his second report about what the Carlson study found were entirely correct. It was only when it was put to Mr Southwell in cross‑examination (ts 127) that the conclusion arrived at by the study was that 'there was not a good relationship between … groove compression evidence on the one hand and … a tyre being driving in an under-inflated state' that he gave the answer which is the subject of criticism. In these circumstances Mr Southwell's apparent partial misunderstanding of precisely what the Carlson study revealed is not in my view a matter of any real significance. This is particularly so when it is apparent from reading Mr Southwell's second report that it was the Schnuth study as opposed to the Carlson study which was expressly cited by Mr Southwell in support of the proposition that bead distortion is a likely result of sustained operation of a tyre at less than optimal inflation pressure.
Having addressed what may be referred to as the principal criticisms of the expert evidence adduced by the plaintiff the question which remains for my determination is whether the plaintiff has proved that the initial separation was caused by a manufacturing or materials defect, albeit one that is not specifically identifiable. I am of the view that it has. My reasons for arriving at this conclusion are as follows.
First, I was impressed with the way in which Mr Mackinlay and Mr Southwell gave their evidence. Mr Mackinlay and Mr Southwell both gave their evidence in what I perceived to be a careful, thoughtful and balanced fashion. They each made concessions where appropriate.
Mr Spanswick was also a careful and thoughtful witness. However, I did, with respect, gain the impression from watching and listening to him that he came to court with a degree of determination about defending his already adopted position. This was, in my view, to some extent demonstrated by Mr Spanswick's attempts, on at least two occasions during cross‑examination, to avoid answering important questions which were premised on a presumption by rebutting the presumption rather than dealing with the substance of the question (ts 210, 211 – 212).
Second, in my view the evidence given by both Mr Mackinlay and Mr Southwell as to why they did not consider the ultimate failure of the tyre to be the result of under-inflation and excessive heat consequential upon impact damage was well reasoned and logical. As is apparent from what I have already said, the fact that there was a difference of opinion between them as to whether there was a total separation of the number 1 belt from the carcass and the remainder of the tread belt package for some time prior to the tyre's final failure does not alter my view in this regard. Nonetheless, and although it is not strictly necessary for me to do so, I state for the purposes of certainty that in respect to this issue I prefer the evidence of Mr Southwell. Mr Southwell's evidence as to what is shown in the relevant photographs accords more closely with my assessment of what they reveal.
Third, in my view a crucial aspect of Mr Spanswick's evidence, namely that when the tyre failed it was excessively hot due to under‑inflation, does not sit comfortably with the evidence as to the appearance of the remnants of the tyre. This statement requires some further elaboration.
As I have already pointed out, Mr Spanswick's explanation for the cause of the tyre's failure was, in essence, that the tyre suffered impact damage, which in turn caused under-inflation, which in turn caused excessive heat build-up in the tyre, which in turn caused the catastrophic failure. Mr Spanswick's evidence was that the fact that the tyre was excessively hot at the time of its failure is shown by the gross damage and fracturing to the tyre's carcass.
Neither Mr Mackinlay nor Mr Southwell considered that the gross fracturing of the carcass was indicative of an excessive heat-build up in the tyre. Their view was that the damage to the carcass was the result of the catastrophic failure of the tyre. However, even if one accepts that the appearance of the carcass was consistent with excessive heat build‑up, other signs which the evidence establishes one would ordinarily expect to see in the remnants of the tyre if there was an excessive heat build‑up were not present. The carcass did not exhibit signs of rubber reversion caused by excessive heat build‑up; it was not sticky, tacky or crumbly. The inner liner did not exhibit signs of excessive heat build-up; it was not wrinkled, creased or discoloured.

When it came to explaining how it was that the carcass was not sticky, tacky or crumbly despite, on his view, the tyre having overheated, all Mr Spanswick could say was that the carcass has been hot but not hot enough to generate these sorts of features.
In relation to the absence of signs of excessive heat-build up in the inner liner, Mr Spanswick's evidence, at least initially, was that the carcass was so badly fractured that the inner liner would have broken up which in turn would have meant that a person would have been unlikely to find heating effects on the inner liner of the tyre. However, this explanation for the absence of signs of excessive heat build‑up was inconsistent with the evidence of Mr Mackinlay which was that when he inspected the inner liner it had not come out of the tyre and was intact and in the carcass. Thus later in his evidence, when he was asked to comment on the portion of Mr Mackinlay's second report in which Mr Mackinlay stated that if the tyre had suffered excessive heat build‑up it is 'highly likely that the evidence would be seen in the tyre, particularly on the inner liner in the form of creasing and discolouration', Mr Spanswick said that if the inner liner was closely examined and features of heat were not seen, then the tyre, while still hot, was not hot enough to produce those features.
In short, in my view the absence of signs of excessive heat build‑up on the tyre remnants (with the possible exception of the fractured condition of the carcass itself), casts doubt upon an essential plank of Mr Spanswick's reasoning, namely that the tyre was excessively hot due to under-inflation at the time of its failure. I did not find Mr Spanswick's explanations for the absence of these tell‑tale signs of overheating to be convincing.
Fourth, contrary to the evidence of Mr Spanswick I do not consider that the remnant of the tyre's tread belt package as shown in exhibit 7.3 demonstrates preferential shoulder wear. My view, consistently with the evidence of Mr Mackinlay and Mr Southwell, is that the remnant of the tread belt package shown in exhibit 7.3 demonstrates a flat wear profile. The relevance of this finding is that another basis for Mr Spanswick's opinion that the tyre had been run in an inadequately inflated condition, namely that the tyre demonstrated preferential shoulder wear, falls away.
As is apparent from my summary of his evidence Mr Spanswick, in arriving at his view that the tyre exhibited preferential shoulder wear, compared the remnant of the tread belt package shown in exhibit 7.3 with a photograph of a new tyre which he had found on the internet. His evidence was that when comparing the two photographs he could see that the new tyre had a square shoulder whereas the shoulders of the remnant tread of the tyre had a 'rounded off appearance'.
The internet photograph of the new tyre which Mr Spanswick used for comparison purposes was not adduced in evidence. It is not clear if the photograph was of a Sailun steel radial tyre. Leaving this issue aside, one of the exhibits that was tendered during the trial was a pamphlet advertising the Sailun steel radial tyre. The pamphlet has on it a picture of a new Sailun steel radial tyre. It is not obviously apparent to me from the picture that the shoulders of the new Sailun tyre are square as opposed to rounded off.
Even if it is accepted that the shoulders of a new Sailun steel radial tyre are square, as a matter of common sense the fact that the shoulders during the use of the tyre become 'rounded off' does not mean that the tyre has been subjected to uneven preferential wear. Indeed, it was not put to either Mr Mackinlay or Mr Southwell that rounded shoulders on a tyre are indicative of preferential wear.
In short, and as I have said, I do not accept the evidence of Mr Spanswick as to the wear profile of the tyre.
My final reason for finding that the plaintiff has proved this aspect of its case relates to Mr Spanswick's evidence that in order for the tyre to have generated the increase in temperature required to cause the total failure that occurred, the tyre would have to have been 'substantially under-inflated', that is, by approximately 50%.
If the tyre was deflated by approximately 50% there is no question that the steering on the prime mover would have been pulling to some extent to the right. However, and as I have previously stated, I am satisfied on the basis of Mr Callow's evidence that during the drive to and from Port Hedland and up until the point of the accident the steering of the prime mover was not pulling to the right or the left. It follows that I am also satisfied that the tyre was not during the period of time leading up to the tyre's catastrophic failure under-inflated by anything approaching 50%. To put it another way, I do not accept an essential factual premise which underpins Mr Spanswick's explanation for the cause of the tyre's final and catastrophic failure.
For the above reasons, viewed collectively, I prefer the opinion evidence as to the cause of the tyre's failure given by Mr Mackinlay and Mr Southwell to that of Mr Spanswick. It follows that I am satisfied that the plaintiff has proved on the balance of probabilities that the cause of the initial separation in the tyre which ultimately lead to the tyre's catastrophic failure was not impact damage but rather a latent defect in manufacturing or materials, the defect being poor adhesion between the tyre's carcass and the tyre's number 1 belt.

Alleged breach of implied terms?

I turn to the last of the four questions that I have posed for my determination, namely whether the second defendant, by selling the tyre with the latent manufacturing or materials defect, breached either or both of the sale contract's implied terms of fitness for purpose and merchantable quality.

Fitness for purpose

I have already found that by virtue of s 71(2) of the TPA and s 14(2) of the SGA, it was a term of the sale contract that the tyre was reasonably fit for use as a steer tyre on the prime mover. The question which remains is whether the manufacturing or materials defect which I have found existed in the tyre at the time of the sale contract means that the tyre was not reasonably fit for use as a steer tyre on the prime mover.
The essence of the second defendant's argument in relation to this issue is that the expected life of the tyre was in the range of 100,000 km to 150,000 km, that the tyre had travelled 170,000 km and that therefore the tyre, having lasted longer than what would ordinarily be expected, was clearly fit for the purpose for which it was sold at the time of the sale contract. Indeed, during the trial counsel for the second defendant was at pains to point out that a distance of 170,000 km was the equivalent of driving the prime mover 'more than four times around the circumference of the earth at the equator'.
The assertion that the expected life of the tyre was in the range of 100,000 km to 150,000 km was substantially supported by the evidence of Mr Preedy. In his evidence-in-chief Mr Preedy did say that prior to fitting the Sailun tyres to the prime mover he was getting anywhere from 150,000 km to about 230,000 km or 240,000 km out of a set of steer tyres depending on the trailers that were being pulled. However, in cross‑examination Mr Preedy appeared to revise this estimate downwards by saying that at the relevant time the expected life for a truck tyre of the sort that the plaintiff was using was 100,000 km to 150,000 km, although it could go beyond that range.
Mr Preedy also said in cross-examination that as at October 2009, when the kilometres that had been travelled by the steer tyres on the prime mover were just in excess of 170,000 km, he thought that the tyres had probably been a fairly decent steer tyre for the amount of money that he had paid for them.
At the end of his evidence and in response to a question asked by me, Mr Preedy said that prior to the time that he had the Sailun tyres fitted to the prime mover, the approximate range that he was getting out of steer tyres fitted to prime movers was 150,000 km to 180,000 km, depending on the tyre and the trailers that were being towed. He said that he would probably get one tyre that might only last for 90,000 km because the trailers that were being towed were not lined up correctly or because there was a mechanical fault with the truck that was not apparent. He said that in other cases he would get 200,000 km to 220,000 km out of a steer tyre. He said that this would depend on the brand of the tyre and the mechanical condition of the vehicle.
There is no question that up until the point of its catastrophic failure the tyre had performed well. It had travelled for a distance significantly in excess of that which might ordinarily be expected of a steer tyre. The plaintiff had done well out of the tyre. There is, therefore, a superficial attraction to the argument that the tyre cannot be said to not have been reasonably fit for its purpose as a steer tyre on the prime mover. Nonetheless, I do not think that the argument should be accepted.
There was no evidence adduced during the trial that manufacturers or retailers of steel belted radial tyres specify certain distances as constituting the safe or expected life of a tyre. Rather, the evidence adduced was to the effect that a steer tyre should remain useable until the depth of its tread is 2 mm to 3 mm. It is the amount of tread left on a tyre which is determinative of the life of a tyre. This is consistent with the fact that a tyre may remain properly useable for distances beyond that which tyres of that type ordinarily remain useable depending on the conditions in which the tyre is driven. Accordingly, it seems to me that if a tyre, due to a manufacturing or materials defect, fails in its normal use prior to the end of its life measured by reference to the remaining tread, then that tyre is not at the time of sale reasonably fit for its purpose.
This is what occurred in the present case. The tyre, on the evidence, still had approximately 30% of its useable life left. It was not past its 'use by' date. Accordingly, in my view the fact that the tyre catastrophically failed due to a manufacturing or materials defect prior to the end of its tread life means that at the time that it was sold it was not reasonably fit for its purpose as a steer tyre on the prime mover. To use the words of Mr Southwell, a tyre should not fall apart before it is worn out. This statement may not be 'scientific', a point which the second defendant's counsel was anxious to make during the trial. However, it is in my view a correct statement of the position.
For these reasons I find that the second defendant did, by selling the tyre, breach the condition of reasonable fitness for purpose implied into the sale contract by s 71(2) of the TPA and s 14(2) of the SGA.

Merchantable quality

I have found that by virtue of s 71(1) it was an implied term of the sale contract that the tyre was of merchantable quality.
The term 'merchantable quality' as used in s 71(1) was defined in s 66(2) of the TPA. The definition was in the following terms:
Goods of any kind are of merchantable quality within the meaning of this Division if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances.
The definition of merchantable quality contained in s 66(2) imported an objective test that is absent from the implied condition of fitness for purpose: Zuvela v Geiger [2007] WASCA 138 [34]. Under s 66(2) attention must first be directed to the purpose or purposes for which the goods are 'commonly bought' (as opposed to the particular consumer's subjective purpose in buying the goods), and secondly to whether the goods supplied are as fit for the purpose or purposes identified as is reasonable to expect having regard to the factors and circumstances listed: Lowe v Mack Trucks Australia Pty Ltd [2008] FCA 439 [31]. The words 'as is reasonable to expect' indicate that the issue of whether the goods supplied are as fit for the purpose or purposes identified having regard to the factors and circumstances listed must be considered from the perspective of a reasonable consumer placed in the position of the actual consumer: Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099; (2000) 102 FCR 307, 445; Lowe v Mack Trucks [34]. To put it another way, these words require the court to consider what is objectively reasonable to expect at the time of supply to the consumer: Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182, 205; Lowe v Mack Trucks [34].
The purpose for which the tyre was commonly bought was for use as a steer tyre on trucks. Moreover, in my view it was objectively reasonable at the time of purchase of the tyre for the plaintiff to expect, having regard to the purchase price of the tyre and the advice which it had received from the second defendant as to the suitability of the tyre for use as a steer tyre on its fleet of trucks, that the tyre would last and remain usable, under normal conditions of use, to the point that the tread depth of the tyre was 3 mm or less. It follows that in my opinion the tyre, at the time of the sale contract, having as it did the manufacturing or materials defect which resulted in the tyre catastrophically failing before it had reached the end of its usable life measured by reference to the tread depth, was not of merchantable quality. I therefore find that the tyre was sold in breach of the implied condition of merchantable quality.
I have already found that s 14(3) of the SGA did not operate so as to imply into the sale contract a term of merchantable quality. However, I note that if I had come to a different view I would, for the reasons I have expressed in relation to s 71(1) of the TPA, have found that the tyre had been sold in breach of the implied condition of merchantable quality. In my view the defect that I have found to exist was such that a reasonable buyer would take it into account and consequently reject the tyre: George Wills & Co Ltd v Davids Pty Ltd [1957] HCA 6; (1957) 98 CLR 77, 88 – 89; Anthony v Esanda Ltd (1981) 55 ALJR 17, 21.

Conclusion

For the reasons I have stated I would enter judgment for the plaintiff.

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