Trade Practices Commission v BMW Australia Ltd

CORM4 :

Sheppfird J .

3 S+ptember 1595

IN THE FEDERAL COURT

OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY	1	No. G64 of 1985
1
GEKERAL DIVISION

BETGEEIJ :

TRAl3E PRACTICES COMMISSION

Applicant

BMW AUSTRALIA LIMITED

Respondent

CORAMI SHEPPARD J.

3 September 1985

REASONS FOR JUDGMENT

ARRANGEMENT

Introduction	2 - 3
The Legislation	3 - 5

The Standards Association and

the Relevant Standard

5 - 12

The Commission’s Case	12
The Respondent’s Case	13

The Helmet	13 - 17
What this Case is not About	17 - 2 0

The Onus and Standard

of Proof

20 - 2 4

The Approach to the Construction

of the Standard

24 - 29

Projections - the Commission‘s Case

2 9 -

3 i

Some Preliminary Matters

, -

31 - 36

The Meanlng of the Standard in Relation

to Projections

36 - 37

4 3 -

4 4

:: - -9

V e r % i c a l

t r a n s v e r s e

p l a n e

6 3 . 5

bphlnri

the

c e n t r e

o f

r,he

e x t e r n a l ear

openlnq

13 a

s i d e v l e w .

p l a n e 2 5

belox a n d

p a r a l l e l

e n

L ~ P

r e f e r e n c e

p l a n e

I n

the

p o s t e r i o r

p o r c l o n

the

r e fe rence

head fo rm.

2 . 1 2

P r o l e c t l o n

any

f i x e d p a r r

which

*:icends

a b r u p t l : ~ beygr~d the

s u r f a c e

the

helmet. "

........ ........ ........ ........ ........ .....

Clause 4 of

khe standard i s 3 s follows:-

1 7 .

Finally,

thsre was led a d e a l

o f

evidence

abol.,t

o t h e r

heimets.

SugcresLions

xere

mace chat th?se.. like rhe 9XL1 h e l m e t ,

would

c o n t r a v e n e

t h e

S t a n d a r d

the Cornmlss ion ' s

cons t ruc t lon

were

upheld .

r ega rd

any of

that

s v l i r n c e as r e l e o a n t

frJr

m-7

r j u rposes .

Counsel for the respon-enz u s e d the latter porciirl;

of th3t

passage ln cupgorc of a subm;ss~on that. iE cases G~:',PL-E an

Inlunctxon was souaht to prevent che commission n f a cr1I;Is.. the standard of proof was bzpond reasonabl? doubt and not Ilpon the balance of probabllities. In my respectful opinlon wnat Glhbs

C.J. has sald polnts clearly In the opposlte direction. Hhat he

1 s saylnc 1 s chat, qenerally speaklng, mlunctlons to rescraln

breaches o f the crlmlnal law should not ordlnarllyr be uranted, one reason belng thac th? Court may I n effect conslst a subject of an offence, notwithstanding that only the clvll stanzard of

progf has been applied.

2 5 .

Not

only

musc

p r o l e c t l o n s which

are

sald

to offenz

the

Standard be

ab rup t : tney must alzo be rlqid;

see para. 3.3.2 of

the Standard.

Thus pro~ectlons call n o t b~ affects2 % V the

Standard unl?ss they are abrupc and r1gl.d.

3 9 .

- .

"Well, I f o l l o x that b u t

can I na-:e

i iw-k at 1:

Khy w i l l l t coxe c f f

i f y o u ~ P S V F c?I?

~ c c e d

Qpen?

_ _ _ You

cou ld pi l l1 lr

o f f , VOUL- Hsnour-.

What

1 s I t . t h e

s c r e w

that keeps i t tlqht? --- T L

- L

1 s the

s c r e x rJn

the

end

c.f

r.he

v l s c r h c u s l n a .

see;

w h a t happens ,

It 1 s the c h i n quarci ti-a-, ic

dependenr;

upon

tha t

p l v o t

t o

h o l d

I t

I n p l a c e ?

_ _ _ ._

Yes,

your

Honour.

So thar.

I f you do

n o t

h a v e

c h a t

t h e r e

t h e

c h n

guard may become

loose o r dlslorlcjed an2 t h u s tb-e

helmet wlll come o f f ? ---Y

e s , your

Honour.

So i t 1 s p z z t of

It; I follow whar: you x e m now?

_ _ _

I f

c o u l d

I u s t

s a y

s a m e t h l n a

else,

-;our

Honour: I

said earlier

th l s he lwe t 1 s

un:qtie

he lme t .

Thls 1 s

the o n l y helmer: I know t h a t vnu

have CO i l f t t h e chin

p i e c e

t o

pur; r.he helmet

on.

E v e r y

o t h e r

helaet

you

p u l l

t h e

helmet-

stra1i;hr;

on.

Thls

one you

c a n n o t

p u l l

I t

stralcrhr; on

because

the d e s i u n thar. when

VO~J l l f c cne

c h l n

p l e c e 11p	an2 p u t	I t	o n ,	Irou	c l o s e l'r	11.-	-,-,	1:	comes
k-Gun< your	n5i.k.

foiloxs :

54.

lnto

particles,

somethlnu flrm and reslstinu t r 3 the touch,

somethlnq solld,

compact ln substance and

texur?.

A n afitonvm

for "hard" i s , of course, "soft".

Apart from a number of BIdW helmets, each wlth the edcrlna

glace, there was tendered a_ strlp of the materla1 whlch had not been afflxed to anv helmet. The materlal when used as the edcrlna

for a helmet is palnted. The strip of materlal

tendered

separately is reasonable hardness, but not of the hardness of metal.

unpalnted.

To the

touch. the materlal 1s of

The strlp

is qulte flexlble and can be flexed and twlsted In one's hands, no doubr; because of the lenuth and shape of 1 ~ . When fixe5 to a helmet the materla1 feels much harder, because It 1s then f1rml.r in place aqalnst the hard shell of the helmer: and rhus much less f lexlble.

If the questlon were whether the

edcrincr was of a hard

materlal and there were no occasion to attach any technlcal or special meanlnu to that expresslon, or to understand It In a

particular way, I would conclude that the edqlnu has

of d hard

nature as opposed ta a marerlal of a soft

nature.

Eut. kdvlncr

reflected upon the matter.

I thlnk that thls IS an overslmpllf1ea

approsch. It was

an approach pressed 'on me bv

couns%l for ~b-?

Commlsslon and 1 have qiven it due conslderatlon. I think It

should be relected for the

reasons which follow.

The word "hard" 1 s not used alone: It

i s used In soniunctlon

55.

wlth the word "brlttle". A question mav arise as to wheth?r the words "hard" and "brlttle" were Intended r;o have dltferent meanlngs. I rather incllne to the n e w that thev were lntended to be synonymous. I incllne to that view because of the fact that the Standard does not require the neck or eye shell openlnas to have edcpna material. There wlll be no infringement of the Standard If the edges of the openlnss are unllned, wlth the consequence that the hard materlal of the shell surrounds them.

The eye shell openlnq

of the BMW helmet falls Inco that caceaorv.

There 1s no suqsestion that anv Infrincrement of the Standard results as a consequence. All the Standard is concerned r;; do 1s to ensure that, If a materlal other than the edcrina of the shell itself 1 s used to bind or form the edye of one of the ownlnas,

lt ~ 1 1 1

Itself not have the characterlstlcs

proscribed bp para.

3.3.3.	The drafcsman was nor. therefore. concerned xlch haxlnens
per se.

I do nor; need to reach a firm cancluslon on the qusstlon csf

whether r;he words

"hard" and "brlttle" are used 1nr;erchanaeabiv.

That 1 s because of the words whlch follow whlch are. "such as metal or hard plastics". In mv oplnlon rhs draftsman gf the Standard has lndlcated, by the LISP af these worc;ls. more p r e f - l s e l v what 1 s meant by the words "hard" and "brlttle".

56.

the Internal surface

of the shell of a helmet whlch lndlcates the

technlcalltv of

lr;.

have

referred. CO

the evldenc?

o f L l r .

Sldebottom In relation to the use 0: the word "abrupt". Th-ts ;;as not used in a technical sense an5 that is somethlna for whlch, a5 I read hls evldence. he IS. to a dearee, apoloaetlc. There is

also evldence that the word

"hard" 1s

not used I n

a technical

sense. But

when one comes to the

expression "hard plastlcs", I

thlnk that one

has to understand it. If not In a technlcal sense,

then at

least in the sense

In which

the expresslon 1 s

used in

what I mav

call the plastlcs industrv. In other

words, the us?

of the word "hard" In order to qualifv r;he word "plast-ts5" 1s used In contradlstlnction to the word "soft" or some word wlth a simllar meanina.

As wlll be seen In a moment. the expresslon. "hard plastics'. has, If not a

technlcal meaninq. then a well

uncierstooa meanlna.

in the fleld ox plasclcs. In

a document as tcchnlcai as the

Standard IS, I see no reason not to ulve the expresslon that

meanina. Once one

does.

lt 1s not a permisslble approach aimplv

to judae whether the edcrlnq materlal offends the relevanE

paraqrapn because of one's CIWR reactlon to the feel of lr..

The Hardness of The Edxlnc Placerlal

As earller mentloned, the materlal was the subiect. of testlncr

by scienclflc and enslneerina offlcers of C.A.C. and G.A.F.

Mr.

J . R .

Inqlis, In his reporr;

of 6 Marsh 1585, 5ald

that

rhe

materlal became harder

and brlttle onlv at very low temperatures

57.

and at hlsh temperatures. He referred t.0 a t%sr which vas

carrled OUT; and which lndlcated chat the materla1 had c-ruori

ductllitv wlth no s u p of brlttle fallure.

Mr. Inall: rhourrhr

that the material	alven hlm to test was in yjhat. he il.?scrlbed A S a
"dry" condltlon.	H? found. the material ductlle In this rondltlon

and sald that ~t should a lso be ductile 111 normal

ambient

conditlons when it would be expected t c b

~,-~t~?.tin

mbre

n o l s c u r e and

consequently be softer and more reslllent. Two enaineers employed by C.A.C., Messrs. B.C. Thompson and M.E. Barnes, concluded that after certaln testlncr, the edslna showed "ductile type fracizures at amblent temperatures". Further testlncr at low temperatures (below -40 decrrees C.) produced brittle tvpe fractures. Tests at amblent temperatures showed that lt was not posslble to cause a brittle type fracture In the BMW eduina .

Slmllar conclus~ons

were ceach+d

bv a F t o f e s s o r Mnt-ton -.7!333s?

evidence 1 s more relevant xhen I come

to the I:cmmlsslon

7 t h ~ r d

submlsslon based upon

non-compllance bv tne heimer. wth C1.rure 4

of the Standard. Professor Morton was call+d 111 the ~Comm~-ss~on's

case.

He 1s an Assoclate Professor at

the rJnlversltv c~f I k w

South Wales.

He 1 s Head

of the Department ,af Appiled Fhvslcs 4t

the Unlversitv.

The Deparizment

1 s one of t l e deparcmrnts of ch.-

School sf F i ~ y s l c s . Ir: 1s malnlv concerned m t h studirln: che chemlcal properties of materlals. Professor Morron has been followlncr thls dlsclpline for some 25 vears.

5 0 .

the C.A.C. enwneers is in

hls opinion that the

eacrlfiq wlll

become brlttle In far less excreme veather c~:~ndltlens char,

;;er?

postulated bv them, and. in partlcular, will become brlttle lf exposed to the hot drv Inland cllmate which prevalls XI s3me parts of Auscralla throuuhout much of the year. As I have sald. these considerations are not relevant to ths questions whlch arise for declslon in relatlon to the Commlsslon’s case based on para. 3.3.3 of the Standard, as dlstlncc from Its case based on Clause 4.

The next evldsnce whlch lt 1 s

necessary; to go 1 S chat <oi Mr.

Delacyckl who

is a

senlor lecturer In polymers sclence at the

Unlversity of Melbourne. He has been, firstlv a lecturer. and then a senlor lecturer, at that Unlversltv 5ince 1963 . He holds

a deqree in Mechanlcal

Enameerlna from the Unlversltv of ihnlch.

He had experlsnse

of polymers with Imperial Chemwal Induztrier.

Llm-ited before ioinlnq che Melbourne

Unlverslcir scaff.

Mr. Delatyckl sald that hardness m relaclon to plasclcs was

a measure of thslr surface property.

HE sald that

It Gas a

result of an indentatlon

test whlch was used

il~eterinlne

hardness. Mr. rjelatvckl added that the:-e were vaclcI-15 r?cmnlzfd

sclentlflc ways of measurmu the hardness of nater13ls Incl.ud.-n;l

plastics. Over the years a number of scales have been d*v.-loped

In order to enable the relatlve hardness of naterlals tto be

measured. Bmonqst these

are the Brlnell

scale or

hardness, d

numbEr of Rockwell scales and the Mohs scale

of hardnes:.

Mobs

s9.

scale beqlns with talc as the least hard of the materxals and concludes wlth dlamond as the hardest. In betw?+n are 3 number of materials includmu avpsum, calclr ;? . ql.lartz znd s3rpt-11rG

Most plastlcs

fall wlthln the

Fockwell R and

thp Rockwell P I

scales.

The Rockwell B and C scales deal vith hardpl m.acerla1.s

commencing wlrh

r;he brasses and alumlnlum a i lovs and exrendlncr

through to

nltrlded steels. Wlthln the

Rockwe11 C

scrile fall

easllv machined steels. file

hard steels and cuttlnu tools.

M ~ .

DelatYckl produced a COPV of a paqe from a text book, Enqlneerlnq Propertles and Applications of Plastlcs, by G.F. Klnney. The page was a composite of flsures 14, 15 and 16 from Mr. Klnnev's book. In order to make my explanatlon clear I have appended a copy of It as Attachmenr; D to thls ludament.

Accordnu CO the Baver brochures earller mencloned. fiurethan

B 30 S is. as moulded. of a hardness of 1 2 0 on the Rockwell l?

scale. A s condltloned It has a hardness of 106 on that scale.

The brochures also (Tlve hardness fl~ures f o r the Rockwell

scale, but thar; scale 1 s noc shown on Mr.	Kmnev's dlacrram. It
1 s to be observed. upon the basls of that	diacrram. that a level

of hardness of 120 on the Rockwell R scale puts the

mfiterlal at a

level of hardness somevkere between that of

~ a l c

-in6

!hst

avpsum, takinq che levels of hardness of chose macerikLs frsm the

Mohs scale shown

on Attachment E.

Before proceedlnu

should explain

what

1 s

meani bv the

conditlonlna of

the materlal.

T h l s 1s a matter

referierl CO in

6 0 .

one of the Ijurethan brochures and espldinea in more *decal1 In

Dr.

Oberbach'

s evlaence. The brochure sai's : -

"Durethan. in common

wlth all nylons,

1 s able to

absorb or dlscharcre water to a cercaln decrre?. A flnal state 1 s reached (equlllbrlum) In whlch the water content of the materlal does not chancre anv further. It 1s of no slsnificance here wherrher dry materlal attalns thls state of equillbrlum throuuh water absorption or moist materml bv

discharging water.

In order

stablllze the materlal

1 s Immersed In

hot

water for a number of days. after whlch. accordlnq to E r . Oberbach. 11: achleves a moisture content of apvroxlmdtP1:; 2.5 per

cent which remains

less

constant

non~lchstandlncr

different cllmatlc condltlons to which It mav be esposed. That statement 1s a matter of substantial contention between the partles, but In relation co the Cornmlsslon S Clause 4 submlsslon. rather than tliat now under conslderaclon.

Mr. Delacyckl prepared a further document based upon Mr. Klnney's diagram and from information from the Modern Plastlcs Encyclopaedia. It combxed the informatlon from Mr. Klnnev's book, lnscfar as It showed the kockwell Fc and Ftockwell M .scal?s. wlth Infornation from the Encvclopaedla. The d.3cutaent 1 s Attachment E to thls ludumenc. It 1 s to be nbserved That ny l r -n 6 and nvlon 6.6 are towards the top of the hockdel l R ;jcale and

61.

" d r y .

Mr.

Delatvckl explalnxi

that thls

was the

n y l o n lust

after mouldlnu when most

of che water had been expelled.

added, ' I . . . as I understand

It, the materlal had heen allowed to

(.ome

K G O ~

temperature

because hardness also depends ton

temperature: and taken at tnat

stacre

. . . 2t

that sta-re I t r ~ n u l c l

have .r! per cent of molsture, So lt is not complPt.el_v d r y " . It would chus be much drler than It would become aft,er undergomu the conditionlng procedure above descrlbed.

The

effect of

Mr. Delatvckl's evldence lndlcates

that the

approprlate flgure

c 0 take from the

lnformatlon In the Durethan

brochure earller referred to 1 s tine "as conditlonea" f luure, which is, on the R scale, 100 rather than 120 shown on Mr.

Delatpckl's composlte dlauram. It wlll be recalled

that

the

C.A.C. enulneers achleved a ilcrure of

50 , m the Rockwell R s c z l ?

rather chdn 100 o r 1 L 0 In the tests which thev carrled out.

In the course of hls evidence Mr. Delacyckl was taken rhrouuh a number of che Dlastlcs shown on Actachment E. He was then

asked f o r hls opinlon as CO whether nvirjn 6 and nvJ on 6.6 vet-? sort o r hard plastlcs. He exprzssed the oplnlon that rheir were soft plastics. One of the comparisons he mad,? 3 3 . 5 h ? c ~ ~ e * r ? th;.

macerlal In

auesclon, that 1 s

the mater131 ussa1

I o r r h e eci.rlna

round che neck of the shell,

and the mat?rlal used f o r the shell

itself whlch was plalnlp a hard plastlc.

62.

and achieved a figure csf 69 on the Rockwell R scale.

In the course of his cross-examlnation Nr. ijelatyckl conceded

that	the scales were not strictly conparable. For Instance

levels of

hardness of materials

accordlnq to the Brlnell scale

were determmed bv pressinu a very hard obiect, for example, a diamond, Into the material. The Rockwell scales were based on ball Indentation tests, the nature of which are described fullv

In Mr. Delatvcki's evldence. Mr. Delatvckl was not

closeiv

famlllar wlth the mechod by whlch r;he testlnu of materials to deternune thelr hardness on the Mohs scale was carrled. out. Mr. Klnnev's composite dlagram (Attachment D) needs to be understcod

with the qualifications eliclted In cross-examlnation In mind. These have caused me concern as to whether the romparlson w t h the Plohs scale was lustlfled. Nevertheless, I see no reason to reject the creneral purport of Mr. Delatpckl's evidence. He \rave his evldence helpfullv and straluhtforwardlp. He 1 s vasL1-c

experlenced.

I accept him as a crurhful and accurar;e witness,

but I

thlnk that the usefulness of the

comparison m t h the Mohs

llmlted.

scale

Mr. Delatvckl conceded In

his

cross-examlnacion thar; hls prlnclpal esperlence 1s In r;he use of the gockwell scales whlch have particular appllcatlon E O plastics.

Regrettably, the Commlsslon mcall?d no evlcience i r o m an expert In the hardness of plastlcs. That was because I t tled Its f l aa flrlnlv to the maschead of touch or feel. If chat. falied. a5 I thlnk It has, the Commlsslon really had no other case.

I have reached the

conclusion Lhat the reference I n the

pdraqraph to "hard plastlcs" was lntended to be a reference to

that expresslon in a technlcal sense, at least to the extent of

referrlng one to the sort of exerclse

whlch was performed bv Vi.

Delatyckl. Obvlously that still mves rise to an sxerclse l n iudqrnent. Concepts of hardness and brittleness cn the otle hand. dnd softness and ductllltv on the other, must alG7aTJs be relative. One must have a standara or a scale aualnst hhlch levels of hardness can be Judued.

I think tnat there is a d?uree of

amblaultv In the lancruarre

winlch has been used. and that It 15 tnerefoie permlssible L n ha-;.?

^ ^ ^

remrd

the ieason

whv para.

J . L . J

vas

~ns?r r ;ed Lnt.83

khe

Standard. That occurt-ed b x a u s e of r.he iummlttes 3 fear r1:at brittle neck eacrlnu mlqhc break hnd cause an lniurv CO a rlder n r be the cause of snaaulnu. Nhat 11: was concerned to provide for

was that If there were edgma materla1 used. It should be

dl-:a:c1le

or pllanr and not

break In a brltcle fashlcn le3vlnlr iauued rda?s

64.

whlch cguld	cause	problems	such as were	mentlonsd	bv	1 4 ~ .
Sidebottom.

In m v oplnlon the parasraphs shoulc: be rnven a constructlon

whlch wlll

accord wlth the purpose

xhlch those responsible

f o r

Its introductlon into che Standard sought to achleve. Such a meaninq does not at all conflict with the lanuuaae which 1 s used. The words, "such as metal or hard plastics", denote what

materials are to be reaarded as hard or brlttle.

If a materla1

1 s not metal or

a hard plastlc and 1s ductlle and pllant, the use

of it as edqlnq material wili not contravene the Standard.

The uncontradlcted evldence 1s that t,he materlal 1s ductile

and not brittle and wlll not break ln a brlttle fashlon. at least

at ordlnary amblent cemperatures. That IS the evldence of

Professor Plorton,

the evidence of the che

officers from C . A . C . ,

and che evldence of Dr. Oberbach and k . Belatvckl. Subiect to

one further macter. wlth whlch I have vet to

deal, I am therefore

led to the conclusion that the

use of the edu-lna macerlal 1 s not

in contraventlon of para. 3 . 3 . 3 of the Standard.

. ..

65.

prescrlbed tconsunler

proiuct safecv staniard for

the purposes of

S. 62 of

Lhe A c t was not thouuhc

bv either counsel to be

relevant conslderation and I have, accordlncrlv, put IT; aslde.

Mr. Curnow sald that he purchased the helmet a dav or two before Chrlstmas 1983.

The accldent occurred late In

Januarv

1934. In r;he month o r so In Khhlch Mr. Curnow had the helme5, he used It regular1-T when he rode

hls cyc le In

the Adclalde area.

He was not

away from that area.

Mr. Curnow said that

he fill

from his cvcle when he was travelllnu at approslmatelv 09

kilometres per hour. He sald that he landed on hls shoulder and

upon the front of the helmet. He cartwheeled over a couple of

tlmes and felt the helmet hlt the around. He sald that hls

qloves were torn to pleces and hls 2eans were torn at the knees.

He sald that his left forehead and left shoulder ?ut the road

first.

He slid f o r some chlrty to i o r c v vards.

After Mr. Curnow stopped movlncr, he made an examlnatlon of

the helmet.

The vlsor had been pushed past

where

it normailv

stopped at the fullv open posltion and had crone round to tne

back

of the helmet.

The chln uuard 'was larrei open on che left hana

side, but

nor; on r;he rlqkt hand zlde.

There

vas, ascQrdln,r r a

Mr. Curnow's evidence, a dent at

the Sack of the helmet; and ?,:me

mazlncI of It.

The helmet 1 s In evidence.

There 15 n G

lndlcatlon of anv dent but there are some graze nlBrK5.

Later Mr. Curnow noticed a cracb: In the edulna of the helmer.

66.

He descrlbed it as "a small halrline frarcurc - n 3 ~

as wlae as 1t

1s now". He aqreeci wlth a questlon concernlnq ~ 3 1 ~	cracb. rh:nch
was, "Everpthlng was In poslr;ion, but It was cracked?

Later Mr. Curnow sald of the crack:-

"As far

as I cguld see wi%h the trim and a l l Che accessories In place, I could iusc see r.he fracture uolnu until it dlsappeared underneath the side of the helmet. I cannot really sav

because thls has

been damaaed here, but I cannot

really see how far it goes u3derneath. A s far as

I was concerned, the crack extended. On a

perfect helmet, looklnu at It. that is as far as you could see. That 1s a s far as I knew lr; Gas

cracked" ,

Towards the end

of the case Hr. (Zurna.? was recalls2 CO 7 1 ' ~ ~

further evidence.

He sald that ne had not notlced the crack In

the edulng of the helmer;

prior co the accldent.

He referred to

cleanlng the

helmer; on the mornlnu

of che accldent and not

notlclng the

crack

then.

the

crack he sald. "It was a

halrllne crack; the operative word belncr ha1;ilne . . . l c 5Gac -- well was not t:?in. it was llke flne enoucrh If voc put a dark !131r aqalnst you coul? n,>LLcr.. -L dsrk halr aaainst the white backaroune. l'hat 1s hGw noticeable It was". He s a d that the

eaglna vas unilsplaced. He was asked r ; ~

.-xPana or!

vh,?.r; 5e haa

prevlouslp sald abcuc r_he crack "a51nz throuun". HE sal':, "[4~11,

6 7 .

travelllncr from the outside of the crlm from wrlere I could s e e

It, the outermost part where chat smail trlrn 15, It 1 s abouc half

an Inch thlck that runs around the sdcre. if I rememDer acortectlp . . . I ' He then demonstrated wlth the ald of another helmet CO show

what he meant.

He said:-

you can see here, my helmet was slmllar

thls one. You cannot see any b m k e n llne thrcuuh it, excepc chat it 1s a plece of trlm on an edqlnu and It was just a small halrllne fracture that lust ran straluht throuqh and underneath the

helmet and Lhrn

where chls plastlc t r l m hlts ~ t ,

you could not see ~t anv more, so I was unaware of how far this edulnu went underneath Lhe Inside of che helmet".

The point

Mr. Curnow was maklnq was

that because the rubber

lininq was

still flcted flrmlv

lnslde the groove, he could n o t

see whether the crack went throuah co the Inner eiae of the erlcrlna or not. All he could se+ was the halrllne csack (on Ehe outer eduinu and on the underneath of It.

The reason for endeavourlna L O obtaln a5

much d?tail c€ che

nature of the crack from Mr. Curnow was chat hls helmet. since the accldent, has underucne extensive examinatlon and testlnsr ljv a number of different people. The crack lr! ch? id3-lnu 1 s no

longer a halrllne crack.

The edsrlnu 1 s dlsplsced :ompletelv ,ancl

the two parts of It are clulte separate. They can be pushed toueLher aaain, but the crack whlch 1 s revealed :<hen chev at-?, 1 s much mor? than the halrllne crack descrlbed DV M r . Curnow.

66.

Mr. Cuinow sal6 chat he bcua-ht

a new helmet and K a s asked b.;

the suppl?er. a Mr. Ellaclrveil, If he could hsve lt c~ hand t:o a Mr. Mattich. Mr. Curnow gave Mr. Blackwell the helmet- and dld

n o t see xt aualn except on occaslons whszn he was shown It bv

members of the scafi of the Commlsslon and. 1 t h l n k , prcbahly durmq tne course of the House of Representaclves lnqulrp. He saw It aaain, of course, I n the course of hls evid2nce in thls case.

The Testlns of Mr. Curnow's Helmet

The helmet now

presents a so r rv plcture. One

can see on it

some of the abraslon marks on Its shell CO which Mr. Curnow referred. But substantlai portlons of the shell have been cut away, apparcmtly f o r the purpose of testlna. What the purpos? nf ceztlnu chese portlons was 1 s not apparent from the evidence. it

should be clear that

nothlnu that occurred In the accident caused

the removal of these porclons of

the shell. nor 1s a n v aspect t3f

the shell In Issue In thls case.

The 1nr.er llnlnu of rhe helmer.

1 s ;IOW displaced and. as I say, the crack 1 s no loncrer a halrlln?

crack. buc one wnlc'n has ledi to the cwn pleces of edTrlnc: becomln~~

completeip separated.

At che polnc

of th? crack chere

1 3 xhat

appears t(2 be a

smaller and f l r ~ c cracx or scracch n a r k .j?llCh

extends almost perpendlcularlv

down across the eicrlnu sad w r t l v

underneath lc. On the other slde of the shsll. aGja7; from LP?? crack In the edqlng, a portlon of the edulna nas been taken awav, presumahlp f o r the purpose of testlncr. The vlsr,r ,atnd visor

houslnu .Are completelv inlsslnir and the

s c r e ~

xhlch -<as

formeriir

" A B.M.W.

Plotorcvcle

Svscem' tielmer; identlfled 5 5

Helmet D' was recelved for examlnatlon

I:.$-.c.

The helmet was

manufactured In mld Xovember

1983

and had a lower shell sdqlnu broken 6 cm from Its

riuht hand end.

A . S . B .

Serlal No. was Chi32246.

OTHER DAPRGE INCLIJDED :

(1)	Polyurethane paddlnu broken In vicinltv	nr'
break In edulnu.

(111 Faddlna loose at top of face G ~ ~ ~ L P . B .

(1111 Abraslon marks on L.H. so-vsabale law ~ ~ ~ 3 r d .

(1v) Abrasion marks on L.H. forehead reglsn.

I v ) Abraslon on L.H. lower area of visor

cons1sr;ent w l t h v ~ s , ~ I -

be1r;q at extreme rear

posltlon at tlme

abraslons occurred.

(v11 Occaslonal

abraslons on

t o p L . H .

area of

helmet.

( ~ 1 1 )

Abraslons behlnd left

ear acea of helmec

and cracklna of the qel coat.

Dlrectlon of

abraslons 1 s from LOP to bottom.

(v1il)Falnt abraslons to

L.M.

v l s o r plvor. screw.

Visor surround. 1s unmarked.

7 0 .

the break is a hrlttle tvpe fraccur? and chat this tvpe oi fracture can onlv Le simulated at a cub-zero temperature.

Cold cests were then carried out

to crv and

produce a slmllar tvpe break. The I?rst: consisted of mountlna the edalna strlp around a

plece of ply~rood cut

to the horse shc8e 5hat-e

the edslna and placlnq It In a cold chamber ht, -70 decrrees C. f o r 1 hour. On removal from che chamber the edglns was skruck 51th a plasclc mallet untll failure occurred. Thls was repeat4 wlth a second edulnu. In b o t h cases brlctle t y p e

fracture

occurred. However. in nelther case did

It xcur completely across the sectlon as dld the break In helmet 'D'.

As a final test a complete E.M.W. nelmet was placed 111 111- t-t~antber at - 7 0 dearees C. to see if

the edgma

would b r e a k In sltu

under che normai

constralnts	of	l t s end	rlvets.	No break
occurred.
DISCUSSION:

It is zhe oplnlon of the wrlrers that the i o w r

shell member a€ helmet 'D' shows a brlttle type fracture at point oi fracture. No ductillt-? 1s evldent on fracture surfaces."

71.

on the evlcierlce whlch 1 s before me.

Snocher unfortunats matter

1 s thac

I da noL know In what

state the crack in che edulnu was when It was 1nsi?ested on 18

July 19e4. In partlcular I do not know whether the materlal had separated as it now has or was 5tlll connected as 11; wjs lmmedlacely after the accldent. It is unfortunate that here was not Some evidence. or at least some attempt to lead evidence, of

what precise1.r

happened to the helmet

between the time It

given by M C .

Curnow to Mr. Blackwell and the tlme xi: was looked

at by varlous people. One

does not know Khat tests were made or

whar; examlnatlons took place which mav cherncelves

have caused

further damage to

separation of the edffing

materlal.

In a

matter as Important as this. one ouuht not to be over t-eaap to guess 'or to assume that n0r;hln.l was done excepr; merelv ti: pllli apart an alreadv separated edqe.

In March 1985 Professor Morton was supplled by the Commlsslon wlth the heinlet known as helmer; "D" worn bv Mr. Curnow ar; the time of hls accident. He was also supplled wlth coples of the reports of Mr. Inalls, Mr. ThompsGn and Mr. 3arnes earlier

referred to.

He had avaliable .3 cop:r !of the Standard. HF S L L ~

that the edging strip around

the neck openlno

of the helmet : ;ss

f rastured

about 55

mm. from

the rlaht hand

f l x l n u point.

tte

examined the

fracture mlcroscoplcallv and

considered that the

appearance of the fractllre

surface was lndlcatlve a? "failure ~n

a br1r;tie

mods.

rather

than a duct-lle

(tourrhl

mode.

72.

partlcular the fallure appears to have spread from an Inll;l.?l

small flaw 111 the form of

a mlcroscoplc c r a c k ln

the auter l o ~ j z r

corner of the strlp

extruslon, whlch ma7 have been prejent p r ~ o t -

to the accldenr,. Such flaws are not unusual. Coil*acues experienced in fractnqraphlc exammacion aaree -,71th me that t x c

1 s a tgplcal brlttle

fracture as do ThcmFsorl and Earne-s I L T

2472 l I'.

In the course 05 his evldence Frofessoi Norton explalnxi ?he dlfference between a fracture

In the brltrl;. mode and a fracrure

In the ductile mode. He

said:-

"..

. a brlttie fallure 1s one In which the separaclon of the t w o parts

cakes place withouc

any siqnlflcant change of shape of -,he materlai adjacent tg the surface of separation. In the ductlle mode there is substanclal deformatlcn of the materla1 lmmedlately adlacent CO the s u c f a c e

of separatlon of

the two materlals. 'his 1s P o t

necessarily of very larcre scale, but 1s a l w - { a yulte evlaent when the surface of r,he fractured

macerlal 1 s studled under a mlscroscope."

"All brlttle

naterlais

fall ljecaluse a crack

spreads ircm a polnt, and In norrnai condlcions the pclnt f ron vhlch t h e crack spreads 1 s an Inherent d5fect In the material. A crack.. 9

small crack

xhicb

can be suL-mlcroscopl,:

other

words lnvlslbie

to t h e

n a w d w e . or 1::

could be &n lncluslon of some iorelmsn material.

Counsel

f o r

the Commlssmn

read to

Professer Morton

P l r ,

Curnow's account of the halrllne crack whlcn he observed In the edglng. After he had done so. he asked the Professor whether che evtdence indicated anvthincr to him as to xhether lt was complete Or Incomplete fracture at the tlme Mr. Curnow saw lt half an hour or so afcer the accldent. Professor Florton salcl:-

"As It 1 s described

by Mr. Curnow, It seems to [ne

to be In the state more or less that lt was xhen I saw the helmec. that 1s. wlth the edulng scrlp so dlndecl Into two pleces at the fracture but

that the two pleces

fit touether neaclv and can

be refitted back on

to the helmet edue In

such 3

way that they meet

neatly".

Later th? Professor said:-

"I believe that

1 s one

fraccure on the

basls ni

the microscopic examlnatlon

the

separated

surfaces which at che clme I esamlned that helmet dld fit toqether very neatly In such a way that

the edging strlp could Se flcted to the edcre of

the helmec 50 as to Itlake a smooth surface wlch the appearance of a halrllne crack crolnq ali the

wzy around lt. I thlnk sr:bsequentlv In handllncr

the mateflai has been dlstorted, as your honour

suggests, and lt no lonqer flts couechrc ln c h e

way that

1c dld when I c.:camlned It two months

aqo"

The Professor also sairi::

7 4 .

' I . . . I€

t h e

i r a c t u r e

p r o p a g a t e s

par t

way

throl;sr.

t h e

mace r l a l

w l thou t

comple t e ly

caus1tl'J

s e p a r a t l o n .

a n d

t h e n

subsequen t

ope ra t l cn

causes

the comple t e

s epa ra t lon

the

f r a c t u r e

su r face .

one

w l l l

s e e

t e r m l n a t l o n l l n e p o m t

a t

whlch

the

crack

topped

growing

the

first t lme ~t

was made,

and

then

from

that

te rmlna t lon

11ne

onwards

one

sees

then

subseauent

f ract1-xe

s u r f a c e a p p e a r m q .

mlcroscoplc

exammaclot1

the

f r a c t u r e I n

t h i s

c a s e ,

showed

t h e r e x t s

n o

s u c h

t e r m l n a t l o n

l m e

a n d .

m v

~op ln lon . that

f r a c t u r e

t o o k

p l a c e

all

under

one

se t

c o n d l t l o n s . "

Messrs. Thompson and

Barnes

and

Professor

Morton

arp at

one

sav lnq

that c h e

f r a c t u r e

w a s

I n

t h e

br1r;tle

mode.

L I ~ .

Oberbach dld

no t

exan lne

r;he

he lmet

mlcroscoplca

and

saw

I t

o n l y

I n

~ t s

presenc

cond l t lon .

Bu t ,

he .

COO.

sal6

tbat : h e

f r a c t u r e

a p p e a r e d

t o be

b r l t t l e one.

misu iv lnqs

abou t

whac

may have

happened

t o

t h e

h e l m e t

b e t w e e n

t h e

rime M r .

Curnow

par ted

wlch

possrsslon

I t

time

the

and

s 'ar1ou5

che

examinations

and

t e s t s w e r e

c a r r l 2 d

o u c

relnalr!.

aut

k h l n k that

t h e

b a l a n c e

the

e x d e n s e

1 n d l c a L e s

chat

shouid f l n a that

the

crack

-dhich

Mr. Curnow obse rved

hls

n e l m e t

n o t

i o n u

a f t e r

Lhe

a c c i d e n t

was caused

a r e s u l t

of the

Impact,

althoucrh

no5

n e c e s s a r l l y

t h e

e d q l n q

i t s e l f

d l r e c r l v

s z r l k l n u

a n y t h l n n ,

find

w a s a

f r a c t u r e

I n

t h e

b r l t t l ?

mode

r a t h e r

than

111

thz d u c t , l l ?

mode.

I an

m a b l e

s a l r , upon

t h e

ev ldeqcc , vl-,eth?r

t:,e

f r a c t u r e was

then

rlcrhc

chrauqh

the

maber la i .

bu t

n e v e r T h e i e s s

s a t l s f - l e d on

ba lance

that what

f r a c t u r e c h e i f

b;as,

:-;is

i r a c r u r e I n t h e b r l t t l e

mode.

Proiessor P!orton set ouc ts endeavour t o e:#:plalr, hc,.; rbr

75.

fraccure occurred

in what seemed to

b? 6l-:cr.llt:

materlai.

F115

evldence In relatlon t o this has ]pore b?arlnrl

~n the c,utcow #:#f

the Commlaslon's case based on Clause 4 of che Standard. But li; has relevance In relatlon to thls submlsslon also. He att?m+ted to slmulate condltlons of drvness coupled wlth condltlons both oi heat and cola whlch could be expected to preva i l , aT; least in Ills vlew. In some parts of Australla durlnq the sunmer o r zlnter. so far as hoc, dry conditions are concerned, IL 1s clear that he was attemptlno to simulate cllmatlc condltlons ;7hlCh he believed prevalled In the Adelaide area In January. Whether he succeeded In slmulatlnu weather condlcions encountered anywhere In Australla at any time of the year 1s a matter of SerlouS

contention, but it 1s

relevant to the Clause 4 submlsslon rather

than thac based on para. 3 . 3 . 3 .

Professor Morton placed

a sample oi the pdulnu materlai I ~ I O %

materlal taken

from Nr. Curnow'

S helmet

I 111 a chamber at a

constanc temperature of 50 degrees C. f o r a perlod of 18 davs. He had In the oven a quantlty of slllca-uel which was desluned to extract as much molsture from the sample as posslble. One of the wls?esses agreed thac s111c?-sel I n these clrcwnsta:-,ce5 a c t s ~1k.e

a s~nk:

other xoids lt

drles aut materla1

w h c h ,:dn+a:ns

molsture.

AT; the end of

the 18 days the n,at?rla; had a molstur?

content of . 2 per cent as distmct fron a molsture of between 5 w c ~

and

three

per

cent

xhlch was ITS rnolscure conwnr at the

commencement of the psrioc.

rjpon testlnc, zhe ma:er:al irai.t1.ired

In che brlttle mcde. Another

piece of edl-lnsr

not 51Lciec<t?d so

t h e

d r y l n q

o u t

p r o c e s s

t o

w h l c h

t h e

f l r s c

salllple was ~ u ~ i e c c ~ a

67as

also

r e s t e d

a n d

was

found noL

c,? f r a c t u r e

a c 3li, ler alone

f r a c t u r e

I n

t h e

b r l t t i e

mode

I t

b.ad

been

malntalncd

condi t lons

deslcrned

t o

s l m u l a t e d

r e l a t i v e

h u m l d l t v

5 0

pcr

cent

and

a t

t empera tu re

l ev? l

abouc 2 1

deureeb C.

i t did,

however .

exhib i t

a t endency

behave

111 a

b r l t t l e

f a s h l o n

z t a

temperacure

of between

deucees C .

and

2 decrrses

C'.

Thus

Professor

Mor

ton

d ld

no t

auree

w i t h

Messrs.

Thompsen

and

Earnes

that

t empera tu res

needed

t o

as low as -40

deur5es C.

S e r o r e

che mace r l a l

wou ld f r ac tu re

I n

t h e b r l c t l e

moa?.

P r o f e s s o r

M o r ~ o n

s a i d

that

could

no t

explain

t h e

f c a c r u r ?

i n

Mr.

Curnow's

helmet

ot-herwlse

chan

the

basis of Its

exposure

t o

e l t he r

ex t r eme ly

co ld

o r

exc reme ly

d ry

conditions.

Hls v iew In

t h l s

r e u a r d

summed

the io1 icwln .x sv ldence :

"Then lt- \Mr. Curnob;' S helmet)

must

h&ve

been

e x p o s e d

e l t h e r

t h e verv

cold

concl l r loqs

wh1ch

you

r e f e r r e d o r

c h e s e

.zerv

d r y c o n d l t l o n s

ot 'nerwlse I t could	not	have	happen?d?	---That	was
my conclusion. '

7 7 .

over C O Mr. Rlackxell.

In che cour se

ProTessor

Morton

and

che

rvldence

became p e r f e c t l y

clear that

t h e

7 3 .

t h e ouxer

l ~ w e r

zorner cf

t h e s t r ~ p

extruslsn

s,.;?:cll

mlrrh t

beer1

+ r e s e n t

p r 1 3 r

t o trle

acc1,:Ient.

H.- sal?, ];hac 51uch r13r:s be^,:

no t unusua l . cour se of

confirmed

h l s op ln lon I n

t h l s :.t.crard

i n the

5 1 s cross-examlnat lon .

D r .

ilberbach also

LhoUq!lt

p o s s l b l e t h a t t h e m a t e r l a l

m a p

h a v e f r a c t u r e d I n

che

LrlLcl?

moae

because

some f l a w o r

l n c e r n a l

l m p e r f e c r l o n

I n

t h e

material.

I t was

common a r o u n d

t h a t

~f t h i s wet-e che

explanation f o r

r h e

f r a c t u r e ,

It was

n o t

e s t a b l l s h e a

that

the

e d a l n a was

b r l t c l e .

iiro

in f r ingement

t h e S t a n d a r d

would

t h e r e f o r e

involved .

7 5 .

commenced.

The

t e l e x was

r e l l e d uFon

as an

a d n u s s l o n

t h a t

c h e

edg lng

ma te r l a l

G7aS

hard

rna te r la i

v L t h l n

the mranlKu

p a r - m .

3 . 3 . 3 .

The

s ta tement

depends

par t lv

upon

12;e

wt-l ter S n e v (of

t h e

c o n s t r u c t i o n

o i

izhe

s tandard

and

partl:' m hls vlew r)f

f a c t u a l

m a t t e r s .

t h e

e x t e n t

Lhat a n

admi:;sion

ha5 b e w uade

as t g

f a c t s . i t constitutes

r e l e v a n t evidence r.3

b.;. x k e n 1nrc

account .

s a t l s f l e d .

h o w e v e r .

thar.

s u c h

e f f e c t

a s

I L

has

of izhe hardness

the

materlal.

8 0 .

reference

must

made c o t he

ev rdence .

The

p r m c l p a l

e v l a e n c e

upon

i;hlch

t h e Commisclon

c . ? L l e s

3-5

thar. of Frofessor Morton.

After

found

the

c rack

t h e

c i l u l n ~

Mr.

Curnow's

he lwet

f r a c c u r e

I n

a b r l t t l e

node clf

ma te r l a l

wh lch

was

a p p a r e n t l y d u c t l l e ,

set

ou t

t o

endeavour

explain how t h s

had come abou t .

h4at occur red

tn h l m i7as t h a t

t h e m a t e r l a l , s u f f l c l e n t l v

e x p o s e d

t o

d r v

c l l m a t l c

c o n d l t l o n s

C , V ? K

l o n q

p e r i o d ,

m l u h t

have

l o s t l t s d luc t l l l cy

d k ~

t o

loss of	i t s mols ture	conzent .	In h l s	report . gf :4arsh	1985 he
said: -

"Nylons of

a l l t y p e s , are

hvuroscoplc materials.

l l k e wood,

coc ton ,

ravon

and m&ny of

t h e

n a r u r a l

and

svnthet lc

uol- imers .

Tne

mols ture

up take

depends

o n che

armcsphEric

humldltv

and

nvtcp

t y p e .

A t a t-:plcal

room hurr la l tv c?

50% nto1st'we

contznr.

ranges

from

under

f o r nvlon 12 1:o

83'JeL'

3% t o r nvlon 6 .

Nylon 66 can absorb up tn abc,ut

9% water

when f u l l v

oe tTod,

Sut

the

?ecr . ion

t h l c k n e s s

of the

eriainu

s t r ~ p

ti.5 t n 2 mm.,

absorption

and

ae so rb t lon

are

s l o w

d l f f u s l o n

p rocesses

and

even

bor l inu

water

zhe

t lme

t j o

a t t a l n

f u l l

e q u l l l b r l u m

would

about

10 h o u r s .

I n g l i s '

o b s e r v a z i o n

o f

a welThc

Increase

2 . 7 8 %

l hour

chus does nor, shot.? much , o t h e r t h a n thsrr:

the nylon w a 5

che

p-rocess

a b s Q r h l n u

w a t e r ,

a n d

t e l l s

nothlnq

about

whet

isr

the

nvlon

vas

' d r y '

i n

the f l r s t p i a c e .

We do know that

t% accldc-r l t

occurred

S o u t h

4 u s t r a l l a

d u r l n u

J a n u a r y .

such

t lmes

r e 1 2 t ~ : ~ e

h u m l d l t l e s

I n

t h e

arsa a r e conmonlv

l d % or

l ~ k e r .

H e l m e t s

a d a l t l o n a l l v

a r e

exposed

t o

h e l t l n u

h-i

f u l l sun

for many hours each dav

and r t mksc :,e

expeccsd that r_he hvsroscoplc

componencs

such as

t h e

e d u l n u

szrlp

would

verv

d rv ,

certalnl:.

much rlrlrr than

would

l l k e l v to

bs encoun te red

unilsr

curopsan

o r

East

coas t

Alus t ra l lan

iond lL lons .

Even

equl l lbr1um

a t

r . h .

nylon

I;?.

r c t a l n s

l e s s

t h a n

1% mc1sSure.

" 5 . 1

Nylon

6 . 6

i s

a n

u n s u l n b l e

n a t e r i a l

f o r

ed?lny

neck

openlnqs

v e h l c l e

u s e r s

helmets

because of

I t s i n h e r e n t

b r l t t l e n e s s

when

c o l d

a n d / o r

d r y ,

and because

I t s

s u s c e p t l b l l l t v

t o

!ultra

v l o l e t

a n d

o x l d a c l v 9 d e a r a d a t l o n .

5 . 2

BMW

h e i m t s

l n c o r p o r a t l n a

s u c h

corrpcnenr;

- 7

fali t o

meet prcvls l r>ns of

ruLe 3 . 2 . :

ant5

of r u l e 4 of AS l69a.

cont lnue6

: -

" I n n e w

the 1067

hunua?t les

which

macer la l !

may

;se exposed.

Inland

p a c t s

> - u s t r a l l s I

sugTested

tha t

che

edq-Ins s t k - l p mlchr

becmne

b r l t t l e

ac normal

cernperatures

due

t o

loss ,of

mo l s tu re .

wh lch

ac t s

p l a s r l c l s e r

I n

n - r l o n

6 6 .

and

1 s

essential

contributor

t o

l c s

' touah

behavloL1r.

I t was

ag reed that I

s h o u l d

c a r r y

o u t

t e s t s

t o

determine

whether

l e

w a s

p o s s l b l e f o r t h e edcrlncr

s t r l p s

of EMW Systems

Vehlcle

Users

Helmets

r,o

become b r l t t i e due t o low

molsture

conten:."

enab le C h e

t e s t s

t o

conducced

P ro fes so r

Nor t an

:.:as

Supplied wlLh

t w o helmets on

7zh Mav 1985.

Edqlna strips from

the

neck

openlnus

were

marked

and

removed.

T'ne edq-1na.s were

moulded

components

shaped t o f i t the

he lmet

openlna .

Frofessor

Horton described whac he dld as L 0 l l G W S : -

Professor

Morton

sald

tha t

removal

o f

the

stt-lps from

r ,he l r

condlc lonlng

chambers

there

was a~?

evident

i l l f i e r e rce

I n

their propercles whlcn

had

not

been

presenc

b e f o r e

c o n a l c l s n l n 3 .

The

"humld"

speclmens

ranainezi

r-elatlvely fl?:-:;bl?

and had

" d e a d "

f e e l

t o

them when

s t r u c k .

The

'drv" specimens haci becmw

hard

and

r l u ld ,

p roduc ing

a much

sharper

sound

when

; t r ~ c k .

T e s t s

w e r e c a r r l e d o u t

t o

d e t e r m l n e

t h e e x t e n t

the

brittleness

of each

sample.

The

hunld

speclmens

p&ssed t r r e

kesr w x k i o 1 ~ ~

Professor

Mlorton

conclusions

were

foi1ows:-

pursued t h s aspecr;.

' '

Professor Mort,on sLtmmar1zed hls consluslon:

a5 fo l lows :-

"vXhkn exposed t o law. altho1.tcrh nr,t

abnot-mallv

~ O X

humld l ty ,

t h e edqln?

s t L l p s of

nvlon

66 m a t e r l a 1

on BI+J Systems

Vehlcle

Users Helmets a5 Supplied

t o me become hard

and

brictle, a n d

a r e

easllx;

f r a c t u r e d a t

normal

temperature."

p e r

c e n t

91.

c e n r .

P r o f e s s o i

Morton

souuhc

t n

a t ch leve

r e l3z lon

r o

che

d r v

specimens cdhlch he teszed

and

foltnd

to be brittle t~e t -e

i n n'3 vav

comparable

chose

encnLntered

I n 2.delald.e a t anv

t.lme of ;he

v e a r .

R e l a t l v e

h u m l d l z l e s

of five and Zen p e r 'cenz

ver-e

ncr

?:i+r

encountered

and

were

certalnl:?

n c c

the

order-

o r rrie dav

Pkofessor

Morton

seems

t o hav?

thouuht .

Comparazlvelp

? a r l r

h i s

ev ldence .

P ro fes so r

MaIrton

seems

eo have

perceived

h l s

e r r o r ,

a s

che

i o l l o w l n o

e v l i e n c e

1 n d l s a t e s : -

' .

conclusion on Clause 4 Subrnission

For the

reasons I have uiven the Commission's case based on

Clause 4 of the Standard fails.

Final Conclusion

In t'ne result the Commlssion's case fails

in its enciretv. I

order thar; the

applicatlon

be dismissed with costs.

Fig

BASIC PLANE

F!g

i lEFERENCE HEADFORV

3 3mmJ

..-

[1985] FCA 436

3 Sep 1985