Wrightville Operations Pty Ltd (T/As Jarvis Ford) v Lisman - [2007] SASC 259

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
WRIGHTVILLE OPERATIONS PTY LTD (T/AS JARVIS FORD) v LISMAN
[2007] SASC 259
Judgment of The Honourable Justice Layton
12 July 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - PROOF AND EVIDENCE - OTHER MATTERS
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - OTHER CASES
Appeal by third party (appellant) against a decision of a magistrate who found the defendant's (respondent) claim for loss and damage resulting from negligence and breach of contract proved against the appellant - the respondent purchased a motor vehicle from the appellant - following a car accident it was found that the appellant had installed an incorrect nut to the steering mechanism during repair work which was loose - whether the appellant's conduct was a causally relevant factor to the damage sustained in the car accident - whether the Magistrate failed to have sufficient regard to the body of evidence, in particular the expert evidence.
Held: the Magistrate erred in her approach to the evidence - in particular the expert evidence - decision substituted as evidence did not prove that the loose nut caused the accident - appeal allowed - Magistrate's judgment set aside and judgment entered for the appellant.
Magistrates Court Act 1991 s 40; Supreme Court Civil Rules 2006 Rule 292, referred to.
CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Dearman v Dearman (1908) 7 CLR 549; Fox v Percy (2003) 241 CLR 118; Warren v Coombes (1979) 142 CLR 531, applied.
Devries v Australian National Railways Commission (1993) 177 CLR 472, considered.

WRIGHTVILLE OPERATIONS PTY LTD (T/AS JARVIS FORD) v LISMAN
[2007] SASC 259
Magistrates Appeal: Civil
LAYTON J:
Introduction

This is an appeal against the decision of a magistrate pursuant to s 40 of the Magistrates Court Act 1991. On 3 November 2006, following a two-day trial in July 2006, between the defendant and the third party, the Magistrate found the defendant’s claim for loss and damage resulting from negligence and breach of contract proved against the third party. The third party now appeals against that decision.
Background
In May 2004, the defendant (“the respondent”) purchased a Holden Commodore from the third party Jarvis Ford (“the appellant”). Following its purchase, the RAA carried out an inspection on the vehicle. Subsequently, the respondent returned the vehicle to the appellant, and repair work was undertaken. This repair work included replacing the vehicle’s steering rack and conducting an associated front wheel alignment.
On 18 June 2004, the respondent was driving the vehicle along Cheltenham Parade, before turning right into Port Road, travelling west. Shortly after turning onto Port Road, the respondent’s car collided with a building on the southern side of the road. As a result of the accident, damage was caused to both the building and to the respondent’s vehicle. The owner of the building brought a claim against the respondent for damage caused by the accident. Subsequently, the respondent brought a third party claim against the appellant seeking indemnity “for all loss determined arising from the negligence and/or breach of contract by the Third Party in failing to properly repair the motor vehicle”.
It was common ground that the nut at the end of the bolt forming part of the connection between the vehicle’s steering column and steering rack, was of the wrong type and was not tight on the bolt following the accident. The manufacturer’s specifications state that the nut used to secure the bolt should be a self-locking nut, which this nut was not. The nut was fitted at the time of the repairs carried out by the appellant. The issue at trial was whether this loose nut caused the accident.
The steering mechanism
The steering mechanism consists of a U-shaped rod, which cups around the cylinder on the steering rack. This rod is called the coupling (referred to in submissions as the “female part”), and the cylinder is called the steering pinion (referred to in submissions as the “male part”). The steering pinion is planed flat on each side, so that when connected, the two sides of the coupling fit flat against the two planed sides of the steering pinion. A single bolt (the cam bolt) clamps the coupling and the steering pinion together. The cam bolt passes through both sides of the coupling, but does not pass through the steering pinion. A rigid connection is formed between the coupling and the steering pinion. The coupling in turn is connected by a universal joint to the steering column, which connects to the steering wheel. As the steering wheel is turned, the coupling turns the steering pinion which in turn moves the steering rack from side to side, which then causes the road wheels to turn. As indicated, it was the nut at the end of the cam bolt which was an incorrect nut, and was not tightly fitted, which was alleged to have caused the accident.
Extension of time to appeal
The appellant seeks an extension of time within which to appeal. The judgment of the Magistrate was delivered on 3 November 2006 by email to counsel. However, due to an error in addressing the email, the judgment was not received by either counsel for the appellant or the respondent. Therefore, the appellant was not aware that judgment had been delivered until contacted by solicitors for the plaintiff on 23 November 2006, who indicated that judgment had been given in favour of the respondent.
In these circumstances I consider that it is in the interests of justice to grant the extension of time to appeal. The delay has clearly been caused by an administrative error at the Magistrates Court, and is not in any way the fault of the appellant. I grant an extension of time to appeal, to 7 December 2006, being the date of the filing of the Notice of Appeal.
Grounds of Appeal
The appellant appeals against the findings of the Magistrate on the following grounds:
1.The Learned Magistrate erred in failing to determine that the incorrect nut as fitted to the steering column of the Defendant’s vehicle was not causative of the accident.
2.The Learned Magistrate failed to make a specific finding that the nut caused the accident.
3.The Learned Magistrate failed to have sufficient regard to the expert evidence of Mr Hall and Mr Aust.
4.The Learned Magistrate [sic] extrapolation from the photographs of the vehicle had no, or insufficient, basis in evidence.
5.The Learned Magistrate erred in asking herself the wrong question in that she said that “the central question is this: did Mr Richter feel unnatural movement from the area of the relevant connection, and observe a loss of torque (sic), as he says he did, or did he not?”
Relevant legal principles
This is an appeal by way of rehearing.[1] In such an appeal, the principles which govern the approach of an appellate court to the findings of the trial judge, are those discussed by Kirby J in Warren v Coombes (1979) 142 CLR 531 where his Honour said at 551:
Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.
[1] Supreme Court Civil Rules 2006, Rule 292.
As reiterated by Gleeson CJ, Gummow and Kirby J in Fox v Percy (2003) 214 CLR 118, an appellate court is obliged to conduct a “real review” of the trial and of the trial judge’s reasons. Their Honours cited Dearman v Dearman (1908) 7 CLR 549, in saying:
Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.”
These principles were most recently articulated by the High Court in CSR Ltd v Della Maddalena[2] where Kirby J (with whom Gleeson CJ agreed) said:
... the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having concluded a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing ... inferences and conclusions'." [Footnotes omitted]
[2] (2006) 80 ALJR 458 at [16].
Accordingly, if having made proper allowances for the advantages of the trial judge, the appellate court concludes that an error has been made, “they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”[3]
[3] Fox v Percy (2003) 214 CLR 118.
This appeal therefore requires careful consideration of both the Magistrate’s reasons, and the evidence given before her.
Evidence at Trial
At trial, evidence was given by the respondent, Angela Lisman, and by an RAA examiner, Mr Richer. The appellant called two mechanical engineers, Mr Aust and Mr Hall.
The respondent gave evidence that as she approached the traffic lights at the intersection of Port Road and Cheltenham Parade, she slowed and almost came to a complete stop, before the lights turned green, and she turned onto Port Road into the middle lane. She said that when she was in the middle lane her car “didn’t feel right”, so she moved into the right-hand lane. Then she felt “okay”, so she changed back into the middle lane. She said she turned the steering wheel to move into the middle lane, and the car started going that way, but that thereafter she couldn’t straighten the car up. She said that she didn’t have any control over the steering, and that the car kept moving left even though her hands were straight on the steering wheel.
Mr Richer
On 21 June 2004, Mr Richer, a qualified mechanic employed by the RAA, examined the respondent’s car at her home. Mr Richer’s report was admitted as Exhibit P6. That report stated that:
4.Inspection of the steering lower coupling revealed the coupling was loose on the steering gear pinion shaft.
5.Inspection of the lower cam bolt and nut revealed the nut fitted to the clamp bolt was not a crimp-locking nut and could be moved by hand. Note: Holden workshop manual states that a new crimp nut should be installed when the steering rack is replaced.
6.When tested by turning the steering wheel, the lower steering coupling jumped approximately two splines (engine not running).
The report concluded:
…it would appear the steering failure was due to the incorrect nut fitted to the clamp bolt when the steering rack was replaced. The nut has worked loose allowing the steering coupling to jump splines on the pinion shaft. The steering coupling could also have cocked on the shaft and dislodged the joint.
Mr Richer gave evidence of two theories regarding the cause of the accident. First, Mr Richer said that if in the circumstances where the nut was not fitted correctly there was excess load on the steering wheel or front wheels, the coupling may have “opened up” to allow the pinion to rotate inside the coupling, or the coupling to rotate around the pinion. This would result in looseness in the steering, so that the steering wheel could move without moving the wheels.
Mr Richer’s second theory was that if the bolt was loose, the coupling could ride up or down the pinion, and if it rode up it could ‘cock on the top’ of the pinion. According to Mr Richer, this would mean that the universal joint would be at an incorrect angle, and could jam, making the steering tight.
Mr Richer gave evidence that, at his inspection on 21 June 2004, he was able to turn the steering wheel approximately six or seven millimetres, but that it felt like there was movement in the lower joint, and “it felt like it jumped on the lower coupling”. In his report Mr Richer referred to the lower coupling jumping “approximately two splines”. He conceded in evidence that he had been incorrect in referring to “splines” in his written report, as there were no splines on this coupling. Mr Richer also took a photograph (Exhibit P6) which showed that the cam bolt was in place at the time of inspection.
Mr Aust
Mr Aust was a qualified mechanical engineer, with expertise in motor vehicle accident reconstruction. On 18 August 2004, Mr Aust inspected the respondent’s vehicle after it had been moved from the respondent’s home to a holding yard. He also inspected the scene of the accident. Mr Aust’s report was admitted as Exhibit D9.
In his report, Mr Aust noted that the steering wheel was connected “such that movement of the steering wheel moved the front wheels”. He said that the “play at the steering wheel rim was about 5mm”. Mr Aust noted that the nut was not tightened securely on the cam bolt, but concluded that, “even if an incorrect bolt was fitted, and even with a loose nut, the splined elements of the connection would have proved a fully functional steering system”. In giving evidence, Mr Aust accepted that the references to splines in his report were incorrect, but maintained his opinion that the steering mechanism would operate normally, regardless of the tightness of the nut on the cam bolt. Mr Aust explained that this was because of the planed sides of the pinion, which fit into the coupling. He said that the system would work even without a cam bolt or without a tight nut. The cam bolt stops the coupling from coming off the pinion. He added that the coupling could not come off the pinion in the normal operation of the vehicle. Mr Aust disagreed with Mr Richer’s theory that the movement of the coupling may affect the operation of the universal joint.
Mr Aust also gave evidence that, even if the steering became non-responsive as the vehicle moved left to change lanes, the steering system would straighten the wheels. He said:
In the absence of the steering wheel controlling that system, it will tend to self-centre. So it will continue to move to the left but not continue to turn as the wheels were steering it because the wheels – that part of the system will straighten up.
Following his examination of the accident scene, Mr Aust also concluded that the respondent’s vehicle was sliding generally sideways when it came into contact with the building. This conclusion was drawn from inspection of particular marks identified at the crash scene and a comparison of the distance between these marks and the distance between points of damage on the respondent’s car. Mr Aust said in his report (which was amended during his evidence):
In my opinion, and noting that the Police Report states that it was raining at the time of the accident, the sideways sliding approach to impact is consistent with a right turn being made at excessive speed leading to a clockwise yawing condition. This was probably followed by an inappropriate driver response leading to an extreme anticlockwise yawing condition such that the impact occurred with the Holden facing generally south-east, i.e. after having rotated through about 180º.
Mr Hall
Mr Hall was also a qualified mechanical engineer, with expertise in vehicle accidents and accident reconstruction. Mr Hall was engaged by the respondent’s solicitors to inspect the respondent’s vehicle. On 12 October 2004, Mr Hall inspected the vehicle in the holding yard, and provided a written report dated 20 October 2004. That report stated:
The cam bolt was in place and the nut affixed but of minimal torque.
The steering was turned without the benefit of power steering. It was turned lock-to-lock several times without fault.
The cam bolt was removed from the steering coupling and the steering was turned again. Again, no fault was detected. There was no “jumping of splines” at the steering coupling.
…
I could find no fault with the steering system.
I am unable to provide an explanation as to how a steering defect could have resulted in the motion of the Commodore in the manner described by Ms Lisman.
…
The respondent did not call Mr Hall to give evidence, for whom the report was prepared, but was instead called by the appellant. Mr Hall disagreed with Mr Richer’s conclusion that the steering failure was due to the loose nut. He said that the fact that the nut was not ‘torqued’ or tightened to the specified requirement and was only “finger tight” at inspection, would not allow the male part (the pinion) to slip inside the female part (the coupling) as Mr Richer had suggested. Rather, the “clearance” between these two parts was so small that slippage could not occur even if the cam bolt was not in place. Mr Hall said that he tested the steering from “lock to lock” and found no fault and no slippage. He said this testing required the application of a force through the steering column which would exceed the force required to steer a vehicle in normal road-going conditions.
Mr Hall agreed with Mr Aust’s opinion that the front wheels of the vehicle would tend to self-align with forward motion, if the connection between the steering wheel and the front wheels was lost. He said that if at the time the connection was lost the car was moving from the right hand lane into the centre lane, he would expect the wheels to self-align and for the vehicle to continue to move toward the left in essentially a straight line. He said the vehicle would not increase its veer to a point where the tyres may lose traction.
In relation to Mr Richer’s second theory regarding the cocking of the coupling and the jamming of the universal joint, Mr Hall said that such a scenario would result in the steering wheel locking. He said that if this was to occur, the vehicle would continue on the same turn radius that was adopted to change lanes.
Magistrate’s Reasons
The appellant argues that the Magistrate erred in a number of aspects in her Reasons. I will deal with each alleged error under the relevant grounds of appeal.
Grounds 1 and 2: Failure to determine that the incorrect nut was not causative of the accident or failure to find that the nut caused the accident
The essential argument of the appellant on this ground is that the Magistrate erred in her overall approach by applying the wrong test and identifying the wrong issue. The Magistrate at p 7 of her reasons stated:
The central question is this: did Mr Richter [sic] feel unnatural movement from the area of the relevant connection, and observe loss of torue [sic] and he says he did, or did he not?
It was argued that following identification of the wrong test, the Magistrate then assessed the evidence on a wrong premise. In the course of doing so it is alleged that she made errors of fact and reasoning and failed to carry out a proper analysis of the expert evidence. The appellant submitted that the correct question should have been - did the loose-fitting nut cause the accident or, using the language of the negligence test – was the appellant’s conduct in fitting the wrong loose-fitting nut a causally relevant factor to the damage sustained?

The appellant’s counsel submitted that having wrongly stated the test, the focus of the Magistrate’s inquiry became the credibility of the mechanic, Mr Richer, and what he said he felt when turning the steering wheel in the course of his inspection of the vehicle on 21 June 2004. The appellant submitted that the issue was not whether Mr Richer was honest and reliable when giving his evidence about what he felt when he conducted an inspection, but rather the effect of his evidence, particularly when considered with the evidence of the two expert mechanical engineers, Messrs Aust and Hall.
The appellant submitted that it was not disputed that the nut was the wrong type and that it was not tight on the cam bolt. There was also no dispute as to the credibility of Mr Richer that he felt something when he turned the steering wheel at his early inspection. Instead, the dispute was about the conclusion that Mr Richer drew, namely that the respondent experienced a steering failure which was due to the incorrect nut being fitted to the cam bolt. The appellant’s submission continues that the Magistrate erred in finding that Mr Richer’s first theory was the cause of the accident without carrying out a proper analysis of Mr Richer’s evidence. The finding made by the Magistrate at p 8 was as follows:
I find that when the driver turned the wheel to the right, to bring the nose of the car around, the loose nut on the bolt allowed the U-shaped clamp to slip horizontally around the cylinder at the top of the rack, and as a result the front wheels did not respond to the steering wheel when the driver tried to turn the nose of the car to the right, from generally south west to west.
In setting the scene for this argument, the appellant pointed to a number of alleged errors of fact and misunderstandings of evidence in the Magistrate’s reasoning as set out at p 7 of the judgment in the following emphasised passages:
… Mr. Aust and Mr. Hall … did not see or feel anything wrong when they turned the steering wheel. Neither of them noticed any loss of torque when they turned the steering wheel. In contrast, Mr Richter [sic] said that when he turned the steering wheel, ‘it felt like it jumped on the lower coupling’. There was no torque when he moved the steering wheel. He heard no noise. He assumed the cylinder had splines (as did the other witnesses, before Mr. Aust purchased a not dissimilar rack from a wrecker, and discovered the manufacturer’s change in the design), and that the movement he could feel was a loose coupling, “jumping splines,” and possibly jamming the universal joint.
… After hearing the whole of the evidence, I have no doubt that Mr. Richter [sic] made the observations he described in his evidence. Mr. Richter’s [sic] evidence with respect to his observations is internally consistent. He is wrong about the splines he assumed the rod was jumping around. What Mr. Richter [sic] felt was not jumping across splines, for there were no splines. He felt the third rod jumping on the planed edges of the cylinder. It was not fitting tightly to the cylinder and thereby transferring force to the rack from the steering wheel. As a result, there was no torque when Mr Richter [sic] turned the steering wheel. Mr. Richter [sic] felt horizontal movement in the joint; movement of the kind that both Mr. Aust and Mr. Hall later looked for, and were both unable to find. Mr. Richter [sic] looked for the possible cause of the movement in the horizontal plane that he had felt. He found the nut loose on the bolt. [emphasis added]
The first point relates to the Magistrate’s finding as to the use of the expression “torque”. The Magistrate found that neither Mr Aust nor Mr Hall “noticed any loss of torque when they turned the steering wheel” and that this contrasted with Mr Richer who said there was “no torque” when he moved the steering wheel”. The appellant submitted that this was a misunderstanding as to the use of the word “torque” which had no relevance to the turning or otherwise of the steering wheel. The only relevance of “torque” was in relation to the tightening or torquing of a nut to the requisite number of Newton metres. It was not a question of feeling or failing to feel a “loss of torque” in relation to the steering wheel. The finding therefore made no sense on the evidence. In relation to the torque, it was common ground that there was either no torque or minimal torque of the nut.
Further, with regard to the Magistrate’s reference as to what Mr Richer “felt”, which had not been felt by either Mr Hall or Mr Aust, I note the following: Mr Richer described feeling a movement in the lower joint and that at the time of inspection it felt like it had “jumped approximately two splines on the coupling.” As indicated above, when giving evidence, he acknowledged that he was wrong when he said there were splines on that model. He then corrected his evidence to say that the feeling was as though it had jumped on the lower coupling. It is also to be noted that Mr Richer was able to turn the steering wheel approximately six or seven millimetres, which compares in a general sense with Mr Aust who found there was movement in the order of five millimetres.
The appellant submitted that the Magistrate inappropriately used Mr Richer’s observation of what he felt. In particular, it was submitted that the Magistrate failed to distinguish his observation from his opinion as to its cause. Mr Richer’s opinion was that what he had felt was a rotation of the coupling around the pinion due to the loose nut. This opinion was disputed by the other experts. The following matters were submitted as demonstrating that even on Mr Richer’s evidence as to what he felt, this could not have been due to the loose nut: First, the movement postulated by Mr Richer meant that the coupling (the female part) which was made of metal was rotating around the pinion (the male part) which in turn was another piece of metal. Both parts were flat sided and one would have expected there to have been noise when this rotation occurred. There was none, according to Mr Richer.
Second, if this rotation had occurred, there would have been full movement of the front wheel all around, because the coupling would simply have rotated on the pinion without connection. On the contrary, in spite of using force to try and turn the wheel as hard as he could, Mr Richer was only able to turn the steering wheel six to seven millimetres. This compares in a general sense with what Mr Aust found, namely a movement in the order of five millimetres, which was the usual tolerance.
Third, when Mr Richer inspected the vehicle, the cam bolt and the coupling and pinion were all in place. This again suggested that there had not been the rotation which was responsible for the movement, which he said he felt.
Fourth, it was submitted that contrary to the Magistrate’s finding that Mr Richer observed “lack of movement in the front wheels”, Mr Richer’s evidence was that he had found movement, as previously set out.
Fifth, the appellant submitted that the Magistrate erred in finding that as a result of feeling the movement, Mr Richer then “looked for the possible cause of the movement” and that he then “found the nut loose”. On the contrary, Mr Richer’s evidence was that he saw that the nut was loose first and that this led him to try and turn the steering wheel hard around to see if he could turn it all the way around. He could not.
Finally, it was submitted that, taking Mr Richer’s evidence alone, Mr Richer said that it was only if there was an excess load or large pressure placed on the steering wheel or on the front wheels of a car that the steering connection might open up to allow the pinion to rotate inside the female part. However, he indicated that changing lanes would not be an excess load which would allow this to happen.
In summary on this point, the appellant submitted that the Magistrate’s primary findings as to the cause of the accident in reliance on the first theory, was clearly flawed.
Insofar as it may be open for the Magistrate on the evidence to have found that the second theory of Mr Richer instead applied, namely that the coupling may have ridden up on the pinion dislodging the joint, it was submitted that Mr Richer’s evidence did not support that this could have caused the damage. Such a theory would have, on Mr Richer’s evidence, resulted in there being a jamming of the universal joint and that the steering would have been tight. This is quite contrary to the respondent’s evidence that there was sloppiness in the steering, which affected her ability to change lanes prior to the car veering off the road. Therefore, even accepting Mr Richer’s evidence, this second theory could not provide the explanation for the damage in this case.
In my view, the appellant’s arguments as set out above are well founded.
Ground 3: Failure to have sufficient regard to the expert evidence of Mr Hall and Mr Aust
The appellant submitted that the Magistrate failed to carry out a proper analysis of the evidence of Messrs Hall and Aust, and as a consequence failed to have sufficient regard to their evidence.
Both Mr Hall and Mr Aust came to the conclusion that the nut was not causative of the accident. Mr Aust went further and postulated an alternative reason for the accident. Even if this alternative explanation of the accident was rejected, the onus of proof lay on the respondent to prove that it was the nut and its looseness which caused the accident and the subsequent damage.
With regard to the approach of the Magistrate to the mechanical engineering expert evidence, the Magistrate found as follows:
Mr. Hall’s evidence
In these reasons, I have not canvassed Mr. Hall’s evidence in detail, as at the end of the day it casts limited light on the issues I have to determine.
On the information he was given, a copy of a statement of the defendant recorded by her solicitor, and the observations of the vehicle that he made, Mr. Hall was unable to understand how the car made the movements he believed the defendant had described to her solicitor. He observed nothing that supported the plaintiff’s account of what happened. He was unable to understand how the defendant’s vehicle could have moved in the way that he was told the defendant said it moved. He did not agree that slippage of any kind could occur at the relevant connection while the bolt was in place.
I accept Mr. Hall’s evidence that when he examined the car, he turned the steering wheel. When he turned the steering wheel, the car’s front wheels moved. He was able to turn the steering wheel from lock to lock. He used greater force than would be used in normal driving.
I have two difficulties.
First, Mr. Hall’s evidence is of limited assistance in that he was given a copy of a statement made by the defendant to her solicitor. Neither party tendered a copy of the statement. I am by no means certain that Mr. Hall and I start from the same information from the plaintiff; indeed, as a result of various questions that were asked during the trial, I think it likely her evidence substantially expanded on that statement. Mr. Hall may well be privy to information from the defendant that was not put before me. He was clearly not given all of the information from other sources that counsel put before the court during the trial.
Second, Mr. Hall examined the car in a holding yard, after it had been moved twice, and examined by others. When Mr. Hall was asked to comment on matters raised by Mr. Richter [sic], the RAA examiner, he disagreed with Mr. Richter’s [sic] speculation that there was slippage on splines on the cylinder, saying there were no splines on the cylinder.
It does not automatically follow from Mr. Hall’s evidence as to his observations that if he examined the same vehicle as Mr. Richter [sic] examined, then Mr. Richter [sic] could not have made the observations he said he made. They did not see the same vehicle in the same or similar circumstances. They saw the same vehicle in circumstances widely separated in both time and space.
Mr. Aust’s evidence
Mr. Aust’s evidence as to his actual observations of the vehicle was not dissimilar to those of Mr. Hall, but in addition he examined the scene of the collision. Mr. Aust is not a forensic scene examiner, and objection was taken to his hypotheses about the way in which the accident happened. In my view, the defendant’s objection is well founded.
Mr. Aust’s measurements and general descriptions are of considerable assistance. His suppositions about marks in the area that he saw two months or more after the accident are of no assistance at all. There is no evidence any of them had anything at all to do with the collision, but it did lead him to contradict evidence given by the defendant on the basis of speculation.
In considering the Magistrate’s approach to these experts, it appears to have been in some respects tainted by her Honour’s identification of the major issue. It was not an issue of the credibility of Mr Richer. Further, the respondent’s evidence was not seriously challenged on credibility, rather it was her explanation for the events which occurred within a very short and anxious period of time which were contested. On major features there was no contest, namely that she was able to turn her vehicle into Port Road and change lanes, that she had noticed some sloppy movement of the steering wheel and that after she again changed lanes she continued to veer to the left and go off the road and hit a shop. She could not control this movement with the steering wheel.
The issue at all times was whether or not it was the inappropriate loose‑fitting nut which was responsible for this situation. It appears to be this error which led the Magistrate to conclude that “at the end of the day it (Mr Hall’s evidence) caste [sic] limited light on the issues I have to determine”. The Magistrate in so concluding, first refers to the difficulty and limited assistance given by Mr Hall because “he was given a copy of the statement made by the defendant to her solicitor” which was not tendered. Her Honour then postulates that she is not certain that Mr Hall started with the same information, as she did, and that he “may well be privy to information from the defendant that was not put before me”. This seems to be a matter of conjecture by the Magistrate. There is nothing in Mr Hall’s report or his evidence which suggests reliance on different information. Mr Hall was cross-examined and the relevant matters as to the respondent’s case were put to him. He did not alter the written conclusions in his report.
A second difficulty mentioned by the Magistrate was that Mr Hall examined the car in a holding yard after it had been moved twice and it had previously been examined by others. The Magistrate therefore found that he did not see the same vehicle in the same or similar circumstances. The Magistrate gives no indication in her reasons as to what may have relevantly changed, and also it is to be noted that Mr Richer said he did not disturb anything in the steering column from the way he had found it.
The appellant also pointed to Mr Hall’s evidence in relation to the first theory and Mr Richer’s report, in which he made the following points:
·Even if the nut had not been torqued up to the specified requirement, this factor would not enable the male part to slip inside the female part. In the course of his inspection he lifted the deflated right-hand tyre and was able to rotate the steering wheel from lock to lock and found no fault. He found no slippage when doing this and he performed that with and without the bolt in place.
·In order to dislodge the female part from the male part there would have had to have been a force which would exceed normal road-going conditions.
Further, it was submitted that when Mr Hall dealt with the second theory, namely coupling riding up the pinion and dislodging the universal joint, his evidence was that if this had happened, the driver would not have been able to turn the wheel. This was similar to the evidence of Mr Richer.
I agree with the appellant’s submissions that the Magistrate’s approach in relation to Mr Hall’s evidence seems to indicate misunderstanding. Looked at carefully, Mr Hall’s evidence was similar in outcome to that of Mr Richer, namely that in the circumstances of this case, having regard to the respondent’s description of events, neither the first, nor the second theory were applicable.
With regard to the Magistrate’s approach to Mr Aust’s evidence, her Honour’s criticism was directed to his alternative hypothesis for the accident. This does not mean that his overall evidence should have been rejected. Mr Aust’s evidence on other matters should have been analysed by the Magistrate. Further, the Magistrate noted that the observations of Mr Aust were “not dissimilar to those of Mr Hall”.
I therefore consider that the Magistrate erred in failing to appreciate the full significance of the experts’ evidence which, if properly analysed, would have revealed that neither of Mr Richer’s two theories were practically applicable in the circumstances of this case.
Ground 4: The use of the photographs
The appellant submitted that the Magistrate misused photographs taken on a number of occasions in respect of the steering wheel alignment and the front wheel alignment of the car. Both counsel agreed that the Magistrate’s use of photographs did not form the basis of her decision, but were used to further support her conclusion as to the cause of the accident.
The Magistrate made the following observations in relation to photographs, on p 7 of her reasons:
In each set of photographs, gross disparity appears between the position of the front wheels and the position of the steering wheel. The front wheels are pointed directly forward. The front wheels are in the position they would be in if the car was moving forward in a straight line. In every photograph, the steering wheel is not in the position it is designed to be in when the car is travelling forward in a straight line. It is turned hard to the right.
When Mr. Aust and Mr. Hall each turned the steering wheel, without using power steering, and the wheels moved. Neither of them noticed the disparity evident on the face of the photographs, but it must have been present at the very least at the time of Mr. Aust’s inspections.
Further, at p 8 of her reasons the Magistrate says:
…The front wheels pointing forward in all three sets of photographs point forward because the wheels had returned to the default position in the absence of force being exerted on them from the steering wheel: despite the driver turning the steering wheel hard right in response to the change in direction of the nose of the car.
It would appear that the Magistrate has used her observations of the photographs to support her conclusion that it was the loose nut which resulted in the front wheels not responding to the steering wheel.
The appellant submitted that the Magistrate erred in her interpretation of the photos in a number of ways: First, that her Honour misapplied Mr Aust’s evidence as to the general nature of a steering system being self-aligning.
Mr Aust gave evidence that in the absence of the steering wheel controlling the steering system, the front wheels will tend to self-centre or self-align. Both Mr Aust and Mr Hall also gave evidence that this self-aligning only occurs when a car is in motion. The photographs in this case were all taken when the vehicle was in a stationary position and had been placed in various positions after it had crashed into a building, and after a tow truck operator had hoisted it up and towed it away.
In my view, these factors provide a reasonable explanation for the Magistrate’s observation of a “gross disparity” of alignment between the position of the steering wheel and the wheels shown in the photographs.
The photographs were taken on four different occasions. Two sets were taken within a few days of the accident in late June 2004. The first in time were taken by the respondent’s mother-in-law at the respondent’s home, the morning after the accident (Exhibit P5). The second were probably the photographs taken by Mr Richer on 21 June 2004, three days after the accident (Exhibit P6). The third set were probably those taken by the Loss Assessor, and it is not known when they were taken, but they were provided to Mr Aust prior to his inspection (Exhibit P8). The final set of photographs were taken by Mr Aust four months after the accident in August 2004. By the time Mr Aust took these photographs, the car’s tyres and wheels had been removed and replaced.

In making her observations, the Magistrate makes no reference to the specific evidence of Mr Hall on the effect of the photographs, nor of the conditions in which the photographs were taken.
Mr Hall was initially cross-examined with regard to the Loss Assessor’s photographs which, Mr Hall agreed, showed that the steering wheel was turned to the right but the wheels were straight ahead. It was suggested to Mr Hall in cross-examination that this position was inconsistent with a “normal operation of the steering”. Mr Hall agreed. It was then suggested that this meant that there had been a failure in the steering system. Mr Hall replied “either that or the way the steering was set up”.
Later in his evidence Mr Hall was taken to the photographs taken by Mr Aust (Exhibit D3). Mr Hall indicated that the depiction of some 90 degrees rotation to the right of the steering wheel, but showing only a five degree difference in the direction of the front wheels, did not necessarily indicate a fault in the steering system. His evidence was that such rotation movement of the steering may produce only a small change in the angle of the wheels. Mr Hall pointed to other photographs (Exhibit P5) which showed that the steering wheel was turned to the right and that the position of the wheels was of a similar alignment to that of the steering wheel.
The appellant submitted that the Magistrate erred in concluding that the apparent disparity shown in the photographs supported her conclusions. It was submitted that there is an explanation for the alignments other than there being a fault in the steering system, particularly bearing in mind the relevant expert evidence of Mr Hall.
As this matter was not used as a basis for the Magistrate’s reasons, I simply note that her observation would not necessarily be supportive of the conclusion that she draws. In my view the photographs do not support the conclusion that there was a steering failure.
Conclusion as to appeal grounds
For the reasons set out above, I consider that the Magistrate erred in her approach to the case. Her Honour failed to ask the correct question and disclosed errors of understanding of the evidence. In particular, she failed to appropriately address and analyse the expert evidence given by Messrs Aust, Hall and Richer. Accordingly, I would allow the appeal.
I must now consider what is the proper course to follow, whether to order a retrial or whether I should substitute the decision of the Magistrate.
In this case, having reviewed all of the evidence for the purposes of the appeal, and by reason of the conclusions I have reached as set out above, I consider that the evidence, particularly that of the experts, overwhelmingly indicates that it cannot be proved on the balance of probabilities that the cause of the accident was the loose nut on the cam bolt. Accepting the respondent’s description of her driving on the night, all the evidence given by the experts, when properly analysed, does not satisfy me on the balance of probabilities that the incorrect and loose nut caused her accident and resultant damages. Therefore, the appellant is not liable for damages, either in negligence or under contract. Whilst it is not necessary to find an alternative cause for the accident, I note that the respondent had only had the car a short period of time, a matter of days. During that period of time the vehicle had been taken away for repairs and returned. It was evening and the conditions were wet. She had only just rounded a 90 degree corner, she was travelling at 50 kilometres per hour. The accident occurred only a short distance away from the intersection after the respondent had changed lanes twice. A number of these features were raised by Mr Aust in his report. The combination of these events may well have been causative of the accident. However, this is not a matter that the appellant is required to prove.
In deciding to substitute the Magistrate’s decision, I note that the Magistrate’s findings largely concerned her treatment of the experts’ opinion evidence rather than matters which concerned findings of credit. This Court is therefore not subject to the restraints in discharging its appellate functions as articulated in Devries[4] Further, in my view, it is unlikely that in a second trial, the parties would significantly alter their evidence. The objective evidence is so strong that a retrial would be futile. For all these reasons, I consider that this Court is in a good position to substitute its decision for that of the Magistrate. Accordingly, I find that I am not satisfied that the claim for damages has been proved and I make the following orders:
[4] Devries v Australian National Railways Commission (1993) 177 CLR 472, 479, per Brennan, Gaudron and McHugh JJ. Discussed in Fox v Percy (2003) 214 CLR 118.
1.The time within which the appellant be entitled to appeal be extended to 7 December 2006.
2.That the appeal be allowed.
3.The order of the Magistrate entering judgment in favour of the respondent is set aside.
4.That the third party claim be dismissed and judgment be entered in favour of the appellant.