Butch Pet Foods Ltd v Mac Motors Ltd
[2017] NZHC 2473
•10 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-411 [2017] NZHC 2473
BETWEEN BUTCH PET FOODS LTD
Appellant
AND
MAC MOTORS LTD Respondent
Hearing: 18 July 2017 Appearances:
P T Finnigan for Appellant
M Wilkinson, Director of RespondentJudgment:
10 October 2017
JUDGMENT OF BREWER J
This judgment was delivered by me on 10 October 2017 at 4:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Romaniuk & Associates (Auckland) for Appellant
(Copy to Respondent in person)
BUTCH PET FOODS LTD v MAC MOTORS LTD [2017] NZHC 2473 [10 October 2017]
Introduction
[1] Butch Pet Foods Limited (“Appellant”) appeals the oral judgment of Judge
ME Sharp in the District Court on 14 February 2017 (“Judgment”).1
[2] The Appellant carries on business in Manukau as a pet food manufacturer.
Mac Motors Limited (“Respondent”) is a company that carries out motor repairs.
[3] The Appellant owned a Hino truck (“Hino”) which suffered a mechanical failure after having travelled 293,193 kilometres. The Respondent repaired the Hino on 8 November 2012. Judge Sharp explained what repairs were undertaken:
[9] It is agreed that on or about 8 November 2012 [the Respondent] removed the Hino’s engine flywheel from the crankshaft of the Hino to have it machined. It is also agreed that the flywheel was bolted back onto the crankshaft again by [the Respondent] afterwards, new clutch components were attached to it, the gearbox was installed, the Hino mobilised and returned to [the Appellant].
[4] The Appellant continued to operate the Hino until 25 February 2013 when it suffered a failure of the gearbox or clutch assembly unit while being driven by Mr Leroy Remmerswaal on the Papakura-Clevedon highway. The Hino had only travelled a further 18,172 kilometres by that date, which “is absolutely nothing of the longevity that one would expect”.2
[5] The Hino was delivered to Airport Oaks Vehicle Repair Services Limited (“Airport Oaks”). Airport Oaks advised that the breakdown occurred as a result of clutch failure. The Hino was then delivered to the Respondent. After examining the Hino, the Respondent refused to acknowledge liability.
[6] The Appellant sued the Respondent alleging that it negligently repaired the gearbox or clutch assembly unit of the Hino on 8 November 2012. The claim was for $32,545.77.3 The Respondent denied responsibility and instead claimed that the
Appellant’s employees caused the failure through driver abuse.
1 Butch Pet Foods Ltd v Mac Motors Ltd [2017] NZDC 2826.
2 At [11].
3 This figure included towing costs, Airport Oaks’ cost of repair and the cost of a substitute
vehicle.
[7] It is accepted that the flywheel together with the clutch completely departed from the crankshaft. The eight assembly bolts which secured the flywheel to the crankshaft became loose in the process of failure. The disagreement is over the cause of failure.
[8] Judge Sharp preferred the evidence of the Respondent’s expert witnesses.
Ultimately, she took the view that the failure likely resulted from driver abuse.4
Approach on appeal
[9] The appeal proceeds by way of rehearing.5 Those exercising general rights of appeal are entitled to judgment in accordance with the independent opinion of the appellate Court. In undertaking its assessment, the appellate Court will take into account any particular advantages enjoyed by the trial judge, such as those possessed by a Judge in determining questions of fact, particularly where assessments of credibility and reliability are concerned.6 The Appellant ultimately bears the onus of
persuading the appellate Court to reach a different conclusion.7
[10] I note at this point that Judge Sharp did not address the legal components of the negligence asserted by the Appellant. The Judge simply looked at factual issues and reached her conclusion. I take it that clearly the Respondent owed the Appellant a duty of care when repairing the Hino. The legal issues are whether the duty was breached and, if so, whether the breach was causative of the damage. I will examine the evidence against the conclusions of Judge Sharp to reach my own view on these issues.
Ground of appeal
[11] In the amended notice of appeal dated 17 April 2017, the Appellant listed the overall ground of appeal as:
6. … the appellant did not receive a fair reasoned hearing: the Judge
did not reason why she preferred the [Respondent]’s experts, namely,
4 At [63].
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
6 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [31].
7 Green v Green, above n 6, at [30].
did not grapple with the dispute between the experts, specifically, what the [Appellant]’s experts stated and why their opinion should be rejected in favour of the [Respondent]’s experts.
A Judge’s obligation to give reasons for his or her decision
[12] In the absence of a statutory requirement, there is no invariable rule that
Courts must give reasons for their decisions.8 The Court of Appeal in Lewis v Wilson
& Horton Ltd has stated three main reasons why the provision of reasons by Judges is nevertheless desirable:9
[76] … Most importantly, the provision of reasons by a Judge is an
important part of openness in the administration of justice …
…
[79] The principle of open justice serves a wider purpose than the interests represented in the particular case. It is critical to the maintenance of public confidence in the system of justice. Without reasons, it may not be possible to understand why judicial authority has been used in a particular way. The public is excluded from decision-making in the Courts. Judicial accountability, which is maintained primarily through the requirement that justice be administered in public, is undermined.
[80] The second main reason why it [is] said Judges must give reasons is that failure to do so means that the lawfulness of what is done cannot be assessed by a Court exercising supervisory jurisdiction. Those who exercise power must keep within the limits imposed by law. They must address the right questions and they must correctly apply the law. The assurance that they will do so is provided by the supervisory and appellate Courts. It is fundamental to the rule of law … It is important that sufficient reasons are given to enable someone affected to know why the decision was made and to be able to be satisfied that it was lawful …
[81] The reasons may be abbreviated. In some cases they will be evident
without express reference …
[82] The third main basis for giving reasons is that they provide a discipline for the Judge which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice …
[13] Ultimately, it must “always be good judicial practice to provide a reasoned
decision”.10 Judges should “always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion”.11
8 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75]; R v Awatere [1982] 1 NZLR 644 (CA) at 647.
9 Lewis v Wilson & Horton Ltd, above n 8.
10 R v Awatere, above n 8, at 648.
11 R v Awatere, above n 8, at 649.
But there is no “inflexible rule of universal application”.12 This Court has the discretionary right to quash a decision, or return the case for rehearing in the District Court, should that be necessary in order to avoid injustice.13
[14] The Appellant cites two English Court of Appeal decisions which it says are of assistance.14 The Court in Flannery v Halifax Estate Agencies Ltd reviewed a lower Court judgment which had found for the defendants in a negligence claim.15
The plaintiffs sued a surveyor, the defendants, which had incorrectly certified that a house did not contain any undue landslip hazards. Each side had called expert valuers and engineers. The ground of appeal was that the Judge failed to address and/or satisfactorily resolve the conflict of expert evidence, as to whether the plaintiffs’ property was so affected, other than by stating that he preferred the expert evidence given for the defendants, but without giving any reasons.
[15] The Court of Appeal noted that the case raises “in stark form the question when the failure of a judge at first instance to give reasons for a conclusion essential to his decision may of itself constitute a good ground of appeal”.16
[16] The Court reiterated that “today’s professional judges [owe] a general duty to give reasons … although there are some exceptions”.17 But it recognised that:18
It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various
…
…
(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange,
12 R v Awatere, above n 8, at 649.
13 R v Awatere, above n 8, at 647-648.
14 Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 (CA); English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 3 All ER 385.
15 Flannery v Halifax Estate Agencies Ltd, above n 14.
16 At 381.
17 At 381.
18 At 381-382.
with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.
(4) … The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.
[17] In that case, the Court held that the Judge was under a duty to give reasons and did not adequately do so. Without those reasons, the judgment was “not transparent, and we cannot know whether the judge had adequate or inadequate reasons for the conclusion he reached.”19 The Court allowed the appeal on that sole ground and ordered a new trial.
[18] The Court in English v Emery Reimbold & Strick Ltd faced a similar situation.20 It reiterated its earlier reasoning, noting that the adequacy of reasons depends on the nature of the case.21 In respect of the appellate process, it commented:
[19] It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained … It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, i[t] may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon.
[20] … He should simply provide an explanation as to why he has accepted the evidence of one expert and rejected that of another. It may be that the evidence of one or the other accorded more satisfactorily with facts found by the judge. It may be that the explanation of one was more inherently credible than that of the other. It may simply be that one was better qualified, or manifestly more objective, than the other. Whatever the explanation may be, it should be apparent from the judgment.
[21] When giving reasons a judge will often need to refer to a piece of evidence or to a submission which he has accepted or rejected. Provided that the reference is clear, it may be unnecessary to detail, or even summarise, the
19 At 383.
20 English v Emery Reimbold & Strick Ltd, above n 14.
21 At [17].
evidence or submission in question. The essential requirement is that the terms of the judgment should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the judge’s decision.
Issues
[19] I have identified four factual issues for determination in this appeal. I will refer to them as:
(a) The transport bolt issue;
(b) The under-tightening issue; (c) The locator dowel issue; and (d) The driver abuse issue.
The first three issues relate to the Appellant’s case. The fourth to the Respondent’s
case.
[20] If I dismiss the appeal, I will have to determine the Appellant’s challenge to disbursements incurred by the Respondent which Judge Sharp ordered the Appellant to pay.
[21] The Respondent submits that the failure was due to driver abuse in two forms:
(a) The washing out of the inside of the Hino’s driver’s cab; and
(b)The damage to the starter motor which was brought about by two practices:
(i) Stall-stopping the Hino in gear; and
(ii) Roll-starting the Hino or simply turning on the motor when the
Hino was in gear.
[22] The Respondent’s general submission relates to Judge Sharp’s conclusion that the science presented by the Respondent’s experts was unassailable and unchallengeable in scientific theory. The Respondent submits that any failure to grapple with the dispute between the experts lies solely with the Appellant and its experts. The Appellant’s experts did not have the training and the scientific background to understand and fully accept the physics and technical aspects of the case. They instead resorted to opinion and speculation.
The experts
[23] The Appellant called three experts:
(a) Mr Paul Barton – an experienced automotive mechanic;
(b)Mr Peter Cress – the general manager for Hino trucks in Auckland and an experienced automotive mechanic; and
(c) Mr Peter Wilcox – a metallurgist (Mr Wilcox is the principal of
MetalTest & Associates Limited, a metal consulting business).
[24] The Appellant also relied on the evidence of Mr Remmerswaal and Mr David Cox. They were both drivers of the Hino. Ms Yvonne Mansor was also called (she is an employee of the Appellant). Lastly, the Appellant called Mr Mohammed Sahib, the employee from Airport Oaks who first attended to the Hino after it broke down.
[25] In contrast, the Respondent called two experts:
(a) Mr Timothy Smithson – an experienced automotive engineer; and
(b)Dr Jonathan Smith – a metallurgist (Dr Smith operates a business called Optimech which specialises in ascertaining the causes of metal failure).
[26] The Respondent also relied on the evidence of its director, Mr Courtney
Evans. Mr Evans carried out the initial repair work to the Hino and examined the
Hino when it was returned to the Respondent’s premises by Airport Oaks. The Respondent further called three former and current employees of the Appellant to give evidence of driver abuse, namely Mr Tony Holmes, Mr Anthony Vincent and Mr Malcolm Bell.
The transport bolt issue
Background
[27] The Appellant generally submits that the Respondent left a transport bolt in the clutch cover plate that unbalanced the clutch pressure plate componentry and caused vibration, which eventually caused the flywheel bolts to loosen and then fracture (either in combination with the incorrectly torqued flywheel bolts or on its own).
[28] Judge Sharp described the factual background:
[23] … [the Appellant] called evidence from Mr Sahib of Airport Oaks to say that when he had the truck towed back to his premises and began to dismantle the gearbox to see what the problem was, he found a red-coloured shipping bolt fitted to the cover assembly ... [the Appellant]’s experts have leapt onto it and determined that this must have been, if not the cause of the failure, one of the causes and that Mr Sahib’s evidence as to finding the transport bolt must have been correct.
[29] In his statement dated 12 January 2016, Mr Sahib describes his inspection of the Hino after it arrived back at Airport Oaks’ premises:
14.I also noticed that in the clutch pressure plate was one of four temporary hold-down bolts, still intact and fitted into its hole and thread. Its head was painted red. The hold-down bolts are there to assist the fitting of the clutch pressure plate and clutch plate to the flywheel on the crankshaft …
[30] Mr Sahib was questioned on this point in cross-examination:22
Q. Were there any shipping bolts left in that flywheel? A. Yes.
Q. Did you mention that to anyone?
A. I think I spoke to Yvonne [Mansor] about that.
22 Notes of evidence at 98, line 6.
Q. That would be approximately a year later when she stated she came to visit you and showed you a photograph, would that be the time that you first noticed the shipping bolt?
A. No we showed at the time because when I rang the office that you guys had done the job, better take it back to you guys.
[31] It continued:23
Q. You sent a summary of your findings to [the Appellant] – you sent a
report to [the Appellant] of your findings, and there’s – on the 26th? A. Yeah.
Q. Is that correct? A. Yes.
Q. And you did not mention the shipping bolt in that report? A. No.
Q. Why didn’t you mention the shipping bolt?
A. I attended the breakdown work, we did the job and we told them that the crankshaft bolts had all been broken, correct?
[32] The Appellant’s experts stated that a transport bolt was left in when they
examined the relevant components of the Hino.24
[33] Mr Evans for the Respondent gave evidence that no transport bolts were present when the Hino was delivered to the Respondent for repair after the gearbox failure. He put four transport bolts in the Hino’s clutch cover plate because he thought that the repair task was going to be the Respondent’s. But that did not prove to be the case. Mr Evans said he was under time pressure when the Appellant came to retrieve the clutch pressure plate and he left one transport bolt in place. That would explain why the Appellant’s experts saw one there when they examined the relevant components of the Hino. In his written statement dated 21 January 2016, Mr Evans explains:
14.I retrieved the shipping bolts from my tool box and fitted them to the clutch pressure plate assembly, so as I could remove it from the flywheel. This is the recommended practice as found in the Hino workshop manual. It is done this way to prevent damage to the cover retaining bolts and the threads in the flywheel …
…
23 Notes of evidence at 99, line 20.
24 See the written statement of Paul Henry Barton dated 12 January 2016 at [35]; the written statement of Peter John Wilcox dated 22 April 2016 at [72](a).
20.About the 18th or 19th of March 2013 I received a telephone call from Yvonne Mansor of [the Appellant] asking if we had the clutch pressure plate as it was needed by Airport Oaks. I told her yes and she could pick these up at anytime. Yvonne informed me she would pick it up shortly. When I got the pressure plate out I noticed the 4 shipping bolts were still fitted to the pressure plate.
21.I decided to remove the shipping bolts prior to her picking up the pressure plate. Because of the time constraint on doing this I went about this the wrong way and found it very difficult to remove the last remaining bolt. Yvonne arrived to pick up the pressure plate and I gave it to her with one shipping bolt still fitted.
[34] Judge Sharp explained:
[24] Mr Evans of [the Respondent] denies that the truck ever left with a transport bolt in. He asserts that after the failed vehicle came back to him he began to dismantle the gearbox; before doing so he put four transport bolts in, then decided that [the Respondent] would not take responsibility for the failure; so he then removed three of the four transport bolts that he had fitted in order to allow him to dismantle the assembly manufacturer’s specifications. But when an employee of [the Appellant], Yvonne Mansor, came to pick all of the relevant parts up to take elsewhere, being in something of a hurry and having been unable to remove one, he left it in there.
[35] There were attacks on Mr Evans’s credibility on this matter. Initially, Mr Evans said he retrieved and used on the occasion the same transport bolts he used in the original repair. The evidence of Dr Smith for the Appellant established that this was incorrect. The bolt Mr Evans said he left in the clutch pressure plate when it was collected by the Appellant after the failure was not one of the bolts used originally. It was suggested that Mr Evans had tailored his evidence. The Appellant also suggested that the lack of a job card, despite Mr Evans’s vast industry experience, called into question the reliability of his evidence.
Point on appeal
[36] On appeal, and in relation to this issue, the Appellant submits that Judge Sharp failed to consider and deal with Mr Wilcox’s evidence of damage to the circumference wall of one of the four boss holes of the clutch plate into which the four transport bolts are screwed (“Boss No 3”). The evidence supported the theory that the transport bolt had been left in following repair. The Appellant submits that the damage could only have been the result of the transport bolt being left in by the
Respondent. In this regard, it contends that the Judge’s description of the issue as
“something of a red herring” was an error.25
[37] In contrast, the Respondent submits that there was no physical or scientific evidence as to what caused the damage to Boss No 3. It further submits that the Appellant failed to prove that an imbalance caused by a transport bolt being left in could cause the flywheel bolts to loosen and fracture. It notes that one transport bolt weighs approximately 57 grams compared to the overall weight of the clutch and flywheel assembly at 82,000 grams.
The relevant evidence
[38] For transporting and assistance in assembly it is common practice for clutch pressure plates to come with four transport bolts. These are normally painted red and hold the pressure plate tension springs in a partially compressed state. Once the flywheel bolts are torqued to the correct specification, the bolts must then be removed. On their removal, the springs attached to the clutch pressure plate expand and clamp the clutch plate to the flywheel.
[39] In his written statement dated 22 April 2016, Mr Wilcox identified the specific damage to Boss No 3:
43.As there is an issue over whether there was or was not a transport bolt left in the clutch pressure plate after [the Respondent]’s had repaired the vehicle, I considered it was important to inspect and examine the condition of the bolting bosses (these are the threaded sections of the clutch pressure plate which the transport bolts are threaded into by the manufacturer) with regard to all four thread conditions. I carefully removed the 4 cap screws, 8 retaining bolts and 4 nuts securing the clutch cover to avoid a sudden spring release. The objective was to ascertain the comparable condition of that single transport bolt to its female counterpart.
44.Having done that, I discovered that the transport bolt had been screwed into one of the holes or “bosses”. I unscrewed the single transport bolt. I weighed the bolt and the washer. The bolt and washer weigh 57 grams. I then took three photographs of that one transport bolt … In other words, I photographed the outer circumference thread of that one entire transport bolt …
25 At [23].
45.I observed seven thread turns with damage and entrapment between the crests of the threads, but with no cross-threading evidence. At this point the damage coincides with thread damage in the female bolting bosses on the pressure plate in two of the bosses …
46.… Boss 3 is Photograph 27. Photograph 29 shows a close-up photograph of fractured boss No. 3[.]
47.I noted that the severe overload rupture to the wall of Boss No. 3 is greater than 50% of the diameter and therefore would provide no locking ability whatever to the transport bolt and therefore could not be placed here after the failure or it would fall out.
…
50.From my examination of Bosses numbers 1 and 3, I observed similar thread damage to the Bosses to that in the transport bolt. The transport bolt is harder than the material making up the bosses, which is cast iron. Cast iron has little (to) no ductility meaning it is rather brittle. If one screwed the damaged transport bolt into an undamaged Boss of cast iron strength, then the damaged thread of the transport bolt would replicate the same thread damage in that Boss.
…
52.Because of the damage to the outer head of Boss number 3, it is likely that this single transport bolt was affixed to Boss No.3 for the life of this clutch, after repair by [the Respondent]; that it suffered or caused vibration or hoop tensile stresses which caused the boss to rupture …
53.I also observed in one quadrant less surface contact between the clutch plate and the pressure plate as indicated by the impressions left by the clutch pads. This quadrant is associated with the fractured transport bolt boss on the opposite face of the clutch pressure plate: see photograph 30. Photograph 30 shows less clutch pad impressions in one quadrant of the clutch pressure plate in close proximity to fractured boss No.3 confirming that in all likelihood the transport bolt was present in boss No.3 when the clutch was installed by [the Respondent].
54.In my opinion, the effect of the presence of the one transport bolt and its likely effect on vibration of the clutch pressure plate, tends to confirm the potential of the clutch pressure plate to impose vibration through the clutch pressure plate; to clutch plate; to flywheel; to crankshaft-connection … By leaving the transport bolt in the clutch pressure plate, [the Respondent] has introduced 57 grams of metal in a position well away from the balancing hole and this has completely compromised the integral balance of the clutch plate to an extent which cannot be ignored. Given that the manufacturer has deemed it necessary to remove 20 or so grams of mass from the clutch pressure plate to obtain the degree of balance required the addition of 57 grams from the one transport bolt left in will result in unacceptable imbalance and hence vibration. It is likely that the presence of the
single transport bolt introduced significant detrimental vibrations which led to the loosening or contributed to loosening of the flywheel bolts …
[40] As a result, Mr Wilcox stated that this tends to support the evidence of Mr Sahib that he saw a transport bolt in the clutch cover plate when he inspected the damaged clutch components. In summary, Mr Wilcox noted:
68.Failure of flywheel bolts is rare and abnormal. I have associated with this failure an abnormally operating clutch. Abnormality includes the one transport bolt having been left in the clutch assembly at time of installation …
…
72. I observe:
(a) Fact 1. The transport bolt was left in the clutch pressure plate. Two mounting bosses have thread damage and one boss – the boss where we believe the mounting belt was left in – has cracked. Due to its weight (57g) the presence of the transport bolt would likely have induced vibration greater than what is normally expected and designed for.
…
73. My summary of findings are:
…
(c) at least one transport bolt was left installed in the clutch pressure plate at time of installation.
(d) I found one transport bolt mounting boss in the clutch pressure plate has fractured (Boss number 3) with associated thread damage and the opposite mounting hole (Boss number 1) is also thread damaged.
(e) the presence of the transport bolt has introduced vibration and poor mating contact of the clutch plate that has also introduced rotational vibration.
[41] Judge Sharp questioned Mr Wilcox on this point during his evidence-in- chief:26
Q. And if, for example, I was to accept the evidence of the defence that that transport bolt was never in during the life of the truck and prior to the accident, what would you then say?
26 Notes of evidence at 536-538.
A. Then how did boss number 3 break? I thought, and remember I’ve said, got these [score] marks in the clutch plate. Fifth level that’s missing from boss number 3 that fractured off didn’t simply fall out, it can’t have, there’s not much room. What I believe most likely happened, and like a lot of this evidence is another balance of probability is that that piece of metal, that broken piece of cast iron that’s inside the springs during the rotation of the clutch has got trapped between the spring coils and when the clutch is operated it probably crushed it and expelled it, and it’s possible, and it’s – again we’ll never know, that that’s what’s caused these score marks. But to be fair those score marks, these parts have been rumbling around in that bin so I can’t prove if they didn’t, in fact, they weren’t in fact damaged by the crankshaft either. But it is what it is. So I thought that, we know [the Respondent] have stated that they, when they got the clutch back, they put the four transport bolts back in to assist in getting it off the flywheel. It is possible that they’ve gone and broken that boss number 3 doing that. That’s quite possible. If they’ve done it, they would have known they’d done it. They would have, as they tightened that bolt and the bolt – boss number 3, they would have heard the metal fracture and also if that happened I would have found the fragment in there. And I didn’t. So all I can state is that it shows with – in my opinion a fair degree of probability that boss number 3 was fractured because a transport bolt was in there after it was – the clutch was placed on the flywheel by [the Respondent] and was there for 18,000 kilometres prior to failure, and most likely the one Mr Sahib saw.
…
Q. So are you saying that there is no other way that boss number 3 could have fractured than if there was a transport bolt in it?
A. I can’t think of any other way, I’ve got two clutch pressure plates
that were thrown out at track stops that had done 500,000 kilometres and when I look down where the transport bolt would be all the
bosses are perfect. So, if I can put it back together, there’s two of
these, roughly like that.
…
A. … So that piece of metal that’s in there has got to get out and I maintain that it probably got crushed in the springs during the revolving of the pressure plate, because I can’t find it. And I’m happy to hear if there’s any other explanation, but I can’t think of one. The only one I can think it was, as I say, that when [the Respondent] put the four original bolts back in they could have fractured it. But then I would expect, one, they’d know they’d done it, and, two, the piece of metal should still have been there.
[42] Mr Wilcox also faced cross-examination on the point.27 In particular:28
Q. Boss number 3, you don’t know how that damage was caused.
27 Notes of evidence at 561-565.
28 Notes of evidence at 563.
A. No, I don’t and I’m suggesting to the Court that the only thing I can think of is that when the clutch was installed, one transport bolt, not that one –
Q. So, there’s two transport bolts?
A. No, just one was in boss number 3.
[43] It continued:29
Q. Well why did you make relevance, reference to the broken boss making those score marks if you’re not 100% certain that it did make the score marks?
A. I just said it’s a possibility.
[44] Mr Evans did not address the damage to Boss No 3 in his written statement. The issue was eventually put to him when he was recalled.30 He denied that the damage would have been caused by something the Respondent did wrong during the repair. During cross-examination, he instead indicated that he may have damaged Boss No 3:31
Q. Would not a better time period to be putting to the witness be, “Between when you installed the new clutch and when the damaged pieces were returned to you, how did boss number 3 become damaged?
A. I, I would have to say that I damaged boss number 3 installing the shipping bolts after the truck had failed and was returned to us. I
would also have to say that that broken piece and this damaged bolt
wouldn’t have been discovered until, I think it was Mr Barton
removed the bolt.
[45] The Appellant noted that if that were the case – where was the fractured fragment from Boss No 3? It was not present when Mr Wilcox examined the clutch after and could not simply have fallen out. When questioned on that point, Mr Evans stated:32
Q. The words, “I would have to say” do you accept are certainly far
from definite, you don’t really know do you, how that happened?
A. I don’t really know how it happened, although it is a logical
conclusion of what usually happens when you install an incorrect bolt into quite a thick cast iron casting. Cast iron is very brittle, it
does fracture easily.
29 Notes of evidence at 565, line 19.
30 Notes of evidence at 689.
31 Notes of evidence at 699, lines 13-19.
32 Notes of evidence at 701-703.
Q. And you would agree that in these sort of situations, when parts such as boss number 3, where the outer wall fractures, is not an exact science. In other words go a certain number of kilometres, maybe a hundred thousand or more, before it fractured finally?
A. No, there’s absolutely no evidence that that piece on boss number 3
was fractured during service.
Q. No, we’re not suggesting to you that it was damaged during service, what we’re suggesting to you is that following completing of service you left in one of the transport bolts and whilst it was run from then until February 2013, the outer boss referred to as number 3 by Mr Wilcox, fractured?
A. I would say that statement’s completely incorrect. There is no signs that [the] boss, the broken part has come away during service. There
is absolutely no marking, it would have rattled around inside the
cover if it had done one kilometre and was fractured where the piece had come apart.
Q. And you’ve heard the evidence –
A. And the bolt would have fallen out if it was there.
…
Q. And you’re aware of the evidence of Mr Wilcox that in his view it could only have fractured in that period between the completion of your service and it’s failure out at Clevedon on the 25th of February
2013?
A. I’d have to say that’s incorrect because when it was service[d] there
was no shipping bolt installed.
Q. And he said that if the fractured piece of boss number 3 fell from its position whilst it was being operat[ed] up to the point of failure on the 25th of February, it would have pulverised. So it wouldn’t have been there for you to look at once the vehicle had failed?
A. If that broken piece had come away when the vehicle was in service, it would have had to have [left] some kind of telltale marks which I’m sure throughout this Court case the various metallurgist chemists and others would have pointed it out to us. There is no evidence that that part has came away in service.
Q. Just assume for a moment that it did come away for service in that period, come away from its position in boss number 3 during that period, from when you repaired to when it failed, you accept that with the movement that was going on, that little piece would have fractured – would have pulverised?
A. There’s nothing really in the clutch mechanism to pulverise it. It would have rattled around and it would have left telltale marks that it had come away during service which I’m sure if there were those marks, [they] would have been pointed out to us by now, because it would be fantastic evidence that it did come away during service.
Q. Well Mr Wilcox was of the view that the pulverising would result from it being enmeshed with the springs.
A. There is absolutely no evidence of that ever happening.
[46] Commenting on Mr Wilcox’s statement dated 22 April 2016, Dr Smith noted in his written statement dated 11 August 2016 (see also paras [44] and [45]):
40. … [in relation to para 45 of Mr Wilcox’s statement]
I disagree with Mr Wilcox. The transport bolt has clearly been cross threaded. This is handling damage as result of the transport bolt having a different pitch thread to the boss on the clutch pressure plate.
41. … [in relation to paras 46-47 of Mr Wilcox’s statement]
I agree that Boss 3 has fractured and that the transport bolt would not stay in here after this fracture, if that is what Mr Wilcox refers to by
‘failure’, refer to Figure 15.
The photograph of the Boss at No.3 is heavily corroded and appears to be an old fracture. Figure 29 shows the boss fitting. It is has no significance in the cause of failure.
42. … [in relation to paras 48-50 of Mr Wilcox’s statement]
The above statements are inconclusive and speculative in nature.
43. … [in relation to para 52 of Mr Wilcox’s statement]
This statement has been shown to be incorrect for the following reasons.
I have examined the transport bolt and boss holes. Using a thread pitch gauge, I have measured the transport bolt thread pitch in an undamaged area and found it to have a pitch of 1.25mm. A copy of the boss threads 1 to 4 were made using Microset synthetic rubber replicating compound. This can be used to accurately measure internal pitch of a thread. Measurements were made using a thread pitch gauge to determine the thread pitch on the boss. The bosses measured all had a pitch of 1.5mm. The transport bolt was found to have been cross threaded to a 1.5mm pitch. Refer to Figure 16 and Figure 17.
It is concluded that the single transport bolt was never designed to fit the Hino clutch pressure plate on this vehicle as it has a different pitch thread. This is consistent with Mr Evans’ evidence that the transport bolt was only fitted after the failure of the flywheel clutch assembly when the gearbox and clutch assembly was at [the Respondent’s] workshop. The bolt was a random bolt from Mr Evans’ tool box.
If the cross threaded transport bolt had been properly screwed into Boss number 3 at any point then the full thread would be cross threaded and the full female thread of the boss would be damaged, not just the top portion, refer to Figure 15.
If the transport bolt failed in Boss 3 as suggested by Mr Wilcox, and was not able to stay in place as also suggested by Mr Wilcox, then it could not have been observed by Mr Sahib. Also, a metal part of fracturing off in service and the bolt coming out in this scenario at a few thousand rpm would cause significant damage to its surroundings and there is no physical evidence of this.
… [the Respondent] removed three of the four bolts but could not remove one of the bolts and left [it] in place. The examination that we have undertaken shows that the transport bolt in question was of a different pitch thread and was not that originally supplied by the Hino supplier of the clutch assembly. As this transport bolt was never designed to fit to the Hino truck it could not have been left in place after the installation of the clutch assembly.
[47] Dr Smith was not cross-examined on this point in any depth. But there was mention of the issue:33
Q. … How can you say that that was an old fracture, when it was a new part, right, when installed by [the Respondent] on the sixth of November 2012?
A. Well, to qualify that, I mean it’s an old fracture from the point at which I look at it, so at the point in time I’ve looked at it, it’s an old
fracture and it’s rusted, so it’s not a fresh fracture. I can’t – it’s not
possible to date from that appearance when that fracture occurred.
…
A. Again, I don’t know, I don’t know the condition of it, it may have had a crack in it, it may have occurred after the failure in terms of how that was disassembled, we just don’t know.
Q. Well do you accept that it’s probable that it happened between the period when the vehicle was repaired by [the Respondent] and when it broke down on the 25th of February 2013?
A. My view on it is it occurred at the time Mr Courtney Evans has done the disassembly, and I’ll just draw you some physical evidence of that, if you’d like …
[48] There was then a reference to Figure 15 of Dr Smith’s written statement which pictures Boss No 3. The discussion continues.34 A relevant part reads as follows:35
Q. … Do you accept that the likelihood is that that damage occurred
between the period that [the Respondent] carried out the work on the
6th of November 2012 and when the vehicle broken down out at
Clevedon?
33 Notes of evidence at 663-664.
34 Notes of evidence at 665-667.
35 Notes of evidence at 666, line 2.
A. No I don’t think the physical evidence fits with that, no.
Q. Well if you accept it’s more probable that that damage wouldn’t have been on that part when [the Respondent] did the repair. It has to be some time after the repair was completed and the vehicle returned to [the Appellant]?
A. No I don’t accept that. I think the physical evidence shows it clears
after the event, after the failure when Mr [Courtney] Evans has handled it.
…
Q. Thank you. Now if it happened in the period leading up to the breakdown at Clevedon, do you accept that the likely cause of that fracture of the wall of the boss was due to the presence of a transport bolt left in?
A. No, I don’t accept that at all.
Q. Well what caused it?
A. Well as I’ve said, the evidence would suggest it occurred after the event when Mr [Courtney] Evans has examined the, and done the
work on the assembly.
The Judgment
[49] Judge Sharp did indeed describe this overall issue as “something of a red herring”.36 But she acknowledged:
[25] If I accepted Mr Sahib’s evidence that he saw a transport bolt when he got the truck back to his premises and dismantled the gearbox, then the issue of what effect it might have on the truck and whether it could be considered a cause if not the cause of the failure of the gearbox would be important …
[50] Ultimately, Judge Sharp found “Mr Sahib’s evidence to be less than credible”.37 She commented:
[26] I found him to be vague. I found him to be unreliable. I found him to be inconsistent. In particular I note that he never said a thing about finding a transport bolt in this cover assembly in either the first, second or even third instances. It was quite some time before he alleged that he had found this. I am afraid that I do not and did not find him a credible witness and I am not prepared to accept his evidence on that matter, or indeed many of the others matters of which he gave evidence.
[27] In particular, I was concerned that he made something of finding the fractured parts of the bolts in the bell housing when the technical evidence was very, very plain that that is simply not physically possible. The fractured
36 At [23].
37 At [25].
ends could not have got through to the bell housing. One would have expected that if he saw a red “hole down”/transport/shipping bolt, as are the names that seem to be given to these implements, at the time that he disassembled the gearbox, having had the vehicle towed back to Airport Oaks, he would have indicated that he had found it and it would have been mentioned in at least one of his invoices or reports. But it was not.
[28] There were other inconsistencies in Mr Sahib’s evidence. In his reply statement (because he gave evidence twice) he said at paragraph 4 that after he unscrewed the broken flywheel bolt shanks he left them loose and did not put them back into the crankshaft. But at page 104 of the notes of evidence lines 2 to 6 he said in cross-examination, when asked, “Did you screw those threaded parts back into the back of the crankshaft?” “No, the threaded part you mean? A few of them we could have. We removed it by hand.” And there were other instances which caused me to doubt Mr Sahib’s recollection, bearing in mind that this was quite a long time ago.
[51] In contrast, Judge Sharp accepted the evidence of Mr Evans:
[29] … Mr Evans, who was the automotive machinist and a principal of [the Respondent], that gave evidence for [the Respondent] as to the replacement of the clutch in this vehicle, impressed me as an honest and careful witness. He appeared to me to be somebody who would not “gild the lily”, who would give honest and frank answers to the questions that he was asked and who, though being a little lacking in some areas of his practice for the sake of perfection shall we say, was still somebody whose evidence I was prepared to trust and rely on.
[30] What I am referring to, as to the areas in which perhaps his practice was, “a little lacking[”] was the lack of written record of any sort of what he did when he replaced the clutch in this Hino. It would appear that many automotive repairers such as [the Respondent] do have quite good systems in place where they keep records of what has happened in the repair of vehicles. That does not appear to have been the case here. There was some vagueness about what practices were observed, but in the end I am satisfied that Mr Evans is a man of integrity; he is a man of honesty and he is a man of huge experience.
[31] I accept that his experience and his knowledge were adequate for this job and I accept what he had to tell me in evidence about what he did. That means of course that I accept that when he says that he torqued the bolts to the correct specifications, having first rung Hino to ask for those specifications and then checked them on the Internet to make sure (because sometimes there can be mistakes) that he gave an accurate and honest summary of what he did.
[52] As I elaborate below, Judge Sharp also preferred the evidence of Dr Smith to the other experts. The Judge accepted his view that, even if a transport bolt had been
left in, it could not have “caused such a vibration as to cause all of the flywheel bolts to progressively loosen and then one by one shear off”.38 In this regard:
[74] … Dr Smith was clear in the view that one transport bolt alone, given its weight compared to the weight of the entire assembly, was too insignificant to cause anything like that …
[53] The Judge specifically preferred the evidence of Dr Smith to that of both
Mr Barton and Mr Wilcox:
[42] Mr Paul Barton I found, as I did with Mr Wilcox, to be a witness who was not impartial. I found Dr Smith to be an impartial witness who was truly acting as an expert and giving evidence in that role. Mr Barton and Mr Wilcox professed to give evidence as experts but if they were truly experts they would not have been so aligned to the [Appellant]’s position and they would not have been so ready to discount what Mr Evans had to say about what he had done without being very careful to properly analyse the physical evidence.
[43] … I am afraid that Mr Wilcox falls into much the same category. He was not objective at all. He gave very subjective evidence. I noted carefully that he did not agree to be bound, as experts normally do and the same I think goes for Mr Barton, by the experts’ code of conduct of the High Court which is generally used in this Court as well.
[44] I found Mr Wilcox not impartial. I found him very wedded to the [Appellant] which had called him. I consider that Dr Smith was better qualified in failure analysis. I accept that both are metallurgists but Dr Smith’s qualifications, expertise and experience in the field of failure analysis are greater than Mr Wilcox’s.
[45] Dr Smith was much more objective and dealt purely and simply with the physical evidence, whereas Mr Wilcox I found to be partisan towards his client. I found his evidence very subjective. I found that again and again, he departed from his area of expertise and went into areas in which he had no expertise but which were the field of automotive engineers, machinists and possibly technicians.
[46] … Mr Wilcox, I found, often speculated and made statements lacking in physical evidence to support them. Just one example is that he would not accept that bolts could not loosen unless they unwound. He was determined that the red transport bolt was left in by [the Respondent] and despite the transport bolt which has been in issue throughout this proceeding actually being the wrong size to have been one of the original ones that came at the same time as the clutch assembly, he asserted that the Hino could still have operated without any impediment.
[47] In my view he unfailingly accepted the evidence of Mr Sahib as to what he had found. In my view both he and Mr Barton, once they had heard what Mr Sahib had to say about finding a red transport bolt after the gearbox
38 At [74].
had failed, seized on it and started to work backwards from that point instead of examining the physical evidence to truly determine what had occurred to cause this failure.
…
[49] More importantly, twice without the consent or knowledge of the Court or the defence, [Mr Wilcox] interfered with exhibits. This is not the action of an expert that actually knows their job.
[50] First of all he cut into a section of the crankshaft and secondly he cleaned the whole flywheel, admitting that spraying it with CRC as he had, had the potential to change colouration. He was looking for bluing. These things should have been the subject of applications to the Court and if ordered, only done in the presence of the defence and in the presence of the defence experts. They also demonstrate his lack of understanding of the role of an expert and his responsibilities in litigation.
[54] Judge Sharp placed weight on the fact that “[w]hat [Dr Smith] found when he examined all of the other parts completely supported his conclusions after examining just the bolts”.39 Overall, the Judge reiterated that:
[55] … [Dr Smith] simply said again and again and again when challenged, that the physical evidence did not show that the bolts had been torqued incorrectly. In particular, when examining all of the components, he found witness marks created from the integral washer with the corresponding marking on the back of the flywheel.
[55] She noted a specific example where Dr Smith proved Mr Wilcox to be incorrect:
[60] Mr Wilcox was absolutely certain that the fracture point of the bolts was in one place but Dr Smith was able to show with his physical evidence that in fact the bolts had fractured in quite a different place. He showed the fracture surface of the interface of the clearance mark of the bosses which only Hino assembly kits have and, by virtue of bruising marks, he was certain (and I accept) that the bolts fractured all at the same time and in the same place, which was quite a different place to what Mr Wilcox would have had the Court accept.
[61] Importantly too, both Mr Wilcox and Mr Barton were of the view that all of the damage that was found to the bolts and to all of the other parts were consistent with the loosening of the bolts from the time that the clutch was installed and during the 18,000 odd kilometres that the truck travelled, finally causing the bolts one by one to fracture and the horrendous noise which caused Mr Remmerswaal to stop the truck, to occur. I do not accept that for a moment. I accept Dr Smith’s expertise in this area and his opinion which was that all of the damage, which is undeniably evident to all of the parts concerned, occurred post-fracture.
39 At [52].
[56] In terms of Boss No 3, Judge Sharp took the view that the damage occurred post-failure (in accordance with Dr Smith’s opinion):
[69] There is another matter which I consider important and relevant to Dr Smith’s view that all of the damage apart from the shearing off of the bolts occurred post-failure and that is that Mr Remmerswaal, who happened to be driving the truck on the occasion that it failed, said in evidence that when he heard the horrendous vibration and noise, he immediately put the truck into neutral to stop the vibration and continued to roll because there was nowhere to pull over into a safe spot to stop. He then said he used a high gear to nurse it along until he reached a safe spot.
[70] Well, “Neutral,” and, “A high gear,” are not the same thing so whether he actually meant that he put it into neutral and then into gear again (although I am not sure how he could have done that with the shearing off of the bolts which had obviously occurred and therefore the complete separation of the flywheel from the crankshaft). In any event it is clear that the engine continued to run for at least one to two minutes.
[71] Then when Mr Sahib came along, having been called out because of what had happened to the truck, he claims to have started it up. So again the engine ran and according to Dr Smith and to Mr Smithson who gave evidence (and I will discuss his evidence in a moment) those periods of running the engine after this failure were more than enough to cause all of the damage which can be seen. I accept all of that evidence.
[57] In coming to this conclusion, Judge Sharp was relying on the fact that the engine was started again post-failure. Mr Sahib had accepted that this occurred in cross-examination:40
Q. When you saw that truck next, it was broken down on the side of the road in –
A. Clevedon.
Q. Clevedon? A. Yes.
Q. And you started the motor? A. Yes.
Q. And it started all right? A. Yes.
Q. So that fly wheel was still engaging with the crankshaft enough to start the engine? Then the truck was taken to your premises and when you restarted it –
A. When we started it there was a noise inside the bell housing. We turned it off, removed the starter motor, because this is the only way
40 Notes of evidence at 93, line 9. See also the written statement of Mohammed Sahib dated
12 January 2016 at [9].
you can go and then we pushed the fly wheel, it was loose. Then I
rang the tow truck to tow it back to our yard.
[58] This evidence was not disputed. Mr Remmerswaal also confirmed it.41
Assessment
[59] The general issue ultimately turns upon credibility. In determining whether a transport bolt was left in the clutch cover plate, the Judge had to decide whether the Appellant had proved on the balance of probabilities that Mr Sahib’s evidence was accurate and that Mr Evans’s account was not.
[60] Ultimately, Judge Sharp, as the trial judge, was in the best position to assess both Mr Evans’s and Mr Sahib’s reliability and credibility. The Judge preferred the evidence of Mr Evans over that of Mr Sahib. She provided reasons for that preference. Her view was influenced by the fact that Mr Sahib’s first reference to the transport bolt was not until almost three years after he originally removed the gearbox, and he also made some statements that were proven to be physically impossible.
[61] If the Judge had taken the view that there was a transport bolt left in the clutch cover plate, then she would have needed to decide its effect and whether the imbalance could actually cause the flywheel bolts to loosen and fracture. Although she did not need to, the Judge nevertheless came to a view:
[74] … I do not accept that the transport bolt was left in, nor do I accept that even had it been left in when the clutch was replaced and the vehicle went back into commission, it could have caused such a vibration as to cause all of the flywheel bolts to progressively loosen and then one by one shear off. Dr Smith was clear in the view that one transport bolt alone, given its weight compared to the weight of the entire assembly, was too insignificant to cause anything like that …
[62] The final point under this issue is the submission that Judge Sharp wrongly failed to consider the evidence around the damage to Boss No 3.
41 Notes of evidence at 6, lines 10-21.
[63] It is correct that Judge Sharp did not specifically address the damage to Boss No 3 in the Judgment. By that, I mean she did not use the term ‘Boss No 3’ and explain the damage that had been caused to it. But it is not a Judge’s task to address every single aspect of the evidence. A Judge must address only what is necessary in terms of the case.
[64] In this regard, Judge Sharp accepted the evidence of Dr Smith and
Mr Smithson and took the view that all the damage occurred post-failure:
[71] … those periods of running the engine after this failure were more than enough to cause all of the damage which can be seen. I accept all of that evidence.
[65] The Judge had to decide between Mr Wilcox’s evidence and Dr Smith’s evidence. Ultimately, given her credibility findings outlined above, she accepted Dr Smith’s evidence.42
[66] The Appellant submitted that the Judge made adverse credibility findings against Mr Barton and Mr Wilcox without detailing any examples or giving any reasons. This is simply incorrect.43
[67] Judge Sharp clearly took the view that the running of the engine post-failure was causative of the damage to Boss No 3. In doing so, she implicitly accepted the evidence of Dr Smith that one could not be sure as to what caused the damage to Boss No 3.
[68] It was accepted that there was no physical or scientific evidence that conclusively proves what caused the damage. Mr Wilcox’s evidence was that a transport bolt being left in was only a possibility. The Respondent was entitled to take a different view, namely that Mr Evans had damaged Boss No 3 post-failure. It also pointed out in its written submissions:
6.14The damage to boss no 3, is another unexplained and unproven [anomaly] but somehow the appellant uses this as reasoning that there had to be a bolt in there. [The Respondent] agrees that is obvious but Mr Paul Barton could have done that damage to boss 3
42 At [42]-[50].
43 At [42]-[50], [60]-[61].
in the clutch clover, it was in the possession of no less than 7 other people besides [the Respondent] across the duration of this claim and trial any one of those seven could have caused that damage during their inspections, Mr Barton, Mr Parlane, Mr Sahib, Mr Wilcox, Mr Holland, Auto clutch, Bnt, and [the Respondent], the FACT is HOW the damage to that boss no 3 occurred cannot be proven with any certainty at all and so it is IRRELEVANT and treated as such.
[69] In my view, the Judge was entitled to take the view that she did. The Judge explained that she based her view upon the evidence of Dr Smith and Dr Smith’s credibility in relation to Mr Wilcox, and gave adequate reasons for her view. The evidence does not persuade me that the Judge was wrong.
[70] I am satisfied that the appeal cannot succeed on this ground.
The under-tightening issue
Background
[71] The Appellant contends generally that the Respondent did not tighten the flywheel bolts to the correct specification, which caused the flywheel bolts to loosen and ultimately fracture at the point of failure. In other words, the Respondent under- tightened or incorrectly torqued the flywheel bolts.
Point on appeal
[72] On appeal, the Appellant submits that Judge Sharp did not address the scuffing marks found on the heads of the flywheel bolts and the under part of the clutch plate hub. It submits this was evidence of the flywheel bolts loosening and unwinding. The Appellant contends that the scuffing marks could only have occurred because the flywheel bolts had loosened and moved upwards from the fully tightened position, which contradicts Dr Smith’s evidence of the fracture occurring at a fully tightened position.
The relevant evidence
[73] By way of explanation, the flywheel on the Hino is mounted onto the crankshaft of the engine and bolted to the engine by eight flywheel assembly bolts.
[74] The Appellant’s experts all took the view that the likely cause of failure was either from the incorrect torquing of those flywheel bolts or the failure to remove a transport bolt from the Hino.44 For example, in his written statement dated
12 January 2016, Mr Barton suggested that, alongside the possibility of a transport bolt being left in the clutch cover plate, the most likely cause of failure was because the fitting procedure was faulty and the bolts were simply never tightened sufficiently at installation.45
[75] Mr Wilcox adopted the same view based upon the evidence of scuffing marks. In his written statement dated 22 April 2016, he explains the results of his examination of the eight fractured flywheel bolts:
21.Photograph 5 is the underhead section of 5 of the 8 fractured flywheel bolts. The fracture faces of these 5 bolt sections reveal fretting (surface contact) damage due to contact with the closure face of the crankshaft. We can still observe in some of these sections evidence of “beachmarks” associated with fatigue damage in the centre position of the bolt fracture faces. Beachmarks are so named as they appear like the marks left on a beach by the waves when the tide is out. The presence of beachmarks in a fracture face informs the observer that failure is due to cyclic stress (as opposed to a single overload event). When cyclic stress initiates a crack the resulting fracture face typically reveals beachmarks and the failure made is known as fatigue.
22. Photograph 5 shows severe damage to the threaded sections of
these bolts. In Optimech’s report – page 5 figure 2 – it is stated
“Note damage to the threads and fracture faces which has
probably occurred post failure”.
I do not agree with this statement in reference to the observed thread damage. It is most likely that this thread damage occurred prior to full fracture when these threads made contact with the bolt holes of the flywheel as the bolts unwound. It is apparent from this statement that Optimech is unaware that the bolts did unwind.
…
24.Photograph 7 shows the head sections exhibiting scuffing damage on the outer circumference edge of the bolt heads.
…
44 See the written statement of Peter Graeme Cress dated 11 January 2016 at [13]; the written statement of Paul Henry Barton dated 12 January 2016 at [54]; the written statement of Peter John Wilcox dated 22 April 2016 at [33], [71] and [74]; the written statement of Peter John Wilcox dated 13 December 2016 at [6].
45 At [54](a), [55].
32.Photograph 12 also shows the depth of thread of fractured bolt (on right) at time of failure versus depth of thread of new bolt (on left) with sectioned crankshaft offered to the flywheel. There are 6 – 7 extra threads residing in the female threads of the crankshaft as illustrated by the new bolt in Photograph 12. This means at the time of final fracturing of all 8 bolts which we know fractured at a near identical length, have unwound by approximately 6-7 turns. The clearance in the flywheel where the bolts reside is 21.7mm. The bolt head is 10.8mm thick. The splined hub of the clutch plate facing the flywheel is 2.2mm. This leaves 8.7mm of clearance between the bolt head and the rim of the clutch plate hub. This equates to approximately 6.5 turns of the bolt.
…
34.The clutch plate contact of the flywheel exhibits extraordinary contact scuff markings with the friction pads. They are generally 5-
15 mm wide of random length and of random distribution with a
slight increased frequency of contact at the bolting boss positions: see Photograph 13. There is no evidence of “bluing” (high surface temperatures leading to formation of high temperature oxide film) but we can see radial cracks in some positions: see Photographs 14 and 15 arrowed. These cracks are not uncommon in truck flywheels and represent higher temperatures and rapid air quenching from continual clutch contact, similar to that which occur with brake drums on older trucks. It seems that the later scuff marks have been created over the top of these older radical cracks. Some cross-hatch grind markings still exist, but only in some areas.
…
72. I observe:
…
(c) Fact 3. The flywheel bolts came loose and failed just prior to eventual breakdown of the truck as they had unwound by 6–
7 turns. This is a critical piece of evidence that now allows us to determine the likely cause of events.
[76] In his statement dated 11 August 2016, Dr Smith addressed Mr Wilcox’s evidence. He firstly stated that the physical evidence showed that the flywheel bolts did not loosen as a result of a lack of applied torque. Addressing the above paragraphs, he commented:
25. … [in relation to para 22 of Mr Wilcox’s statement]
The above statement is inconclusive and wildly speculative in my view and is not consistent with the physical evidence. There is no evidence to support Mr Wilcox[‘s] theory that the flywheel bolts have unwound.
The crankshaft mounting flange shows the holes have been elongated as a result of contact of the flywheel bolts with the mounting flange. There is a clear witness mark caused by contact brinelling of the flywheel bolt against the mounting flange, Figure 4
A-H. This shows that damage to the mounting flange has been caused by the bolt flexing. The uniformity of damage to the threads on the flywheel bolts indicate[s] that the general damage [is] consistent with post fracture damage.
26. … [in relation to para 24 of Mr Wilcox’s statement]
It is not possible to determine the cause of scuffing damage to the outer circumference edge of the bolts. This could have occurred from removing the flywheel bolts with a rattle gun and socket at some time in the vehicle history.
[77] Ultimately, Dr Smith was of the view that the flywheel bolts fractured in a fully tightened position due to excessive shear stress (caused by driver abuse), not a lack of tightening:
31. … [in relation to para 32 of Mr Wilcox’s statement]
There is no physical evidence to show that the bolts have unwound. Mr Wilcox claims that the flywheel bolts have loosened and withdrawn by 6 to 7 threads and then failed in the position shown in Photograph 12 of Mr Wilcox’s BOE. However, the position of failure marked alleged by Mr Wilcox is incorrect. On the left (of Photograph 12) a bolt is shown as its correct seating position.
The position of maximum stress on the bolt is the conjunction of the bottom of the clearance hole at the root radius of the aligned thread. If the fracture bolt on the right is moved down 6 to 7 threads there is perfect alignment of the fracture plane of the bolt with the bottom of the clearance hole. This is the position in which the bolts sheared, i.e. no unwinding occurred, refer to Figure 1 and Figure 2. The reasons that this is the case are:
1.The presence of the clearance sleeve hole allows the bolt to flex under shear loading caused by shock loading. All flywheel bolts have failed at the same position confirming that the bolts did not move at all. It is the most likely position of failure since the bending moment will be the greatest at the point where the bolt is fixed.
2.If the bolts had gradually unwound then the damage would not be bilateral, and damage would initiate around the full circumference.
3. There is no axial force to cause the flywheel bolts to unwind. The clearance sleeve hole is a feature of the design of the Hino
crankshaft. This is machined in the factory and has a counter bore
clearance. The clearance is designed so that the bolts have a small
degree of clearance during assembly of the flywheel and clutch assembly. Unfortunately, with the design, if excessive shear forces are applied, the maximum loading will be at the position where the bolt can flex. The stress concentration point will be where the high shear stresses are applied. This will generate a clockwise and anticlockwise motion when shear stress is applied from shock loading resulting in bilateral fatigue.
I have evaluated the geometry of the flywheel and clutch assembly to determine whether Mr Wilcox[‘s] scenario is credible. I have found that the movement of the flywheel bolts by 6 to 7 threads is not possible as the head of the bolt would impact the central spline hub and would not allow the clutch assembly to operate. It would be also expected that in this scenario of the bolts unwinding the bolts would be unsupported and it would be expected that the bolts would have been bent. There is no evidence to show that this has occurred.
32. … [in relation to para 33 of Mr Wilcox’s statement]
Mr Wilcox has not recognised the importance of the clearance hole sleeve on the failure and concentration of stress at the position of the first thread. This is why under shock loading the bolts do not fail close to the head as the maximum stress is positioned at the bottom of the clearance hole.
A further problem with Mr Wilcox’s theory on the bolts unwinding 6 to 7 threads is that the gradual withdraw of the bolts would cause the following:
1.The rotation of the bolt would change the direction of shear force being applied to the bolts. This would cause multiple to cracks to initiate across the whole circumference of the bolts.
2.All bolts withdrawing to distance of 6 to 7 threads in an identical manner is not a practical scenario as the bolts would not loosen in an identical manner and failure location would not be the same for each bolt. The bolts would be physically bent and this was not observed.
33. … [in response to para 34 of Mr Wilcox’s statement]
These comments by Mr Wilcox are based on selective evidence and do not lead to the correct conclusions. Mr Wilcox refers to these markings in Photograph No. 13 of his BOE as “scuff marks” which implies that they are minor features. However, this is an inaccurate statement. I have examined the clutch plate contact surface of the flywheel and clutch pressure plate. The white elongated polish marks and radical cracking are evidence of high temperatures caused by slippage of the clutch …
… The hardness testing confirms that the white spots are hard spots caused by the metallurgical transformation of the metal to a hardened condition referred to [as] martensitic microstructure. This
process of martensitic transformation cannot occur unless the local
metal temperature exceeds 723 [degrees Celsius] …
…
55. … [in relation to para 62 of Mr Wilcox’s statement]
Mr Wilcox’s theory that the flywheel bolts loosened by 6 to 7 turns has been shown to be false and his analysis is flawed. The reasons are as follows:
1.There is insufficient clearance between the flywheel and the clutch driven plate for the bolts to unwind 6 to 7 threads.
2. The clutch would not be operational with the bolts unwound
6 to 7 threads. I assume that the driver would notice that he would not be able to change gear.
3.The bolts would have been unsupportive and would have bent. The flywheel bolts did not display any signs of bending[.]
4.It would be [a] very odd failure mechanism that all eight flywheel bolts unwound to exactly the same position.
5.The critical failure location is the bottom of the clearance sleeve where the bolt is not fully supported allowing the flywheel bolt to flex or bend.
6.The witness marks on the flange hub caused by the integral washer show that the flywheel bolts did not unwind or rotate at all at any time of the failure.
7.Failure mechanism of the bolts that had unwound 6 to 7 threads would be overload as the bolt[s] would be poorly supported.
8.There is no axial force to cause the bolts to unwind 6 to 7 threads.
[78] Dr Smith reiterated his view while giving evidence:46
Q. And what is the physical evidence [you’re] relying on?
A. Well when we look at the witness mark created from that integral washer and the – that corresponding marking on the black of the –
back of the flywheel, there’s a significant imprint there which means
that a significant torque has been applied to every single bolt. All eight bolts showed a similar witness mark with a significant imprint there left from that integral washer which means that the surface underneath the washer material in contact has yielded and it’s left a significant witness mark. None of their locations were any different,
46 Notes of evidence at 659, line 11.
they all showed a uniform witness mark. And I think that that is a fairly clear indication that good torque was applied.
[79] In his further written statement dated 13 December 2016, Mr Wilcox focused on discrediting the evidence of Dr Smith:
4.In his Optimech report, Tab 10 under “4.Discussion para. 2, Dr. Smith accepts that one way of inducing a fatigue loading, is insufficient (torque) clamping force applied during installation.
5.Throughout his oral evidence in Court and the Optimech report Document Tab 10 (see; Background bp4), Dr. Smith has assumed as a proven fact, based on Mr. Evan’s assertion, alone, that the defendant’s mechanic tightened the flywheel bolts to the manufacturer’s specifications. I have read Mr. Evan’s written statement and his oral evidence. I observe that Mr. Evans has failed to produce any independent evidence to support or underpin his assertion of tightening at all. I note the following:
(a) other than the invoice, Tab 2, which does not refer to tightening, there is no record produced as to who at [the Respondent] carried out the repair work in November 2012 and what work was carried out. [The Respondent] did not keep a job sheet so none was produced.
(b) no document obtained by [the Respondent] from Hino, or anyone, setting out the correct torque-specification procedure for [the Respondent] to have followed.
All one has is Mr. Evans’ assertion in evidence that he did the repair. In his statement of defence the defendant has referred to a “qualified technician” having performed the work: see the defence para. 3; and under cross-examination at NOE 212 lines 29 to 213 line 18, Mr. Evans denies description of himself generally as an automotive technician. This raises doubt as to whether Mr. Evans carried out the repair work in November 2012. More importantly, there is no independent support for Mr. Evans’ assertion that he carried out the tightening process.
6.Unless the Court finds otherwise, in my opinion that there is a high degree of probability that [the Respondent] failed to torque them to the correct specifications, from which followed the loosening and fracture of [all of] the 8 flywheel / crankshaft bolts. I support this opinion by reference to the following independent evidence, namely, that the flywheel bolts unwound prior to fracture …
[80] Mr Wilcox concluded:
13.I maintain that all 8 flywheel bolts fractured close to the surface of the face of the crankshaft. I rely on the following evidence:
(a) the scuffing damage to the heads of the bolts is significant and was caused by the bolts hitting the hub of the clutch. This uniform damage could only realistically occur if the bolts were in one piece when contact was made. This means the bolts unwound prior to fracturing …
[81] In cross-examination, Mr Wilcox faced questions over his comments that the bolts had loosened by six to seven turns:47
Q. Well you say six to seven turns is how many mil? A. Was it eight, eight or nine mil.
…
Q. So if all the bolts loosened even two turns –
A. Yeah.
Q. - or three turns, there would be horrific horrendous separation and noise, is that correct?
A. Not when the clutch is engaged.
Q. What do you mean?
A. It would be trying to push the – keep the flywheel on the crankshaft.
Q. Well when the clutch isn’t engaged, when the car is just moving –
A. Yeah, you, yeah –
Q. - truck’s moving along, you would hear horrific noise. A. You’d hear something.
Q. Why is there no mention of any noise whatsoever until the exact moment of failure and the engine ran for two minutes? Why isn’t there any noise?
A. As I explained to the Court, Your Honour, that all comes down to how this failure progressed. And I believe personally because the
drivers didn’t notice anything that it accelerated very rapidly to failure in that final trip. It’s the only obvious conclusion because,
you know, I can’t understand why the drivers didn’t notice it. So
when it finally went into failure it was very quick.
[82] There was little else of relevance in relation to the scuff marks.
[83] Dr Smith was defiant when subjected to cross-examination on this point:48
Q. Let’s go to the scuffing damage on the hub of the pressure plate and go to your paragraph number 26. This is talking about the damage on the circumference edge of the bolts, see that?
A. Yes. I see that.
47 Notes of evidence at 568.
48 Notes of evidence at 661-667.
Q. And you said this could have occurred from removing the flywheel bolts from the rattle gun and socket at some time in the vehicle history, that was your statement?
A. Yes it was yeah.
Q. You’ve heard Mr Wilcox give evidence today producing the socket and said that that just wouldn’t cause that kind of damage, accept that?
A. No I disagree with that statement.
Q. No one challenged him on that statement. A. Well I’m challenging it.
Q. Well, how is it wrong?
A. Well you don’t know the history, I mean this is not a new vehicle, you don’t know how many clutches it’s had in its history. We don’t
know what tools have been used on it. We don’t know whether the
tools and fittings are in good condition. These factors are just completely undocumented.
…
Q. So if the Court held that the bolts have loosened, as a result – sorry.
If the Court accepts that there are scuff marks, do you accept that the only way in which that could have resulted from a loosening of the
flywheel bolt from its (inaudible 14:53:36) position to the clutch
hub?
A. I don’t accept that it’s being caused by contact with that hub.
Q. But what else could touch it, other than the head of the bolt?
The Court:
Or what else could cause the scuff marks, isn’t that what you mean?
Re-Cross-Examination Continues: Mr Finnigan
Q. The scuff marks, yes.
A. Well the only explanation is some post-failure damage with these
bolts. I mean once they fail who knows where they’re going to go.
Q. Well if you look at them, there’s a consistency around the circumference. And I suggest to you if the explanation that you’re putting forward to be correct, there would be marks all over those –t he head of the bolts, perhaps the circumference of the bolts at random places?
A. Well as I say could be from handling of the bolts, I’ve said that early
and it could be some post-facture, I just don’t know. I do not see any evidence that those have touched the hub, in fact there is no physical evidence.
…
The Judgment
[84] As noted earlier, Judge Sharp accepted the evidence of Mr Evans.49 As a result, she specifically accepted that he had tightened the flywheel bolts to the manufacturer’s prescribed specifications (through adopting a three-step tightening procedure).
[85] Nevertheless, the Judge acknowledged that if she only had Mr Evans’s evidence of what work he did on the Hino, she “might not have been so ready to find in favour of the [Respondent]”.50 Ultimately, as noted earlier, the Judge preferred the evidence of Dr Smith to the other experts.51 She relied on his evidence on this issue.
[86] Judge Sharp first noted that Dr Smith was a man “whose qualifications are impeccable and whose experience as a metallurgist is undoubted.”52 She stated that he provided a “cogent scientific evidence-based approach to each of his conclusions”.53 The Judge then commented:
[33] It was his evidence (and he was unassailed no matter by whom he was questioned, that is me, in cross-examination by Mr Finnigan and re- examination) that he found no evidence of under-tightening of the flywheel bolts to be a contributing factor in the failure of this gearbox. He said that if the bolts had been under-torqued and subsequently loosened of their own accord, he would have expected to see a different sequence of failure.
[87] After examining all the components, Dr Smith found “no evidence of damage to the threaded parts on the crank side assembly of the bolts. That meant no support for inadequate tightening of the bolts. The failure mechanism he said would also be visual and there would be differences as well.”54 By way of explanation:
[35] With an under-tightening he would expect a progressive failure which could occur by fatigue and the fracture would appear roughly smooth without any evidence of shock loading applied. The second thing he said is that, “With fatigue-type failure, lack of torque, the fracture sequence will occur from one side of the bolt across to the other side, a unilateral ending process whereas the failure here,” he said, “was a bilateral mechanism.”
49 At [29]-[31].
50 At [32].
51 At [42]-[50].
52 At [32].
53 At [46].
54 At [34].
[36] He said that, “On the fracture surface you could see evidence of lines going across the surface,” referred to as, “Beach markings”. “Those beach markings identified the mechanism of damage as being fatigue,” and he pointed out and demonstrated a bilateral bending mechanism where the cracks initiated from both sides, then the central zone in the middle was the final overload region.
[88] In contrast, Judge Sharp disregarded the evidence of both Mr Barton and
Mr Wilcox:55
[42] … Mr Barton and Mr Wilcox professed to give evidence as experts but if they were truly experts they would not have been so aligned to the [Appellant]’s position and they would not have been so ready to discount what Mr Evans had to say about what he had done without being very careful to properly analyse the physical evidence.
[43] So I do not accept that Mr Barton either had the expertise or the training in failure analysis which was necessary to render a view and opinion about the cause of this failure. Nor do I conclude that he was impartial. I consider that his evidence should be discounted accordingly. I am afraid that Mr Wilcox falls into much the same category. He was not objective at all. He gave very subjective evidence. I noted carefully that he did not agree to be bound, as experts normally do and the same I think goes for Mr Barton, by the experts’ code of conduct of the High Court which is generally used in this Court as well.
[44] I found Mr Wilcox not impartial. I found him very wedded to the [Appellant] which had called him. I consider that Dr Smith was better qualified in failure analysis. I accept that both are metallurgists but Dr Smith’s qualifications, expertise and experience in the field of failure analysis are greater than Mr Wilcox’s.
[45] … Mr Wilcox I found to be partisan towards his client. I found his evidence very subjective. I found that again and again, he departed from his area of expertise and went into areas in which he had no expertise but which were the field of automotive engineers, machinists and possibly technicians.
[89] The Judge placed weight on the fact that “[w]hat [Dr Smith] found when he examined all of the other parts completely supported his conclusions after examining just the bolts”.56 She acknowledged Dr Smith’s description of the three-step tightening procedure,57 as well as his finding that significant uniform imprints had been left on each bolt (which is a fairly clear indication that good torque was
applied).58 Overall, Judge Sharp reiterated that:
55 At [42]-[50].
56 At [52].
57 At [54].
58 At [56].
[55] … he simply said again and again and again when challenged, that the physical evidence did not show that the bolts had been torqued incorrectly. In particular, when examining all of the components, he found witness marks created from the integral washer with the corresponding marking on the back of the flywheel.
[90] She noted a specific example where Dr Smith proved Mr Wilcox to be incorrect:
[60] Mr Wilcox was absolutely certain that the fracture point of the bolts was in one place but Dr Smith was able to show with his physical evidence that in fact the bolts had fractured in quite a different place. He showed the fracture surface of the interface of the clearance mark of the bosses which only Hino assembly kits have and, by virtue of bruising marks, he was certain (and I accept) that the bolts fractured all at the same time and in the same place, which was quite a different place to what Mr Wilcox would have had the Court accept.
[61] Importantly too, both Mr Wilcox and Mr Barton were of the view that all of the damage that was found to the bolts and to all of the other parts were consistent with the loosening of the bolts from the time that the clutch was installed and during the 18,000 odd kilometres that the truck travelled, finally causing the bolts one by one to fracture and the horrendous noise which caused Mr Remmerswaal to stop the truck, to occur. I do not accept that for a moment. I accept Dr Smith’s expertise in this area and his opinion which was that all of the damage, which is undeniably evident to all of the parts concerned, occurred post-fracture.
Assessment
[91] Judge Sharp had to decide between the evidence of Dr Smith and the evidence of Mr Wilcox. The Judge preferred the evidence of Dr Smith and was entitled to do that.
[92] Two key passages are as follows:
[60] … Dr Smith was able to show with his physical evidence that in fact the bolts had fractured in quite a different place … (and I accept) that the bolts fractured all at the same time and in the same place, which was quite a different place to what Mr Wilcox would have had the Court accept.
[61] … I accept Dr Smith’s expertise in this area and his opinion which was that all of the damage, which is undeniably evident to all of the parts concerned, occurred post-fracture.
[93] Dr Smith’s ultimate conclusion was that the damage could have been caused
post-failure.
[94] Although Judge Sharp did not mention the scuffing marks specifically, in accepting Dr Smith’s evidence she took the view that the damage occurred post- fracture.
[95] The Appellant takes issue with Judge Sharp’s reliability findings in relation to Mr Evans. The Appellant focused on Mr Evans’s failure to produce a job card or any records to corroborate his evidence that he followed the manufacturer’s prescribed specifications for tightening. It noted that Dr Smith had relied upon Mr Evans’s evidence.
[96] Judge Sharp made credibility findings in relation to Mr Evans and explained why she made those findings.59 She specifically (and adequately) addressed the issues that the Appellant has raised within those findings:
[31] I accept that [Mr Evans’] experience and his knowledge were adequate for this job and I accept what he had to tell me in evidence about what he did. That means of course that I accept that when he says that he torqued the bolts to the correct specifications, having first rung Hino to ask for those specifications and then checked them on the Internet to make sure (because sometimes there can be mistakes) that he gave an accurate and honest summary of what he did.
[97] I am satisfied that Judge Sharp addressed adequately the factual matters relevant to this issue. The findings of credibility and reliability were open to her, and adequately explained. Having examined the evidence I cannot take a different view. The appeal cannot succeed on this ground.
The locator dowel issue
Point on appeal
[98] The Appellant’s general submission is the Respondent did not use a locator dowel or make any identifying mark on both the crankshaft and the flywheel to ensure that when re-assembling the flywheel to the crankshaft, the re-assembly was
in the same position for balance.
59 At [29]-[31].
[99] In contrast, the Respondent submits that no scientific evidence was presented that proved the locator dowel was or was not there, or that it was ever a cause of failure. It was instead all speculation.
The relevant evidence
[100] By way of explanation, the eight holes that the flywheel bolts pass through to secure the flywheel to the crankshaft were manufactured for 13 mm diameter bolts with a smooth machine drilled finish. One of these holes is partly bored to accommodate an 18 mm tubular locator dowel. The purpose of the locator dowel is to ensure the flywheel is bolted to the crankshaft in the same position. It concerns balance.
[101] Mr Barton, in his statement dated 12 January 2016, said:
32.One specially bored hole should contain a locator dowel to align the flywheel/crankshaft during fitting and supporting it thereafter. The locator dowel was missing; whether it was dislodged in the failure or absent during assembly is unknown.
…
41.I noticed that there was no locator dowel in the crankshaft or flywheel when I inspected them. Airport Oaks advise[d] that they did not find it loose lying around the clutch area when they removed the gearbox. Whether the locator was in situ when [the Respondent] fitted the flywheel is unknown.
[102] Mr Barton’s view was60 that if the locator dowel was missing at installation, then it was a likely cause for why the transport bolts were loose. But he acknowledged it was not the most likely cause.61
[103] In direct-examination, Mr Sahib also said that the locator dowel was missing.62
60 At [54](b).
61 See notes of evidence at 475-476 – this is where Mr Barton discusses it at trial. I did not see the questioning as containing anything of value.
62 Notes of evidence at 82, line 10.
[104] Mr Wilcox did not really address the issue. Similarly, the Respondent’s experts did not devote much attention to it. In response to Mr Barton’s comments, Mr Smithson stated in his report dated 20 November 2015 at p11:
… whether the locator tubular thin wall steel sleeve was fitted or not is irrelevant in my opinion. As long as the two locator tubular thin wall sleeve receptor recesses are in line, that in the crankshaft, and the flywheel, that is all that is required, as to positioning, where the flywheel is correctly positioned prior to tightening of the securing bolts. Most mechanics and technicians make a mark byway of a centre punch dot prior to removing such types of components, and some take photographs for a record. They then reassemble items identified by their own applied markings.
[105] In response to Mr Barton saying it was a likely cause of failure, Mr Smithson noted at p14:
[It is] inconclusive and speculative in my view, given the severe damage within the components. The tubular thin wall steel sleeve possibly may have just disintegrated within the failure process and ended up as small pieces but as such was not visible.
Assessment
[106] As is evident, there was little evidence on this issue. There was practically no evidence as to the effect of a missing locator dowel. Mr Barton did not justify his opinion, while Mr Smithson outright contradicted it. Dr Smith and Mr Wilcox clearly did not regard the issue as of any significance, as neither of them mentioned it properly. It was not a matter pursued in oral submissions before me.
[107] The Appellant’s submissions make it clear that the focus in this issue is, once
again, on the credibility of Mr Evans.
[108] Judge Sharp did not address the issue in the Judgment, and did not need to given her credibility findings in relation to Mr Evans.63
[109] As the Court in English v Emery Reimbold & Strick Ltd noted:
[19] … This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained …
63 At [29]-[31].
[110] Judge Sharp obviously regarded this issue as having little, if any, significance. From the evidence, neither did the parties.
[111] Consequently, I am satisfied the appeal cannot succeed on this ground.
The driver abuse issue
Background
[112] As explained by Judge Sharp:
[22] [The Appellant] alleges and called evidence to suggest that the damage caused to the Hino was due to the negligent manner in which it had been driven by [the Respondent]’s employees, otherwise known as, “Driver abuse,” …
[113] As noted earlier, there were two forms of driver abuse alleged. The first was the washing out of the inside of the Hino’s driver’s cab, while the second was stall- stopping the Hino in gear as well as roll-starting the Hino.
[114] The Appellant’s general submission is that Judge Sharp was incorrect to ultimately conclude that the damage was caused by driver abuse, not under- tightening or the effect of leaving a transport bolt in.
[115] I have dealt already with the under-tightening and transport bolt issues. I have done it without reference to the driver abuse issue but, of course, they are interconnected in the sense that, in making findings of credibility and reliability, the Judge had to take into account the Respondent’s theory of driver abuse.
Point on appeal
[116] The Appellant submits that the Judge failed to provide reasons as to why its response to the Respondent’s theory was rejected. Particularly, the Respondent submits Judge Sharp failed to consider Mr Cress’s evidence.
[117] The Appellant focuses on two specific instances in the trial. The first is when
Dr Smith was giving evidence. At the time the Judge had heard evidence from
Mr Vincent and Mr Holmes (past employees of the Appellant). She had yet to hear from Mr Bell. The Judge made the observation to Dr Smith:64
Q. I note that you have accepted as fact what you’ve been told by the defendants as to the truck driver hosing out the cab with high pressure water prior to failure and that the truck electrics were damaged and also that to stop the driver resorted to dropping the clutch in gear to stall the engine, that this occurred many times a day. Well actually there’s little or no evidence of that …
[118] The Appellant points to the comment highlighted. It submits the Judge appears to have departed from her comment in her Judgment and submits that Mr Bell’s evidence added nothing of substance to justify that.
[119] Secondly, the Appellant queries the following exchange when Mr Holmes was giving evidence:65
Q. Is everything in your statement, as far as your recollection goes, true and correct?
A. Yes.
Q. You witnessed Dave Cox wash out the interior of the truck deck? A. Yes.
Q. On more than one occasion? A. Yep.
Q. And, again, sometime before the failure in late February 2013? A. Yes.
Q. Dave Cox stated yesterday, in his statement, that he had only ever washed out the truck interior very gently and only on one occasion in 2010 and said that you had told him off for doing it and never did it again. Is that correct?
A. I did tell him off, that’s correct, but no, he did do it again after that.
Q. He also stated that we somehow poached or bribed you to make your statement today. Is there any truth in that claim?
A. No …
[120] The Appellant submits that the Respondent used leading questions in this exchange. It submits that, despite there being no objection at the time, Judge Sharp should not have placed weight on the answers because they were elicited by leading
questions in an area where the witness would not generally be expected to have that
64 Notes of evidence at 393. Emphasis added.
65 Notes of evidence at 176, line 5.
degree of recollection. This was also despite the fact that there was cross- examination of Mr Holmes on the issue:66
Q. You’ve said you’ve seen Dave Cox, the driver of the Hino, wash out
the truck cab with a high pressure hose at the facility? A. Yes.
Q. Did you ever make a record of when he did that? A. No we didn’t.
Q. Would you accept that that could have happened at any time between
2009, when you started, and 2012?
A. Yeah, because he used to wash the truck every Friday.
Q. We understand that [the Respondent] repaired this truck, replaced the flywheel, clutch components and they issued an invoice on 8th November 2012. The washing out of the truck to the best of your knowledge could have occurred prior to that?
A. Yes.
Q. And likewise the – we’ve never quite certain, but this stop/starting procedure that you’ve given evidence about, that could have occurred also before [the Respondent] repaired the vehicle in November 2012?
A. That could have.
[121] The Respondent, in response, submits that the Judge came to a reasoned conclusion. The Appellant had to prove that driver abuse was not the operative cause, which it failed to do. With regards to Mr Cress, it submits that Mr Cress is not an expert witness. He is a service manager and mechanic. His evidence was irrelevant and was appropriately disregarded or discounted.
The relevant evidence
[122] As mentioned earlier, the Respondent called three witnesses to give evidence of driver abuse. These were Mr Holmes, Mr Vincent and Mr Bell. Each witness confirmed seeing Mr Cox (a driver of the Hino) washing out the interior of the Hino, as well as stall-stopping and roll-starting.
[123] In particular, Mr Holmes was employed by the Appellant as the inwards- outwards goods supervisor from 2009 to 2013. As explained by Judge Sharp:
66 Notes of evidence at 181, line 18.
[64] … Part of his job was to organise the loading and unloading of all trucks coming and going and also to arrange any servicing of [the Appellant]’s own fleet of trucks including the Hino Ranger truck …
Assessment
[147] In my view, Judge Sharp provided comprehensive reasons as to why she rejected the Appellant’s explanation and instead accepted the Respondent’s explanation (outlined above).
[148] As before, Judge Sharp accepted Dr Smith’s evidence and rejected that of Mr Wilcox. In combination with the evidence from the Respondent’s three witnesses, the Judge found there was “sufficient” evidence to at least give some support to Dr Smith’s expert opinion that shock loading from driver abuse was the
cause of failure.71
[149] In terms of the Appellant’s point of appeal around Mr Cress, it was implicit within Judge Sharp’s acceptance of Dr Smith’s evidence that the Judge disregarded Mr Cress’s evidence on this point. The Judge specifically mentioned Mr Cress in this regard:
[53] When asked about the experience of Mr Cress for the [Appellant], who was highly experienced in the automotive industry, saying that the type of driver abuse would not cause the flywheel bolts properly torqued to fail, he said that he disagreed with him.
[150] I regard as immaterial Judge Sharp’s initial comment at trial (“Well actually there’s little or no evidence of that”). The comment was made in the early stages of the trial and it was not binding upon the Judge. After hearing all the evidence, she simply changed her mind.
[151] Lastly, I similarly regard the point around leading questions as immaterial. Although the questions were leading questions, they were merely referencing comments that Mr Holmes had made in his written statement dated 12 March 2014. Speculating over whether Mr Holmes had that degree of recollection is not a valid ground of appeal. Even if he did not, there were measures available by which he could be shown the statement. Further, there is no evidence that Judge Sharp
actually placed specific weight on those answers. She accepted his evidence
71 At [68].
generally. But she accepted the evidence of Mr Bell and Mr Vincent as well to prove the same point.
[152] This ground of appeal cannot succeed.
The overall case
[153] It is necessary to stand back and consider the Appellant’s case in an overall context. Judge Sharp correctly stated that “it is for the plaintiff to prove on the balance of probabilities that a negligent act or acts occurred at the hands of the defendant.”72
[154] Ultimately, Judge Sharp found in favour of the Respondent. The Appellant did not prove its case:
[63] Here I consider that the plaintiff has failed to do so. I accept that the bolts were properly torqued. I accept Mr Evan’s evidence that he did not leave a transport bolt in when the clutch was reassembled and the vehicle returned to [the Appellant] and if that is so, in my view it is unnecessary for [the Respondent] to prove or even raise a spectre as to how this failure occurred. But should I be wrong in that, I consider that [the Respondent] has called enough evidence to at least suggest some credence and support for Dr Smith’s conclusions of shock loading from driver abuse.
[155] In the Judge’s view, “[t]he physical evidence cannot lie. The science is clear”.73 She concluded that the science presented by the Respondent’s experts was unassailable and summarised her conclusions as follows:
[74] There was no lack of appropriate torquing of these flywheel bolts by [the Respondent]. I do not accept that the transport bolt was left in, nor do I accept that even had it been left it when the clutch was replaced and the vehicle went back into commission, it could have caused such a vibration as to cause all of the flywheel bolts to progressively loosen and then one by one shear off …
[156] The overall issue for me is whether the Judgment sufficiently identified and determined the matters which were at issue so as to satisfy the obligation on the Judge to give reasons.
72 At [62].
73 At [73].
[157] As will be apparent from my analysis of each issue, I am of the view that the appeal should be dismissed.
[158] Whether reasons are adequate depends on the nature of the case. Here, the case involved conflicting expert evidence against a background of disagreement on some important points by witnesses of fact. The Judge had to choose between experts and say why she did so.
[159] Judge Sharp did exactly that. This was the complete opposite of the Flannery decision upon which the Appellant relied. In that case, the Judge provided a one paragraph explanation for his decision. Here, Judge Sharp identified the key areas of dispute. She acknowledged that all the witnesses had different views, meaning she had to choose between them. She made her choices and she comprehensively explained why she did so (for example, between Mr Evans and Mr Sahib, as well as between Dr Smith and Mr Wilcox). There was sufficient evidence behind her decisions.
[160] The only issue the Judge did not comment on was the locator dowel issue. However, it was unnecessary to do so. Even if it were missing, there was little to no evidence on any potential impact it may have had. Neither expert commented on the issue in any detail. The Judge obviously discounted it as a result.
Costs
[161] There remains an issue as to whether the Judge’s subsequent costs judgment correctly awarded as a disbursement the Respondent’s expert witness costs. The Appellant appeals Judge Sharp’s award.74
The costs judgment
[162] In the main judgment, Judge Sharp noted:
[75] … Unfortunately I am unable to give the defendant costs except for its witnesses because the defendant was not legally represented. However, the judgment which the defendant will have should include the reasonable
74 Butch Pet Foods Ltd v Mac Motors Ltd [2017] NZDC 8891.
costs of its expert witness. However, I can receive submissions from both parties if they wish in respect to the issue of costs.
[163] Both parties filed submissions.
[164] The Court has a discretion to allow disbursements to a lay litigant.75 The issue was whether the Respondent was entitled to reimbursement of all of the substantial experts’ fees by the Appellant. The experts were Dr Smith and Mr Smithson.
[165] The Judge ultimately used her discretion to order the Appellant to pay the
Respondent $83,037 as an allowable disbursement.76 She noted:
[18] … Whilst the defendant’s experts’ time for Court attendances, reviewing and critiquing witnesses and preparing briefs of evidence is higher than usual in a civil proceeding, this is due to both the complexity of the issues involved and that the defendant was represented by its two lay directors.
[166] In arriving at this figure, Judge Sharp performed a series of calculations. She noted errors in the Respondent’s calculations and adjusted accordingly.77 She also dealt with each of the tax invoices from Dr Smith and Mr Smithson.78
The Appellant’s submissions (filed 3 July 2017)
[167] The Appellant accepts that the Respondent is entitled to disbursements for the reasonable time spent for out-of-court preparation and in giving evidence. However, the Appellant objects to claims for the Respondent’s experts’ entire time, particularly sitting in court and at counsel’s table assisting the Respondent present its claim. It submits this is tantamount to claiming legal costs and is outside the principles governing entitlement to disbursements for experts.
[168] In summary, the Appellant submits Judge Sharp was incorrect in allowing payment of experts for time spent by them outside of giving evidence and a
reasonable preparation time.
75 Official Assignee v Registrar of High Court, Christchurch [1996] 2 NZLR 438 (CA).
76 At [18].
77 At [14].
78 At [16].
[169] The Respondent has not filed submissions in reply.
Analysis
[170] In order to be recoverable as a disbursement, experts’ fees must fall within the definition of disbursement in r 14.12 of the District Court Rules 2014. Specifically, r 14.12(2) provides:
A disbursement may be included in the costs awarded for a proceeding to the extent that the disbursement is—
(a) of a class that is–
(i) approved by the court for the purposes of the proceeding; or
(ii) specified in subclause (1)(b); and
(b) specific to the conduct of the proceeding; and
(c) necessary for the conduct of the proceeding; and
(d) reasonable in amount.
[171] A party is generally entitled to recover the actual fees and expenses of its expert witnesses provided they meet the above criteria.79 The Court of Appeal has said:80
[62] A party can recover in respect of an expert witness only for the time he or she spends giving evidence and the time he or she spends in preparing that evidence. In addition, a party could properly claim for time spent by its expert in critiquing other parties’ experts so as to assist counsel to understand the issues and opposing contentions and to assist counsel in cross-examination. But experts do not draft pleadings and do not write legal submissions. Any claim for time spent on those tasks would not fall within the criteria …
[172] An expert is engaged because they have specialist expertise in an area. In preparing their report, an expert may reasonably seek some peer review to ensure their evidence is properly focused and within proper parameters. An expert can also reasonably be used to peer review the reports of other experts in their field who will be called by their instructing party to give evidence. The reviewing expert would
need to be familiar with the other experts’ reports in any event. However, because an
79 Air New Zealand Ltd v Commerce Commission [2007] NZCA 27, [2007] 2 NZLR 494 at [47].
80 Air New Zealand Ltd v Commerce Commission, above n 79.
expert is supposed to have the expertise to give evidence in his or her field, peer review should be a minor aspect of their preparation time.
[173] As to time spent in Court, an expert witness is just that, a witness. He or she is not a litigation advisor. Generally, a party can charge for the time an expert called by them is in Court to give evidence. Often, it is reasonable for an expert to be in Court to listen to the evidence of opposing experts and to assist the party calling them to prepare for cross-examination. However, advice on cross-examination can be given from pre-trial perusal of reports, and any unexpected evidence can be referred to the expert via the transcript. Therefore, it will not usually be reasonable for a party to charge for an expert being present in Court throughout the trial.
[174] The Appellant questions the reasonableness of many of the items contained in the experts’ fee invoices. Therefore, it is necessary for me to go through each invoice and see whether the Judge correctly decided the matter. In doing so, I will apply the broad principles I set out above. The table contained in the costs judgment
is a good summary of what was sought:81
Number Expert
Date
Tax Invoice
No.Amount claimed excluding GST.
Page number
1
Dr J Smith
(Optimech)02.05.16
1606052
2,500.00
1
2
Dr Smith
11.02.16
15755
10,401.00
2-3
3
Dr Smith
27.07.16
15875
40,357.32
4-5
Total charged by Optimech
$53,258.32
4
Mr T Smithson
(Assessco)30.11.15
1867
6,850.00
6-7
5
Mr T Smithson
12.02.16
1869
29,125.30
8-9
6
Mr T Smithson
30.04.16
1896
2,100.00
10-11
81 At [13].
7 Mr T Smithson
17.05.16
1887
4,600.00
12-13
8
Mr T Smithson
23.12.16
1955
1,500.00
14
9
Mr T Smithson
13.01.17
1956
3,375.00
15
10
Mr T Smithson
10.02.17
1959
5,000.00
16-17
11
Mr T Smithson
10.02.17
1960
3,679.11
18-19
Total charged by Assessco
$56,229.41
[175] In respect of the first invoice (1606052), the Judge disallowed any payment.82
This was because the work was not done in preparation of giving evidence. I agree.
[176] On the second invoice (15755), the Judge allowed $7,000.83 This claim mainly related to Dr Smith spending three days in court. Dr Smith claimed $240 per hour. As the Appellant notes, this would represent 29.1 hours. But Dr Smith only testified in Court for half a day over that three day period.
[177] The Judge correctly noted that the Respondent’s experts could not charge for travel time, parking fees, the preparation of a brief of evidence that was not read into evidence and the peer review of another expert’s report.84
[178] The Appellant submits the appropriate allowance for preparation and time in
Court should be three hours in Court and three hours for preparation.
[179] The usual case is, as I have said, that a party cannot charge for an expert attending at Court for the whole of the trial. It would be reasonable for Dr Smith’s time giving evidence and critiquing the Appellant’s expert witnesses to be charged.
[180] I will allow a charge for five hours in Court giving evidence (including a reasonable waiting time) and 10 hours for preparation and assistance. I regard
82 At [16](i).
83 At [16](ii).
84 At [16](ii).
Dr Smith’s hourly rate as reasonable, resulting in a sum of $3,600. I add $700 to account for the other unchallenged costs, resulting in a total allowance of $4,300.
[181] On the third invoice (15875), the Judge reduced the sum claimed of
$40,357.32 by $5,807.32 and allowed $35,550.85 This was an arithmetical error. The sum allowed should have been $34,550.
[182] The Appellant submits there should be a further reduction. The Respondent sought payment for 46.5 hours of peer review. Ten of those were between Dr Smith and Mr Smithson. The rest were with unknown third parties. The Appellant notes that in relation to invoice number 1869, Judge Sharp made the following comment:86
… The charge of $1,037.50 for “peer-review report summary PDF” is objected to by the plaintiff because it considers it should not be required to contribute to a peer review of someone not involved in giving evidence. I agree. This does not meet the criteria of r 14.12(2) and is disallowed.
[183] I agree that a party cannot charge for the time spent by an expert contributing to a peer review of someone not involved in giving evidence. However, a party can expect to be reimbursed for the reasonable time an expert spends obtaining peer review and reviewing the report of another expert who is to give evidence within the first expert’s field of expertise. I will therefore allow the charges for the 10 hours of Dr Smith’s discussions with Mr Smithson.
[184] The invoice does not particularise the peer review in relation to the unknown third parties. In any event, assuming it was peer review of Dr Smith’s work (the only basis on which it could be charged), it is excessive. Dr Smith is the expert. He should not need to spend almost a standard working week on additional peer review. I will reduce the 36.5 hours to 10 hours. That is my admittedly robust view of what further peer review might be necessary and reasonable.
[185] The Appellant then queries the assessment of hours in two other categories
(further appearance in Court and out-of-court analysis), as well as Dr Smith’s hourly
85 At [16](iii).
86 At [16](v).
rate ($225). It submits that a maximum of 43 hours should be allowed for these categories (as opposed to the 111.5 hours currently charged for).
[186] The description of the work comes within the scope of what can be charged for. But I regard the number of hours as unreasonable given the nature and complexity of the issues. I reduce the number of hours to 70. I therefore allow a total sum of $18,853 for the third invoice.
[187] As to the rest of the invoices, the Appellant first submits that Mr Smithson’s hourly rate of $300 is excessive and unreasonable (Dr Smith charges between $240 and $225 per hour and is arguably more qualified). I agree and reduce Mr Smithson’s hourly rate to $240.
[188] The Appellant then queries the number of hours charged for in Mr Smithson’s invoices. It states that it has been unable to interpret them properly as they lack any real breakdown. So it has relied on the notes of evidence.
[189] For the fourth invoice (1867), the Judge allowed a sum of $6,250 (removing
$600 for vehicle expenses as they were not specific to the conduct of the proceeding).87 The Judge said the work was undertaken in assessing the evidence. The Appellant submits that it was not work done in preparation of giving evidence. Given the description in the invoice, I agree with the Judge. But I reduce the figure to $6,000 given my reduction of Mr Smithson’s hourly rate.
[190] For the fifth invoice (1869), the Judge allowed a sum of $19,862 (removing multiple sums for vehicle expenses, accommodation, preparing submissions, peer review and the like).88 The Appellant challenged the number of hours Mr Smithson was in Court (he charged for eight hours for each day), as well as his ability to charge for all those hours (he should not be permitted to charge for sitting in Court critiquing evidence).
[191] I agree broadly with the Appellant’s submission. The Respondent may
recover for the time charged by Mr Smithson for giving evidence (plus reasonable
87 At [16](iv).
88 At [16](v).
waiting time). Likewise, a reasonable charge may be made for time spent by Mr Smithson for assisting the Respondent to understand the evidence of the Appellant’s experts and so prepare cross-examination. But, as I have said, much of that should be done pre-trial on the basis of the reports. In some cases having an expert observe the trial for significant periods may be reasonable. However, I have no submissions from the Respondent as to why Mr Smithson sat through the trial.
[192] Mr Smithson gave evidence for one day over a three day period, which involved five-and-a-half hours. I do not regard his claim for 64 hours for Court time and preparation as reasonable given the nature and complexity of the issues. I will permit the Respondent to charge for a total of 32 hours (which includes eight hours for attendance at Court – including waiting time). The fifth invoice is reduced to
$13,178.
[193] For the sixth invoice (1896), the Judge allowed a sum of $1,500 (removing a sum of $600 for vehicle expenses).89 The Appellant submits this was outside the criteria specified in Air New Zealand Ltd v Commerce Commission, as it was for spending time with Dr Smith. I disagree. The invoice states that Mr Smithson and Dr Smith were reviewing the brief of evidence of Mr Wilcox. I reduce the sum to
$1,440 in accordance with Mr Smithson’s above hourly rate.
[194] For the seventh invoice (1887), the Judge allowed a sum of $4,000 (removing a sum of $600 for vehicle expenses).90 The Appellant submits this was similarly outside the criteria specified in Air New Zealand Ltd v Commerce Commission, as it was an advance invoice for two future hearing dates (not, as the Judge incorrectly said, for discussions with the Respondent’s directors and Dr Smith). No final invoice was supplied for that future work. I agree with the Appellant and remove the
sum.
89 At [16](vi).
90 At [16](vii).
[195] For the eighth invoice (1955), the Judge allowed a sum of $1,500 for preparation relating to further briefs.91 I agree with this assessment and reduce the sum to $1,440 for the reduced hourly rate.
[196] For the ninth invoice (1956), the Judge allowed a sum of $3,375 for preparation of an additional statement and the review of additional documents.92 I agree with this assessment, but reduce the sum to $3,240 to account for the reduced rate.
[197] For the tenth invoice (1959), the Judge allowed a sum of $4,000 for Mr Smithson assisting the Respondent in Court (removing a sum of $1,000 for vehicle expenses).93 I agree with this assessment. The continuing course of the case meant Mr Smithson’s expertise was needed further. I likewise reduce the sum to
$3,840.
[198] For the eleventh invoice (1960), the Judge disallowed the sum as it was an interest charge imposed on the unsettled accounts of the Respondent.94 I agree.
Conclusion
[199] The substantive appeal is dismissed.
[200] The appeal against Judge Sharp’s disbursements award is allowed in part.
[201] I substitute Judge Sharp’s award of $83,037 as disbursements with an award
of $52,291, as per the appendix.
91 At [16](viii).
92 At [16](viiii).
93 At [16](x).
94 At [16](xi).
Costs
[202] I will receive submissions on costs if the parties cannot agree. The Appellant is to file any memorandum by 20 October 2017 and the Respondent may reply by
3 November 2017.
Brewer J
Appendix
Number Expert
Date
Tax Invoice
No.Amount claimed excluding GST.
Amount allowed herein
1
Dr J Smith
(Optimech)02.05.16
1606052
2,500.00
0
2
Dr Smith
11.02.16
15755
10,401.00
4,300.00
3
Dr Smith
27.07.16
15875
40,357.32
18,853.00
Total charged by Optimech
$53,258.32
Total allowed for Optimech
$23,153.00
4
Mr T Smithson
(Assessco)30.11.15
1867
6,850.00
6,000.00
5
Mr T Smithson
12.02.16
1869
29,125.30
13,178.00
6
Mr T Smithson
30.04.16
1896
2,100.00
1,440.00
7
Mr T Smithson
17.05.16
1887
4,600.00
0
8
Mr T Smithson
23.12.16
1955
1,500.00
1,440.00
9
Mr T Smithson
13.01.17
1956
3,375.00
3,240.00
10
Mr T Smithson
10.02.17
1959
5,000.00
3,840.00
11
Mr T Smithson
10.02.17
1960
3,679.11
0
Total charged by Assessco
$56,229.41
Total allowed for Assessco
$29,138.00
Total charged
$109,487.73
Total allowed
$52,291.00
6
2
1