Air Cool Environmental v Lube Mobile, the Mobile Mechanics [2019] QCAT 331

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Air Cool Environmental v Lube Mobile, the Mobile Mechanics [2019] QCAT 331 PARTIES: AIR COOL ENVIRONMENTAL (ABN 25973106830) (applicant) v LUBE MOBILE THE MOBILE MECHANICS (ABN 79084701879) (respondent) APPLICATION NO/S: Brisbane MCDO643/18 MATTER TYPE: Other minor civil dispute matters DELIVERED ON: 31 October 2019 HEARING DATE: 4 December 2018 HEARD AT: Brisbane DECISION OF: Member McLean Williams ORDERS: The application is dismissed CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – GUARANTEES CONDITIONS AND WARRANTIES – Circumstances where Applicant seeks to claim under warranty for subsequent motor vehicle repair work and associated costs and losses arising after repairs previously performed by Respondent – Circumstances of claimed consequential damage due to negligent repairs by Respondent yet negligence denied by Respondent who claims problems were caused by intervening factors, not attributable to the Respondent EVIDENCE – PROOF – BURDEN OF PROOF – Circumstances where Applicant relies on opinion evidence from various motor mechanics, who were not called to give evidence before the Tribunal – question as to adequacy of evidence in proof of claim – Circumstances wherein Respondent offers contrary mechanical opinion as to cause – Difficulties for Tribunal determining between competing hypotheses for causation in absence of direct evidence from Applicant’s experts APPEARANCES & REPRESENTATION: Applicant: Mr Mark Beales & Mr Mark Eden Respondent: Mr Sean Treloar & Mr Colin De-Graaf -- 1 of 6 -- 2 REASONS FOR DECISION In an Application for minor civil dispute filed on 10 May 2018, Air Cool Environmental (‘Air Cool’) an air conditioning company located at Cleveland claims $24,577.41 from Lube Mobile the Mobile Mechanics (‘Lube Mobile’) in consequence of the additional repair costs and economic loss that it claims was caused to it after a vehicle owned by Air Cool had been negligently repaired by Lube Mobile. This matter was heard before the Tribunal on 4 December 2018. Air Cool was self- represented by Mr Marc Beales, together with Mr Mark Eden. Similarly, Lube Mobile were also self-represented, in this instance by Mr Sean Treloar who was accompanied before the Tribunal by Mr Colin De-Graaf. Factual Background to the Claim Mr Marc Beales informed the Tribunal that Air Control has owned and operated a 2008 model Nissan Navara 4 cylinder petrol utility for a number of years (‘the Navara’). Mr Beales said that the Navara had always been a reliable work vehicle, and that it had a regular service history. The log book service history for the Navara was however not put into evidence before the Tribunal. In about late March or early April 2017, Mr Beales says that he became aware of an unusual rattling noise, emanating from somewhere within the engine bay of the Navara. Mr Colin De Graaf from Lube Mobile was contacted, and asked to come out and look at the Navara, in an effort to rectify this rattling noise. On 11 April 2017, Mr De Graaf and another Lube Mobile mechanic came out to Cleveland, and inspected the Navara. At that stage the odometer reading was 189,217 kilometres. Mr De Graaf identified the likely cause for the rattling noise as a worn timing chain, and recommended that it be replaced. Mr Beales agreed. Lube Mobile then spent most of the remainder of 11 April 2017 replacing the timing chain on the Navara. These repairs were not inexpensive. In conjunction with some other minor matters, the total cost to Air Control for the timing chain replacement was $2,726.59. Mr Beales claims that Mr De Graaf was ‘caught out’ by him, for having not replaced the timing chain correctly. At the end of the job Mr Beales had requested that he be given all the old parts, that had been removed from the Navara. When these were handed over, Mr Beales says that the old parts included two smaller chains that were obviously brand new; thus suggesting that only the larger chain from the three-chain set had been replaced, with the original smaller chains simply left un-replaced, in-situ. Mr Beales says that Mr De Graaf appeared most unhappy when this was pointed out to him, and immediately set about blaming his junior colleague for the error. Mr De Graaf then had to spend a goodly portion of 12 April 2017 re-doing the job from the day prior. In these circumstances Mr Beales suspects that Mr De Graaf ‘rushed the job’ on 12 April, and the timing chains were not tensioned correctly. Nearly 8 months later, on 8 January 2018, Mr Beales says that the Navara just stopped dead at traffic lights on Redland Bay Road, Capalaba. Fortunately, Mr Beales was able to get the Navara off the carriageway, by free-wheeling into the parking apron of an adjoining Service Station. -- 2 of 6 -- 3 Mr De Graaf was unable to be contacted at that time, so Mr Beales contacted another mechanic, one from ‘Auto King’. On 9 January 2018, a mechanic from Auto King inspected the car and advised Mr Beales that he suspected that the problem was that the crank shaft sensor was out of calibration. However, after a new crank shaft sensor had been fitted, the problem remained, unabated. The Auto King mechanic then suggested that the Navara be towed to Nissan at Cleveland for a deeper investigation. Cleveland Nissan were not able to work on the Navara immediately, and could not even begin to look at it until 15 January. Eventually, on 24 January 2018, Cleveland Nisan produced an inspection report. Upon removal of the timing chain cover, ‘RJ’ (the mechanic at Cleveland Nissan) identified that the top chain guide had fallen to pieces, thus causing excessive play in the chain, thus enabling the chain to jump sprocket teeth whilst operating: thus likely causing the timing of the chain to fall out of synchronisation. The written report prepared by ‘RJ’ concludes by stating: ‘SUSPECT THE TIMING CHAIN KIT MAY HAVE BEEN INCORRECT FOR THIS VEHICLE OR POSSIBLY FAULTY PARTS AND FITMENT. SUSPECT POSSIBLE CYCLINDER HEAD/VALVES DAMAGED, WILL REQUIRE STRIP DOWN TO FURTHER INVESTIGATE THE EXTENT OF DAMAGE, THE METAL DEBRIS FROM THE TOP GUIDE MAY HAVE ENTERED THE OIL SYSTEM AND THERE COULD BE INTERNAL DAMAGE TO THE ENGINE INTERNALLY [sic]’. The odometer reading for the Navara as recorded in the Cleveland Nissan inspection report was 201,196, meaning that the Navara had been driven for another 11,979 kilometres after the work conducted by Lube Mobile on 11 & 12 April 2017 before breaking down on 8 January 2017. As against this I do however note that Lube Mobile offer a ‘20,000 kilometre or 12 month’ warranty. On 24 January 2018, Mr Beales contacted Lube Mobile to speak to Colin De Graaf and complain that the timing chain had failed. He spoke to Mr Sean Treloar, who informed him that Colin De Graaf was still on holidays. Mr Beales then accused Mr De Graaf of having incorrectly installed the timing chain kit, thus having caused a range of serious problems in the Navara that ought now be repaired by Lube Mobile, under warranty. Mr Treloar would not be drawn into that, and insisted that Lube Mobile first be given an opportunity to inspect the Navara, before agreeing to repair it, under warranty. Not unreasonably, Mr Beales agreed. The Navara was then towed to Lube Mobile at Meadowbrook, by Springfield Lakes Towing. On 29 January 2018, Mr Trelour informed Mr Beales that Lube Mobile believed that the timing chain had failed due to a lack of oil pressure to the timing chain tensioner. Lack of tension on the chain had caused it to whip, and catch against the chain guide; thus causing it to fracture into pieces. Mr Beales was informed that this was not the type of matter that Lube Mobile would fix under warranty. In an e-mail sent to Mr Beales by Mr Treloar at 1.07pm on 30 January 2018, Mr Treloar elaborated, in these terms: “….We have found a build-up of carbon deposits (engine sludge) in crank case and engine lubrication system, we believe this build-up has slowed or possibly stopped the flow of oil to timing chain tensioner allowing slack in chain allowing [the chain] to whip and smash runner from chain guide, chain guides and sprockets are all in -- 3 of 6 -- 4 as new condition with no wear marks at all, just damage from chain catching on guide runner has been smashed off, these carbon deposits can only be removed by dismantling engine to bare block and cylinder heads and placing in hot tank then renew all wearing components seals and gaskets. This is reason to [sic] us recommending a reconditioned replacement engine. We were not able to see a sample of engine oil as was removed before the engine was presented to us. I have also attached some photos of the carbon build up in crank case and damaged chain guide runner for a better understanding”. Mr Beales says that he went back to Cleveland Nissan and informed them as to what Mr Treloar had said. Mr Beales next says that both “Gary” and “the Chief Mechanic” at Cleveland Nissan were dismissive of Mr Treloar’s opinion, and said that what Mr Treloar had postulated just could not happen. Mr Beales also says that the necessary repairs to the Navara were eventually undertaken by ‘Mr Spanners Automotive’, at Sumner Park. These repairs cost Air Cool $9,651.61. Mr Beales says that “Ian” at Mr Spanners Automotive had informed him that the problem had been caused by the timing chain having been installed too tightly, and hence incorrectly. The Tribunal has not seen a report from either “Gary” or “the Chief Mechanic” from Cleveland Nissan in refutation of the opinion expressed by Mr Treloar, and is asked to accept the accuracy of the hearsay recollection of their opinions from the bar table, by Mr Beales. Additionally, the Applicant called neither of these gentlemen, nor did the Applicant call “Ian” from Mr Spanners Automotive at Sumner Park as witnesses before the Tribunal as part of its case. However, Mr Spanners Automotive did - as part of their repair invoice - provide an inspection report (dated 28 February 2018). The unspecified author of the Mr Spanners Automotive inspection report has, in part, written: “Vehicle was towed to us with Front Timing Cover off, Timing Chain Top Guide had been removed, Timing Chain Tensioner had lock spring all twisted and the chain was stretched to braking [sic] point, with one section off [sic] chain broken ¾ off [sic] the way through, there was plenty of oil in Side Timing Cover and no sludge, timing check for compression I [sic] leak off in cylinders. Remove and refit Heads and have overhauled, install new Timing Chain Kit, remove and refit Lower Sump and Check Oil. Pick up was about 10% blocked, oil was already drained, replaced oil and filter, there was lots off [sic] Fault Codes on Start Up and where [sic] traced to incorrect Ecu fitted to vehicle by Nissan, refit correct Ecu supplyed [sic] by Nisan and reset Security Fit Fault Code problem.” Quantum of Applicant’s Claim Air Cool claims the following sums from Lube Mobile: Initial attempted repair costs by Auto King: $250.00 Towing to Cleveland Nissan by Reliable Towing: $80.00 Nissan Cleveland repair costs: $1,144.00 Springfield Towing, tow to Lube Mobile: $154.00 -- 4 of 6 -- 5 Springfield Towing, tow from Lube Mobile: $143.00 Mr Spanner Automotive $9,651.61 Vehicle Hire (Betta Hire) $328.00 Loss of earnings: $12,500.00 QCAT Filing Fee: $326.80 (Total Claimed): $24,577.41 Respondent’s Case. Mr Treloar, who is a mechanic, conducted Lube Mobile’s case. In the circumstances, and given the nature of this dispute, the Tribunal allowed Mr Treloar to give opinion evidence, from the Bar Table. Mr Colin De Graaf who had performed the initial timing chain kit replacement on the Navara on 11 April 2017 accompanied Mr Treloar at the hearing. He too is a mechanic. When before the Tribunal on 4 December 2019, Mr De Graaf denied that the timing chain kit had been installed incorrectly on 11 or 12 April 2017, and said that he had followed the steps for a timing chain kit replacement specified in Autopedia. Although the Respondent filed no materials in the Tribunal prior to the hearing, Mr Treloar did hand up two documents during the hearing. The first of these was a diagrammatic representation of the timing chain assembly for the Nissan Navara from ‘Autopedia’, an on-line trade reference. The other document - also derived from Autopedia - lists the sequence of steps and instructions for the removal and replacement of the Nissan Navara timing chain assembly, which Mr De Graaf had followed. Mr Treloar used each document, as well as the Applicant’s own materials to explain the basis for his opinion as to what had happened to the Navara’s engine in this instance. Mr Trelour explained that, on the available evidence, it was unarguable that the runner from the chain guide had broken into pieces in consequence of the chain whipping, due to the chain being under inadequate tension. Mr Treloar also said that proper tension on the timing chain is a matter ordinarily maintained by the chain tensioner, which stays under tension due to it being under oil pressure. Although the author of the ‘Mr Spanners Automotive’ report dated 28 February 2018 was not available before the Tribunal for cross examination, Mr Trelour observed that the mechanic whom had authored that report had recorded that he had found that the oil pickup (for the chain tensioner) was “about 10% blocked”. Mr Trelour then opined that a blockage of even as little as 10% would be enough to slow or even stop the flow of oil to the timing chain tensioner, and that this was also consistent with the sludge deposits that had been found by him (and photographed) when he inspected the Navara at Meadowbrook, after it had been towed to Lube Mobile on 24 January 2018. Mr Trelour also said that these sludge deposits are consistent with the Navara not having been maintained properly in terms of receiving adequate oil changes. At the end of it, the Tribunal is confronted with a situation wherein resolution of this dispute is to be found within a contest of contrary mechanical opinion evidence as -- 5 of 6 -- 6 between the opinions expressed by Mr Treloar, (who was before the Tribunal) and the opinions of some other - largely unidentified and unknown - mechanics, from Cleveland Nissan and Mr Spanners Automotive at Sumner Park, who were not similarly before the Tribunal. In these circumstances the Tribunal has not been afforded any proper opportunity to assess the credibility of these other (reputedly) contrary opinions. That other evidence has not been properly tested, by means of cross examination. Further, it is to be noted that the Mr Spanners Automotive mechanic has seemingly recorded that there was ‘no sludge’ and that when the Navara was inspected by Mr Spanners Automotive at Sumner Park the engine oil had already been drained. It is now quite impossible for the Tribunal to assess the implications of those observations (or even their accuracy) on Mr Treloar’s opinion, given the non- availability of the Mr Spanners Automotive mechanic for further questioning before the Tribunal around these issues. The Applicant should have called these mechanics to give evidence, but did not. In these circumstances the Tribunal prefers the hypothesis advanced by Mr Treloar, who was, at least, available before the Tribunal for questioning, and whose demeanour as a witness could be considered. In all cases such as this one the Applicant has a persuasive onus, and an evidential onus. The Applicant has not satisfactorily discharged either onus. The Application is dismissed. -- 6 of 6 --