Lowe v Mack Trucks Australia Pty Limited [2008] FCA 439 (4 April 2008)

Last Updated: 11 April 2008

FEDERAL COURT OF AUSTRALIA

Lowe v Mack Trucks Australia Pty Limited [2008] FCA 439

TRADE PRACTICES – Consumer protection – Breach of implied condition of merchantable quality – Breach of implied condition of fitness for purpose – Misleading and deceptive conduct – (CTH) Trade Practices Act 1974 ss 52, 66(2), 71(1), 71(2), 75AD, 82, 87

Evidence – Opinion – Expert evidence – Admissibility – (CTH) Evidence Act 1995 ss 79,135


Trade Practices Act 1974 (Cth) ss 52, 66(2), 71(1), 71(2), 75AD, 82,87
Evidence Act 1995 (Cth) ss 79,135



Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220 cited
Crowther v Shannon Motors Co [1975] 1 WLR 30 cited
Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 cited
Rogers v Parish (Scarborough) Ltd [1987] QB 933 approved
Courtney v Medtel Pty Ltd (2003)126 FCR 219 cited
Medtel Pty Ltd v Courtney (2003) 130 FCR 18 followed
Cavalier Marketing (Australia) Pty Ltd v Rasell (1990) 96 ALR 375 cited
Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099; (2000) 102 FCR 307 followed
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 cited
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 cited
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 cited
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 cited
Ting v Blanche [1993] FCA 524; (1993) 118 ALR 543 cited
Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 cited
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-633 cited
Banque Commerciale S A v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 cited
General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473; (1993) 45 FCR 164 cited
Pappas v Soulac Pty Ltd (1983) 50 ALR 231 cited
Sanders v Glev Franchises Pty Ltd [2002] FCA 1332 cited
Hanave Pty Ltd v LFOT Pty Ltd [1998] FCA 1051 cited
Gurdag v Stillwell Ford Pty Ltd (1985) 61 ALR 689 cited
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 applied
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 cited
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 30; (2002) 55 IPR 354 cited
Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 cited
Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 cited
Henscke & Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63; [1999] FCA 1561 cited
Rhoden v Wingate [2002] NSWCA 165 cited


Arnotts Ltd v Trade Practices Commission (1990 24 FCR 313 cited
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 cited
National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd’s Rep 68 cited
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 cited
United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 cited
Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136 applied
Arturi v Zupps Motors Pty Ltd (1980) 49 FLR cited
LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 cited
Hadley v Baxendale [1854] EWHC Exch J70; (1854) 9 Ex 341 cited
AFA Electronics Pty Ltd v Strathfield Group Wholesale Pty Ltd [2001] VCS 289 cited
Burns v MAN Automotive (Aust) Pty Ltd [1986] HCA 81; (1986) 161 CLR 653 cited
Hodgson & Hodgson v Morella Pastoral Co Pty Ltd (1975) 13 SASR 51 cited
NEA Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106 cited
NEA Pty Ltd v Magenta Mining Pty Ltd [2007] WASCA 70 cited
Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 applied
Zuvela v Geiger [2007] WASCA 138 cited



















GRAHAM LOWE AND ERICA LOWE v MACK TRUCKS AUSTRALIA PTY LIMITED
VID 249 OF 1999

KENNY J
4 APRIL 2008
MELBOURNE

TABLE OF CONTENTS

1. Introduction
2. The applicants’ Further Amended Statement of Claim
3. Mack’s defence
4. Relevant legal framework
(A) Conditions as to merchantability and fitness for purpose
(B) Misleading and deceptive conduct
(C) Were there insurmountable deficiencies in the applicants’ s 52 claim as Mack alleged?
5. The history of the applicants’ operation of the truck
(A) Buying the truck
(B) The first trip – first problems
(C) Ongoing problems
(D) Settlement of the Magistrates Court proceeding in November 1998
(E) Unresolved issues
(F) Notice of Rescission
(G) The truck goes back to work and proceedings are instituted against Mack
6. Assessment of witnesses
(A) Mr Lowe
(B) Mrs Lowe
(C) Wayne Pasfield
(D) Wayne Wallace
(E) Jon Heironymous
(F) Mr Buttignol
(G) Mr Kumnick
7. The FORS Report
(A) Process
(B) FORS Report vibration analysis
(C) FORS Report handling quality analysis
8. The experts’ evidence regarding the FORS Report issues
(A) Dr Morrison
(B) Mr Robert McPherson
(C) Status of Mr Lambert’s and Dr McLean’s evidence
(i) Dr McLean
(ii) Mr Lambert
9. The applicants’ case on liability assessed
10. Damages

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 249 OF 1999

BETWEEN:	GRAHAM LOWE AND ERICA LOWE Applicant
AND:	MACK TRUCKS AUSTRALIA PTY LIMITED Respondent

JUDGE:	KENNY J
DATE OF ORDER:	4 APRIL 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.	The application be dismissed.
2.	The parties file and serve written submissions on costs on or before 4 pm on 16 April 2008.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 249 OF 1999

BETWEEN:	GRAHAM LOWE AND ERICA LOWEApplicant
AND:	MACK TRUCKS AUSTRALIA PTY LIMITEDRespondent

JUDGE:	KENNY J
DATE:	4 APRIL 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. INTRODUCTION

1 Some years ago now, Mr and Mrs Lowe carried on an interstate transport business in partnership under the name "G & E Lowe". This proceeding concerns a truck that they bought from Mack Trucks Australia Pty Ltd (referred to hereafter as ‘Mack’) in 1998. The truck was a new Mack CH Elite Highway prime mover (hereafter ‘the truck’ or the ‘Lowes’ truck’), which Mack had manufactured. The Lowes’ case is that Mack assured them that the truck was suitable for their interstate long-haul transport business (hereafter ‘the business’ or ‘the Lowes’ business’), when in fact it was not. They seek damages in respect of the loss allegedly suffered as a result. For the reasons that follow, I find that their claim is not made out.

2 The Lowes conducted the business from Adelaide, transporting goods by truck from Adelaide to Brisbane, Sydney and other destinations mostly along the east coast of Australia. On 23 March 1998, they entered into a conditional contract with Mack to purchase the truck, for a price of $209,230. Although the Lowes initially contemplated a Freightliner or Western Star model vehicle as a changeover for their then current Mack CHR (which they purchased in 1995), they gave consideration to a new Mack when they were offered a competitive price. Mr Dean Kumnick, a Mack branch salesman in Adelaide, stated that the truck would be suitable for their needs. He knew that the Lowes were involved in the business of interstate long-haul goods transport as truck owner-operators.

3 On 1 April 1998, Mr Lowe took delivery of the truck from Mack and set out to drive the truck from Adelaide to Brisbane and back, towing a fully loaded Tautliner trailer. Mr Lowe noticed problems with the truck almost immediately. He complained to Mack in Brisbane and, on his return, to Mack in Adelaide.

4 It was part of the Lowes’ case that "[t]he litany of complaints was so bad" that as early as June 1998, the Lowes asked Mack about the possibility of returning the truck on a walk-away (or no-loss or no-cost) basis. As appears below, the evidence did not establish as much. The evidence did, however, establish that Mrs Lowe enquired about returning the truck on a walk-away basis in October 1998.

5 In early 1999, the Lowes’ complaints about the truck led to it being included in a group of trucks selected for examination by Roaduser International Pty Ltd (hereafter ‘Roaduser’) as part of an inquiry by the Federal Office of Road Safety (hereafter ‘FORS’) into aspects of long-haulage road transport operation in Australia. Indeed, in an initial "inspect and drive" test organised by Roaduser, Mr John Lambert, who gave evidence at the trial, reported that the truck exhibited characteristics of vibration, wandering and darting. The FORS Inquiry resulted in a Final Report, entitled "Investigation into the Specification of Heavy Trucks and Consequent Effects on Truck Dynamics and Drivers". In this proceeding, this report was referred to as the ‘FORS Report’. This Report is discussed below.

6 Throughout the period he drove the truck, Mr Lowe complained about it, especially its rough ride and poor performance. The Lowes claimed that, over the period they operated the truck, these characteristics were made manifest by various things, particularly vibration, inordinate component failures, and the need for constant repairs and parts replacement. The Lowes’ case was that the on-going defects in the truck ultimately led Mr Lowe to ‘park up’ the truck at Rick Cobby’s depot and ‘walk away’ from it. They claimed that they did so "despite the clear and substantial financial ramifications" for them and the business.

7 The genesis of this proceeding was a class action that began on 17 May 1999. The class action was unable to proceed as such and, by an application and statement of claim dated 11 October 2001, the Lowes elected to continue the proceeding as applicants in their own right against Mack and Australian Guarantee Corporation Limited (referred to below as ‘AGC’), which had financed the truck’s purchase. The proceeding against AGC has been resolved. The matter took some time to be ready for trial, in part because of changes in legal representation.

8 At trial, the applicants complained of the truck’s rough ride, poor handling and poor performance, which they said was manifest by "vibration, darting and wandering and a litany of breakages, repairs and premature replacement of parts". The applicants alleged that there was a general design problem with big trucks, such as theirs. In this regard, they relied on the FORS Inquiry and Report, which they said (written submissions, 1.2.2) was a response to industry complaints about poor handling and performance associated with

... the trend to increased variation in the specification combinations of vehicles with larger wheelbases, taller cabins, more powerful engines, loads with higher centres of gravity, airbag suspension and the failure of some manufacturers to adequately test proposed vehicle configurations and use.

9 Also at trial, the applicants alleged that there was a specific fault in the truck with the application of the panhard rods to the same side of the chassis. This meant, so they said, that the panhard rods in the truck did not fulfil the objective of transverse rods, which was to keep the axles centred laterally. The applicants also claimed (written submissions, 1.2.8) that air bag suspensions contributed to "potential instability in trucks generally" and to "the overall problem whereby each element provides potential feedback to the others". They relied on the evidence of Mr Lambert to make good this proposition.

10 As the applicants said, "[a] feature of [their] case" was "the question of the harmonic signature of the vehicle". In this regard, they relied on the evidence of Mr Lambert and Dr Arnold McLean as to how harmonics work. Mack challenged their evidence on the basis that Mr Lambert and Dr McLean had

... lost all objectivity in respect of ... this case and that there are certain personal agendas which both persons have which they wish to further.

I return to this submission hereafter.

2. THE APPLICANTS’ FURTHER AMENDED STATEMENT OF CLAIM

11 The Further Amended Statement of Claim runs to some 40 pages and asserts numerous causes of action, including breach of contract, negligence, breaches of ss 52, 53(a), 53(aa), 53(ea) and 53(g) of the Trade Practices Act 1974 (Cth) (TPA) and unconscionable conduct contrary to ss 51AA and 51AC of the TPA. The Lowes also relied on the Fair Trading Act 1987 (SA) and the Sale of Goods Act 1895 (SA), but did not suggest that the State Acts would produce a result different from the TPA. Save for a brief discussion in the context of damages, I do not discuss them further. The applicants sought various remedies (see below) but they did not press their claim for personal injuries, or exemplary and aggravated damages.

12 By the end of the trial, the applicants had effectively abandoned much of their pleaded case. This was confirmed by the applicants’ closing written submissions, which contained a statement of their claims. This was the applicants’ best written statement of the case they sought to make at trial. The applicants did not pursue any matter outside this summary, and they effectively abandoned their claims based on ss 53(a), 53(aa), 53(ea) and 53(g) of the TPA and unconscionable conduct.

13 The applicants’ summary was as follows:

2.1.1 Pursuant to the Further Amended Statement of Claim dated 13 August 2002 the principal allegations may be summarised and paraphrased as:

(a) the Lowes expressly or by implication made known to [Mack] the particular purpose for which the truck was required. That purpose was interstate long-haul transport operations;

(b) the Lowes relied on the skill and judgement of [Mack] in selecting an appropriate vehicle for their purpose; and further

(c) [Mack] made representations or gave warranties including:

(i) the truck was ideally suited for the Lowes’ purpose;

(ii) the truck would provide safe, reliable and efficient service for at least 800,000 kilometres; and

(iii) the truck would provide a very good ride.

2.1.2 In these circumstances it is alleged that there are implied conditions of the Contract of Sale that the truck would be:

(a) reasonably fit for the purpose; and

(b) of merchantable quality.

2.1.3 These implied conditions arise pursuant to section 71(1) & (2) of the [TPA] ....

2.1.4 The definition of ‘consumer’ in the [TPA] includes the purchaser of a commercial road vehicle regardless of price. (See section 4B(1)(a) and (4) of the [TPA]) Section 66(2) of the [TPA] provides a definition of ‘merchantable quality’.

2.1.5 Further, it is alleged there are express terms of the Contract of Sale that, inter alia:

(a) the truck was ideally suited for the purpose of interstate long-haul road transport;

(b) the truck would provide safe, reliable and efficient service for at least 800,000 kilometres;

(c) the truck would handle and drive well;

(d) the truck is performance engineered with a perfect blend of reliability, durability and efficiency.

2.1.6 In reliance upon various representations and warranties set out in the Amended Statement of Claim, the Lowes purchased the truck from [Mack].

2.1.7 Particulars of the defects that establish that the Lowes’ truck was not fit for its purpose are set out in the amendments to paragraph 16 of the Further Amended Statement of Claim and filed in the course of the trial.

2.1.8 The defects were caused by:

(a) design and construction failures; and

(b) defective and inadequate examination and testing of the truck and its components.

2.1.9 The failure of design and construction are set out in the amendments in paragraph 19A of the Further Amended Statement of Claim filed during the course of the trial. Particulars of the inadequate examination and testing are set out in paragraph 19B.

2.1.10 To the extent that the Lowe truck is found:

(a) not to be safe and reliable;

(b) not to be ideally suited or reasonably fit for interstate long-haul transport operations;

(c) not to provide safe, reliable, proper and efficient service for 800,000 kilometres;

(d) not to provide a high standard of drive;

(e) not performance engineered with a perfect blend of reliability, durability and efficiency for a broad range of specific applications including long-haul interstate road transport;

(f) not of merchantable quality;

the Lowes have causes of action including:

(g) For breach of section 71(1) & (2) of the [TPA].

(h) ...

(i) For breach of warranty.

(j) For breach of the terms and conditions of the Contract of Sale.

(k) For breach of a duty of care owed to the [Lowes] (as purchasers) giving rise to a cause of action founded in negligence.

2.1.11 Pursuant to the Amended Application dated 27 September 2001 the remedies sought principally are:

(a) Damages and/or compensation pursuant to ss 75AD, 82 and 87 of the [TPA];

(b) An order pursuant to s 87(1) & (2) of the [TPA] declaring the whole of the contract between the Lowes and [Mack] void ab initio and/or directing [Mack] to refund to the Lowes the monies paid by them.

(c) Common law damages for breach of contract and negligence.

together with interest and costs.

14 When this summary and the Further Amended Statement of Claim are compared, it is apparent that many details in the applicants’ pleaded case were not pursued and some causes of action were dropped from their case entirely. In closing, the applicants’ counsel agreed that the key issue in the case was whether or not defects in the Lowes’ truck rendered it unfit for the purpose of interstate long-haul goods transport. Broadly speaking, the applicant’s counsel agreed with the respondent’s counsel that the central issue was whether the Lowes could successfully invoke s 71 of the TPA by establishing that, on account of defects in construction and design, the truck was unfit for this purpose and not of merchantable quality.

15 At trial, the applicants filed amendments to [16] and [19] of the Further Amended Statement of Claim. The amendment to [16] asserted some 55 defects, which were said to make the truck unfit for purpose, and these included:

rough ride including:

(i) vibration; and

(ii) poor handling characteristics such as excessive bump steer, bogie axle roll steer and drive axle low roll resistance

Further matters were: chassis bowed and bent; cab mounts; top leaf in springs; steer tyre wear; axle camber wrong; rear engine mounts cracked and separated; severe vibration (downhill first, second and third gears); and suspension problems. There were, however, many further matters, which I do not list here. I note that some of them were not the subject of evidence at trial and were not pursued in closing submissions.

16 The amendment to [19] affirmed that these defects were caused by:

(a) the failure of the design and construction of the truck to meet the requirements of the use of the prime mover for long-haul transport; and

(b) defective or inadequate examination and testing of the truck and its components.

17 The applicants gave 26 instances of the failure of the design and construction, and again not all of them were actively pursued at the trial. Broadly speaking, they fell into the following categories: (1) incorrect installation and design of the suspension system in that transverse rods were both mounted to the same side of the chassis; (2) uneven distribution of air pressure through the air suspension system and variable airbag pressure; (3) adverse operation of right height control valve; (4) drive line torsional vibrations; (5) cut out of the top and bottom chassis rail flanges; (6) inadequate front engine mounting design; (7) steering mechanism exhibiting excessive bump steer; (8) adverse kinematic geometry in steering column to steering box input shaft; (9) significant outer edge scalloping and uneven wear of steer tyres; (10) vehicle handling erratically and unpredictably due to flexible chassis vibrations, torsional loading and bogie axle roll steer; (11) inadequate design of the driver’s seat mechanism; (12) cyclic twisting of the chassis due to the combination of torsionally rigid trailers with high centre of gravity load; and (13) the harmonic signature of the vehicle being of a frequency too closely matched to external excitation sources such as drive wheels and vehicle pitching and rocking thereby causing adverse frequency phenomena through the vehicle chassis.

18 Also in these pleading amendments, the applicants introduced a new [19B], which asserted that the defective or inadequate examination and testing of the truck included:

(a) The failure to test the prime mover during its construction so as to ascertain its harmonic signature and its suitability for long haulage interstate high centre of gravity high gross mass loads with a torsionally rigid trailer; and

(b) The failure to test the prime mover once its construction was completed, or a vehicle of like specifications was completed, so as to ascertain the suitability of the prime mover for long haulage interstate high centre of gravity high gross mass loads with a torsionally rigid trailer.

19 In closing oral submissions, the applicants’ case was further narrowed. Their counsel effectively abandoned any solely contractual cause of action, i.e., not depending on s 71 of the TPA. This was unsurprising, given that the evidence about any relevant contract of sale was limited.

20 At the time Mr Lowe parked up the truck, he and Mrs Lowe were purchasing the truck by way of a hire purchase agreement with AGC, pursuant to which AGC acquired the truck and hired it to the Lowes. The evidence before the Court included a copy of a Quotation dated 23 March 1998 for the sale of the truck, "New Truck Proposal" for the truck signed by Mrs Lowe on or about 23 March 1998, AGC’s Standard Asset Purchase Agreement Schedule with the applicants, which was dated 27 March 1998 and named Mack as the supplier, as well as a warranty registration form signed and dated 31 March 1998 and "New Vehicle Warranty Information". The documentary evidence did not include either AGC’s "Standard Conditions" (as referred in AGC’s Schedule) or any particular contract of sale (with AGC or any other person). It is true that Mr Kumnick gave clear evidence of his pre-contractual negotiations with the Lowes. There was, however, little, if any, foundation for a separate cause of action in contract, at least for one independent of s 71 of the TPA; and the applicants’ counsel did not ultimately contend to the contrary.

21 Moreover, in closing submissions, the applicants accepted that, if they failed to make out their claim based on s 71 of the TPA, then they would fail to make out their negligence claim. Accordingly, I do not hereafter discuss claims in negligence or contract simpliciter (i.e., apart from s 71 of the TPA).

22 Indeed, apart from the s 71- based claims, in closing oral submissions, counsel for the applicant conceded that the only other remaining claim that the applicants pursued was a limited claim based on s 52 of the TPA. This was a claim based on so-called representations or warranties to the effect that:

• the truck would provide safe, reliable and efficient service for at least 800,000 kilometres; and

• driving the truck was like driving a car.

3. MACK’S DEFENCE

23 Mack’s defence was comparatively straightforward. Mack admitted that it had sold the truck to the Lowes in the knowledge that Mr Lowe wanted the truck for interstate long distance goods transport. The contest about the representations made at sale was slight. The focus of Mack’s defence was on the vehicle itself, which it said was not defective in any relevant sense. Mack said:

(a) there was no inordinate number of component failures, and it took a conservative approach to complaints in the warranty period, replacing parts whether or not it was strictly necessary to do so;

(b) the FORS Report demonstrated that there was nothing wrong with the truck;

(c) the evidence of Dr Morrison, whom Mack called as an expert witness, fortified the conclusion of the FORS Report;

(d) a number of Mack employees could find nothing wrong with the truck, although they took it for test drives;

(e) after the Lowes parted with the truck, another operator used the truck successfully, without problem for another 600,000 kilometres.

Mack did not ultimately press the suggestion that Mr Lowe’s complaints were consistent with his having driven the truck at excessive speed over rough roads. Mack acknowledged that in the absence of the driver’s log books, this remained no more than speculation. See below for further discussion.

24 The FORS Report was central to Mack’s defence. It submitted that "the Court should not go past the findings of the FORS Report in determining the issue in this case" (written submissions, 1.8). Mack continued (at 1.9-1.12):

The FORS Report carried out the most comprehensive and detailed analysis of truck behaviour, not only Australia wide but also world wide. It objectively and independently tested the truck ...

Most significantly it tested the major complaints of the Applicants being:

(a) vibration;

(b) handling; and also

(c) chassis flex;

(d) air suspension.

The truck, when compared to either benchmark vehicles or other complainant vehicles was either better or comparable to them in every test measurement of the above.

The FORS Report is the only evidence of objective and independent testing done at the relevant time and not only does it conclusively find that the truck was not unfit for purpose, but it finds that it was one of the better trucks when compared against benchmark vehicles.

25 Mack submitted that the criticisms made by Mr Lambert and Dr McLean were "without foundation" ([1.14]) and that (at [1.15]) the evidence of Dr McLean should be rejected because:

(a) he has no proven expertise in the area, or if he has it should be confined to vibration;

(b) he is not independent but clearly biased.

Mack added that Mr Lambert’s evidence should also be rejected "as he is also clearly involved, emotionally and otherwise, in this proceeding and not at all independent". If the Court had any doubts about the FORS Report, then, according to Mack, "these doubts are removed by the evidence of Dr Morrison" ([1.18]).

4. RELEVANT LEGAL FRAMEWORK

(A) Conditions as to merchantability and fitness for purpose

26 Before commencing the following discussion, I would note that the applicants proffered little, if any, assistance in identifying the relevant legal framework. The respondents sought to provide a little more assistance in this respect.

27 Further, I note, lest it be thought the matter was overlooked, that the applicants proceeded as if there was a contract of sale between them and Mack in respect of the truck: see statement of claim, [3], [4], [10], [12] but see [11]. In its Defence (at [5]), Mack denied this contract of sale, but admitted that Mr Lowe entered into a contract with Mack for the acquisition of the truck, conditional on finance, and an agreement with AGC for the provision of finance. If there is any doubt about the contract between the parties, nothing apparently turns on it. The parties chose to proceed upon the assumption that s 71 of the TPA applied to "the contract for the supply of goods" between them, upon the basis that there was some such contract to which the provision might apply. The parties did not refer to s 73 of the TPA.

28 The applicants’ claim for damages rested primarily on the conditions that s 71 of the TPA implies in a contract for supply of goods to which the provision applies. Section 71 of the TPA implies into contracts for the supply of goods to a consumer by a corporation in the course of business, a condition that the goods are of merchantable quality and, where the consumer makes known to the corporation the particular purpose for which the goods are being acquired, a condition that the goods are reasonably fit for that purpose. These conditions cannot be excluded: see s 68. Mack did not contest that it was a corporation within the meaning of the TPA, and that it supplied the truck in the course of business to the Lowes as consumers: see ss 4(1) and 4B. Further, Mack did not dispute that the Lowes made known that they required the truck for interstate long-haul goods transport. Mack did not rely on the exceptions in s 71.

29 Subsections 71(1) and (2) provide:

(1) Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of business, there is an implied condition that the goods supplied under the contract for the supply of goods are of merchantable quality, except that there is no such condition by virtue only of this section:

(a) as regards defects specifically drawn to the consumer’s attention before the contract is made; or

(b) if the consumer examines the goods before the contract is made, as regards defects which the examination ought to reveal.

(2) Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business and the consumer, expressly or by implication, makes known to the corporation or to the person by whom any antecedent negotiations are conducted any particular purpose for which the goods are being acquired, there is an implied condition that the goods supplied under the contract for the supply of goods are reasonably fit for that purpose, whether or not that is a purpose for which the goods are commonly supplied, except where the circumstances show that the consumer does not rely, or that it is unreasonable for him or her to rely, on the skill or judgment of the corporation or that person.

30 Subsection 66(2) of the TPA provides that goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as is reasonable to expect having regard to: (1) any description applied to them by the corporation; (2) the price received for them; and (3) all other relevant circumstances. In a case such as this, the ‘relevant circumstances’ are likely to include the nature of the defect, its intractability, and its effect on performance: see, e.g., Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220, at 227-228 per Rougier J; Crowther v Shannon Motors Co [1975] 1 WLR 30 at 33; and Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 at 45-089 per Toohey J. Goods that are not of merchantable quality are unmerchantable: see Rogers v Parish (Scarborough) Ltd [1987] QB 933 ("Rogers v Parish") at 946 per Woolf LJ and Courtney v Medtel Pty Ltd (2003)126 FCR 219 ("Medtel") at 264 per Sackville J; appeal allowed in Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182 but not on this point. Medtel concerned s 74D of the TPA, but its discussion of ‘merchantable quality’ is relevant in the present context.

31 Thus, where s 71(1) is invoked, the Court must determine:

• the purpose or purposes for which goods of the relevant kind are commonly bought; and

• whether the goods supplied are as fit for the purpose or purposes so identified as is reasonable to expect, having regard to the factors and circumstances listed.

These issues call for an objective assessment. The focus of the first is the purpose or purposes for which the goods are "commonly bought" as opposed to the particular consumer’s subjective purpose. Further, to quote Cooper J in Cavalier Marketing (Australia) Pty Ltd v Rasell (1990) 96 ALR 375 ("Rasell") at 400, s 71(1) "requires that all normal purposes for which goods are commonly bought be brought into consideration. Fitness is to be tested against each of those purposes and none are to be excluded".

32 Rogers v Parish provides some limited guidance as to an appropriate approach in this context because it too concerned a road vehicle, although not a heavy commercial vehicle. Although roadworthy, the vehicle in question, a Range Rover, misfired at all road speeds, had excessive noise emitting from the gear box and substantial defects in the body work. The judge at first instance held that the vehicle was of merchantable quality because it was roadworthy and capable of proceeding from one place to another. This finding was set aside on appeal. Mustill LJ said at 944:

Starting with the purpose for which ‘goods of that kind’ are commonly bought, one would include in respect of any passenger vehicle not merely the buyer’s purpose of driving the car from one place to another but of doing so with the appropriate degree of comfort, ease of handling and reliability and, one might add, of pride in the vehicle’s outward and interior appearance. What is the appropriate degree and what relative weight is to be attached to one characteristic of the car rather than another will depend on the market at which the car is aimed.

33 Plainly enough, the purpose for which a commercial vehicle of this kind is commonly bought would include the purpose of being used to transport heavy loads of goods over long distances interstate safely, reliably and efficiently. The loads carried by the truck in this case were not said to be other than within the common range. Indeed, Mack conceded that the interstate long distance haulage of loads of the kind allegedly carried by the truck in the course of the Lowes’ business was a "purpose for which trucks, such as the Lowe truck in question, would commonly be utilised". Thus, the first issue to arise under s 71(1) was not in dispute.

34 The contentious issue was whether or not the truck was fit for this purpose "as is reasonable to expect". In Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099; (2000) 102 FCR 307 at 445, Lindgren J (with whom Lee J on this point agreed) held that the words "as it is reasonable to expect" in s 74D are to be considered from the perspective of a reasonable consumer placed in the position of the actual consumer. Put another way, these words require the Court to consider what is objectively reasonable to expect at the time of supply to the consumer: see Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182, at 205 per Branson J, with whom Jacobson J agreed, and 199 [43] per Moore J. This assessment is to be undertaken in light of the information concerning the goods that is available at the time of trial: see 206 per Branson J.

35 In this connection too, the observations of Mustill LJ, in Rogers v Parish at 944, though apropos a different kind of vehicle, are helpful:

To identify the relevant expectation one must look at the factors listed in the subsection. The first is the description applied to the goods. In the present case the vehicle was sold as new. Deficiencies which might be acceptable in a secondhand vehicle were not to be expected in one purchased as new. Next, the description ‘Range Rover’ would conjure up a particular set of expectations, not the same as those relating to an ordinary saloon car, as to the balance between performance, handling, comfort and resilience. The factor of price was also significant. At more than 14,000 [pounds] this vehicle was, if not at the top end of the scale, well above the level of the ordinary family saloon. The buyer was entitled to value for his money.

With these factors in mind, can it be said that the Range Rover as delivered was as fit for the purpose as the buyer could reasonably expect? The point does not admit of elaborate discussion. I can only say that to my mind the defects in engine, gearbox and bodywork, the existence of which is no longer in dispute, clearly demand a negative answer.

36 The critical question is whether the applicants’ truck suffered from some or all of the defects the applicants allege. The outcome of the case very much depends on the answer to this question. For this reason, in this case, s 71(1) and (2) give rise to substantially the same question.

37 Mack accepts that the applicants made it known to it that they were acquiring the truck for interstate long-haul goods transport. This entitles them to rely on s 71(2), as well as s 71(1). Indeed, Mack accepts that it assured them that the truck was fit for this purpose. It is common ground, therefore, there was an implied condition under the contract for supply that the truck was at the time of supply reasonably fit for this purpose. As noted, Mack did not seek to argue at trial that s 71(2) was unavailable to the applicants because they did not rely on Mack’s skill and judgment or the skill and judgment of Mr Kumnick.

38 Although the notion of reasonable fitness for purpose is not precisely the same as the concept of merchantability, in this case there is no significant difference. There is here an overlap in the operation of s 71(1) and (2) and, under both, the real question is whether or not the truck was fit for the purpose of interstate long-haul goods transport. At trial the applicants and Mack accepted that this was so, and the applicants relied on the same facts to demonstrate a failure on Mack’s part to meet both s 71(1) and (2).

39 Of course, even if the applicants establish that the truck was not fit for the purpose of interstate long-haul goods transport, there is a further question whether or not they are entitled to the relief they seek.

(B) Misleading and deceptive conduct

40 As already noted, besides their unmerchantability or unfitness for purpose claim, the applicants also retained a limited claim under s 52 of the TPA. This was to the effect that Mack’s representations (via its salesman, Mr Kumnick) that:

• the truck would provide safe, reliable and efficient service for at least 800,000 kilometres; and

• driving the truck was like driving a car

were misleading and deceptive, or likely to mislead or deceive, in contravention of s 52 of the TPA. As it happened, there was no great dispute as to whether Mr Kumnick made these statements to the applicants. Mr Kumnick admitted making the second statement and that he said something like the first. Thus, in an affidavit sworn before trial, he said that he told Mr Lowe that the truck should prove to be "safe and reliable" for about 800,000 kilometres. He also told Mr Lowe that the truck would be ideally suited for his purpose of interstate haulage. Mr Kumnick emphasized that he made this latter statement and the observation that the trucks "drive like cars" in the context of talking to an experienced heavy vehicle driver.

41 Section 52 of the TPA prohibits a corporation from engaging in conduct in trade and commerce that is misleading or deceptive, or that is likely to mislead or deceive. The words "engage in conduct" include the making of representations about a past, present or future matter. It is not in issue that, for the purposes of s 52 of the TPA, the respondent is a corporation engaged in trade and commerce.

42 The application of s 52 is not restricted to conduct that is intended to mislead or deceive: see Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 (‘Puxu’) at 197 per Gibbs CJ; and Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228 per Stephen J. The conduct complained of must be viewed as a whole: see, e.g., Puxu at 199 per Gibbs CJ.

43 In order to make out their case under s 52 of the TPA, the applicants need to establish that: (1) the conduct of which they complained occurred; (2) viewed objectively, the conduct was misleading or deceptive; and (3) they relied on Mack’s conduct in the sense that it operated as an inducement for them to enter into arrangements for the acquisition of the truck. In order to be compensated for any loss and damage under s 82(1) of the TPA, they also need to establish a causal connection between this conduct and the loss for which they seek compensation: see, e.g., Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 525-526 per Mason CJ, Dawson, Gaudron and McHugh JJ and Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 469-470 per Gleeson CJ, 480 per Gaudron J, 489 per McHugh J and 509 per Hayne J.

44 Where a corporation makes a representation with respect to a future matter, and the corporation does not have reasonable grounds for making the representation, s 51A(1) of the TPA deems the representation to be misleading for the purposes of s 52; and s 51A(2) deems a corporation not to have reasonable grounds unless it adduces evidence to the contrary. See Ting v Blanche [1993] FCA 524; (1993) 118 ALR 543 at 552 per Hill J and Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 at 54,432 per Goldberg J. Applicants who rely on s 51A do not, therefore, have to establish as part of a cause of action under s 52 of the TPA that the respondent did not have reasonable grounds for making the representation.

(C) Were there insurmountable deficiencies in the applicants’ s 52 claim as Mack alleged?

45 It is convenient to consider now Mack’s argument that the applicants’ s 52 claim was fundamentally flawed. If accepted, this would constitute the short answer to this part of the applicants’ case. Mack’s position was stated in submissions received, with leave, after closing submissions. In these submissions, Mack stated:

The Respondent’s position on this claim is as follows:

a. the relevant pleading is deficient and therefore the claim ought not be entertained;

b. the claim had not been pursued by the Applicants at trial or in final submissions;

c. the Applicants’ position is that the claim did not add anything to their Section 71 TPA claim;

d. there are only two representations alleged to be relied upon. One of them adds nothing to the claim and the other is mere puffery and was not ever relied upon;

e. the representations were not relied upon. The determining factors in the Applicants’ purchasing the truck was the $40,000 discount and that the truck was suitable for interstate long-haulage work;

f. in any event the representations were not false or misleading in that the ride quality was, objectively, found to be better than average;

g. no damage flowing from the alleged representations have been particularised and/or proved.

46 In many cases, a court would not reject a claim at this late stage on the basis of pleading deficiencies. This case is, however, different from the majority of cases in this court. The applicant’s pleading has never been very satisfactory, as earlier discussion indicates. At trial the applicants focused on what they, and therefore Mack, perceived to be the key issue: whether or not defects in the truck rendered it unfit for the purpose of interstate long-haul goods transport. This had been identified as the key issue at an earlier court-initiated meeting of experts. Immediately prior to trial, the applicants did not apparently give more than fleeting consideration to any cause of action other than that deriving from s 71 of the TPA. At no point did they make a clear case on any matter other than s 71. Save in answer to my questions, the applicants made virtually no closing written or oral submissions as to the operation and application of s 52 of the TPA having regard to the evidence at trial. In this context, Mack was granted leave to file late submissions. The applicants have not sought to answer them. In these circumstances, if, as Mack says, there is a fundamental defect in the applicants’ s 52 case, Mack is entitled to succeed in having this aspect of the applicant’s case dealt with accordingly.

47 There has been no application to amend the pleading. I accept that there are at least three significant deficiencies in the applicants’ pleading of their s 52 claim. First, the pleading does not specifically identify the basis upon which sixteen representations, pleaded at [5], including the two that continue to be relied on, were untrue. As noted, the Further Amended Statement of Claim at [20] asserts that, by reason of matters in [16]-[19], the representations were false and that Mack had no reasonable grounds for them. Paragraph [16] pleads that the truck was not fit for the purpose (i.e., of "long distance interstate haulage of semi trailers carrying loads of approximately 42.5 tonnes") in that within six months of operation it suffered from numerous (identified) defects. Paragraph [17] pleads that the applicants reported the defects to Mack. Paragraph [18] pleads that the defects worsened. As we have seen, [19] is concerned with the cause of the defects. No part of the pleading states precisely in what respect or respects either of the two representations presently relied on was false. At best, the reader is left to trawl through [16]-[19] to work out what matters might be said to support the applicants’ pleading at [20]. It is plain enough that much in these paragraphs is irrelevant to this claim. There is therefore no adequate basis for the pleading at [21] that, by virtue of matters asserted in [6]-[10], [12] and [16]-[20], Mack engaged in misleading and deceptive conduct or conduct likely to mislead or deceive contrary to s 52 of the TPA. Furthermore, this last-mentioned pleading is itself confusing since much of these cited paragraphs can have nothing to do with the matter. A fortiori, there is no adequate basis for the pleading in [35] that by reason of the TPA contraventions (which include the pleaded s 52 breach) they have suffered loss and damage.

48 Secondly, notwithstanding their apparent invocation of s 51A of the TPA, the applicants did not, at any stage, indicate which of the sixteen representations alleged in [5] of the Further Amended Statement of Claim were representations in respect of future matters. They made no submissions on the issue at trial. Again, the reader is left to guess whether or not they allege that the representations on which they presently rely (for example, the ‘safe, reliable and efficient service’ representation) is to be treated as a representation as to a future matter.

49 Thirdly, the applicants provided no particulars of the damages that they allege flowed from this supposed misleading and deceptive conduct.

50 The applicants have not pleaded the facts upon which their s 52 claim would depend with the care and clarity that is called for in such a pleading: compare Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-633 and Banque Commerciale S A v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J. What the applicants have done is pick up and rely on their pleading as regards s 71 of the TPA as part of the pleading of a claim based on s 52 of the TPA. This course has left the scope of their s 52 claim a matter for guess work. As I have said, it was a claim scarcely mentioned at trial and all but abandoned in closing submissions, when counsel for the applicants conceded that the s 52 claim added nothing in substance to the s 71 claim. In these circumstances, it is plain enough that the claim was fundamentally flawed at the outset of the trial and remained so. It would be unfair to require Mack to guess at what it meant and therefore how it might be answered. In so far as the applicants sought to retain any part of their s 52 claim, it must fail.

51 Further, although it scarcely matters, I agree with Mack’s submission that Mr Kumnick’s statement to the effect that driving the truck was like driving a car was in the nature of commendatory puffery and not a representation of an actionable kind. Whether representations made in the course of negotiations such as those for sale are actionable or merely in the nature of puffery depends on the particular facts, considered "in the light of the ordinary incidents and character of commercial behaviour": see General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473; (1993) 45 FCR 164, at 178 per Davies and Einfeld JJ; Pappas v Soulac Pty Ltd (1983) 50 ALR 231 at 234-235 per Fisher J; and Sanders v Glev Franchises Pty Ltd [2002] FCA 1332 at [270]- [274] per Kenny J.

52 In Pappas v Soulac (1983) 50 ALR 231, Fisher J held that a number of the statements made by the vendor’s agent (a Mr Spencer) to the purchasers of a shopping centre were of this kind. His Honour said, at 234-235:

It is important to appreciate that many of the statements alleged or admittedly made by Mr Spencer were wholly or in part statements of opinion, not capable of being objectively proved to be true or false. They were also essentially the type of introductory comments, in the nature of puffery, made at the start of negotiations for the purpose of attracting the interest of a possible purchaser. As such they became irrelevant or of little, if any significance when detailed information is subsequently given a fortiori, to a potential purchaser with commercial experience. To the extent that they are essentially puffery, it is proper to be reluctant to elevate them to the status of potentially misleading conduct.

His Honour held, at 238, that a statement by Mr Spencer that the shopping centre was a good investment was "the type of puffing which would normally fall from a selling agent and which was incapable of being proved to be correct or incorrect". See also Hanave Pty Ltd v LFOT Pty Ltd [1998] FCA 1051 (31 August 1998) per Moore J.

53 The fact was that Mr Lowe was a knowledgeable truck driver, having over 20 years’ truck driving experience involving some 10 trucks, three of which had been Mack trucks. He was also a qualified mechanic, who undertook some of his own servicing. Mr Lowe had also bought this kind of vehicle before and was therefore a relatively experienced purchaser of trucks. It was clear from the evidence that he aware of pricing and comparative specifications and Mr Kumnick knew this. In these circumstances I accept that, as Mack submitted, Mr Kumnick’s statement was in the nature of commendatory puffery. It was a statement of opinion that was incapable of being objectively proved to be true or false. To the extent that this representation was essentially puffery, it should not be elevated to the status of potentially misleading conduct.

54 In any event, even if Mr Kumnick’s statement that the trucks "drive like cars", was a representation of material fact, the applicants did not establish any causal connection between the representation and the Lowes’ entry into arrangements to buy the truck. That is, there was no evidence that Mr and Mrs Lowe relied on the representation.

55 I would not take the same view of the ‘safe and reliable’ representation. Although the applicants gave evidence at trial that a factor influencing their decision to purchase the truck was the matter of price, it is equally clear that they also relied on Mr Kumnick to identify a vehicle suitable for use in their business.

56 The real difficulty with this aspect of their s 52 claim flowed from the initial pleading failures mentioned above. Save to refer broadly to the unmerchantability/unfitness for purpose claim, the applicants did not state at any stage in what precise respect or respects the ‘safe and reliable’ representation was false. There was no reference at trial to s 51A in connection with this representation. Furthermore, as noted above, the applicants did not attempt to identify the particular damage that flowed from their reliance on this supposed misrepresentation.

57 Furthermore, I am unable to discern in the evidence anything that might be regarded as proof of damages for this purpose: compare Gurdag v Stillwell Ford Pty Ltd (1985) 61 ALR 689. There is no claim for repairs or loss calculated by reference to the price the applicants paid for the truck and its true worth. As discussed below, the evidence led in connection with loss of profits is fundamentally flawed. There is a claim for loss of time for 73 days, which has not been proved. These observations confirm my conclusion that, as the applicants’ counsel said, this cause of action can in fact add little to the applicants’ primary case.

5. THE HISTORY OF THE APPLICANTS’ OPERATION OF THE TRUCK

(A) Buying the truck

58 Mr Lowe’s evidence was critical to the applicants’ case. Mr Lowe was forty-nine years of age when he acquired the truck. He was a qualified mechanic and an experienced truck driver. He had more than twenty years’ experience of driving a number of different heavy prime mover vehicles in long-haul interstate transport operations. Mr Lowe and his wife had begun their long-haul goods transport business over twenty years before the purchase of the truck. He had owned and operated numerous different model trucks prior to March 1998, including three Mack trucks. In September 1997, some months before the purchase of the truck in March 1998, he and his wife purchased a new Tautliner semi-trailer. The truck was to be used to transport this semi-trailer, loaded with goods.

59 On or shortly before Friday, 20 March 1998, Mr Lowe spoke to Mr Kumnick at Mack’s Adelaide office about buying a new truck to replace the Mack CHR he was operating at that time. Mr Lowe and Mr Kumnick had regular dealings with one another at this time. In this circumstance, Mr Kumnick knew that the replacement truck was for use in interstate haulage. Mr Kumnick made an appraisal of Mr Lowe’s Mack CHR and looked into what Mack might offer by way of a replacement.

60 On the evening of 20 March 1998, Mr Kumnick telephoned the Lowes and told Mr Lowe that the truck – the Mack CH Elite – would "ideally suit his intended use" and that "it should prove to be a safe and reliable vehicle for about 800,000 kms". When asked in cross-examination about this "ideally suited" statement, Mr Kumnick affirmed that Mr Lowe "understands the spec of trucks just as well as I do". Mr Kumnick also said:

I can remember making a comment to him that the trucks drive like cars but that was in the context of talking to an experienced heavy vehicle driver ...

61 Mr Lowe gave evidence that he originally told Mr Kumnick that he was not looking to buy another Mack but Mr Kumnick had changed his mind for him. Mr Lowe said that he was looking at trading in his Mack CHR on a new truck that was not manufactured by Mack but that he was attracted to the truck because of the price Mr Kumnick quoted him. His evidence in cross-examination was that the trade-in price Mr Kumnick offered on the evening of 20 March 1998 was what made the truck "very interesting" to him.

62 Mr Lowe left for Brisbane in his Mack CHR on Saturday, 21 March 1998, having agreed with his wife that, if she thought it was suitable, she would enter into arrangements to purchase the truck. Mr Lowe did not need to see the truck, because he knew what it looked like. Test-driving it was impractical because, as Mr Lowe said, "[t]here is absolutely no point ... without a trailer on". Mr Kumnick substantially agreed that the Lowes were to a large extent reliant on Mack to identify a vehicle that was suitable for their business.

63 On Monday, 23 March 1998, Mrs Lowe looked at the truck and spoke to Mr Kumnick. She too said, and I accept, that there would have been no utility in her taking the truck for a test drive since she was not a truck driver. Mr Kumnick reiterated that the truck was suitable for what her husband needed. Besides listening to Mr Kumnick, Mrs Lowe also said that she thought the price a good one and that this was an important factor. Furthermore, she liked the look of the truck, observing it "just looked comfortable". On that day, she signed a ‘New Truck Proposal’ on the applicants’ behalf, which included a trade-in of the Mack CHR and was subject to finance. The finance company gave her verbal approval that day.

64 On her way out of Mack’s office on 23 March 1998, she picked up and took away a sales brochure, which she later read. Mr Lowe read the brochure before he signed AGC’s finance documents some time after he returned from Brisbane, by which point the Lowes were already committed to the acquisition of the truck.

65 Mr Kumnick telephoned Mrs Lowe two days later, on 25 March 1998, to clarify the truck’s specifications. On 27 March 1998, Mr and Mrs Lowe visited their finance broker and signed AGC’s ‘Standard Asset Purchase Agreement’ in respect of the truck. On 31 March 1998, they visited Mack’s office and spoke with Mr Kumnick and his superior, Mr Reno Buttignol, and, in Mr Buttignol’s presence, Mr Lowe signed a ‘Retail Sale and Warranty Registration Form’. He also received a document entitled ‘New Vehicle Warranty Information’. Later that day, he insured the truck with the truck insurer, National Transport Insurance (‘NTI’) and took delivery of it. Mr Lowe began to drive the truck on 1 April 1998, when he took it from Adelaide to Brisbane.

(B) The first trip – first problems

66 At the end of this first trip on 3 April 1998, Mr Lowe said that he complained to Mack in Brisbane about the truck’s rough ride and poor handling. Mr Lowe’s evidence was that the ride was rough and jarring and worsened during the trip. He said that the handling was bad and that the truck darted and dived off course unpredictably. Mr Lowe said that he repeated these complaints on his return to Adelaide when he took the truck in for its first service.

67 I do not wholly accept this account of Mr Lowe’s first experience with the truck. I accept that he complained to Mack about the rough quality of the ride and mentioned handling issues at this time, since this is consistent with his subsequent complaints about the vehicle. Further, some time in April 1998, Mrs Lowe also raised the ‘rough ride’ issue with Mr Kumnick. I do not accept that his complaints went much beyond this, however, because this is not borne out by the work that Mack undertook shortly thereafter. Mr Lowe conceded in cross-examination that any work done on the truck on 3 April 1998 was relatively minor and that the truck went in for a standard service on 6 April 1998. On this occasion, the Mack workshop rectified a leaking cab valve and replaced broken fuel cap washers.

68 Further, on 16 April 1998, after 13,487 kilometres, Mack did some more work on the truck. On this occasion, Mr Lowe complained about the front and rear wheels scrubbing, as well as lack of power. The truck was sent off for tests to ensure that its wheels were correctly aligned and the axle correctly cambered. In cross-examination, Mr Buttignol, who was at the time service manager for Mack Adelaide, said that these tests showed that the front axle required minor adjustment. Mr Lowe also conceded that, save for the adjustment, the repairs of 16 April 1998 were relatively minor

(C) Ongoing problems

69 Mack did further work on the truck in the next six months of 1998, including on 23 April, 14 May, 21 May, 9 June, 17 June, 13 July, 17 July, 17 August, and 2 September.

70 Johnson’s Truck and Coach Service, Buronga, New South Wales, made further repairs on 14 August 1998. At Johnson’s, Mr Lowe specifically complained about the fact that the truck "rides rough and [was] hard to handle". Mack job cards for 23 April 1998 and 14 May 1998 recorded Mr Lowe’s complaints of poor or harsh ride and lack of power. A dynamometer test at this time indicated, however, that the power train was performing within specifications and there was no power deficiency.

71 Also during this time, there were repairs or replacements of such things as shock absorbers and shock absorber rubbers, spring shackles and brushes, bonnet mounts, window seals, and steering covers. There was an issue with the gear stick. In April 1998, work was done on the air bag suspension, by adding quick acting valves, and Mr Lowe conceded that he did not experience problems with the air bag suspension system beyond this time. In July 1998, the transverse cabin rod was replaced.

72 There is thus some evidence that Mr Lowe complained about handling problems after his first trip and in the first six months of operating the truck. On 10 July 1998 and again, on 14 August 1998, conversations between Mr Lowe and Mr Kumnick touched on this issue. There is also no doubt that Mr Lowe complained about the truck’s ‘rough ride’ during this time. Mack job cards recorded the complaint.

73 In mid June 1998, Mr Lowe was admitted, mid trip, to Swan Hill hospital, with appendicitis. As a result, Mr Edward Pasfield completed the trip for him. Mr Lowe had known Mr Pasfield for numerous years and had earlier worked with him. As Mr Lowe was still recovering from surgery in late June 1998, he and Mr Pasfield drove as a two-up team on a trip from Adelaide to Cairns. Mr Lowe’s evidence was that, on this occasion, the ride was "so rough that it was almost impossible to sleep in the cab bunk" and "[e]very bump in the road jarred the whole truck and the driver". He added:

On the Leichardt Highway the ride and handling of the truck was so bad that we had to reduce the speed of the truck to no more than 80 kilometres per hour in places. This was due to the rough ride, instability of the truck and unpredictable handling ...

74 Mr Pasfield sought to corroborate Mr Lowe’s account about the ride on this trip and the truck generally. He also said that "the ride in the truck was extremely rough" on the Cairns trip and the co-driver was unable to sleep in the cabin because it was "too rough". As to steering problems, he said:

One minute you are going straight and the next thing you are darting off to the side of the road, you would have to turn the wheel three to three and a half inches to correct the truck again.

Mr Pasfield also gave evidence about the poor bonnet mounts and shock absorbers, jamming of the gearbox, a loose bumper bar, broken exhaust framework and vibration. Mr Pasfield also gave evidence that, at some stage, Mr Lowe had offered him a regular job driving the truck. Mr Pasfield said that he had declined the offer because he had never driven a vehicle as difficult to handle as the truck.

75 For the reasons stated below, I would not regard Mr Pasfield as an entirely reliable witness.

76 From at least July 1998, relations between Mack and the Lowes were difficult. On 6 July 1998, Mr Kumnick spoke to Mr Lowe, Jon McLean and Mr Buttignol about Mr Lowe’s ‘rough ride’ complaint. Mr McLean was Mack’s branch manager for Adelaide and Darwin. Four days later, Mr Kumnick spoke to Mrs Lowe and Mr Buttignol about the handling and rough ride issues that Mrs Lowe raised on Mr Lowe’s behalf. Three days later again, on 13 July 1998, Mr Kumnick again spoke to Mr Lowe about these issues. These conversations were inconclusive and, on 14 July 1998, Mack issued Magistrates Court proceedings for the non-payment for work done on the truck.

77 One problem was that Mack employees did not themselves perceive the ‘rough ride’ and handling problems that Mr Lowe complained of. In cross-examination, Mr Buttignol was asked how many times Mack had road tested the truck. His answer was that "it would have been quite a few times", although he rode in it only once, on 24 August 1998. He said that, though not always recorded, test drives would have been done following repair work. I accept his evidence in this regard. Just as Mr Buttignol said, the repair documents indicated that the truck had been tested on a number of occasions following repairs.

78 On 24 August 1998, when Mr Lowe took Mr Buttignol for a test drive, they went with a fully loaded trailer, for somewhere between 60 kilometres (according to Mr Buttignol) and 100 kilometres (according to Mr Lowe). Mr Buttignol said that he could not identify any problem with the vehicle and, in particular, he could not detect the rough ride that was the subject of Mr Lowe’s complaints. His evidence was that Mack carried out the standard checks to investigate the rough ride complaint and they did not show the truck to be operating outside specifications. Mr Lowe, on the other hand, said that the problems with the vehicle were "clearly apparent". In cross-examination about this test drive, Mr Lowe said:

When you are driving along you could pull up, select reverse gear and the whole edges locked solid, bang, the gearbox but that wasn’t a problem [to Mr Buttignol]. On the drive I went up to Kapunda, across to Tarlee; from Kapunda to Tarlee is a rough road. [The problem was] rough ride and wandering.

He did not refer to vibration, although, when asked in cross-examination about this omission, he said it was "there all the time". Mack tested the gearbox later in 1998 and found it to be fully operational.

79 For the reasons stated below, I doubt Mr Lowe’s evidence regarding the vibration issue. I accept that he genuinely believed that there were ‘rough ride’ and handling issues, the significance of which fall for determination. I also evaluate Mr Lowe’s evidence in this regard below.

(D) Settlement of the Magistrates Court proceeding in November 1998

80 In the latter months of 1998, Mack carried out yet further work on the truck, i.e., on 2 September, 9 October, 15 October, 19 October, 22 October, 2 November, 25 November, 30 November (replacement of flat batteries), 14 December and 29 December.

81 A settlement of the Magistrates Court proceeding was negotiated in October and November 1998. The proceeding was ultimately discontinued on 24 November 1998.

82 On 12 and 28 October 1998, Mr Kumnick and Mrs Lowe had conversations about the truck. In the latter conversation, Mrs Lowe asked Mr Kumnick whether Mack would buy back the truck. On 29 October 1998, Mr Kumnick spoke to Mr McLean about Mrs Lowe’s proposal and later told her that Mack would not buy the truck back from them. These conversations with Mrs Lowe must be viewed in the context of other conversations at this time and the work then being done by Mack on the truck.

83 On 19 October 1998 Mr Buttignol told the Lowes that Mack would look at some agreed issues whether covered by warranty or not. The issues were whistling on the external mirrors, replacement of the turbo for the engine brake, replacement of the front spring hangers, rubber fittings to the doors, and engine overheating. There was no specific mention of rough ride, handling or vibration. When the truck came in for service on 19 October 1998, two further items were added to this list – cabin squeak and mirror heater. As at this date, the truck had done 141,160 kilometres.

84 On 22 October 1998, Mr Buttignol and another Mack employee, Dean Hutchinson, went through the completed work with Mr Lowe. At this stage, Mr Lowe identified only two matters for further attention – an outstanding turbo unit and draft excluding material for the doors. He latter mentioned the replacement of the front bumper bar. Mr Buttignol said that he told Mr Lowe that he would be notified when the turbo unit became available. Mr Buttignol also said (and Mr Lowe did not recall) that, when he telephoned Mr Lowe on 28 October 1998 to confirm his satisfaction, Mr Lowe complained that the engine was still over-heating and the wind was whistling on the side skirts. Mr Buttignol agreed that Mr Lowe should bring the truck in the following week, which Mr Lowe did. The service records show that the truck was inspected on 2 November 1998 and found to be mostly without fault. Notwithstanding this record, Mr Lowe brought the truck in again on 25 November 1998, with a further list of work to be done. According to Mr Buttignol, Mack did the work as requested.

85 In November 1998, the truck’s steer axle tyres were replaced, having done 105,000 to 110,000 kilometres. This was, so Mr Lowe conceded, "above average".

86 Apart from this, there were no major repairs in November 1998 and, as Mr Lowe conceded, nothing that would have indicated handling or other major issues with the truck.

87 In December 1998, Mack replaced front spring shackle brackets and a cab shock absorber. Mr Lowe described the former as relating to handling issues, and the latter as relating to rough ride. Also in December 1998, the applicants faxed a report form to the FORS, which described "the problem or defect" in the truck as follows:

Rough ride & handling. (Front springs sagged) (3 sets front shockers) (1 set

front spring hangers) These are now shot & to be replaced again. (6 weeks old)

2 sets cab mounts

Radiator mounts

Bonnet mounts

2 Stabiliser bars

88 On December 1998, Mack closed the Lowes’ credit account.

(E) Unresolved issues

89 Mack did further work on the truck in January 1999 and on 12, 23 and 27 February 1999. In January 1999, for example, Mack replaced the steering wheel. In mid February 1999, when the truck had travelled about 220,000 kilometres, two steer tyres and eight drive tyres were replaced due to wear. Mr Lowe acknowledged that he had fitted retreads as drive tyres. He also conceded that the original set of tyres had provided adequate service life. Flat batteries were replaced in late February 1999.

90 In late 1998 or early 1999, the applicants met with Mack’s National Service Manager, Wayne Wallace, to discuss their complaints about the truck. Amongst other things, Mr Wallace was ultimately responsible for all warranty issues throughout Australia. Mr Wallace’s evidence was that he first became aware of issues with the truck around September/October 1998 when Mr Heironymus, at that time Mack’s Zone Service Manager in Brisbane for South Australia, Tasmania and Papua New Guinea, told him about Mr Lowe’s concerns. Mr Wallace said in cross-examination that, whilst rough ride was mentioned by Mr Lowe in this interview, most of the problems were "more technical issues like cab mounts, shackles and those type of things".

91 The meeting with Mr Wallace was unsatisfactory from the Lowes’ point of view. Mr Lowe said that they discussed rough ride, cab mounts, tyre wear, the chassis, and the problems of getting warranty work done. Mr Lowe said, and Mr Wallace denied, that Mr Wallace told him that he was not stopping enough to let the cab mounts cool down. Mrs Lowe corroborated Mr Lowe’s account. Mr Wallace said that Mr Lowe "was quite emotional and it was difficult to obtain a coherent list of complaints". Mr Wallace also said that Mr Lowe provided him with a list of issues and demanded that they be completed within two days. Mr Wallace told him that this was not possible but that Mack would attend to the two or three most important matters and that Mr Heironymus would attend to the rest in Adelaide.

92 Mr Wallace gave evidence about the repairs that Mack carried out following this meeting. These repairs included the replacement of the front spring shackle, modification of front spring rubbers, rectification of the pyrometer, replacement of rear shock absorbers and rear shock absorber rubbers, refixing of a Mack badge, fixing of a broken brake hose clamp, sealant applied to fix an oil leak at the steering pump, a radio bracket fixed, refitting of air conditioning hose, fixing door to prevent wind penetration, replacement of air compressor, replacement of door trim, modification of mirrors, replacement of insulation rubbers around bunk skirt, and removal and reglueing of fuel tank rubbers.

93 I accept Mr Wallace’s evidence about Mr Lowe’s demeanour at his first meeting with him. I have little doubt that Mr Lowe was "quite emotional". I also accept Mr Wallace’s account of the discussion, which is borne out by Mack’s subsequent work on the truck. Notwithstanding the Lowes’ evidence, I do not accept that Mr Wallace said that Mr Lowe was not stopping enough to allow the cab mounts to cool down. I accept that one or other or both of the Lowes may have understood him to say this and that they persuaded themselves in later discussions with one another that he did make these comments. By this time, Mr Lowe’s judgment about the truck was clouded by emotion and Mrs Lowe was embroiled in his concerns.

94 Mr Wallace subsequently asked Jon Heironymus to obtain a list of complaints from the Lowes. On 11 January 1999, Mr Heironymus telephoned Mr Lowe for a list of items that Mr Lowe considered were defective or deficient. Mr Heironymus repeated this request, this time in writing, on 27 January 1999, stating:

As mentioned during our phone conversation, in order for me to ensure that the issues you raised during our conversation are addressed with the minimum of downtime to your operation, I need your assistance.

I understand that your main issue is the ride of the vehicle, and as I indicated, in order to assess this issue a Mack representative will test drive the vehicle over a suitable section of road.

However, I would also want to ensure that the other issues that you have are also assessed during this test drive.

Could you please provide a list as agreed to during our conversation so I can formulate a plan of action and we can address your issues with a minimum of delay

95 The applicants responded, through solicitors, by a letter dated 3 February 1999, attaching a list of some 23 items. On 8 February 1999, Mr Wallace responded by fax, commenting that the list "has far from enough detail to complete an accurate investigation" and that some items were no more than "routine maintenance". In cross-examination, Mr Lowe agreed that there was nothing about handling in this list, apart from the reference to "steering universal joints loose"; and nor was there any specific mention of vibration. Mr Lowe sought, however, to rely on "tyre wear" as further evidence of a handling issue and "rough ride". The evidence did not, however, establish that the tyre wear was below the expected level.

96 Also on 8 February 1999, Mr Lowe made an inspection of the truck, as he said, "to try and discover why it was giving so many problems". He believed he observed bent chassis rails. He telephoned Mr Heironymus the next day and told him that the chassis was bent laterally and sagged. Mr Heironymus, who was a heavy commercial vehicle mechanic by training, looked at the truck in Brisbane on 12 February 1999. The only defect he found was a minor leak in the right shock absorber, although he also saw that "to the unaided eye the rails were not perfectly straight". He went over the truck with a copy of the solicitors’ list and annotated the list as he went. The list, as annotated, was the basis of a further list that accompanied Mr Wallace’s letter to the Lowes’ solicitors dated 2 March 1999: see below. Also on 12 February 1999, Mr Lowe took Mr Heironymus for a test drive for about 50 kilometres along the Cunningham highway to around Willowbank. Mr Heironymus did not detect anything wrong with the truck and, in particular, did not observe any vibration, shocks, wandering or darting. He did not perceive the rough ride of which Mr Lowe complained.

97 From March 1999, Mack Adelaide assumed responsibility for Mr Lowe’s vehicle because Mr Lowe notified Mack that he was not intending to take it to Brisbane any longer. On 2 March 1999, Mr Wallace wrote to the applicants’ solicitors stating that Mack wanted to inspect the truck chassis, since Mr Lowe said it was bent. He also attached a list of the work Mack was to do on the vehicle. I set out the list, since it records Mack’s understanding of the vehicle issues as at that date. The attached list read as follows:

1. Rough ride from front	This will be assessed during a test drive, this would be best done by a neutral party.
2. Front springs out of shape	The springs in this vehicle are normal, however, the bump stops will be changed to items that provide more clearance to the chassis to minimise bump stop to chassis contact.
3. Turbo	This turbo has been put aside in Brisbane for Graham and will be fitted when suitable for Graham.
4. Front bumper	This issue will be taken up with Adelaide Branch as it is a sales issue and not a service issue.
5. Tyre wear	Graham could not provide figures on tyre life as he did not have them at hand. However, the original set of tyres provided adequate service life. We suggest Graham goes back to the tyre manufacturer for assistance in diagnosing his current complaint.
6. Steering universal joint worn	This is a warrantable repair and will be corrected as such.
7. Right seat no valve action	As agreed to by Graham, a manual style adjusting valve will be fitted to the seat.
8. Right front wheel bearing caps leaks	As agreed to by Graham, alternative breathers will be fitted to these hub caps.
9. Front left hand guard warped	As agreed to by Graham, there will be nothing done with this item as this is the normal shape of this item.
10. Tank strap rubber	All tanks will have rubber fitted to the fuel tank mounting brackets and under the straps.
11. Bunk light U.S.	This will be replaced as required.
12. Wind through door lock	The correction for this complaint has apparently not worked on Graham’s vehicle and this will have to be looked into further to determine action.
13. Front hub cap missing	Although Mack cannot be held responsible for this aftermarket item, a new one will be supplied to Graham.
14. Heat in cab	As agreed to by Graham, we will fit thermal blankets to the exhaust under the cab.
15. Radio falls out	The mounting bracket requires adjustment to enable the clips to latch into the mounting frame.
16. Power steering hose rubs on pulley	The hoses will be adequately restrained to prevent this.
17. Batteries wrong	Correct batteries will have to be fitted.
18. Air cleaner pipe to motor found	The oil sample results will be monitored to determine the effect of this pipe being loose.
19. Rubber on skirts out again	This foam rubber will be adequately secured to the transition panels.
20. Hole rubbed in breather	As inspected there was not actually a hole rubbed in the breather. The mark in the breather was caused by the stud for the lower mounting bracket being loose, Graham offered to correct this himself.
21. Air conditioner hose worn	The shroud will be fitted with a piece of protective moulding to prevent further wear occurring.
22. Air cleaner tube worn on bonnet	Graham accepted that this would be corrected with a simple adjustment and committed to do this himself.
23. Cab leaking water during heaving rain	The evacuator valves in the air intake duct were removed to prevent this condition. This was done by Graham during this meeting.
*24. Hose coming loose @ rear of transmission	This will be assessed when the vehicle is in the workshop.
*25. Pyrometer not operating	This will be repaired as normal warranty.
* Indicates issues that were not on the original list that was supplied and have been added to the list after they were raised by Graham.

98 Mr Lowe’s evidence was that, by 2 March 1999, when Mr Wallace wrote this letter, he believed the truck to be unsafe. He conceded, however, that Mack substantially addressed the issues that he raised.

99 Mr Wallace subsequently arranged for Carmello Gentilcore, of All Transport Industries, to do a laser alignment test of the truck chassis. The test, which was completed on 15 April 1999, showed that the chassis was straight. Mr Lowe did not contest the result of this test.

100 The applicants and two other husband and wife truck owner-operators met Mr Lambert on 24 March 1999, to discuss what was planned for the next day. On 25 March 1999, the applicants met Mr Lambert and Lindsay Pollock (a DECA senior driver) at Rick Cobby’s depot. Later that day, Lambert and Pollock completed an inspect and drive test of the truck for the purpose of selecting vehicles to be examined in the FORS Inquiry.

101 On 29 March 1999, the applicants received the report and, after reading it, Mr Lowe contacted NTI. This report was compiled after Mr Pollock had driven Mr Lambert on a 183 kilometre round trip through Kapunda (in South Australia). By this time the truck had done about 246,800 kilometres. Some 26 vehicles were taken through the ‘inspect and drive’ stage, but only five vehicles, including the applicants’ vehicle, were ultimately given full instrumental testing. After the ‘inspect and drive’, Mr Lambert Reported that:

This vehicle seemed extremely sensitive to road roughness and undulations. When the road is rough, the ride, wander, and directional stability problems are probably the second worst experienced during the test drive program.

102 Mr Lowe’s evidence was that following his conversation with NTI, he and Mrs Lowe "agreed that we could not afford to take a risk of driving the CH Elite without insurance cover". His evidence was in substance that he did not drive the truck at this time because he believed there was a risk that he was uninsured. Mrs Lowe corroborated her husband’s evidence on this issue.

103 Mr Lowe claimed to telephone Mr Wallace on 30 March 1999, to inform him of this, although Mr Wallace said that he spoke only with Mrs Lowe (and Mr Lambert) this day. According to Mr Wallace (whose evidence I prefer since he kept a contemporaneous record of such conversations) he telephoned Mrs Lowe on 30 March 1999, in order to contact Mr Lowe. In this conversation, Mrs Lowe told Mr Wallace that NTI would no longer insure them and that there were more problems with the truck. Also on 30 March 1999, Mr Wallace and Mr Lambert had a conversation about the truck. A note in Mr Wallace’s handwriting read:

... said on std roads in centre -- drives very good on high cambered roads, with dips in roads truck very unstable

Around this time, Mr Lambert wrote Mr Wallace a letter that tended to confirm his adverse assessment of the truck.

104 On 31 March 1999, the Lowes’ insurers, NTI, wrote to Mrs Lowe about the terms of the contract of insurance for the truck. Since the applicants made much of the terms of this letter, I set it out:

Dear Erica

Further to our conversation regarding your Mack prime mover.

Under the terms of policy exclusions, Section (4) paragraph (d) is as follows,

We will not pay for:

(4) Loss, damage liability and or compensation for damage caused whilst your motor vehicle is, or by your motor vehicle:

(d) being used in an unsafe or unroadworthy condition, unless such condition could not be readily detected by you.

If an accident was to occur and it could be proven that the cause of the loss was attributable to the said unroadworthy condition then any claim could be rejected.

Please contact me if you have any further questions

Rex Kennedy

NTI Agent, Customer Service Division

105 Also on 31 March 1999, the Lowes faxed Mack a further list of defects, which they claimed needed attention. By this time, the list of defects had increased to 49 and contained the first mention of "severe vibration (downhill 1 2 3 gears)". When Mr McLean received the fresh list of complaints on 31 March 1999, he asked Mr Lowe what list Mack was to work from. Mr McLean said (and Mr Lowe did not deny) that Mr Lowe wanted all the 49 items dealt with, on the basis that they were covered by warranty – a claim that Mack did not accept.

106 When Mr Lowe was asked about the addition of items that had not figured in previous discussions he said, "Well, the truck is another six weeks older, it has had more problems". I reject Mr Lowe’s explanation. It should be borne in mind that this list coincided with the end of the truck’s warranty period. Apart from the fact that the warranty period was ending, there would appear to be no good reason for the large increase in further defects. I also note that, even though enlarged, this list mentioned nothing expressly about wandering or darting, or computer faults of the kind Mr Lowe alleged.

107 When Mr Wallace telephoned Mr Lowe on 1 April 1999, Mr Lowe reiterated that he could not get insurance. Mr Wallace sought to clarify NTI’s position. He spoke to Mr Lowe again on 6 April 1999 and, on 7 April 1999 at Mack Adelaide, when he went through Mr Lowe’s list of complaints with him.

108 Mr Buttignol was kept informed of the communications between Mr Wallace, Mr Heironymus, Mr Lowe and his solicitors. On 7 April 1999, Mr Lowe brought the truck into Mack Adelaide, where Mr Wallace and Mark Albertson, another Mack employee, spent about 90 minutes going over the truck. Mr Wallace and Mr Albertson were to give Mack Adelaide an action plan for the truck’s repair or rectification. On 7 April 1999, when the Lowes left, the truck was moved over to the pit area, and Mr Wallace and Mr Albertson "went through the truck taking measurements". On 8 April 1999, by which time the truck had done 251,321 kilometres, a jobs list was written up from the issues agreed with Mr Lowe the previous day. There were about 27 items, some of which were of a relatively minor nature.

109 Mack had the truck for about three and a half days before returning it to Mr Lowe as requested. Mack maintained (and Mr Lowe disputed) that Mack performed all the work as agreed, although not all at the same time. For reasons that appear below, I prefer the evidence of Mr McLean and Mr Buttignol on this matter to the evidence of Mr Lowe.

110 On 9 April 1999, Mr Lowe asked Mr Wallace for a letter, for insurance purposes, stating that the truck was safe. He also informed him that he was joining a class action against Mack. Mr Wallace told him that any such letter would need to come from Mack’s solicitors. A week later, on 14 April 1999, Mr Wallace told the Lowes that they would need to make a written request for such a letter. The applicants never made this written request.

(F) Notice of Rescission

111 On 15 April 1999, the Lowes' solicitors sent Mack a notice under s 75A of the TPA, as well as the ABC's "7:30 Report", which had televised a segment on a number of trucks, including the Lowes’ vehicle. Under the s 75A notice, the Lowes purported to rescind the contract for the sale of the truck on the basis that it was not of merchantable quality and was not fit for the purpose for which it was supplied. Mack, through its solicitors, denied the validity of the purported rescission.

(G) The truck goes back to work and proceedings are instituted against Mack

112 On 16 April 1999, Mr Lowe collected his truck from Mack Adelaide and put it back to work. Mr Lowe explained this decision on the basis they could not operate their business without using it. I accept that this was so. Work was done on the truck on various dates thereafter, including on 3 May 1999 (when Hancock and Just worked on the steer axle allegedly to rectify a camber fault) and 4 May 1999 (when batteries were refitted). On 30 June 1999, Mr Lowe had gas shock absorbers fitted at a cost of $1,120.

113 On 5 May 1999, Mr Buttignol faxed Mr Wallace a list of outstanding jobs from the Lowes’ list. Mr Lowe spoke to Mr Heironymous about cab mounts around 14 May 1999.

114 On 17 May 1999, the representative proceeding began against Mack in this Court. In late May 1999, Mr Lowe delivered the truck to Roaduser in Melbourne for testing by it for the FORS Inquiry. The truck remained with Roaduser between 21 and 27 May 1999. On 30 June 1999, the FORS released its interim report. It released its draft final report in October 1999 and invited written responses by 30 November 1999.

115 Between May and July 1999, Mr Wallace had various conversations with the Lowes. When Mrs Lowe telephoned him on 8 June 1999, asking when Mack was going to fix the rest of the truck, Mr Wallace told her what had been done and that the only outstanding matters were spring brackets and cab mounts, which had been available for some weeks. Mr Wallace asked Mrs Lowe whether Mr Lowe would show him the alleged faults. Mr Lowe said that around this date Mr Wallace told him over the telephone that from this point Mack would only do warranty work on cab mounts and shackle chassis brackets. He alleged that, from that point onwards, Mack did not do all that he asked and was slow in what it did. Whether true or not, from 30 June 1999, the truck was no longer repaired and serviced at Mack’s workshop and Mr Lowe did not obtain spare parts from Mack. Mr Lowe conceded that, from the end of June, there was much less work done on the truck than earlier in his operation of it.

116 As noted above, the FORS released the interim report on 30 June 1999, describing the steps being undertaken in the project and the project methodology. When Mr Wallace spoke to Mr Lowe on 12 July 1999, he offered to look at the truck to see whether Mack could solve any of the problems he said it still had. Mr Lowe rejected the offer and Mr Wallace did not speak with him again. In cross-examination, Mr Lowe denied that Mr Wallace made any such offer to re-examine the truck. However, I prefer the evidence of Mr Wallace to that of Mr Lowe on this issue. Subject to my comments below, Mr Wallace was basically an honest witness, whose evidence was generally supported by his contemporaneous notes. For the reasons set out below, I conclude that Mr Lowe’s evidence was flawed by a lack of objectivity.

117 The FORS released its draft final report in October 1999 and invited written responses by 30 November 1999.

118 At Mr Lowe’s request, the Lowes met Gordon Hellowell, Mack’s new CEO, on 15 October 1999 to discuss the truck. Mr Hellowell declined to look at the truck, however, saying he was an accountant and, in any event, he could not talk about it much because of the Lowes' legal proceedings.

119 On 28 and 29 December 1999, Mr Lambert tested the truck in Adelaide.

120 On 21 January 2000, the applicants parked up the truck at Rick Cobby’s depot. They sold their 1997 Tautliner trailer several days later. When Mr Lowe parked up the truck, he had, so he said, just completed a particularly difficult trip, dogged by computers problems that made the truck unsafe to drive. In cross-examination, Mr Lowe said that the truck was "just too bad to operate any more". He (and Mrs Lowe) denied that the truck was parked up because of the proceeding in this Court, in which the applicants’ claim was that the truck was unfit for the purpose of interstate long distance haulage. For the reasons stated below, I do not accept this explanation.

121 On 28 February 2000 and 26 June 2000, the applicants met Dr McLean, who took some measurements on the latter date. The FORS Report was published on 18 April 2000.

122 On 10 May 2000, AGC terminated the Lowes’ account and, on 26 May 2000, it took possession of the truck. On 5 June 2000, AGC served a termination notice on the Lowes. Mr Robert Jenkins purchased the truck in October 2000. The mileage was then recorded at 405,000 km. Mr Jenkins was still using the truck when he attended court to give evidence. By this time, the truck had done well over 500,000 kilometres more. Mr Jenkins stated that he did not detect the problems in the truck that Mr Lowe alleged.

123 A further report, "ATSB-ARRB Transport Research Report: Heavy Vehicle Seat Vibration and Driver Fatigue", was published on 10 August 2001. I refer to this hereafter as the ‘ATSB-ARRB report’.

6. ASSESSMENT OF WITNESSES

124 What follows is a relatively brief statement of my assessment of the principal witnesses, other than expert witnesses. It does not, plainly enough, cover everyone who gave evidence at trial.

(A) Mr Lowe

125 There is little doubt that Mr Lowe honestly believed that the truck had a rough ride and some handling problems. It was readily apparent from the manner he gave his evidence that he was convinced that Mack had treated him shabbily. The evidence showed, however, that Mr Lowe was a very particular person. The repair history indicated that Mr Lowe frequently required Mack to undertake the repair and replacement of comparatively minor items. Mr Kumnick and Mr Buttignol both agreed that Mr Lowe was very particular about the truck he drove, and Mr Buttignol perceived him to be overly particular. Furthermore, at the time he acquired the truck, Mr Lowe was approaching fifty years of age and had been driving for over twenty years. His evidence that his health problems first arose in 1998 was shown in cross-examination to be incorrect. On the evidence, I conclude that Mr Lowe was an especially demanding customer, whom Mack could not satisfy notwithstanding that it tried assiduously to do so. The history of Mr Lowe’s dealing with Mack personnel showed that he repeatedly found fault with the truck where none existed (e.g., the loss of power and bent chassis claims). It also showed that once Mack had done the work on one list of alleged defects, Mr Lowe would find further defects requiring Mack’s attention. Mr Lowe was a person inclined to make mountains out of mole hills (e.g., the wheel alignment issue).

126 His personality was such, moreover, that he acted on occasion contrary to his interest. For example, Mr Lowe never made the written request in respect of insurance cover that Mr Wallace said Mack needed before it could write the letter that the Lowes sought. Likewise, if, as Mr Lowe said, he did not park up the truck on account of the litigation, his conduct in so doing is virtually inexplicable. Mr Lowe had been driving the truck for almost two years by this time, during which the vehicle had been subject to a variety of tests and Mack had carried out a very large amount of work. There was no objective evidence that the truck was operating any worse than before. In parking up the truck, the Lowes chose the least financially prudent way to end their business.

127 At the least, it was clear that Mr Lowe’s recollection of events had dimmed with the passage of time, although his belief that the truck was ‘unsafe’ had not.

128 Furthermore, in some instances, Mr Lowe was not a consistently credible witness. For example, Mr Lowe stated that, at the time of the sale of their home in May 1999, he was not aware that the applicants were involved in a class action. This is directly contradicted by a solicitors’ letter dated 18 May 1999, which refers to an approach from the Lowes about participating in the class action. Furthermore, Mr Wallace recorded a conversation with Mr Lowe on 9 April 1999 in which he told Mr Wallace that he "was changing solicitors and going to the firm with class action against KW. Said he was starting action against MTA".

129 I note too that Mr Lowe was unable to produce his driver log books for critical periods. His explanation that he had lost them was unsatisfactory. Further, although he produced his personal diaries for some of the relevant period, he produced no such diaries for the critical period between July 1998 and September 1999. He also conceded the diaries contained many gaps, which he could not explain. One of the diaries tendered was filled out in the same ink, a curiosity that was never explained, and, ultimately, I do not think much turns on this.

(B) Mrs Lowe

130 A substantial part of Mrs Lowe’s affidavit was a ‘cut and paste’ of her husband’s affidavit. The ‘cut and paste’ was mostly inadmissible hearsay. In so far as it was admissible, I have given little weight to this affidavit.

131 It was evident from Mrs Lowe’s evidence at trial that she was determined to support her husband. By her evidence, she demonstrated an unwavering loyalty to him as well as an unassailable conviction that the truck was ‘unsafe’ and that Mack had wrongly sought to deny its responsibility.

132 At trial Mrs Lowe was shown to have very little, if any, personal knowledge of the defects that she referred to in her affidavit. She relied on what her husband had told her and her evidence in this regard was inadmissible. Further, Mrs Lowe had little experience of riding in the truck, having done so only about three times. Her evidence that she found the ride rough "all the way" and that Mr Lowe had "constantly" to correct the steering is contradicted by Mr Lowe’s evidence that ride and handling were of concern principally on rough roads. It was also inconsistent with Mr Lambert’s observation of the vehicle in his submission of 30 November 1999 (that it "drove beautifully on good surfaces but was very difficult on poor surfaces") as well as with the FORS report, as to which see below. Her statement at trial that she gave instructions to her solicitor in respect of every matter referred to in her affidavit was not credible.

133 Mrs Lowe was thus shown not to be an entirely reliable witness. In cross-examination, she denied that the truck was parked up in January 2000 because of the applicants’ participation in the class action against Mack. She denied that she had informed NTI that this was the reason that the truck was being parked up. Her evidence was, however, directly contradicted by a contemporaneous email sent by Nick Egan to Owen Driscoll within NTI. At trial Mrs Lowe denied speaking with Mr Egan, but Mr Egan, who had responsibility for the Lowes’ account at the relevant time, gave evidence that he independently recollected the conversation with her due to the fact that "it was an unusual situation, in that it was the first time I have ever heard of a vehicle being stored etcetera, due to a class action". He recalled her telling him that they "were storing their vehicle, due to a class action they were heading against Mack". Mr Egan impressed me as an entirely reliable witness.

134 In all the circumstances, I would not accord Mrs Lowe’s testimony a great deal of weight.

(C) Wayne Pasfield

135 Mr Pasfield’s evidence was also not entirely reliable. His evidence was that he commenced driving for Mr Lowe when Mr Lowe had his appendix removed in June 1998 and stopped driving for him later that month, after a trip to Cairns. Comparison with his affidavit and the evidence of Mr Lowe revealed some uncertainty in Mr Pasfield’s mind about the correct dates. Probably nothing turns on this, and can be put down to a memory growing confused with the passage of time. Mr Pasfield denied, however, that he drove in the truck in September 1998, although the Lowes and their business records clearly established that he did. Further, it was plain enough at trial that Mr Pasfield was given to exaggeration and that he was anxious to give evidence in such a way as would best support Mr Lowe’s case. His evidence is to be assessed in light of these observations.

(D) Wayne Wallace

136 Mr Wallace was assisted in giving his evidence by the fact that he had kept a detailed contemporaneous record. He was prepared to argue the toss with counsel and, in some instances, was evasive in cross-examination. Unsurprisingly, his recollection of some events was poor. Subject to these comments, he was a generally honest witness.

(E) Jon Heironymous

137 At the time of trial, Mack did not employ Mr Heironymous. Whilst his evidence has a hint of a desire to protect Mack’s position as best he could, overall Mr Heironymous impressed me as an honest and reliable witness.

(F) Mr Buttignol

138 Unsurprisingly, Mr Buttignol found Mr Lowe to be a difficult and troublesome customer. He made this very clear in cross-examination when he said that, when Mr Lowe acquired the truck, he was worried "we would start all the problems again" and "every time we tried to repair or fix things on Mr Lowe’s truck we could never please him or make him happy".

139 Counsel for the applicants challenged Mr Buttignol’s affidavit evidence on the basis that he had taken insufficient care in its preparation. I accept that there were some inaccuracies that may have reflected a lack of care, although, generally, the most that can be said is that these inaccuracies were inadvertent. I also accept that his affidavit did not contain a complete service history of the truck and omitted some work that had been done in Brisbane and some relevant repairs.

140 On account of Mr Buttignol’s attitude towards Mr Lowe, there were some occasions when Mr Buttignol had difficulty in giving his evidence objectively and fairly. In the main, however, he did the best he could to give truthful evidence about the truck.

(G) Mr Kumnick

141 Mr Kumnick impressed me as an entirely honest and reliable witness in virtually every respect. He stated that he relied heavily on his diary notes in giving evidence. This was self-evidently a proper concession. I accept, however, that, as the applicants’ counsel submitted, there were numerous indications in his affidavit that its drafting left something to be desired.

7. THE FORS REPORT

142 The FORS Report was central to the parties’ respective positions. It was relied on by both and neither proposed any constraints on its admissibility. As best I can, I confine my discussion of it to the points that are pertinent to the issues in dispute.

143 The Report itself was exhibited to an affidavit sworn by Scott McFarlane, who was employed by Roaduser as chief engineer. Mr McFarlane was the co-author of the FORS Report, with Dr Peter Sweatman. The parties did not challenge Mr McFarlane’s affirmation that the Report accurately recorded the findings of the Inquiry. The Report was the subject of detailed evidence given by Mr Lambert, Dr McLean and Russell Morrison. None of the following discussion is contentious in so far as it sets out the contents of the Report.

(A) Process

144 As indicated above, in 1998, the FORS undertook an investigation into alleged problems with the dynamic behaviour of heavy trucks resulting in wandering, poor handling, instability, or vibration transmitted to the driver. The FORS commissioned Roaduser to test and report on the alleged problems with regard to the effect on vehicle dynamics and drivers. See FORS Report, Executive Summary, p i. A project steering committee supervised the preparation of the Report. The committee consisted of an industry representative nominated by the Australian Trucking Association, a Professor of Engineering from the University of Queensland, representatives from the FORS, and representatives from Roaduser. See FORS Report, p 8.

145 On 30 November 1998, Roaduser advertised for truck owners with wandering, poor handling, instability, or abnormal vibration problems to provide it with details of their problems. Roaduser received 27 complaints, involving 31 vehicles. See Executive Summary, pp i-ii. The complainants’ vehicles generally had the following characteristics: (a) longer wheelbase highway prime movers; (b) air suspension on the drive axle group; (c) higher powered engines; and (d) hauling semi-trailers over long distances at highway speeds. See FORS Report, p 1. (I have previously referred to the Lowes’ complaint to Roaduser: see also FORS Report, p 11. At this time, it did not include ‘darting’.)

146 The Inquiry was principally concerned with the following vehicle behaviours (FORS Report, p 13).

(a) "Darting" – described as behaviour allegedly requiring a large steering correction in situations where it would not normally be expected, or where there was no apparent initiating factor or cause.

(b) "Wandering" – described as behaviour allegedly resulting in the requirement for continuous steering corrections. In the worst cases, it might be evident on apparently flat roads.

(c) "Vibration" – described as behaviour allegedly resulting in significant vibration being detectable by the driver or the passenger.

147 As already noted, 13 vehicles were selected for the ‘inspect and drive’. All 13 were driven by DECA driver, Lindsay Pollock, in early 1999. A Roaduser observer accompanied Mr Pollock on each occasion. Mr Lambert was the Roaduser observer on a number of occasions, including with regard to the Lowes’ vehicle. See FORS Report, p 4. The 13 vehicles were test-driven from the locations at which they were based. Mr Lowe gave Mr Lambert a list of alleged problems when Mr Lambert came to inspect his truck at Rick Cobby’s depot. Mr Lowe proposed the route – a round trip through Kapunda – over which the truck was driven.

148 As far as possible, the trailer of each truck that took the ‘inspect and drive’ was loaded in the manner that the complainant stated was most likely to be associated with the claimed behaviours and with similar fuel tank loads. See FORS Report, p 4. In the Lowes’ case, the truck was test-driven using Mr Lowe’s curtain-sided semi-trailer, with a load consisting of ferro-chrome, a very dense product in bulk bags on wooden pallets. The height of the load on the pallet was about 350 mm, with the result that the load centre of gravity (‘COG’) was about 310 mm above the trailer surface. The gross combination mass (‘GCM’) was approximately 42.5 tonnes.

149 After the ‘inspect and drive’, Roaduser chose five vehicles for instrumented testing. The Lowes’ vehicle was one of these. Roaduser also tested three additional vehicles, in respect of which no complaint had been received. These three vehicles were tested to provide ‘benchmarks’ against which the performance of the complainants’ vehicles could be compared. The eight vehicles, including three ‘benchmarks’, were as follows:

Truck	Identified in FORS Report as:
Complainant vehicles
Kenworth T900	F1
Kenworth C501	F3
Mack CH Fleetliner	F4
Ford LT 9513	F6
Mack CH Elite	F26 (the Lowes’ truck)
Benchmark vehicles
Mack CH Fleetliner	BM1
Kenworth T900	BM2
Volvo NH12-565	BM3*

*Additional benchmark vehicle added in response to submissions on Draft Final Report. See discussion below.

150 Roaduser gave all vehicles the same instrumentation package using a 32-channel data acquisition system. See FORS Report, p 30, Table 7. By this means, Roaduser intended to assess:

• The outcome of the ride vibration behaviour of the vehicle as it interacts with the road surface

• Certain vehicle characteristics which influence and contribute to ride vibration behaviour

• The outcome of the handling behaviour of the vehicle as it interacts with the driver

• Certain driver inputs which influence handling behaviour

• Certain vehicle characteristics which influence and contribute to handling behaviour.

See FORS Report, Executive Summary, p iii.

151 As far as possible, Roaduser undertook the instrumented testing in uniform conditions. With the exception of BM3, all vehicles were tested fully laden, using the same freighter triaxle flat-top semi trailer with gates and a tarpaulin covering the load of 44-gallon drums filled with dry sand. The GCM of the truck and trailer was approximately 40 tonnes, and the COG height of the trailer was moderate at 2.00 metres. All vehicles were tested over the same test route, which covered some 330 kilometres. Roaduser considered that the route represented the majority of high-speed sealed-road conditions that heavy vehicles experienced in Australia. The same DECA driver drove all vehicles except vehicle F26 (the Lowes’ truck) and BM1. F26 and BM1 were driven by two different alternate DECA drivers. See FORS Report, pp 33-35.

152 For the purposes of the Inquiry, Roaduser determined the measures of vehicle response and driver input for three different sections of road. These sections were:

(a) Hume Highway section – high quality divided highway with average roughness value 42 NRM;

(b) Euroa section – predominantly straight section of 2-way undivided road of average roughness 117 NRM; and

(c) Nagambie section – predominantly winding section of 2 way undivided road of average roughness 71NRM.

See FORS Report, p 67.

153 Following Roaduser’s release of a Draft Final Report for comment in early November 1999, Roaduser received submissions from: (a) complainants and other interested owner-operators and small fleets; (b) experts and consultants, including Mr Lambert and Dr McLean; and (c) manufacturers, including truck manufacturers and a suspension manufacturer. See FORS Report, p 117. Experts and consultants in particular (including Dr McLean) raised a number of issues. Roaduser summarised what it saw as the most significant issues and the analytical work it carried out in response in Table 45 of the FORS Report (at p 120). The Table reads as follows:

	Issue	Response Activity
1	The status of evidence relating whole-body vibration to health effects	Review of additional literature identified
2	The appropriateness of the benchmark vehicles	Testing of an additional benchmark vehicle with more ‘European’ design features [the Volvo BM3]
3	Whether the data shows that all of the trucks tested had crude, and potentially unsafe, responses	As in 2
4	Inclusion of the ISO 2631 (1997) weighted rms acceleration in the vibration analysis	Further analysis of seat pad accelerations [applying ISO 2631 FWRMS measurement]
5	Whether the data shows that specific suspension features adversely affect seat vibrations	Coherence analysis – seat acceleration versus drive axle acceleration
6	Whether the vibration data shows significant health risks	Combination of 1 and 4
7	The specific effects of chassis flexing, in its various forms, on steering control and ride quality	Analysis of chassis beaming accelerations (coherence of beam acceleration and front wheel angle and coherence of seatpad accelerations and chassis beam accelerations) Determination of rms accelerations on chassis beams and comparison with rms accelerations at other locations (axles, seat and B-pillar, etc)
8	The extent to which non-standard equipment and component wear contributed to the safety-related incidents recorded	Re-examination of all relevant data
9	For vehicle F6, the extent to which a specific casual relationship between inherent oversteering tendency and the lateral deviation incident can be demonstrated	Revisiting of time histories for all data channels
10	For vehicle F1, the extent to which lateral disturbance is directly related to front suspension deflection, and the extent to which this relationship is stronger for vehicle F1 than for other vehicles	Analysis of coherence and transfer function, front suspension deflection to yaw rate and lateral acceleration for all vehicles

154 In late April 2000 the FORS Report was released. I set out the Report’s findings in so far as they are relevant to the applicants’ two principal categories of complaint, namely:
(a) vibration – including rough ride; and
(b) handling – including darting and wandering.

(B) FORS Report vibration analysis

155 Ride vibration quality was one of the two principal categories of analysis undertaken as part of the FORS Report. The instrumentation package designed to measure vibration comprised: (a) vertical and horizontal accelerometers in a seat pad (to measure ride vibrations) (2 channels); (b) two triaxial accelerometers in the cabin – one on the B-pillar and one on the steering wheel column (to measure vibrations) (6 channels); and (c) one accelerometer on the cabin floor (to measure vertical vibrations) (1 channel). See FORS Report, p 5.
156 The FORS Report reviewed relevant research, noting that:
(a) one study recorded that "vertical and fore-aft vibrations are the dominant vibrations experienced by the driver", with fore-aft vibrations being the principal cause of discomfort (p 19).
(b) another study recorded attempts to establish maximum tolerable levels of vertical and fore-aft vibration and concluded that "such tolerance curves provide useful background in evaluating vibrations transmitted to truck occupants" but had "little correlation with subjective ratings"(p 20).

(c) studies recognised the principal factors affecting truck driver fatigue as: length of total working hours; pre-work activity; monotony; general state of health; environment (including light, climate, noise and vibration); circadian rhythms; sleep deprivation; stress; medical conditions such as sleep apnea; and use of alcohol and some medications (pp 21-22).

(d) the literature established that:

(i) long-term high-intensity whole-body vibration poses a health risk in terms of the lumbar spine, and potentially in terms of the digestive and genital/urinary systems;

(ii) there is no known quantitative relationship between vibration ‘dose’ and health effects;

(iii) ISO 2631-1 (1997) provided a quantitative guide to vibration intensity (for seated humans) in relation to health caution levels, although quantitative health-risk assessment is not possible; and

(iv) long term exposure to occupational whole-body vibration is associated with back problems and drivers are in a high-risk group (p 26).

157 Roaduser measured vibration quality in accordance with ISO 2631-1 (Mechanical vibration and shock – evaluation of human exposure to whole-body vibration) (1997) (‘ISO Standard 2631-1: 1997’). The ISO Standard 2631-1: 1997 refers broadly to whole-body vibration generated in vehicles and by machinery and industrial activities (p vi). Annexes to the Standard give information on the "the possible effects of vibration" on health (annex B); comfort and perception (annex C); and the incidence of motion sickness (annex D). The ISO Standard 2631-1: 1997 stipulates that vibration data be recorded for a minimum duration to ensure that the data are typical of the vibration exposures being assessed (p 5).

158 ISO Standard 2631-1: 1997, in relation to health, is concerned with "the effects of periodic, random and transient vibration on the health of persons in normal health exposed to whole-body vibration during travel, at work and during leisure activities" and applies primarily to seated persons (p 13). The Standard cautions that it "generally takes several years for health changes caused by whole-body vibration to occur" and, for this reason, "exposure measurements" should be "representative of the whole period of exposure" (p 13). The Standard stipulates that the assessment of the effect of vibration on health is to be made along each axis by determining the frequency weighted rms acceleration for each axis (x (fore-aft), y (lateral) and z (vertical)) of translational vibration and using the highest such value (p 13). Notwithstanding this, Annex B notes that "[m]ost of the guidance in this annex is based upon data available from research on human response to z-axis vibration of seated persons. There is only limited experience in applying this part of ISO 2631 for x-, y-axes seating and for all axes of standing, reclining and recumbent positions" (p 21).

159 Annex B indicates a health guidance caution zone for vibration levels based mainly on exposures in the 4 to 8 hour exposure range, since the majority of studies are based on this time period (p 22). Annex B (p 22) provides the following interpretation: (a) for exposure below the zone, health effects have not been clearly documented and/or objectively observed; (b) for exposures within the zone, caution should be exercised with respect to potential risks as indicated; and (c) for exposures above the zone, health risks are likely.

160 The FORS Report presented measures of ride vibration quality in four categories:

(a) Rms seat acceleration measures in accordance with ISO Standard 2631-1: 1997;

(b) Additional rms acceleration measures applying the ISO Standard 2631-1: 1997 protocols to further surfaces in the cab;

(c) Measures of vehicle characteristics that may provide information on vibration sources; and

(d) Frequency weighted rms (FWRMS) acceleration in accordance with the ISO Standard 2631-1: 1997. See FORS Report, p 39.

A distance weighted average measurement was calculated in order to present results applicable to the whole test route (p 39). Where a particular measure for a complainant vehicle was higher than all the benchmark vehicles, it was described as "higher" (p 39).

161 Table 11 of the FORS Report, headed "Seatpad measures by vehicle", provided a summary of the seat pad measures by reference to peak rms acceleration, FWRMS acceleration, and maximum acceleration in frequency range.

File	Vehicle	Peak RMS acceleration (g)		FWRMS acceleration (m/sec2)		Maximum acceleration (g) in frequency range
		Vertical	Fore-Aft	Vertical	Fore-Aft	Vertical (4-8 Hz)	Fore-Aft (2 Hz and below)
F1	Kenworth T900	0.038 at 2.5 Hz	0.059 at 12.5 Hz	0.64	1.12	0.016	0.030
F3	Kenworth C501	0.080 at 2.5 Hz	0.039 at 2.5 Hz	1.60	0.88	0.040	0.032
F4	Mack CH Fleetliner	0.028 at 8 Hz	0.050 at 10 Hz	0.81	0.98	0.030	0.030
F6	Ford LT 9513	0.075 at 3.5 Hz	0.036 at 6.3 Hz	1.18	0.76	0.031	0.010
F26	Mack CH Elite	0.028 at 2.5 Hz	0.040 at 8 Hz	0.61	0.67	0.022	0.020
BM1	Mack CH Fleetliner	0.042 at 2.5 Hz	0.039 at 8 Hz	0.95	0.69	0.040	0.009
BM2	Kenworth T900	0.070 at 2.5 Hz	0.027 at 8 Hz	0.87	0.64	0.030	0.010
BM3	Volvo NH	0.0164 at 10 Hz	0.026 at 10 Hz	0.42	0.50	0.015	0.009

162 The results show that:
(a) the peak accelerations of the total group of vehicles varied widely;
(b) there was no clear indication that the complainants’ vehicles were worse than the benchmark vehicles;
(c) F26 did not figure as a vehicle with the greatest vertical accelerations or the greatest fore-aft accelerations on any measure;
(d) considering FWRMS acceleration, the applicants’ truck (F26) had:
(i) vertical seat pad vibration levels significantly lower than other complainants’ vehicles, and lower than two benchmark vehicles; and
(ii) fore-aft seat pad vibrations significantly lower than other complainants’ vehicles and comparable with two benchmark vehicles; and

(e) in comparison with the benchmark vehicles:

(i) the applicants’ vehicle and two other complainants’ vehicles have higher peak accelerations in the fore-aft direction; and

(ii) the applicants’ vehicle and three other vehicles had higher accelerations (in the most sensitive frequency range) in the fore-aft direction.

163 The FWRMS values were plotted at the 8-hour exposure level using the assessment methods recommended in ISO Standard 2631-1: 1997. These results (at Fig 28) showed that:
(a) the results for the applicants’ truck lay within the ‘health caution zone’; and

(b) with the exception of the vertical vibration levels for one of the benchmark vehicles, all of the trucks had vibration levels which, for 8 hours of driving per day, were within or above the health caution zone.

164 In respect of the health impact of test vibrations, the FORS Report found that:

(a) of the vehicles tested, and under the conditions of the testing, four vehicles (F3, F6, F1 and F4) other than the applicants’ vehicle were the most likely to incur long-term driver health effects; and

(b) any such long-term health effects were most likely to involve the lower back.

165 The results for additional rms acceleration measures showed that, in relation to steering wheel accelerations, the applicants’ vehicle had lower measurements than two of the benchmark vehicles in both the vertical and fore-aft directions: see Table 12.

166 In order to provide further insight into vehicle characteristics that may have affected ride quality, the Report undertook an analysis of seat pad acceleration power spectra; cabin floor acceleration power spectra; chassis acceleration power spectra; chassis deflection modes; axle acceleration power spectra; and steering axle suspension deflection. Under the heading "Conclusions relating to ride quality", the Report stated (p 61):

Using the key seatpad ride measures, all four complainant vehicles (for which vibration complaints were received) showed higher values. These are vehicles F1 (Kenworth T900), F3 (Kenworth C501), F4 (Mack CH Fleetliner) and F26 (Mack CH Elite). ... In the case of vehicle F26, the higher seatpad measures were accompanied by higher acceleration peaks on the chassis (at all positions) and on the steering axle.

The attribution of higher seatpad measures in the case of the applicants’ vehicle (F26) is not borne out by Table 11 above, but ultimately nothing seems to turn on this since the FORS Report made no further adverse comment or finding with respect to the ride vibration quality of the applicants’ vehicle.

167 In accordance with the ISO Standard 2631-1: 1997, the FORS Report placed primary emphasis upon the FWRMS seat vibration measurement to assess the ride vibration quality experienced by the driver. Thus, whilst noting that the applicants’ vehicle registered higher results in certain of the vehicle characteristics measurements (see above), these results did not impact upon the seat vibration findings (see p 62; Table 11) or the conclusions in respect of health. It is apparently for this reason that the applicants’ vehicle was the only complainant vehicle not mentioned in respect of vibration in the concluding recommendations of the FORS Report. Four vehicles, excluding the applicants’ vehicle, were the subject of a specific recommendation. Recommendation number 10 stated (p 127):

Action should be taken to advise the owners of prime movers F1, F3, F4 and F6 concerning the ride quality test results and to recommend rectification of the vibration problems. The manufacturers of these vehicles should also be advised of the test results and recommendation for rectification.

168 As just indicated, the FORS Report is not a straightforward document to read. Apart from its recommendations, conclusions and recorded measures, it also referred (at p 59) to the comment of the DECA driver that "vehicles F1, F3 and F26 had vibration levels such that they would induce fatigue over a 12 hour driving period". The significance of this comment (if accurately reported) is doubtful since it is contradicted by the results of the instrumented testing.

169 I also note that the applicants’ vehicle (F26) was the only vehicle driven by the DECA driver who made this comment. The comment thus provides no comparative insight into the ride of the applicants’ truck as compared with the other vehicles tested. The FORS Report itself emphasises that there is academic consensus about the subjectivity of the experience of vibration.

(C) FORS Report handling quality analysis

170 As already noted, the FORS Report focused on two vehicle handling quality issues, namely, darting and wandering. ‘Wandering’ was one of the applicants’ complaints about their vehicle: see FORS Report, p 14.

171 The FORS Report identified that greater difficulty in steering control of the truck could manifest itself as measurably greater vehicle responses, measurably greater driver steering effort, or both: see FORS Report, Executive Summary, p iv and p 66. Roaduser sought to measure vehicle responses and driver effort in various ways. It used numerous tests and measurements to assess handling quality, principally (p 26):

(a) vehicle response – measured in terms of the variability in yaw rate and lateral acceleration (rms values); and

(b) driver steering input – measured in terms of the variability in steering wheel angle (rms) and the frequency content of steering wheel input (power spectrum). With regard to unwanted steering inputs, measurements were made of the variability in front steering angle (rms) and of the variability of drive wheel steering angle (rms) (p 27).

Roaduser also measured a range of other characteristics that could potentially affect steering response or unwanted steering, including (p 27):

o steering system response (from steering wheel to front wheel) in terms of both the gain and the phase lag;

o ‘bump steer’ of axles – steering caused by deflection (compression or extension) of the suspension combined with steering geometry effects;

o ‘roll steer’ of axles – steering caused by compression of the suspension on one side and extension on the other side of the vehicle;

o ‘roll stiffness’ of suspension – the amount of vehicle roll per unit lateral acceleration (for a given COG height)

o torsional flexing of the chassis – approximated only.

172 The data analysis techniques used in the handling quality processing were less complex than those in ride quality analysis. Handling quality analysis consisted of:

• One data channel plotted against another; some examples are roll steer, steering input-output and roll gradient

• Root Mean Square determination of rms value for a data channel time history; eg steering input

• Mean and Standard Deviation: determination of mean and standard deviation for a data channel time history; eg airbag pressure

See FORS Report, p 37.

173 The Report treated the key measures of vehicle response as lateral acceleration and yaw rate (p 66). The Report also recorded that "[s]peed variations were caused by influences outside the scope of the test plan ... and the speed results are not considered to have significance as indicators of the handling quality of the vehicles tested" (p 67). Lateral acceleration and yaw rate were measured over the three sections of the test route – Hume Highway, Euroa and Nagambie: see FORS Report, Tables 19, 20 and 21. Dr Morrison gave evidence (which I accept) that, if a vehicle suffers from wandering, then higher values of lateral acceleration and yaw rates could be anticipated. In the Nagambie section, Table 21 indicates that the applicants’ vehicle performed generally better than the benchmark vehicles as well as the other complainants’ vehicles (with minor exceptions). In the Euroa and Hume Highway sections, Tables 19 and 20 indicate that their vehicle’s performance was broadly comparable with the benchmark and the complainants’ vehicles.

174 As already indicated, Roaduser also measured driver steering input over the three sections. The results are set out in Tables 24, 25, 26 and 27 of the FORS Report. Generally speaking, the applicants’ vehicle returned unremarkable results for the Nagambie and the Euroa sections when compared with the benchmark vehicles. On the Hume Highway, however, the vehicle recorded a marginally higher steering wheel angle in comparison with the benchmark vehicles. Table 24 records this difference and is accompanied by the comment that "vehicles F1, F3, F4, F6 and F26 show higher steering wheel angle measures".

175 Mr McFarlane gave evidence that, because the applicants’ vehicle recorded a steering wheel angle "slightly outside the benchmark range of vehicles", Roaduser went on to observe that:

In view of the fact that increased driver steering effort was measured for certain vehicles (F1, F3, F4 and F26) and considering that:

• An increased requirement for steering effort could potentially affect driver fatigue in some operating environments

• Some of these vehicles could be currently operating in long-distance environments similar to the test route

• Causes of the increased steering effort could involve design, modification and maintenance issues

It would be prudent to advise the current owners of these vehicles of the test results and to recommend either rectification of the steering problems or restriction to suitable operating environments.

See FORS Report, Executive Summary, pp viii and 126. Roaduser thus made the recommendation (at p 127) that:

Action should be taken to advise the owners of prime movers F1, F3, F4 and F26 concerning the test results in relation to increased steering effort required and the need for rectification or restriction to certain types of operation.

176 As indicated, Roaduser examined other vehicle characteristics, including:

(a) Steering ratios – Results for steering ratio are set out in Table 28 for the Euroa and Nagambie sections. The applicants’ vehicle performed better than all but one other complainant’s vehicle over both sections, better than one of the benchmark vehicles for the Euroa section and better than two of the benchmark vehicles for the Nagambie section.

(b) Transfer Functions – Results for transfer functions are set out in Table 29. The applicants’ vehicle had better results than all three benchmark vehicles and all but one (F1) of the other complainants’ vehicles.

(c) Steering Axle Dynamics – Table 30 records the relationship between vertical suspension displacement and front wheel steering angle, which represents a form of ‘bump steer’. Here ‘bump steer’ refers to unwanted front wheel steering related to suspension response to road roughness. The applicants’ vehicle recorded better or comparable results to the benchmark vehicles and the other complainants’ vehicles. Roaduser also measured left and right front wheel bump coefficients. The applicants’ vehicle measured higher than the three benchmark vehicles, although, broadly speaking, its results were comparable with them.

(d) Driver Axle Dynamics – measured by reference to (i) roll steer coefficients; (ii) suspension roll angle; and (iii) drive axle steer angle. The applicants’ vehicle had a higher roll steer coefficient than all other vehicles, but, as the Report recognised, this is not determinative and the suspension roll angle must also be taken into account. This is because the tendency of the vehicle to roll on the suspension is important in measuring quality of handling. The most accurate measure of the impact of drive axle steer on vehicle handling is the drive axle steer angle: see FORS Report, p 80. Dr Morrison confirmed this in his report (at 17 and Fig 14) and evidence, as to which, see below. On this criterion, the applicants’ vehicle performed better that two of the benchmark vehicles and all but one of the other complainants’ vehicles.

(e) Prime Mover Roll Gradient – This measures the tendency of a truck to roll in response to lateral acceleration acting on the truck. In respect of this measurement the applicants’ vehicles recorded the best results in comparison with all other vehicles: see Table 34.

(f) Chassis Torsion Flexibility – This measure is relevant to the applicants’ complaints that the chassis stiffness was compromised by the flange cut outs on the chassis. Whilst this test was only an estimation, the angle torsional flexing on the chassis for the applicants’ vehicle was quite low (0.33 and 0.31) and comparable to the benchmark vehicles. Mr McFarlane also gave evidence that flange cut outs are common in straight-rail chassis.

(g) Air Suspension Bag Pressure – The results are set out in Table 36. There was no real difference between the right or left side of the applicants’ truck, which gave results comparable with the benchmark vehicles.

177 In summary, the FORS Report found that: (1) two vehicles (F1 and F6) would, in certain instances, deviate from a normal vehicle path, against the intent of the driver; and (2) four vehicles (F1, F3, F4 and F6) would require a greater degree of driving steer input than the benchmark vehicles: see Executive Summary, p v-vi. As we have seen, the applicants’ vehicle (F26) was not one of the vehicles singled out for comments of this kind. Significantly for this case, the Report recorded that "[t]here is no direct evidence that any of the other vehicle characteristics measured ... adversely affect prime mover handling": see Executive Summary, p vi.

8. THE EXPERTS’ EVIDENCE REGARDING THE FORS REPORT ISSUES

(A) Dr Morrison

178 Dr Russell Morrison is an engineer with over 40 years’ experience in a range of areas, including with respect to heavy trucks, in vibration measurement and analysis and in assessing the handling quality of road vehicles. He was well-qualified to provide expert evidence in this case. He gave his evidence in a thoughtful and objective way. Where there was conflict between his evidence and the evidence of other experts, I prefer his evidence.

179 Dr Morrison prepared a report dated 18 May 2006, which addressed the Lowes’ claims in relation to the truck (‘Morrison Report’). He also gave evidence at trial. Dr Morrison’s evidence was that vibration problems are capable of being assessed "against fairly well recognised criteria". This was not true of handling problems, which though quantifiable, had no "universally adopted standards of acceptability". He considered, however, that the FORS Report was "a very comprehensive set of measurements, a very comprehensive process" and that Roaduser’s methodology was "entirely logical and appropriate". He added that "not only was [it] an independent, thorough, comprehensive set of measurements, it had also been a set of measurements that had been subject to a lot of review".

180 Having regard to the FORS Report measurements, Dr Morrison concluded (Morrison Report, p 22) that:

In a comparative standard test, undertaken during the FORS investigation, over a 330 km long test route, measured seat pad vibration levels for the Lowe truck were lower than for all four of the other complainant vehicles and for two of the benchmark vehicles.

On the basis of this evidence, it would be difficult to conclude that the Lowe truck was atypical of the general population of Australian heavy vehicle fleet. On the contrary, because similar levels were measured for vehicle BM3, vibration levels for the Lowe truck are towards the lower end of levels for the general population.

These results suggest that for any given driver, the long term health risks associated with driving the Lowe truck would be lower than with driving any of the other trucks included in these tests, with the exception of BM3. For the reasons noted above, it is also true that the health risk implications for the Lowe truck are probably towards the lower end of the general Australian population of heavy trucks.

It is also evident from the results of these tests that many drivers would not consider vibration levels in the Lowe trucks to be a problem.

181 With regard to vibration, Dr Morrison confirmed that Roaduser’s testing and analysis techniques conformed to ISO Standard 2631-1: 1997 in all important respects, even though Roaduser measured only two of the three coordinates referred to in the Standard. According to him, the fact that the FORS Report did not measure lateral vibration on the y-axis was not unusual for studies of this kind. Dr Morrison stated that, in his experience of a large number of measurements of this kind, the lateral transverse acceleration was always lower than either vertical or fore-aft accelerations. Given that the Standard stipulates that vibration be measured on the basis of the worst reading on any one axis, the failure to measure the lateral acceleration would not have had any impact on the results presented.

182 Dr Morrison noted that ISO Standard 2631-1: 1997 emphasises that an extended period of time is necessary for the effects of vibration to impact on human health. He also noted that "it is well recognised that because humans are so variable, their response to a given acceleration level will also be very variable". Further, there is, he said, presently limited data on the effect of vibration levels on human health.

183 Dr Morrison stated (and I accept) that "it is only vibration measurements which can provide a rational basis for making an assessment of [vibration] acceptability or otherwise". See Morrison Report, p 7. Further, he stated that the primary measurement of ride vibration quality as experienced by the driver is seat pad vibration. Whilst measurement of other vehicle characteristics may provide an understanding about the contributors to seat pad vibration, they are not indicative of the actual vibration level experienced by the driver in the driver seat. Dr Morrison emphasised that the critical measurements were therefore those recorded in Table 11 of the FORS Report, which showed that the applicants’ vehicle had:

• vertical seat pad vibration levels that were lower than any of the other complainant vehicles, in some cases substantially, and lower than two of the benchmark vehicles; and

• fore and aft vibration levels which were lower than any of the other complainant vehicles, lower than one of the benchmark vehicles and comparable with another.

184 Moreover, the steering wheel acceleration measurements (in Table 12 of the FORS Report) showed that the measurements for the applicants’ vehicle in both the vertical and fore-aft directions were better than most of the other complainants’ vehicles and comparable with measurements recorded for the benchmark vehicles. In this connection, he observed that: "[y]ou really can’t be too specific about the differences, once you get to differences of this order".

185 Dr Morrison concluded that there was nothing in the FORS Report to support the conclusion that the applicants’ vehicle gave a poor ride compared to other vehicles in the benchmark group or in comparison with the other complainants’ vehicles.

186 Dr Morrison concluded (Morrison Report, pp 22-23) that:

On the basis of the FORS investigation test results it would also have been difficult to conclude that the Lowe truck exhibited any abnormal or atypical adverse handling characteristics of the kind claimed.

Had there been directional stability or wandering problems with the Lowe vehicle they would have been evident in the lateral acceleration or yaw rate measurements recorded for different sections of the test route. Rather, results for the Lowe truck were all comparable with or lower than the benchmark vehicles.

Throughout the 330 km test, there were no instances where the Lowe vehicle exhibited darting behaviour (rapid deviation of the vehicle from the desired trajectory requiring substantial correction from the driver), although some of the other complainant vehicles did.

The only comments on handling of the Lowe truck given in the findings of the FORS report relate to driver steering effort, which the report indicates was ‘higher’ than for the benchmark vehicles. Significantly, a comment in the FORS report that a particular parameter is ‘higher’ does not imply a significant difference and is not to be interpreted necessarily as indicating any kind of problem. In fact, closer examination of the results related to steering effort demonstrate that in terms of all of the measures used in the FORS tests, there is no significant or consistent difference between the Lowe vehicle and the benchmark group.

Measurements of bump steer and roll steer also indicate that for the Lowe truck, these effects were comparable or less than for the benchmark group. In any case, these are just one of the many mechanisms which together determine the overall handling behaviour.

187 In relation to driver input, Dr Morrison showed that the applicants’ vehicle was "relatively comparable" with the benchmark vehicles. He added (Morrison Report, p 14):

While some of the measures are higher for the Lowe truck than for the benchmark group, many of the results are lower. It would be surprising if any of the differences between the Lowe truck and the benchmark vehicles were statistically significant.

188 In discussing ‘bump steer’ and ‘roll steer’, Dr Morrison noted that the applicants’ truck had some front axle bump steer coefficients that were higher than the benchmark group, but that the differences were "relatively small". He concluded that it would be unlikely that "any differences would be statistically significant". After noting the FORS Report comment about the drive axle dynamics of the applicants’ vehicle, Dr Morrison commented (Morrison Report, pp17-18) that roll steer coefficient was:

... not the best measure of the extent to which drive axle roll steer is likely to impact the handling behaviour of the vehicle. Rather, this is best given by the drive axle steer angle change which occurs as a result of the vehicle rolling.

...

[W]hen the results are compared directly on the basis of the resulting roll-induced steering angles ... it is ... evident that drive axle roll steer effects for the Lowe truck are relatively small, being comparable to or less than steer angles for the benchmark group.

In cross-examination, Mr Morrison’s opinion was not shown to be flawed.

(B) Mr Robert McPherson

189 Mr Robert McPherson was a consultant engineer, who had been involved with heavy road vehicles throughout most of his professional life, with a great deal of experience in stress analysis. Mr McPherson stated that, during his employment with Mack, he had overall responsibility for the durability and reliability of Mack vehicles. He gave evidence of his experience in the testing of prime movers both in Australia and the USA. He also gave evidence that it was a normal industry practice to have cut-out flanges as in the chassis in the applicants’ truck. At trial, he was asked about the impact of these cut-outs on chassis stiffness (which according to the applicants was the wrong issue). In any case, he said that the flange cut-outs did not have any adverse effect on the chassis. Mr McPherson also gave evidence that the movement of the transverse rod is very small indeed and that fixing them on the same side of the chassis would have no adverse effect.

(C) Status of Mr Lambert’s and Dr McLean’s evidence

(i) Dr McLean

190 Dr McLean sought to give evidence about the condition of Mr Lowe’s truck, the adequacy of the tests in the FORS Report and the further information that might be gleaned from it. Also, as the applicants said in closing submissions, much of Dr McLean’s account was "based extensively on the effects and consequences of harmonic vibration". They said:

The primary opinion of Dr McLean as to the cause of the problems in the vehicle was the harmonic signature of the truck and the various external excitation sources which inter-reacted with that signature.

He described the nature of the phenomenon, saying:

Every structure vibrates to a certain extent, and in some it is a very small amplitude, but if the amplitudes become very large, and are at the right frequency which is very harmful to where it is transmitted to, such as the driver, it can do very damaging effects.

According to him, its effects could be described as:

... we get symptoms which are higher fuel consumption than a non-vibrating truck ...It transfers right down the front tyres, and we then get tyre scalloping ... we get ... a lot of breakages very early, premature breakages and so forth ...the computer management system ... simply give up. They just shut down the engine.

Further, Dr McLean said:

... once you get a bend in your shaft or rail, it lowers its natural frequency and it could be as simple as being bent or picked up by the wrong forklift in the assembly system.

He added that drilling holes in different places, the sharpness of drill bits, notching of the metal, cutting sections from the flange, and the tools used to cut the section could all affect the outcome.

191 Subject to the Evidence Act 1995 (Cth), evidence that is relevant in a proceeding is admissible. In order, however, for ‘expert’ opinion evidence to be admissible, it must fall within s 79 of the Evidence Act 1995 (Cth). This is because opinion evidence is generally inadmissible (see s 76) but s 79 provides that:

If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to the evidence of an opinion of that person that is wholly or substantially based on that knowledge.

This provision enacts the common law in important respects, although it has consequences of its own. In HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at 427, Gleeson CJ said:

... the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.

192 Section 79 primarily requires:
(a) identification of a relevant field of specialised knowledge;
(b) a showing that, by reason of training, study or experience, the witness has that specialised knowledge; and

(c) a showing that the opinion evidence of the witness is wholly or substantially based on that specialised knowledge.

193 Furthermore, the facts and assumptions on which the witness bases his or her opinion must be identified and proved, and constitute a proper foundation for the opinion expressed. The field of specialised knowledge must be shown to apply to these facts or assumptions. See, generally, Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744 per Heydon JA and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354; [2002] FCAFC 157 at [87], where a Full Court of this Court observed that many of the matters on which s 79 depends involve "questions of degree, requiring the exercise of judgment". Whether or not an expert has the requisite expertise is, however, a question of fact: see Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 at [39]. Where an expert purports to give an opinion that lies outside the field of his specialised knowledge, the opinion will be inadmissible: see, e.g., Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 at 85 per Lindgren J and Henscke & Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63; [1999] FCA 1561 at [69] per Finn J.

194 The proof of facts and assumptions on which an opinion is based is not always straightforward. As Heydon JA said in Rhoden v Wingate [2002] NSWCA 165 at [86]:

When assessing the admissibility of expert opinions, it is not the case that an opinion is only admissible if at the close of the case of the party relying on it the evidence establishes each of the assumptions on which it is based on the balance of probabilities. The primary evidence relating to those assumptions might be controversial. Which parts of the primary evidence are to be accepted, and what the correct conclusions from the primary evidence are, are matters for the trier of fact at the end of the trial. The opinion evidence may be admitted if there is evidence which, if accepted, is capable of establishing the truth of the assumptions.

The witness must differentiate between the assumed facts on which he or she bases his or her opinion and the opinion being proffered. The witness must disclose in what way, if any, the opinion is based on information communicated by another person. If this is not done, then the opinion may be inadmissible or carry diminished weight: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 347-348 and Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 at [13]. More generally, the reasoning on which the opinion is based must be sufficiently intelligible and transparent to enable the court to form its own assessment about the cogency of the opinion.

195 It is also accepted that an expert witness is not an advocate for a party and has a paramount duty to the Court and not to the person retaining him: see ‘Guidelines for Expert Witnesses’ applicable in this Court and National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd’s Rep 68 at 81-82 per Creswell J. A want of independence, in the case of an expert witness said to be affected by interest or bias, tends to affect the weight to be given to his or her opinion: see FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 ("FGT Custodians") at [12] per Ormiston JA, with whom Chernov and Eames JJA agreed.

196 In the present context, the respondent also drew attention to s 135 of the Evidence Act 1995 (Cth), which confers a discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; (b) be misleading or confusing; or (c) cause or result in undue waste of time. It seems that the failure of a witness to comply with relevant ‘Guidelines for Expert Witnesses’ may be a factor weighing in favour of the exclusion of his or her evidence, since the expert’s opinion is infected by failure to understand his or her responsibilities as an expert: compare United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [15]- [19] per Campbell J.

197 The respondent objected to the admissibility of the opinion of Dr McLean on the basis that:
(a) he lacked the requisite "specialised knowledge"; and/or

(b) he purported to give opinion on matters outside any "specialised knowledge" he may possess as a result of his training, study or experience; and/or

(c) his evidence demonstrated fundamental flaws in its factual basis or in its process of reasoning.

The respondent argued that Dr McLean’s evidence should be excluded entirely, alternatively, admitted only for the purpose of providing expert opinion on matters relating to the alleged vibration problems of the Lowes’ truck.

198 It was apparently common ground that, as at May 2007, Dr McLean was a senior lecturer in the School of Mechanical, Materials and Mechatronics Engineering, in the Faculty of Engineering at the University of Wollongong. A University of Wollongong website stated Dr McLean’s research activities to be "Bulk solids, Handling and Physical Processing" and his "area of specialisation ... machine and mechanical system dynamics and evaluation of power and drive requirements for Bulk Solid Handling and Equipment".

199 In his curriculum vitae for May 2007 (Exhibit A31), however, he claimed his research interests were "bulk solid structural and mechanical device interactions" and similar, and "heavy vehicle dynamics and design, nonlinear vibrations, effects of whole body vibration; bio mechanics" (emphasis added). I accept that engineering is a field of specialised knowledge, a subset of which includes knowledge about ‘heavy vehicle dynamics and design, nonlinear vibrations, effects of whole body vibration; bio mechanics’. I also accept that this latter subset of engineering knowledge may be relevant to issues arising in the proceeding. The real question is whether or not Dr McLean has been shown to have this claimed knowledge by reason of his training, study or experience.

200 At trial Dr McLean stated that his doctoral thesis was in the area of bulk solids handling, although he had never taught this as a subject. He stated that his usual teaching was:

Engineering dynamics, system dynamics and also engineering analysis, which is mathematical application to engineering, in particular, mechanical engineering ... I cover ... strength of solids, fluid power, system dynamics and engineering analysis. And from 100 level dynamics right down to pack horse level.

His evidence about his expertise to this point is at best equivocal.

201 Dr McLean’s further evidence was to the effect that he had never undertaken his own research or tests on heavy articulated vehicles. Dr McLean said that, with the exception of an undergraduate thesis in 1974, he had not conducted any tests or research on heavy vehicles or their design prior to 1998. He said that his interest in the engineering aspects of heavy vehicles was ‘rekindled’ in about September 1998. He had not conducted any research on heavy vehicles prior to this date. Nor had he published in the area. In particular, at the time of his correspondence with Andy Read of the FORS regarding the FORS Report, he had not done any testing in relation to the harmonic signatures of heavy vehicles. He had not subsequently undertaken any dynamometer testing of vehicles at Shellharbour TAFE despite at one stage giving a contrary indication. Most, if not all, of his claimed research was undertaken by his students without any actual testing of trucks. He admitted that he had done no testing to establish the effect on the behaviour of a vehicle of the positioning of panhard rods and had no actual knowledge as to how the position of rods would affect vibrations or handling of the vehicle. Dr McLean explained that he

did a lot of on-road testing in vehicles driving up the Hume Highway rendezvousing with trucks coming through from Sydney-Melbourne or down to Yass was another common one. Diversion of trucks from the Newell Highway for me to inspect – to inspect trucks.

He did not elaborate on the nature of these inspections.

202 Furthermore, Dr McLean had not published any articles in refereed journals. He had, however, presented a number of papers (alone and jointly with others, including Mr Lambert) at conferences on aspects of air suspension systems in prime movers, chassis flex, nonlinear vibration phenomena of prime movers, dynamic modelling and the like. Save for some joint publications, there was, therefore, little evidence that he was regarded as knowledgeable by others in the field. His "reports" included some 17 documents that he had elected to provide to the FORS in the period September 1999 to November 1999. He would not have appeared to have supervised any doctoral candidates, although he had supervised other candidates, including undergraduates.

203 Save for his ‘inspections’ of trucks, by reason of his training, study or experience, Dr McLean’s knowledge of the field of ‘heavy vehicle dynamics and design, nonlinear vibrations, effects of whole body vibration; bio mechanics’ was, at best, theoretical. He explained that it was, in essence, the extrapolation and application by him of his knowledge of "resonance and dynamics ... fluid mechanics and fluid power ... harmonics effects and how they interact with a mechanical boom light structure". This knowledge was apparently acquired by him in the course of his study of engineering, including his teaching and supervision of students. The evidence regarding truck inspections was sparse. It cannot advance Dr McLean’s claim to have specialised knowledge very far, if at all.

204 On the basis of this evidence, I accept that Dr McLean had some specialised knowledge, at a theoretical level, of ‘heavy vehicle dynamics and design, nonlinear vibrations, effects of whole body vibration; bio mechanics’. It followed that to the extent he gave his opinion outside this theoretical domain, his opinion was inadmissible. Subject to what follows, practically speaking, in this proceeding, probably the only admissible opinion evidence that he might have given was evidence about the theory of vibration measurement and analysis.

205 The more difficult question is, to what extent, if any, was Dr McLean’s opinion evidence wholly or substantially based on his somewhat limited specialised knowledge. For the reasons that follow, it is generally impossible to be satisfied that his opinion was wholly or substantially so based. There are many instances in which it is apparent that his opinion was merely speculation.

206 Dr McLean’s evidence did not differentiate between his assumed facts or assumptions and his ‘expert’ opinion. These assumed facts and assumptions were in most cases unproven and untested. Much of his evidence was virtually incomprehensible, ill-ordered, illogical or manifestly erroneous.

207 For example, Dr McLean expressed an opinion concerning the condition of the applicants’ truck. This opinion was apparently based on:

(a) Mr Lowe’s account of the alleged defects in the truck;

(b) Two brief inspections of the truck;

(c) Analysis of one segment of data obtained during the instrumented testing as part of the FORS investigation; and

(d) Theory relating to heavy vehicle dynamics and vibration.

These assumed facts and assumptions were never properly identified and proven. The inspections and data analysis were shown to be demonstrably unreliably or wrong; the relevant reasoning processes, questionable; and his account disorganised.

208 Dr McLean’s unarticulated assumptions were that, first, the truck actually exhibited the defects alleged by Mr Lowe; and secondly, that there was a correlation between his theories of vibration and the alleged defects. Dr McLean in fact admitted that his theory was a ‘generalisation’ based on elementary theories of vibration. His opinion regarding the likely cause of the alleged defects in the truck was based on the fact that the alleged defects were apparently consistent with his theory of vibration. Once exposed as merely a generalisation that might account for alleged (but unobserved) phenomena, the untested nature of Dr McLean’s opinion becomes apparent. Both Dr Morrison and Mr McPherson made this point. Dr Morrison noted that neither Dr McLean nor Mr Lambert made any objective quantification and assessment of the defects alleged by Mr Lowe and compared these assessments against ‘criteria of acceptability’. Mr McPherson also gave evidence as to the untested nature of Dr McLean’s engineering assumptions.

209 The fact that Dr McLean had very little, if any, factual foundation for his opinions was emphasised by his very slight first-hand knowledge of the truck – a fact that emerged clearly in cross-examination. Dr McLean stated that he inspected the truck on only two occasions – around Easter 1999 and in September 1999. (The second inspection is likely to have been in 2000, not 1999, bearing in mind Dr McLean’s statement that, at the time of the inspection, the vehicle had been parked up for some time and in September 1999 the vehicle was still being used by Mr Lowe.)

210 Dr McLean said that, at Easter 1999, he took a short ‘bobtail’ test drive with Mr Lowe for around 20 kilometres around Adelaide. He stated that there was "certainly some unusual steering behaviour with that vehicle, when operated bobtail". At trial, however, witnesses for both parties, including Mr Lowe himself, agreed that a bobtail test drive, without a trailer attached, would give no indication as to the actual handling of the vehicle, due to the fact that the truck is designed to be operated with a trailer attached. As Mr McPherson said (and I accept):

.. the vehicles aren’t designed ... to run continuously bob tail. They are not designed for optimum ride or optimum drive line angles or anything else when they are bob tail. They are designed to run with a load on them. So, they would ride rough if they are in a bob tail condition.

I would not therefore attach any weight to Dr McLean’s observations made in the course of that test drive. Nor would I regard them as providing any very satisfactory basis for his opinion about the condition of the truck.

211 At trial, Dr McLean commented upon certain observations he made during the course of his inspection of the truck in Easter 1999, including what he stated to be "evidence of movement in travel" indicated by the condition of certain components. On Dr McLean’s own account, however, the inspection itself was "very rushed" as he had to "race out the facility to do a test run for another vehicle of the same brand". In view of this, I would not place any weight on these observations and I would not regard them as providing an adequate factual basis for the opinions he expressed.

212 There is simply no evidence that Dr McLean conducted any reliable testing of the vehicle. He stated that he conducted two, or possibly three, tests. The first was a "hammer" or "imprint" test to ascertain any deficiency or deviation in the chassis rod strength. Dr McLean stated that this test was "so crude that I did not pursue that any further". The second test appears to have been a test using a cathode ray oscilloscope to ascertain the harmonic signature of the chassis rail. Again, Dr McLean acknowledged that this was a "very crude experimental facility". He also appears to have undertaken a "curvature" test which he also described as a ‘very crude quantified assessment". On Dr McLean’s own evidence, none of these tests provided reliable measurements of the applicants’ vehicle.

213 Further, at the trial, Dr McLean admitted that, in respect of the applicants’ truck, he had done no testing:
(a) to assess the location of the height control value; or

(b) to establish that the suspension of the truck exhibited adverse air spring pressures when operating subject to application of torque.

214 A good deal of Dr McLean’s evidence, including both his written report and oral evidence at trial, was incomprehensible, inconsistent and illogical. He could not identify his reasoning, at least not readily, and sometimes not at all. When he did so, the difficulties with it were patent.

215 Dr McLean’s evidence was peppered with inaccuracies and inconsistencies. At trial, he conceded that:

(a) He was incorrect to say at page 28 of his report that F26 had worse frequency weighted measurements for fore aft seat pad vibration; and the graph depicting that data on the same page was also incorrect.

(b) The graph on page 29 of his report showing data for F26 from the so-called "Tooborac to Seymour test section" had been plotted against distance averaged data for BM1 over the entire instrumented test route. Dr Mclean accepted that the analysis was flawed in that he was "comparing apples with pears".

(c) The NRM cannot provide a fixed excitation frequency due to the randomness of spacing between road bumps and corrugations. Dr McLean was unable to identify any academic research or industry practice supporting his theory of a link between the NRM value and the "harmonic signature" of a vehicle as alleged in his expert report.

(d) Under cross-examination Dr McLean accepted that he was incorrect to assert in his report that steering wheel vibration had been "completely ignored" in the FORS Report when such vibration had been specifically measured and reported upon.

(e) Dr McLean accepted that, contrary to the analysis presented in his report, there was no way of knowing whether the segment of data identified in his report as the ‘Tooborac to Seymour’ section of road was, in fact, that road. In fact, Dr McLean conceded that it may well have been the Hume Highway.

216 As the respondent noted in written submissions, there were many other inconsistencies and errors in Dr McLean’s evidence. Having regard to these matters, his failure to differentiate between assumed facts and opinion, the want of any real factual foundation, the failure to identify an acceptable reasoning process and the fact that much of his evidence was disorganised, poorly written and expressed to the point of being incomprehensible, I am not satisfied that his evidence was wholly or substantially based on the specialised knowledge he acquired by his study, training or experience. For this reason, I would uphold the respondent’s objection to the admissibility of Dr McLean’s evidence. Alternatively, in so far as it was based on this knowledge, it is impossible, for the reasons stated, to make any proper assessment of its reliability. I would, therefore, attach little, if any, weight to his evidence. Where appropriate, however, I refer to and discuss the principal items of his evidence.

217 In view of my conclusion in this regard, it is unnecessary to say anything further about the respondent’s contention that Dr McLean was partisan and that his evidence should not be accorded the weight due to an independent expert.

(ii) Mr Lambert

218 The respondent accepted that Mr Lambert had specialist knowledge of heavy vehicle engineering by reason of his study, training and experience. This much appears from appendix 2 to Mr Lambert’s report of August 2004, which he prepared for use in this proceeding (‘Lambert’s report’). Furthermore, from January to November 1999, Mr Lambert was an employee of Roaduser, holding the position of "Manager, Accident Mitigation and Operational Safety". He was involved to a limited extent in the FORS Inquiry. He gave evidence of the ‘inspect and drive’ test in respect of the Lowes’ vehicle on 25 March 1999. Between July 1999 and 15 November 1999, when his employment with Roaduser terminated, Mr Lambert was a contact person at Roaduser for owners and manufacturers. Mr Lambert conceded, however, that he had no involvement in the instrumental testing.

219 The respondent submitted that Mr Lambert’s evidence was compromised by a lack of independence.

220 The respondent submitted (and I accept) that Mr Lambert’s evidence at trial established that:

(a) During the FORS Inquiry he became the principal contact for complainants, who preferred to deal with him rather than others at Roaduser.

(b) Towards the latter part of his employment at Roaduser, and following his termination, he became disaffected with Roaduser and critical of its handling of the FORS Report.

(c) At the time of his termination, he stated that he had "issues" with Peter Sweatman and his wife Patricia.

(d) In order to assist the applicants, Mr Lambert had been "supplied with 8,500 pages of documents from Mack Trucks, and [he] went through those to get these figures, so the figures are based on Mack Truck invoices."

(e) Mr Lambert accepted that, since leaving Roaduser, he had been retained by Slater and Gordon to act on behalf of drivers in a class action against Kenworth trucks and potential class action against Mack Trucks. In the course of this retainer he had attended mediation in relation to the Kenworth matter and provided advice to Slater and Gordon. He had subsequently been retained by three drivers in relation to proceedings against Mack Trucks following the de-classing of the class action.

(f) Mr Lambert had an "ongoing involvement" with Mr Bill Haire, a manufacturer of a rival air suspension system to that manufactured by Hendrickson and installed in the applicants’ vehicle.

(g) There was some evidence that Mr Lambert had a poor opinion of Wayne Wallace.

221 None of these factors by itself would deprive Mr Lambert of the independence desired of an expert witness. I do not consider that Mr Lambert’s involvement with Mr Haire would necessarily have affected the evidence he gave. I note too that Mr Morrison was also involved as an expert in other proceedings – though for the truck manufacturer. Involvement in other proceedings in the same or similar interest need not affect independence. It was, moreover, clear that Mr Lambert gave evidence of opinions he genuinely held. Nonetheless, it was equally clear that Mr Lambert was inclined to ‘side’ with the applicants. His apparent commitment to the applicants’ position indicated more than intellectual attraction to their position. Precisely why Mr Lambert was so disposed is unclear. As the respondent noted, he had not seen ‘eye to eye’ with the Roaduser’s management or with Mr Wallace from Mack. I doubt, however, that this is a sufficient explanation. It is enough to say that Mr Lambert impressed me as a witness who had, for whatever reason, become somewhat overly involved in the interests of a party to the litigation. As Ormiston JA’s discussion in FGT Custodians at [12] makes clear, this circumstance may diminish the weight accorded an expert’s opinion. Here, it lessened to some degree the weight I might otherwise have given Mr Lambert’s opinion. In the end, however, my preference for Dr Morrison’s opinion to that of Mr Lambert’s was more affected by considerations other than this. I would add that there was no occasion to exercise my discretion under s 135 of the Evidence Act 1995 (Cth).

222 There were a number of other matters that also tended to diminish the weight to be attached to Mr Lambert’s evidence, including that, in cross-examination, it became apparent that much of his technical opinion was not based on any actual testing of the applicants’ truck. Thus, for example, Mr Lambert conceded that he had done no testing to establish the relative torsional rigidity of trailers. Instead, his opinion was based on the fact that he had "a very good eye for observing vehicle behaviour". Further, Mr Lambert stated he used his "own observation and measurements" to establish the chassis was bent. When asked whether he established first whether the ground surface was flat, he conceded "Well, I didn’t check it in an absolute sense, no ... I have got a very good eye for flat surfaces".

223 Notwithstanding these reservations, I have found it necessary to consider Mr Lambert’s evidence carefully.

224 Mr Lambert relied on his observations in the ‘inspect and drive’ test to support the proposition that the applicants’ truck was defective. This evidence should be treated cautiously since not all of it is to be found in the contemporaneous report on the ‘inspect and drive’ test. Further, Mr Lambert’s comments at the time about the applicant’s vehicle, including his rating it as the second worst vehicle tested, must be considered in the context in which they were made. The ‘inspect and drive’ tests were not conducted under uniform conditions, and the trailer, load, road quality, road route and speed of the drive varied between vehicles. There were no instrumental measurements at this stage. Mr Lambert’s observations were subjective. I accept that, as the respondent submitted, to the extent the observations in the ‘inspect and drive’ report might be thought inconsistent with the later results of the instrumented testing, the latter are to be preferred. This is because the instrumented testing provides quantifiable comparative data of an objective kind.

225 In his report (Lambert Report, pp 22-23) Mr Lambert stated that the FORS Report data showed the applicants’ truck to be a problem. For the most part, I reject this evidence. Mr Lambert referred to the fact that the applicants’ vehicle had a chassis bending mode of 10.4 Hz "which is close to normal axle hop modes at 90-100 km/h, so there is a high potential for the two modes to excite each other". Neither of these factors established the truck was in fact a problem. Indeed, Mr Lambert conceded that the FORS Report results on vibration indicated that this was not an issue. Mr Lambert also relied on the fact that the applicants’ vehicle measured a value of 25.6 degrees on the Nagambie section of the route, commenting that this showed a dramatic deterioration on poor roads. For this section, as we have already seen, however, the applicants’ vehicle had a lower steering wheel angle than one benchmark vehicle and two other complainants’ vehicles. Mr Lambert also relied on the fact that the applicants’ vehicle had a low average speed on the Nagambie section and the highest standard deviation on the Euroa section. As the respondent noted, however, on the roughest section of route, the Euroa section, the applicants’ vehicle had the second highest mean speed of all tested vehicles. Moreover, as mentioned above, the FORS Report expressly addressed and discounted the significance of speed variations. Mr Lambert also referred to the roll steer coefficient of 0.31 for the Euroa and Nagambie section but disregarded the axle steer angle measure. He referred to the higher bump steer coefficient for the Hume Highway section, but, as already stated, this would not appear to have been a problem.

226 Mr Lambert (and Dr McLean) identified a number of methodological inadequacies with the FORS Report. None of these criticisms, however, significantly undermines the data or findings within the FORS Report.

(a) Mr Lambert expressed the view that the lower COG of the trailer used for instrumented testing compared with that usually carried by the applicants’ truck affected the extent to which the applicants’ truck exhibited its adverse characteristics (Lambert Report, p 15). Mr Lambert’s submission on the Draft Final FORS Report did not mention this, however, and Mr Lambert conceded in evidence that these submissions had exhaustively stated what he perceived to be deficiencies in the Report. Mr Lambert’s view on this issue was also inconsistent with his experience in the ‘inspect and drive’ test and with Mr Jenkins’ evidence that the truck exhibited no adverse behaviours when used for cattle transportation on secondary rough roads when travelling between 80 and 100 kilometres per hour. Mr Lambert had never measured the COG of the applicant’s truck as loaded by them.

(b) Mr Lambert said that the use of a flat top trailer in the instrumented testing as compared with the curtain-sided trailer used by the applicants would also have affected the result (Lambert Report, p 15). Again, Mr Lambert’s submission on the Draft Report did not mention this matter. Apart from a video of marginal probative value, there was no other evidence led to show how the torsional rigidity of the trailer would have affected the results of the FORS Inquiry. In cross-examination, Mr Lambert admitted that he had never tested the torsional rigidity of trailers, including curtain-sided trailers.

(c) Both Mr Lambert and Dr McLean expressed the opinion that the applicants’ vehicle operated badly on rough roads. Mr Lambert based this opinion on the ‘inspect and drive’ test and on the analysis of data in the FORS Report referred to above. As noted, however, his contention that the applicants’ vehicles showed the lowest speed over the "poorest road" was unconvincing.

(d) It is convenient to note that Dr McLean’s attempt to diminish the significance of the FORS Report on the ground that the route used for instrumented testing was not representative of the roads typically driven by Mr Lowe. Dr McLean conceded, however, that he had not driven the Adelaide to Brisbane route that Mr Lowe travelled. There was no other evidence that showed that the assumption in the FORS Report that the route was reasonably representative was wrong.

(e) Dr McLean relied on two 41-second segments of raw FORS data as representative of the likely vibration and handling characteristics of the Lowes’ vehicle under normal operating conditions and compared this data with data relating to the benchmark vehicle BM1. There were 12 files of data collected on the Lowes’ vehicle in the FORS Inquiry. The segment, which Dr McLean identified as the "Tooborac to Seymour" section came from file number 12. His evidence as to how he selected this data was, as the respondent submitted, contradictory and confusing. He contended that he selected a particular section of the road on the basis of its correlation with the NRM value. In cross-examination, however, he accepted that the correlation of two sections of road on the basis of their NRM values alone was unsound. He accepted that the NRM measurement could provide only a very rough approximation as to the state of a road since it measured only one characteristic (bumps or displacements measured as the displacement of the rear axle relative to the chassis) and did not provide any information as to undulations, potholes, camber and the like.

(f) Dr McLean’s secondary position was that he selected the data because it exhibited "interesting accelerations", but he conceded that he could not determine whether the data selected and identified as the "Tooborac to Seymour" was in fact this segment of road. He provided no adequate explanation as to why he considered the segment of the data relating to the Lowes’ vehicle to be typical.

(g) Dr McLean compared the two 41 second segments of data relating to the Lowes’ vehicle with the data relating to BM1. As previously noted, he conceded that this latter data was distance averaged over the whole FORS test route, and that he was not comparing like data.

(h) Dr McLean ultimately accepted that the analysis of speed and steering wheel variation measurements prepared by Dr Morrison from the data in file 12 showed that the vehicle was in fact travelling at a constant speed of around 100 kilometres per hour and had minimal steering wheel variations. He further accepted that such measurements would be inconsistent with likely measurements for speed and steering wheel variations on the Toorborac to Seymour road and that it was possible that the data in file 12 related to the Hume Highway.

(i) Finally, Dr McLean conceded that the period of data analysed by him did not accord with the requirements stipulated by a note to clause 5.5 of the ISO Standard 2631-1: 1997. He said that he did not know this earlier because he had been using a copy of the Standard held by the University of Wollongong, which may have been out of date. As the respondent submitted, this comment did not reflect well on his scholarship and expertise.

(j) Although Mr Lambert criticised the instrumented testing in the FORS Inquiry, he did not provide any evidence as to how these alleged deficiencies affected the results.

(k) Whilst Mr Lambert criticised the FORS Report for ignoring Mr Lowe’s claims about low component life, it is clear that alleged component failure was not within the scope of the FORS Inquiry. There is no evidence for his statement that the FORS Inquiry preferred the views of the manufacturers to that of the truck owners. Dr McLean’s complaint that the FORS Report did not compare "like vehicles with like vehicles" did not lead to a result supportive of the applicants’ case.

227 Although not apparent from his documented curriculum vitae, Mr Lambert gave evidence at the trial that, through his involvement with the Australian Standards Committee in 1978, he had undertaken research in the field of vibration and its likely effects on health. As already noted, he accepted that the FORS Report found that the Lowes’ truck did not exhibit any adverse vibration behaviour. Mr Lambert maintained, however, that Roaduser’s analysis of vibration was deficient because it did not include lateral acceleration along the x-axis. This was the result, so Mr Lambert said, of Roaduser economising by buying a data logger that could not collect this data. On this point, however, I accept the evidence of Dr Morrison, referred to previously.

228 Mr Lambert also stated that both the vertical and fore-aft whole-body vibration (‘WBV’) measurements recorded for the Lowes’ truck "at 12 hours per day exposure (the legal limit) would have been towards the top of the health caution zone". He referred to the ATSB-ARRB report: see above. This report, which followed the FORS Report, sought to determine the extent to which vibration in heavy vehicle cabs contributed to driver fatigue or might constitute a health hazard. It also sought to establish and recommend vibration thresholds for fatigue and health hazards. Reference to the findings of the ATSB-ARRB report shows that WBV measurements of the Lowes’ vehicle were better than average when compared with the typical population of vehicles.

229 At trial Mr Lambert relied on the fact that the ISO Standard 2631-1: 1997 guidelines for measuring the effect of vibration in respect of comfort recommended that a total vibration dose value be calculated using measurements from the three axes. As the respondent pointed out, however, at the meeting of experts held pursuant to my orders of 10 February 2006, the experts (including Mr Lambert) agreed that the main ‘vibration’ issue was whether vibration levels with respect to the Lowes’ vehicle were excessive compared to the general population of comparable Australian trucks with respect to, amongst other things, productivity and health. Comfort was not mentioned in the Joint Statement of Experts filed on 12 July 2006, in accordance with my orders. The applicants adduced no evidence that would permit the Court to assess the relationship, if any, between comfort and productivity.

230 Ultimately, Mr Lambert failed to identify any quantifiable outcome that might have resulted from what he suggested were potentially adverse excitation activity.

231 If his evidence were admissible (which I find it was not), Dr McLean did not take the applicants’ case with respect to vibration any further. His primary contention was that the FORS Report failed to consider the ‘harmonic signatures’ of the vehicles being tested. His theory as to the harmonic signature of the Lowes’ vehicle was based on his assumption that the length of the chassis was 214 inches. He accepted that his analysis would be incorrect if the chassis length was different. The chassis length was apparently only 210 inches: see RGL 4 ‘New Truck Proposal’. In any case, Dr McLean had never tested his theories by reference to actual vehicles. Further, his evidence that chassis rail cut-outs may affect stiffness or flexibility of chassis rails and the natural frequency of the beam had no empirical support. I prefer the evidence of Mr McPherson in this regard. As already noted, Mr McPherson stated that cut-outs were common and did not have any adverse affect on the chassis.

232 Dr McLean also said that the FORS Report had paid "minimal attention to the significance of the F26 frequency weighed set pad vibration measures". As to this Dr Morrison said (and I accept) that the results for the Lowes’ truck were the second lowest of the eight tested vehicles and he could discern no failure with regard to the FORS Report’s treatment in this regard. In cross-examination, Dr McLean was unable to identify any academic research or industry practice that would support his theory that there was a link between NRM value and the "harmonic signature" of a vehicle, as his report alleged. In cross-examination, he conceded that the NRM value cannot provide a fixed excitation frequency due to the randomness of spacing between road bumps and corrugations. Dr Morrison’s evidence (which I accept) was that there was no basis for Dr McLean’s linking of potential vibration exposures with NRM values.

233 I have already referred to Mr Lambert’s comments on ride and handling in his report on the ‘inspect and drive’ test. Referring to the FORS Report, Mr Lambert opined that the applicants’ vehicle performed well on standard roads and badly on poor roads. The fact was, however, that, as noted above, the Report made a contrary finding.

234 Mr Lambert’s criticism of the air suspension system also lacked an empirical basis. He gave evidence that the bump steer coefficient was exacerbated by the air suspension system, which can be accepted, but he did not refer to the findings of the FORS Report with respect to drive axle steer angle. This, as Mr Lambert effectively acknowledged in cross-examination, indicated that there was in fact no problem with the air suspension system and the height control valve. He maintained that the fixing of both differential transverse rods to the same side of the chassis in the Lowes’ truck was a design fault, but he did not provide any specific evidence, in the form of test data or the like, as to the effect of this on handling.

235 As I have said, Dr McLean’s evidence on handling, panhard rods and torsional flexibility was inadmissible, but if it were not, it did not advance the applicants’ case. On examination, Dr McLean’s statement that "the handling characteristics of the Lowe truck are grossly more adverse than those exhibited by BM1" is mistaken. Dr McLean conceded that he had done no test in respect of transverse rods. His opinions about torsional flexibility were not supported by any empirical data.

9. THE APPLICANTS’ CASE ON LIABILITY ASSESSED

236 The critical question is whether or not the applicants have shown, on the balance of probabilities, that the truck was not fit for the purpose of interstate long-haul goods transport. This calls for an objective assessment of the vehicle, although evidence of subjective impressions may inform this assessment.

237 The applicants bought a new truck for this purpose. The applicants said (and the respondents did not deny) that it was "top of the range". The respondent described it as a Mack CH Elite Highway prime mover. In the circumstances, in order to be fit for the purpose of interstate long-haul goods transport, the truck was required to be able to transport the applicants’ loads over long distances safely, reliably and efficiently.

238 The heart of the applicants’ case was that the truck was not fit for long-haul goods transport because it had vibration and handling problems that made it unsafe, unreliable and inefficient. Vibration problems, in the context of this case, included ‘rough ride’. Handling problems included darting and wandering. The applicants also alleged other defects in the truck. I also discuss them briefly below.

239 In support of their vibration and handling claims, the applicants relied on the evidence of Mr Lowe, Mr Pasfield and Mr Lambert (and to a lesser extent Mrs Lowe) to the effect that each had experienced rough ride and handling problems. I have already indicated that I would not place any great weight on Mr Pasfield’s evidence and that I would not regard Mr Lowe’s evidence as entirely reliable. As for Mrs Lowe and Mr Lambert, I do no more than refer to my comments above.

240 I have found that Mr Lowe complained of rough ride and handling problems from the very beginning of his operation of the truck. His complaints about rough ride were persistent. He made fewer complaints about handling, although he (and Mr Pasfield) made some occasional references to ‘darting’.

241 Notwithstanding Mr Lowe’s complaints, there was little, if any, major work done on the truck in the first months of its operation. There was some work on the air bag suspension system in April 1998, but Mr Lowe conceded that he did not thereafter experience problems with the air bag suspension. There was a good deal of work done on the vehicle in October 1998, but handling and vibration were not expressly mentioned. "Rough ride" headed the list in February 1999, but again there was no specific mention of handling or vibration. The first mention of "severe vibration (downhill 1 2 3 gears)" (as opposed to ‘rough ride’) appeared in the Lowes’ list of 31 March 1999. Bearing this in mind, and for the reasons already stated, whilst I accept that Mr Lowe had an honest belief that his vehicle had vibration problems, I would not accept his evidence as reliable evidence that the vehicle in fact had vibration or handling problems.

242 I accept that, on the ‘inspect and drive’ test in March 1999, Mr Lambert, then a passenger, considered that he experienced vibration and handling problems. As I have already said, however, his comments at the time were his subjective impression, without the benefit of instrumented testing, and must be considered in the context in which they were made. As I have said, to the extent the observations in the ‘inspect and drive’ report are inconsistent with the later results of the instrumented testing, the latter are to be preferred, because they provide quantifiable comparative data of an objective kind.

243 Further, as regards subjective impression, it must be recalled that a number of Mack employees took the truck for test-drives, but none could detect the rough ride and handling problems of which Mr Lowe complained. Mr Buttignol and Mr Heironymus were passengers in the vehicle when Mr Lowe took them on test-drives in August 1998 and February 1999. Neither detected any problem with rough ride (or vibration) or handling. Subject to the reservations expressed above, they were both credible witnesses.

244 Finally, to the extent that it matters, bearing in mind that his use of the truck – for short-haul, high COG loads, and at lower speeds with frequent slowing and stopping – was different from Mr Lowe’s use, the present owner’s experience did not support the applicants’ case. Mr Jenkins, who had purchased the truck from AGC after AGC had repossessed it from the Lowes, made no complaint at all about the truck. Mr Jenkins was an honest and credible witness.

245 Plainly enough, perceptions about the ride and handling of the Lowes’ vehicle differed markedly. There is ultimately no reason to prefer the evidence of Mr Lowe, Mr Pasfield or Mr Lambert over the evidence of Mr Buttignol or Mr Heironymus. Further, as indicated, there were deficiencies in the applicants’ and Mr Pasfield’s evidence, which caution against too ready acceptance.

246 The applicants contended that Mr Lowe had a "litany of complaints" about the truck and that they were so unhappy with it, they offered to return it on a walk-away basis. There is no doubt that Mr Lowe made a great many complaints about the vehicle. Also as indicated above, I accept that Mrs Lowe spoke to Mr Kumnick about returning the truck in October 1998. These facts do not, however, establish that there was in fact any defect of the kind alleged. The applicants also argued that the truck had a poor service history, which was consistent with there being undue vibration.

247 I am not satisfied that the applicants have shown, on the balance of probabilities, that the truck had a poor service history and, even if it did, that this history was due to vibration problems in the truck.

248 The applicants relied on certain comments of Mr Heironymus and Mr Buttignol in cross-examination. Mr Heironymus’ comments supported them to some extent. Mr Heironymus agreed that the "history [of the truck] would be below average". He accepted as "fair comment" that the truck had "a history of these little niggly, bad luck, odd things coming up continually". I do not consider, however, that Mr Buttignol’s evidence is in the same vein. When Mr Buttignol was asked about the service history of the vehicle, he insisted that "every time that truck came in ... we rectified those problems, that should have gone out without that problem in the truck". When asked whether the truck was "close to being perfect", he answered, "it falls between a range". There is no objective evidence that would permit me to say which interpretation of the truck’s service history is to be preferred. There are a number of factors that make this evaluation difficult, if not impossible.

249 During the period of Mr Lowe’s operation of the truck, it completed every trip. In all, in the first year of Mr Lowe’s operation, the truck completed about 250,000 kilometres, which even Mr Lambert conceded was "well above average". Servicing and repair did not significantly interfere, if at all, with the transportation of goods. For most of the period that Mr Lowe operated the truck, the truck was covered by Mack’s 12 month (unlimited distance) warranty, providing for free-of-charge repair or replacement of vehicle components. The truck was taken in for service and repair on many occasions and for most of the time at no cost to Mr Lowe. He was, as I have already observed, very particular about the truck, and I have no doubt that he took advantage of the warranty cover to ensure his truck was kept in the best condition possible.

250 Many of the repair or replacement items done by Mack were for comparatively minor items. A proportion of the items were self-evidently for wear and tear on a vehicle travelling great distances and carrying heavy loads. At least some of the repairs were, as Mack said, consistent with normal maintenance and service issues. There were two instances in which Mack did work on the applicants’ vehicle and similar vehicles as part of a program of component upgrading (replacement of bonnet mounts and steel springs). Further, there were numerous occasions when proper assessment showed Mr Lowe’s complaints about the vehicle to be unfounded.

251 Mr Heironymus gave evidence (which I accept) that Mack's general policy with regard to complaints was to try to keep the customer happy "and if that entailed doing work that we thought would ... help address the complaint, then that is what we did". He gave evidence in cross-examination that sometimes Mack's service department would perform work on a vehicle to try to address a customer's complaint and not because they knew it would fix a problem, as for example, in the case of replacing alternative shock absorbers. It is difficult to say to what extent this policy accounted for the repairs and replacements on Mr Lowe’s vehicle.

252 Doubtless, given the mileage, there was on numerous occasions a real need for repair and replacement. Mack worked assiduously, however, to meet Mr Lowe’s complaints about the truck. The FORS Inquiry may have been a factor in the steps Mack took in January to March 1999 to bring the truck up to Mr Lowe’s expectations, but it can have been no more than this, because it is clear that Mack’s repair and replacement work on the truck had been on-going and dated from well before the FORS Inquiry. Whether there were other factors apart from wear and tear (for example, speed) contributing to component or other failure remains a matter for speculation. Mr Lowe was unable to produce relevant driver log books, which may have assisted in this regard.

253 In the circumstances of this case, it is difficult, if not impossible, on the evidence as it stands, to determine whether or not Mr Lowe’s multiplicity of complaints about the truck in fact reflected an abnormally high level of items requiring mending, replacing or restoring. Even if I were so satisfied, however, there is no evidence that would lead me to conclude that the cause of all these things going wrong was a problem with vibration. As already indicated, Dr McLean’s evidence, even if admissible, would not so persuade me. Nor was I so persuaded by Mr Lambert’s evidence.

254 The only objective, independent, and contemporaneous testing of the applicants’ vehicle was done in the course and for the purposes of the FORS Inquiry. Roaduser carried out instrumented testing to assess vibration and handling problems (as well as chassis flexibility and airbag suspension issues). Though not perfect, the instrumented testing for vibration and handling was extensive. The measurements have not been shown to be inaccurate. I am not persuaded by the evidence of Mr Lambert (or Dr McLean) that the FORS Inquiry and Report were fundamentally flawed.

255 I accept that, as the applicants said, the FORS Inquiry and Report were looking at a broader problem than that which arises in this case, because the Inquiry was seeking to identify the possible existence of systemic problems for vehicle manufacturers and road safety authorities, and not to assess fully the trucks involved in the testing procedures. I accept too that the circumstances of the instrumented testing did not precisely replicate the applicants’ use of the truck. The Inquiry replicated the applicants’ use of the truck as nearly as was reasonably practicable having regard to the objects of the Inquiry. The results of the instrumented testing are, however, the only available results of instrumented testing on the applicants’ vehicle. The results are plainly relevant to the applicants’ complaints about their vehicle. In summary, while they may not be the perfect reflection of the vehicle when it was being operated by Mr Lowe, the results set out in the FORS Report constitute the best available evidence. As we have seen, these results do not support the applicants’ case about the ride and handling qualities of the vehicle.

256 The applicants argued that the fact that a problem did not manifest itself for the purposes of the FORS Inquiry and Report does not lead to the conclusion that there were no problems with the truck. Even if accepted, this observation falls well short of providing a basis for a positive finding that there were in fact problems of the kind they alleged. It is also true that the instrumented testing was principally designed to provide comparative data about the group of vehicles that were subject to the testing. Save for the guidance provided by ISO Standard 2631-1: 1997 or the ATSB-ARRB report, there was no standard for a good, as opposed to bad, truck. It may be that, as the applicants submitted, the comparative data did not establish that their vehicle was good for the purpose of their operation and that the problems with it were manifest at certain times in certain conditions. In the absence of evidence (or sufficient evidence), however, neither of these observations provides a ground for a positive finding that the truck was unfit for their purpose.

257 The FORS Report findings on vibration provide the only objective assessment of ride quality available to the Court today. There was nothing in the FORS Report to support the conclusion that the ride of the applicants’ vehicle was ‘rough’ in that it was adversely affected by vibration. This is confirmed by the evidence of Mr Morrison and Mr Lambert.

258 Further, notwithstanding the recommendation in the FORS Report that Mr Lowe be notified of the test results in relation to the increased steering effort required for his vehicle on a sector of the test route, on the critical data regarding drive axle steer angle, the applicants’ vehicle performed better than two benchmark vehicles and all but one of the other complainants’ vehicles. I accept Mr Morrison’s evidence in this regard.

259 The applicants have not, therefore, satisfied me, that, on the balance of probabilities, the truck suffered from rough ride, vibration or poor handling characteristics. The pleaded defect of "severe vibration (downhill 1^st, 2^nd and 3^rd gears)" is not made out. Mr Lowe’s evidence was that any such problem was manifest only once and was rectified by the replacement of the engine mounts.

260 As noted early in these reason, the applicants alleged many other defects in the truck. As we have seen, the service history of the truck over time involved work on most, if not all, of these items, as a result of which Mack rectified any item needing repair or replacement. There is no evidence that these items separately or together made the truck unfit for the applicants’ purpose. I note some particular items since the applicants made special mention of them. They are:

1. Chassis bowed and bent – The applicants alleged that the chassis was bowed and bent. This claim is not made out. Mr Lambert’s evidence was that he undertook a test at Rick Cobby’s depot showing the chassis was bent, but he conceded in cross-examination that prior to testing the chassis he had not checked surface flatness and tyre air pressure, which were critical to the integrity of the test. The result of Mr Gentilcore’s chassis straightness test on 15 April 1999 showed that, save for a minor 3 millimetre variation, the chassis was straight. Mr Jon McLean gave evidence of a test on 14 April 1999, which showed a similar result. Mr McPherson stated that he examined the vehicle at around 800,000 kilometres (when it had passed out of the applicants’ hands) and detected no bend. He further stated that once chassis rails are bent, they stayed bent.

2. Axle camber wrong – The applicants alleged that the axle camber was wrong for Australian conditions. I accept the evidence of Mr McPherson and Mr Wallace that the axle is cambered for Australian conditions. There was evidence that the applicants’ vehicle had undergone a very minor or slight corrective adjustment. There was no evidence that this would have affected the operation of the truck in any material way.

261 The applicants’ case was that the defects in the truck were caused by: (1) the failure of the design and construction of the vehicle to meet the requirements of the use of the vehicle for long-haulage interstate transport; and (2) the defective or inadequate examination and testing of the vehicle and its components. There are evident difficulties with the pleading. At this point, they were difficult to follow and in part circular. Since I have rejected the applicants’ case on the defects, it is strictly unnecessary to deal with this part of their case.

262 Since the matter occupied some time, however, I set out briefly the evidence concerning the alleged design and construction failures.

1. Torque rods – The applicants relied on the fact that the transverse rods were both mounted to the same side of the chassis. The applicants presented no test data or actual evidence as to the effect of transverse rods being mounted on the same side of the chassis as opposed to one either side. Mr McPherson gave evidence (which I accept) that the movement of the transverse rod is extremely small and that it made little or no difference whether the torque rods were mounted on the one side as opposed to being on either side. Mr Morrison gave evidence to similar effect. I am not persuaded by Mr Lambert’s evidence that the location of the transverse rods on the applicants’ vehicle had any material effect on the vehicle’s stability.

2. Uneven distribution of air pressure – The FORS Inquiry tested the issue of air pressure. The results are set out in Table 36 of the FORS Report and are not indicative of the alleged failure. There is no or no sufficient evidence to substantiate the allegation.

3. Variable air bag pressure – Table 36 of the FORS Report does not support this allegation. The air pressure of the applicants’ vehicle is constant with an almost constant deviation for the Euroa and Nagambie sections. There is no or no sufficient evidence to substantiate the allegation.

4. Adverse operation of right height control valve – There is no or no sufficient evidence to substantiate the allegation.

5. Driveline torsional vibrations contributing to premature component failures – I refer to the discussion above. As already stated, there is no or no sufficient evidence to substantiate the allegation.

6. Deficiency in pneumatic dampening of air suspension system – Table 36 of the FORS Report does not support this allegation. There is no or no sufficient evidence to substantiate the allegation.

7. Adverse periodic phenomena occurring in the sub-harmonic frequency band – There is no or no sufficient evidence to substantiate the allegation.

8. Air suspension system fails to dynamically load share leading to high dynamic wheel loads and high dynamic service loads – Table 36 of the FORS Report does not support this allegation. There is no or no sufficient evidence to substantiate the allegation.

9. Cut-out to the chassis rail top and bottom flanges in the vicinity of the rear engine mounts adjacent to the air compressor thereby diminishing the stiffness of the chassis and lowering the harmonic signature of the prime mover – Even if Dr McLean’s evidence were admissible, the applicants have not provided any empirical evidence as to the effect of the chassis rail cut-outs on the ‘harmonic signature’ or on vehicle behaviour. Mr McPherson gave evidence (which I accept) that cut-outs were commonplace and had no known adverse effect.

10. Inadequate front engine mounting design – There was evidence that Mack rectified a front engine mount and the issue did not arise again.

11. Steering mechanism exhibiting excessive bump steer – Table 30 of the FORS Report showed that the applicants’ vehicle had similar or better results than the benchmark vehicles and the other complainants’ vehicles.

12. Significant out scalloping and uneven wear of steer tyres – The applicants complained about the steer tyres. On the evidence of Mr Lowe, the steer tyres provided average or slightly above average life and the drive tyres provided well above average lifetime.

13. Adverse kinematic geometry – This allegation was not pursued.

14. Vehicle handling erratically and unpredictably and exhibiting excessive response to flexible chassis vibrations, torsional loading and bogie axle roll steer – There was no evidence of such phenomena.

15. Engine and cab sleeper cab mount dynamic parameters inappropriate for vehicle’s harmonic signature – There was no evidence of such a phenomenon.

16. Engine and cab sleeper cab mount dynamic parameters inappropriate for vehicle’s harmonic signature – There was no evidence of such a phenomenon.

17. Inadequate design and operation of drivers seat mechanism – There was no evidence of this.

18. Cyclic twisting of primer mover chassis – There was no evidence of such a phenomenon.

19. Roll centre of front prime mover raised by high centre of gravity engine and cabin affecting efficiency of front shock absorbers – There was no evidence of such a phenomenon.

20. Unequal pressure in suspension – Table 36 of the FORS Report does not support this allegation. There is no other evidence to substantiate the allegation.

21. Poorly matched harmonic signature causing adverse frequency phenomena – I refer to the discussion of Dr McLean’s evidence. Even if his evidence were admissible, there was no evidence to support the allegation or to establish that it resulted in any adverse behaviour in the applicants’ truck. Furthermore, Mr McPherson gave evidence that the issue of the ‘harmonic signature’ or vibration characteristics of a vehicle would be considered in the development of heavy vehicles.

263 At trial the applicants adduced no evidence to substantiate the allegation that there was defective or inadequate examination and testing of the prime mover and its components. As we have seen, the respondents called Mr McPherson to give evidence of his experience in the testing of prime movers both in Australia and the USA.

264 It follows from the above discussion that the applicants have not shown that, on the balance of probabilities, the truck was not of merchantable quality and was unfit for the purpose of interstate, long-haul goods transport. They have not shown that the truck was other than as represented to them by Mr Kumnick in March 1998. In particular, they have not established that his statement that the truck would be safe and reliable for at least 800,000 kilometres was misleading or deceptive, or likely to mislead or deceive. If this were a representation with respect to a future matter that attracted s 51A of the TPA, there is no doubt that the respondent adduced more than enough evidence that it had reasonable grounds for making the representation.

265 I do not consider that anything ultimately turns on the so-called Browne v Dunne points referred to in the applicants’ closing written submissions. The applicants did not elaborate on them in closing address.

10. DAMAGES

266 It follows that the applicants have not established any entitlement to the relief they seek. I would express briefly my conclusions on the matter of damages in the event that I was wrong.

267 Had a breach of the condition created by s 71 occurred, would the applicants’ damages claim have been made out? The applicants’ statement of claim sought damages or compensation by reference to various provisions of the TPA, including ss 73, 75AD, 82 and 87. At no stage in the proceeding, however, have the parties referred again to s 73. The authorities are clear that no action for damages lies under s 82 for breach of a condition implied by s 71 of the TPA: see Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136 ("Austral") at 141 per Gleeson CJ, Gummow and Hayne JJ, citing Brennan J in Arturi v Zupps Motors Pty Ltd (1980) 49 FLR 283 at 285-286. Provisions such as ss 75AD and 87 are of no assistance in this context. I accept, however, that the Court may award damages in respect of a breach of a s 71 condition by virtue of s 39B(1A)(c) of the Judiciary Act 1903 (Cth). In Austral, at 141, the joint judgment said:

The claim in contract for damages for breach of obligations imposed by provisions such as ss 71 and 74 of the Trade Practices Act involved obligations that are statutorily created and take effect by a legal fiction, namely that the parties made a contract including the relevant obligations. That is how Brennan J analysed the matter in Arturi v Zupps Motors Pty Ltd. It follows that a party claiming damages for breach of such an obligation asserts a right which owes its existence to federal law thereby, in a State court, attracting the exercise of federal jurisdiction invested under s 39(2) of the Judiciary Act.

If, as the High Court stated, a State court deciding a s 71 claim is exercising federal jurisdiction under s 39(2) of the Judiciary Act, then it follows that a federal court can entertain the same claim under s 39B(1A)(c) because the obligation created by s 71 "owes its existence to federal law". See also LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575. In any event, the applicants’ s 52 claim would provide an independent basis for jurisdiction over the s 71 claim.

268 The measure of damages for a breach of an obligation created by s 71 of the TPA is the contractual measure, namely, the estimated loss directly and naturally resulting in the ordinary course of events from the breach. The prima facie measure of that loss is "the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty": compare Hadley v Baxendale [1854] EWHC Exch J70; (1854) 9 Ex 341 at 354; (1854) 156 ER 145 at 151; AFA Electronics Pty Ltd v Strathfield Group Wholesale Pty Ltd [2001] VCS 289 at [88], discussing s 59 of the Goods Act 1958 (Vic). Section 52 of the Sale of Goods Act 1895 (SA) is to similar effect. In other words, prima facie, had they succeeded on liability, the Lowes would have been entitled to the difference between the value of a truck fit for the purpose of long-haul goods transportation and the value of the truck they actually received and used in their business. The applicants did not, however, seek damages on this basis. There was no evidence of this amount.

269 Effectively, the applicants sought damages under the second limb of Hadley v Baxendale for the loss as may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it. It is on this basis, for example, that they claim damages in respect of loss of earnings: compare Burns v MAN Automotive (Aust) Pty Ltd [1986] HCA 81; (1986) 161 CLR 653 at 667-668; Hodgson & Hodgson v Morella Pastoral Co Pty Ltd (1975) 13 SASR 51 at 66-67; NEA Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106 at [305] per EM Heenan J, affirmed in NEA Pty Ltd v Magenta Mining Pty Ltd [2007] WASCA 70. A claimant is of course under a duty to take all reasonable steps to mitigate the loss caused by the breach.

270 In order to be compensated for any loss and damage under s 82(1) of the TPA in respect of a claim under s 52 of the TPA, the applicants needed to establish a causal connection between the respondent’s conduct (here, the alleged misrepresentation) and the loss for which they sought compensation: see, e.g., Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 525-526 per Mason CJ, Dawson, Gaudron and McHugh JJ and Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 469-470 per Gleeson CJ, 480 per Gaudron J, 489 per McHugh J and 509 per Hayne J.

271 For present purposes, it is sufficient to refer to the Full Court’s discussion in Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 at 330 (per Wilcox, Branson and Sackville JJ) regarding the general principles governing damages under the TPA. Their Honours said:

Care must be taken to examine the facts of the particular case and not to determine cases by placing them into preconceived categories. However, bearing that caution in mind, the authorities to which we have referred support several general propositions relevant to the present case:

• in assessing damages under s 82 of the TPA Act, the principles applicable to actions for deceit, being closely analogous, provide a useful guide in most cases

• in a case where something is purchased in consequence of a misrepresentation, the prima facie measure of damages is the difference between the price paid and the true value of the thing. But this is not an inflexible rule and is merely illustrative of a more general proposition, namely, that the purchaser is entitled to recover as damages, a sum representing the prejudice or disadvantage he has suffered in consequence of altering his position under the inducement of the respondent’s misrepresentation. That general principle applies to other claims, such as those brought by lenders or mortgage insurers who have entered into transactions in reliance on false or misleading representations

• a person induced to enter a transaction by misrepresentations, generally speaking, must show that the losses claimed are related to the misrepresentation. It is not enough simply to show that the transactions was induced by the representation and the losses would not have occurred but for the transaction. The loss must flow directly from the inducement

• where property acquired in a transaction induced by a misrepresentation subsequently declines in values, damages are not awarded in respect of the decline if it is attributable to an independent, extrinsic or supervening cause

• if the applicant would have entered into the relevant transaction, even if the misrepresentation had not been made, any losses flowing from the transaction as such cannot be said to flow directly from the inducement. In such a case the applicant would have been exposed, in any event, to the precise risk that ultimately eventuated.

See more recently Zuvela v Geiger [2007] WASCA 138 at [41]- [43] per EM Hennan AJA.

272 Gurdag v BS Stillwell Ford Pty Ltd (1985) 8 FCR 526 is illustrative of these principles in a context similar to the present. Forster J upheld the applicants’ claim in that case that the vendor of a truck had falsely represented its condition to the applicants, who had made known their intention to use the truck for the interstate transport of perishable food. His Honour awarded damages under s 82 of the TPA, comprising: (i) the difference between the purchase price of the vehicle and its true value at the date of purchase; (ii) expenditure reasonably undertaken to rectify faults relating to the misrepresented condition of the vehicle, plus interest thereon, irrespective of whether the rectification work was successful; and (iii) loss of profits for a period of twelve months less the costs of modifying the vehicle to suit the applicants’ intended use. His Honour held that the applicants could not reasonably expect to be compensated for loss of profits indefinitely or for a long period, given the age of the vehicle, even if it had been in the represented condition.

273 By particulars of damage dated 25 November 2002, the applicants gave particulars of loss and damage as follows:

(a)	loss of actual net income from 1 April 1998 to 21 January 2000	$ 52,632.00
(b)	loss of net income of $75,000.00 per annum from 21 January 2000 to 21 November 2002	$212,500.00
(c)	loss of value of the truck	$ 74,000.00
(d)	loss of future income from 21 November 2002 to 30 March 2003	$ 30,288.51
(e)	loss of future income from 31 March 2003 to 30 March 2014	$426,000.00
		$795,420.51

274 The approach taken by the applicants’ expert accountant, Bruce Wilkinson, was different from that foreshadowed in these particulars. The applicants made no application to amend. Mr Wilkinson’s report was directed mainly to expected profit and loss. For the period 1998-2003, he concluded that loss of income was about $429,996; for 2003-2014, about $73,514; and for 2005-2014, about $330,745. He also noted a figure of $6,627 as increased costs and a $145,000 loss on the sale of the applicants’ house. The respondent relied on the evidence of James Scott, who also prepared an accounting report as "a critique and responsive report to the report of Peter Wilkinson".

275 For numerous reasons, I would not accept Mr Wilkinson’s assessment of the applicants’ loss. Broadly speaking, my reasons include that: (1) key assumptions depended on the applicants’ unsubstantiated allegations of fact; (2) key assumptions had no reasonable basis in the evidence or elsewhere; and (3) key assumptions were contrary to the facts even as the applicants alleged them to be.

276 There was in fact little evidence that repairs on the applicants’ truck had interfered much, if at all, with their business. The evidence at trial failed to establish that the applicants had lost the 73 days between 6 April 1998 and 28 December 1999, as they claimed in their particulars of loss and damage. Claims made in respect of some days were plainly unjustified.

277 At trial, the applicants included a claim for the alleged loss made on the sale of their house on 31 May 1999. This claim was not a part of their pleadings. I would reject it on the basis that they failed to show that they were compelled to sell the house by reason of Mack’s conduct and/or the defective condition of the truck (assuming, contrary to the case, that they had established their case on liability).

278 In their particulars of loss and damage, the applicants claimed the loss of value of the truck. The applicants adduced no evidence of this. As indicated earlier, the applicants abandoned a claim for damages in respect of personal injuries. Their general damages claim lacked any satisfactory evidence and was not apparently pursued.

279 For the reasons stated, I would dismiss the application. I would give the parties an opportunity to file written submissions on costs.

I certify that the preceding two hundred and seventy-nine (279) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:
Dated: 4 April 2008

Counsel for the Applicant:	Mr P Lithgow and Mr J Ribbands
Solicitor for the Applicant:	Maitland Lawyers
Counsel for the Applicant:	Mr A T Schlicht and Ms M Schilling
Solicitor for the Applicant:	Clayton Utz

Date of Final Submissions:	22 June 2007
Date of Judgment:	4 April 2008