Middleton v Erwin [2009] NSWSC 108 (5 March 2009)

Last Updated: 5 March 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Middleton v Erwin [2009] NSWSC 108


JURISDICTION:


FILE NUMBER(S):
20238 of 2006

HEARING DATE(S):
18, 23, 24 and 26 February 2009

JUDGMENT DATE:
5 March 2009

PARTIES:
Glen Stuart Middleton (Plaintiff)
Alan John Erwin (First Defendant)
Iveco Trucks Australia Limited (Second Defendant)

JUDGMENT OF:
Harrison J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
D A Wheelahan QC with A R G Johnson (Plaintiff)
R R Bartlett SC with J V Gooley (First Defendant)
R A Cavanagh (Second Defendant)

SOLICITORS:
Baldock Stacy & Niven (Plaintiff)
TL Lawyers (First Defendant)
Moray & Agnew (Second Defendant)


CATCHWORDS:
NEGLIGENCE – motor vehicle accident – collision between semi-trailer and car when the steering in the semi-trailer failed without warning – accident occurred as the result of a mechanical failure - breach of duty properly to maintain the steering mechanism so as to keep it in a serviceable condition admitted – steering failure caused by wear in a pinch bolted universal joint – CAUSATION – whether defect discoverable upon ordinary reasonable inspection – whether proper service and maintenance would have revealed the defect in the absence of a specific problem with the steering mechanism – more than visual inspection required – proper service and maintenance would have revealed the defect – accident caused by breach – PRODUCT LIABILITY – whether manufacturer of semi-trailer liable for defective design of universal joint – alternative welded joint available – where no previous indication of problems with component – where steering mechanism in the semi-trailer recognised as the industry norm – interference with adjustment of the pinch bolt by third party – failure caused by wear resulting from incorrect adjustment – no obligation on manufacturer to produce a product that was accident proof or which would not wear out – no basis for conclusion that conformity by manufacturer to normal practice fell short of what reasonable care required – no breach of duty by manufacturer – TRADE PRACTICES - Trade Practices Act 1974 – ss 75AD and 75 AE – cross-claim for contribution by negligent owner of semi-trailer against manufacturer – cross-claim dismissed - no defect and loss related to workers’ compensation under s 75AI.

LEGISLATION CITED:
Civil Liability Act 2002
Trade Practices Act 1974

CATEGORY:
Principal judgment

CASES CITED:
Adelaide Chemical & Fertilizer Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514
Bicer v McDonalds Australia Ltd [2001] NSWSC 218
Bull v Rover Mowers (Aust) Pty Ltd [1984] 2 Qd R 489
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Flounders v Millar [2007] NSWCA 238; (2007) 49 MVR 53
Lanza v Codemo [2001] NSWSC 72
Suosaari v Steinhardt [1989] 2 Qd R 477

TEXTS CITED:


DECISION:
1. Verdict for the plaintiff against the first defendant.
2. Judgment for the second defendant on the plaintiff's claim.
3. Dismiss the first cross claim.
4. I will hear the parties on the question of costs.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

HARRISON J

5 March 2009

20238/06 Glen Stuart Middleton v Alan John Erwin & Iveco Trucks Australia Limited

JUDGMENT

1 HIS HONOUR: On 21 November 2002 the plaintiff was severely injured driving to work when an International Transtar F4670 prime mover and semi-trailer ("the truck") driven by the first defendant collided with his car on the Bogan Road near Parkes. The truck was travelling in the opposite direction and crossed onto the incorrect side of the road. The accident was caused by a failure of the steering mechanism in the truck, which was manufactured by the second defendant. Damages were agreed on the first day of the hearing. The issues remaining for determination are therefore now limited to the question of the defendants' liability (if any) to the plaintiff and to resolution of cross claims filed by each of the defendants against the other.

2 The plaintiff alleges that the first defendant failed properly to service or maintain the truck. In particular, the plaintiff alleges that the first defendant failed to maintain the steering mechanism and other associated mechanical parts or to inspect them in a way that would and should have revealed whether or not a clamping bolt in a universal joint had been adjusted to a torque setting that would have prevented an intermediate shaft from becoming detached from the joint leading to a loss of control. This is necessarily explained and considered in more detail later in these reasons. Although the claim against the first defendant as originally pleaded included allegations relating to the way in which he drove, managed and controlled his truck, these were abandoned at the trial (if not well before) in deference to an uncontroversial recognition that the collision was caused by mechanical failure unrelated to any aspect of his driving.

3 The plaintiff alleges that the second defendant manufactured the truck with design defects in the steering mechanism that rendered it liable to become disengaged either as the result of a loose universal joint clamping bolt or loose bearing grub screws or both. There was no claim that it was constructed or assembled poorly, as opposed to complaints about its design. This is also necessarily explained and considered in more detail later in these reasons. The plaintiff alleges in addition that the second defendant failed to produce and supply an owner's or operator's manual or handbook for the truck that specified that regular inspection and/or maintenance of the steering mechanism and/or all steering linkages was required. A claim relying upon s 75AD of the Trade Practices Act 1974 was abandoned.

4 By his amended first cross claim the first defendant claims contribution from the second defendant alleging that it was negligent in the same respects pleaded by the plaintiff against him. The first defendant also relies upon s 74AD and s 74AE of the Trade Practices Act 1974. There is in effect a corresponding claim by the second defendant against the first defendant in the third cross claim with the exception of the statutory counts. These cross claims are referred to below.

The steering system and the mechanism of its failure

5 It is essential at an early stage to understand the steering mechanism of the first defendant's truck and the particular parts of it that are said to be inculpated in the ultimate failure that resulted in the complete loss of control that he experienced immediately before the collision. Potentially two portions of the truck's steering system are involved. The first is a universal joint connecting the intermediate shaft to the upper steering column. The second is a seized bearing in a flangette housed on the engine side of the firewall, in conjunction with the absence or inappropriate adjustment of grub screws intended to attach the intermediate shaft to the inner surface of the bearing. These are described in turn.

6 First, there was agreement among the experts that the likely sequence of events that led to the loss of steering included the disengagement of a clamped connection between the universal joint connecting what is known as the intermediate shaft and the upper shaft of the steering system. This universal joint was located within the cabin of the truck encased in a removable housing attached by six screws. It was situated immediately below the steering wheel in a position between the driver's legs.

7 The universal joint comprised two yokes connected by a central spider. The end of each yoke consisted of a split, splined housing designed to accommodate a splined shaft. This was, in lay terms, a circular opening into which the splined end of the intermediate shaft was inserted. The splines on the shaft mated with the splines in the opening. The shaft was fixed into the universal joint by inserting the matching splined splint housing of the yoke and placing a pinch bolt (sometimes called a clamp bolt or clamping bolt) into a clearance hole in the joint so that the bolt intruded into the groove of the splined shaft. The bolt was secured in place by means of a nut. The bolt passing through the hole to a corresponding hole on the opposite side was to be tightened to a specified torque of between 45Nm to 50Nm. In that configuration the shaft was secured in its position within the universal joint by mechanical force exerted upon the joint by the tightened bolt and the marrying of splines on the end of the intermediate shaft with corresponding grooves upon the inner surface of the opening in the universal joint.

8 Prior to the collision the locking of the splined shaft into the universal joint had been compromised by progressive loss of the bolt volume due to wear of that part of the bolt within the groove. Some localised wear of the splined shaft was also evident, particularly in the section of the groove and the adjacent splines closer to the end of the shaft. The wear would appear to have occurred concurrently on both the bolt and the shaft and the wear was predominantly asymmetrical. The worn section of the bolt used to secure the spline of the steering shaft to the lower yoke of the universal joint was grooved in a pattern consistent with the contours of the splined shaft. Eventually the bolt became ineffective in locking the shaft and the assembly, consisting of the universal joint, the steering column and the steering wheel separated from the splined shaft.

9 The attachment of the upper yoke of the universal joint to the steering column was achieved in the same way. A short splined section 20mm long of a 25mm diameter shaft at the base of the steering column allowed connection to the universal joint. This shaft was also grooved circumferentially to allow a pinch bolt connection to the joint. Although on examination this joint was still intact, axial sliding could be effected over a distance of about 2mm, indicating that the securing bolt was not producing a snug fit in the groove of the splined shaft. Inspection of this bolt showed that wear had commenced in the region contacting the surface of the groove in the splined shaft and that it also contained wear grooves parallel to the splines that had been produced by relative motion between the bolt and the shaft. Some wear of the splined shaft was also evident. One of the experts described the condition of this bolt as in effect a "snapshot" of the condition of the failed bolt from the joint of the lower yoke at an earlier state of wear.

10 In the present case the vibration or slip was axially directed because the mating of the splines in the universal joint with the splines in the shaft prevented relative rotation. That is confirmed by the axial wear pattern on the bolts that corresponded to the shape of the contours of the upper and lower splined shafts.

11 Fretting wear was the main mechanism of failure. The essential feature of fretting is the presence of small amplitude vibrations in a nominally stationary joint. The upper and lower universal joints that respectively connected the steering column assembly and the splined steering shaft to the yokes of the universal joint were subject to vibratory forces during normal use of the truck by transmission from the engine and the wheels. Slip or relative motion between the mating surfaces resulted in adhesive wear due to micro welding and fractures of asperities on the surfaces of the mating steel components. As wear progressed, the amplitude of the movement also increased, producing significant slackness in the joint. In addition to increased sliding contact, impact loading of the joint components is also likely to have occurred. This would have increased the rates of wear caused by both adhesion and abrasion. The key cause of the failure in the present case was the relative motion between the bolt and the splined shaft. Professor Dunne originally opined that the possible reasons for this included poor fit of the mating components and insufficient tightening ("torquing") of the locking or pinch bolt. He appears to have resiled from the former contention during cross-examination. The second contention was accepted by all of the experts.

12 Secondly, the intermediate shaft of the steering mechanism passes through the firewall of the cabin of the truck and into the engine bay via a housing for a flangette and its fitted bearing. The shaft is secured or located axially to the bearing by two grub screws, so that they rotate together when turned. When examined following the collision at least one of the grub screws was found to be missing and the other was partially unscrewed and, according to one expert account, buried in a hard mixture of grease and dirt. The bearing itself was found to have seized. There were witness marks scored into the intermediate shaft at this location suggesting or demonstrating that the shaft had rotated within the bearing, instead of with it, and that this had been caused by the missing or ill-adjusted grub screws, which were not operating to locate it to the shaft. Rotation of the shaft in this way, unlocated to the bearing, therefore continued to occur notwithstanding that the bearing had seized. But for this behaviour, steering of the truck in any way at all would have been wholly prevented or at least significantly inhibited.

13 A conclave of experts on 29 January 2009 produced answers to a series of questions that included the question, "What [was] the likely cause as to the collapse of the steering column?" The answer given by the experts was in the following terms:

"1. The disengagement of the universal joint from the intermediate shaft was caused by gross fretting under the effects of normal operational vibration over a long period.

2. This fretting was caused by road and engine vibrations in conjunction with the following conditions:

(a) the bolt, which is intended to provide the clamping force to secure the splined connection, being or becoming loose;

(b) the axial support for the lower end of the intermediate shaft being rendered ineffective (allowing the shaft to slide axially within the bearing) in that:

(i) the bearing at this point was seized; and

(ii) of the two grub screws intended to clamp the shaft to the bearing, one was missing and the other not tightened; and

(c) the combined weights of both the intermediate shaft and the lower shaft thus producing a significant axial load at the splined connection."

14 Mr Colin Simpson, one of the four experts, was unsure whether or not the disconnection of the universal joint required the grub screws to be missing or loose. Consideration of this opinion is important in a determination of what, if any, role was ultimately played by the seized bearing in the steering failure. This is discussed in more detail below.

Background

15 Whereas the physical cause of the steering failure appears relevantly to be uncontroversial, the legal responsibility for it remained at all times significantly in dispute. Assessment of that issue requires some review of the background and circumstances leading up to the accident.

16 The first defendant picked up a delivery of grain on the day of the accident at a silo about five to six kilometres from where the collision occurred, having driven there from Parkes at about 6.30am that morning. He had no indication in that 40 minute journey that there was anything wrong with the steering. Indeed, it was his evidence that he had never experienced any problems with the steering before this day. At a point approximately one kilometre from the Newell Highway on the intended journey back to Furney's Flour Mill at Dubbo, while travelling up a slight gradient, the steering of the truck "went light and the truck yielded right". The first defendant said that he had no control and no steering and that the truck was totally non-responsive. The truck went right and onto the opposite side of the road that happened to curve to the left at that point as well. The truck was travelling at between 90 and 95 km/h. The first defendant put his foot on the brakes as hard as he could and applied the trailer brake with his right hand. The collision with the plaintiff's Holden sedan occurred within a second or so thereafter. A series of photographs that are in evidence depict the scene of the collision and its aftermath in graphic detail that is not in dispute.

17 The first defendant had owned the truck since April 1999 when he purchased it from Australian Used Truck Centre in Lavington, a suburb of Albury. The vehicle did not come with an operator's manual when he purchased it. Repairs, maintenance and service to the truck was a combination of work that the first defendant performed himself and work performed by mechanics that he employed. The first defendant did not have formal training as a motor mechanic but had learned about the repair and maintenance of vehicles as he grew up on the family farm. He had worked on tractors, old truck and utes. He conceded that during his time on the farm he "learnt quite a lot about vehicles" and about maintaining and repairing them. He replaced the engine in the truck over a period of a month to six weeks at a workshop in town in 2001. He said that he "just followed the book" and asked a mechanic for help if he ran into trouble.

18 The RTA inspected the truck annually for registration purposes. The steering mechanism of the truck was "off limits" to the first defendant in terms of any work that was carried out upon it by him. He told police in a record of interview given following the accident that he shied away from "anything normally to do with the steering" as he did not know enough about it. He produced a bundle of documents in his possession in response to a subpoena that consisted of records of work performed on the truck on his behalf during the time that he owned it. The documents were not a complete record of all work that was done by others and did not take account of work performed by him. The first defendant said that at no time did he ever ask any of the people who looked at the truck, either to service it or to carry out work upon it, to inspect the universal joint linking the top shaft with the intermediate shaft in the steering mechanism. He travelled somewhere between 120,000 and 150,000 kilometres every year.

19 Mr Wheelahan of Queen's Counsel who, with Mr A R G Johnson of counsel, appeared for the plaintiff, cross-examined the first defendant about his understanding of the steering mechanism at the time of the collision. This evidence was as follows:

"Q. Well, what do you say? Did the steering mechanism stay connected as far as you were aware or was there an actual detachment?

A. The first I knew of the part coming off was when Mark Smith had a look underneath it, after the accident.

Q. Was that at the scene of the accident?

A. Yes.

Q. So within a relatively short time you were aware that the steering mechanism, rather than being attached to the steering wheel was at your feet in the cabin or where your feet would have been?

A. Yeah.

Q. Now, you understood then, that is at the time that this accident happened, that is after the accident happened, the mechanism involved didn't you?

A. The universal?

Q. Yes?

A. Yeah, that it fell off, yeah.

Q. And that you knew the means whereby the retaining bolt passed through the apertures in the universal and the groove at the splined end of the intermediate shaft?

A. Yeah.

Q. And that it was retained in that fashion within the universal joint?

A. Yep.

Q. And I take it that you knew that if there was any lack of integrity in that system that is where the bolt retained the splined end of the intermediate shaft, that there could be a failure in the steering operation?

A. I don't understand what you mean. Like, if the bolt's come past the groove are you saying?

Q. No. I'm suggesting to you that you were aware at the time this accident happened that if the bolt did not retain the intermediate splined shaft within the universal joint, that the steering mechanism could fail?

A. Well, I suppose that's right, yeah.

Q. And if it was the wrong sized bolt, that that problem might occur?

A. I suppose it would if it was the wrong sized bolt.

Q. Or I think you said when asked, "If it is allowed to jiggle past the groove and come off, I don't know", you were talking about it falling off?

A. Well, I'm only going on what they told me.

Q. I'm suggesting to you that that is what you understood at the time of the accident?

A. Yeah."

20 The first defendant was also cross-examined on evidence that he gave to the effect that he greased a nipple that he thought was located on the flangette housing a bearing on the engine side of the firewall through which the intermediate shaft passed. This is what he said:

"Q. You weren't in any doubt when you gave that evidence that you were greasing the bearing, were you?

A. Greasing the grease nipple which I assume is what I was greasing but it is not. It is the shaft up above.

Q. I'm sorry, I can't hear that, Mr Erwin?

A. Greased the grease nipple, yes.

Q. If I heard you correctly the evidence that you gave was this, and I'm suggesting this is verbatim the words that you used, "I greased a nipple point on the bearing". Do you recall giving that evidence?

A. On the bearing?

Q. Your evidence was, I suggest to you, that you greased the nipple point on the bearing?

A. Well--

Q. No, no, no. Was that the evidence you gave?

A. If you have got it there I suppose that is what I said.

Q. Let us just not accept what I may have written down, Mr Erwin. I'm asking you, is that what you said?

A. Yes.

Q. And you agree with me, do you not, that there is no nipple point on the bearing?

A. Yes.

Q. If you did grease the bearing and there was no nipple point I suggest to you that you were greasing it for a purpose unconnected with any nipple point. What do you say to that?

A. Well, what I thought I was greasing was the bearing but it is not, it's the shaft up top, the throttle linkage. I just got it mixed up.

Q. So when you said that you greased the nipple point on the bearing you now say that that evidence wasn't correct, is that right?

A. Well, it can't be. There is no grease nipple there.

Q. Unless you were greasing the bearing for an entirely different purpose, namely to allow the intermediate shaft to rotate within--

A. No.

Q. - the bearing?

A. No.

Q. You see, that would explain why you would grease the bearing if there was no nipple point there?

A. The reason I said I thought I was greasing the bearing is because there was a grease nipple up there and that is what I thought I was greasing. "

21 It was put to the first defendant that he knew before the accident that the bearing in the flangette had seized and that he had loosened a series of two grub screws that were located on the bearing, which kept it fixed or located to the intermediate shaft, in order that the shaft could continue to rotate within the bearing despite the fact that it had seized. He denied all of these suggestions. The first defendant said that he had never observed before the accident whether or not there was a grub screw absent from that bearing. He agreed with the obvious proposition that if the bearing had seized and the grub screws were tightened upon the intermediate shaft, the steering "would be extremely difficult to manipulate". He denied that he had greased the bearing in effect to facilitate the operation of the steering after the bearing had seized and the grub screws had been loosened for the purpose of permitting him to continue to drive the truck. It is fair to observe that the first defendant consistently denied that he had released the grub screws or oiled the bearing.

22 The first defendant never arranged for anyone else to carry out maintenance upon the steering system. He said, "No, there was no need to. To the best of my knowledge it was working all right". He gave the following evidence:

"Q. And in the whole of the time that you had it, as far as you know, no one even looked at the steering mechanism in this truck?

A. Not unless the RTA did, no.

Q. Well you see, the RTA doesn't do the maintenance on your vehicle, does it?

A. No.

Q. And you do?

A. Yes.

Q. And you are responsible for it, correct?

A. For the part that I do, yes.

Q. And play, I suggest to you, any part that you leave undone, you are responsible for that as well, aren't you, well you know, you have to know it is undone?

A. Mm mm.

Q. You see if you don't do anything, you must agree that you would be responsible if there was a failure associated with your lack of direction or instructions to maintain, would you not?

A. I suppose.

Q. You can't just leave it undone and then say well it wasn't done therefore I am not responsible, can you?

A. I suppose not. "

23 In cross-examination by Mr R A Cavanagh of counsel, who appeared for the second defendant, the first defendant also gave the following evidence:

"Q. Now, you say, do you then, that you relied on the RTA to carry out an inspection every year?

A. That is mandatory.

Q. Is that right?

A. Yes.

Q. But you did not organise or ask any of the service people who had carried out some form of servicing to inspect the steering shaft assembly during your period of ownership?

A. No. "

24 The first defendant had never seen an operator's manual for his truck. He did however purchase a workshop manual in order to rebuild the engine when it required rebuilding in about June 2001, as referred to earlier. He confirmed that he had never asked a service mechanic to even look at the truck's steering mechanism. He attended to the "routine maintenance of just about everything else on [the] vehicle other than the steering". He agreed that between the date that he purchased the truck and November 2002 he did "not undertake one element of preventive [sic] maintenance in relation to the steering".

The plaintiff's case against the first defendant

25 Mr Bartlett of senior counsel who, with Mr J V Gooley of counsel, appeared for the first defendant conceded during the course of the trial that the first defendant was in breach of his duty of care to the plaintiff in failing to maintain the steering mechanism of the truck in the ways alleged by the plaintiff. This was in my opinion an uncontroversial concession. It requires no present elaboration. However, for the sake of clarity, Mr Lewis, a former owner and operator of the truck, gave evidence that he engaged Corowa Truck and Trailer Pty Ltd to carry out a full service on it every month and/or 20,000 to 25,000 kilometres. He said that full services were carried out on the truck with that regularity throughout the period of his ownership. He said it was his routine to do services monthly as that was "determined by [him] as a matter of good practice". He also said that he was a strong believer in the concept of preventative maintenance rather than breakdown maintenance. He said that when routine services were carried out he would expect his service provider to ensure that all operational aspects of the truck were checked thoroughly. In addition, one of the experts, Mr Anderson, said that he would expect "a planned maintenance schedule . . . to include a thorough inspection by an experienced technician at the 26,000 kilometre intervals with more detailed inspections annually, giving many opportunities for the impending failure to be identified and corrected". This is in stark contrast to the approach taken by the first defendant.

26 The first defendant contended, however, that the plaintiff had failed to establish a causal connection between that admitted breach and the failure of the steering mechanism. In this respect it is to be observed that the plaintiff has both a legal and evidentiary onus of establishing causation: see Flounders v Millar [2007] NSWCA 238; (2007) 49 MVR 53.

27 The plaintiff's case against the first defendant can conveniently be formulated as an inquiry whether any system of maintenance and inspection that the first defendant should have carried out would have revealed the incipient problem with the pinch bolt in the universal joint that has been identified by the experts as the cause of the failure. It was the plaintiff's case that the accident occurred because the nut on the pinch bolt was loose and that this led to the abrasive and adhesive wear that caused the intermediate shaft to drop out of the joint. The plaintiff contended that a proper inspection of the universal joint would have revealed whether or not the nut on the pinch bolt was loose. He relied upon the following evidence given concurrently by experts at the trial:

"WHEELAHAN: Gentlemen, the axial progression of the intermediate shaft as it begins its disengagement from the universal joint as two elements, firstly at the universal joint the spline, I think you Dr Casey indicated would begin to appear?

WITNESS CASEY: Mr Anderson indicated that, but yes I agree.

WHEELAHAN: I will take you to the other end, you said that the polishing would begin to appear?

WITNESS CASEY: Yes.

WHEELAHAN: With this process where the universal joint is progressively releasing its grip on the bolt, the pinch bolt, what period of time are we looking at as this extrusion or axial play develops, is it a catastrophic event that occurs the minute before the accident, or something else, Mr Anderson?

WITNESS ANDERSON: That progressive decay would in my opinion take years rather than months or weeks.

WHEELAHAN: Dr Casey?

WITNESS CASEY: I agree.

WITNESS DUNNE: I agree.

WITNESS SIMPSON: I agree.

WHEELAHAN: So as the spline slowly begins to appear at the top and such polishing as is visible begins to appear at the bottom, inspection over years would reveal one or other or both of those phenomena, correct?

(All witnesses replied yes.)

WHEELAHAN: I think you all agreed that visual inspection, before there was other evidence, either the appearing spline or polishing marks would be unlikely to reveal the fact that the tension bolt, the clamp bolt was releasing its grip on the intermediate shaft, correct?

(All witnesses replied yes.)

WHEELAHAN: You all agreed a simple manual activation of the components would also be unlikely to reveal what was occurring within the system.

(All witness replied yes.)

WHEELAHAN: What then would you propose as the answer to discovering that problem, Mr Anderson?

WITNESS ANDERSON: That would require a periodic application of a spanner.

WHEELAHAN: Routine maintenance?

WITNESS ANDERSON: Yes.

WHEELAHAN: Preventative maintenance?

WITNESS ANDERSON: Yes.

WHEELAHAN: Dr Casey?

WITNESS CASEY: Yes.

WHEELAHAN: Professor Dunne?

WITNESS DUNNE: Yes.

WHEELAHAN: Mr Simpson?

WITNESS SIMPSON: Yes."

28 The first defendant submitted that even though the experts all agreed following the conclave that regular inspection and maintenance of the steering, including the whole of the steering column, was required, there was no evidence from a suitably trained or experienced source, such as an Iveco dealer or service centre, or even a truck mechanic, about just what preventative maintenance, of the type for which the plaintiff contends, would have taken place, had the vehicle been sent for service, in the absence of a specific complaint about a particular problem with the steering. However, there are at least two responses to this proposition.

29 First, the conclave was asked and answered "yes" to questions 7(a) and 8, which were respectively in the following terms:

"7. (a) Should the subject universal joint as designed and provided in the vehicle as manufactured be the subject of regular maintenance to check for axial play or to periodically re-tighten or replace the high tensile bolts?"

"8. Was regular inspection and/or maintenance of the steering (including the whole of the steering column) required given the nature of the materials used, the design and the magnitude of the consequences of a steering failure?"

30 It does not appear to me that the answers to those questions taken alone or together are susceptible to the limitation or qualification for which the first defendant argues. Indeed, the experts' opinion that regular maintenance to check for axial play was necessary appears to foreclose upon the suggestion that only a service or inspection occurring in response to a specific complaint would have detected the problem. The very problem was slow but progressive axial movement of the intermediate shaft from its designed location within the opening in the universal joint. That is what should have been looked for and that is what should have been detected.

31 Secondly, the Operator's Manual for the truck contained a section dealing with steering. That section is in the following terms:

"STEERING

Be alert to any change of feel in steering when driving. For example increased steering effort, unusual sounds when turning, excessive wheel play, change in normal position of steering wheel when driving in straight ahead, vehicle pulling to either side, increased feed back of road shocks to steering wheel.

These unusual movements in steering signal the need to stop for immediate inspection. Check the rod and drag link end clamp bolts, they must be tight. Ask your service mechanic to examine steering mechanisms. Minor adjustments could head of [sic] further problems.

Check front spring for possible main leaf fracture at eye. Check power steering system for leaks or hose chafing, repair at once. Maintain proper steering gear and power steering pump lubricant levels. Regularly inspect all steering linkages particularly for body to chassis clearance.

The power steering system is designed to absorb road shocks transmitted from road wheels. However, if under high speed operations in adverse road conditions (large pot holes, broken road edges etc.) significant feed back (steering wheel kick) is felt at steering wheel, it is recommended to reduce speed immediately. The high road shocks transmitted at these speeds could cause damage to steering system." (Emphasis added)

32 The first defendant sought to argue that these words did not contain a general instruction to inspect the truck's steering but were words specifying the need to do so only in certain circumstances. He contended that the upper universal joint was not nominated as a lubrication part and was in any event enclosed within its cover inside the cabin so that, absent a complaint that would draw it to the attention of a servicing mechanic, it would in all likelihood remain unobserved and untouched. Moreover, the first defendant submitted that the plaintiff had not established that the extent of any inspection that might have occurred would have gone beyond merely visual examination, which would not reveal axial slip of the intermediate shaft. The first defendant submitted that there is no evidence of any protocol that would have required inspection of the universal joint in the absence of complaint of problems or obvious defect that would lead the inspecting mechanic to test the torque of the pinch bolt nuts using a spanner as described by the experts. Mr Simpson, in his report dated 27 June 2007 suggested that factory maintenance through International Dealers would not have included "the relevant universal joint clamping mechanisms". In brief, the first defendant submitted that no inspections would have been carried out in the absence of a specific complaint and that even if the nominated or recommended inspections had been carried out they would not have revealed the problem.

33 The emphasised words in the extract from the Operator's Manual seem to me to be clear and unambiguous. There is little, if any, scope for doubt about the meaning of the words "regularly inspect all steering linkages". The truck had travelled over 1,000,000 kilometres when the first defendant acquired it and he drove it at least 500,000 kilometres and possibly more. The conditions encountered by the truck when driven by him as a grain haulier on country roads and properties in rural Australia would undoubtedly have included the road conditions of the type to which the manual draws specific attention. Service and maintenance of the truck in these circumstances if properly carried out would in my opinion have extended to checking the status of the pinch bolts in the steering column universal joints. Such an inspection by a competent technician would have revealed that the pinch bolt was wearing and that there was progressive axial slip of the intermediate shaft. Recognition of this condition at an appropriate stage would have led to suitable adjustment or repair that would have avoided the collapse. Mr Simpson's opinion in his 27 June 2007 report was maintained by him in contrast to the opinion expressed by the other experts following the conclave: see question 5(b)(i) where the others were of the opinion that the failure to maintain the clamping bolts at an adequate torque setting was contributed to by the first defendant's failure to implement a suitable maintenance regime.

34 The plaintiff also contended that there was a failure by the first defendant to inspect and maintain the bearing that housed the steering column. As discussed earlier, this was located in the flangette bolted to, or near, the firewall in the engine bay. A failure of the universal joint would leave the intermediate shaft unrestrained unless grub screws locating the shaft to the bearing were in position and properly adjusted. The plaintiff alleged in effect that the first defendant either did not do this or took no steps to ascertain the true position. This is a curious aspect of the case against the first defendant that requires some explanation before proceeding further.

35 Mr Simpson was alone in expressing some doubt that the grub screws locating the intermediate shaft to the inner circumference of the bearing would have been capable of restraining the axial collapse of the intermediate shaft following failure of the universal joint. He was said to be "unsure as to whether or not the disconnection of the universal joint require[d] missing or loose grub screws". The first defendant's acceptance that he had breached his duty to maintain the truck properly did not appear to extend to an acceptance that he failed to ensure that the grub screws in the bearing were present and adjusted to locate the shaft to the bearing, as it should have been. In this respect it is instructive to review two other answers given by the experts to questions posed for their consideration in the conclave. The experts all answered "yes" to the following questions:

"5 As at the time of the accident and the period leading up to it is it probable that:

(a) The universal joint clamping bolts were not maintained at an adequate torque setting and that, had they been so maintained, the collision would probably not have occurred?"

"6(a) Does the original design contain a sensitivity to a combination of a loose universal joint clamp bolt and loose bearing grub screws and that whenever this combination of conditions occurred there existed a real risk that the steering intermediate shaft may become disengaged?"

36 The first of these answers clearly inculpates the universal joint as the cause of the steering failure without any reservation or qualification related to the state of the bearing or the grub screws. The answer to the second question is no more than recognition of the possibility that the properly adjusted grub screws might have maintained the intermediate shaft in position so that the collapse did not occur.

37 The first defendant was cross-examined to suggest that he either removed or loosened the grub screws because the steering would not operate when the bearing seized. An associated suggestion was put to him that he oiled the inner circumference of the bearing to facilitate rotation of the intermediate shaft within the bearing, rather than located to it, so that the truck could continue to be steered even though the bearing had seized. As already indicated, the first defendant denied all of these suggestions.

38 However, even an acceptance of these denials does not to my mind provide the first defendant with an argument that the accident was causally unconnected to his breach of duty. The first defendant submitted that there was no evidence to suggest one way or the other that at the time of the accident both grub screws were present although loosened so as not to be in contact with the intermediate shaft. Whether there was or not seems to me to be wholly beside the point. The fact is that the failure of the universal joint led to the steering collapse that resulted in the collision. The issue of what inspection or maintenance of the bearing should have been carried out by the first defendant or whether any inspection would have revealed a problem is in the first instance a matter of no consequence in a consideration of the plaintiff's case against the first defendant.

39 The plaintiff does not have to establish, in order to succeed, that the first defendant was negligent in relation to the state of the bearing and the grub screws if the evidence otherwise reveals that for some unknown or unestablished reason the bearing and the grub screws were unable to prevent the failure of the steering mechanism. The simple fact is that the state of the bearing and the grub screws, of which the first defendant was on his case ignorant and for the state of which he was on his case not liable, was such that it facilitated the collapse of the steering mechanism following failure of the universal joint for which he is liable. The role played by the state of the bearing and the grub screws and the first defendant's connection to them are neutral events in the plaintiff's principal claim against him. They are not factors that permit the first defendant somehow to argue that his breach of duty in relation to the universal joint is causally unrelated to the accident. As the first defendant emphasised in his written submissions, the grub screws were not a clamping device and there is no evidence that they were intended to maintain the integrity of the steering column in the event of a failure of the universal joint.

40 The first defendant sought to argue as a secondary proposition that if the grub screws would have prevented the collapse if properly adjusted, he was not in any event responsible for the fact that they were either missing or not properly adjusted. However, this argument does not withstand the opinion of the experts. For example, question 10, to which the conclave also produced an affirmative answer, was relevantly as follows:

"10. (a) Was the bearing at the lower end steering shaft seized at and prior to the accident?

10. (b) If so, does this indicate that such part of the steering system was not properly maintained?"

41 The first answer was never controversial. The second answer is in my opinion sufficient to dispose of the first defendant's contention that the problem with the bearing was undiscoverable on inspection and that the first defendant is therefore not responsible for any role that it played in the accident. The fact that the bearing had seized is not connected in any critical way to the failure of the steering mechanism at the universal joint pinch bolt assembly. There is, for example, no suggestion that the seized state of the bearing initiated or exacerbated or contributed in any way at all to the abrasive and adhesive forces that led to failure of the joint. That failure occurred independently of whether or not the intermediate shaft rotated within the inner circumference of the bearing in its seized condition or alternatively rotated with the bearing located to it by the grub screws as designed.

42 However, the state of the bearing, as the experts agree, casts direct light on the extent to which the first defendant maintained that part of the steering. Adequate maintenance of the bearing so that, presumably, it would not have seized, would not have prevented failure of the universal joint, which was the result of the first defendant's failure to maintain it. But there was also a failure by or on behalf of the first defendant to appreciate that the existence of witness marks on the lower end of the intermediate shaft were an indication that the bearing had seized. It bespeaks inadequate maintenance. But in any event, even though the experts agreed that purely visual inspection would not have revealed whether the grub screws were loose or that the bearing had seized, more than visual inspection was required and might have been anticipated as a matter of routine. Replacement of the seized bearing would necessarily have required that the grub screws be loosened and readjusted. Proper inspection and maintenance going beyond mere visual inspection should have been effected, and not only in response to complaint about a particular problem. (The presence of oil stains on the bearing strongly suggests that a problem had been encountered at some stage and "treated" in any event). That seems to me to be the logical and obvious conclusion from the experts' joint opinion that that part of the steering mechanism had not been properly maintained. There is an irreconcilable tension between the view of the experts on the one hand and the first defendant's submission that the problem would not have been discovered in the normal course of routine maintenance on the other hand.

Conclusions in relation to the first defendant

43 The first defendant was under a duty to other users of the roadway, including the plaintiff, not to injure them through the use of a truck with defective steering. The first defendant was aware of the potentially catastrophic consequences of a steering failure in a vehicle of this type. The first defendant breached his duty to the plaintiff in that he failed properly or adequately, and in some respects at all, to maintain the steering mechanism of the truck. Proper inspection would have included inspection of the universal joint at the upper end of the intermediate shaft and adjustment of the pinch bolt that secured that shaft within the joint. Proper inspection would have revealed, at a point before it failed, that the shaft was in an incipient state of separation from the universal joint and would have prevented it from occurring. The first defendant's failure to inspect and maintain that universal joint was the cause of the collision that injured the plaintiff.

The plaintiff's case against the second defendant

44 In formulating his case against the second defendant, the plaintiff relied upon statements of principle such as the following from Suosaari v Steinhardt [1989] 2 Qd R 477 at 488-489:

"In undertaking the process of design a manufacturer is under a duty 'to design his machine so as to keep its inherent dangers to a minimum and so as to avoid the addition of further risks which [are] not inherent' (Todman v Victa Ltd [1982] VR 849 at 852 per Lush J and see to similar effect Murphy J at 857). Discharge of the duty requires the designer to think through the suitability of the design, the problems and risks associated with the design; the graver the foreseeable consequences of failure to take care, the greater the necessity for special circumspection (Independent Broadcasting Authority v EMI Electronics Ltd (1980) 14 BLR 9 (HL) at 28, 31; Winward v TVR Engineering [1986] BTLC 366 CA). The standard to be applied when one is dealing with a machine is that of a reasonably competent engineer (Winward at 5; Griffiths at 220–221). Where the risk is real, although the incidence of it may be low, the designer is under a duty to minimise the risk by taking all reasonable steps to eliminate it, particularly where the alteration to the design is simple and inexpensive (Winward at 5; Todman at 857; Wyong Shire Council at 47–48). It is not sufficient to design a product which is satisfactory merely for the purpose for which it is intended to be used (Lambert v Lastoplex Chemicals Co Ltd (1971) 25 DLR (3d) 121 at 124; Rivtow Marine Ltd v Washington Iron Works (1973) 40 DLR (3d) 530 at 543). The manufacturer is under a duty to take care to reduce the risk of injury as far as he reasonably can ... "

45 The plaintiff's case consisted in a contention that wear in the universal joint that retained the intermediate shaft amounted to or was evidence of a design fault for the consequences of which the second defendant was liable. The plaintiff did not contend that the pinch bolt became loose as a result of a faulty design, because when properly adjusted it required a force of approximately one tonne to release it and road vibrations or other effects from normal use of the truck would be insufficient to cause this to occur. Nor did he contend that the bolt must have been loose when it left the second defendant's control. However, if the bolt was not adequately adjusted, it could lead to wear sufficient to cause the clamping mechanism to fail. That propensity was said to be a function of an allegedly inadequate or faulty design.

46 The plaintiff's case drew upon a series of answers given by the experts following the conclave. Some of these have been referred to already. The following questions and answers are also relied upon by the plaintiff in support of his case against the second defendant:

"4. If it is considered that a cause of the collapse of the steering column is that the shaft disengaged from the universal joint resulting in the column giving way:

(e) If due to fretting wear, did it include the bolt and splined region of the shaft, and if so, to what extent?

Yes. The fretting produced sufficient wear to allow the shaft to move some 20mm axially, allowing disengagement of the joint.

12. What, if any, design strategies were capable of being implemented to reduce fretting wear and what would be the approximate cost (as at 1989) of implementing such design strategies in the manufacture of the vehicle?

The only guaranteed method is to eliminate all movement so as to remove all possibility of fretting. Fretting wear is an inherent feature of this type of joint.

13. What, if any, design strategies were capable of being implemented which would have prevented the giving way of the universal joint?

(1) In anticipation of the event that the clamp bolt and grub screws all become loose, fretting wear could be reduced by limiting the axial movement of the intermediate shaft through the bearing at the firewall to, say, no more than 3mm. This would ensure that 17mm of spline length of the universal joint would remain engaged and could be achieved by, eg:

(a) having a design condition where the shoulder on the shaft is located 3mm (not 25mm) away from the bearing. If there are significant build dimensional variations with the truck, this may require the use of selective spacers and a checking procedure on assembly. The cost would be small – possibly 10 minutes additional assembly time.

(b) limiting the travel in the sliding joint to the lower (in the engine bay) shaft. This could be achieved by fitting a sleeve over the male sliding element and would not affect the assumed commonality that this shaft has with truck models having a tilting cab. Again the cost would be small.

(2) Adopt a non bolted design."

47 Evidence was given that a welded universal joint was one form of non-bolted design that could operate in substitution for the bolted design that failed in the present case. This emerged from the affirmative answer given by the experts following the conclave to this question:

"14. Would a design strategy of replacing the clamp splined connection with a welded connection eliminate the failure mode of the steering column as experienced by the vehicle in the accident?"

48 The conclave also produced what amounted to a similar response to the following question:

"30. Does the use of a welded connection eliminate the risk of loose joints, provided that the welding is done properly?

The welded joint will eliminate the type of failure experienced in this case."

49 One of the experts, Professor Druce Dunne, provided the following opinion in his report dated 17 January 2005:

"7. Conclusions

Failure occurred by wear. At least a significant part of the wear that led to failure was by fretting – a failure mode that is characteristic of nominally stationary joints that are subjected to relative motion of the mating surfaces due to vibration. Fretting is known to be possible in nominally stationary joints, like the interference fit between shaft and bolt used in the present case. Although fretting wear is difficult to prevent, appropriate joint design and materials selection can be used to reduce the susceptibility to this type of wear . . .

It is concluded that fretting progressively changed the dimensions of the mating components allowing more pronounced relative motion and the development of more rapid material loss by adhesive and abrasive wear. It is expected that for the joint design and the materials used, regular inspection and maintenance would have been recommended to check for axial play and to periodically re-tighten or replace the high tensile bolts."

50 In the same report, Professor Dunne suggested that in order to prevent or limit wear by fretting, there were several design strategies that he would recommend. These were:

(a) Redesign of the joint to produce more effective locking.

(b) Elimination or reduction of the vibration transmitted to the joints by use of vibration damping.

(c) Reduction of slip at the mating surfaces by increasing the pressure between them.

(d) Increase of joint friction by using high friction surface coatings.

(e) Redesign of the joint with an elastomeric inter-layer that prevents metal-to-metal contact.

(f) Use of a liquid or solid lubricant between the two surfaces.

51 The second defendant's response to these allegations is to argue that the case raised against it is fatally afflicted with the reasoning of hindsight. It argues that the plaintiff is in effect urging a counsel of perfection by reference to the fact that the accident happened at all, and says the fact that the universal joint was a component uncontroversially central to the steering failure does not thereby demonstrate that it was a component designed and released in breach of any duty owed to the plaintiff.

52 The second defendant emphasised that the evidence against it, upon which the plaintiff sought to rely, consisted in summary of the following matters:

(i) The intermediate shaft was able to disengage from the universal joint because the pinch bolt was loose and the grub screws were either loose or one was missing altogether.

(ii) Neither of those circumstances was caused by any fault on the part of the second defendant.

(iii) The truck was designed, manufactured and intended to be operated with the pinch bolt tightened to a torque setting of between 45Nm and 50Nm with the grub screws in position and located to the intermediate shaft.

(iv) Upon the uncontested basis that the pinch bolt was tightened to the correct specification at the time of manufacture, the pinch bolt did not, and could not, loosen of its own accord or through the normal operation of the truck. There was therefore some other act or intervention by a third party that led to it being loose at the time of the accident.

(v) If the pinch bolt was tightened as specified the intermediate shaft could not move axially. A force of one tonne was necessary to result in such movement and this would not occur during normal operation of the vehicle.

(vi) The flange bearing was seized prior to the accident. Once seized, this prevented proper and smooth operation of the intermediate shaft and would be accompanied by noise. Loosening the grub screws and greasing the shaft may overcome the effects of the seized bearing.

(vii) There were polish or witness marks in the shaft suggesting that the bearing had been seized for some considerable time prior to the accident.

53 In simple terms the second defendant says that there is no case against it that the universal joint was not properly adjusted when it left its control and that the experts agree that what occurred could not have occurred to a properly adjusted joint in the course of ordinary operations. Therefore the wear that led to the failure of the joint was the result of interference by others and not a consequence of poor or inadequate design. It was not unreasonable for the second defendant to operate upon the basis that the pinch bolt would remain properly adjusted and that slackness in the joint, if it occurred, should have been observed in the normal course of regular maintenance and corrected. Moreover, it was unreasonable to impose upon the second defendant a duty of care that required it to perform to a standard that anticipated use of the universal joint other than correctly adjusted as originally intended.

54 There is no direct evidence as to when or in what circumstances during the operation of the truck the pinch bolt became loose. The experts opine that it may have been years rather than months having regard to the extent of the fretting wear caused by the movement allowed by the loose pinch bolt. The first defendant gave evidence, which I accept, that there never was an occasion during his period of ownership when anything at all was done to the upper end of the truck's steering assembly. However, the first defendant gave evidence about what occurred when he first purchased the truck. That evidence was as follows:

"Q. Mr Erwin, just taking you back to the time when you purchased this truck, it was, on the documentation it says from Australian Used Truck Centre. Did it also trade as Select?

A. Yes, Select Trucks.

Q. That is, I think you said this, it is in Lavington which is a suburb of--

A. Albury.

Q. Albury. When you were in the throws of talking to the sales representative of the vendor, that is the seller, did you have any conversation in respect of something you observed on the steering wheel?

A. Yes. There were markings, numbers underneath the steering wheel and I asked him what they were for.

Q. Do you know the name of this person?

A. No.

Q. Obviously a him?

A. Yes.

Q. I understand that company is no longer in operation is that - you don't know, right. What did he say?

A. He said that they had replaced the steering wheel and did a bit of work to the steering.

Q. Did you ask any more details in respect of that?

A. No. "

55 The steering wheel is in evidence as an exhibit and still has numbers in white paint or similar on the underside of one of its spokes. The first defendant was not challenged about the fact or content of the conversation to which he deposed. Indeed, the record of interview given by the first defendant on 19 April 2004, tendered by the plaintiff, refers to the same conversation in the following terms:

"Yes, when I purchased the truck, when I was up in the truck I noticed underneath the steering wheel it had white texta numbers and I, it looked like part numbers from the steering wheel so I, I said to the bloke, I said, What's the numbers under the steering wheel? And he said, We had to put a new steering wheel on it and we did a little bit to the steering, so that's, that's all I know."

56 It should not pass without comment that the steering wheel assembly fits directly into the upper end of the universal joint from which the intermediate shaft was released. The steering column assembly drawings (Exhibit B) and the steering column itself (Exhibit D) make this clear.

57 Mr Lewis, the original owner of the truck, also gave evidence that he had never had any problem with the truck's steering and had never performed any work on the upper universal joint. He sold the truck to the dealer from which the first defendant purchased it. The first defendant carried out no work on it either. Accordingly, the statement made by the representative of the used truck centre to the first defendant at the time of his purchase provides a cogent and reasonable explanation of when and in what circumstances the pinch bolt was left loose. It also fits with the expert evidence that it was loose for years before the accident having regard to the extent of the wear that was evident. It will be recalled that the first defendant purchased the truck in 1999 and the accident occurred in 2002. I find in the circumstances that this is what in fact occurred.

58 That would have been sufficient to dispose of the plaintiff's case against the second defendant if it were not for the plaintiff's contention that a welded joint should have been used and that if it had been the accident would have been totally avoided. The plaintiff's case in this respect is that the failure to employ a welded joint was a design fault that occurred in breach of the second defendant's duty to the plaintiff.

59 Mr Perkins, a representative of the second defendant, gave evidence about this. He said that the Transtar 4670 model was manufactured/assembled by International Trucks, now Iveco, during the period from 1987 to 1990. It purchased component parts from other suppliers, including ZF in Europe and Dana Spicer in the United States. The model was originally built with a pinch bolt universal joint assembly linking the top shaft to the intermediate shaft. As part of a number of changes in 1990, the second defendant commenced to install a welded joint/shaft into this model. The welded componentry was cheaper than the pinch bolt system.

60 Mr Perkins also gave the following evidence:

"Q. How many of the models identified on that document used the pinch bolt system, that is the pinch bolt system of connecting the top and intermediate shaft by way of a universal joint?

A. Connection to the steering column in all those models is via pinch bolt connection.

Q. Has that always been the case with all those models?

A. Yes, yes, that's, it is an industry norm.

Q. Going back to 1989, we know that this particular vehicle was manufactured in 1989, that is assembled by Iveco. I think you have already said Iveco assembled a number of different models of trucks at that time?

A. (Witness nodded).

Q. How many of those models used the pinch bolt system back in 1989, that is the models that were being assembled in 1989?

A. Oh, they all did except for the S series.

Q. The S series?

A. Yes, the Acco used a pinch bolt connection, the T-line used a pinch bolt connection, the Turbotech, the Turbostar, all used pinch bolt connections.

Q. Back in 1989 did a number of other manufacturers of trucks use the pinch bolt system?

A. Yes, it is, it was the industry norm and still is today.

Q. Can you name some of those manufacturers?

A. Oh, Kenworth, Volvo, Scandia, Freightliner.

Q. You have searched for the manufacturing records of this particular vehicle, haven't you?

A. Yes.

Q. They are no longer available?

A. The, you are referring to the documents when the vehicle was built, yes.

Q. Yes, I'm referring to the documents produced along the assembly line?

A. Yes.

Q. They are not longer available?

A. Not for that vehicle, no. "

61 Since around 1994 the second defendant has manufactured approximately 14,500 vehicles, all of which have used the pinch bolt system. During the same period in Europe the corresponding number was approximately 450,000.

62 In these circumstances the second defendant made the following submissions. The plaintiff bears the onus of proof in establishing negligence on the part of the second defendant. No inference arises merely because the accident occurred. The manufacturer of a motor vehicle owes a duty of care to a road user but only to take such care as a reasonably prudent manufacturer would take in the circumstances: Adelaide Chemical & Fertilizer Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514. As was said in Bull v Rover Mowers (Aust) Pty Ltd [1984] 2 Qd R 489 at 499:

"The duty of the manufacturer did not, however, extend to producing a product which was accident proof or which would not wear out, and it was not an insurer".

63 A manufacturer is not obliged to take precautions against a risk that may arise when the use to which the product is put is so unusual or improper as to make such use wholly unreasonable that it falls outside the range of any man's reasonable contemplation: Bicer v McDonalds Australia Ltd [2001] NSWSC 218 at par [44]. The standard of care to be applied when one is dealing with a machine is that of a reasonably competent engineer: Suosaari v Steinhardt (supra) at 499.

64 The second defendant emphasised that any inquiry about a breach of duty of care must identify the reasonable person's response to foresight of the risk of the occurrence that the plaintiff suffered. It necessarily takes place after the event but must identify what the response would have been by the person looking forward rather than looking backwards or with the benefit of hindsight.

65 In Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 at par [34], McHugh J said this:

"[34] If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community or, in cases of expertise, of the experts in that particular community. To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute. That is not to say that a defendant will always escape liability by proving that his or her conduct was in accord with common practice. From time to time cases will arise where, despite the common practice in a field of endeavour, a reasonable person in the defendant's position would have foreseen and taken steps to eliminate or reduce the risk that caused harm to the plaintiff. But before holding a defendant negligent even though that person has complied with common practice, the tribunal of fact had better first make certain that it has not used hindsight to find negligence. Compliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently. And the evidentiary presumption that arises from complying with common practice should be displaced only where there is a persuasive reason for concluding that the common practice of the field of activity fell short of what reasonable care required."

66 His Honour continued at par [38] as follows:

"[38] A defendant is not negligent merely because it fails to take an alternative course of conduct that would have eliminated the risk of damage. The plaintiff must show that the defendant was not acting reasonably in failing to take that course. If inaction is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk."

67 In the circumstances of the present case I am also required to have regard to the provisions of ss 5B and 5C of the Civil Liability Act 2002.

68 In my opinion the plaintiff has not established negligence on the part of the second defendant. To hold the second defendant to the standard of conduct for which the plaintiff presently contends would be to enforce standards that do not reflect the common experience of the relevant community. The second defendant complied with what was ordinary practice. The evidence was that a pinch bolted universal joint was the industry norm. There is to my mind no persuasive reason for concluding that the common practice of producing universal joints in the steering mechanism of the truck in this case fell short of what reasonable care required.

69 The plaintiff's case was that the pinch bolted universal joint was a flawed design because a lack of proper adjustment of the bolt could lead to wear with consequences of the sort that befell the plaintiff. The undisputed evidence was that a reasonably available welded alternative would have obviated this risk entirely. However the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done and the subsequent taking of action does not of itself give rise to or affect liability in respect of a risk.

70 The plaintiff's case was that the second defendant should have designed the universal joint so that it would never fail. In the events that occurred, the joint failed following inappropriate adjustment, which inadequate maintenance failed to detect. This occurred over a relevant service life in the custody of the first defendant of something in excess of 500,000 kilometres and as much as 600,000 kilometres. The pinch bolt was not correctly tightened and the grub screws had been readjusted or neglected. The failure that led to the collision, therefore, did not take place in the course of what a reasonable manufacturer might similarly have anticipated would be the normal use of the vehicle. The steering system was only as strong as its weakest link and the weakest link was not the fault of the second defendant.

71 The plaintiff relied upon the adjustment of the grub screws as, in effect, a secondary safety feature. In other words, three of the four experts considered that the intermediate shaft could and would have been retained in position if located to the bearing by grub screws adjusted as designed. The evidence suggests, however, that this was purely a matter of happenstance and not a safety design feature of this steering system. The witness marks on the shaft were such as to indicate that the grub screws had long before this accident ceased to work as designed, thereby only emphasising the legal distance between the plaintiff's case and the lability of the second defendant, which was entitled to anticipate that this truck would have been maintained in a way that would have detected both the universal joint in a state of incipient failure and the fact that the intermediate shaft was not fixed to its bearing. The suggestion that the second defendant should have produced a welded joint that would not have failed is an approach spawned by the wisdom of hindsight. The universal joint, properly adjusted and maintained, was effectively not subject to failure. This is a case in which it was appropriate for the second defendant to do no more than it did.

72 Nor was there evidence to suggest that the second defendant should have been on notice from prior failures that the events that injured the plaintiff might occur. There was no evidence that at the time that the truck was designed there were any circumstances, incidents, complaints, reports or accidents that might have led a competent engineer exercising reasonable care designing the steering mechanism for this truck to have done anything more than was done in fact. There is no evidence to suggest the happening of a combined event of the type that occurred in this case either before or since the design and manufacture of the truck.

73 The first isolated report as described by Mr Anderson is dated after the date of the truck's manufacture. It refers to the vehicle being returned because the locating bolt to the universal joint was loose. The bolt was tightened. There is no suggestion in the document that it was left loose at the date of manufacture and no other documentation suggesting that any further problems arose once it was correctly adjusted. The last document annexed to Mr Anderson's report is dated 23 April 1989 and was prior to the manufacture of the truck. The nut was missing from the retaining bolt and the bolt worked out.

74 This does not amount to evidence that would suggest that a reasonably competent designer of a motor vehicle should reasonably have had regard to the prospect of the occurrence of the two events that combined in this case to produce the accident that injured the plaintiff. Section 5B requires that the risk be not insignificant. There is no evidence in this case that supports a contention or a finding that this risk was not insignificant. For all this case has produced, it may be that this event has never previously occurred. It would be surprising if it had. The steering was manufactured according to the industry norm and still is. Not one piece of the evidence and none of the expert opinions suggests otherwise.

75 One further matter requires comment. The intermediate shaft had a shoulder located above the bearing in the flangette at the firewall. This was apparently created as the result of the machining of the shaft to reduce its diameter to fit the internal dimensions of the bearing. If the shaft were to collapse, as it did in this case, the shaft could slip no further than the point where the shoulder reached the bearing where it would stop. There was some faint suggestion that the second defendant's design was actionably faulty because this shoulder had not been engineered to sit lower down closer to the bearing and at a distance less than the length of the splined upper section of the intermediate shaft that was fitted into the pinch bolted universal joint above it. If it had been so engineered, according to this argument, the shoulder would have engaged the bearing before the upper shaft parted company with the universal joint and the failure would not have occurred.

76 As accurate an assessment of the likely sequence of events as that summary may be in fact, it is in my view a prime example of the type of impermissible retrospective reasoning that is to be avoided. There was no evidence to suggest that the shoulder had been designed and engineered as a secondary safety feature in the first instance and its potential elevation to that status appears to me to be the product of the experts' detailed consideration and reconstruction in hindsight of the cause of the steering collapse. It falls in my view to be assessed in terms similar to the contentions concerning the welded joint. It did not amount to a failure by the second defendant to design the steering mechanism in conformity with its duty of care as a prudent manufacturer.

Conclusions in relation to the second defendant

77 In my view the steering did not fail as the result of any absence of reasonable care by the second defendant in the manufacture or design of the truck. It was not required to design a vehicle that would continue to be safe for use after two million or so kilometres and be accident proof in the face of no servicing to the steering mechanism for at least three years and where there has been independent conduct by a third party inappropriately adjusting the universal joint pinch bolt to allow for abrasive and adhesive wear to occur and to compromise the effectiveness of the joint. The availability of another, different design that would have obviated the risk is not automatically or necessarily co-extensive with the existence, or a finding, of a breach of duty. The second defendant did not breach the duty that it owed to the plaintiff.

The first defendant's cross claim against the second defendant

78 The cross claim based upon the same allegations of negligence that the plaintiff relied upon fails for obvious reasons.

79 The first defendant alleges that the second defendant is liable to it in accordance with the provisions of the Trade Practices Act 1974 as follows:

"75AD If:

(a) a corporation, in trade or commerce, supplies goods manufactured by it; and

(b) they have a defect; and

(c) because of the defect, an individual suffers injuries;

then:

(d) the corporation is liable to compensate the individual for the amount of the individual's loss suffered as a result of the injuries; and

(e) the individual may recover that amount by action against the corporation; and

(f) if the individual dies because of the injuries--a law of a State or Territory about liability in respect of the death of individuals applies as if:

(i) the action were an action under the law of the State or Territory for damages in respect of the injuries; and

(ii) the defect were the corporation's wrongful act, neglect or default."

"75AE (1) If:

(a) a corporation, in trade or commerce, supplies goods manufactured by it; and

(b) they have a defect; and

(c) because of the defect, an individual suffers injuries; and

(d) a person, other than the individual, suffers loss because of:

(i) the injuries; or

(ii) if the individual dies because of the injuries--the individual's death; and

(e) the loss does not come about because of a business relationship between the person and the individual;

then:

(f) the corporation is liable to compensate the person for the amount of the person's loss; and

(g) the person may recover that amount by action against the corporation.

(2) For the purposes of this section:

(a) a profession is taken to be a business; and

(b) a relationship between employer and employee or a similar relationship is a business relationship."

80 The cross claim does not plead the first defendant's case, relying upon these provisions, in any particularly detailed way. However, the second defendant responds to the claim by emphasising the following matters. First, there is no defect within the meaning of s 75AC, particularly having regard to s 75AC(2)(d), (e) and (f), (3) and (4). Secondly, s 75 AD provides a statutory remedy only to individuals who suffer injuries and only for the amount of the individual's loss. Thirdly, the loss is a loss in respect of which an amount has been, or could be, recovered under law that relates to workers' compensation in which case s 75AI specifically excludes the operation of Part VA of the Trade Practices Act. In my opinion the first and third of these propositions are each sufficient to dispose of the cross claim. This is for the following reasons.

81 First, the goods in question for present purposes are the universal joint and the flange bearing assembly. Neither is defective in my view. The meaning of defect is to be found in s 75AC as follows:

"75AC (1) For the purposes of this Part, goods have a defect if their safety is not such as persons generally are entitled to expect.

(2) In determining the extent of the safety of goods, regard is to be given to all relevant circumstances including:

(a) the manner in which, and the purposes for which, they have been marketed; and

(b) their packaging; and

(c) the use of any mark in relation to them; and

(d) any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and

(e) what might reasonably be expected to be done with or in relation to them; and

(f) the time when they were supplied by their manufacturer.

(3) An inference that goods have a defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied.

(4) An inference that goods have a defect is not to be made only because:

(a) there was compliance with a Commonwealth mandatory standard for them; and

(b) that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer."

82 The goods in question did not have a defect. Their safety was entirely what persons generally are entitled to expect. The evidence in this case establishes that both items had seen something in the order of 2,000,000 kilometres of use in the truck with no maintenance from the first defendant for the whole of the time that he owned it. My findings about these items in the context of the second defendant's alleged breach of duty to the plaintiff effectively foreclose upon the contention that the items were defective within the terms of the relevant provisions.

83 Secondly, in respect of the third proposition, I was referred to the decision of Wood CJ at CL in Lanza v Codemo [2001] NSWSC 72 at pars [184] to [188] as follows:

"[184] Part VA of the Act, within which these provisions are included, was introduced by Act No 106 of 1992. The Explanatory memorandum for the Bill, pursuant to which it was introduced, provided:

'40. The new Part VA is being introduced as a consumer protection measure. Loss caused by work-related injuries has therefore been excluded, as it is considered that this field is comprehensively regulated under existing worker's compensation regimes. Similarly, loss which is regulated by way of international agreement has also been excluded.'

[185] It is here the case the plaintiff's injuries were caused by a work related injury. It is also the fact that the plaintiff has already recovered some amounts under a law of a State which relates to worker's compensation, from Yoogali or its insurers.

[186] The question which arises is whether S 75AI operates, where the plaintiff is entitled to independent recovery from his employer under a law relating to worker's compensation, to bar all recovery under S 75AD; or operates to limit recovery to such sums of money that would otherwise be recoverable beyond any cap arising under the relevant workers compensation legislation; or operates to limit recovery in relation to those heads of loss for which recovery is not possible under the relevant workers compensation legislation.

[187] The section is ambiguous, and it is accordingly appropriate to have regard to the explanatory memorandum, a reading of which inclines me to the view that a person in the position of the plaintiff, who has the protection of workers compensation legislation, cannot also bring a claim under the Trade Practice Act against a corporation where goods manufactured and supplied by it have a relevant defect, that leads to an injury to the plaintiff in the course of his work.

[188] It was argued, however, by the plaintiff, that the present was not a case in which a loss "could be recovered" under workers compensation legislation, because of the operation of S 151E of the Workers Compensation Act which required the plaintiff to seek recovery under the Motor Accidents Act. However, recovery under that Act is confined to recovery for fault, whereas the plaintiff was also entitled to receive benefits, without proof of fault under the Workers Compensation Act, and has in fact received such benefits."

84 Section 75AI is as follows:

"75AI Section 75AD, 75AE, 75AF or 75AG does not apply to a loss in respect of which an amount has been, or could be, recovered under a law of the Commonwealth, a State or a Territory that:

(a) relates to workers' compensation; or

(b) gives effect to an international agreement. "

85 In my opinion the loss in respect of which the first defendant seeks recovery under either ss 75AD or 75AE is a loss in respect of which an amount has been or could be recovered under a law of New South Wales that relates to workers' compensation. The plaintiff was in the course of a journey to his work and was paid benefits under the relevant legislation in respect of the injuries that he sustained. The words "in respect of which an amount has been paid" are wide and contextually unconstrained. They extend to cover the payment of workers' compensation benefits to the plaintiff in this case. The Explanatory Memorandum referred to in the judgment of the Chief Judge in Lanza v Codemo (supra) uses the words "loss caused by work related injuries" which are wider still.

86 In my view the first defendant's cross claim relying upon the Trade Practices Act 1974 cannot withstand the force of either one of the second defendant's submissions and should be dismissed.

Conclusion

87 It follows that there will be a verdict for the plaintiff against the first defendant in the amount that has been agreed. There should be a verdict for the second defendant on the plaintiff's claim against it. The first cross claim should be dismissed. I will direct the parties to bring in short minutes of order to reflect these proposals and I will hear the parties in respect of any costs orders that should be made at some convenient date to be arranged in consultation with my Associate.

**********

LAST UPDATED:
5 March 2009