Bates v Craig Wrightson Automotive Pty Limited

Consideration

I am satisfied this is a consumer claim and the Tribunal has jurisdiction to hear and determine it.
A difficulty for the applicant is that he has had extensive further work carried out on the vehicle by a third party, and quite some time has passed, prior to the commencement of these proceedings. It is therefore more difficult than it may have otherwise been to establish that the repairs now needed are due to the work that was carried out by the respondent. The onus is on the applicant to establish the elements of his case. If I am not satisfied, on the balance of probabilities, that the work set out in the two quotes is necessary as a result of the respondent not carrying out the work it was engaged to do with due care and skill, or as a result of the engine not being fit for purpose, then the applicant's case fails.
I am not satisfied, on the balance of probabilities, that the crack in the engine casing was either present when the engine was installed by the respondent or was caused by the respondent during the installation.
I am satisfied the respondent inspected the engine prior to installation and did not see the crack prior to, or during installation of, the engine. There would be no benefit at all to the respondent in installing the engine with the crack as it would likely cause problems which the respondent would be liable to rectify.
I accept the evidence on behalf of the respondent that the manner of installation of the engine did not involve removing the gearbox and was not very likely to have caused the crack. For example, Mr Marston's evidence was that the method of engine installation by the respondent would not put pulling or leverage strain on the back of the engine (which strain may be the cause of a crack like this).
It is possible that the crack has occurred when the gearbox was removed by All Haul. I am not making a finding that that was likely (and I do not need to for the purposes of this case), but given that it is real possibility, I am not satisfied on the evidence before me, on the balance of probabilities, that the crack was either present when the engine was installed by the respondent or was caused by the respondent during the installation.
There was considerable debate between the witnesses as to whether the crack would have been seen by All Haul when working on the Vehicle in the period between September and November 2020, which work included investigating and repairing engine oil leaks. Mr Marston's evidence was that, had the crack been present from the time of engine installation, it would have been noticed during the repairs by All Haul as it was close to the area of the engine worked on by All Haul. He supported this opinion by indicating the proximity of the area worked on to the crack on photographs supplied of the crack. Conversely, Mr Kay from All Haul stated that the area where the crack is was not visible until the gear box was pried off and therefore was not seen when the earlier repairs were carried out. In light of my findings set out above, it is not necessary for me to resolve this issue. If All Haul had seen the crack in late 2020 that may have strengthened the applicant's case, but it did not.
The applicant claims there was an oil leak around the area of the crack both before and after the Vehicle was worked on by All Haul, which he claims supports the position that the crack was present prior to work being done by All Haul. Mr Marston stated that the crack would be likely to have been leaking oil, although Mr Kay denied that. As noted above, All Haul did not discover this crack when investigating for oil leaks. I am not prepared to find, simply on the anecdotal evidence of the applicant that there was an oil leak in this area, that the crack was present and resulting in an oil leak prior to September 2020. There is no corroborating expert evidence about the oil leak prior to that time, and I am not satisfied the only explanation for oil being seen by the applicant was that the crack was present.
There was also a difference of views between the parties as to whether the applicant was entitled to have oil leaks repaired under warranty. The applicant claims he had returned the Vehicle to the respondent within the warranty period but then, upset by the service he received, he "decided [he] would have to save up and take it to another mechanic as in no way would [he] want [the respondent] to ever touch [his] van again." The respondent states that the applicant was never refused service but was informed that he would have to pay for oil leaks to be rectified, or that oil leaks were not covered by the warranty.
If there were oil leaks as a result of the services provided by the respondent not being provided with due care and skill, then the applicant may have been entitled to have repairs done by the respondent at no cost. I am not satisfied the applicant adequately pursued any issue with oil leaks with the respondent and instead chose to take the Vehicle elsewhere.
I am satisfied that the crank angle sensor was "glued in" when the engine was provided to and installed by the respondent. The evidence does not demonstrate any fault with the operation of the crank angle sensor, and I am not satisfied that not replacing that part when the engine was installed demonstrates failure by the respondent to provide the services with due care and skill.
I am not satisfied that the respondent is responsible for any faults with the gearbox. I accept that it did not remove the gearbox when installing the engine and did not work on the gearbox. The work done to connect the clutch bearing does not, on the evidence before me, seem likely to have caused the issue. I accept Mr Marston's evidence, who is very experienced, that wiping or even light sanding would be unlikely to have caused this issue. On the evidence before me, it is possible the issue was simply caused by parts being worn out, which may not be surprising in a vehicle of this age and mileage. Mr Lima does not exclude the possibility that "wear and tear" has played a part. As noted above, the onus is on the applicant, and I am not satisfied he has discharged that onus.
There was some suggestion in the applicant's case that further steps should have been taken by the respondent to ensure that the engine and accessories were fit for purpose, that some accessories should have been replaced and/or the applicant put on notice that there were worn out parts requiring replacement. However, there appears to be a difference of opinion between the witnesses about whether the respondent needed to go beyond what he had been engaged to do. I note that the repairs done by the respondent cost over $11,000 and repairs done by All Haul in late 2020 cost over $12,500. In a vehicle this old, with this mileage, it is likely there are many parts that may be coming to their end of life. The respondent was not engaged to carry out a full inspection to determine what work might be needed, and it would likely be expensive to do so. I am not satisfied that it has been established, on the balance of probabilities, that the respondent did not do what was agreed, or that there was any failure to provide the services with due care and skill.

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Cases Cited (1)