ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KENNEDY v BELCONNEN AUTOMOTIVE PTY LTD (Civil Dispute) [2017] ACAT 73

XD 220/2017

Catchwords: CIVIL DISPUTE– due care and skill in replacement of timing belt-competing expert evidence – applicant’s contributory negligence

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 8Competition and Consumer Act 2010 (Cth) Schedule 1 Australian Consumer Law s 60

Tribunal: Senior Member E Ferguson

Date of Orders: 19 September 2017Date of Reasons for Decision: 19 September 2017

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 220/2017

BETWEEN:

ERNEST KENNEDYApplicant

AND:

BELCONNEN AUTOMOTIVE PTY LTDRespondent

TRIBUNAL: Senior Member E Ferguson

DATE: 19 September 2017

ORDER

1. Judgment for the applicant in a sum to be determined.

2. The matter listed for a hearing to assess damages, costs and expenses on 6

October 2017 at 2pm.

3. The applicant is to file any submissions of additional costs incurred between

12 July 2017 and the date of the assessment hearing no later than 7 clear days

before the hearing.

………………………………..Senior Member E Ferguson

REASONS FOR DECISION

Introduction

1. The applicant’s camper van suffered catastrophic engine failure the day after

being serviced and having the timing belt kit replaced by the respondent. The

applicant claims the damage was caused by the respondent failing to exercise

due care and skill in replacing the timing belt kit. The respondent denies this.

The applicant claims damages based on either breach of contract or negligence.

I note that the allegations, if proved, would also be a breach of the statutory

consumer guarantee under the Australian Consumer Law that services supplied

to a consumer will be “rendered with due care and skill”.1

2. In this decision a reference to the ‘tribunal’ or ‘ACAT’ refers to the ACT Civil

and Administrative Tribunal generally and a reference to the ‘Tribunal’ or the

first person refers to the member who heard the matter.

The hearing

3. I part heard the application on 12 July 2017. Both parties were legally

represented, the applicant by Mr Domitrovic, the respondent by Mr Quinn.

4. The following witnesses gave evidence in person under oath:

(a) Mr Ernest Kennedy, the applicant.

(b) Mr Craig Boyd, the Fixed Operations Manager at Gerald Slaven

Volkswagen Belconnen who was called by the respondent.

(c) Mr Andrew Leimroth, of Berrima Diesel Service who gave evidence as an

expert on behalf of the respondent.

(d) Mr Ray Spence, Manager of Canberra Automotive Engineering Services

who gave evidence as an expert on behalf of the applicant.

(e) Mr Trevor McPherson of Vehicle Engineering and Design Services, who

gave evidence as an expert on behalf of the applicant.

1 Competition and Consumer Act 2010 Schedule 2 Australian Consumer Law section 60

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5. Before the hearing Mr Quinn made a written submission to the tribunal that

Mr McPherson’s report should not be allowed into evidence as it constituted a

retailoring of the applicant’s case and was therefore an abuse of process. I

considered the objection at the hearing and did not uphold it.

6. At the hearing Mr Quinn further submitted that neither Mr Spence nor

Mr McPherson were qualified to give expert evidence as neither had

acknowledged the Expert Witness Code of Conduct in their reports. After

considering Mr Quinn’s submissions, the contents of their reports and the two

witnesses oral evidence on the issue I was satisfied as to their qualifications and

allowed them to give evidence as experts.

7. Mr Quinn then submitted that the Tribunal should treat Mr Boyd as an expert

witness, a request I considered and declined. Mr Boyd was however able to give

valuable evidence of what he observed when he examined the vehicle after the

applicant returned it to the respondent following the breakdown.

8. After hearing the parties’ evidence and submissions on liability I reserved my

decision. This is my decision on the respondent’s liability.

9. In reaching my decision I have relied on the parties’ written and oral

submissions, the oral evidence at the hearing, and the following documents filed

by the parties:

(a) Expert report of Ray Spence dated 2 December 2016.

(b) Expert report of Trevor McPherson with annexures dated 9 May 2017,

including Oil Condition Summary Report (Annexure 3).

(c) Letter of Ray Spence with enclosed DVD showing lathe test on valves

dated 10 May 2017.

(d) Amended application filed 11 May 2017.

(e) Applicant’s timeline of events filed 11 May 2017.

(f) Applicant’s submissions filed 11 May 2017.

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(g) Statement of Craig Boyd – undated but filed by the respondent on 24 May

2017.

(h) Expert report of Andrew Leimroth with annexures dated 19 May 2017,

including the Engine Control Module report (Annexure “A”).

(i) Response filed 30 March 2017.

10. I did not take into account the material that Mr McPherson sent to the tribunal

after the hearing.

The factual background

11. I am satisfied of the following facts, which were either self-evident,

uncontroversial, or within the exclusive knowledge of Mr Kennedy whom I

found to be a reliable witness.

12. In November or December 2014 Mr Kennedy bought a second hand

Volkswagen Crafter Van 2010 automatic diesel that had been customised as a

camper van.

13. Mr Kennedy did not have the vehicle mechanically checked prior to purchase

and instead relied on the warranty.

14. During these proceedings Mr Kennedy contacted the seller and asked whether

the vehicle had suffered a catastrophic event during the time they owned it but

they were unable to confirm or deny such an occurrence.

15. Mr Kennedy did not experience any engine problems before the timing belt was

replaced.

16. The respondent company provides motor vehicle repair and maintenance

services to consumers. Mr Kennedy had the van regularly serviced, almost

exclusively by the respondent. The respondent never raised any issue with the

engine with Mr Kennedy.

17. Mr Kennedy dropped his van at the respondent’s workshop for a routine service

and replacement of the timing belt kit. Upon collecting the van on 16 November

2016 he noticed the engine tone sounded “notably different”.

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18. The noise prompted Mr Kennedy to check the oil and water when he stopped on

the way home at a petrol station to fill up with diesel. As “everything looked

alright under the bonnet…”2 he continued to drive home.

19. He mentioned in passing conversation the changed engine tone to a friend who

had had a similar experience after having his car serviced and was reassured by

his friend’s response that his engine tone returned to normal after the next

service.

20. The following day Mr Kennedy lent the vehicle to his son-in-law to drive to

Port Macquarie. Within 100 kilometres of travel the engine suffered

catastrophic damage causing the vehicle to come to a sudden stop.

21. The vehicle was towed to the respondent’s workshop at Belconnen where

Mr Boyd later examined it.

The issues

22. The central issues for me to determine are:

(a) What caused the engine failure?

(b) Was that cause due to the respondent’s failure to exercise due care and

skill?

(c) Was Mr Kennedy negligent in allowing the vehicle to be driven after

noticing the changed engine tone; and if so

(d) Did such negligence cause or contribute to the damage?

The agreed technical background

23. To their credit all the experts frankly conceded that they were unable to

definitively identify every event in the causal chain leading to the engine failure,

but the following facts were uncontroversial.

24. The applicant’s vehicle had a 5-cylinder diesel engine and an automatic

transmission.

2 Transcript of proceedings 12 July 2017 page 52

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25. The engine failure started with a part within the cylinder 1 head breaking or

bending leading to metal debris being released within the cylinder causing

further damage.

26. The valves, piston head and top of the chamber in cylinder 1 sustained major

damage.

27. All the experts observed more minor marks – pits and dents – to the other four

cylinders but interpreted their significance differently.

The cause of the engine failure

The applicant’s timing theory

28. The applicant’s experts identified the root cause of the engine failure as an

engine timing error.

29. The timing belt is critical to engine timing as it synchronises crankshaft and

camshaft rotation. It does so by connecting the crankshaft – which rotates to

push the pistons up the cylinder – to the camshaft, which rotates to make the

valves open and close. Teeth on the timing belt mesh with teeth on the end of

the crankshaft and the camshaft to keep them in time.

30. Failure to synchronise correctly can upset the timing of valve opening

potentially causing valves and pistons to collide. Mr McPherson argued that this

is a particular risk in interference engines, such as the applicant’s, where the

exhaust valve and the piston travel in close proximity.

31. At the hearing Mr McPherson told the Tribunal that since writing his report he

revised his opinion and now thought the margin of error in Mr Kennedy’s

engine even smaller than he originally assumed so that a very slight timing error

could have caused the serious damage suffered.

32. In Mr McPherson’s opinion cascading damage to cylinder 1 was triggered by

the piston and exhaust valve coming into slight but repeated contact eventually

causing the exhaust valve to fail in fatigue, break off and bounce around inside

the cylinder. He maintains that in the other four cylinders the pistons had been

contacting the corresponding exhaust valves in the same way, but it was the

valve in cylinder 1 which succumbed first leading to the engine failing.

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33. Mr McPherson told the Tribunal that such a failure by fatigue was more likely

to result after extended travel, 100 kilometres being a reasonable estimate, than

from impacts caused by relatively brief death throes of the engine.

34. Mr Spence and Mr McPherson observed the following damage in cylinders 2, 

3,  4  and 5 which they claimed was consistent with repeated slight contact

between the exhaust valves and piston heads:

(a) The exhaust valves were bent, that is, the heads were not square with the

stems,3 as demonstrated by the lathe test on all the valves conducted by

Mr Spence.

(b) Corresponding ‘witness’ marks on at least some of the valves and pistons.

35. They claimed the damage referred to above appeared recent and not historic as

asserted by Mr Leimroth. In particular Mr McPherson disputed the marks were

covered by carbon to the extent claimed by Mr Leimroth.

36. Mr McPherson also relied on an oil analysis done after the breakdown, which

showed abnormally high levels of aluminium in the engine oil, which had been

replaced in the service4. He claimed the elevated levels were consistent with

prolonged wear to the aluminium pistons rather than the stresses caused by its

final rapid deceleration.5

37. Although Mr McPherson and Mr Spence attributed the engine failure to a

timing error arising about the time of the service they were unsure as to the

precise cause of the error and hypothesised that it was caused by the

respondent’s mechanic failing to follow the proper procedure when fitting the

replacement timing belt in one of the following ways:

(a) The timing belt kit was incorrectly aligned with the camshaft. (Mr Spence); or

3 Ray Spence’s letter of 10 May 2017 and enclosed DVD showing lathe test

4 Attachment 3 to Mr McPherson’s report of 9 May 2017.5 Which at the hearing Mr Leimroth estimated at 30 seconds see

transcript of proceedings page 52

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(b) The camshaft pulley slipped on the camshaft due to the camshaft nut

being inadequately tightened by the mechanic after fitting the new timing

belt. (Mr McPherson).

38. Mr McPherson explained the process for replacing the timing belt in his report

as follows:

The job of replacing a timing belt involves removing a number of ancillary parts, locking the crankshaft in position and loosening the camshaft pulley.

The process then involves removing the old belt, replacing it with a new one, partially tightening the nut locating the camshaft pulley onto the tapered keyless camshaft, tightening the belt tensioner, turning the motor over, checking the various timing marks, finally tightening the camshaft nut, and eventually and (sic) removing the cam and crankshaft locking devices.

If, in the course of this work, the mechanic gets distracted and fails to fully tighten the camshaft pulley, or does not tighten it to specification, then because this particular engine design does not have a key to position the camshaft pulley on the camshaft, as all motors historically had, it is possible that the camshaft pulley could slip on the shaft and put the real cam timing in error.6 (emphasis added)

The respondent’s hidden defect theory

39. Mr Leimroth offered an alternative explanation for the engine failure, that is,

that it might have been triggered by a latent defect arising from a previous

unknown catastrophic event.

40. In his opinion based on the level of carbon coating, the damage to cylinders

2, 3, 4 and 5 was old, and caused by the impact of metal debris released in an

event which occurred before the service. He explained that this damage could

not have been detected without dismantling the engine head, a procedure not

required in the course of a normal maintenance and service.

41. Mr Leimroth told the Tribunal that the damage caused by the previous event had

been only partially fixed. The engine had been dismantled, cleaned up and put

back together leaving the engine components, including the valves, potentially

6 McPherson report page 6

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weakened and susceptible to eventual failure without warning after extended

use.

42. At the hearing when asked how confident he was of his theory Mr Leimroth told

the Tribunal that previous engine damage could not be ruled out as the cause but

there were a lot of “ifs and buts” and he could not say on the evidence whether

the past damage had created stresses on the parts that failed.7 He conceded that:

I guess it comes down to, you know, the boys, obviously, in the workshop doing their correct job and when they’ve inspected it whether they’re being truthful or not8

43. Mr Leimroth was more confident in rejecting the applicant’s argument that the

respondent’s mechanic incorrectly installed the new timing belt for the

following reasons:

(a) Such a mistake would have triggered an error code and no such code was

recorded in the Engine Control Module (ECM) report.

(b) Upon the fault being logged the system would have overridden the engine

and put it into ‘limp mode’ and so the van could not have been driven.

(c) The timing belt would have been damaged. Mr Boyd gave evidence that

when he inspected the vehicle he found the belt undamaged and properly

tensioned.

(d) The resultant abnormal engine noise would have been obvious to the

mechanic prior to them releasing the vehicle. 9 In his report Mr Leimroth

based this conclusion on advice from Mr Boyd that the mechanic had test

driven the vehicle after fitting the belt.

44. In response to the loose nut theory Mr Boyd observed:

7 Transcript of proceedings 12 July 2017 page 428 Transcript of proceedings 12 July 2017 page 42

9 I hold this view because, as is standard practice, and upon questioning by me, Craig Boyd, the Fixed Operations Manager with the respondent confirmed that a number of final checks, including a test drive, were undertaken before it left the workshop. (see Leimrth Report Point 1 of General Observations). At the hearing Mr Boyd told the Tribunal that after the vehicle was returned he spoke to the mechanic who assured him that he had carried out the usual checks

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…I’m the only person, actually, in this room that inspected the engine after it had been returned to us and I can tell you that every – all of the relevant parts were tensioned correctly and there was no loose bolts or loose anything.10

Mr McPherson’s response

45. Mr McPherson responded to Mr Leimroth’s objections to the timing error

theory as follows:

(a) The camshaft sensor, due to its fixed location may not have detected the timing error and recorded it in the ECM as the sensor is only triggered by a fault in that specific location:

The sensor is on the camshaft pulley not the camshaft. So if you

have the pulley set up in the right position but the camshaft moves

slightly in relation to that pulley, the engine doesn’t see the error at

all.11

(b) If the error was not detected limp mode would not have been activated.

(c) The slight timing error postulated by Mr McPherson would not have caused immediate dramatic signs such as a loud noise or an inability to drive.

46. Mr McPherson offered the following alternative scenario if Mr Boyd had indeed

found the camshaft nut correctly tightened after the incident. That is that the

mechanic after fitting the new belt correctly may have initially tightened the

bolt too loosely, removed the locking devices, and then turned the engine over

causing the belt to slip very slightly, potentially by two teeth or less, before

retightening the bolt in the wrong spot.12

Analysis of evidence of cause and conclusions

47. The only evidence as to how the respondent’s mechanic actually conducted the

work was Mr Boyd’s oral evidence that the mechanic had told him that he had

conducted the final checks, including test-driving the vehicle, before releasing it

to Mr Kennedy. Whilst I am not obliged to apply the rule against hearsay13 I

10 Transcript of proceedings 12 July 2017 pages 34-3511 Transcript of proceedings 12 July 2017 page 3812 Transcript of proceedings 12 July 2017 page 3713 ACT Civil and Administrative Tribunal Act 2008 section 8, which

provides that the Tribunal need not comply with the rules of evidence

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found this evidence of no probative value because the mechanic was not called

to elaborate and to be tested on his version of events.

48. Instead I relied upon the expert evidence based on the condition of the engine

after the incident. As well as Mr Boyd’s observations of the engine when the

applicant returned it following the breakdown.

49. I prefer the timing error explanation for the engine failure on the basis of logical

appeal for the following reasons.

50. Mr Leimroth discounted the possibility that a timing error caused the applicant’s

vehicle to break down but when tested at the hearing he expressed little

confidence in the only alternative explanation he could offer, that is, that

historic damage caused the failure.

51. I accept that the lathe tests Mr Spence conducted on the valves showed that

exhaust valves in cylinders other than cylinder 1 were bent and both his and

Mr McPherson’s observations of the witness marks to the pistons and valves in

those cylinders. I also accept their conclusions that such damage is consistent

with a timing error affecting all cylinders simultaneously but to varying extents.

52. Mr McPherson was able to plausibly rebut most of Mr Leimroth’s objections to

the timing error explanation. I also accept Mr McPherson’s evidence of the

particular susceptibility of interference engines like Mr Kennedy’s to slight

timing errors.

53. Earlier in this decision I accepted Mr Kennedy’s evidence that the engine ran

without trouble or symptoms and was regularly serviced from the time he

bought it in late 2014 until he collected it from the respondent’s workshop in

November 2016. There was no record of any engine trauma prior to him

purchasing the vehicle.

54. I also accepted Mr Kennedy’s evidence that almost immediately upon collecting

his van he noticed a different engine tone. It seems likely in hindsight that this

noise was the sound of an engine under stress.

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55. I find it unlikely that the engine harboured a hidden defect for approximately

two years without symptoms and without being detected during regular service

and maintenance before suddenly manifesting with catastrophic results shortly

after the timing belt was replaced.

56. I am satisfied by the evidence on the balance of probabilities that after the

respondent replaced the timing belt the piston stroke in all cylinders was not

properly synchronised with the opening and closing of the engines valves –

causing the piston at the end of the exhaust stroke to lightly strike the edge of

the exhaust valve before it closed instead of stopping just short of the flush

surface of the closed valve. That repeated small impact over a distance of

approximately 100 kilometres caused metal fatigue in the valve leading to fatal

damage in cylinder one and less advanced damage to the other cylinder heads.

57. Whilst the precise cause of the timing error is unclear I am also satisfied on the

balance of probabilities that the respondent in the process of fitting the new

timing belt somehow disrupted the camshaft timing.

Did the respondent fail to exercise due care and skill?

58. I conclude that the respondent’s mechanic failed to exercise due care and skill in

replacing the timing belt kit and that that failure caused the damage to the

applicant’s engine for the reasons set out below.

59. On the balance of evidence I am satisfied that the timing error was relatively

small and the immediate signs that something was wrong were relatively subtle.

Nevertheless it should not have happened.

60. Replacement of a timing belt is a regular and routine maintenance procedure

and does not usually result in an engine timing error. Accordingly I infer that

the error could have been avoided if the respondent’s mechanic had used due

care and skill and followed the correct procedure in fitting the new belt, making

any necessary adjustments and conducting final checks.

61. In all the circumstances it was reasonable foreseeable by the respondent that

failure to use due care and skill in replacing the timing belt could lead to a

timing error resulting in the type of damage sustained by the applicant’s engine.

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Was the applicant negligent?

62. The evidence is insufficient to establish whether the mechanic test-drove the

vehicle after replacing the timing belt as he should have, and if he did, whether

he heard the noise. But I accept Mr Kennedy’s evidence that when he collected

the vehicle it sounded different enough for him to check the oil and mention it

to a friend. However he was not concerned enough to return it to the respondent

or prevent it from being driven further.

63. Although he is mechanically minded Mr Kennedy is not a motor mechanic and

had no reason to think at the time that the change in engine tone indicated

imminent engine failure. He reasonably relied on the fact that the respondent

had just serviced his van. He double checked the oil level and was reassured by

his friend’s remarks. In all the circumstances I find he was not negligent.

………………………………..Senior Member E Ferguson

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HEARING DETAILS

FILE NUMBER: XD 220/17

PARTIES, APPLICANT: Ernest Kennedy

PARTIES, RESPONDENT: Belconnen Automotive Pty Limited Trading as Gerald Slaven Volkswagen

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT JD Law

SOLICITORS FOR RESPONDENT KQ Lawyers

TRIBUNAL MEMBERS: Senior Member E Ferguson

DATES OF HEARING: 12 July 2017

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