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Court of Appeal of New Zealand |
Last Updated: 9 August 2018
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BETWEEN |
BUTCH PET FOODS LIMITED Applicant |
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AND |
MAC MOTORS LIMITED Respondent |
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Hearing: |
11 June 2018 |
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Court: |
Winkelmann, Clifford and Williams JJ |
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Counsel: |
P T Finnigan for Applicant M Wilkinson as director of Respondent |
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Judgment: |
27 July 2018 at 4 pm |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
[1] This is an application for leave to bring a second appeal.
Background
[2] Butch Pet Foods Ltd uses Hino trucks in its business. Mac Motors Ltd repaired one of Butch’s Hino trucks. Some three months later, that truck broke down again. Butch said that breakdown was caused by Mac’s faulty repair work. Butch sued Mac for some $32,500 in the District Court. Butch failed.[1] Butch appealed to the High Court, and (largely) failed again.[2] Butch applied to that Court for leave to bring a second appeal to this Court. That application was declined.[3]
[3] Butch now applies to this Court for leave to bring a second appeal. Mac opposes.
Second appeals — the law
[4] The test for leave to bring a second appeal to this Court is well established. The proposed appeal must raise some question of law or fact capable of bona fide and serious argument, in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.[4] On a second appeal this Court is not engaged in the general correction of error. Its primary function is to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a court.[5]
Submissions
[5] Butch says those tests are satisfied here: the question of law involved is the way in which judges must determine conflicts of evidence between experts.
[6] In the District Court, Butch’s experts said the breakdown was caused by the way in which Mac negligently failed to properly tighten a series of bolts forming part of the flywheel housing: the bolts had subsequently come loose, which in turn caused the flywheel and clutch housing to fail.
[7] Mac’s experts said the cause of the flywheel and clutch assembly failing was the way a Butch employee had driven the Hino truck, regularly “stall stopping”. Driving that way had, over time, exposed the flywheel bolts to severe stress. On the day in question they had all failed simultaneously. There was no evidence the bolts had not been tightened by Mac properly.
[8] In applying for leave to bring a second appeal Butch says that, in preferring the evidence of Mac’s experts, the Judge failed to engage with the evidence. Rather, she had made unjustified, general, findings of credibility and reliability. She had not given the required reasoned account as to why the approach of Mac’s experts was to be preferred over those of Butch’s experts.
The expert evidence
[9] Butch called three experts:
- (a) Mr Paul Barton — an experienced automotive mechanic;
- (b) Mr Peter Cress — the general manager for Hino trucks in Auckland and an experienced automotive mechanic; and
- (c) Mr Peter Wilcox — a metallurgist.
[10] Butch’s experts gave evidence that the bolts had been torqued incorrectly, that is under tightened. As a result, they had loosened, damaging the flywheel and crankshaft joint until they all sheared.
[11] Mr Wilcox also suggested that a transport bolt had been left in place after the respondent had reinstalled the clutch: the presence of that had caused/contributed to the vibration, loosening and then shearing.
[12] Mac called two experts:
- (a) Mr Timothy Smithson — an experienced automotive engineer; and
- (b) Dr Jonathan Smith — a metallurgist.
[13] Mac’s experts disputed the incorrect torquing of the flywheel theory. They also gave evidence that, even if a transport bolt had been left in, it could not have occasioned such a vibration as to cause all of the flywheel bolts to loosen and then shear off. The cause was instead shock loading from driver abuse.
[14] That proposition was put to Mr Cress when he gave his evidence in chief. His view was that it was “highly unlikely” that was the cause of what had happened.
[15] Both parties called a number of other witnesses, but their evidence was not challenged.
Question of law or fact capable of bona fide and serious argument?
First and third grounds
[16] The first proposed ground of appeal is that the Judge was required to provide adequate and cogent reasons to support the strong adverse credibility findings made against Mr Barton and Mr Wilcox, and had not done so. The third proposed ground of appeal is that Judge Sharp failed to coherently reason why one set of witnesses should be preferred to the other set of witnesses.
[17] Butch says there was no rational reason for the Judge to prefer Mac’s witnesses. In particular, Mr Barton’s evidence was criticised by Mr Smithson for not identifying the root of the problem. But, Mr Barton had greater experience than Mr Smithson.
[18] The Judge was also wrong to criticise Mr Wilcox’s evidence for being outside his field of expertise. It was not.
[19] As those grounds overlap, we address them together.
[20] Both grounds are advanced by reference to the English Court of Appeal’s decision in to English v Emery Reimbold & Strick Ltd.[6] In that case, the English Court of Appeal noted:[7]
... we are concerned [with] conflicts of expert evidence. In Flannery Henry LJ quoted from the judgment of Bingham LJ in Eckersley v Binnie (1988) 18 Con LR 1 at 77–8 in which he said that “a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal”. This does not mean that the judgment should contain a passage which suggests that the Judge has applied the same, or even a superior, degree of expertise to that displayed by the witness. He should simply provide an explanation as to why he has accepted the evidence of one expert and rejected that of another. It may be that the evidence of one or the other accorded more satisfactorily with facts found by the Judge. It may be that the explanation of one was more inherently credible than that of the other. It may simply be that one was better qualified, or manifestly more objective, than the other. Whatever the explanation may be, it should be apparent from the judgment.
[21] In the present case, the Judge provided a very careful assessment of Mr Barton and Mr Wilcox’s evidence at [42] to [61] of her judgment.
[22] From that analysis, it is evident that Judge Sharp had a number of reasons for preferring the respondent’s witnesses over Mr Barton and Mr Wilcox. As relevant, they include that Messrs Barton and Wilcox:
- (a) failed to be objective (at [43]);
- (b) lacked expertise/training (at [44]);
- (c) failed to adhere to expert’s code of conduct (at [43]);
- (d) made statements lacking scientific evidence to support them
(at [46]–[47]).
[23] At the same time, the Judge noted instances where Mr Barton and Mr Wilcox’s views were at odds with the evidence before the court, and in particular, where Dr Smith’s evidence as to causality was persuasive.
[24] In our view, the Judge has given extensive reasons for preferring the respondent’s witnesses over Messrs Barton and Wilson, which fulfils her obligation to resolve that conflict of expert evidence. The Judge may not herself have engaged directly with the technical aspects of the difference in the experts’ evidence. But, as the decision in English v Emery Reimbold & Strick Ltd makes clear, she was not required to.[8] After all, expert evidence is given to the Court because the Court is not an expert. Often, to reconcile the technical aspects of differing experts’ views would require a third expert to give her opinion as to the correct outcome. The Judge’s reasons for preferring certain experts’ evidence over others are well explained in her judgment, and meet the criteria described in English v Emery Reimbold & Strick Ltd.
Second ground — Mr Cress’ evidence
[25] The second proposed ground of Butch’s appeal is that Judge Sharp was required to deal with, and not disregard, the evidence of Mr Cress that driver-abuse would not cause adequately tightened flywheel bolts to loosen and unwind. That evidence, Mr Finnigan argued on behalf of Butch, was cogent, reasoned and impartial. While the respondent’s witness Dr Smith gave evidence that he disagreed with Mr Cress’ assessment, Dr Smith did not give reasons for that disagreement. Thus it was not enough for the Judge simply to “prefer” Dr Smith’s view.
[26] Did Judge Sharp deal with Mr Cress’ evidence appropriately?
[27] In his written statement, Mr Cress focused on the alleged failure to remove the transport bolt. In evidence-in-chief, he was also asked whether, as Dr Smith had opined, the “stopping/starting” practice could “have caused the problem”. As noted, Mr Cress said that was “highly unlikely”. Mr Cress acknowledged that the practice of crash starting the truck, without using the starter motor, and stopping the truck by stalling it through engaging a high gear, did occur. But, he said, the torque through the drivetrain produced by that practice was minimal compared to that which occurred when the engine was going uphill in an appropriate gear. Hence his “highly unlikely” view.
[28] Dr Smith’s written statement dated 4 February 2016 concluded:
23. The shock loading applied in this case was caused by the driver [applying] a repeated dead shock loading by dropping the clutch and causing the engine to stall. Each cycle of dead shock loading produced stresses that the engine flywheel assembly are designed to resist and the abuse of the vehicle was the primary cause of failure. The inertia mass of the flywheel and crankshaft combined caused by rapid deceleration would generate very large forces.
24. The physical evidence is consistent with the above failure scenario. The vehicle having travelled more than 18000 kms since the clutch was replaced. In the event that failure was due to lack of clamping force being applied then it would be expected that failure would occur in a significantly shorter period of time and lower total mileage accumulation. The physical evidence shows that the failure was rapid and this shows that failure initiation and damage processes occurred relatively late in the total mileage accumulation after service by [Mac]. If the bolt clamping forces had been insufficient then failure would have progressed slowly and the fracture morphology of the bolts would have been different and there would be no evidence of shock loading.
[29] Mr Finnigan put Mr Cress’ “highly unlikely” assessment of “stall stopping” and “crash starting” being the cause of the failure to Dr Smith during crossexamination. The following exchange occurred:
A I disagree with that analysis.
Q But you’ve got no trucking experience have you?
The Court
[30] Further questions from the Court and Mr Finnigan followed, with Dr Smith maintaining his position.
[31] Mr Cress’ more general evidence was also put to Dr Smith in crossexamination many times.
[32] Each time, Dr Smith stated that he disagreed with it. When pressed, he said it was “a very one-sided assessment”, “just supposition” and did not “fit the physical evidence”. Shock loading was “the only cause”.
[33] Butch’s submission — that Dr Smith did not give any reasons for disagreeing with Mr Cress’ “reasoned opinion” — is unfounded.
[34] Butch is left with the general submission that the Judge failed to deal with the evidence of Mr Cress that driver-abuse would not cause adequately tightened flywheel bolts to loosen and unwind. The Judge’s questions of Dr Smith during the trial demonstrate her engagement on the point. Moreover, and as the Judge noted, Dr Smith disagreed with Mr Cress.[9] The Judge accepted Dr Smith’s evidence.[10] Mr Cress’ evidence was rejected because it was in conflict with evidence that the Judge determined was to be preferred. The Judge did engage with and explain why she did not accept Mr Cress’ evidence.
Other considerations
[35] Even if there had been some inadequacy in the way Judge reasoned, there are other, important reasons why this is not a matter appropriate for a second appeal. The amount involved is relatively small. The parties have had an extensive factual inquiry before the District Court: the hearing occupied nine days, over a period of three weeks (19 January to 13 February) and generated a transcript of over 700 pages of evidence. Brewer J, in turn, provided an exhaustive analysis of the facts, a careful consideration of the law and a carefully reasoned judgment.
[36] Further inquiry into this essentially factual dispute would not, in these circumstances, be an appropriate use of this Court’s time and resources.
Result
[37] The application for leave to bring a second appeal is declined.
[38] Mac has been represented by its director, Mr Wilkinson, throughout. There is therefore no order for costs.
Solicitors:
Romaniuk &
Associates, Auckland for Applicant
[1] Butch Pet Foods Ltd v Mac Motors Ltd [2017] NZDC 2826.
[2] Butch Pet Foods Ltd v Mac Motors Ltd [2017] NZHC 2473.
[3] Butch Pet Foods Ltd v Mac Motors Ltd [2018] NZHC 198.
[4] Cuff v Broadlands Finance Ltd [1987] NZCA 93; [1987] 2 NZLR 343 (CA) at 346–347.
[5] Waller v Hider [1997] NZCA 221; [1998] 1 NZLR 412 (CA) at 413.
[6] English v Emery Reimbold
& Strick Ltd [2002] EWCA Div 605[2002] EWCA Civ 605; , [2002] 1 WLR
2409.
[7] At [20].
[8] At [20].
[9] Butch Pet Foods Ltd, above n 1, at [53].
[10] At [57].
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