New South Wales Court of Appeal CITATION : PARTRIDGE v. B.M.W. AUSTRALIA LIMITED & ORS. [1999] NSWCA 252 FILE NUMBER(S) : CA 40123/97 HEARING DATE(S) : 21 April 1999 JUDGMENT DATE : 19 August 1999 Roger Gary Partridge (Appellant) PARTIES : B.M.W. Australia Limited (1 Respondent) Tom Byrne Pty. Limited (2 Respondent) Bayerische Motoren Werke AG (3 Respondent) JUDGMENT OF : Powell JA at 1; Beazley JA at 75; Stein JA at 76 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 7653/94 LOWER COURT JUDICIAL OFFICER : Sinclair DCJ P.A. Johnson SC and P.M. Skinner (Appellant) COUNSEL : S.R. Donaldson (1, 3 Respondents) D.G.T. Nock SC and S.E. Torrington (2 Respondent) A.C. Boyle Neilson & Co. (Appellant) SOLICITORS : Minter Ellison (1,3 Respondents) Phillips Fox (2 Respondent) CATCHWORDS : CONTRACT - Sale of goods - Motor cycle - Manufacturer sells goods to Australian distributor - Australian distributor sells goods to dealer on receipt of order from dealer - Dealer delivers order to Australian distributor on receipt of order from purchaser - Purchaser not brought into contractual relationship with either manufacturer or Australian distributor; NEGLIGENCE - Manufacturer of goods - Distributor of goods - Liability for damage caused by goods purchased through dealer - Alleged latent defect in goods - Alleged defect in design of goods or in materials used in manufacture of goods; NEGLIGENCE - Proof of - Res ipsa loquitur - Throttle on motor cycle jamming while motor cycle being ridden at speed - Whether inference of negligence available; SALE OF GOODS - Conditions and warranties - Whether sale by description - Whether purchaser relied on seller's skill and judgment - Whether goods of merchantable quality DECISION : Appeal dismissed 48 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40123/97 DC 7653/94 POWELL JA BEAZLEY JA STEIN JA 19 August 1999 PARTRIDGE v. B.M.W. AUSTRALIA LIMITED & ORS. JUDGMENT 1 POWELL JA: This is an appeal from a Judgment delivered, and verdict found, by Sinclair DCJ on 14 February 1997 in proceedings which had been brought by the Appellant - originally against four defendants but, in the end, only against the three Respondents - seeking damages in respect of injuries which he sustained in an accident which occurred when he was riding his motor cycle - a B.M.W. Model K100RS - on Eastern Valley Way, Castle Cove on 15 September 1985. 2 In the Statement of Claim which was filed - originally in the Common Law Division of this Court - on behalf of the Appellant, the Appellant's claim against the First Respondent ("BMW Aust") was framed upon two distinct bases: (a) statutory counts based upon the provisions of the Trade Practices Act 1974 (Cth) ("the TP Act") which rendered BMW Aust, as the importer of the Appellant's motor cycle, the deemed manufacturer of the motor cycle (TP Act s. 74A(4)) and liable to compensate "the consumer" of the motor cycle for the loss and damage which the Appellant had suffered by reason of the fact that the motor cycle was not fit "for the purpose of normal safe riding of (the) same" (TP Act s. 74B(1)) and made BMW Aust liable to compensate the Appellant as the "consumer" of the motor cycle for the loss and damage which he had suffered by reason of the fact that the motor cycle was not of merchantable quality (TP Act s. 74D(1)); (b) the negligence of BMW Aust in the preparation for sale and the distribution for sale of the motor cycle by reason of which negligent preparation and distribution the Appellant sustained the injuries of which he complained. 3 Although the Appellant's claim against BMW Aust was framed in the way to which I have just referred, the Judgment delivered by Sinclair DCJ makes it clear that so much of the Appellant's case as depended upon the provisions of the TP Act was not relied upon at trial, the Appellant's claim against BMW Aust at trial being limited to the claim in negligence. That the case based upon the provisions of the TP Act was not relied upon at trial is hardly surprising since s.74J of the TP Act provides that an action under a provisions of Division 2A of Part V of the TP Act - within which Division ss. 74B, 74D are to be found - "may be commenced at any time within 3 years after the date on which the cause of action accrued". 4 In the Statement of Claim, the Appellant's case against the Second Respondent, Tom Byrne Pty. Limited ("Tom Byrne"), from which he had bought the motor cycle, was framed in contract, relying upon similar, although not identical, provisions of both of the TP Act and of the Sale of Goods Act 1923 ("the SG Act"), it being alleged that the motor cycle was not reasonably fit for the purpose of normal safe riding (TP Act s. 71(2); SG Act s. 19(1)) and, as well, that the motor cycle was not of merchantable quality (TP Act s. 71(1); SG Act s. 19(2)) by reason of which breaches the Appellant sustained the injuries of which he complained in the proceedings. 5 Although the Appellant's claim as so framed relied upon the provision of both the TP Act and the SG Act, it appears that, at trial, the Appellant did not seek to rely upon the provisions of the TP Act, but relied solely upon the provisions of the SG Act. That this should have been so is again hardly surprising since s. 82 of the TP Act provides that an action seeking to recover damages in respect of a contravention of a provision of (inter alia) Part V of that Act - within Division 2 of which Part the provisions of s. 71 may be found - "may be commenced at any time within 3 years after the date on which the cause of action accrued". 6 In the Statement of Claim, the Appellant's case against the Third Respondent Bayerische Motoren Werke AG ("BMW") was framed in negligence, the negligence assigned being negligence in the design, manufacture and distribution for sale of the motor cycle. The particulars of negligence which given were as follows: (a) failure to adequately design the throttle mechanism on the motor cycle so as to avoid jamming; (b) failure to adequately manufacture the throttle mechanism on the motor cycle so as to avoid jamming; (c) failure to adequately inspect the throttle mechanism on the motor cycle before the distribution for sale of the motor cycle; (d) failure to detect the defect in the throttle mechanism on the motor cycle before the distribution for sale of the motor cycle. 7 This reference to the particulars of negligence given in relation to the Appellant's claim against BMW makes it convenient here to give some background material in relation to BMW and BMW Aust. 8 As will be apparent from what I have earlier written, BMW designs and manufactures (inter alia) motor cycles, that apparently being done at its works which appear to be located in, or near, Munich which is in the State of Bavaria in Germany. As is probably common with all motor vehicle manufacturers and motor cycle manufacturers, some, at least, of the component parts of motor cycles designed and manufactured by BMW are not manufactured by it but are supplied to it by specialist manufacturers. That appears to have been the case in relation to some, at least, of the components which operated the throttle on motor cycles of the type which was bought by the Appellant from Tom Byrne. 9 As explained by Mr. Busch who, at the time of the hearing before Sinclair DCJ, was the manager, product analysis, of BMW (AB 150-151): "… I think we should better start out with the quality procedure from the manufacturer from the supplier's side. First after a part is designed, the supplier delivers a - what we call a first sample of autoseries production and these first sample is tested to our specifications as they are put down in the drawing, in the design drawing and from this test there is a report written, what we call a first sample test report and in this report it must be stated that the report complies to all specifications as put out in the design drawing. Afterwards the supplier is forced to do a series - test series testing. That means on a spot check basis. For example, out of a number of a hundred you take two or five pieces and test those parts to the specifications of the drawing. That is it's kind of a statistical quality control process. Additionally in Berlin and the factory after the parts were delivered by the manufacturer, those parts are again tested on a spot check basis. That means also a certain sample number is taken out of the whole delivery and tested for specifications. Additionally the functional tests are then performed after the production of the motor cycle when the motor cycle is ready and, for example, regarding the twist grip mechanism and the bowden cable on the mechanism, the functional testing is done on a dynamometer, testing when somebody is actually driving the motor cycle on that dynamometer. ……… Q. Were there any standard directions given to assembly line worker concerning the assembly of parts of motor cycles in 1983 and 1984? A. The line workers themselves, they have written instruction on what they have to do on that place where they are working and this written instruction also includes that if they come up with let's say mistakes on parts, they are instructed to put away the parts and instruct supervisor that there are faulty parts." 10 The throttle mechanism on the engine of a K100RS motor cycle was operated by means of a Bowden cable which was, in its turn, operated by means of a twist grip mechanism which was located on the right hand handlebar of the motor cycle. 11 Although it is not entirely clear that this was so, it appears that the cable proper is fitted within a protective sheath, there being fitted to each end of the cable a ferrule which, at its lower end, fitted into the throttle mechanism on the engine and, at its upper end, fitted into a slide block which formed part of the twist grip mechanism. The throttle cables used on K100RS motor cycles were supplied to BMW by a company apparently known as F Point Platen Incorporated GmbH ("Platen") a company which, as it would appear, by the time of the hearing, had supplied BMW with throttle cables for about 20 years without significant problems (AB 152) and which also manufactured throttle cables for motor vehicle manufacturers such as Mercedes-Benz, Volkswagen and Audi (AB 150). 12 The twist grip mechanism was supplied to BMW as part of a whole assembly which included, as well, a brake master cylinder, brake lever and brake fluid reservoir, by a company apparently known as Magura GmbH ("Magura"). The function of the twist grip mechanism is to convert the forces generated by a twisting motion on the twist grip into a lateral motion which will draw the throttle cable into the body of the assembly thus opening the throttle, the throttle cable being returned under pressure from a return spring when the twisting motion is reversed. This result is achieved by a toothed gear attached directly to the twist grip, which gear in its turn fits with another toothed gear on an assembly to which there is fitted a link chain, at the end of which is fitted a slide block into which the ferrule on the upper end of the throttle cable fits. That part of the mechanism where the teethed gears, link chain and slide block are to be found are, when fully assembled, held in place, and covered, by a fixed plate. Immediately to the left of the twist grip and apparently integrated into the mechanism is located what has been described as a toggle "kill" switch, the function of which is to interrupt the electric power supply to the ignition, fuel injection, fuel pump and starter motor so that the engine can be stopped immediately in an emergency. According to Mr. Busch (AB 152), in the course of assembly of a motor cycle: "… this whole assembly is simply put on the steering bar of the - it's kind of a sliding motion on that - the tubular thing and then by means of two screws it's clamped to the steering bar and additionally the brake lines are then attached to the brake master cylinder and that's it basically. …….. If an assembly line worker - when he is going, for example, to attach the bowden cable to the twist grip mechanism and he will find that there is no lubrication on the twist grip mechanism, he will again take the - take away that part and not give it into further line production." As was the case with Platen, BMW, by the time of the hearing, used parts supplied by Magura for about 20 years without any significant problems. 13 In 1984, BMW Aust imported - and perhaps it still does import - motor cycles manufactured by BMW direct from Germany. At that time they arrived in Australia within a shipping container which was delivered to the BMW Aust warehouse, each motor cycle being enclosed within a wooden transport crate with a plastic shield over the wooden panels. After delivery to the BMW Aust warehouse, the motor cycles were unloaded from the shipping container and stored within the warehouse until the receipt of an order from a dealer. At that time, BMW Aust did not - and it may still not - carry out any pre-delivery check of motor cycles delivered to dealers in response to orders lodged by them, the dealer being required to complete the pre-delivery inspection (AB 186). 14 A schedule (Exhibit 20 - AB 422) indicated that the pre-delivery check required the following (inter alia) steps: "The motor cycle is to be - Uncrated - Completed - Cleaned ……… - Safety/operating check as final inspection: - Idle speed, CO value - Clutch, gear shifting - Steering - Front and rear brakes - Telltale and warning lights, instruments, lighting and signalling equipment - ABS" (ABS referring to the anti-lock braking system) 15 The evidence of Mr. Adcock, who, at the time of the hearing before Sinclair DCJ was the National Motor Cycle Service Manager of BMW Aust was, in addition, that as part of the pre-delivery check, the dealer was required to check the throttle mechanism which would involve actually riding the motor cycle (AB 187). 16 Tom Byrne appears in 1984 to have been - and may still be - an authorised BMW dealer. Mr. Clark, who, both in 1984 and at the time of the hearing before Sinclair DCJ, was the Service Manager employed by Tom Byrne, gave the following evidence as to pre-delivery checks of BMW motor cycles sold by Tom Byrne (AB 254-255): "Q. Basically what is a pre-delivery? A. A pre-delivery is a service as specified by BMW. Usually involves things like mainly checks on oil, brake fluids, fitting up of the battery and then testing everything to see that it works. Q. As part of that testing is a road test involved? A. A road test is always involved. Q. If there was something faulty with the bike at pre-delivery what would you do? A. Rectify whatever it was. Q. In particular if there was a fault with the throttle what would you do? A. Rectify the fault. Q. In relation to the throttle of a BMW K100RS, how is a throttle check carried out? A. The throttle is first checked to make sure that it has the specified amount of free play with the cable, and then the throttle is checked for operation through its full range of operation, that it opens cleanly and returns cleanly, and then naturally, when it is road tested again as part of the riding there is the operation of the throttle. ……… HIS HONOUR: Q. When such a bike is road tested, in the course of road testing how far out do you open up the motor? Do you check it at full throttle? A. No, we certainly don't check it at full throttle. Basically the road test - my road test usually ranges about 7 to 10 kilometres, something of that nature and the bike is as far as the throttle is concerned is checked for acceleration, mainly in the lower gears, because you are governed by the speed limits, and basically you usually accelerated in first, second and maybe third gear, and then of course the riding in fourth, fifth gear is limited to what you can do. TORRINGTON: Q. When you check the throttle in those lower gears do you open it up fully, or only partially? A. Usually open it up fully until you reach a suitable speed and then back it off again. Q. So, as part of the road test is it correct to say that the throttle is at times fully opened, and at other times partially opened? A. Yes." 17 In January 1984 the Appellant signed an order form (AB 271) addressed to Tom Byrne for the supply of a "new BMW K100RS" the base price for which was apparently $6,795.00, the order form also providing for registration and stamp duty of $196.40, pre-delivery charges of $65.00 and "accessories" - the exact detail of which is difficult to discern (see AB 272) - of $1,136.00, total price being $8,290.40, against which an amount of $2,000.00 was allowed for a trade in of the Appellant's Honda XR350RD motor cycle, which motor cycle the Appellant had apparently bought from a Ric Andrews, who seems to have been a motor cycle dealer at Waitara (AB 42), in April 1983. 18 Although it is not clear when it was, the Appellant's evidence was that the motor cycle was delivered about 2 months after he lodged his order - the Rider's Handbook (AB 278-392) which appears to have been given to the Appellant at the time of the cycle being delivered to him would indicate (AB 379) that the pre-delivery check was carried out on 13 March 1984. The Rider's Handbook also indicates (AB 378) that there should be a first inspection after delivery at 1000 km (approximately 600 miles), a first service at 7500 km (5000 miles), a comprehensive inspection and service at 15000 km (10000 miles) and thereafter, alternatively, regular services and more comprehensive inspection routines at intervals of 7500 km (5000 miles). 19 A maintenance schedule for an inspection at 1000 km (Exhibit 21 - AB 423) provides (inter alia) the following: "- Check throttle free travel, cold starting operation and adjust if necessary - Check clutch operating clearance, and adjust if necessary - Check brake system connection and lines for leaks, damage or for correct/incorrect position: check front and rear brake fluid level and top up if necessary (only disc brake) ……… Final inspection with safety/operating checks - clutch, gear shifting - steering - frontbrake and rear brakes - condition of tyres and wheels, tyres pressures - lighting and signalling equipment, telltale, warning lights and instruments - check idle speed and adjust if necessary - check CO value and adjust if necessary - ABS" The evidence of Mr. Adcock (AB 188) and of Mr. Clark (AB 258) would indicate that a road test was associated with a 1,000 km inspection. 20 A maintenance schedule for services at 7,500 km and subsequent 15,000 km intervals (Exhibit 22 - AB 424) provides (inter alia) as follows: "- Change engine oil when operating temperature, renew oil filter element - Lubricate upper and lower clutch cable nipples and prop stand pivot ……… Final inspection and safety operating check - clutch, gear shifting - steering - Front and rear brakes, ABS - condition of tyres and wheels, tyre pressures - lighting, signalling equipment, telltale, warning lights and instruments - check idle speed and adjust if necessary" The evidence of Mr. Adcock (AB 188) and of Mr. Clark (AB 258) would indicate that a road test was associated with this service. 21 A maintenance schedule for an inspection at 15,000 km and at subsequent 15,000 km intervals (Exhibit 23 - AB 425) provides (inter alia) as follows: "- Lubricate upper and lower clutch cable nipples and prop stand pivot ……… - Check clutch operating clearance, and adjust if necessary - Check free travel at throttle and cold starting cables, and adjust if necessary ……… Final inspection with safety/operating check - clutch, gear shifting - steering - front and rear brakes, ABS - condition of tyres and wheels, pressure of tyres - lighting, signalling equipment, telltale warning lights and instruments - check idle speed and adjust if necessary - check CO value and adjust if necessary RECOMMENDATION: In severe operating conditions grease the throttle twist grip steering bearings again at least every 30,000 km (20,000 miles)." The evidence of Mr. Adcock (AB 188) and Mr. Clark (AB 258) would indicate that a road test was associated with such an inspection. 22 The Appellant's evidence at trial (AB 32) was that, as recommended in the Riders Handbook (AB 313), after he took delivery of the motor cycle and until the first inspection was due, he rode the cycle carefully in order that it might be "run in". 23 Although the Appellant seemed to suggest that, as recommended by the Riders Handbook, the motor cycle should have had a first inspection at 1,000 kms, it is by no means clear that that was so. This is due to the fact that the first in point of time (AB 395) of the Repair Order Cards which were tendered bears date 1 August 1984, the speedometer reading at that time being 3175 kms. The work the subject of that Order Card was carried out by Tom Byrne. The evidence of Mr. Adcock (AB 188) and of Mr. Clark (AB 258) would indicate that a road test would have been associated with this inspection. 24 The second in point of time (AB 394) of the Repair Order Cards which were tendered bears date 5 February 1985, at which time the speedometer reading was 9,360 kms. The Order Card - the reproduction of which in the appeal papers is not particularly clear - appears to record that the Appellant complained (inter alia) that the rear brake light was not working and that there was a "flat spot - won't go over 4,000 RPM", the latter complaint indicating that the motorcycle's acceleration at about that point on the revolution counter was irregular (AB 100). This service, as well, was carried out by Tom Byrne. The evidence of Mr. Adcock (AB 188) and of Mr. Clark (AB 258) would indicate that a road test would have been associated with this service. 25 The third in point of time (AB 393) of the Repair Order Cards which were tendered is dated 22 August 1985, at which time the speedometer reading was 15,882 kms. The Order Card - the reproduction of which, again, is not particularly clear - would indicate - contrary to the Appellant's evidence (AB 99) that, at the time, he complained that a tooth on a drive gear was broken, and that that was replaced under warranty. This service, too, was carried out by Tom Byrne. The evidence of Mr. Adcock (AB 188) and of Mr. Clark (AB 258) would indicate that a road test was associated with the service on this occasion. 26 The Appellant's evidence was (AB 73) that at no time prior to the accident in September 1985 had he ridden his motor cycle at a speed in excess of 80 to 100 kilometres and (AB 74) that at no time prior to that had he ridden his motor cycle with the throttle wide open, the latter claim, at least, being one which Sinclair DCJ (AB 463) found "a little difficult to accept". 27 As the Appellant's evidence at trial as to the circumstances of the accident was, in my view, both confused and confusing, what follows is the best which I can make of it. 28 On 15 September 1985, which was a Sunday, the Appellant, who then lived in a unit in Johnson Street, Chatswood, accompanied by his then companion, a Ms. McDonald, had been to dinner with friends, following which they had gone with their friends to their home at Manly Vale where they watched television, talked and had coffee. In what appears to have been the late evening - the Traffic Accident Report (Exhibit 18 - AB 419) which was tendered on the hearing would suggest that it was after 10.00 p.m. - the Appellant, who was riding his motor cycle with Ms. McDonald riding pillion, was returning to his home in Chatswood. When they did so, they travelled "from Manly Vale up to Allambie Heights" - presumably by way of Allambie Road - until they reached Warringah Road and then proceeded along Warringah Road across the Wakehurst Parkway and then along the Warringah Road through Forestville and Killarney Heights until they reached the Roseville Bridge which crosses Middle Harbour between Killarney Heights and Roseville Chase, their intention being to proceed then through the shopping centre at Roseville Chase to Babbage Road, which crosses Warringah Road, thence into Babbage Road and Boundary Street, Roseville and finally to Johnson Street, Chatswood. 29 The Appellant suggested (AB 34) that, although, at the time he reached the foot of the hill from Killarney Heights to the Roseville Bridge, he was travelling in fifth gear - top gear on the motor cycle - he was not travelling "very fast" as he crossed the bridge and began to ascend the hill from the bridge to the shopping centre at Roseville Chase and, accordingly - particularly as he had a pillion passenger - he opened the throttle fully in order to attain a sufficient speed to reach the top of the hill. The Appellant also suggested (AB 34) that, when he reached a point - which is anything but clear - at which he had attained a sufficient speed to reach the top of the hill, he "slackened off the throttle it was all loose, it wasn't still and (he) could wiggle it in (his) hands … without anything happening … the twist grip felt loose … it had no return on it. It was just completely … flapping in the breeze". 30 Despite the fact that, at the time, the Appellant had twenty-six years experience riding motor cycles (AB 31); despite the further fact that he had previously owned at least one other motor cycle manufactured by BMW (AB 31); despite the fact that, as I have earlier recorded, the ignition "kill" switch was immediately adjacent to the twist grip mechanism on the right hand handlebar of the motorcycle; despite the fact that, at the time, the motor cycle was still proceeding up hill; and despite the further fact that there was no other traffic around (AB 36), the Appellant did not attempt to activate the ignition "kill" switch; rather, at a point which seems as if it may have been two-thirds to three-quarters of the way up the hill (AB 36), he, so he said (AB 35) applied the brakes and attempted to come down through the gears so as to minimise his speed (AB 36). 31 Just as I have found the Appellant's failure to activate the ignition "kill" switch difficult to understand, so also do I find it difficult to understand the Appellant's evidence as to what he says occurred after he had reached a point between two-thirds and three-quarters of the way up the hill towards the shopping centre at Roseville Chase and before the accident. That evidence (AB 36-37) was as follows: "Q. So you changed down from 5th to 4th? A. Yes. Q. Where were you at that time? A. Probably about three-quarters, two-thirds of the way to about three-quarters of the way up the Roseville bridge hill. Q. Then what happened? A. Well, I was still braking and I changed down to 3rd gear. Q. Right, then what happened? A. I was approaching the dividing road where I usually turn right to go where we lived but the lights changed … Q. Do you know what the name of that road is? A. Babbage Road. It runs into Boundary Road. Q. Yes? A. And I couldn't then turn right so I proceeded in a straight direction onto the Eastern Valley Way. Q. You said the lights changed. What do you mean by that? A. Well, the lights went amber for my normal path to go home to Chatswood so I deviated from my normal path. Q. Then what did you do? A. I went down the Eastern Valley Way trying to slow the bike down with the hand grips. I didn't want to lock the wheels and put the hand grips or throw the brakes on full and spin out so I was trying to get down to the lowest gear possible so as to minimise my speed. ……… Q. You went into Eastern Valley Way, what happened then? A. Well the lights as you go into the Eastern Valley Way were green so I was able to get through them without a problem. Q. Are you still coming up the hill by this stage or levelling out or what? A. No, no, I was over the top of the hill and coming down the other side. I was into third gear, probably about those light positions where I started into Eastern Valley Way and there was a bit of a corner, opposite the Shell garage which is on the Western side of Eastern Valley Way on my right as I went south. I was changing down to second and to change gears you pull the clutch in, of course, very quickly, so it didn't go to maximum revs, but the revs jumped up very quickly and I let the clutch out so it didn't blow up and it just spun the back wheel and it threw us both off." and, later (AB 88-89): "Q. Is it possible that immediately prior to the accident that you disengaged the rear brake pedal? A. I can't really remember whether I did that or not. I was in the process of changing down into second gear which caused the bike to fall over, to skid from the power which that was going to the back wheels. And the skidding caused us to fall off the bike. I'm not sure whether or not I took my foot off the back brake or not at that stage because I was trying to deal with the bike, not remember things. Q. Now, your evidence was that as you were going up Roseville (sic) you were in the lane closest to the median strip? A. Yes. Q. And correct me if I am wrong, the evidence that you gave in chief was that immediately prior to the impact your bike was closest to the kerb lane? A. Yes. Q. Do you recall at what stage you manoeuvred the bike into the kerb lane? A. Yes I do. Q. When? A. As I was approaching the right hand sweeping kerb into Babbage Road, the lights changed to amber and I deviated to the left because I didn't want to get caught in a situation of going through a red light and have the possibility of someone hit me. There were no vehicles there so I decided to go in a straight direction. Q. In a straight direction? A. Yeah. Q. And did you move the bike into the kerb side lane rather than the lane closest to the dividing line of Eastern Valley Road. A. Yes, I did. Q. Leading up to the impact, did your bike come into collision with the kerb immediately adjacent to the lane that you were travelling in. A. I said that I was travelling on the kerb side lane but I was sort of right out on the outside of that kerb side lane so the dotted line separated the two lanes from the middle, there were two carriageways on the one side of the median strip and I was in the middle of that. And your question was, did the bike hit the kerb. It did after we fell off. The corner of the kerb and a driveway." 32 The Appellant's evidence (AB 85-86) was that, in the time which passed from the throttle jamming to the time of the accident, the bike had travelled "pretty close to a kilometre", during which time he had slowed down from a speed of 80 kph to approximately 25 kph. There are a number of odd features about that evidence, they being, first, that if, as the Traffic Collision Report (AB 419) records, the accident occurred near the intersection of Eastern Valley Way and Deepwater Road, the distance travelled would have been closer to 1500 metres than to a kilometre; second, that the speed limit in Warringah Road and Eastern Valley Way in the area was at the time 60 kph (AB 86); and, finally, that if the accident did occur in the vicinity of Deepwater Road, Eastern Valley Way at that point is flat. 33 In the accident, the Appellant sustained the injuries in respect of which he sought to recover in the proceedings, upon the detail of which injuries, in the circumstances, it is unnecessary to enter. 34 The Appellant's evidence as to what was done to the motor cycle in the course of the next few months after the accident is, if I may say so, less than satisfactory, a fact upon which Sinclair DCJ, in the course of his Judgment (AB 463) was to comment. Thus, the transcript of the Appellant's evidence in chief records (AB 42-43) the following: "Q. What did you do with the motorcycle after the accident; when did you ride again? A. The first time I rode it I think was to go to work. Maybe I had a trial ride before that to make sure to go to work, which was about a week before Christmas I think it was. Q. What did you do about getting it repaired? A. I got it repaired under the policy that I had at the time. Rick Andrews, who was a motor cycle dealer up at Waitara. Q. Why did you go to Rick Andrews and not Tom Byrne? A. Well, I knew I had a problem with what I thought was a sticking throttle and I didn't want anything to be subsequently altered or changed. It wasn't a problem that occurred all the time, it was an intermittent problem, but I wanted to get to the bottom of what it was because it was dangerous. ……… Q. … You said something about 'intermittent' before? A. Yes. Well, once it started there, the problem started, and if you stopped the bike and started it again its not there any more. And the people could not replicate it. The policeman at the accident could not replicate the sticking throttle. No one else could either, including myself. Q. When you got it repaired, did you ask Rick Andrews to look at the problem? A. Specifically no, I didn't ask him to look at the problem I asked him to repair the bike. Q. What had to be repaired? A. All the damaged parts from the accident. Mainly the left hand side of the bike that I fell on to. It was the panniers. The superficial things mainly on the outside of the bike, handlebars. Q. When were those repairs carried out? A. Probably about March I would say. Q. The following year. A. Yes Q. Did you ever contact Tom Byrne Pty. Ltd. or BMW about the accident. A. Yes, I did. Q. Can you tell his Honour what you did about it. A. I didn't contact them I don't think until it happened again which was a little time down the track. I rang Syd Seamore (sic) who was the sales manager, I think of Tom Byrne Pty. Ltd. in the city. I told him that I had the problem. ……… Q. Did you tell him about the accident back in September 1985? A. I can't recall. HIS HONOUR: Q. Did you tell Mr. Seamore (sic) about the accident you had and your answer was you don't think you did? A. Well, the problem wasn't there any more. Q. No, just a simple question: you didn't tell Tom Byrne before? A. At that time no." which evidence might be compared with the following which appears during the course of the Appellant's cross-examination (AB 93-94): "Q. The handle bar had to be replaced, did it not? A. I believe so, yes. Q. And Mr. Rick Andrews attended to replacing the handle bar did he? A. I believe so, yes. Q. And that all occurred in December 1985 did it not? A. I'm not sure of the exact date. Q. That occurred shortly prior to you returning to work? A. I would expect so, yes. Q. And the repairs, the repair bills paid for by your insurance company? A. I think so yes. Q. And you asked Mr. Rick Andrews whether he could find any fault with the throttle system, did you not? A. I probably would have, yes. Q. And so far as you are aware, Mr. Rick Andrews examined the throttle system didn't he? A. He would have done so. Q. He did? A. He did. HIS HONOUR: Q. Did you actually see him examine it? A. No. Q. Did he tell you he'd examined it? A. He said he could find nothing wrong with it so I guessed Q. So you assumed he had examined it. A. Yes. CONTI: Q. Now, did you resume riding your bike after the repairs had been carried out. A. Yes. Q. Mr. Rick Andrews told you he couldn't duplicate the jamming of the throttle? A. That's correct Q. And so it was some months after that you got in touch with Mr. Seamore (sic) did you not? A. That's correct yes. Q. Mr. Seamore (sic) from Tom Byrnes and you told Mr. Seamore (sic) that Mr. Andrews couldn't find any fault with the throttle system? A. Yes I believe so. Q. And it was not until 30 May that an inspection was carried out? A. True. Q. At which Mr. Harrington and Mr. Adcock, amongst others were present? A. Yes. Q. And on that occasion a demonstration was unable to replicate any jamming in the throttle system? A. True. Q. The twist mechanism appeared to operate freely. A. Yes." 35 Despite having apparently been asked to examine the twist grip mechanism with a view to ascertaining whether there was any defect in it, Mr. Andrews, as Sinclair DCJ was to record in his Judgment (AB 463), was not called to give evidence at the hearing. The absence of Mr. Andrews - which absence was not explained at the hearing - was not without significance for, as Sinclair DCJ recorded in his Judgment (AB 464): "The intervention of Rick Andrews between the accident and the inspection of the vehicle which disclosed the kink at the lower end of the inner throttle cable makes me wonder whether it can be accepted that the kink was present at the time the accident occurred. No evidence has been adduced to exclude the possibility that the kink occurred as a result of the work he did on the motor cycle. The task of renewing the handle bar on which is mounted the twist grip throttle control makes me wonder whether he did disconnect both ends of the Bowden cable in an effort to ascertain the cause of the throttle sticking. It must be a possibility that he removed both ends and in the course of doing so that he removed the cover plates on the twist grip control." (see also para 56 (below)). 36 Mr. Harrington, to whom reference was made in the passage from the Appellant's cross-examination which I have just set out, was a "Qualified motor mechanic, member of the Institute of Automotive Engineers, fellow of the Institute of Diagnostic Engineers" (AB 161), who was retained by the Appellant to inspect the motorcycle with a view to determining the possible cause of the throttle malfunction. 37 The Appellant's retainer of Mr. Harrington - which appears to have occurred on 8 May 1986 (AB 420) - seems to have followed a telephone conversation which the Appellant had had at the beginning of May 1986 with Mr. Seymour of Tom Byrne. That this was so is indicated by a Dealer Contact Report (AB 396-397) made by Mr. Adcock, apparently on 14 May 1986, at which time the speedometer reading on the motor cycle was approximately 22,000 km. That Dealer Contact Report was as follows: "Syd Seymour of Tom Byrne Pty. Ltd. contacted me at the beginning of May to inform me that (the Appellant) had phoned him about an accident he had in September 1985 while riding his motor cycle. He claimed the cause of the accident was the throttle jamming on full throttle. The motorcycle sustained damage and the owner broke his leg, apparently causing a permanent disability. The motorcycle was repaired at Ric Andrews Motor Cycles and they could find no fault of the throttle systems/cable etc. The customer has only recently been able to ride his motorcycle again after his injuries and the throttle has apparently jammed on 3 or 4 occasions since. I asked Syd Seymour to contact the customer and advise him not to continue to ride his motorcycle, and to arrange to get the motor cycle to Tom Byrnes workshop to try and find the problem. Syd offered to collect his motorcycle from him with his utility. The customers reaction was he did not want to take his bike in for repair until the throttle had jammed again, whereby he intends to get an independent expert to inspect the throttle system for the cause and if he can prove that this is due to a manufacturing/design defect, he intends to sue BMW for personal and vehicle damages. When I was in Sydney with Mr. Port, I asked Syd Seymour the current situation and he had not heard from the customer since early May. I decided to telephone the customer from Tom Byrnes to try and persuade him to bring his motorcycle in to Tom Byrnes workshop so that we could try and find the problem, however, he repeated that he was still waiting for the throttle to jam again. I again advised him not to continue to ride his motor cycle with the problem still apparent. I am concerned that with the recall campaign on the K series throttle about to commence, that this will further tempt this customer to persue (sic) legal action against BMW." 38 The recall to which Mr. Adcock referred in his report was initiated by a facsimile message from BMW, or one of its subsidiaries, dated 21 April 1986 (Exhibit 16 AB 401-408). Although the recall was brought about by the discovery of some instances of defective accelerator cables, no such defect was discovered when the Appellant's motor cycle was examined on 30 May 1986 in the circumstances to which I will later recall. The nature of the defect and the action recommended to rectify it are readily disclosed by the following passages in the facsimile which I set out below: "A checking campaign on all K model motor cycle has been initiated due to the fact that in some instances frayed accelerator cables had been found and their perfect function in the future could not be guaranteed. In all cases, where the checked accelerator cable shows fraying (or splicing already), change the cable according to the instructions." 39 Mr. Harrington, to whom I have earlier referred, appears to have inspected the Appellant's motor cycle on 9 May 1986. In a report (Exhibit 19 - AB 420-421) dated 2 June 1986 Mr. Harrington wrote (inter alia) (AB 420): "Further to your instruction of 8th May 1986 we proceeded to the premises of Tom Byrne BMW 23 Euston Road, Alexandria, for the purpose of inspecting a motor cycle, relative to determining the possible cause of a throttle malfunction. Following several instances of this throttle malfunction, which was responsible for the rider suffering loss of control of the cycle, damage to the cycle and personal injury, we originally inspected the machine on 9th May 1986. However at that stage we were unable to duplicate the circumstances responsible for the malfunction and subsequently arrangements were made to dismantle the related components by the servicing dealer, under the supervision of Mr. Stephen Adcock, Regional Service Manager for BMW Australia Ltd." 40 The further inspection to which Mr. Harrington referred in his report took place at the premises of Tom Byrne on 30 May 1986, those present including the Appellant, Mr. Harrington, Mr. Adcock, Mr. Clark, and, in all probability, a mechanic. 41 A further Dealer Contact Report made by Mr. Adcock on 30 May 1986 (Exhibit 15 - AB 399-400) records the following: "Further to previous Contact Report No. 421 dated 14 May 1986 I inspected the customers motorcycle on 30 May 1986 at Tom Byrnes. Customer and his independent expert were present during the inspection and we especially checked the throttle system as per the K-Series Campaign Instructions. The throttle cable was not fraying, however, the inner cable was kinked and showed wear marks which would have in time eventually caused fraying of the cable. The cable brackets and switch plates were all replaced as per the checking campaign guidelines. In addition to the kinked inner cable, we also noticed heavy wear marks at the twist grip mechanism where the inner cable mounts to the pull chain. I would say that this was more likely to be the cause of the sticking throttle than the cable. This area was cleaned and lubricated. Mr. Partridge and the independent expert seemed happy with what was found and I have a feeling that Mr. Partridge will not persue (sic) the matter further." 42 The transcript of Mr. Adcock's evidence in chief contains the following (inter alia) (AB 190): "Q. How was that inspection carried out? A. Well, we took Mr. Partridge's motor cycle to the upstairs workshop area and, you know, had the motor cycle on the work bench. And we proceeded to check the operation of the throttle on the motor cycle and then dismantled various parts of the bike to check it thoroughly. Q. What did you observe: A. Well, we did note that there was a kink evident at the lower end of the throttle cable closest to the throttle body end. That was really all we could find concerning the throttle cable at the inspection. There was nothing else wrong with it. It seemed to move freely. We disconnected it at the twist grip end and operated it and turned the steering, et cetera, to other positions and the throttle operated as it should have. So we proceeded then to have a look at the twist grip end, and we did notice there that there seemed to be a lack of lubrication in the mechanism that pulls the inner cable within the twist grip, although we were not able to reproduce the throttle sticking at any time. But that was the only thing that we noted from the inspection that was anything outside of normal than what we might have expected." and later (AB 199): "Q. What, in your experience would be the possible causes of kinks at the inner cable at the point as shown in Exhibit 4, that is the cable in question in this case? A. Well, in my experience it is from the cable being, the outer cable being removed from its bracket and the air box not being removed to give you a clear access. So you have to bend the cable upwards to remove it from the bracket." while the transcript of Mr. Adcock's cross-examination contains the following (inter alia) (AB 201): "Q. With this air box, that is an attachment to the engine lower down near the throttle in the cable, is that right? A. Yes. Q. If someone were to inspect the throttle and not remove that air box, is it the case as they reached in to grab it that it might effect (sic) the cable? A. It is my experience if someone tries to remove the cable with the air box in place still, you have to bend the out cable up to get it out of its retaining so that it is easy then to bend, you know, the inner cable as a result of that action." and later (AB 211): "Q. You say that Mr. Partridge's accelerator cable was replaced as a precautionary measure on 30 May 1986? A. That's right. Q. I mean, there is no way in the world you would let that cable be put on that bike in that condition? A. It is not that we found anything wrong with it, it is just that, you know, we had it all off anyway and, you know, there was the inference of the throttle had jammed so as a precautionary measure we replaced it. Q. You would not concede that a kink of that nature in the cable is anything wrong with it? A. Well, it doesn't stop it from the operation but, yeah, it had a kink there we all know that. Q. That is something wrong with it, isn't it? A. Well, technically speaking there is something wrong with it but that's how we found it you know." 43 Mr. Clark, although not providing a written report, gave oral evidence on the hearing. The transcript of his evidence in chief contains the following (AB 255-256): "Q. If I could bring you forward in time to 30 May 1986, were you present at an inspection of Mr. Partridge's bike? A. This was when the cable was inspected? Q. Yes. A. I was there. I was observing. A. And were you able to observe anything about the throttle and its function on that occasion? A. No, nothing about the function that we could see at that stage that was unusual. ……… Q. I think subsequently a cable was removed during that inspection, wasn't it? Do you recognise that cable, Exhibit 4? A. Yes, it looks like the cable. Q. And is the (sic) the cable that came off the bike on the day of inspection? A. Yes. Q. Do you see at the bottom of that cable a kink? A. Yes. Q. From your knowledge of BMW motor bikes, if that kink had affected the throttle by either sticking or retardation, would that have been reproducible at an inspection by yourself? A. Yes, it should have made itself evident at any stage of turning the throttle. ……… Q. Are you aware that in December 1985, the bike was repaired? A. Yes. Q. If I could ask you to assume that the handlebar was replaced. What is required so far as work is required on a handlebar replacement, in respect of the throttle controls? A. Well, the throttle controller in the upper section on the handlebar would have to be disassembled from the handlebar. Q. If you could assume there were also farings (sic) replaced - does the throttle cable go anywhere near the farings (sic)? A. No, it - the throttle won't come in contact with the farings (sic). Q. In relation to the area of that kinking, when you get access to that cable, do you have to be careful when you work around it or not? A. Yes. Q. Why is that? A. It is a very restricted area, so - and to actually take the throttle cable out of there requires some fairly sort of extreme distortion and manipulation of the cable to get the nipple out of the quadrant on the throttle body." while the transcript of his cross-examination contains the following (inter alia) (AB 259-261): "HIS HONOUR: Q. The kink in the cable, we've heard a lot about the kink in the cable. When did you first become aware of the kink in the cable, see it or … ? A. The first I was aware of the kink in the cable was when it was - I remember when it was out that the cable was actually cut at the top here and pulled apart and the kink in the cable was noticed then. Q. This was after the cable was removed from the bike to begin with? A. Yes. Q. And you say it was cut at the top? A. Mm. Q. Was to allow the inner cable to come out of the outer cable? A. That's right, to remove the nipple at that end. Q. Cut at the top. So that's really the top end of the cable? A. That's right, so that the whole of the inner cable can be examined. Q. Right well I've got to that stage. When did you actually first see it or hear somebody refer to it? A. To? Q. There being a kink in the cable? A. Well basically then when the cable was laid out. Q. It was laid out on a bench was it? A. Yeah then. Q. And everybody was having a spook (sic) at it? A. That's right. Q. And it was then apparent? A. Yeah it was. Q. Do you remember who actually took the inner cable out from the outer cable? A. I really couldn't say who it is, I really don't remember. Q. No, but once you cut the nipple off its just a simple thing to pull it out is it? A. Strip it straight out, yeah. SKINNER: … Q. Having cut the ferrule of the end of the cable and pulled it out, it couldn't be put back in the bike could it? A. No. Q. But you'd agree that once everyone saw the kink, there was no intention of putting that cable back on the bike? A. There wouldn't be anyway, not once that cable, that particular cable was taken out. Q. Why is that? A. Because BMW's recommendation was that once there was any reason to remove one of these cables it would be replaced with the new cable. Q. To be careful? A. Yes to make sure that." 44 Mr. Harrington's report of 2 June 1986, to which I have earlier referred, when dealing with the inspection carried out on 30 May 1986 contained the following (AB 420-421): "INSPECTION As the throttle malfunction was related to the throttle sticking in the fully open position and not returning and as the recall programme being instigated was related to a similar problem, the engine shields and guards were removed from the machine and an observation revealed that the lower throttle (was slightly misaligned) although the throttle appeared to be operating normally. Dismantling of the complete throttle cable, bracket supports, twist grip and linkages, was then carried out and the following observations made: 1. Lower section of cable assembly distorted 2. Acute kinking of the inner cable at the lower end consistent with the area of misalignment 3. Noticeable wear of the inner cable at the distorted area 4. Twist grip cable slide area not lubricated sufficiently 5. Evidence of the upper slide block having been operated in a twisted position, in relation to the slide 6. Severe wear marks on the diagonally opposed corners of cable slide block SUMMARY From our inspection it was obvious that some faults did exist with this throttle assembly, in relation to lubrication, misalignment and undue wear, although we were not able to create the sticking problem, when the cable was activated. CONCLUSION In conclusion, we advise that although the throttle malfunction could not be created during testing and dismantling, it is quite possible that the distorted cable, misalignment of cable, lack of lubrication and abnormal wear of the slide block, may have individually or collectively caused this malfunction and from the details supplied, relating to the possible throttle malfunction recall programme, it would appear that this problem is not an isolated incident and therefore suggest an approach to the manufacturers be made, in relation to the costs incurred by the problem." 45 In the course of his cross-examination on the hearing, it became clear that Mr. Harrington had not, prior to his inspecting the Appellant's motorcycle, obtained any history of the motorcycle or obtained any details as to the damage caused to it in the accident (AB 177), that he was not aware that motorcycle had been repaired in December 1985 nor was he aware of any repairs which had been carried out to the motorcycle (AB 172) and that he was not aware that, in December 1985, instructions were given to mechanics with a view to ascertaining the cause of what was said to be the problem with the throttle on the Appellant's motorcycle (AB 174). 46 It would seem that, at the time of the inspection of the motorcycle on 30 May 1986, the speedometer reading was 22,561 kms - that is, that, despite the period of about 3 months from mid-September to shortly prior to Christmas 1985, during which the Appellant did not ride his motor cycle, between 22 August 1985 when the motorcycle was serviced by Tom Byrne and 30 May 1986, the motor cycle had been ridden for almost 6,700 km. 47 Although it would seem (AB 55) that, during the period of a week or so after the accident when the Appellant was treated at the Royal North Shore Hospital (AB 41), the Appellant consulted a solicitor "about suing (someone) for the accident" the proceedings were not commenced until 13 September 1991, that is, just before the expiration of the limitation period, the reason for the Appellant's delay, so he said (AB 55) being that "(he) was waiting to see how bad (his) leg got because it wasn't getting any easier to walk with it. It was getting worse and (he) wanted to see what the situation (he) was going to wind up in." 48 At some time which is not revealed by the materials before the Court, the proceedings were transferred from this Court to the District Court. 49 The hearing before Sinclair DCJ commenced on 30 October 1996 and continued on 31 October and 1 November 1996 before being adjourned part-heard to 9 December 1996 when the hearing was concluded. 50 On 25 October 1996, Mr. A.F. Nicolson who, by that time, had had some 33 years experience as an automotive engineer, such experience covering such matters as design and development of automotive components and systems and the like, and as a consultant conducting investigations and reports for such bodies as Unisearch Limited, provided to the solicitors for BMW and BMW Aust a report following his investigation as to the circumstances involving the accident in which the Appellant was involved. That report (Exhibit 24 - AB 431-447), when tendered (AB 218), was admitted without objection. However, when (AB 230) Mr. Nicolson, in the course of his examination in chief, was asked to give evidence as to certain tests which he had carried out as to the force required to move the cable in or out of the protective sheath - notice of which tests was not given to the Appellant's solicitors until 6 December 1996, objection to the giving of that evidence was taken by the Appellant's counsel; however, after hearing argument on the matter, Sinclair DCJ allowed the evidence to be given. No application for an adjournment was then made on behalf of the Appellant so that that evidence - which in any event was not extensive - could be investigated; on the contrary, Mr. Nicolson was subjected to a cross-examination which his Honour described as "searching" and which, so he said (AB 461) "enhanced rather than cut down the opinions (Mr. Nicholson) expressed". 51 For the purpose of preparing his report Mr. Nicolson was provided with a number of reports and other material, those reports and material including Mr. Harrington's report, the BMW Maintenance Schedules, and the Police Accident Report; in addition, Mr. Nicolson was provided with the throttle cable (Exhibit 4) which had been removed from the Appellant's motor cycle at the inspection and, in addition, was provided with a BMW K100 RS motor cycle which had been manufactured in November 1985, the speedometer reading on which at the time of his inspection was approximately 116,000 km. In his report, Mr. Nicolson recorded his conclusions in relation to the questions which had been posed for him in the following way (AB 432-433): "CONCLUSION My opinion in relation to the questions asked of me is: 1. The throttle cable supplied for examination is in a serviceable condition except that it exhibited a significant kink in the inner cable adjacent to the engine end of the cable. 2. The kink evident in the inner cable did not result in a sufficient in cable stiffness to result in jamming of the throttle in the open position. 3. The kink in the inner cable of the throttle mechanism had not been present in the vehicle from Manufacture. 4. Because no investigation or examination of the throttle mechanism had been undertaken at the time of the accident it is not possible to determine the exact cause of the throttle sticking, but on the assumption that the throttle jam did occur the possible causes are: - seizure of the cable; - malfunction of the cable adjusting mechanism; - seizure of the twist grip mechanism; - failure of the return spring mechanism; - failure to lubricate appropriate parts of the mechanism during routine servicing; - lodgment of foreign object in throttle mechanism. 5. Any form of throttle stiffness which would result in the throttle sticking or jamming in the open position should have been obvious to the regular driver of the vehicle and also the servicing mechanic at the 15,000 km service some 6 weeks prior to the accident. 6. If the throttle sticking had been caused by the lack of lubrication in the twist grip mechanism it should have evidenced itself to the rider of the vehicle and the servicing mechanic at the time of the 15,000 km Service. 7. There was no connection between the Recall Campaign initiated by BMW in regard to throttle cable fraying and the components examined from Mr. Partridge's vehicle. 8. The conclusions reached by Mr. Harrington in his report did not logically follow from his observations and, having not examined the vehicle at the time of the accident, preclude him from reaching the conclusions stated. There was no connection between this incident involving Mr. Partridge's vehicle and the recall campaign detailed. 9. The actions taken by Mr. Partridge following the reported throttle jamming were inappropriate to the circumstances and (sic) that there was (sic) at least three (3) other courses of action available to him which could have averted the accident, namely: (i) disconnecting the clutch; (ii) activating the kill switch; (iii) turning off the ignition key." 52 At the conclusion of his report (AB 347-438), Mr. Nicolson wrote: "4. CONSIDERATION OF TWIST GRIP MECHANISM OPERATION Following examination of the equivalent vehicle and the operation of the twist grip mechanism the following comments have been made. It is my opinion that seizure of the twist grip mechanism is unlikely to have been the cause of the throttle jamming on Mr. Partridge's vehicle. My view is based on the following: - if the throttle jammed as a result of twist grip mechanism seizure, it should have remained seized unless it was serviced; - even if it was able to release the throttle without servicing, it should have been possible to recreate the sticking throttle. When this was attempted, however, at the 22,310 km repair, the throttle was operating normally without any evidence of sticking or jamming; - the intermittent nature of the throttle jamming is not consistent with seizure in the twist grip mechanism; - if the twist grip mechanism was about to seize at the time of the accident this should have been apparent at the 15,000 km service to both the regular rider and the servicing mechanic. It is also my view that the observations made at the 22,310 km repair and inspection concerning the wear evident in the twist grip mechanism are not reliable in regard to conditions existing at the time of the accident. This is because of the 5,500 km operation between the two events which could have changed the situation existing in the mechanism and the fact that the mechanism had been removed and refitted during the vehicle repair following the accident. The repair schedule lists replacement of the Handlebar which would necessitate disturbance of at least part of the twist grip mechanism and the cable attachment in order to carry out the transfer of components." 53 The respective cases presented by the parties at trial were summarised by Sinclair DCJ at the commencement of his Judgment (AB 448-449) as follows: "The plaintiff's case as presented at the conclusion of the evidence, is that both (BMW Aust and BMW) were negligent in not properly checking and testing the vehicle before it left the works of the manufacturer in Germany (BMW), and/or before it was delivered to the distributor (Tom Byrne) in Sydney. The claim against these two defendants is that the first time the plaintiff fully opened the throttle something caused the throttle mechanism to jam. Subsequent inspection disclosed a defect in the lower portion of the inner cable. The Court will be satisfied on a balance of probabilities, applying the principle of res ipsa loquitur that negligence is thereby established against (BMW Aust and BMW). As against (Tom Byrne) it is the substance of the plaintiff's claim that the motorcycle as sold and delivered by (Tom Byrne) to the plaintiff in about March 1984 was a defective product, was not of merchantable quality nor fit for the purpose for which it was purchased by the plaintiff and (Tom Byrne) has failed to established (sic) that it was not responsible for the defect which caused the throttle to jam in the fully open position. The defendants deny liability. (Tom Byrne) asserts that no proven defect being the basic cause of the accident has been established and accordingly (Tom Byrne) is not liable for any breach of implied terms of the contract. (Tom Byrne) further submits that no onus lies on it as alleged by the plaintiff; the plaintiff bears the onus at all times to prove a breach of contract, namely that there was a defect in the vehicle which causally related to the accident. (BMW Aust and BMW) submit that no negligence has been established against either of them in that the plaintiff's case does not go further than to establish, assuming the plaintiff's evidence is accepted that an unknown defect caused the throttle to stick in the open position. Further, the defendants claim that the plaintiff was guilty of contributory negligence, principally in failing to operate the 'kill switch' when he became aware of the problem with the motor cycle." 54 The manner in which Sinclair DCJ summarised the case advanced at trial by BMW Aust and BMW would suggest that neither disputed that it owed a duty of care to the Appellant, an impression which was confirmed by the absence of any submission on the hearing of the appeal to that effect. Although, in the event, it is not necessary to express a concluded view on the matter, I am not persuaded that the apparent concession on the part of BMW Aust and BMW was necessarily correct. So far as BMW is concerned, the decision of the Judicial Committee in Grant v. Australian Knitting Mills Limited [1936] AC 85; (1935) 54 CLR 49 upon which, as it would seem, the Appellant relied at trial does not inevitably impose upon a manufacturer of goods a liability for every accident caused when the goods are used, first, since a manufacturer is only responsible for the condition in which he released his product and not for flaws subsequently introduced in the process of marketing and use; and, secondly, there is authority (see, for example, Kubach v. Hollands [1937] 3 AER 907; Holmes v. Ashford [1950] 2 AER 76) for the view that the fact that goods will, in the normal course, be inspected and tested before they are delivered to an ultimate purchaser or used upon a person, may, in an appropriate case, be sufficient to avoid liability on the part of the manufacturer to the ultimate purchaser or to such a person. So far as BMW Aust is concerned, it is my understanding of the law that, although not altogether exempt from responsibility for defective products manufactured by others, the duty of a distributor - who is not the ultimate dealer - is limited to one of warning of dangers of which he knows or ought to have known, and the duty of a dealer, while including a duty to inspect merchandise - except in the case in which it is impossible to test the merchandise without destroying the condition in which the manufacturer intended it to reach the consumer - does not extend to subjecting the merchandise to elaborate tests but is limited to carrying out such tests as a qualified dealer in that class of merchandise might expediently adopt for the better protection of the ultimate purchaser or consumer. 55 Although the manner in which Sinclair DCJ summarised the case which was advanced on behalf of Tom Byrne at trial suggests that Tom Byrne accepted that the sale by it to the Appellant was subject to a condition that the motorcycle be of merchantable quality and a further condition that the motorcycle was not fit for the purpose for which it was purchased by the Appellant, the later discussion by his Honour of the case against Tom Byrne (AB 472-475) would suggest that, while not disputing the first condition, Tom Byrne did dispute the second condition. However, on the hearing of the appeal, no submission was directed by counsel for Tom Byrne to that issue. 56 When, in the course of his Judgment, Sinclair DCJ, after recounting the facts and the nature of the evidence which had been tendered, came to deal with the Appellant's case against BMW Aust and BMW, he said (AB 463-465): "ASSESSMENT OF WITNESSES ON LIABILITY I accept the plaintiff and Mrs. (sic) McDonald as truthful and reliable witnesses in relation to the happening of the accident. However in respect of two matters I have some concern about the reliability of the evidence of the plaintiff in that: (a) his evidence about whether he asked Mr. Andrews, who was not called to give evidence, to check the throttle assembly; and to a lesser extent (b) his assertion that he had never opened the throttle wide in the 18 months before the accident occurred, which is a little difficult to accept. Mr. Harrington, the plaintiff's expert, did not really impress me. On the other hand I am comfortably satisfied with the opinions expressed by Mr. Nicolson and prefer his evidence to that of Mr. Harrington. The intervention of Ric Andrews between the accident and the inspection of the vehicle which disclosed the kink at the lower end of the inner throttle cable makes me wonder whether it can be accepted that the kink was present at the time the accident occurred. No evidence has been adduced to exclude the possibility that the kink occurred as a result of the work he did on the motorcycle. The task of renewing the handlebar on which is mounted the twist grip throttle control makes me wonder whether he did disconnect both ends of the Bowden cable in an effort to ascertain the cause of the throttle sticking. It must be a possibility that he removed both ends and in the course of doing so that he removed the cover plates on the twist grip control. Putting aside speculation as to what Mr. Andrews may have done I find on the positive evidence the following facts: I have no difficulty in making the following findings of fact - 1. The motor cycle was purchased by the plaintiff from (Tom Byrne) and delivered to the plaintiff in March 1984. 2. It was serviced on three occasions; at 1,000, 7,000 and 15,000 kilometres. On those occasions there was no suggestion of any malfunction of the throttle assembly of the type described by the plaintiff. 3. A defect in the throttle mechanism, as described in the plaintiff's evidence, was noticed for the first time about 18 months after the motorcycle was purchased at a time when the motorcycle had been used for an appreciable time since the third service was carried out. 4. There is no specific evidence of any defect in the manufacture or service of the motor cycle. 5. I am not satisfied that the throttle was not fully opened at any time prior to 15 September 1985. 6. On 15 September 1985 a malfunction occurred in the operation of the throttle mechanism, as described by the plaintiff. 7. The probable cause of such malfunction has not been identified. 8. I am not satisfied there is any causal connection between the defect referred to in the recall notice and the malfunction described by the plaintiff. The ultimate question which remains to be determined is whether it is appropriate to infer from the proven circumstances that, notwithstanding the plaintiff's inability to establish the exact cause of the accident, the fact of the accident by itself is sufficient, in the absence of any explanation, to justify the conclusion that (BMW Aust) and/or (BMW) was negligent in respect of the design, manufacture or inspection of the motor cycle before it was distributed for sale. At the heart of the plaintiff's case against (BMW Aust and BMW) are two propositions, one of fact and one of law, namely; That the cause of the malfunction of the throttle assembly of the motorcycle on 15 September 1985 was the kink in the inner section of the Bowden cable which was disclosed when the cable was inspected and removed from the motor cycle on 30 May 1986, and That on the facts established by the evidence such ultimate fact should be inferred by an application of the principle of Res Ipsa Loquitur. Then, after a discussion of a number of authorities, Sinclair DCJ concluded on this aspect of the case (AB 471-472): "CONCLUSION I do not think that in the circumstances of this case the failure of the throttle mechanism does speak for itself as those words are used in the application of the res ipsa loquitur principle. A motorcycle is a piece of complicated mechanical equipment. That the throttle mechanism was not designed or manufactured by (BMW) does not in my view relieve it of liability if such a defect ought reasonably have shown up on reasonable testing the factory, in Australia or by the distributor. However there is no evidence that either of (BMW Aust or BMW) failed to adequately test the motor cycle. The bottom line is that I find the malfunction of the throttle control, assuming it occurred, and I think it did, was caused by some unidentified defect in a piece of machinery of which on the evidence to my mind none of the defendants were aware or ought to have been aware. I find a verdict for (BMW Aust and BMW)." 57 When he came to deal with the Appellant's case against Tom Byrne, Sinclair DCJ, after briefly outlining, again, the nature of the Appellant's case, and referring to the acceptance by Tom Byrne of the fact that the sale was subject to a condition as to merchantable quality, said (AB 473-474): "Returning to subsection 1, that the goods shall be reasonably fit for such purpose, the proviso is of significance in the case because it was a sale of a specific article under it's (sic) trade name. The leading authority on the proviso is Baldy (sic) v. Marshall 1925 1 KB 260 which establishes that the proviso applies only when the buyer orders the goods under their trade name in such a way as to show he or she does not rely on the seller's skill or judgment. I mention in passing two passages from Sutton Sales and Consumer Law Paragraph 9.28 - that 'in practice where the buyer discloses to the seller the purpose for which he or she requires the goods it may not be easy to avoid the inference of relying on the latter's skill and judgment', and At paragraph 9.29 … thus if a person were to walk into the premises of a motor dealer and seek to purchase a specified make of car, that would be a transaction that would come within the terms of the proviso, unless there was some circumstance to show that she relied on the seller's skill or judgment. In the latter event the fact that the vehicle is described in a contract by its trade name will not exclude the implied condition.' As I have said I think the more appropriate implied term is that of merchantable quality; but in any event were the implied term -'reasonably fit for the purpose' appropriate on the facts of this case, it would not take the matter any further." Then, after a reference to the exposition in the Judgment of the High Court (Dixon CJ, McTiernan, Williams, Fullaghar and Taylor JJ) in George Wills & Co Limited v. Davids Pty. Limited (1956-1957) 98 CLR 82, 89 of the meaning of the expression "merchantability" his Honour continued (AB 474-475): "The time at which merchantability is assessed may also be relevant. The general rule is that the time at which the merchantable quality of a product is to be ascertained is at the date of the delivery of the goods. But what if the defect in the goods is a latent defect which could not have been discovered at the time of the sale by any examination of the goods which in the light of then existing knowledge it was reasonable to make. If at the time of sale and delivery the goods contain a latent and unsuspected defect which is enough to render them unmerchantable but the evidence of the defect has never previously been discovered and is not in fact discovered for the first time until much later, it would appear that they must be classed as unmerchantable (see paragraph 10.50). The test perhaps is that in order to judge merchantable quality one must assume a knowledge of hidden defects at the delivery date. There is much to be said for this point of view. However, I am inclined to the view that the time of delivery is the appropriate time for applying the test of merchantable quality unless the circumstances show a contrary intent. I am not persuaded that in this case they do so. The problem for the plaintiff remains - has a particular defect been identified in the evidence? I find that no such defect has been established. The bottom line is the plaintiff has not proved, albeit on the balance of probabilities that this motor cycle had a defect in it such as to render it unmerchantable at the time it was delivered. Accordingly I find a verdict for (Tom Byrne)." 58 From his Honour's Judgment the Appellant appealed. As is regrettably not uncommon, the Notice of Appeal which was filed on behalf of the Appellant raised a multiplicity of grounds of appeal. Some of them (Grounds 7 and 8) asserted error on the part of Sinclair DCJ in respect of matters which, as will be apparent from what I have earlier written, were not relied upon at trial. Some of the grounds of appeal (as, for example, Grounds 2, 3, 5 and 6) asserted errors on the part of his Honour, which alleged errors are, in my view, not supported by a fair reading of his Honour's Judgment. The grounds of appeal which were taken were as follows: 1. His Honour erred in failing to find negligence by (BMW Aust and BMW) pursuant to the res ipsa loquitur principle. 2. His Honour erred in refusing to apply the res ipsa loquitur principle on the ground that the relevant piece of equipment was complicated. 3 His Honour erred in failing to find that (BMW Aust and BMW) had failed to discharge the evidentiary onus which shifted to them in the light of his Honour's findings that the throttle malfunction occurred as a result of a defect in the motorcycle. 4. His Honour erred in assuming that the application of the res ipsa loquitur principle was dependent on whether (BMW Aust and BMW) knew or ought to have known of the defect. 5. His Honour misdirected himself when he decided that the application of the res ipsa loquitur principle against (BMW Aust and BMW) depended on the defect being identified. 6. His Honour erred in finding that to succeed against all respondents the appellant needed to identify a particular defect in the motorcycle. 7. His Honour erred in failing to find a breach of s.71(1) of the Trade Practices Act. 8. His Honour erred in failing to find a breach of s.71(2) of the Trade Practices Act. 9. His Honour erred in failing to find a breach of s.19(1) of the Sale of Goods Act. 10. His Honour erred in failing to find a breach of s.19(2) of the Sale of Goods Act. 11. His Honour misdirected himself as to the application of the Sale of Goods Act when he assumed that for goods to be qualified as' unmerchantable' it is necessary to prove the specific defect which resulted in it being rendered unmerchantable. 12. His Honour erred in admitting that part of the evidence of Allan Francis Nicolson of which notice was not given the plaintiff until 6 December 1996. 13. His Honour erred in preferring the evidence of the respondents' expert, Allan Francis Nicolson, to that of the appellant's expert John Francis Harrington. 59 When the appeal came on for hearing, Mr. P.A. Johnson SC appeared with Mr. P.M. Skinner for the Appellant, Mr. S.R. Donaldson appeared for BMW Aust and BMW and Mr. D.G.T. Nock SC appeared with Mr. S.E. Torrington for Tom Byrne. 60 Reduced to their most simple form, the questions which arise for determination on the appeal are four, they being: 1. whether, in the circumstances, Sinclair DCJ erred in failing to apply the of res ipsa loquitur principle; 2. whether, in the circumstances, Sinclair DCJ erred in failing to find that the motorcycle was not of merchantable quality and not reasonably fit for the purpose for which the Appellant had purchased it; 3. whether Sinclair DCJ erred when he permitted Mr. Nicolson to give evidence on the matters of which notice had not been given to the Appellant's solicitors until 6 December 1996; 4. whether Sinclair DCJ erred in preferring the evidence of Mr. Nicolson to that of Mr. Harrington. If I may say so, it seems to me that only questions 1 and 2 invite any real discussion. 61 The passages from his Judgment which I have earlier set out (see paras. 53, 56 (above)), in which Sinclair DCJ set out, first, in a general way and, later, in a more particular way, the manner in which, as he understood it, the Appellant sought to advance his case, suggests to me that there was a degree of confusion of thought on the part of the Appellant's counsel as to the bases upon which BMW Aust and BMW might be held liable to the Appellant or, if that were not so, that the submissions which were advanced at trial on behalf of the Appellant were rather less than clear. While that confusion of thought, or lack of clarity in the submissions of counsel for the Appellant may have had some effect upon the way in which Sinclair DCJ proceeded in his Judgment, it seems to me that, in the long run, the basis upon which his Honour determined the Appellant's claim against BMW Aust and BMW is not shown to have been in error. 62 It seems to me that, in a case such as this - insofar as it affected BMW Aust and BMW - was said to be, the principles to be, borne in mind are as follows: 1. the plaintiff, at all times, bears the onus of persuading the tribunal of fact that, on the balance of probabilities, the relevant occurrence was brought about by reason of the negligence of the relevant defendant or defendants (see, for example, Anchor Products Limited v. Hedges (1966) 115 CLR 493, 495 per Taylor J; 500 per Windeyer J. ) 2. the plaintiff may seek to persuade the tribunal of fact to that view by adopting one or more of the following courses of action: (a) by establishing the cause of the relevant occurrence and facts which establish negligence on the part of the relevant defendant or defendants - in which event there is no room for the operation of the so-called principle of res ipsa loquitur (see Barkway v. South Wales Transport Co. Limited [1950] 1 AER 392, 394 per Lord Porter; 399 per Lord Normand; 403 per Lord Radcliffe ; Mummery v. Irvings Pty. Limited (1956) 96 CLR 99, 115-116 per Dixon CJ, Webb, Fullaghar and Taylor JJ ; Anchor Products Limited v. Hedges supra at 496 per Taylor J ); (b) by establishing the cause of the occurrence and facts justifying an inference that that cause was due to the negligence of the relevant defendant or defendants (see, for example, Barkway v. South Wales Transport Co. Limited supra ; The Nominal Defendant v. Haslbauer (1967) 117 CLR 448, 453 per Barwick CJ ); (c) by establishing the occurrence in circumstances which justify an inference that the occurrence was due to negligence on the part of the relevant defendant or defendants (see Nominal Defendant v. Haslbauer supra ); 3. the fact that the Plaintiff may seek to establish the cause of the relevant accident and, in addition, facts which establish that that cause was due to negligence on the part of the relevant defendant or defendants does not preclude the plaintiff from relying upon facts giving rise to an inference of negligence on the part of the relevant defendant if the plaintiff's pleadings are sufficiently wide to permit him to do so (see Anchor Products Limited v. Hedges supra ; The Nominal Defendant v. Haslbauer supra ); 4. in order that an inference of negligence on the part of the relevant defendant or defendants be justified from the circumstances of the occurrence itself: (a) the occurrence must be such that, in the ordinary affairs of mankind, such an occurrence is unlikely to occur without a lack of care towards the plaintiff on the part of a person in the position of the defendant ( The Government Insurance Office of New South Wales v. Frederichberg (1968) 118 CLR 403, 413 per Barwick CJ ; (b) if the occurrence is not of such a nature, then, there must be, in addition, evidence which would justify an inference that the occurrence is unlikely to occur without lack of care toward the plaintiff on the part of a person in the position of the defendant (see Mummery v. Irvings Pty. Limited supra at 116-118 ; Piening v. Wanless (1967-1968) 117 CLR 498, 507-508 per Barwick CJ; 512 per Windeyer J ); 5. while the tribunal of fact may draw an inference of negligence it is not bound to do so ( Government Insurance Office of New South Wales v. Frederich-berg supra at 414 per Barwick CJ ; 6. if at the end of the plaintiff's case in chief the occurrence as then evidenced would permit an inference of negligence on the part of the relevant defendant or defendants, whether or not the evidence, if there be any, of the specific acts or omissions does so, the relevant defendant or defendants is or are faced with a choice; he or they may choose not to call evidence and take the chance that, although at liberty to do so, the tribunal of fact may refuse the draw the inference of negligence on his or their part from the mere fact that the incident occurred or he or they may call evidence. As Barwick CJ put it in the Nominal Defendant v. Haslbauer supra at 453 : "In the sense that a defendant so placed must at that point in the course of the trial choose his course, it may be said in what to my mind is a loose and inexact sense that the burden of the case for the moment passes to the defendant. But in precise terms, the situation imports no onus upon him. Nor, on the other hand, does the fact that the plaintiff has made a prima facie case of negligence on the part of the defendant, whether by no more than the evidence of the occurrence itself or by that and other evidence, place the plaintiff in an entrenched position although hallowed by much distinguished usage, I myself incline against the use of the expression 'presumption of negligence' describing what arises from the circumstance that, as the plaintiff evidences it in his case in chief, the occurrence will of itself support an inference of want of care on the part of the defendant. Nothing to my mind is presumed. No more in my opinion, has occurred than this, that if the evidence remains in the same state as the plaintiff has left it at the close of his case in chief, the tribunal of fact will be justified in inferring negligence in the defendant causing the event. Whether or not that inference will be drawn remains an open question for that tribunal." 7. if the defendant calls evidence as to the occurrence, which if accepted by the tribunal of fact, and read with the plaintiff's evidence as to the occurrence, would no longer allow an inference of negligence on his part to be drawn from the fact of the occurrence as it is then known, the plaintiff, if relying only upon the inference sought to be drawn from the occurrence, will fail in the action if that evidence of the defendant is accepted. He will have no evidence of negligence on the part of the defendant and will not satisfy the onus which remains with him throughout to establish that negligence ( The Nominal Defendant v. Haslbauer supra ) 63 The concluding paragraph of the first of the passages from Sinclair DCJ's Judgment which I have set out in paragraph 56 (above) would indicate that, at trial, the Appellant sought to establish that the cause of the throttle jamming was the kink in the lower part of the Bowden cable, the existence of that kink justifying an inference of negligence on the part of at least BMW in the design or manufacture of the motorcycle an attempt in which he failed for, as Sinclair DCJ recorded in the earlier part of that first passage, "the probable cause of (the) malfunction (had) not been identified." The fact that he failed in that attempt did not, however, mean that the Appellant was bound to fail in his claim against at least BMW for the particulars of negligence given (see para. 6 (above)) were such as would, in my view, permit him, if the evidence were such as to enable him to do so, to persuade Sinclair DCJ that the fact of the occurrence itself was sufficient to justify an inference of negligence 64 As is apparent from the second of the passages in the Judgment of Sinclair DCJ which I have set out in paragraph 56 above, the Appellant failed to persuade Sinclair DCJ to that view. The Appellant, however, submits that that passage reveals error on his Honour's part, for, so it is said, given his Honour's earlier findings, "it was simply irrelevant to say that a motor cycle is a piece of complicated equipment.". 65 I am unable to accept the correctness of this submission. On the contrary, it seems to me that it was clearly open to Sinclair DCJ, when determining whether or not the case was one in which recourse to the so-called principle of res ipsa loquitur was justified, to have regard to the fact that a motor cycle is a complicated piece of equipment. If authority for that view be needed, it may readily be found. Thus, in Mummery v. Irvings Pty. Limited supra, in which case the appellant sought to recover damages for the injuries which he sustained when struck by a flying piece of wood which was in the process of being cut by a circular saw, the Court said supra at 116-117: "(The evidence) tends to establish - even if it does not clearly establish - that the wood was thrown by the circular saw and in part this explains the physical cause of the accident. In these circumstances a court must ask itself, not whether negligence may be inferred from the mere fact that the piece of wood struck the appellant immediately after he had entered the respondent's premises, but whether it may be inferred from the fact that a piece of wood was thrown from the circular saw. In other words the question is whether the latter occurrence was such 'as in the ordinary course of things does not happen if those who have the management use proper care.' To that inquiry in this case there cannot be an affirmative answer. We are told nothing of the characteristics of circular saws and we are not told that such an occurrence is usual or unusual or indeed highly improbable. Moreover we are told nothing concerning the size of the piece of wood in question and it is difficult, if not impossible in these circumstances to attribute the accident to some act of negligence on the part of the operator. If the question is posed 'Was the accident such as in the ordinary course of things does not happen if those who have the management use proper care' the answer on the evidence in this case would be 'We simply do not know.' One may but conjecture but cannot as a matter of inference attribute negligence to the respondent's foreman." Further, in Piening v. Wanless supra at 507-508 Barwick CJ said: "In the second place, however, if the failure of the steering mechanism of the car be regarded as the occurrence, it does not, in my opinion, furnish any evidence of negligence. With every respect to their Honours of the Supreme Court, neither judge nor juror, as of common knowledge or experience, knows anything of the causes of failure of the steering mechanism of a car. It is of course not a usual occurrence. But that does not, in my opinion, mean that when it does occur, it is more likely than not that it results from a lack of care in maintenance and particularly in that class of maintenance which the average driver ought reasonably to make or to procure. I repeat in relation to the failure of a steering mechanism the substance of what I said in a case recently heard in this Court. Speaking of a commercial washing machine, a part of which for some unexplained reason began unexpectedly to move so that the machines operator was injured, I said, with the concurrence of my brothers McTiernan and Owen: 'An accident will itself provide evidence of negligence where in the ordinary affairs of mankind such an incident is unlikely to occur without the want of care on the part of the person sued. What happens in the ordinary course of mankind is either the subject of evidence or of common knowledge. Here there was no evidence whatever beyond the fact that in four years operations nothing of the kind had manifested itself in the operation of this machine. It seems to me that neither a jury nor a judge has of common knowledge any information which would warrant the inference that, when an accident of the present kind occurs in the use of a complicated piece of machinery energised partly by electricity and partly by compressed air, having various components for the merest understanding of which some mechanical knowledge or expert explanation is necessary, the accident is more likely than not to have occurred due to the want of care on the part on the respondent.' If the occurrence is to provide evidence, it can only be that, within the common knowledge and experience of mankind, that occurrence is unlikely to occur without negligence on the part of the parties sued. By that very statement, the occurrence is unlikely to provide evidence except in connection with machines or machinery of whose working and use the ordinary man has knowledge and experience. I do not think that the mechanical make-up of, and the forces operating on or with, the steering mechanism of a car are within such knowledge or experience." 66 In the circumstances as it seems to me Sinclair DCJ did not fall into error when he held "that in the circumstances of this case the failure of the throttle mechanism (did not) speak for itself as those words are used in the application of the res ipsa loquitur principle", it following, in my view, that the appeal, insofar as it relates to the Appellant's claim as against BMW Aust and BMW, should be dismissed. 67 The Appellant's case against Tom Byrne may be dealt with more shortly. 68 Let it be accepted: 1. that the contract of sale between the Appellant and Tom Byrne was one which was subject to both a condition that the motor cycle be of merchantable quality and a further condition that the motor cycle be reasonably fit for the Appellant's purpose of riding it; and 2. that if, at the time of delivery, the motor cycle had an inherent defect which, although not apparent at the time, would inevitably manifest itself, it could be regarded as having been otherwise than of merchantable quality or unfit for the Appellant's intended purpose the evidence which was tendered at trial, in my view, fell far short of demonstrating that, at the time of delivery of the motor cycle to the Appellant, there was some such inherent defect in it; far from that having been done, Sinclair DCJ, as I have earlier noted, recorded that the evidence was not such as to enable the cause of the malfunction in the throttle mechanism to be identified. 69 The mere fact that, as Sinclair DCJ was prepared to hold, the throttle malfunctioned on 15 September 1985 falls far short of establishing that the motorcycle was not of merchantable quality, or that it was not reasonably fit for the Appellant's intended purpose. On the contrary, the evidence, that prior to that time, the Appellant had ridden the motor cycle, without untoward incident, over a period of 18 months or thereabouts and for distances totalling in excess of 15,000 kilometres both in the Metropolitan area and outside the Metropolitan area and at speeds of up to 80 to 20 kilometres, coupled with his Honour's apparent rejection of the Appellant's assertion that at no time during that period had he ever opened the throttle wide out, would, without more, suggest to me that, at the time of delivery, the motorcycle did not have any such inherent defects. Further support for that conclusion is provided by the facts, first, that during that period of 18 months, the motorcycle had been serviced and no defect in the throttle mechanism had been ascertained; second, that even after 15 September 1985, when the motorcycle was repaired and the throttle mechanism checked by Rick Andrews, no defect in the throttle mechanism was identified; and, finally, that neither on 9 May 1986, when Mr. Harrington examined the motorcycle, nor on 30 May 1986, when the throttle mechanism was stripped down, was it possible to reproduce any malfunction of the throttle mechanism. 70 For these reasons, it seems to me that no error on the part of Sinclair DCJ when dealing with the Appellant's claim against Tom Byrne has been identified, it following that the appeal in this respect as well should be dismissed. 71 I proceed, but only briefly, to deal with the remaining two questions to which I have earlier (see para. 60) referred. 72 Despite the fact that the additional material of which Mr. Nicolson gave evidence had not been provided to the Appellant's solicitors until the Friday before the resumed hearing before Sinclair DCJ, it remained open to his Honour (District Court Rules Pt 28 r 8(6)) to grant leave for that evidence to be given on the hearing. In determining to grant that leave his Honour clearly exercised a discretion which was vested in him and the exercise of that discretion cannot be challenged unless the case be brought within one of the exceptions discussed in the well known passage in the joint Judgment of Dixon, Evatt and McInternan JJ in House v. The King (1936) 55 CLR 499, 504-505. This the Appellant has been unable to do. Further, as I have earlier recorded, no application was made on behalf of the Appellant for an adjournment to enable him to deal with this additional evidence and, as Sinclair DCJ recorded, Mr. Nicolson was subjected to a searching cross-examination which cross-examination, in his Honour's opinion, "enhanced rather than cut down the opinions (Mr. Nicolson) expressed". 73 Nor has it been shown that Sinclair DCJ erred in preferring the evidence of Mr. Nicholson to that of Mr. Harrington. It is clear that his Honour's preference for Mr. Nicolson's evidence over that of Mr. Harrington was, in no small measure, affected by his Honour's views as to the credibility of each as a witness. This being so, and the principles discussed in such cases as Abalos v. Australian Postal Commission (1988-1989) 171 CLR 167 and Devries v. Australian National Railways Commission (1992-1993) 177 CLR 472 - which principles have not been watered down by the recent decision of the High Court in State Rail Authority of New South Wales v. Earthline Constructions Pty. Limited (In Liq) (1999) 73 ALJR 306; 160 ALR 588 - applying equally to expert, as to lay, witnesses, and the Appellant having been unable to demonstrate that Sinclair DCJ had been guilty of such an error as would take the present case out of the range of those principles, this attack on his Honour's Judgment as well must fail. 74 For these reasons, I would propose that the appeal be dismissed with costs. 75 BEAZLEY JA: I agree with Powell JA. 76 STEIN JA: I agree with Powell JA. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.