VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C152/2022
CATCHWORDS	
Claim by the purchaser of an old car against a mechanic – assertion that work performed by the mechanic caused subsequent engine failure or alternatively that the mechanic should have advised against performing work because it proved to be uneconomical – claim misconceived and not proven.	

APPLICANT	Rebecca Morgan	
RESPONDENT	Hunter Cuthill 4 X 4 Pty Ltd ACN:115 295 102	
WHERE HELD	Melbourne	
BEFORE	Deputy President I. Lulham	
HEARING TYPE	Hearing	
DATE OF HEARING	8 December 2022	
DATE OF ORDER	23 December 2022	
date of reasons	23 December 2022	
CITATION	Morgan v Hunter Cuthill 4 X 4 Pty Ltd (Civil Claims) [2022] VCAT 1492	

Order
1	The proceeding is dismissed. 

I. Lulham
Deputy President			

APPEARANCES:		
For Applicant	In person	
For Respondents	Mr A. Hunter, company director	

Reasons
1	The applicant purchased a 13 year old diesel Peugeot, with an odometer reading of over 240,000 km, in a private sale. 
2	It was part of her deal with the vendor that she had responsibility for obtaining a certificate of roadworthiness (“RWC”) and she obtained one from Geelong European Automotive in March 2021 at a cost of around $3,500.00. The applicant was given a tax invoice by Geelong European Automotive which set out its observations, including the words, “air intake may require attention/ inspection for leaks if any signs noticed following due to high pressure regeneration requires burn off to clear DFF soot”. Geelong European Automotive stated on its invoice that it had outsourced the RWC and that “all work is completed while fit for duty. All care is taken with your vehicle and warranty is limited to workmanship on your vehicle. No claims or liability is accepted for any consequential loss or damage however caused all estimations are subject to dismantling inspection, time and parts are subject to alteration.”
3	The applicant knew that the car required more work after being given Geelong European Automotive’s invoice and the RWC, because exhaust fumes were leaking into the cabin. In June 2021 she took the car to an authorised Peugeot dealer, Rex Gorell, who carried out a diagnostic test and reported that the injectors were leaking, that the rocker cover gasket was leaking, that it was possible that the intake assembly (manifold) was leaking, and that the clutch master cylinder line needed replacement because the last mechanic who worked on that component had done a patch up job using the wrong type of hose. Rex Gorell indicated that it could perform additional work for around $6,000.00. The applicant considered that sum to be excessive, in the context of the price she had paid for the Peugeot and her expenditure of $3,500.00 in obtaining the RWC, and in due course she approached the respondent.
4	The applicant had the Peugeot towed to the respondent’s premises. In substance the applicant says that the respondent’s task was to diagnose the car and repair it, whereas the respondent says that the task given to it by the applicant was to carry out work on the issues identified by the applicant. The respondent said that the applicant did not give it a copy of Geelong European Automotive’s invoice, but orally summarised it.
5	The respondent carried out a diagnostic investigation by physically pushing smoke into the manifold to see whether leaks were present and by carrying out a computer fault code check. The respondent identified a cracked intake manifold and a hole in the turbo intake pipe, which caused fumes to leak from the engine into the cabin. The respondent says that there were delays in obtaining parts for Peugeots at the time, brought about by the impact of Covid 19 on supply chains, and that it had to wait several months for a manifold to be imported from France before it could run the engine to determine whether there were any further engine faults.
6	The respondent says that once the intake manifold was replaced, the engine ran but did not run very well. The respondent removed the injectors and found a significant carbon build-up inside the engine.  With the applicant’s authorisation it replaced one of the injectors, at a component cost of around $680.00, but was able to clean, test and reinstall the other three injectors at a considerable saving. The respondent says that the carbon build-up suggested that the Peugeot had not been properly serviced in its 240,000 km history.
7	The respondent returned the Peugeot to the applicant on 6 December 2021. The applicant paid the respondent’s invoice.
8	The applicant observed that a light came on in the dashboard on 11 December 2021. The applicant says that she telephoned the respondent, speaking to a mechanic named Mark, and that she told Mark about the engine light. Mark did not tell the applicant to stop driving. The applicant says that she is familiar with Peugeots and that she checked the fluids and that she was confident that the engine was not overheating. She continued to drive the Peugeot until 31 December 2021, when it broke down.
9	The applicant was not able to give evidence of the colour of the light that came on in the dashboard. Mr Adam Hunter said that this model Peugeot would display a yellow light to indicate a problem with a turbocharger, and a red light if the engine was overheating. He concluded, particularly from the applicant’s evidence that she was satisfied that the engine was not overheating, that the yellow light had displayed. He said that the yellow light was not a warning to stop driving the vehicle.
10	In the above circumstances the applicant seeks an order that the respondent pay her $3,500.00 which was the amount she had paid to Geelong European Automotive. Essentially her analysis is that the respondent misled her into engaging the respondent to perform mechanical work when it was not economical to do so, and alternatively that the respondent was not entitled to charge the applicant for the work it performed because it should have diagnosed the Peugeot and concluded that it was not appropriate to perform that work.
11	The respondent’s defence is that it performed the work that it was engaged to perform. It replaced the manifold, cleaned three injectors and replaced one injector, and that the work it performed was neither deficient nor the cause of the engine apparently breaking down. The respondent says that the cause of the engine breaking down is not proven, because the engine has not been examined. The applicant has not led evidence from a mechanic setting out the cause of the engine failure. The respondent has not diagnosed the engine failure because to do so would be an expensive exercise. The respondent asserts that the age of the car, the mileage, the unknown service history, the carbon build-up in the injectors and engine suggests strongly if not proves that the vehicle had a questionable service history, and that all of those factors were more likely than not to be the cause of engine failure.
12	Having heard the oral evidence of the applicant and of Mr Adam Hunter, director of the respondent, and having examined the documents tendered by the parties, I find that the applicant has not proven her case. I do not accept that the respondent had the task of diagnosing the Peugeot and fixing it. I find it more likely than not that the applicant towed the Peugeot to the respondent’s premises and engaged it to perform a limited scope of work, to deal with the manifold and the leaking of fumes into the cabin. I find that the respondent carried out the work which it was retained to perform.
13	It is significant that the applicant purchased the high mileage Peugeot in a private sale, did not give evidence as to the purchase price, and acknowledged that she was conscious of not wanting to spend too much money on the Peugeot. I am not satisfied on the evidence that the applicant proved any connection between the work performed by the respondent and the subsequent failure of the engine, or any defect in the work performed by the respondent. I conclude that the Peugeot was an old, high mileage vehicle, and that there are any number of factors including the way in which the previous owners had treated the vehicle which could have caused the engine to fail. 
14	I also reject the applicant’s assertion that Mark of the respondent breached a legal obligation to her by not telling her to stop driving the Peugeot when the light was displayed on the dashboard. The applicant drove the vehicle for some 20 days after this light was displayed. She had ample opportunity to have the vehicle inspected. The risk of the engine becoming damaged by continuing to drive the vehicle when a light is displayed on its dashboard falls on the applicant.
15	In these circumstances the case must be dismissed. 

I. Lulham
Deputy President