Alderson v Gause; Alderson (Compensation to Relatives) v Gause; Heafey v Gause; Heafey v Gause; Heafey v Gause; Heafey v Gause

[2024] NSWDC 152

District Court

New South Wales

Medium Neutral Citation:

Alderson v Gause; Alderson (Compensation to Relatives) v Gause; Heafey v Gause; Heafey v Gause; Heafey v Gause; Heafey v Gause [2024] NSWDC 152

Hearing dates:

20 March 2023
21 March 2023
24 March 2023
19 July 2023
20 July 2023
21 July 2023
25 October 2023
27 November 2023
28 November 2023
29 November 2023
1 May 2024

Date of orders:

06 May 2024

Decision date:

06 May 2024

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

(1) Judgment for the Plaintiff, Tamara Alderson, against the Defendant in proceedings no. (2021/00080424) in the sum of $143,063.55.

(2) Judgment for the Plaintiff, Narelle Heafey, against the Defendant in proceedings no. (2021/00080450) in the sum of $59,520.64.

(3) Judgment for the Plaintiff, John Heafey, against the Defendant in proceedings no. (2021/00174019) in the sum of $52,500.00.

(4) Standover proceedings brought by Tamara Alderson no. (2021/00309993) on behalf of herself and Elijah Heafey and Kruz Heafey for the purpose of infant approval determination.

(5) Standover proceedings for damages brought by Elijah Heafey no. (2021/00080437) for the purpose of infant approval determination.

(6) Standover proceedings for damages brought by Kruz Heafey no. (2021/00080442) for the purpose of infant approval determination.

(7) The matter is listed for directions in regard to Orders 4, 5 and 6 on 10 May 2024 at 9:45am, with leave for the parties to appear by AVL.

Catchwords:

Negligence – personal injury – defence requiring specific pleading – landlord’s duty of care for smoke alarms – s 5B CLA breach – onus of proof – inference – s 5D causation – s 50 CLA intoxication – s 5R CLA contributory negligence – pure mental harm damages – s 31 CLA whether suffered recognised psychiatric illness – s 16 CLA assessment of non-economic loss damages.

Legislation Cited:

Civil Liability Act2002 (NSW) ss 5B, 5D, 5E, 5R, 16, 31, 32, 50

Compensation to Relatives Act 1897 (NSW) ss 3, 5, 7

Evidence Act 1995 (NSW) s 140

Uniform Civil Procedure Rules 2005 (NSW) r 14.14

Cases Cited:

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Betts v Whittingslowe (1945) 71 CLR 637

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Chappel v Hart (1998) 195 CLR 232

Ciprijanovic v Schindler Lifts Australia Pty Ltd [2013] NSWSC 431

Day v Rogers [2011] NSWCA 124

Effem Foods Pty Ltd t/as Uncle Ben’s of Australia v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15

Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22

Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56

Jones vDunkel (1959) 101 CLR 298

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346

Payne t/as Sussex Inlet Pontoons v Liccardy [2023] NSWCA 73

Russell v Edwards (2006) 65 NSWLR 373

Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182; [2012] HCA 5

Thorby v Goldberg (1964) 112 CLR 597

Category:

Principal judgment

Parties:

Tamara Alderson, Elijah Heafey, Kruz Heafey, Narelle Heafey, John Heafey (Plaintiffs)
James Gause (Defendant)

Representation:

Counsel:
Mr A Campbell (Plaintiffs)
Mr J Turnbull SC and Ms M Hamdan (Defendant)

Solicitors:
Law Partners (Plaintiffs)
Holman Webb (Defendant)

File Number(s):

2021/00080424
2021/00080437
2021/00080442
2021/00080450
2021/00174019
2021/00309993

Judgment

Introduction

1. The Plaintiffs proceed by Statements of Claim (“SOC”) filed 22 March 2021 for damages consequent of personal injury alleged to be suffered by them and resulting from the death of Mr Bradley Heafey (the “Deceased”) who died in a residential house fire at 12 Macquarie Street, Barnsley in the State of New South Wales (the “Premises”) on 8 April 2019. He was 23 years of age, the partner of Tamara and father to Elijah, who was then four years of age, and Kruz, who was then two years of age. Plaintiffs John and Narelle Heafey are the Deceased’s parents.

2. By a separate Statement of Claim (“CTRA SOC”), Tamara claims a provision in accordance with the Compensation to Relatives Act 1897 (NSW) (“CTRA”) for herself, Elijah and Kruz. Whilst the relationship between Tamara and the Deceased was not admitted by the Defendant at the start of the trial, in closing submissions the Defendant admitted the fact of their “de-facto” spoused relationship: CTRA SOC at [4]; CTRA Defence at [4]; MFI 33 at [1.2]; CTRA s 5 and definition s 7(4)(b). In closing, the Defendant conceded that he did not dispute the Plaintiffs’ relationships with the Deceased for the purposes of their mental harm damages claims: s 32 Civil Liability Act2002 (NSW) (“CLA”).

3. At the close of the hearing, I was informed that the quantum of damages in the claims brought by John, Kruz and Elijah and the quantum of damages (compensation) in the CTRA claim were agreed. This judgment deals with the question of liability in negligence in all claims, and non-economic loss damages in the claims brought by Tamara and Narelle. In the event that I determine the death of Bradley to have been caused by negligence of the Defendant; then the Defendant will be liable also in the CTRA claim: s 3 CTRA.

4. For convenience and without meaning any disrespect, I will continue to refer to the Plaintiffs by their first names. That is how they were identified throughout the hearing.

5. It is common ground that the smoke alarm in the loungeroom of the Premises where the Deceased died had been tampered with and it did not sound.

6. The Premises were owned by the Defendant and rented to Tamara and the Deceased. The Residential Tenancy Agreement (the “Lease”), made 14 February 2019, names the Defendant as landlord and lists the Deceased, Tamara, and their children Kruz and Elijah as tenants. The Lease was signed by the Defendant in his capacity of landlord and by each of the Deceased and Tamara in their capacities of tenant. Narelle witnessed the signatures to the Lease: Exhibit F. The Deceased and Tamara, with Kruz and Elijah, entered into occupation of the Premises on the date of the Lease.

7. The Defendant is employed as a Network Control Manager at Transgrid. He holds an Electronics Trade Certificate and an Associate Diploma in Electrical Engineering. He commenced but did not finish an Electrical Engineering Degree at the University of Newcastle. He is employed at Transgrid working in the control room, operating the high voltage network between Queensland and the Victorian border. Whilst he arranged for a friend of his father who worked as a BHP electrician to install the smoke alarms, the Defendant, himself, purchased the Clipsal Lifesaver 755 smoke alarms which were in the Premises.

8. In the transcript and in this judgment, “alarm”, “fire alarm”, “smoke alarm” and “smoke detector” are terms interchangeably used for a Clipsal Lifesaver 755 device which is expected to sound an alarm when it detects smoke.

9. The CLA applies to the Plaintiffs’ claims for damages.

The Fire – Collapse and Death

10. Expert fire investigation opinion evidence was relied upon by the parties; Mr Munday was retained by the Plaintiffs and Mr Kelly was retained by the Defendant. The Supplementary Report by Mr Munday dated 10 December 2021 (Exhibit A) includes his opinion of how the fire progressed and what is most likely to have occurred in the last moments of the life of the Deceased. Having considered the whole of the evidence in the hearing and particularly the expert opinion evidence of Messrs Munday and Kelly, I find Mr Munday’s opinion of the course of the fire to be ultimately persuasive. Consistently with Mr Munday’s opinion, during simultaneous oral expert evidence on Day 5, Mr Kelly agreed that hot gas and smoke probably progressed to the lounge area in the stage of the fire preceding it breaching the kitchen ceiling. Also, Fire and Rescue NSW investigator, Mr Schweickle’s opinion of the course of the progression of the fire (Exhibit L) is consistent with Mr Munday’s opinion.

11. Mr Munday described the event of the noisy breaking of the kitchen window which would, by the emission of air into the Premises from outside through the lower part of the window whilst smoke exited through the upper part, have accelerated the fire: Exhibit A at [14]. He commented that this would have occurred at approximately the same time that an operational smoke detector alarm situated in the hallway would have sounded its alarm. He was briefed that the only smoke detector alarm was fitted to the hallway ceiling just beyond the loungeroom doorway. But his description of smoke passing the hallway door lintel logically means that an operational smoke detector fitted to the loungeroom ceiling would have sounded earlier than that point in the fire’s progression because smoke at the loungeroom ceiling would have triggered it before the smoke increased and lowered to pass the lintel at the doorway to the hallway: Exhibit A, Mr Munday at [12] – [15], quoted at [19] of this judgment. Mr Munday stated:

“35. There would have been some noises in the kitchen as the fire grew but the first loud sound would likely have been the kitchen window failure … If the deceased awoke at that stage, then it would be similar to being alerted by the alarm…

36. I have no knowledge of the deceased’s olfactory sense, possible background odours in the house or other factors which could affect detection of the developing fire by odour. I am unable to comment further on that possibility.

37. At the stage of fire development described at 15 above [Note: I quote [15] below in this judgment], downward radiant heat would be increasing rapidly but the air temperature at lounge seat height would still be close to the pre-fire ambient. Exposed skin may therefore experience enough sensation to awake a drowsy or sleeping person, but clothed skin would not undergo a significant temperature rise at this stage.

38. Whatever the reason for becoming aware of the fire, if the smoke layer was already sufficiently deep to immerse the [Deceased’s] head when he stood up then he would become confused and disorientated. The combined effects of heat, toxic gases and smoke particulates would cause rapid incapacitation and collapse. It is improbable that he would then survive until the onset of flashover.

39. In my opinion, the most likely explanation for the deceased being unable to leave the building is that he stood up from the lounge, encountered a smoke and hot gas layer which was already deep enough to affect his eyes and airways, and became disorientated.

40. He may then have closed the internal door thinking that he was opening the front door, or have blundered into the open door and caused it to close, before collapsing to the ground against the door where he was found.”

12. Further, as to [37] quoted above, photographs of the Deceased as he was found after the fire show that he was wearing shorts and was unclothed above his waist. Applying Mr Munday’s observations, he would mostly likely have felt the heat on his mostly exposed unclothed body: see Exhibit 1 – Mr Kelly Report, Photographs FIRU 132 and 136. Importantly, had the loungeroom ceiling smoke alarm been operational, it would have sounded at the very early stage of smoke at that ceiling, and before the smoke lowered to pass the lintel to the hallway, and before the Deceased would have felt heat to the exposed parts of his body, and before the smoke layer was sufficiently deep from the ceiling to immerse his head when he stood up: see further my extraction from the Report of Mr Munday at [19] following.

13. During closing arguments, I put to the parties that it seemed to be common sense and compelling that because the Deceased collapsed in the location of the loungeroom at the door to the hallway which indirectly led to the back door, when the front door which led immediately to the outside was, in normal circumstances of vision and calm mind, obviously available to him on the other side of the room; it is reasonable to infer that he responded to escape when the smoke and heat layer had lowered to cause an environment which induced confusion and/or disorientation and incapacitation by effects of the fire. Acceptance of this inference is also encouraged by the fact that the location to which the Deceased moved was closer to the kitchen and the fire than to the front door, which was in the direction away from the fire. To take that direction was apparently against the Deceased having clear vision and exercising calm reason.

14. There is no suggestion that the Deceased did not move to the position in which his body was found. Indeed, the photographs and house plans are not suggestive of any reason why he would have been at the door to the hallway other than him making a confused and disorientated attempt to escape. There was not, for instance, a couch in the location of which he was found.

15. During closing submissions, Counsel for the Plaintiffs agreed with the finding of fact that the Deceased must have suffered confusion or disorientation, inferred by the facts stated above. Senior Counsel for the Defendant refuted finding that inference. Other possible hypotheses to which the Defendant pointed included:

• That he was going into the bedroom to try to stop that alarm from going off – the bedroom being at the end of the hallway to which the door opened; or

• He was going to the kitchen to turn off the electricity.

16. I agree with Senior Counsel for the Defendant that other reasonable hypotheses must be considered. But the fire, smoke and fumes had reached a stage which caused him to collapse. I consider it to be unlikely that he was attempting to enter the inferno which must have, by that stage, been raging in the kitchen. There is no evidence that anybody heard the bedroom smoke alarm sound. There is no evidence of whether or not it did sound. I consider it unlikely that, having risen into the environment of the state of the fire as Mr Munday described it, at a stage when the conditions were sufficient to cause him to collapse, he was prioritising turning off the bedroom alarm. Indeed, there is no evidence which would explain to me that a sounding smoke alarm could be turned off during a fire. There is no evidence that the Deceased even knew how to do that, if it was possible to do at all.

17. In my opinion, it is reasonable to find as a fact inferred from the evidence, and I do, that the Deceased responded to escape the fire when confused and/or disorientated and incapacitated because of the environmental effects of the fire in the loungeroom, and, unfortunately, went in the “wrong” direction to exit the Premises and collapsed at the hallway door. The immediately available front door on the other side of the loungeroom would have provided direct escape from the Premises to the outside.

18. It was in the course of the action of the Deceased attempting to escape the fire that he collapsed and expired in that place near the door to the hallway. Common expert evidence is that the smoke was not at floor level when he collapsed. See the Photograph FIRU 132, Exhibit 1 – Kelly Report, the “protection pattern” shows the wall behind the Deceased’s body was not stained by smoke when he collapsed.

19. As the case was run, the parties appeared to commonly assume that the Deceased fell asleep on a couch in the loungeroom when the fire started in the kitchen. Whilst on the couch, the fire would have created smells, sensation of heat, and noises which likely aroused him. Mr Munday described that stage of the fire in the following terms, which again, after having considered the whole of the expert opinion evidence concerning the fire, I find to be persuasive (Exhibit A – Mr Munday Supplementary Report):

“12. Once ignition of the pan contents occurred [for reasons given at [39] – [46] it is pure speculation to suggest, and I do not find, that there was ignition of pan contents] and flames were produced, there would be a greater volume of smoke produced at a higher temperature, which would cool and disperse more slowly. This smoke would spread farther through the open plan living area at or close to ceiling level, but the layer would be unlikely to be deep enough to pass the lintel depth above the door into the hallway.

[Note: Mr Munday here has described smoke at a point when it would have reached the location of the loungeroom ceiling smoke detector; but was considering progress of smoke to a hallway smoke detector because his brief instructed that was the only location of a smoke detector.]

13. Heat and flames would spread to the surrounding combustibles including the cabinetry, kitchen window coverings, and any other readily available fuels such as household contents surrounding the stove. At this stage the fire would grow rapidly, large quantities of thick buoyant smoke would be produced and the depth and temperature of the hot gas layer under the ceiling would increase.

14. At around the same time the kitchen window would have failed, allowing some of the flames, hot gases and smoke to vent to the outside atmosphere through the upper part of the window while allowing fresh air into the room via the lower part. This would increase the intensity of the burning in the kitchen and speed up the growth of the fire.

15. The growing fire would produce increasing quantities of hot smoke and combustion gases, causing the layer depth under the ceiling to increase until smoke could spill under the lintel and through the open hallway door. The smoke would still be buoyant at this stage and would rise again to the hallway ceiling where it could interact with [a hallway smoke alarm at that position].”

20. The conclusions to be found from the above evidence of progression for fire and smoke is that, more probably than not, save any significant allaying effect of intoxication, which question is considered below under the subheading “Intoxication of the Deceased – s 50 CLA; Contributory Negligence – s 5R CLA”:

• an operational smoke alarm fixed to the ceiling in the loungeroom would have sounded and triggered the Deceased’s escape when smoke reached it at the loungeroom ceiling, well before the smoke and fumes were low enough in the loungeroom to disorientate and confuse him when he rose to stand from the couch or otherwise to escape;

• it is likely that the Deceased was confused and disorientated when aroused from sleep, his action to escape the fire having been triggered by the sensations of noise, heat and smoke at a time later than that at which an operational smoke detector alarm would have triggered his escape reaction;

• an operational smoke detector would likely have sounded its alarm and aroused the Deceased before the smoke layer, heat and toxic gases reached the stage of incapacitating environment described by Mr Munday at [38] quoted above; and

• had the smoke alarm in the bedroom been operational, given the expert opinion description of the course of the fire, including penetration of the kitchen ceiling and through the Premises in addition to the massive destruction of the Premises and particularly of the bedroom (as identified by Senior Counsel for the Defendant during closing submissions); it is reasonable to infer that it would have sounded at some stage of the fire but after an operational alarm in the loungeroom (Joint Expert Opinion Report – Exhibit D, Answer 4(a)).

21. It was the lateness of the Deceased’s action to escape the fire, in terms of progress of the fire, such that he was in a confusion-inducing smoke layer, which caused his failure to escape and his death.

Pleadings and Issues

22. By Defences filed 25 November 2021, the Defendant admitted that he managed the leasing of the Premises.

23. Whilst it is not contested that the Deceased died in the fire on the evening of 8 April 2019, the circumstances surrounding that incident are in issue. Following his attendance at a friend’s party, in the early evening, the Deceased returned home to the Premises. Tamara, Elijah and Kruz were not at home. Sometime later a fire commenced, probably in the kitchen. The Plaintiffs plead (SOC [11]) that the Deceased was asleep in the lounge area of the Premises at the time of the fire. The Defendant did not admit that fact. The undisputed fact is that he was in the loungeroom which was partially divided from the kitchen by a short wall. The Deceased’s body was found on the floor of the lounge area near the door to the hallway. His feet were before him and his shoulders and head against the wall between the kitchen and that door. There is no submission, based on evidence, contrary to the Deceased having been asleep in the lounge area when the fire commenced. Indeed, the trial was conducted on that factual basis. It is appropriate to determine the issues on that basis.

22. The real and central issues of primary liability on which the case was run concerned whether or not the Defendant was negligent for failing to have provided operational smoke alarms in the Premises and the related issue of whether or not the Defendant took reasonable care, when inspecting the smoke alarms, to determine whether or not they were operational. The main focus was directed to the smoke alarm in the loungeroom of the Premises because that was the room in which the Deceased died.

Mains Power Connection

25. During her evidence-in-chief, Tamara said that the mains power was connected when the family moved in: T 47. 45. She recalled that on 14 February 2019, she telephoned the electricity retailer after signing the Lease “to have it put into my name”. That she telephoned the electricity retailer was corroborated by both the Deceased’s father John, and the Defendant.

26. The Defendant said that the power was disconnected on 14 February 2019, as it had been during the vacancy of the Premises preceding the Lease. He recalled that he went to his parents’ house the next day, 15 February 2019, to work on his car in their carport, from which place he could see the electricity box of the premises: T 174. 24 – 34. Whilst working on his car, he saw a man in a high visibility shirt walk to the meter box, remain there for about one minute, and then walk away. He assumed that man to be an Ausgrid worker turning the power back on. His conclusion of connection of the mains power on 15 February 2019 is inconsistent with the recollection of Tamara, but not directly inconsistent with the recollections of Narelle and John.

27. The Simply Energy electricity invoice (Exhibit 25) and recording of Tamara’s call on 15 February 2019 following up on connection (Exhibit 26), establish that she telephoned on 14 February 2019 to request electrical connection, and that connection was actually made the next day, 15 February 2019. Plainly, Tamara’s recollection of connection of mains electricity was inaccurate in that she confused her recollection of calling Simply Energy to connect and of the appliances being moved in on 14 February 2019, with actual power up that occurred the following day.

28. In closing oral submissions, Senior Counsel for the Defendant did not seek to address my observation that Tamara’s mistake as to the fact of the date of actual mains power connection would not cause me to not accept her other reliable evidence: T 561. 25.

Issue Best Determined Early – One or Two Smoke Alarms?

29. A discrete issue which, for an orderly presentation of these reasons, deserves early determination, concerns whether one or two smoke alarms were in the Premises and where smoke alarms were located. The Plaintiffs’ case is that there was a single smoke alarm situated in the hallway immediately before the door to the loungeroom and approximate to the laundry door. The Defence case is that there were two smoke alarms, one situated in the loungeroom and the other in the master bedroom (referred to in these proceedings as the “bedroom”). The Plaintiffs’ case is difficult to accept given that, without objection, the Defendant tendered two smoke alarms which were fire damaged (Exhibits 14 and 16). The Defendant gave evidence that he located those smoke alarms, one in the rubble of the bedroom and the other when at the local rubbish tip amongst rubble removed from the loungeroom. His evidence was that the smoke alarms were respectively situated in the ceiling of the loungeroom and the ceiling of the master bedroom. In the Defence case, photographs showed smoke alarms in each of those two locations. In the Defence case, there was no alarm in the hallway. But, there was a ceiling light at the location of the alarm proposed by the Plaintiffs. During cross-examination of the Defendant, he was never challenged on the basis that Exhibits 14 and 16 were not located from the rubble following the fire, as he stated in his evidence. It follows, before I come to consider the evidence of witnesses in the Plaintiffs’ case, that I prefer the physical evidence of Exhibits 14 and 16 to the evidence of recollection of the witnesses in the Plaintiffs’ case. I find that there were two smoke alarms, one situated on the ceiling of the master bedroom and the other on the ceiling of the loungeroom.

30. For completeness, I note that there is no evidence that the police or fire investigation authorities conducted an energetic search for smoke alarms in the Premises. Indeed, the fire investigator, Mr Schweickle, engaged in an email exchange with the Defendant enquiring of whether or not there had been smoke alarms within the Premises.

31. On Day 5 of the hearing, Senior Counsel for the Defendant explained that whether or not there was a second operational smoke alarm in the bedroom, “… will be not of causative relevance in this matter. But it’s important for issues of credit because we know the plaintiffs all gave evidence that there was one fire alarm in the hallway.”: T 289. 40 – 45. That is, that a significance of the witnesses in the Plaintiffs’ case being wrong as to this important feature of the case, was that it showed their evidence of recollection, individually given, to be unreliable.

32. I do not find unreliability of their evidence generally to be exposed by their evidence in that specific regard, amongst consideration of the whole of the evidence. Only Tamara was firmly of the view that her recollection of a single smoke alarm in the hallway was correct. The Deceased’s parents, John and Narelle, conceded the limits of the attention paid by them to the smoke alarms and that their recollections were unreliable in that regard by making appropriate concessions when cross-examined on objective evidence such as photographs. Plainly, the Defendant as owner of the Premises, having retained a person to install the smoke alarms in the Premises in 2002 and having attended to them during the maintenance of the Premises over the intervening 17 years, was of greater experience and familiarity with the smoke alarms than were any of Tamara, John and Narelle. By comparison, prior to the fire, there was limited cause for Tamara, John and Narelle to have serious regard for observation of the smoke alarms. This is my observation, whilst acknowledging that as foster parents, John and Narelle were aware of the importance of smoke alarms in the Premises.

33. Because the Defendant challenges the credit of Plaintiff witnesses regarding their evidence on the question of assessment of damages and, also, of Tamara on the question of whether the loungeroom smoke alarm was tampered with during the tenancy, I deal with challenges to their credit throughout this judgment.

34. As I noted above, Tamara, when cross-examined, was adamant of the single smoke alarm situated in the hallway: T 91. 35 – T 92. 40. Plainly, her recollection in that regard was unreliable but, on the basis of it, I do not reject the whole of her evidence. I come to further consideration of the credibility of her evidence later in these reasons.

35. John was adamant during cross-examination that he had noticed only a single smoke alarm in the hallway before the fire. He also said that when he attended the Premises at around 3:00pm on the Wednesday following the Monday fire, between the doorway to the lounge area (door removed by NSW Fire & Rescue) where the Deceased’s body was found, and the door to a linen press, the bracket which had retained the hallway smoke alarm was still situate in a section of the ceiling which had not yet fallen. He was shown photographs taken at some point after the fire by NSW Fire & Rescue and agreed that the bracket could not be seen in the portion of the hallway ceiling which had not fallen. He answered “… No, it’s fallen down now on the photo”: T 141. 49; see T 139. 40 – T 142. 5; the photographs became Exhibit 6.

36. But when photographs of the loungeroom ceiling taken preceding the fire (Exhibit 4) were shown to John, typical of his willingness to make concessions against the Plaintiffs’ interests, he conceded that, on the basis of his recollection of what he took notice of, on 14 February 2019 when assisting Tamara and the Deceased to move in, he could not say whether or not there was a smoke alarm in the loungeroom: T 146. 5 – 14. When shown a photograph of a smoke alarm on the bedroom ceiling, he conceded that it could have been there but that he did not see it: T 146. 30. Whilst John then disagreed with the cross-examiner that he was mistaken about there being a smoke alarm in the hallway (T 146. 33 – 39), that does not detract from my assessment of him as an honest witness. Having made the appropriate concessions regarding the smoke alarms in the loungeroom and bedroom, he remained truthful as to his recollection of the hallway smoke alarm. That I accept that recollection to be inaccurate because neither party conducted the case on the basis of there being three alarms in the Premises and there is no physical evidence of the existence of a hallway smoke alarm, nevertheless retains John’s credibility as a witness of imperfect recollection of the existence of a hallway smoke alarm. Prior to the fire, it would not have been a subject of the same importance that it became following the fire and he was in a highly emotional state, making his “hooray” to his son on that Wednesday after the fire. He had seen the silhouette of his son’s body marked on the loungeroom wall by the smoke stains.

37. Narelle said that when she walked through the Premises on 14 February 2019, she saw a smoke alarm in the hallway. She described it as discoloured and noted to herself “oh, that’s where it is” and then continued moving furniture and setting up the rest of the Premises, in readiness for the Deceased and Tamara’s family to move in: T 104. 10 – 13. But when her recollection of whether there was only one or there were two smoke alarms in the Premises was tested by showing her pre-fire photographs of the Premises during cross-examination, she made frank and appropriate concessions. When shown the photograph of the loungeroom smoke alarm on the ceiling near the fan, she did not deny its existence, but said “No, I did not see that one”, and when it was put to her that it was there at the commencement of the Lease, she answered “I just did not see it, no.”: T 109. 20 – 34. Likewise, when shown a pre-fire photograph of the main bedroom ceiling, she answered “Yes, no, I didn’t see that one either, sorry. But then I didn’t…” [her answer was interrupted by the next question]: T 109. 47. The honesty of her evidence was clear to me in the following exchange concerning the existence of the bedroom smoke alarm (T 110. 3 – 10):

“Q. And I’m going to put to you, and you’re going to deny it, that there, you can see a smoke alarm in the ceiling in that photograph. You say that was not there?

A. I didn’t go into the main bedroom that much, but I did not see that, no, sorry.

Q. Is it possible it could’ve been there and you’ve missed it?

A. Yes.”

Pure Mental Harm – s 31 CLA

38. In answer to each of the Plaintiffs’ claims for mental harm damages, the Defendant also denies liability by disputing that the Plaintiffs have established that they suffered a “recognised psychiatric illness” within the meaning of s 31 CLA resulting from the Defendant’s negligence: Defence at [28].

Intoxication and Contributory Negligence – ss 50 and 5R – Factual Parameters

39. The Defendant challenged the Plaintiffs’ entitlement to damages, relying on s 50 CLA (Defence at [29] – [30]) and, in the alternative, contributory negligence (Defence at [32]) on the basis of the Deceased’s intoxication. In closing, the Defence put its argument as follows (MFI 33 at [10.4]):

“It was concluded that the fire started as a result of a frypan being left on electric stove (Exhibit 19 at [34]). The deceased fell asleep while the stove was operating, after having taken medication which was known to make him sleepy. To this end, the court ought to apply s50(3) and (4) of the CLA, applying a reduction to any award of damages of at least 25% on account of the plaintiff’s contributory negligence due to the combination of prescription medication and alcohol in his system, in addition to the conclusion that food was left unattended on the stove in the kitchen, after which he fell asleep. Alternatively, the court ought to apply a reduction for contributory negligence in accordance with s5R of the CLA, or alternatively, pursuant to the common law principles of contributory negligence.” (emphasis added)

40. It is not clear from that submission whether or not the Defendant relied on the intoxication defence (ss 50(3) and (4) CLA) separately on the basis of slowed reaction to the fire, absent the allegation of unattended cooking. The Plaintiffs dispute that it was evidentiarily available to the Defendant to put the issues concerning intoxication and contributory negligence in those factual parameters. The Plaintiffs submitted that the evidence “…does not prove that the [Deceased] left the stove on with food on the stove.”: MFI 32 at [26].

41. Before proceeding further in these reasons, I observe that the above-quoted Defence argument is inaccurate or significantly incomplete in its reference to the statement of Officer in Charge, Detective Senior Constable Phillpott, which is Exhibit 19. At [34], Officer Phillpott was referring to an opinion expressed to her by Mr Tocher, of Safearth Consulting. Mr Tocher was described by her as an expert in electrical devices utilised by New South Wales Police Force who had examined the stove in the kitchen of the Premises. In fact, Officer Phillpott reported that Mr “Tocher’s opinion would be that he could not rule out an electrical fault as the cause of the fire”, because parties had changed the positions of safety switches following the fire and before Mr Tocher’s inspection: at [28]. Officer Phillpott reported that both New South Wales Fire and Rescue, and Ausgrid staff had changed the position of the safety switches: at [29] and [30]. In her statement, Officer Phillpott reported Mr Tocher was “… unable to determine if the elements to the stove top were switched on or off when the house fire started.”: At [26].

42. Officer Phillpott did not at [34] report the conclusion as stated (incorrectly) by the Defence in its above-quoted submission, “… that the fire started as a result of a frypan being left on electric stove”. Officer Phillpott reported that expert evidence by CSO McCann and New South Wales Fire and Rescue, Fire Investigator Mr Schweickle, reported to her, was “that the cause of the fire is unknown/undetermined.” Those Officers opined only as to the location of the start of the fire, not the source of the fire. She reported “It is apparent from both their opinions, the fire started on the right side of the stove top in the kitchen where a melted aluminium frypan (or similar) was located.”

43. In short, there is no objective evidence in the case, nor is there expert opinion, supporting the Defence Closing Written Submission (MFI 33 at [10.4]) that the fire started in consequence of cooking or, otherwise, the element of the stove top in association with the frypan. The only expert opinion is that the fire started in that location of the stovetop by an unknown cause.

44. From the evidence of the start of the fire, the evidence of the expert investigators from New South Wales Fire and Rescue, and from Police, I note the following references in order to define the factual parameters of the Defences under ss 50 and 5R CLA:

• In his report on his investigations dated 21 May 2019 (Exhibit L), New South Wales Fire and Rescue Fire Investigator Schweickle directly commented that he was “unable to determine if any of the stove top elements were on at the time…” and located the fire to the right side of the stove because of significant damage to the aluminium pan, cabinetry and the kitchen, they being “directional indicators” to that location. His opinion that the Deceased “had some unknown food on the stove which was left unattended” was speculative and not expressed with reference to any evidentiary finding.

• New South Wales Fire and Rescue, Fire Investigation and Research Unit, Fire Scene Examination Field Notes created on the day following the fire, 9 April 2019, concluded under “Possible/Probable Cause” that it was “undetermined” whether food stuffs were left on the stove (page 1) and that it was unable to be determined if the stove was in operation or not (page 8).

• By email dated 2 May 2019, Police CSO McCann informed Police OIC Phillpott that she could not say why the fire started and that the stove had been sent to Mr Tocher, New South Wales Police Electrical Expert, for examination and report.

45. Despite the Defendant Closing Written Submission (MFI 33 at [10.4]) quoted above (and repeated at [6.19]), during oral argument Senior Counsel for the Defendant properly conceded that whether or not oil or foodstuffs were burning on the stove was a question concerning which there was no evidence: T 558. 5 – 19.

46. For these reasons, I find that the cause of the fire is simply left unexplained by the circumstantial evidence. No doubt, the conclusion speculated at one point by New South Wales Fire and Rescue Investigator Schweickle, that foodstuffs in a pan or pot on the stove burned and caught fire, is reasonably open. So is electrical fault whilst the stove top was not in operation. It may also be possible that ignition occurred from some source other than the stove top but in proximity with the back right of the stove. The evidence does not permit more than choices between rival conjectures. The evidence does not support identifying, on the balance of probabilities, the cause of the fire: Jones v Dunkel (1959) 101 CLR 298 per Dixon CJ at 304.

47. I conclude that the factual parameters for consideration of the defences of intoxication under s 50 CLA, and contributory negligence under s 5R CLA, and at common law, are to be confined to the cause of the fire being unknown and not shown to be the consequence of any activity or omission in the operation of the stove top by the Deceased. This means that the Deceased’s intoxication is not shown to have contributed to the cause of the fire.

Specific Pleading – Tampering

48. It is common ground that the loungeroom smoke alarm had been tampered with, including by removal of its “siren” (also called a “siren disc” and a
    “speaker”) such that it was disabled from performing its fundamental function of sounding its alarm in the event of a fire. Also, its battery had been removed and the lever which was designed to prevent the smoke detector being placed in its ceiling bracket if a battery was not present had been bent so that it could be installed without a battery. In short, due to human interference, the loungeroom smoke alarm contained no siren and no battery.

49. As the expert witnesses described it, the tampering did not involve a simple mechanical exercise. It involved taking the smoke alarm from the ceiling, unscrewing the shroud to disconnect the wires and open the battery compartment, opening the back of the device so as to access the siren disc and then to mechanically manipulate it out. Finally, the red security lever which projected from the battery compartment had to be bent so that the alarm could be re-placed onto the ceiling bracket when absent a battery.

50. In Closing Written Submissions, the Defendant pressed that the Plaintiffs had failed to establish negligence and causation because the Plaintiffs had not proved who tampered with the loungeroom smoke alarm or that the tampering occurred before the Plaintiffs entered into occupation: T 557. 2 – T 558. 25. The Defence argument necessarily raised the tampering as a specific and alternative cause of the loungeroom smoke detector’s failure to sound an alarm at the event of the fire. The argument raised, as a causal fact, a mechanical defect preceding the commencement of the Lease and the Defendant’s inspection of the smoke alarms.

48. The Plaintiff protested that this defence was not pleaded: [T 585. 14]. In my opinion, in the circumstances of the Defendant having, by pleading, conceded his obligation to provide operational smoke alarms as a component of his duty to exercise reasonable care to provide premises which were reasonably fit for domestic human habitation; his obligation, in order to make that closing submission, was to plead that allegation of tampering. That is because the Defendant claims that the event of tampering rendered the Plaintiffs’ case not maintainable. In effect, the Defendant alleges that illicit conduct by a person unknown is an excuse from liability. Also, the allegation of tampering is an allegation of a foreign cause of the accident by a human activity event, unknown and undiscoverable: Uniform Civil Procedure Rules 2005 (NSW) rr 14.14(2) and (3); Ciprijanovic v Schindler Lifts Australia Pty Ltd [2013] NSWSC 431 at [36] – [39]; Thorby v Goldberg (1964) 112 CLR 597 per Owen J at 617.

49. The Defence does not plead the fact of tampering as having occurred either before or after the Deceased and Tamara entered into occupation pursuant to the Lease on 14 February 2019. The Defendant pleaded a mere denial (Defence at [22]) and denials of failure to “adequately fit the premises with smoke alarm detectors” and “failing to take action to rectify any faults with the fitted smoke detectors” (SOC at [29]). That does not suffice: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 per Heydon JA (as his Honour then was; Mason P and Young CJ in Eq agreeing) at [26]-[30].

Onus of Proof – Tampering – Plaintiff Burden of Proof of Causation

53. Obviously, by the time of the hearing the parties were aware of the fact that the loungeroom smoke alarm had been disabled so that it was not operational prior to the fire, because the expert opinion evidence had identified that fact.

54. The Defence opened its case on the basis that but for the removal of the speaker from the alarm in the loungeroom, it would have worked because the alarm was hardwired to mains electrical power. That is, even though it did not contain a battery for backup power. Common ground is that power was on from the second day of, and then throughout, the occupancy of the Premises by Tamara, the Deceased and their children.

55. The Defendant’s case is that, when inspected after the fire, expert witnesses found that the loungeroom smoke detector could not beep to indicate that it was receiving [low] battery power, or sound an alarm in the event of fire because the speaker had been removed: T 18. 33 – 43.

56. Counsel for the Plaintiffs opened by responding that the Plaintiffs understood the Defendant to assert that the tampering was performed by the Deceased or Tamara after the commencement of the Lease on 14 February 2019: T 10. 30. He then said: “That assertion is denied, if it be put to the plaintiffs.”: T 10. 41. I note, that is not the argument ultimately made by the Defendant in closing the case.

57. In closing, the Defence argument specifically put that the Plaintiffs failed to prove the causal link between any negligence of the Defendant (if found) and their loss, because the Plaintiffs failed to prove who disabled the loungeroom smoke alarm by tampering with it: T 597. 34 – 42. Senior Counsel for the Defendant put at T 598. 4 – 6: “We simply don't know which side of the commencement of the tenancy the speaker was removed, and without that, in my respectful submission, the plaintiff must fail.” He put that, on application of Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 principles (and I add that s 140(2) Evidence Act 1995 (NSW) would apply) to the standard of proof, and in the context of the fact that the prior tenant was disturbed by the alarm going off; the Plaintiffs failed, on the balance of probabilities, to establish that the prior tenant committed the grave act of tampering with the smoke alarm by removal of its speaker/siren. He argued “…that really is perhaps the critical issue in the matter. Was it removed before or after? No one knows. It can’t be proved, therefore, sadly, the plaintiffs can’t prove a case against the defendant.”: T 602. 33 – 36.

58. In Closing Written Submissions, the Defence argument acknowledged that the Defendant had not, at any stage, pushed the “test” button on the smoke alarm to check if it was operational, but relied on the fact that evidence did not establish that the loungeroom smoke alarm could or could not sound its siren at that time, in this way (MFI 33 at [8.9] – [8.10]):

“8.9   Even if the court were to find that the button ought to have been pressed, the court cannot be satisfied that had Mr Gause pressed the button, that it would not have simply sounded, thus having no causative relevance to the tragic Incident which occurred. This is because there is no evidence about how, or when the speaker disc was removed. Rather, the evidence is that:

(a)   The tenant prior to Ms Alderson and the deceased, Ms Proctor, recalled a working smoke alarm in the living room, which had a propensity to be triggered when the dryer was used and the hallway door was not closed;

(b)   This must mean that a speaker disc was present within the alarm at the time which Ms Proctor leased the property;

(c)   There could be no logical reason why, in the months following her tenancy, when the power was off and the property was vacant, that it would need to be removed;

(d)   There is otherwise no evidence to identify when the speaker disc which (sic) was removed from the living room alarm.

8.10   In circumstances where the court cannot identify when the speaker disc was removed, liability for the absence of the speaker disc cannot be visited upon [the Defendant]. The precautions taken by [the Defendant], were otherwise reasonable.”

59. In Oral Closing Submissions, the Defence argued, “Has the plaintiff proved that when the tenancy started there was no speaker in the alarm?” (T 557. 3); that it was for the Plaintiffs to prove when the tampering occurred: T 557. 6; and (T 557. 12 – 31):

“TURNBULL: … The plaintiff’s case is that it’s defective. I understand the plaintiff's case to be that the defendant should have reached up and pressed a button that your Honour took us to, or the words around it. I think that’s the same button, and his case then has to be and that if Mr Gause did that, the alarm would not have gone off, indicating there was a problem with the smoke alarm. Now, that means that the plaintiff has to prove on the balance of probabilities that the speaker was not there when Mr Gause had the opportunity to press the button …”

60. In Closing Submissions, the Plaintiffs argued their case on the basis that the Defendant failed to satisfy his obligation to take reasonable care by inspection to ensure that the smoke alarms were working: T 565. 3 – 14. The Plaintiffs argued that if, at the commencement of the Lease, when tested, the smoke alarms were operating with mains power or battery power; then, on the balance of probabilities, they would have been operating at the time of the fire. The Plaintiffs pointed to there being no reason, on the evidence, for the Deceased or Tamara to have removed the loungeroom smoke alarm siren or battery: T 584. 35.

61. It was common evidence in the case that the loungeroom smoke alarm did not beep or sound its siren during their occupation of the Premises from the commencement of the Lease, including after connection of mains electrical power. And, therefore, as the Plaintiffs’ Counsel argued, there was “no reason” for the occupants to have tampered with it, so as to have silenced it.

62. To my enquiry, Counsel for the Plaintiffs responded that disabling of the loungeroom smoke alarm by the Deceased or Tamara was not pleaded by the Defendant and that “it’d be always evidence called by the defendant that there was sufficient evidence that would break that causal connection.”: T 585. 14 –15.

63. As was his evidence, closing arguments for the Defendant conceded that the Defendant chose not to “bother” to push the test button: T 561.45 – T 562. 15.

64. In my opinion, the Defendant mistakes who bore the onus of proof. Also, the Defence argument supposes the fact of disabling the alarm by tampering at the hand of the Deceased or Tamara, which allegation is not pleaded in the Defence, and Tamara gave direct evidence denying that proposition. Even if my conclusion that the Defendant is not permitted to make the argument because he failed to specifically plead the allegation (see [51] – [52] above) be wrong, the Defence submission misstates the Plaintiffs’ burden of proof of causation.

65. The law and common sense normally attach great significance to deliberate human acts: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 29 – 31 per Lord Hoffmann (applied in Chappel v Hart (1998) 195 CLR 232 at [7] per Gaudron J, at [24] per McHugh J, at [63] per Gummow J, and at [93] per Kirby J).

66. The Defendant’s duty at both parts of the obligation to provide operational smoke detector alarms and to exercise reasonable care by inspecting the alarms was called into existence because of the foreseeability of the very risk that an alarm was not operational. If that duty was not performed, and the risk eventuated; then, the Defendant is liable. That is the beginning and the end of the enquiry of whether or not breach of duty materially caused or contributed to the harm suffered: Chappel v Hart per Gaudron J at [8]. Her Honour, in that paragraph, continued: “As Dixon J pointed out in Betts v Whittingslowe (at 649), albeit in relation to a statutory duty, ‘breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach’.”

67. S 5D(1)(a) requires that the negligence be a necessary condition of the occurrence of the harm (factual causation). S 5D(1)(b) provides that it must be appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability). S 5D(4) provides that, for the purpose of determining the scope of liability, the Court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. In this case, as will be seen in detail under the heading “Responsibility for the Smoke Alarms” below, the Defendant expressed to Tamara his acceptance of that scope of duty. In short, the Defendant’s evidence was that, at the making of the Lease, he told Tamara that he would be responsible for certain things like hanging picture hooks and checking that the smoke alarms were operational: T 220. 35 – T 222. 35.

68. The Plaintiffs rely on the common evidence that the loungeroom smoke alarm did not make any sound during the tenancy, which is not just the evidence of Tamara, but also of the Defendant when describing his claimed inspections of the alarm after mains power was connected. There was absolutely no reason for anyone during the tenancy to have tampered with the alarm to silence the speaker.

69. My further factual findings and observations, which, to my understanding, have relevance are:

• As the Plaintiffs in closing submissions put it; logically, had the loungeroom smoke detector alarm sounded when the test button was pressed at the commencement of the Lease (or at any time prior to the fire), then, given Tamara’s evidence that neither she nor the Deceased tampered with it, it would have sounded at the time of the fire.

• The Defendant’s negligence, if found, in the circumstances, necessarily increased the risk of an occupant being harmed in the event of fire. The Defendant argues (quoted above at [58]) that his failing to press the test button had no causative relevance to the death of the Deceased. But, in my opinion, a failure to prudently inspect the smoke alarm by pressing the test button should not work in his favour by availing the Defence to argue, as it does, so that his negligence works to his advantage: Day v Rogers [2011] NSWCA 124 per Giles JA at [146].

• The Defendant’s prior tenant, Ms Proctor, gave evidence of the smoke alarm sounding and indeed causing a nuisance to occupants during her tenancy. That is not evidence that the alarm was still working at the end of her tenancy. Her evidence was not that precise. In any event, I considered her to possess a poor recollection of the smoke alarms, other than of the experience of the loungeroom alarm sounding when her daughter would fail to open enough windows and to close the hallway to loungeroom door, when operating a clothes dryer. Ms Proctor said that, whilst her daughter was troubled by the loungeroom alarm “going off all the time” when she washed, Ms Proctor was not present the majority of the time. She was “up the road” caring for her ill mother and had to go back and forth between her mother’s residence and the premises when her daughter set off the alarm: T 283. 35 – 284. 15. When, during the evidence, she was shown the subject smoke alarms, Ms Proctor said that she did not recognise them. She had no recollection of the procedure for replacement of their batteries. Whilst Ms Proctor’s early inconsistent evidence was that she did replace the smoke alarm batteries, a screwdriver was required to open the battery compartment in order to replace the battery, but Ms Proctor said that she had no recollection of using a screwdriver.

• A person would only have had cause to remove the siren if the alarm was annoyingly beeping or sounding its alarm.

70. In the absence of direct evidence proving when the tampering did in fact occur, it is enough that the circumstance of silence of the smoke alarm from before commencement of the Lease and up to the fire, combined with Tamara’s evidence that no one tampered with the smoke alarm during the tenancy, to raise a reasonable and definite inference that the tampering occurred before the commencement of the Lease. The inference is reasonably drawn and not mere conjecture or surmise: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 at [8] (per Dixon, Fullagar and Kitto JJ).

71. In Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182; [2012] HCA 5, the Court found it was not necessary for the plaintiff to point to evidence permitting an inference as to when the hot chip fell to the floor. It was sufficient for the plaintiff to prove that it was more probable than not that Woolworths’ negligence was a necessary condition of her fall. The High Court rejected Woolworths’ submission that it was necessary for the plaintiff to point to some evidence permitting an inference to be drawn concerning when the chip was deposited: at [34].

72. In the present case, all that is necessary for the Plaintiffs to discharge the onus of proof is to establish, on the balance of probabilities, in circumstances in which the evidence does not establish when the tampering occurred, that it did occur prior to the tenancy. That is the conclusion at which I have arrived. In my opinion, Briginshaw principles and s 140(2) Evidence Act do not stand in the way of reaching this conclusion because the issue is not whether or not a person committed a grave act. The cause and act of removal of the siren, and by whom, are unknown.

73. During Closing Written Submissions, Senior Counsel for the Defendant correctly put that the Defendant bore no onus to prove who tampered with the loungeroom smoke detector alarm and when: T 616. 20 – 25. He argued that the Plaintiffs alone bear the onus of proof of any fact relevant to the issue of causation: s 5E CLA. By finding on the basis of the evidence it to be established, on the balance of probabilities, that the tampering did occur prior to the tenancy, I have not employed any such reversal of the onus of proof such as to place upon the Defendant proof of when and by whom the tampering in fact did occur. The Plaintiffs seek to prove that the Defendant breached his duty to provide an operational smoke alarm in the loungeroom by the fact that the smoke detector alarm was found to be not operational in combination with his failure to have taken reasonable precautions by adequate inspection of it, at or prior to the commencement of the occupancy by Tamara and the Deceased of the Premises pursuant to the Lease.

Regulatory Code/Building Standard

74. The Defendant properly put in closing that the Defendant’s duty did not extend to interconnecting the smoke alarms. The evidence in this case does not establish whether or not the loungeroom smoke alarm and the bedroom smoke alarm were interconnected.

75. It was common ground that there was no legislative obligation on the Defendant to install smoke alarms into the Premises, or that they be interconnected. I directed attention to Mr Munday’s reference to the then current Building Code of Australia 2000, but as neither party referred to the Code in argument, I put consideration of it aside.

Operational Features of the Smoke Alarms

76. The expert witnesses Messrs Munday and Kelly agreed on how the smoke detectors indicated receipt of mains power, receipt of battery power and operational state. The experts came to their observations by not identical paths, in that, whereas Mr Kelly reported his observations from a process in which he transferred the power board of the loungeroom smoke alarm into an undamaged comparison unit (Exhibit 1 at [12.7]), Mr Munday observed the operation of the exemplar smoke alarm, Exhibit K. The exemplar smoke alarm was obtained from the Defendant’s parents’ home because it was undamaged and identical to the smoke alarms recovered from the debris following the fire: Exhibits 14 and 16.

77. Operational detectors displayed a green LED light to show mains electricity connection, a flashing red LED light to show operational state, and what is described in the evidence as a “chirp” or “beep” to indicate weakened strength of an in situ battery.

78. I have determined from consideration of the evidence of Messrs Munday and Kelly:

• on a smoke alarm, with no mains electrical power and when operating properly under battery power only, the green LED light would not be illuminated, and the red LED light would flash at approximately 10 second intervals (Mr Munday Report – Exhibit B at [14]; Mr Kelly did not test or comment);

• on a smoke alarm, with mains power only (battery flat or absent), the green LED light would be constantly illuminated, the red LED light would flash at 10 second intervals, and the alarm would beep at 40 to 60 second intervals (Mr Monday Report – Exhibit B at [15]; Mr Kelly Report – Exhibit 1 at [13.4]);

• on a smoke alarm, with mains power connected and a weak but not flat battery, the green LED light would be constantly illuminated, the red LED light would flash at 35 second intervals progressing in frequency to 10 second intervals as the battery depleted to flat (insufficient power for operation), and beep at 45 second intervals progressing in frequency to 30 second intervals when the battery was flat, which frequency of flashing red LED light and beeping would continue with the flat (just as it would for an absent) battery (Mr Munday did not test or comment; Mr Kelly Report – Exhibit 1 at [13.3] – [13.4]);

• on a smoke alarm, with both mains power electricity and a charged battery, the green LED light would be illuminated constantly, the red LED would flash at 60 second intervals, and the alarm would be silent (Mr Munday Report – Exhibit B at [16]; Mr Kelly Report – Exhibit 1 at [10.3]);

Note: Messrs Munday and Kelly both timed the red LED flashing light of the Exhibit K exemplar alarm when receiving both mains and battery power but came to 40 second and 60 second measures of the frequency respectively. The Clipsal product manual states 60 second intervals: Exhibit B, Appendix B. In Exhibit D, Joint Report, the experts agree 60 second intervals.

• on a smoke alarm, without mains power or battery power (battery flat or absent), the smoke alarm would be dormant – there would be no green or red LED light and it would not beep;

• on a smoke alarm, with mains power only, battery power only, or both mains and battery power – when the test button is pressed the smoke detector will activate its siren alarm and the red LED light will flash at an interval of one to two seconds (Mr Munday Report – Exhibit B at [14] – [16]); and

• on a smoke alarm, with the siren speaker removed and whilst powered – pressing the test button will result in the red LED light flashing at one to two second intervals but no sound will be emitted (Mr Munday Report – Exhibit B at [17]).

79. The common expert observation of the smoke alarm from the loungeroom (Exhibit 14) is that post-fire inspection and testing showed that it was in the “active alarm state”, with its red LED light flashing at one second frequency but that it could not emit sound because the speaker had been removed.

80. The expert opinion evidence ([78, second dot point] above) when read with the Clipsal Product Manual (Exhibit B, Annexure B) establishes that the smoke alarm situated in the loungeroom whilst receiving mains power, had it contained its siren but no battery or a flat battery prior to the fire; would have emitted an audible warning beep at intervals of approximately 60 seconds and the red LED light would have flashed at 10 second intervals.

81. The red and green LED lights, as they would have appeared prior to damage to the subject smoke alarms, are shown in Mr Kelly’s Report: Exhibit 1 – Photo 1, Page 16. The red LED light is the much larger light, and the green LED light is the smaller of them. Constant illumination of the green LED light would indicate only that mains power was connected. Flashing at 60 second intervals of the red LED light would indicate that it also contained a charged battery. But, importantly, red 60 second flashing would indicate that the smoke detector was operational.

82. If operational, the red LED light would flash rapidly when the smoke detector device went into alarm mode, and the rapidly flashing red LED light and pulsating loud alarm from the siren would continue until the air cleared: Mr Kelly Report – Exhibit 1 at [10.3]; Joint Expert Opinion Report – Exhibit D, Answer 7(a); Simultaneous Expert Oral Evidence, T 297. 1 – T 298. 1.

83. Neither in their report evidence, nor during oral evidence, did the expert witnesses comment on the scenario in which either of the alarms they examined, whilst powered, was not displaying the red LED light. The evidence of observation of the alarms during occupation of the Premises by Tamara, the Deceased and their children, including the evidence given by the Defendant and by Tamara, does not mention that the red LED light was at any time seen to be illuminated on either smoke alarm (T 164. 10 – 40; T 177. 6 – T 178. 25; T 96. 15 – T 96. 26).

Evidence of Inspection

84. Common evidence is that, at the commencement of the Lease, on 14 February 2019 the Defendant, in company with Tamara and Narelle, only observed the physical presence of the smoke alarms during a walk through whilst completing the Condition Report and that the alarms were quiescent of lights and sound.

85. Defendant’s evidence-in-chief at T 164. 10 – 40:

“TURNBULL: Q. As part of the process of doing that, did you, in fact, carry out an inspection of the premises each time you had a new tenant?

[note: “that” was a reference to completion of the Condition Report at commencement of a Lease].

GAUSE: A. Yes.

Q. When you did that, did you have an inspection of the fire alarms of which you've given evidence?

A. Yes.

Q. What were you looking for when you looked at the fire alarm, Mr Gause?

A. I would look for a green LED to indicate they were powered up.

Q. Green LED‑‑

A. Light. On the ceiling‑‑

Q. What did you understand the green LED meant?

A. That means that there's AC power connected.

Q. Mains power.

A. Mains power connected, yes.

Q. What else were you looking for when you were inspecting the fire alarms?

A. That they were obviously physically present, and there was no audible beep to indicate any issues with batteries because they were battery backed up.

Q. Let's just stop there. So you listened for an audible beep. If you'd heard an audible beep, what did you understand that was telling you?

A. It indicates that the internal battery could be low, or is low, is low.

Q. How often did the beep go off if the internal battery was low, roughly?

A. Typically every minute.”

…

At T 177. 6 – T 178. 25:

“TURNBULL: Q. When did you next go to the property?

GAUSE: A. Approximately a week or so later, approximately.

Q. Why did you go there?

A. To sign Centrelink paperwork for Tamara.

Q. Had she contacted you?

A. Yes.

…

Q. Did you make an observation of the alarm in the living room of which you've given evidence?

A. Yes.

Q. What was your observation there, Mr Gause?

A. That was on the ceiling. It was - I walked over to it. It was powered up, had the green LED light on, and it was making no audible sounds.

Q. How long were you in that room for?

A. About five minutes.

…

Q. You told his Honour that you saw the green light.

A. Yes.

Q. Was it flashing or just on?

A. Solid, on.

Q. You heard no sound in the time that you were there.

A. No.

Q. What did that tell you, Mr Gause?

A. That told me that the battery within the unit was okay. Fine.

Q. What did the green light tell you, if anything?

A: The AC mains are applied to the smoke alarm.

HIS HONOUR: Sorry, I missed something. What told him the battery was okay?

TURNBULL: It wasn't making a noise, your Honour.

Q. Did you go and check the alarm in the bedroom?

A. No.

Q. Why not?

A. Because by then they had moved in. They had all their private possessions in there and I didn't want to intrude on their private space.”

86. This evidence reveals the focus of the Defendant when he inspected the loungeroom alarm. The red LED light indicator of whether or not the smoke detector alarm was operational, and whether or not the battery was weak, was not noticed. The Defendant’s observations occurred before and after mains power was connected.

87. In closing oral submissions, Senior Counsel for the Defendant agreed that neither Tamara nor the Defendant saw the red LED light flashing or illuminated at any time. He said that my above-described consideration did not infer anything of the operational state of the smoke alarm because, firstly, Tamara’s recollection is not reliable – Senior Counsel pointed to her being wrong in her evidence about there being a single alarm in the Premises when there were two alarms and, secondly, because the red LED light flashed at approximately 60 second intervals and “So you can stand there and look up at the thing for 30, 40, 50 seconds and not see it flash. That’s not what [the Defendant] was interested in. We know from the evidence that if the mains power was connected, and he said it was because of the green light’s on, and that’s consistent with the expert evidence, that if there was a problem with the battery a sound would occur.”: T 611. 32 – 43; T 613. 1 – 10.

88. I do not accept the Defence submission concerning periodicity of the red LED light flash because it is against the Defendant’s own evidence (quoted above) that he was inspecting the loungeroom alarm for “About five minutes”. Indeed, it is against common sense to propose that the red LED light was flashing at 60 second intervals when on not one, but during two inspections the Defendant said that he made, he did not see it. That is not a likely scenario. A further point is that because there was no battery in the loungeroom alarm; then, the red LED light ought to have been flashing at approximately 10 second intervals.

89. The Defendant said that he was concerned that the batteries may have lost power during the “long time” mains power had been disconnected preceding the tenancy: T 242. 27 – 39; T 254. 45. In fact, in post-fire testing, the experts found that the battery in the bedroom alarm carried almost no charge and they could not determine whether or not its power was sufficient to operate the alarm.

90. However, the Plaintiff ultimately did not put its case on the specific basis that the Defendant failed to observe the red LED light, which ought to have informed him that the loungeroom alarm was not operational, and, as I have noted, the expert witnesses were not asked to make specific comment on. Because the Plaintiffs did not put their case on that basis, I do not take the Defendant’s omission to inspect the red LED light as a particular of negligence. Nevertheless, that his description of his inspections plainly shows that he did not look for and take notice of whether or not the red LED light was flashing and, if so, at what frequency, is evidence of the content of his inspection of the alarms.

91. In closing oral submissions, counsel for the Plaintiff did correctly put (T 613. 33 – 43), and it is the Defendant’s evidence quoted above at [84] that the Defendant elected only to look for the green LED light.

Responsibility for the Smoke Alarms

92. On 14 February 2019, at the making of the Lease, the Condition Report (Exhibit G) was completed by the Defendant in his handwriting and his entry of ticks. Tamara entered ticks in the column headed “Tenant Agrees”.

93. At the section “SECURITY/SAFETY” and specifically for “smoke alarms” there are no ticks. The Defendant did not enter a tick in the column headed “WORKING”. The Defendant wrote beside the columns where ticks would have acknowledged satisfactory inspection of smoke detector alarms: “LANDLORD TO ARRANGE”. There is no tick entered by Tamara as would communicate her acknowledgement of satisfactory inspection of operational smoke alarms. The Defendant’s evidence was that he wrote those words during the inspection with Tamara and Narelle when he informed them that he would return to check the batteries of the smoke alarms after the mains power had been reconnected.

94. Mains electrical power was not connected until the next day, 15 February 2019.

95. As the above analysis of the expert evidence shows, in the absence of mains electrical power, the smoke alarms, if powered by battery and operational, would have shown a red LED light flashing at 10 second intervals. If the battery was weak, operational smoke alarms would have beeped at 30 to 45 second intervals so long as the battery was not flat. It follows that the smoke alarms being dormant (quiescent of lights or sound) indicated that there was no mains and no battery power if the smoke alarms were operational.

96. During evidence-in-chief, the Defendant said that between January 2018 and February 2019, that is, between the prior tenant Ms Proctor vacating the Premises, and the Deceased and Tamara entering into the Lease, he visited the Premises from time-to-time whilst it was vacant. His evidence was that, on those occasions, he knew that mains power was disconnected and observed that there was no green LED light because of that. His evidence was that there was no audible beeping. He concluded that the absence of audible beeping meant that the battery was still fine: T 169. 19. But, (I repeat) in cross-examination, he conceded that on 14 February 2019 he was concerned as to the strength of the batteries: T 242. 28 – 39; T 254. 44 – 50; T 255. 1 – 2. As was his evidence (quoted at [85] above) and conceded by the Defence in closing submissions, the Defendant did not “bother” to look for the red LED light.

97. Tamara’s evidence in-chief was that during the inspection and completion of the Exhibit G, Condition Report, the Defendant told her that the Premises had not been tenanted for 12 months and he was unsure whether or not the smoke alarm was operational: T 47. 40. When in cross-examination, Tamara was taken to the Defendant’s writing of “LANDLORD TO ARRANGE” in regard to smoke alarms in the Condition Report. It was put to her that at the time of completion of the Condition Report:

• the Deceased’s father John was not present – Tamara answered that he was: T 92. 30;

• mains power was not connected to the Premises – Tamara answered (wrongly) that it was: T 92. 35; and

• during the discussion, the Defendant said words to the effect: “I can’t check the alarms because the power is not on” – Tamara denied that: T 92. 45.

98. The Defendant did not, having seen the person he understood to be an Ausgrid worker making connection of the electricity on 15 February 2019, then promptly return to the Premises to check the smoke alarms, as he had, on his evidence, informed Tamara and Narelle he would do.

99. When Tamara was asked during evidence-in-chief specifically, Tamara said that her conversation with the electricity company was at about 10:30am (T 48. 10) and the reason that she understood the power was on was because when she telephoned the electricity retailer, she “asked them when they thought it would be on and they informed me it was already on.” (T 49. 10). That evidence was admitted as Tamara’s recollection of her understanding of what she was informed, but not as truth of the fact of whether or not mains electrical power was connected to the Premises at 10:30am on 14 February 2019. Plainly, Exhibit 25 and Exhibit 26 show she was confused. Tamara’s evidence was that she did not attempt to use electricity in the Premises until herself, John, Narelle, and the Deceased had moved all of the refrigerators and the washing machine into the Premises at around noon: T 50. 10 – 18.

100. In my assessment, the most reliable and complete oral evidence of 14 February 2019 was that given by John. I prefer his evidence because his detailed recollection of events related happenings to what he could clearly recall doing at the time, and because he was willing to make sensible concessions of errors of recollection (see [35]-[36] above) and admissions against self-interest.

101. John’s evidence was that on 14 February 2019, and as he described it with a clear and confident recollection, he reversed a first trailer load onto the driveway of the Premises and saw, at the stairs leading to the front door, the Deceased and the Defendant. He recalled that the Deceased was standing on the stairs and the Defendant was standing on the pathway. He recalled that there were three stairs and a platform to the front door. That evidence meets with the descriptions of the Premises. His clear recollection of where the Deceased and the Defendant were standing is persuasive of the accuracy of his recollection of the conversation he then heard (T 128. 9 – T 129. 11; T 142. 17 – T 143. 29):

Evidence In-Chief at T 128. 9 – T 129. 11:

“CAMPBELL: Q. At the front door.

J HEAFEY: A. Yes.

Q. James is below on the--

A. Down at the bottom, and then Bradley was on either the second stair or - I can't exact - well, apart. Then what happened? [Note: Transcript error – this was a new question].

A. James said to Bradley that there’s - no one’s been in the house for two years. “I’ve got to come back and check the smoke alarms.”

Q. Then what happened?

A. I was - went and started unstrapping, or there was a bit more unstrapping and - and started to move the furniture in.

Q. Did you see Tamara at that time?

A. Yeah. Tamara was on the phone, walking round the front yard and that. And then she walked from the front yard down to the side to the meter box, and then done something in the meter box. And then--

Q. When you saw that, your trailer had been reversed up the driveway. I think you said.

A. Yes.

Q. Correct?

A. Yep.

Q. The meter box is at the--

A. Back of the trailer, yeah, down the side of the house.

Q. On the driveway side of the house.

A. Yes.

Q. Just as you get to the house. Just beyond the corner of the house; correct?

A. It is, yep.

Q. Then what did you do? This is on the day that you were moving in.

A. Yep. We unloaded the furniture and put it all inside and that, the first trailer. Then we - me, Bradley, Tyson and Corey hopped in the car. I - we drove up to Thornton to pick up a lounge from Thornton..(not transcribable)..that and then drove, come back. Unloaded the trailer and put that inside the house. And then we went back home to get more furniture.

Q. When you're inside the house on that day--

A. Yep.

Q. --did you notice anything in particular?

A. Yeah. The only - walking the house, as I said we'd done - I’d done probably 10, 12 trips inside the house carting furniture in that afternoon. The only thing I seen that was a smoke alarm was in the hallway. I did not see any other - those - the photos - no. I did not see any of those.

Q. So you saw one smoke alarm--

A. In the hallway.”

…

[Note: I have found this evidence of a single alarm in the hallway to be inaccurate.]

Evidence in Cross-examination at T 142. 17 – T 143. 29:

“TURNBULL: Q. You went inside the house.

J HEAFEY: A. Yeah.

Q. You say that they were moving in--

A. Yes.

Q. -- on that day.

A. Yep.

Q. Was the electricity connected, do you know?

A. Well, I seen - I didn't get to see the power on, but they stayed there that night. They stayed there that night. I didn't see if the - I didn't check the power. I didn't check nothing.

Q. Is the answer to my question, you don't know?

A. No. Don't know.

Q. The fire alarm that you saw, when did you first observe that?

A. As I was walking - carrying the furniture into the house.

Q. What drew your attention to it, Mr Heafey?

A. A bit - as a - being a foster parent, and we get checked out every 12 months by the DOCS, when you hear that smoke alarms weren't working, you had a bit of a glance where - when I - when I heard the - overheard the conversation earlier with James [the Defendant] and Bradley [the Deceased] and that about, the fire alarm wasn't working that afternoon--

Q. Sir, the evidence you gave when my learned friend asked you was that James Gause [the Defendant] said, “No one's been in the house for two years. I have to come back and check the smoke alarm.”

A. Smoke alarm, yes.

Q. He didn't say they weren't working, did he?

A. Well, like, didn't say they weren’t - I'm sorry..(not transcribable)..

Q. I'm sorry?

A. I didn't - sorry about the - saying, well, that--

Q. That was wrong when you said--

A. Yeah.

Q. --that there was a conversation when he said they were not working. That never happened, did it?

HIS HONOUR: I don't remember that being his evidence.

TURNBULL: His evidence was - and he's just agreed with it, your Honour - “James said, ‘No one has been in the house for two years. I have to come back and check the smoke alarm.’” But nobody said it was not working.

HIS HONOUR: I thought you put to him that his evidence earlier was that they weren't working.

TURNBULL: No. Sorry, your Honour. We’re at cross purposes.

Q. You never heard a conversation where Mr Gause [the Defendant] said--

A. They weren’t--

Q. --“The smoke alarms are not working.”

A. Sorry, no.

Q. Is that correct?

A. Yes, yes, yeah.”

102. Plainly, John did not take the opportunity to say either that the power was in fact on or that the Defendant had stated that the smoke alarms were not working. Tamara’s walking to the power box is consistent with her organising mains power connection.

103. On the whole of the evidence, the electricity was not connected on the day the Deceased and Tamara moved in. They physically installed their appliances. They stayed the night.

104. No matter what the precise words spoken by the Defendant were, on all versions of that which he said and in accordance with what he wrote and how he marked the Condition Report, the smoke alarms were completely dormant and not checked or tested for operational condition. There was no green LED light, no red LED light, and no siren beep. The Defendant did not push the test button.

105. During cross-examination Tamara gave the following direct evidence of those facts and, in the course of doing so, conceded that the Defendant on 14 February 2019 informed her that if there was any problem with the smoke alarm, she was to contact him (T 92. 42 – T 93. 11):

“Q. And that he said to you words to the effect, “I can't check the alarms because the power’s not on”, didn't he?

273. Narelle was born on 6 July 1971 and turned 53 years of age during the course of the hearing. She and her husband John live in Edgeworth, the next suburb to Barnsley in which the Premises is situated. She and John have two children of their own and have fostered seven children, all of whom were from neglected backgrounds and six of whom are Aboriginal. At the time of the hearing, three foster children remained living in their home and the others continued to visit Narelle and John there.

274. When Tamara, the Deceased and Elijah commenced living together, John and Narelle provided them with accommodation, firstly in a caravan on their property and subsequently a shed on the property was converted to an apartment for them. When Kruz was born to Tamara and the Deceased, he lived there with them before they moved to the Premises.

275. Narelle had the opportunity, of that living in close quarters, to observe that Tamara was a good mother and that her son, the Deceased, was an attentive father. She said that he was very hands-on with their two children (Kruz and Elijah), that he was always willing to get up for the children, played with them, changed nappies, and so on. Narelle said that the Deceased was “proud as punch” to be making his own life with Tamara in the Premises and, as she put it, “trying to do it on their own”.

276. Narelle observed that Tamara and the Deceased did experience some friction in their relationship. She said that they would have their fights, but they would always get back together. On occasions of their fights, Tamara would leave for a day or two to stay with her children at her mother’s home, but they would always work it out and get back together. Again, in my view, it is appropriate to remember the relatively young ages of Tamara and the Deceased, caring for their two young children at that time, in order to give appropriate context to that description of their relationship. Narelle’s was a very believable description of a young couple making a go of family life.

277. Narelle told of she and John noticing a sign in the window of the Premises. They informed the Deceased and Tamara that it was available for rent. Narelle considered it a perfect location because it was both close to herself and John for whenever the couple required some assistance, and it was only a five-minute walk from John’s business at which Bradley worked.

278. An uncontested fact is that Narelle attended her son, the Deceased, at the Premises, shortly before the fire, some time at around 7:30pm or 8:00pm that evening, to deliver his regular medication of Endep. Her recount of their conversation and of the Deceased’s engagement with a person named Mark was not challenged during cross-examination. The conversation is persuasive evidence that the Deceased was not at that time noticeably affected by any form of intoxication and it is part of the whole of the circumstances relevant to her suffering a mental shock from his death in the fire (T 104. 41 – T 105. 5):

“Q. Was it 8am or 8pm?

A. 8pm, sorry. He was in quite good spirits. We talked about the day he’d had at work. He - and spoken that he’d worked hard with dad that day. I had a joke with him and laughed and said, “You work hard”. He never worked hard. We used to always joke about that. I remember saying to him, “Oh, you know, what are you doing tomorrow?” And he said, “Going to work”. I said, “Oh, okay”. I said, “How are you getting there?” He said, “I’m just going to walk. Left car - left me car down at dad’s work yesterday,” and I said, “Oh, that's right, you did”. And he said, “All right”. And I had a bit more of a chat. He asked Mark, who was in the car with me, you know, “What did you do at football?” They had a bit of a conversation because he played in a rep team that night. And then we said hurrays. He gave me a cuddle. I gave him a cuddle. He said he loved me. I said, “I love you”. I said, “I’ll see you tomorrow down at dad’s work”. And he said, “Yep. See you tomorrow at work,” and I left, and he waved. I waved and I left.”

280. During examination in-chief, Narelle agreed that the Deceased, before the fire, had been on and off work for a while and she volunteered that he would have days off where his back was “a bit bad” and he could not work. She said that the Deceased did work most days and that he, at the time of leading up to the fire, was working hard. She and John were hoping that the Deceased would take over John’s company and that he would be able to run the business with one of the other employees so that they could have time off and start to “back up and be able to go and have some more holidays”: T 108. 5 – 14. During cross-examination she gave the following evidence, which would have been obviously against the interests of her son’s, the Deceased’s, family in these proceedings, and it is but one of several points during evidence which show what a credible witness she was (T 108. 17 – 22):

“Q. Your son, I'm sorry, did he have a bad back, ma'am?

A. Yes, he did.

Q. And do I understand you to say that that kept him off work from time to time?

A. Sometimes, yes.”

281. She immediately then, and in the same forthright manner, confirmed that she had told Police following the fire, that her son, the Deceased, was taking Endep for back pain, nerve damage, and mild depression. During cross-examination, she agreed, in the following terms, that Endep would make him tired (T 109. 4 – 6):

“Q. The Endep would make your son tired, and he would often fall asleep after taking it, is that right?

A. Sometimes, but not all the time.”

282. Given the contest as to whether or not Narelle suffered a compensable psychiatric illness, I set out Narelle’s unchallenged evidence of her experience on the evening of the fire and the death of her son (T 105. 14 – T 106. 21):

“Q. And did you know where Tamara was?

A. Yes. I knew that Tamara was at her mum’s, with the boys, and they’d had a night over there.

Q. Following the fire, did you return to the house?

A. That night, we left - I left there and went home, and we’d all had a normal night. I was in bed. I was just about to get into bed, in my pyjamas. My phone rang, and I was thinking, 11 o'clock at night, and I remember looking at the phone, thinking, “I don't know this number,” because most numbers come up with a name. And I remember looking at the number thinking, “I don't know this number,” and I thought, “Oh, answer it. I suppose I better answer it”. And I remember answering it, and it was the owner of the house saying, “Is Bradley at your place?” And I said, “No. He’s at home”. And he went, “No, he can’t be at home. He - he can’t be here”. And I said, “Well, he is there,” and he said, “No, he can’t be here”. And I said, “Well, he is there,” and he said, “His car’s not here”. And I said, “His car’s at his father’s workshop”. And he said, “The house is on fire”.

And I just remember screaming to my husband, “Get out of bed,” as threw my phone done and then tried to get dressed myself, because I was in my pyjamas, and I remember getting dressed and screaming at my husband, “Get out of bed. We have to go. The house is on fire”. And my husband is screaming at me, going, “What are you talking about?” And I was saying, “The house. The house. The house is on fire,” and he’s looking at me, thinking, “What are you talking about?” Because I think he thought I was saying our house was on fire. And then I went, “No, Bradley’s house is on fire. We have to go”.

We got in the car and we drove down - because our house, like - Edgeworth and Barnsley are only one, like, suburb away, and we drove down there, and we drove in the street, and the - the firemen and the police had the street stopped, and I - I jumped out of the car before my husband had even pulled the car up, and I just started running down the street, and I could see the flames, and I remember getting to where the telegraph pole was, which was right near his house, and I could remember just seeing the flames, and I remember just screaming and going, “He’s gone”. Like, I knew. I knew there was no way he was going to be out of there. And I was just sitting there, screaming, “He’s gone. He’s gone”. And the first thing I kept thinking was, “Oh my God, why didn’t I put a battery in that fucking alarm?”

Sorry for swearing. But they were my words and then I looked and the owner was standing there and I remember looking at him thinking to myself, “My son’s dead over a battery,” and then I just collapsed as I sat there, looking and watching the fire knowing. And by that stage, then my husband had got to me and the police and the men come over to my husband and told my husband that they had found the body. But they couldn’t retrieve him out because it was too dangerous, and we had to sit there and watch it burn.

We sat there for three hours watching this house just burn and burn, while I watched him sit in that house. And we could not do nothing. We couldn’t get him out. They couldn’t do nothing because they couldn’t go in. They couldn’t get him out. And I remember just sitting there thinking about overhearing the conversation and thinking how stupid I was for not getting out and putting batteries in the stupid things myself. And I have done nothing but blame myself from the day he has died that I should have done it myself and I’ve had to go to counselling over that to stop blaming myself for it. Because that’s what I’ve done. As a mum, I did not protect him. I did not go and put batteries in it. I have not done - as a mum, I have not protected him.”

283. Narelle was upset at times during the giving of her evidence and, following the above-quoted passage, the Court took a short break in order to permit her to compose herself so that she could continue.

284. Narelle gave, what appeared to me to be, an unexaggerated description of her present mental state consequent of the fire and the loss of her son, the Deceased. She was candid in stating that, after months, she could not sleep during the night because she did not want to go to sleep at night and slept during the day instead, she had suicidal thoughts, but with a lot of counselling she has started to get better. She explained that having foster children, her own children and grandchildren has “probably been my saving grace … because I’ve had to live for them. And that’s what I’ve had to learn, to try and learn not to live on the past, and think about what he would want me to do.”: T 107. 38 – 44.

285. The following answer she gave during examination-in-chief concerning her medication included the volunteered statement that she had been administered antidepressant medication prior to the fire. The prescription was increased to assist her to cope after the fire (T 107. 46 – 49):

“Q. What sort of medication are you taking in relation to the issues that you've described?

A. I'm on antidepression tablets, which have had to be put up to make sure that I can cope.”

286. Dr Lee, psychiatrist, on whose expert opinion evidence the Defendant relies, described Narelle to be not forthcoming about her pre-existing mental state. His description does not meet my assessment of her testimony given in Court. During cross-examination she readily gave the following evidence of her pre-fire psychological and physical health conditions:

• She had taken antidepressant medication for many years relating to her being overweight.

• For over a year she had experienced problems with her back and she had undergone the spinal surgery of discectomy. When, in cross-examination, it was put to her that during the telephone interview with Dr Lee, she reported that she did not suffer any physical problems prior to the accident, she emphatically denied that proposition. She said that she did tell him. She described the telephone interview as not having lasted “long at all actually. It wasn’t much”.

Narelle – S 31 CLA Assessment of Mental Illness

287. Expert Psychiatrist, Dr Teoh, on whose report dated 20 August 2021 Narelle relied, concluded, principally on the basis of her presentation and history which she gave during telephone consultation assessment, that she did suffer the recognised psychiatric illness of Major Depressive Disorder. He found that Narelle had a pre-existing psychiatric condition of depression, predominantly with chronic pain and somatic symptoms. He reported his opinion that (Exhibit N, Joint Report):

“The death of her son has precipitated these significant depressive symptoms. I did not find evidence of exaggeration in my assessment. I thought that she was spontaneous, consistent, and she could directly relate her depressive symptoms to the death of her son.”

288. Dr Lee, Psychiatrist, on whose report dated 28 January 2022 the Defendant relied, considered Narelle to have been less than frank in her disclosure of her pre-existing mental health and physical pain. Dr Lee concluded that Narelle did not suffer a diagnosable disorder due to the incident. Dr Lee based his opinion on comparison of her report during consultation assessment of her pre-existing health and on the results of psychometric testing for malingering which he conducted. He found those tests indicated that she markedly exaggerated numerous symptoms. In the Joint Report (Exhibit N) he stated:

“I concluded, based on her records, that Ms Heafey had a pre-existing pain disorder or somatic symptom disorder of marked severity, and because she was markedly exaggerating her current systems, I was unable to provide a precise psychiatric diagnosis. However, I did consider that she might have had a bereavement disorder due to the loss of her son.”

289. During their simultaneously given oral evidence, extensive questioning identified the different clinical approaches employed by the psychiatrists in their assessments. Whereas Dr Teoh believed that psychometric testing could play a part; he expressed reservations concerning its utility and considered professionally the correct approach was to prioritise the experienced clinician’s expert assessment of the patient’s consultation, whilst noting the consistency and the relevance of the history and mental state examination. Dr Lee expressed the opinion (for instance, Joint Report, Exhibit N, page 2) that it is frequently difficult to detect exaggeration without having administered psychometric testing, which he considered to be independent and objective.

290. Despite his sometimes use of the expression, in relation to causation, that the death of the Deceased in the fire “precipitated” Narelle’s Major Depressive Disorder, in answer to Question 6 in the Joint Report and as confirmed by him during oral evidence, Dr Teoh’s conclusion is more accurately stated as that the death of her son aggravated her depression: T 499. 5; T 500. 40.

291. In his report of 20 August 2021 (Exhibit M), Dr Teoh described his impression of Narelle as her feeling depressed, lacking motivation, finding it an effort to do things, socially withdrawn and not communicative, struggling with relationships and stress, experiencing intrusive memories, and having poor concentration. Dr Lee did not suggest that Narelle was not distressed. His opinion was that she did not suffer more than a significant grief or bereavement reaction, and not a recognised psychiatric illness including the Major Depressive Disorder diagnosed by Dr Teoh.

292. After the fire, Narelle was referred to and obtained psychological counselling, particularly because she continued to ruminate about the death of her son and because she sensed helplessness. She underwent cognitive behavioural therapy and Eye Movement Desensitising and Reprocessing Therapy (“EMDR”) for traumatic stress. She continued to worry about the welfare of her grandchildren without their father.

293. Significant in the clinical history considered by both Doctors was that Narelle had been prescribed Lexapro by her General Practitioner for 10 years prior to the fire. Lexapro is a medication for depression, and it is common ground that Narelle was medicated for her pre-existing depression. It is also common ground that, subsequent to the fire, Narelle’s GP significantly increased her dosage of Lexapro.

294. Dr Lee partially agreed with Dr Teoh by observing that some patients whose mental health condition has stabilised continue to take medications to prevent recurrence: T 501. 10. The point was that continuation of Lexapro pre-fire did not of itself establish ongoing serious symptoms of depression. The parties referred me to clinical notes concerning dosages. Indeed, the notes refer also to prescription of temazepam which the expert psychiatrists explained would have been prescribed for assistance with sleep. The clinical notes were tendered after the expert evidence of the psychiatrists.

295. Ultimately, clinical notes relied on were limited to a selection of those contained in Exhibit Z, which selection includes all clinical notes to which the parties directed attention during closing addresses. Having looked at those clinical notes, save for elevation in the prescription for the anti-depressant medication Lexapro, with which I deal at [299] of these reasons, I am of the view that the expert evidence of Doctors Teoh and Lee covered the field such that there is nothing else of significance in the clinical notes which would assist me in preferring the opinion of either doctor to the other.

296. Dr Lee considered Narelle’s history of taking Lexapro to indicate a chronic vulnerability to stressors. Dr Teoh stated that, even if it were possible (and in his opinion, after cross-examination on her prior pre-existing medical history, it is not possible) to assess precisely what her state of depression was immediately preceding the fire; even then, the death of her son had caused her Major Depressive Disorder which persisted at the time he saw her in July 2021, “… either making it worse or precipitating the new symptoms…”: T 497. 25 – 49.

297. The Doctors described their impression of the history of change in Narelle’s illness of depression prior to and after the fire as follows (T 502. 15 – T 503. 16):

“WITNESS TEOH: Yes, I think your Honour, this is precisely why I find it very difficult to answer the questions because when, Ms Heafey told me that she was in remission, I think, prior to the - the son’s death, I think she meant she was feeling reasonably well, prior to the son’s death and that following the son’s death, she became significantly depressed. But whether she was in remission, as you said, we can’t be sure of whether she was completely well, happy, or she was chronically unhappy, anxious, which I think the history suggests that she’s been chronically anxious over many years. Whether she was completely well, I think it’s difficult to determine, because the remission, especially for a lay person, like Ms Heafey, is very difficult.

She probably meant that following her son’s death, she was significantly more depressed than prior to his death. So, therefore she was in remission according to her, but the other issue is whether she has this extensive history that we discussed but I get impression that she was anxious, depression, family problems with son. She had multiple physical problems. She took Lexapro but she was never admitted for the hospital for severe depression. I’m not sure whether she saw a psychiatrist, so she is vulnerable in terms of her personality or whatever vulnerability she has but the death of her son has led to significant depression so I think it’s difficult to tell, as you - as you elaborate, what remission means, particularly in psychiatry and mental health.

HIS HONOUR: Dr Lee.

WITNESS LEE: Your Honour, I think you very presently put the issues. It’s very true that psychiatrists often treat people long-term for chronic conditions, unhappiness, anxiety, depression. It’s often hard to say when it becomes a disease and when it becomes a reaction, how much the personality contributes to it and so forth and, just like chronic pain, it’s - it’s nebulous. I mean, one has pain. It fluctuates. One sometimes says, “Is there an organic condition? Is this something that’s manageable with rest, ice, et cetera, et cetera?” It’s nebulous and you’ll get a variety of opinions so I would agree with your Honour in that sense but, equally, when one is asked about the effects of a stressor on someone, one is usually pressed to say, “Is there a distinct condition? Is there a difference between how they were before compared to how they were afterwards? If so, what is the difference? Can it be measured objectively?” and this is what I tried to do when I assessed someone.

I can tell you that, when I saw Mrs Heafey, despite saying that I only saw her for a brief period, I did not consider that she was objectively depressed. She - I’ve described the mental examination. I could not find any objective evidence of a clinical depression and, equally, the SIMS and the other tests suggested that she was markedly exaggerating the symptoms and that’s the reason for my opinion but I accept your Honour’s pointing out that that’s often nebulous and, in fact, one of the issues behind this is the chronicity of psychiatric disorders because, often, it’s vulnerable personalities that we’re treating and I think it’s often artificially demarcated into “illnesses” like major depressive disorder and, in fact, the boundaries between psychiatric disorders often shade into normality. It’s often been said, for example, that the DMS does not precisely instruct us where the boundary between a normal reaction to a stressor is and when a psychiatric disorder starts. It’s a judgment that we have to make ourselves, based on our experiences.”

298. After the fullness of the questioning during the simultaneously given expert opinion evidence, Dr Teoh remained adamant in his acceptance of Narelle’s complaint to him that, following the death of her son, she became significantly more depressed; whereas, Dr Lee remained adamant that, given her pre-existing medical history and her scores on the SIMS testing as well as what he considered to be her lack of frankness when disclosing the extent of her past medical history, he did not accept that complaint.

299. During cross-examination after his above-quoted passage of evidence, Dr Lee conceded that he had not seen the clinical note entry for 2 November 2020 that the Lexapro was increased from Narelle’s pre-fire prescription of 20mg per day to 40mg per day (2 x 20mg). Following that, on 17 November 2020, the GP noted that she was slowly improving on Lexapro 40mg daily: T 517. 32 – 47. Dr Lee conceded that it was reasonable to find that increase in medication to have been consistent with Narelle progressing from being able to maintain herself on the lower dosage of Lexapro preceding the fire, but requiring the doubling of her dosage “due to the tragedy of losing her son in the house fire”: T 518. 30 – 35. Dr Lee agreed that Narelle remained on “those high level doses” subsequently and at least for the two years for which the clinical notes are available: T 518. 39; T 518. 46.

300. On the whole of the evidence concerning clinical notes, both those preceding and those subsequent to the fire, both Doctors considered the most likely cause of the increase in Narelle’s Lexapro to be due to depression caused by the death of her son. Ultimately, Dr Lee explained it as follows (T 522. 24 – 44):

“WITNESS LEE: Okay, I guess - so I think so. I think the - the most likely reason for increasing the Lexapro is due to depression was by the - the death of her son, Bradley. Because I think looking at the record, she was on two 20 milligrams for many, many years. So whether she was completely in remission, partial remission, we’re not sure, but at least she was stable enough for the doctors not to consider changing the Lexapro. But following the death of her son, the doctor has made several attempts to increase the - the Lexapro and had to reduce it because of side effects, which is not uncommon.

So there was some attempt to change the medication or at least increase, suggesting that she could be more depressed. But also, referring to the note that was mentioned earlier on 2 December 2020, I don’t know what it says, but I - I've listened to what was presented that she was overwhelmed, no motivation, Christmas was coming, not sleeping, suicidal, needing a lot of care, I think this all suggests symptoms of depression. Now, whether she was doing all the other activities, and whether it's normal activities or unusual activities, I think most activities does not tell us how depression is - she was. I think it's more the clinical note of how she was feeling at the time. So I, I believe that the changes in the antidepressant is a result of the depression getting - which got worse following the death of her son.”

301. Both Doctors agreed that, generally, specialist psychiatrists employ an assessment of a six-month period of symptoms in order to arrive at a diagnosis of depression. Dr Lee commented further that the boundaries of depression versus bereavements are constantly being assessed and changed, and that expert psychiatrists have disagreements about when grief becomes an illness. He put it that the patient is expected to have recovered from grief by six months and if it persists after that then it is considered to be an illness. But, the reality is that, often, people with grief suffer for a long time: T 523. 15 – 20.

302. I observe that the clinical notes do show that Narelle suffered long-term back pain and depression prior to the fire but, from very soon after the fire, she attended her GP, sought psychological counselling and complied with her GP’s recommendation to increase her Lexapro medication as well as to take Mirtazapine to assist with sleep. My general observation is that she received intensive medical care following the loss of her son and that it continued for the two years of the clinical notes in evidence. That is an escalated medical need identifiably caused specifically by the loss of her son due to the fire. Treatment of that increased medical need is consistent with the opinion of the expert witnesses, particularly Dr Teoh.

303. I am satisfied that Narelle was caused to suffer the recognised psychiatric illness Major Depressive Disorder by the loss of the Deceased, and that her illness continues.

304. Whilst the value of the SIMS testing performed by Dr Lee was hotly contested between Dr Lee and Dr Teoh, that is not a dispute as to best professional approach which I am qualified to resolve. But in this case, there is a known, real, and extreme stress trigger, being Narelle’s loss of her son by fire which arrived with the shock of the telephone call from the Defendant and her attending in the street as the Premises burned whilst knowing that her son Bradley was deceased inside.

305. I accept that the investigation by the authorities following the fire and then these Court proceedings have provided stressful reminders of the tragedy of the loss of Bradley, and I have allowed for that in my assessment of the evidence and my ultimate preference for the diagnosis of Dr Teoh. It is to be remembered that Dr Lee, on account of his view that Narelle was not frank with him in regard to her pre-existing and post-fire circumstances, was unable to arrive at a diagnosis and, on that basis, did not agree with Dr Teoh coming to his diagnosis. As seen in the above-quoted passages of his evidence, Dr Lee ultimately accepted that the fire caused Narelle to suffer recognised psychiatric illness in the form of aggravated depression and backed away from his report opinion that she suffered only grief and bereavement.

306. Dr Teoh expressed a prognosis of “poor” because of the persistence of her depressive symptoms over an extended time. Dr Lee’s reported prognosis was “guarded” but that is because he did not then accept that the death of the Deceased had significantly worsened her mental illness because he had missed her post-fire increase in Lexapro. I am persuaded to accept Dr Teoh’s prognosis.

307. I find that the Defendant’s negligence caused Narelle to suffer a recognised psychiatric illness.

Assessment of Non-Economic Loss – Tamara Alderson and Narelle Heafey

308. I have accepted the opinion of Dr Canaris, specialist psychiatrist, and his diagnosis of Post Traumatic Stress Disorder with Persistent Complex Bereavement Disorder for Tamara. He recommended treatment modalities of psychological counselling and medication for a period of two years. His prognosis for her recovery was guarded. As the case was run, the parties presented a choice between acceptance of the opinion of Dr Canaris or the opinion of Dr Lee. Accordingly, my assessment of the extent of illness suffered by Tamara is strongly guided by the opinion of Dr Canaris, and those parts of the oral evidence of Dr Lee to which I have referred and in which he acknowledged that, if her complaints be accepted; then she does suffer a recognised psychiatric illness. I bear in mind the obviously sudden and extreme shock suffered by Tamara, commencing from police contacting her at about 11:30pm enquiring of the whereabouts of her partner, the father of her children, the Deceased, and then her remaining in the street outside the burning and then smouldering house knowing that he was deceased inside. Obviously, I bear in mind Tamara’s need for psychological treatment, particularly during her adolescence and, before that, her history of self-harming. She has lived a life of some degree of hardship at home in the form of not getting along with her father from a relatively young age, and the challenges of responsibilities for her young children. Immediately preceding the fire, she was a young person with those complexities in her life environment and making a go of it with her partner and their two children. In my opinion, Tamara is significantly ill. Her evidence of staying at home much of the time, visiting the lake where the Deceased’s ashes were spread, and limited social engagement, as I have explored in the evidence, meets with significant ongoing suffering of her illness. Her diagnosis, along with ongoing depression and anxiety, render her life abilities significantly compromised. At the time of the hearing, her symptoms had continued for four years. She has been deprived of a normal level of enjoyment of life in what should be the prime of her life as a mother of two children and she being in her twenties. Fundamentally, she reports abnormally low energy, whilst well directed to achieving a nurse’s aide qualification and the raising of her children. She continues to suffer thoughts of the fire and hypersensitivity, such as is exhibited by her fear of the smell of fire and her reluctance to use the stove for cooking.

309. On behalf of Tamara Alderson, it is submitted that she is entitled to 34% of a most extreme case, pursuant to s 16 CLA. The Defendant submits that she is entitled to 22%. In my opinion, Tamara Alderson is entitled to assessment of damages pursuant to s 16 CLA for her non-economic loss assessed as 31% of a most extreme case. The sum is $187,500. This sum is to be discounted in accordance with s 50(4) CLA. Tamara is entitled to non-economic loss damages in the net sum of $140,625.

310. I have accepted the opinion and diagnosis of Dr Teoh, specialist psychiatrist, in preference to that of Dr Lee as to the mental illness and suffering of Narelle Heafey. I have found Narelle to be a credible witness. Narelle also is significantly ill in that the loss of her son, the Deceased, caused by the fire resulted in her suffering Major Depressive Disorder. This was a significant aggravation of her pre-existing vulnerability for depression. Prior to the fire, Narelle was medicated for maintenance and stability of her long-term back pain, depression, and chronic anxiety. Her symptoms were sufficiently controlled such that, in the evidence, they have been described as in “remission”. She was plainly managing life successfully as a wife, mother, grandmother, and foster parent to many children with whom she remained in close contact. The extent of the aggravation of her mental health condition, caused by the fire and the loss of the Deceased, is objectively to be found in measure of the increase of her medication. Whereas, prior to the fire, her symptoms were maintained and she was coping successfully with life whilst prescribed the dosage of Lexapro 20mg once per day, after she sought medical care for the fire-caused aggravation to her mental illness, from 2 November 2020 her dosage was doubled to Lexapro 2 × 20mg per day. That was one and a half years after the fire and her suffering the loss. The sudden shock suffered by Narelle is easy for anyone to appreciate. Late at night, she was telephoned by the Defendant asking of the location of her son and, from that phone call, was screaming at her husband, John, to get out of bed because they had to attend the house which was on fire. The level of her stress was such that John was roused thinking she was speaking of fire in their house and was, at first, not able to understand her. Thereafter, she was in the street watching the house burn with her deceased son inside and wrongly blaming herself for not having replaced the fire alarm battery. Narelle’s evidence describes her as being well directed toward her depression. She realises that she has to learn not to live in the past but to think about what her son, the Deceased, would want her to do. In terms which most people would find acceptable and reasonable, she said that caring for foster children and her grandchildren is what helps her cope.

311. On behalf of Narelle Heafey, it is submitted that she is entitled to 32% of a most extreme case, pursuant to s 16 CLA. For the Defendant, it is submitted that she is entitled to 25%. In my opinion, Narelle Heafey is entitled, pursuant to s 16 CLA, to assessment of damages for her non-economic loss assessed as 27% of a most extreme case. The sum is $72,000. This sum is to be discounted in accordance with s 50(4) CLA. Narelle is entitled to non-economic loss damages in the net sum of $54,000.

Orders

312. I make the following orders:

1. Judgment for the Plaintiff, Tamara Alderson, against the Defendant in proceedings no. (2021/00080424) in the sum of $143,063.55.

2. Judgment for the Plaintiff, Narelle Heafey, against the Defendant in proceedings no. (2021/00080450) in the sum of $59,520.64.

3. Judgment for the Plaintiff, John Heafey, against the Defendant in proceedings no. (2021/00174019) in the sum of $52,500.00.

4. Standover proceedings brought by Tamara Alderson no. (2021/00309993) on behalf of herself and Elijah Heafey and Kruz Heafey for the purpose of infant approval determination.

5. Standover proceedings for damages brought by Elijah Heafey no. (2021/00080437) for the purpose of infant approval determination.

6. Standover proceedings for damages brought by Kruz Heafey no. (2021/00080442) for the purpose of infant approval determination.

7. The matter is listed for directions in regard to Orders 4, 5 and 6 on 10 May 2024 at 9:45am, with leave for the parties to appear by AVL.

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Decision last updated: 07 May 2024