Alizadeh v LG Electronics Australia Pty Ltd

Case •

[2025] NSWDC 271

•

22 July 2025

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Alizadeh v LG Electronics Australia Pty Ltd [2025] NSWDC 271
Hearing dates: 13 – 16 February 2024 and 13 June 2024
Date of orders: 22 July 2025
Decision date: 22 July 2025
Jurisdiction:Civil
Before: Waugh SC DCJ
Decision:

1. Judgment for the defendant.

2. Plaintiffs to pay the defendant’s costs.

Catchwords:

NEGLIGENCE – Fire in a refrigerator – Duty of care owed by an importer and distributor to the end-consumer – Civil Liability Act 2002 (NSW) – Breach of duty – Causation – Damages

Legislation Cited:

Civil Liability Act 2002 (NSW)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420

Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151

Arsalan v Rixon (2021) 274 CLR 606

Betts v Whittingslowe (1945) 71 CLR 637

Blatch v Archer (1774) 1 Cowp 63; 98 ER 989

Fairall v Hobbs [2017] NSWCA 82

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

Haines v Bendall (1991) 172 CLR 60

Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2002] VSC 359

Jones v Dunkel (1959) 101 CLR 298

Mcpherson’s Ltd v Eaton [2005] NSWCA 435

Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103

Roads and Traffic Authority v Dederer (2007) 234 CLR 330

Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5, (2023) 110 NSWLR 557

Strong v Woolworths Ltd (2012) 246 CLR 182

Swain v Waverley Municipal Council (2005) 220 CLR 517

Talacko v Talacko (2021) 272 CLR 478

Tame v New South Wales (2002) 211 CLR 317

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454

Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333

Venues NSW v Kane [2023] NSWCA 192

Vozza v Tooth & Co Ltd (1964) 112 CLR 316

Wallace v Kam (2013) 250 CLR 375

Wyong Shire Council v Shirt (1980) 146 CLR 40

Texts Cited:

McGregor on Damages (22nd edition, 2024, Thomson Reuters)

Category:Principal judgment
Parties:

First Plaintiff: Hamid Alizadeh

Second Plaintiff: Mojgan Aminnejad

Defendant: LG Electronics Australia Pty Ltd (ACN 064 531 264)
Representation:

Counsel:

Mr A. Djurdjevic (Plaintiffs)

Mr S. Ahmed (Defendant)

Solicitors:

Hall & Wilcox (Plaintiffs)

Sparke Helmore Lawyers (Defendant)
File Number(s): 2021/00183287
Publication restriction: Nil

Judgment

OVERVIEW

  1. Dr Hamid Alizadeh (the first plaintiff) is a general practitioner. Ms Mojgan Aminnejad (the second plaintiff), his wife, is a genetic scientist.

  2. On 18 April 2006, Dr Alizadeh bought a new LG side by side refrigerator, model number GR-P197WVS, from Harvey Norman Electrical Auburn. As well as bearing that model number, the fridge had its own unique serial number.

  3. The fridge had been manufactured by LG Electronics Inc. in Korea (LG Korea) and was imported by LG Electronics Australia Pty Ltd (the defendant).

  4. The defendant is an Australian company. It did not design or manufacture the fridge. It is a sales and marketing subsidiary within the LG group of companies.

  5. On 30 June 2011, the defendant issued a voluntary product safety recall of certain side by side refrigerators. The affected fridges were identified by their model and serial numbers. Not all fridges of a particular model were caught in the recall, only those with particular serial numbers.

  6. The product safety recall notice stated that the defect or hazard was that “The micro-switch in the icemaker of identified models could deteriorate causing the icemaker to malfunction and in certain circumstances may result in a fire hazard”. Twenty-four different models were identified by their model numbers and readers were invited to visit a particular internet webpage “for details of affected serial numbers”. Customers with affected models were requested to contact the defendant “to arrange for a service technician to replace the micro switch”. Ms Soud, the Legal & Compliance Manager of the defendant, informed New South Wales Fair Trading at the time that there were 39,067 fridges affected by the recall.

  7. LG Korea supplied the defendant with the list of models and serial numbers to include in the recall notice. The list was provided in a document the parties referred to as a spreadsheet.

  8. The plaintiffs’ fridge was one of the 24 models listed in the recall notice, but the serial number of their fridge was outside the range of affected numbers. As such, it was not included in the recall.

  9. On 11 March 2019, the plaintiffs’ fridge caught fire in the kitchen of their home. The fire caused damage to their home and its contents. The plaintiffs had insurance for the home itself, but not its contents.

  10. The plaintiffs commenced these proceedings by statement of claim filed on 25 June 2021 alleging that the fire was caused by an internal electrical failure of the icemaker within the fridge. Initially they sought damages for breach of guarantees provided by the Australian Consumer Law, and in the alternative, for negligence. The hearing proceeded only on the basis of the claim for negligence. It was no longer possible to bring a claim under the Australian Consumer Law because more than 10 years had passed since Dr Alizadeh had purchased the fridge.

  11. In essence, the plaintiffs claim that the defendant was negligent in failing to identify and include their fridge in the 2011 recall.

  12. By the end of the hearing, the plaintiffs sought damages in the sum of $336,398.47 broken down as follows:

12.1 $152,753.28 for building repair and reinstatement works;

12.2 $134,163.43 for home contents;

12.3 $9,910 for 4 days loss of income to Dr Alizadeh;

12.4 $30,642.86 for the cost of temporary accommodation; and

12.5 $8,928 for “investigation fees”.

  1. Both liability and quantum are in issue. I will address liability first.

LIABILITY

A. The legal setting: negligence and the Civil Liability Act

  1. The plaintiffs sue the defendant in negligence.

  2. In Tame v New South Wales (2002) 211 CLR 317 at 348–349 paragraphs [88]-[90] McHugh J explained that the common law of negligence has 3 elements – a duty of care owed to the plaintiff, a breach of that duty and a causal connection between the damage sustained and the breach of duty. Furthermore, the damage must not be too remote from the breach. Central to the elements of breach of duty and remoteness is the concept of reasonable foreseeability. In the absence of a pre-existing duty of care owed by the defendant to the plaintiff, the concept of reasonable foreseeability also plays a vital role in determining whether the defendant owed a duty of care to the plaintiff. Although it is usually convenient to discuss negligence law in terms of its 3 elements, each element can be defined only in terms of the others.

  3. In Roads and Traffic Authority v Dederer (2007) 234 CLR 330 at 338-339 paragraph [18] Gummow J restated some basic and settled matters of legal principle about the relationship between duty and breach in the law of negligence. His Honour said “First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.”.

  4. More recently, in Electricity Networks Corporation t/as Western Power v Herridge (2022) 276 CLR 271 at 282 paragraph [20] the Court said that in formulating a common law duty, it is important to keep in mind the distinction between the existence and content of the duty (who owes the duty, whom do they owe the duty to, and what kind of risks of harm must they take reasonable care to minimise or avoid?) and questions of breach (what were the reasonable precautions required in the circumstances, and did the person discharge the duty?).

  5. In Swain v Waverley Municipal Council (2005) 220 CLR 517 at 534 paragraph [40] McHugh J said that “To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff”, citing amongst other cases Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319 per Windeyer J. In Vozza Windeyer J said (McTiernan, Kitto, Taylor and Owen JJ agreeing) at 319: “For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”.

  6. Part 1A of the Civil Liability Act 2002 (NSW) applies to the plaintiffs’ claim because it is a claim for damages for damage to property resulting from negligence and it is not excluded by section 3B: s.5A. Part 1A comprises sections 5 to 5T of the Act. Only some of those sections are relevant to the plaintiffs’ claim.

  7. The provisions of Part 1A of the Civil Liability Act 2002 relevant to the plaintiffs’ claim are sections 5B, 5C, 5D and 5E. They provide as follows:

5B   General principles

(1)  A person is not negligent in failing to take precautions against a risk of harm unless—

(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)  the risk was not insignificant, and

(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)  In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a)  the probability that the harm would occur if care were not taken,

(b)  the likely seriousness of the harm,

(c)  the burden of taking precautions to avoid the risk of harm,

(d)  the social utility of the activity that creates the risk of harm.

5C   Other principles

In proceedings relating to liability for negligence—

(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

5D   General principles

(1)  A determination that negligence caused particular harm comprises the following elements—

(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)  In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, 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.

(3)  If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)  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.

5E   Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

  1. The High Court considered these provisions in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 (the Court), Strong v Woolworths Ltd (2012) 246 CLR 182 (French CJ, Gummow, Crennan and Bell JJ), Wallace v Kam (2013) 250 CLR 375 (the Court) and Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454 (Gordon, Edelman and Gleeson JJ). The following points come from those cases:

21.1 Sections 5B and 5C are directed to questions of breach of duty, whilst sections 5D and 5E are directed to causation: Adeels Palace at 432-433 paragraphs [13] and [14].

21.2 Once the conditions in s.5B(1)(a) and (b) are established, the question under s.5B then becomes whether a reasonable person in the position of the defendant would have taken the precautions that the plaintiffs allege should have been taken (ss 5B(1)(c), 5B(2)): Adeels Palace at [28]. Whether a reasonable person would have taken precautions against a risk is to be determined prospectively, not with the wisdom of hindsight: Adeels Palace at [31] and [40].

21.3 The proper assessment of the alleged breach of duty depends on the correct identification of the relevant risk of injury, because it is only then that an assessment can take place of what a reasonable response to that risk would be. The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages. The characterisation of the relevant risk should not obscure the true source of the potential injury: Tapp at [106].

21.4 A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. This involves nothing more or less than the application of a “but for” test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence: Wallace v Kam at [14] and [16]. Another way of stating the same test is that the plaintiff would not have suffered the particular harm but for the defendant’s negligence: Strong at [18]. Or, but for the negligent act or omission, would the harm have occurred?: Adeels Palace at [45].

21.5 Under s 5D(1)(a) factual causation requires proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant’s conduct may be described as contributing to the occurrence of the harm: Strong at [20].

21.6 A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. In a case falling within an established class, the normative question posed by s 5D(1)(b) is properly answered by a court through the application of precedent. Section 5D guides but does not displace common law methodology. The common law method is that a policy choice once made is maintained unless confronted and overruled. In a novel case, however, s 5D(4) makes it incumbent on a court answering the normative question posed by s 5D(1)(b) explicitly to consider and to explain in terms of legal policy whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. What is required in such a case is the identification and articulation of an evaluative judgment by reference to the purposes and policy of the relevant part of the law: Wallace v Kam at [14], [22] and [23].

21.7 Section 5D(2) makes special provision for cases in which factual causation cannot be established on a “but for” analysis. The provision permits a finding of causation in exceptional cases, notwithstanding that the defendant’s negligence cannot be established as a necessary condition of the occurrence of the harm: Strong at [26]. Whether, or when, s 5D(2) is engaged must depend upon whether and to what extent “established principles” countenance departure from the “but for” test of causation: Adeels Palace at [54].

  1. In Venues NSW v Kane [2023] NSWCA 192, Leeming JA (Adamson JA agreeing) said at [54] that sections 5B and 5C proceed on the basis that there has been identified a “risk of harm”. At [55] his Honour said “The point of identifying a risk of harm in a failure to act case is so that ss 5B and 5C (and perhaps other provisions) may be applied. After all, it is ‘only through the correct identification of the risk that one can assess what a reasonable response to that risk would be’: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59].

  2. In Fairall v Hobbs [2017] NSWCA 82, (2017) 347 ALR 151, (2017) 80 MVR 48 Payne JA (McColl A/P and Leeming JA agreeing) said at [73]-[76]:

‘[73]  In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628; [2009] HCA 48 (Adeels Palace) at [11] it was emphasised by the plurality that it was of the “first importance” to identify the proper starting point, which, both in that appeal and here, was the Civil Liability Act, without which there was a “serious risk that the inquiries about duty, breach and causation will miscarry”.

[74]  As Meagher JA said in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22]:

“To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff’s claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.”

[75]  What was required in this case was that the primary judge should clearly identify the risk (or risks) of harm in respect of which the second defendant below was obliged to take precautions. It is against that risk of harm that the court would then have been in a position to determine the second defendant’s knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the second defendant’s response, or lack of response, to that risk: see Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; 238 ALR 761; 48 MVR 288; [2007] HCA 42 at [59]–[61] per Gummow J.

[76] The need to identify the “risk of harm”, and to satisfy each of the requirements in s 5B, has been emphasised in numerous subsequent cases in this Court: Shoalhaven City Council v Pender [2013] NSWCA 210 at [55]–[72] and [83] ff; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [139]–[160]; and Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [100]–[129].’

  1. As to how the risk of harm is to be identified, in Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103 Leeming JA (Payne and White JJA agreeing) said at [52]:

‘[52] Some guidance is given by the cases. As Payne JA and I noted in Coles Supermarkets Australia Pty Ltd v Bridge at [22], it has been said that:

(1)   the formulation of risk of harm should identify the “true source of potential injury” (Roads and Traffic Authority of New South Wales v Dederer at [60]) and the “general causal mechanism of the injury sustained” (Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98]);

(2)   “the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred”: Erickson v Bagley [2015] VSCA 220 at [33]; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301 at [55];

(3)   “What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury (as noted in Dederer at [60]) or because it too narrowly focusses on the particular hazard which caused the injury (as noted in Port Macquarie Hastings Council v Mooney … at [67]), or because it fails to capture part of the plaintiff’s case (as in Garzo).”.’

  1. In Fairall, Payne JA quoted from part of paragarph [22] of Meagher JA’s judgment in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151. In my view, the whole paragraph is relevant to the present case. Meagher JA said at [22]:

“My reasons for this conclusion may be stated shortly. As the primary judge notes, the provisions of ss 5B and 5C of the Civil Liability Act 2002 are directed to questions of breach of duty: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [13]; Harmer v Hare [2011] NSWCA 229; (2011) 59 MVR 1 at [194]. Those sections assume an allegation of breach of duty resulting from negligence which is or can be formulated in terms of a failure to take precautions against a risk of harm. The question which s 5B requires be answered favourably to the plaintiff is whether in the face of a risk of harm which was foreseeable and not insignificant, a reasonable person in the defendant's position would have taken those precautions having regard to, among other relevant things, the considerations in s 5B(2). To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff's claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.”

  1. Regrettably, the parties did not refer to any of these provisions in their pleadings and so did not join issue on them in an obvious way.

B. How the parties put their cases on liability in a little more detail

The pleadings

  1. The plaintiffs alleged that the fire was caused by an internal electrical failure of the ice maker within the refrigerator (paragraph 7). The defendant denied this.

  2. The plaintiffs alleged that it was reasonably foreseeable to the defendant that if it failed to accurately identify the serial numbers which contained the defect, there was a real risk, being a risk that was not insignificant, that the plaintiffs would suffer loss and damage (paragraph 19).

  3. In particulars to paragarph 19 it was stated that the risk that if a refrigerator with the defect was not identified as an affected model under the recall, and therefore would not be the subject of the recall, the plaintiff would suffer loss and damage, was reasonably foreseeable (particulars to paragraph 19).

  4. The defendant denied paragraph 19.

  5. The plaintiffs alleged that the defendant owed a duty of care to the plaintiffs, as a purchaser of a refrigerator with the serial number of the fridge they purchased, to exercise reasonable care in its assessment of “an Affected Model” to ensure the plaintiffs were made aware of the fire hazard (paragraph 20).

  6. In response, the defendant admitted that “it owed the plaintiffs a duty of care”; but denied the content or scope of duty contended for by the plaintiffs; denied breach; and did not admit that the plaintiffs’ refrigerator contained the defect or otherwise contained the same micro-switch referred to in the recall notice.

  7. On the premise that the fire was caused by an internal electrical failure of the icemaker within the plaintiffs’ refrigerator (paragraph 7), the defendant should have included the plaintiffs’ refrigerator as an Affected Model and included it in the 2011 recall (paragraph 22). In particulars it was stated that a reasonable person in the position of the defendant would have identified the refrigerator as an Affected Model and included it in the recall (particulars to paragraph 22).

  8. The defendant denied paragraph 22.

  9. The plaintiffs alleged that in breach of that duty of care, at the time of issuing the recall, the defendant failed to exercise reasonable care in its assessment of an Affected Model (paragraph 23). The defendant denied this.

  10. The plaintiffs alleged that had the defendant identified the refrigerator as an Affected Model and included it in the recall, the plaintiffs would have called the customer information line pursuant to the directions in the recall notice to arrange for a service technician to replace the microswitch that caused the fire (paragraph 23A). The defendant denied this. It also asserted that even if the recall notice had identified the plaintiffs’ refrigerator, the incident still would have occurred as the plaintiffs had changed addresses on multiple occasions without advising the retailer, Harvey Norman, or the defendant, and accordingly, it is unlikely that the plaintiffs would have taken notice of the recall and taken action accordingly (Defence paragarph 22).

  11. If the defendant included the refrigerator in its list of Affected Models, the plaintiffs would not have suffered the loss because the fire would not have occurred (paragraph 24). The defendant denied this.

  12. The fire was caused by the defendant’s negligence in failing to identify the refrigerator as an affected model and notify the plaintiffs (paragraph 25). The defendant denied this.

  13. Otherwise, in its defence the defendant:

39.1 Asserted that it is an importer and wholesale distributor of refrigerators for re-supply by retailers to consumers within Australia.

39.2 Admitted that on 30 June 2011 it caused a product safety recall to be published.

39.3 Admitted that the recall concerned the micro-switch in the icemaker of identified models of LG branded refrigerators.

39.4 Admitted that the recall put, and was designed to put, customers on notice that the micro-switch in the icemaker of identified models could potentially deteriorate causing the icemaker to malfunction and in certain circumstances may result in a fire hazard.

39.5 Did not admit that the plaintiff’s refrigerator contained the defect or otherwise contained the same micro-switch referred to in the recall notice period.

Plaintiffs’ opening address

  1. In his opening address counsel for the plaintiffs explained that the plaintiffs’ case was that the model of their fridge was caught by the recall, but the serial number was not and it should have been (T12-13). Counsel submitted that “for some reason they didn’t recall our serial number, and we say it’s on them to explain why" (T13).

  2. Counsel maintained that the defendant had admitted owing a duty of care in its Defence and that the critical issues in dispute concerned the scope of the duty of care and whether there was a breach (T13). Counsel identified the scope of the duty of care as being that “they owe to the plaintiffs, as purchasers of the refrigerator with that model number, to exercise reasonable care in identifying affected models of refrigerators and ensure that the plaintiffs were aware of the defect” (T15) and referred to paragraph 20 of the amended statement of claim – I have already set that out.

  3. Counsel submitted that there is a co-extensive duty of care owed between the parent and the subsidiary company.

  4. Counsel submitted that “in essence, they didn't do enough. They didn't do enough to make sure that all models and all barcodes were captured. … they primarily relied upon a spreadsheet given to them by Korea, which identified certain models, and production dates within each model. Apparently blindly, and no more than that.”.

  5. Counsel submitted that the defendant had a duty of care to satisfy itself that all affected refrigerators were included in the recall.

  6. Counsel submitted that as with many other issues in the case, at some point in time the onus shifts onto the defendant to show what it did was enough.

Defendant’s opening address

  1. In his opening address and throughout the hearing, counsel for the defendant emphasised that the defendant came to court to respond to the case pleaded against it by the plaintiffs.

  2. Counsel emphasised that the pleaded case was in relation to the recall notice, and the particular allegation was that the defendant had failed to identify and include the serial numbers in the recall notice. Counsel submitted that it was a novel claim that an Australian subsidiary ought to have included a serial number on a recall notice when given the information for the notice by a parent company.

  3. Counsel accepted that the defendant owed a duty of care. Counsel submitted that the duty of care was that if the defendant is given information from Korea, it could not sit on its hands and not issue a recall notice, but it’s duty extended only to the information given to it by Korea.

  4. The defendant’s case was that it had no way of identifying the serial numbers for itself and that it was totally reliant on the information provided by LG Korea.

  5. Counsel for the defendant also submitted that in order to succeed it was necessary for the plaintiffs to prove that the fire in their fridge was caused by the same defect that led to the 2011 recall.

Plaintiffs’ further opening by way of response

  1. By way of response to the opening submissions of the defendant, counsel for the plaintiffs explained, by reference to paragraphs 20 and 23 of the amended statement of claim, that the plaintiffs alleged that the duty of care was to assess affected models and that it failed to exercise reasonable care in its assessment of the affected model. The plaintiffs alleged that the defendant had to assess the affected models affected by the defect, that’s what it failed to do, which then led to the failure to identify alleged by the plaintiffs.

C. THE FACTS: The defendant’s operations in Australia; its relationship with LG Korea; the 2011 recall

  1. Ms Soud who was at the time of the hearing, and had been since June 2010, the director of legal and compliance of the defendant, gave evidence about the nature of the defendant’s operations in Australia, its relationship to LG Korea, and events leading up to and then undertaking the 2011 recall. She was able to give much of her evidence by reference to contemporaneous documents. However, at the same time a number of documents were unavailable either because they could not be located or had not been preserved amongst the defendant’s records given the passage of time. Nevertheless, most of Ms Soud’s evidence was not controversial and went unchallenged.

  2. Having regard to Ms Soud’s evidence and the available contemporaneous documents in evidence I find the following facts.

The nature of the defendant’s operations in Australia and its relationship to LG Korea

  1. As I have already said, the defendant is an Australian company. An ASIC Current and Historical Organisation Extract in evidence shows that all of its issued shares are owned by LG Electronics Inc of Seoul, Korea. This is the company I have already referred to as LG Korea. The same ASIC record describes LG Korea as the defendant’s ultimate holding company.

  2. In her evidence, Ms Soud agreed that the defendant is and was in 2011 a wholly owned subsidiary of LG Korea. She also described it as a sales and marketing subsidiary within the LG group of companies.

  3. The defendant imports, distributes and markets electrical goods, including white goods, in Australia. It does not operate any manufacturing facilities in Australia. All appliances are manufactured overseas, either by LG Korea in Korea or by other, mostly subsidiary operated, factories around the world. The defendant orders stock from those manufacturers and imports, sells and distributes the appliances through its own sales channels in Australia.

  4. Before an appliance is imported into Australia, the manufacturing entity engages a safety certifier in Australia who obtains testing and certification documentation from the factory that manufactured the goods and then processes the paperwork in Australia in order to apply for safety certification in Australia.

  5. When an appliance is imported into Australia, the defendant undertakes a visual inspection of a sample unit from an imported shipment to ensure that it meets the regulatory requirements for it to be marketed in Australia, and that the unit matches the technical specifications for that product. The inspection will include ensuring the correct energy label is applied to the appliance and matches the registration on the GEMS website, ensuring other labels are attached as required in Australia and that warranty cards are in accordance with the requirements in Australia. The defendant does not disassemble the product during this inspection, as the inspection relates to marketing requirements in Australia only.

  6. The defendant does not undertake any safety testing and does not have the laboratory facilities to do so. Safety testing is arranged by the manufacturing entity overseas and is undertaken by accredited independent laboratories and the appliances are certified at that point in accordance with local and international standards. The international certification documents are then provided to an independent 3rd party certifier engaged by the manufacturing entity for registration in Australia. That being said, the defendant does have a technical team and it carried out an examination of a fridge that caught fire on 14 September 2010 – I will come to the details in a moment.

  7. Usually, a product recall is undertaken in Australia by the defendant as a result of it being notified of incidents occurring in overseas markets or of incidents occurring in Australia. The defendant never undertakes a product recall without approval and support from LG Korea. Whilst the Managing Director and the CFO of the defendant have the authority to undertake a recall, it is not possible for the defendant to undertake a recall without input and support from LG Korea. Other than a recall undertaken relating to energy labelling which was specific to the Australian market, all recalls undertaken by the defendant have been undertaken as part of recall programs run in other international markets.

Safety certification of the plaintiffs’ model fridge

  1. The model of the plaintiffs’ fridge was first certified and registered on the Approved Electrical Articles Register in NSW on 6 August 2001. To enable that to occur, LG Korea engaged Testing & Certification Australia who submitted the relevant test and supporting documents to the Office of Fair Trading NSW for the registration and certification in Australia.

  2. In a subsequent renewal of the registration a representative sample of the plaintiffs’ model fridge, along with samples of other models identical except in dimension, capacity and optional parts, was subject to testing by Intertek Semko AB in Korea in relation to compliance with International Standard IEC 60 335-2-24 “Safety of household and similar electrical appliances”. A copy of their 72 page Test Report issued on 10 May 2004 was in evidence. As the Australian Standard was derived from the same International Standard, this testing documentation was able to be used for the renewal of the registration of the refrigerator in Australia.

Events leading up to the 2011 recall

  1. On 29 September 2010, Peter Kemp, Senior Investigator (Energy Enforcement) of the Energy & Utilities Unit of the Home Building Service NSW Fair Trading, sent an email to Mr Chris Hong of the defendant with details of and enquiring about a fire that occurred on 14 September 2010 in an LG side by side refrigerator. The fridge concerned had the same model number as the plaintiffs’ fridge. Mr Kemp said that the “model” number for the fridge (he must have meant serial number) was 507KRREO1502.

  2. Mr Kemp sent a copy of the email to Ms Soud the following day.

  3. On 5 October 2010, Mr Kemp wrote a letter to the company secretary of the defendant referring to his previous contact with Mr Hong and Ms Soud. In the letter Mr Kemp referred to the fire, which he said had taken place in the Kenthurst area of Sydney, and said:

“The control board believed to be the point of ignition of the fire is currently in the possession of LG Electronics Australia Pty Ltd and is subject to further examination of the company and report. Pending the result of this examination, Fair Trading does not anticipate any further action arising out of this investigation.

However, all regulators throughout Australia and New Zealand have been informed of this incident and will continue to monitor the market-place for any future similar incidents.

Should any further incidents come to notice then action up to and including recall proceedings may be considered at that time.

Fair Trading looks forward to the result of the examinations conducted of both the appliance and the control board as to the cause of the failure. If you wish to discuss this matter further, please do not hesitate to contact on the details provided.

  1. On 31 January 2011, Ms Soud replied by letter to Mr Kemp on behalf of the defendant. In her letter she said:

“We refer to your letter of 5 October 2010 and confirm that LG Electronics has completed its examination of the appliance as well as the control board you provided to us.

Whilst it is difficult to conclusively determine the cause of the incident, our examination has identified two potential causes of the failure namely, (a) the lead wire may have accidently being damaged during assembly of the product; or (b) tracking occurred in the vicinity of the micro switch as a result of excessive moisture.

During the period July 2005 to May 2007, LG Electronics imported approximately 8,950 units of the subject model for sale in Australia. We have not, to date, received any other reports of a similar failure occurring with this model refrigerator.

Given the particular nature of the potential causes identified and the fact that this is the only case reported to date, we believe that the failure is an isolated incident and is unlikely to re-occur. As a result, we do not believe that the issue poses a safety risk to consumers.

Please do not hesitate to contact the writer if you have any queries or if you wish to discuss any aspect of the above further.”

  1. On the same day, Mr Kemp replied to Ms Soud by email, saying:

“I suspected tracking due to moisture as the primary cause through my investigation and am pleased that this course has also been identified as a potential source of ignition by your technicians. I look forward to our continued positive relationship regarding compliance and safety issues in the future.”

The 2011 recall

  1. After 31 January 2011, in early to mid-2011, LG Korea notified the defendant that it suspected a safety issue in relation to the dispenser micro-switch used in certain models of refrigerators manufactured by it and supplied (amongst others) to the defendant as a result of which there may be a risk of fire in those refrigerators.

  2. Ms Soud was made aware by LG Korea that fire incidents had occurred in overseas markets which had been investigated by it and which resulted in the notification it made to the defendant. Ms Soud was not aware of there being any injuries, illnesses or deaths associated with the products, whether in Australia or overseas. However, the nature of the fire hazard was considered a serious safety risk and action was taken on that basis. Ms Soud was aware that LG Korea had product liability teams and specific parts of the business dedicated to maintaining checks and balances on all of its factories, monitoring failure cases in all of its global markets, and supporting its distributors when issues are identified. She was also aware that LG Korea employed forensic engineers and specialists tasked with investigating failure cases and ascertaining the root causes of those failures, especially when there was a concern that a safety issue was caused by design or manufacture.

  1. After notification by LG Korea it became clear to the defendant that 2 fire incidents in Australia were likely related to the micro-switch issue identified by LG Korea. These were the 2 “confirmed cases” where “the micro-switch (had) deteriorated” and “resulted in a fire in the refrigerator” that Ms Soud referred to in her letter to Mr Kemp at NSW Fair Trading on 28 June 2011. One of those incidents was the fire that occurred on 14 September 2010 that I have already referred to. The details of the other incident are not disclosed in the evidence.

  2. The decision to undertake a recall was made by the defendant’s management in conjunction with the management of LG Korea.

  3. In her affidavit Ms Soud gave evidence that she understood the 2011 recall was undertaken as there was a risk of fire in circumstances where moisture built up on the micro-switch typically due to humidity. In some circumstances this could result in a “tracking fault” thereby giving rise to a fire. She said that she was aware of this as she was in attendance at several meetings held to discuss the recall at the time of the recall where the issue was discussed. Ms Soud’s description of the fault in that way is consistent with a document she produced to the court (exhibited to her affidavit) marked “LGE Internal Use Only” describing the micro-switch fault. Although the document came from the defendant’s case files relating to the recall, Ms Soud was unable to identify the author or the date of the document. As I understand it, the document came from LG Korea.

  4. As the concern related to a component (a micro-switch) used in refrigerators manufactured by LG Korea, the defendant was provided with details by LG Korea as to which model refrigerators, which production numbers and the quantity of refrigerators that contained that component micro-switch. Those details were in a spreadsheet provided to the defendant by LG Korea. This is the spreadsheet that I referred to at the start of these reasons. A copy of the spreadsheet was in evidence (CB1936-1937), as was an English translation (CB2132-2133). The spreadsheet listed 24 different models of refrigerator and a total quantity of 39,067. It had separate columns for the year of production for each model. The years ranged from 2002 to 2006. Some models listed production in multiple years. The spreadsheet showed that for the plaintiffs’ model fridge there were 1,729 fridges from 2005, and no other years, with the production order “2005.1-2005.9”. Those production order numbers translated to serial numbers between 501 and 509, with the “5” indicating the year of production and the latter numbers indicating the month of production. On that basis, the spreadsheet showed fridges of the plaintiffs’ model produced from January to September 2005. This included the fridge that had caught fire on 10 September 2010, it’s serial number starting with the numbers 507.

  5. The defendant relied upon the information provided in the spreadsheet and depended upon the accuracy of the information provided by LG Korea. The defendant was unable to verify for itself which serial numbers were affected by the safety risk concerning the micro-switch as it did not have access to details regarding manufacture, including the supplier of and part number of components used in particular batches of refrigerators. In managing the recall Ms Soud had to rely on information provided by LG Korea as to which serial numbers for which models contained the subject component and would therefore be impacted by the micro-switch issue. That information came in the form of the spreadsheet.

  6. LG Korea supplied the defendant with a different component to replace the micro-switch in affected refrigerators.

  7. The defendant issued a service bulletin to all of its authorised service representatives within Australia demonstrating how to carry out the repair, that is to say how to replace the micro-switch. A copy of that service bulletin was in evidence (CB1938-1942).

  8. On 28 June 2011 Ms Soud wrote to Mr Kemp at New South Wales Fair Trading informing him that the defendant was undertaking a voluntary recall of side by side refrigerators. At about the same time Ms Fitzgerald of the defendant notified the Parliamentary Secretary to the Minister responsible for Competition & Consumer Policy Affairs of the recall. Ms Soud’s letter to Mr Kemp stated:

“Dear Peter

VOLUNTARY PRODUCT SAFETY RECALL – SIDE BY SIDE REFRIGERATORS

LG Electronics Australia Pty Ltd (“LG”) is undertaking a voluntary recall of a batch of certain side by side refrigerators with water dispensers pursuant to section 128 of the Australian Consumer Law.

Description of product

The products that are the subject to this proposed voluntary recall (products) are the following side by side refrigerators:

(The letter then set out a table with 2 columns. The heading above the first column was “Model Number” and the heading above the 2nd column “Serial Number Beginning with”.)

All units were produced between January 2002 until February 2006 and are no longer being sold in the Australian market.

Description of fault and cause

LG recently become aware of an issue that may affect the micro-switch in the ice maker of identified models, which in certain circumstances could result in a fire hazard.

Total number of units affected

LG sold 39,067 units.

Number of units found to have the fault

LG has had only 2 confirmed cases that of 39,067, where the micro-switch has deteriorated and it has resulted in a fire in the refrigerator.

Geographic distribution of the product

The products were distributed nationally through the major retailers.

What action the supplier proposes to take

LGEAP is proposing to undertake the following activities to publicise the recall:

(a)   publishing the attached advertisement in the newspapers set out in Attachment A. LG is proposing to run the advert this weekend on 1st and 2nd July. A copy of the advertisement is set out in Attachment B for your information.

(b)   establishing a dedicated toll-free number (as specified in the advertisement) for consumers to contact LG and provide contact details for the purpose of having the micro-switch replaced.

(c)   asking all major retailers of the Products known to LG to provide LG with the contact details of all consumers to whom the Products were sold (to the extent that the major retailers have such records).

(d)   maintaining a register of the recall process including all Products that have been upgraded, contact details of all consumers who have had their Products upgraded and the date on which those upgrades were made.

If you have any queries, please contact me …”

  1. The advertisement referred to in this letter was the product safety recall notice I referred to at the start of these reasons. It stated that the defect or hazard was that “the micro-switch in the icemaker of identified models could deteriorate causing the icemaker to malfunction and in certain circumstances may result in a fire hazard”. Twenty-four different models were identified by their model numbers and readers were invited to visit a particular internet webpage “for details of affected serial numbers”. Customers with affected models were requested to contact the defendant “to arrange for a service technician to replace the micro switch”.

  2. Having regard to those matters in particular but also to Ms Soud’s evidence generally, it is clear that the safety problem leading to the 2011 recall, its likely cause and solution, and the particular fridges likely to be affected were all identified by LG Korea, the designer and manufacturer of the refrigerators.

D. THE FACTS: Dr Alizadeh’s purchase and use of the fridge up to the time of the fire

  1. As I have already mentioned, Dr Alizadeh bought the fridge from Harvey Norman Electrical Auburn on 18 April 2006. A copy of the receipt was in evidence. It recorded Dr Alizadeh’s name (as Mr Alizadeh), address and home phone number. Although they moved house a number of times, the plaintiff’s retained the same home phone number until mid-2018.

  2. When he bought the fridge, Dr Alizadeh and Ms Aminnejad were living in a home unit at Rooty Hill. They did not connect the fridge to the water supply when they were living there.

  3. On 11 October 2006, when they were still living at the same place in Rooty Hill Dr Alizadeh bought a new mattress from Harvey Norman Bedding Auburn. A copy of the receipt was in evidence. It recorded Dr Alizadeh’s full name, address and mobile phone number. Dr Alizadeh still had the same mobile phone number in November 2022. This receipt was issued by different legal entity with a different Australian Business Number and trading under a different business name to the receipt issued for the purchase of the fridge.

  4. In 2008, Dr Alizadeh and Ms Aminnejad moved to a home unit in Kellyville. They did not connect the fridge to the water supply when living there.

  5. In March or April 2012, Dr Alizadeh and Ms Aminnejad moved to a home in Brayden Way in Kellyville. They connected the fridge to the water supply for the first time. This is the property they were living in at the time of the fire on 11 March 2019.

  6. Dr Alizadeh gave evidence (in his affidavit) that in about early 2013, about one year after they had moved into the property, the icemaker stopped making ice and began to make a crunching sound when activated. As such he turned off the ice making feature and he and Ms Aminnejad continued to use the water dispensing function only. Dr Alizadeh said that he and his wife did not engage anyone to look at the icemaker because it was out of warranty. It was put to Dr Alizadeh in cross-examination that his evidence that the icemaker stopped working in 2013 was not true and he was lying.

  7. Ms Aminnejad gave evidence (in her affidavit) that in about early 2013 she recalled that the icemaker stopped making ice and started making a crunching sound when it was used. From then on, she and her husband did not use the ice making function, which Dr Alizadeh switched off, and they only used the water dispensing function. She too said that they did not ask anyone to look at the icemaker as it was out of warranty. According to Dr Hart (the defendant’s expert witness on the cause of the fire), the fridge did have a switch to turn off the ice-maker.

  8. The defendant submitted (written submissions paragraphs 16 to 36) that the court should not accept Dr Alizadeh’s and Ms Aminnejad’s evidence that in or about early 2013 the icemaker stopped making ice, Dr Alizadeh turned off the function and from then on they used the water dispensing function only. The defendant submitted that instead of accepting that evidence the court should find that (a) the ice maker worked until about January 2019 a couple of months before the fire (not 2013); (b) this was the electrical fault told to the police; and the plaintiffs had it repaired; (c) the repairer was not authorised by LG and performed the repair work defectively; (d) the ice maker continued to work after that repair and the water supply was turned on again; and (e) on 11 March 2019, the water leak only occurred because the water had been turned on again. The basis for not accepting their evidence was said to be found in 4 items of contemporaneous evidence: first, police body cam footage taken on the day of the fire; second, a report of Nick Sutarov, Forensic Fire Examiner, of GKA Investigations Group dated 20 March 2019; third, a NSW Police COPS event record; and fourth, a service record of the defendant dated 13 March 2019. The critical finding that the defendant invited the court to make was that there was an electrical fault in the fridge prior to the fire which the plaintiffs had repaired defectively.

  9. It was put to Ms Aminnejad in cross-examination that her evidence about when the icemaker stopped working was inconsistent with what she told the Police on the day of the fire, and that in fact the icemaker was working for the entire time between 2013 and 2019.

  10. Video footage from the body worn video camera of Sgt Fortier who spoke to Ms Aminnejad on the day of the fire was in evidence. It records that Ms Aminnejad said to Sgt Fortier “a couple of months ago, the ice dispenser stopped working but I just said okay, I don’t need ice dispenser just forget about it that the fridge was still working”. Ms Aminnejad denied that what she had said in the video was true when she said that “a couple of months ago the icemaker stopped working” and denied that the evidence she was giving was a lie. Ms Aminnejad said that what she had said to the police was just tongue twisting, or maybe she was in stress and instead of saying “years” she said “months”. That Ms Aminnejad confused years and months is probably unlikely given that, as recorded on the video, she had just told Sgt Fortier that the fridge was about 10 or 11 years old. Nevertheless, it would have been a traumatic experience and no doubt Ms Aminnejad would have been suffering from stress when she spoke to the police officer.

  11. Ms Aminnejad denied that she said to the police that they had recently got the fridge fixed due to an electrical fault. Dr Alizadeh also denied saying this to the police. The question was put to both of them on the basis that the narrative details of the New South Wales Police Force COPS event record which stated “Police gained the details of the father who had arrived home shortly after the fire had started and it was discovered that the residents of the Aminnejad had recently got their fridge fixed due to a electrical fault. Attending Fire Brigade officers state that this is more than likely the cause of the fire.”.

  12. The COPS event on the day of the fire was created by Constable Parsons, and not Sgt Fortier. If Ms Aminnejad had told the police that they “had recently got their fridge fixed due to a electrical fault” one would have expected that to have been recorded in Sgt Fortier’s body worn camera video footage. It was not.

  13. The video shows that after Sgt Fortier spoke to Ms Aminnejad, he spoke to 2 firefighters. The video shows that one of the firefighters was speaking to Dr Alizadeh before that firefighter went into the house with Sgt Fortier and Constable Parsons. The conversation that occurred between the firefighter, Sgt Fortier and Constable Parsons as the firefighter showed them the source of the fire was recorded on the video. The firefighter told Sgt Fortier “I reckon it’s an electro. It’s in here. In the fridge .. which has gone up .. you can see basically how .. the source is here .. we’ll have another look in there but .. he was referring to the ice cooler, I think it’s the ice maker .. which has caught alight”. [I note that when the firefighter said that “he was referring to the ice cooler” it is quite likely that the “he” the firefighter was referring to was Dr Alizadeh, as the video shows that he had just been speaking to him outside before entering the house with the 2 police officers.] The video goes on to record that Sgt Fortier then said to the firefighter “I’ve spoken to the wife. Apparently, it broke down a couple of months ago but she goes I didn’t bother getting it fixed. I just left it as that …”.

  14. The video does not record that Ms Aminnejad told the police that they had recently got the fridge fixed due to an electrical fault. In fact it confirms that Ms Aminnejad told the police, and the police told the firefighter who showed them the source of the fire, that she did not get the icemaker fixed.

  15. The video shows that the firefighter who showed Sgt Fortier and Constable Parsons the scene told them that he thought it was an electrical fire and that the icemaker had caught fire, but the video does not show that the firefighter told Sgt Fortier or Constable Parsons that the plaintiffs had recently got their fridge fixed due to an electrical fault. The source of that information remains distinctly unclear. It is quite possible that Constable Parsons confused matters when creating the COPS entry.

  16. In submissions, the defendant said that Mr Sutarov attended the property and undertook his forensic fire examination acting on instructions from Allianz. His report records that he received instructions on 13 March 2019 and attended the property on 14 March 2019. As I said, the date of his report is 20 March 2019. The instructions given to Mr Sutarov are not in evidence. In the executive summary of his report (page 1) Mr Sutarov stated “The cause of the fire was likely related to a recall issue pertaining to a faulty electrical micro switch in the ice maker. Should you wish to seek recovery from the refrigerator – freezer manufacturer, further examination by an electrical expert is recommended.”. The part of the report relied upon by the defendant appears under the heading “Background Information” on page 3. The first paragraph under that heading states “The insured had been having issues with the ice maker on a side by side LG Refrigerator-Freezer (Model GR-P197WVS)Ice Maker) several months before the fire. The (Ice Maker) was not working for several months. The refrigerator-freezer was purchased from Harvey Norman in 2006. The house was built in March 2012. There is a recall for the refrigerator-freezer (Ice Maker Micro Switch due to a Potential Fire Hazard).”. The defendant emphasises the words I have underlined.

  17. Ms Aminnejad gave evidence that she had no recollection of speaking to Mr Sutarov at all. Dr Alizadeh said that he could not remember speaking to Mr Sutarov specifically, because he spoke to a number of people in the days after the fire, and he could not remember telling him that the icemaker was not working for several months.

  18. The defendant submitted that the court ought to nevertheless infer that either Dr Alizadeh or Ms Aminnejad told Mr Sutarov precisely that.

  19. I would be prepared to infer that it is quite likely that Dr Alizadeh told Mr Sutarov what appears in the 3 paragraphs following the first paragraph under the heading “Background Information” based on how those paragraphs are written, or at least Dr Alizadeh provided that information to someone else at Allianz who passed it on to Mr Sutarov when providing him with instructions. However I would not be prepared to draw the same inference in respect of the first paragraph.

  20. The statement in the first paragraph is, however, consistent with the statement made by Ms Aminnejad to Sgt Fortier recorded in his body cam footage.

  21. The service record of the defendant dated 13 March 2019 records that Dr Alizadeh phoned the defendant on that day. The note records that he told the defendant the fridge had set on fire 2 nights ago and his house was burnt; that the fire started from the icemaker; that the house was not livable; and he “would like LG to check why the fridge started fire. LG is responsible for that. Also I do not want this happen again to someone else”. The same document records that either on the same day or the next day, Paul Rodziewicz, technician, attended the scene of the fire, inspected the fridge, spoke to the customer and took photos. One of the remarks recorded by the technician was “Customer advised me that he turned off water supply to the fridge 2 or 3 months ago but didn’t turn icemaker off”.

  22. The technician could only have been speaking to Dr Alizadeh.

  23. When Dr Alizadeh was cross-examined about the service record it was suggested to him, mistakenly, that he told LG when he phoned that he had turned off the water supply 2 or 3 months ago but did not turn off the icemaker. That is not what the service record shows. It shows that he told the technician this when the technician came to inspect the fridge. Nevertheless, after quite some time of argumentation and excitement, and perhaps obfuscation, by Dr Alizadeh during cross-examination Dr Alizadeh reached the point where he denied saying this. The defendant submitted that the court ought to find that this was a false denial and that the contemporaneous recording of the conversation that Dr Alizadeh had with LG ought to be accepted as to the truth of what was said during the conversation. It seems to me quite likely that the technician made an accurate record of what Dr Alizadeh told him on the day. Nevertheless, it is far removed from the proposition the defendant wishes to establish that there was an electrical fault in the fridge which the plaintiffs had repaired by an unauthorised technician who carried out a defective repair.

  1. In his written closing submissions, counsel for the plaintiff addressed how the plaintiffs came to prepare their table and what they based it on. Counsel also addressed the limitations of Mr Hosking’s experience and expertise. I generally accept those submissions.

  2. Overall, the evidence about the quantification of the plaintiffs claim for loss and damage to their contents is not as precise and detailed as one might hope. This is largely explained by the fact that most people do not retain receipts for ordinary everyday items accumulated over years of living. This does not mean that the plaintiffs should receive $0 for all the items Mr Hosking rejected.

  3. Doing the best I can on the evidence before me, I would allow $100,000 as damages for the contents.

O. Loss of income to Dr Alizadeh

  1. Dr Alizadeh and Ms Aminnejad spent much of their time in the week after the fire removing the contents from the house so that cleaning and rebuilding works could commence. They packed most of our contents in plastic bags and stored them in the garage of the property so the cleaning process could commence as soon as possible.

  2. Dr Alizadeh gave unchallenged evidence that as at the date of the fire, he was a contractor working out of and invoiced BV Circa Medical Centre in Bella Vista. Given he was a contractor, his income depended on the amount of work he did. He invoiced BV Circa Medical Centre each fortnight for his services. In an ordinary fortnight, his invoice to the medical centre would be broken down into 10 days of work. The fire occurred on Monday, 11 March 2019 (after a day of work), which was during the second week of a two-week invoice cycle. He did not, and could not, work for the rest of the week because he and his wife needed to urgently remove the contents from the house so that cleaning could commence. Had it not been for the fire, he would have worked and worked and earned income. On the basis of the documents exhibited to his affidavit he calculated that 75% of a usual week’s income amounting to $9,910. He claimed that he lost that income due to the fire.

  3. The defendant did not dispute the fact that Dr Alizadeh had taken the time off work, and therefore lost income, for the reasons he stated. Nor did it dispute the amount.

  4. The defendant submitted that the plaintiffs should not be allowed this head of loss because it is too remote.

  5. In my view it was foreseeable that it would be likely a homeowner would need to take some time off work to undertake some relatively urgent and preliminary cleaning up in the event of a fire. I therefore do not accept the defendant’s submission that the damages claimed are too remote.

  6. I therefore would allow the sum claimed by the plaintiff, being $9,910.

P. Temporary accommodation

  1. The plaintiffs lived in temporary accommodation whilst the repairs were carried out to their house.

  2. The defendant does not dispute the plaintiffs’ entitlement to damages under this head of loss. It disputed the claim on the basis that both the rate and duration claimed by the plaintiffs for their accommodation was not reasonable.

  3. The rate was said to be unreasonable because, so it was submitted, the plaintiffs should have found cheaper longer term accommodation rather than higher cost short stay lodgings. The duration was said to be unreasonable, so it was submitted, because the building work should have been completed within a shorter period of time.

  4. By the end of submissions, the plaintiffs accepted the rate put forward by the defendant, $780 per week. The parties still disagreed over the length of time to allow. The plaintiffs submitted 9 months. The defendant submitted 6 months or 9 months.

  5. The plaintiffs were actually out of their house from 11 March 2019 (the date of the fire) until 29 May 2020 (when the building work was completed), a period of more than 14 months. The timeline of events is summarised in the report of Mr Bartlett, a chartered civil-structural engineer called by the plaintiffs (CB1286).

  6. The plaintiffs’ submitted that 9 months should be allowed because the parties experts (Mr Bartlett for the plaintiffs, and Mr Whittall for the defendant) had agreed in their joint report, prepared after exchanging written reports and holding a conclave, that “based on review of the timeline that delays beyond the insurers control were experienced, and that a reasonable timeframe for repairs would be in the vicinity of 9 months” (CB76).

  7. The defendant submitted that either 6 months should be allowed or 9 months. The shorter period was said to be based on the oral evidence of Mr Whittall at the hearing (defendant’s written closing submissions paragraph 234; T316-317).

  8. In my view it is appropriate to adopt the 9 month period that both experts agreed in their joint report.

  9. Therefore I would allow temporary accommodation in the sum of $30,642.86. The calculation is in the plaintiffs’ written closing submissions in reply at paragraph 112.

Q. Investigation fees

  1. The plaintiffs claim damages in the sum of $8,928.90 for “investigation fees”.

  2. The defendant explained (written closing submissions paragraphs 263-266) that the investigation fees were those of GKA Investigations Group.

  3. According to Mr O’Connor, the National Manager, Claims Technical and Business Operations of Allianz Insurance Australia Insurance Limited (the plaintiffs’ home insurer), Allianz contracted GKA Investigations Group to investigate the cause and origin of the fire (affidavit, CB1338). In cross-examination, Mr O’Connor agreed that GKA was appointed just to investigate the circumstances giving rise to the claim, and specifically to provide expert guidance to Allianz on the causation of the loss, so that Allianz could make a determination as to whether the insurance policy would respond to the customer’s loss (T151-152).

  4. Copies of the 6 invoices are exhibited to Mr O’Connor’s affidavit (at CB1359-1364). The invoices show that the charges are for forensic examination and report preparation undertaken by Mr Nick Sutarov and Mr Greg Edwards. They also include charges for “Exhibit Storage Large”. Other evidence shows that GKA Investigations picked up and stored the plaintiffs’ refrigerator after the fire. I infer that was the “Exhibit” being stored.

  5. The plaintiffs submitted that these costs were recoverable based on the decision of Applegarth J in Mitchell Ogilvie Menswear Pty Ltd v Rapid Edge Pty Ltd [2019] QSC 136, particularly at [134]. The question was not put in issue by the defendant in that case, however his Honour accepted that the costs of forensic examination and loss assessment were consequential and linked to the defendant’s negligence.

  6. In the present case, the defendant puts them in issue and submits they are part of Allianz’s business costs and overheads and not compensable.

  7. I agree. The present claim has been brought by the plaintiffs, not by Allianz. The injured parties are the plaintiffs, not Allianz. The general principle is that the injured party should receive compensation in the sum which, so far as money can do, will put that party in the same position as he or she would have been in if the tort had not been committed. This general principle is not affected by the fact of an injured party’s insurer bringing a subrogated claim. The principal effect of the doctrine of subrogation is that the insurer is entitled to exercise in the insured's name any rights of the insured against third parties: Kelly & Ball Principles of Insurance Law (LexisNexis online) at [9.0010].

  8. In this case, the expenses were incurred by Allianz, as Mr O’Connor frankly admitted, so that it could decide whether its policy responded to its customer’s claim. In my view, they are part of the costs of Allianz doing business.

  9. For those reasons I would not allow the claim for investigation fees.

COSTS

  1. Costs should follow the event.

ORDERS

  1. For those reasons I make the following orders:

  1. Judgment for the defendant.

  2. Plaintiffs to pay the defendant’s costs.

**********

Amendments

22 July 2025 - Typographical error in paragraph 2.

Decision last updated: 22 July 2025

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