Angelovski v Sonmez (t/a Aussie Batts Insulation)
[2014] VCC 1071
•4 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-13-04443
| DRAGI ANGELOVSKI | Plaintiff |
| v | |
| SERHAT SONMEZ (Trading as AUSSIE BATTS INSULATION) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3 and 4 July 2014 | |
DATE OF JUDGMENT: | 4 July 2014 | |
CASE MAY BE CITED AS: | Angelovski v Sonmez (t/a Aussie Batts Insulation) | |
| MEDIUM NEUTRAL CITATION: First revision 7 July 2014 | [2014] VCC 1071 | |
REASONS FOR JUDGMENT
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Subject: CONTRACT – TORTS – DAMAGES
Catchwords: Defendant laid fibreglass insulation batts in roof of residential premises – subsequent fire damaged premises – fire caused by contact between heat from low-voltage downlights and pre-existing loose-fill insulation material – whether defendant in breach of general duty, or implied term of contract by failing to install shields or barriers around downlights or clear away loose-fill insulation material before applying insulation batts – whether subsequent work on premises to install downlights.
Cases Cited: Wyong Shire Council v Shirt [1980] HCA 12
Judgment: For the plaintiff in damages as agreed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Donald | Mason Black Lawyers Pty |
| For the Defendant | Mr F Scully | Sabelberg Morcos Lawyers |
HIS HONOUR:
Preliminary
1 In December 2009, the plaintiff, who was the registered proprietor of a property at 6 Nagle Court, Mill Park, Victoria (“the property”), retained the defendant, who carried on business under the name “Aussie Batts Insulation”, to install fibreglass insulation batts (“the batts”) in the ceiling throughout the property.
2 Prior to the defendant installing the batts, there was pre-existing cellulose paper-based blow-in type insulation (“the blow-in insulation”) laid in the ceiling throughout the property.
3 On 7 or 8 January 2012, a fire occurred at the property. According to the evidence of various experts, the fire occurred as a result of contact between the blow-in insulation and either a low-voltage downlight, or a heater/exhaust fan (“the fan”) located in the roof of the ensuite bathroom at the property. The fire was subsequently extinguished by the Metropolitan Fire Brigade (“MFB”). The property suffered significant damage.
4 The plaintiff brings this action against the defendant in contract and tort and seeks damages in the agreed sum of $110,975.59.
The pleadings
5 Helpfully, the parties have reached agreement on a range of issues in the proceeding. That agreement is recorded in a document, “Admissions”, and tendered into evidence.[1] Thus the issues between the parties are considerably narrowed.
[1]Exhibit E
6 By that document, the parties admitted the following:
· The plaintiff was the registered proprietor of the property.
· The defendant carried out the business of the installation of batts.
· Before December 2009, blow-in insulation had been laid in the ceiling of the property, including in the ceiling above the ensuite bathroom.
· The parties entered a contract for the defendant to supply and install the batts. It was a term of the contract that the works carried out by the defendant would be undertaken in a proper and workmanlike manner.
· In December 2009, the defendant, and his employees, installed the batts in the ceiling of the property.
· Overnight on 7 or 8 January 2012, a fire occurred at the property which commenced in the ceiling above the ensuite bathroom.
· The fire occurred as a result of the ignition of blow-in insulation resulting from heat generated by a downlight in the ceiling of the ensuite bathroom.
· As a result of the fire, the plaintiff sustained damage in the total sum of $110,975.59.
7 Further, according to the plaintiff’s Statement of Claim, the fire was caused by a breach by the defendant of the term of the contract, in failing to carry out the works in a proper and workmanlike manner; alternatively, in breach of the duty of care owed by the defendant to the plaintiff, in that he failed to use reasonable care in the circumstances. Those breaches are particularised as follows:
“(i)installing the insulation batts in the ceiling space above the en suite to the master bedroom over the pre-existing insulation without removing the pre-existing insulation and/or installing flame proof shields/barriers around the down lights and other ceiling appliances to negate the movement in the installation process of the pre-existing insulation to be in or nearly in contact with the down lights;
(ii)failing to take any or any proper steps by the use of a suitable flame retardant restraining material to prevent loose fill from entering the clearance space between the down lamps and the pre-existing insulation;
(iii)creating a blanketing effect by installing insulation batts over the pre-existing insulation thereby preventing the dispersal of heat generated by the down lights and the transformers used in their operation;
(iv)failing to give any or any proper consideration to the effect of the installation of the insulation batts on the pre-existing insulation and the disbursal of heat generated by the down lights and the transformers used in their operation;
(v)failing to give any or any proper consideration to the risk of ignition caused by the proximity of the pre-existing insulation to the heat generated by the down lights and the transformers used in their operation;
(vi)failing to give any or any proper consideration to the blanketing effect caused by the installation of the insulation batts over the pre-existing insulation;
(vii)failing to comply with Australian Standards AS 3999-1992 (Thermal insulation of dwellings—Bulk Insulation—Insulation Requirements), more particularly Section 4.2 and AS 3000 (Wiring Rules) more particularly Section 4.3.6.3.”[2]
[2]Paragraph 10 of the Statement of Claim
8 As a result of the alleged breach of duty, or implied term of the contract, the plaintiff suffered damages as agreed.
9 By his Defence, the defendant pleads:
(i) At all times the works were completed with due skill and care and in accordance with applicable Australian Standards;
(ii) At all times the defendant carried out the works in a proper and workmanlike manner, and using due care and diligence;
(iii) Following the installation of the batts, a further five or six downlights were installed at the property;
(iv) The fire was caused by the additional downlights coming into contact with the blow-in insulation;
(v) Further or alternatively, work carried out in the course of the installation of the additional downlights resulted in the misplacement of the aluminium shields, and/or impacted on the blow-in insulation, enabling that insulation to come into contact with the downlight, igniting the fire.
The evidence
10 Evidence was given by the plaintiff. He purchased the property in August 2008 as an investment property, and after cleaning up the property, including painting the walls, leased it to a tenant. The lease was arranged and administered by a real estate agent. The tenant remained in the property until the fire.
11 In late 2009, the plaintiff contracted with the defendant to install the batts in the roof ceiling, and that work was carried out. At no time after he purchased the property, and before the fire, did he carry out or authorise any works to be carried out to the lights, including the downlights throughout the ceiling. He was never informed by the agent that any works were carried out in the ceiling, including to the downlights. Any works to be carried out through the agent required his approval. It was put to him in cross-examination that the defendant had recorded there were four downlights in the property and two fans. He could not recall how many downlights there were. In a subsequent insurance claim document, it was suggested nine downlights were re-placed in the property. He was unable to comment upon that. He was unable to say how many different types of downlights there were in the property.
12 Evidence was given by Mr Alexander Conway, an investigation officer with the Melbourne Fire and Emergency Service. He was retained by the MFB to make fire investigations, in particular in respect of fires occurring in properties under the Federal Government’s Home Insulation Program. The work carried out by the defendant to install the batts was part of that program. He attended the property early on 8 January 2012 and prepared an investigation report, together with various photographs.[3] He climbed into the roof cavity, and made observations about the insulation. He observed the batts had been installed over the blow-in insulation.[4] He determined the area of origin of the fire was the ensuite bathroom. At that point, the ceiling had collapsed, as depicted in photographs.[5] He said the source of the fire was when the blow-in insulation came into contact with either the downlight or the fan in the ensuite. He explained the blow-in insulation had been previously installed, and consisted of shredded telephone books treated with a fire-retardant chemical. The problem with the blow-in insulation is that over time, the chemical breaks down, leaving the remaining material combustible. The fire commenced in the ensuite, because that was where the ceiling collapsed and because the roof timbers above that area were burnt through. He had investigated many of these types of fires in the past. He was able to determine the source of the ignition, because part of either the downlight or the fan was found to be covered in charred blow-in insulation material, as depicted in the photograph.[6] The downlight in the ensuite was different to other downlights in the hallway. The downlight in the ensuite was a low-voltage downlight which developed significant heat, in the order of 375 degrees Celsius. He said there was no shield, cover or guard (collectively “a shield”) that he was able to observe in the area of the ensuite. It was necessary to have a shield around certain downlights and fans to ensure that the heat did not ignite materials in the roof. He said that when the batts were placed over the top of the blow-in insulation, that would have caused a disturbance and brought the blow-in insulation in contact with the downlight or fan. He said the ceiling area was sealed and it would have been unlikely that air currents would have brought the blow-in insulation into contact with the downlight or fan.
[3]Exhibit A
[4]Referred to in Mr Conway’s report as “CFI insulation”
[5]Plaintiff’s Court Book (“PCB”) 71, 72, 73 and 79
[6]PCB 83
13 Mr Conway was shown a photograph referred to in a report of another expert[7] showing an aluminium shield. He said he saw no evidence of that when he inspected the property. He concluded that had the original blow-in insulation been removed, or protected by a shield, the blow-in insulation would not have been able to make contact with the downlights.
[7]Defendant’s Court Book (“DCB”) 14
14 In cross-examination, he acknowledged that his report made no mention of the fan being a possible cause of ignition with the blow-in insulation.
15 Mr Conway accepted he had not made any attempt to record the make or model of any of the downlights throughout the property and was unable to say whether any of the downlights he observed had been manufactured after the date of the installation of the batts. He said the downlights he observed in the ceiling space were not shielded.
16 Evidence was given by Mr Neil Barnes, a forensic consultant with Fire Scene Examination Pty Ltd. His two reports and various photographs were tendered.[8] He inspected the property on 16 January 2012, some days after the fire. He said the fire damage was mainly confined to the ceiling and roof space above a bathroom and an ensuite adjacent to the master bedroom. He obtained some information from the MFB officers. He concluded that the fire originated in the ceiling space above the ensuite bathroom. The ceiling in the area was partially collapsed and amongst the fallen pieces of material, he obtained a lighting wire which was connected to a low-voltage downlight fitting. A transformer from the light was also found on the floor. Neither of these units were photographed as he was distracted at the time. However, the damage to each unit showed the fire had not started within the unit. There was no evidence of an electrical fault. He said the probable cause of the fire was the ignition of the blow-in insulation found in the roof by heat given off by an activated downlight in the ensuite. He was advised that the tenant in the property had reported leaving that light on. He said there were different types of downlights throughout the property. In all, he counted ten downlights: one in the master bedroom; one in the ensuite; three in the hallway, and five in another room. There were three different types alone in the hallway.
[8]Exhibits B and C
17 He said there were no safety shields which he observed, when he climbed into the ceiling space, around any of the downlights. He acknowledged that at the seat of the fire, the temperatures may have been such as to cause any aluminium shield to be destroyed to a fine white oxidised powder and, with the water sprayed upon the property, it would be impossible to detect whether such a shield had been in place around the downlight in the ensuite. However, he inferred from the fact that there were no shields in any of the other downlights throughout the property, that one was not present in the ensuite. He specifically looked for shields. He was shown the photograph in the defendant’s expert report[9] and said he saw no such shield present anywhere in the roof of the property. In any event, he said that shield was too large for a downlight but may have been suitable for a fan. He said there was a shield amongst the debris, but that was in the area of the fan.[10] He said it looked more like a heat protector for the back of a globe in the extractor fan. He said that whoever had installed the blow-in insulation, the batts or the downlights had done so incorrectly. He said that when the batts were installed, that would have moved the blow-in insulation such that it came into contact with the downlight. Shields should have been placed around the downlights. The blow-in insulation may take years to break down, although there was a case where it broke down within three months.
[9]DCB 14
[10]Transcript (“T”) 62, L5
18 Mr Barnes was taken to the Australian Standard AS 3999-1992 (Thermal insulation of dwellings—Bulk installation—Installation requirements), and Australian Standard AS 3000 (Wiring rules). He said s4.2 of AS 3999 provided:
“… Loose fill insulation shall be prevented from entering the clearance space by a suitable restraining material, e.g. flame retardant reflective foil laminate, formed into a suitably shaped barrier … .”
19 Further, AS 3000, by s4.3.6.3 provided:
“Thermal insulating material shall not prevent free air flow around or through luminaires and their associated ancillary gear, and shall be separated by not less than –
(a) 25 mm from low voltage lamps or luminaires; or
(b) 50 mm from extra-low level voltage dichroic lamps or luminaires associated transformers.
Where the thermal insulation is of the loose fill type, fire resistant barriers shall be provided to maintain the separation.”
20 He said there was no requirement to remove previous insulation, including blow-in insulation, from a ceiling, before the installation of batts; however, adequate fire safety steps had to be undertaken. He said the requirements of AS 3000 that there be gaps in the batts over the area of the downlights of 25 millimetres had been met in the property. When he inspected the batts, there were appropriate gaps in compliance with the Standard.
21 He disagreed with another opinion that, over the period of two years between the installation date and the fire, it was highly probable the blow-in insulation had moved around under the roof cavity by wind drafts or due to vermin. He said that would require winds of 20 to 30 kilometres per hour, and that would not have occurred in a sealed ceiling. Further, he detected no signs of vermin droppings in the area. He concluded that the fact that the batts were installed over the blow-in insulation without the installation of shields around the downlights, was inappropriate, as the blow-in insulation could have been disturbed by the installation of the batts. He said that in installing the batts, the installer should either have placed a barrier or spacer around the downlights, or ensured that the area around the downlights was cleared of the blow-in insulation. His investigation showed clearly that there was blow-in insulation around the downlights in the ensuite and other areas.
22 Evidence was then given by the defendant, Mr Serhat Sonmez. He said that in December 2009, his brother, Firat Sonmez, and another, Salim Uysal, installed insulation under the Federal Government Home Insulation Program. They installed insulation at the property.
23 Mr Sonmez said that when they first arrived at a property, there was a “ceiling count” undertaken which involved the workers going into the roof space and assessing the area where the batts were to be laid. He had received training as an installer, and had achieved various certificates.[11] He completed the training by about 12 November. At this property, a “Home Insulation Program – pre-installation check” was carried out.[12] The document was his handwriting. He was the supervisor of this job and the document was completed after the ceiling count. The ceiling count would involve counting all the downlights and assessing how much insulation material was required. He or the others would also speak to the home owner about the number of downlights.
[11]Exhibit 3
[12]Exhibit 1
24 According to the check, there were four downlights in the property. After the ceiling count, the job was undertaken. Mr Sonmez would make aluminium shields to go around the downlights. Before that, a dustpan and broom would be used to sweep away any blow-in insulation from around the area of the downlights. Once this was done, the shields would be applied, and the batts laid in the area. On this job, batts of 430 millimetres width were used. The batts were 1.1 metres long, and spaces were cut for the penetrations. The shields were made from rolls of aluminium, 20 or 30 metres long and 300 millimetres wide. They were cut to lengths of 1250 millimetres and made into a cylinder. The cylinders were then pop riveted. The photograph shown at Defendant’s Court Book 8 are the shields they made. As there were four downlights on the check list, four shields were made. Mr Sonmez was certain this occurred and it was not possible to miss any downlights.
25 He signed off on the job after it was completed with the tenant.[13] In the period between his training and certification, and the installation of the batts in the property, he and the others had installed batts in approximately 100 houses. They would do about two properties a day. In the period after this installation, they worked for another month or so, and undertook installation in about another 100 houses. He could not specifically recall this job and relied upon the accuracy of the checklist. The purpose of installing the shields was to ensure the blow-in insulation did not come into contact with the downlights. He knew this could result in a fire. That was what he and the others had been trained to do. The shields were properly installed around the downlights. He accepted there was no record in the checklist that the shields were installed.
[13]Exhibit 2
26 Evidence was given by the defendant’s brother, Mr Firat Sonmez. He specifically recalled this job. A ladder was first set up and access to the roof gained through the tiles. Downlights would be checked and the client would be asked about downlights. He recalled the checklist from the day of the job. If downlights were there, downlight shields were used and were cut from a roll of aluminium and pop riveted together, in accordance with the photograph.[14] According to the checklist, there were four downlights and therefore four downlight shields were made and installed. He was certified in the same manner as his brother and thought that they did about 200 insulation jobs in two months. The first time he had been asked about giving evidence was a month ago.
[14]DCB 8
27 He recalled seeing blow-in insulation in the roof and knew it had to be kept away from the downlights. He said the shields were installed properly.
28 Evidence was given by Mr Salim Uysal. On 31 December 2009, he went to the property with the others. They inspected the roof and undertook a safety check. He recalled seeing the checklist and knew there were four downlights in this job because of the checklist. They also asked the tenant about the number of downlights. Himself and Firat were in the roof laying the installation and putting the shields in place. The shields were made from a roll of aluminium. He placed them over the downlights, although he could not recall whether there was any blow-in insulation in the roof area. All three workers would then do a final inspection. He said he recalled this house specifically and that it was either he or Firat who had installed the shields. They had undertaken about 200 jobs over about a nine-month period. He had similar certificates to the others. He was friendly with Firat and Serhat. Every job they did had a shield over the downlights.
29 Evidence was given by Ms Belinda Jones, a fire investigation expert. Her two reports were tendered.[15] She made an assessment of the cause of the fire and the report of Mr Barnes, based upon his reports and the MFB report, and various other information. She said she agreed with the MFB conclusion, and that of Mr Barnes, that the fire resulted –
“…. from a blanket effect caused by the laying of batt insulation over the top of blow-in insulation. This has created an environment in which the blow-in insulation could contact the back of the downlights and has slowly pyrolysed over time, finally developing into flaming combustion on the day of the fire”.[16]
[15]Exhibit 4
[16]Report of Ms Jones – DCB 7
30 Ms Jones was critical of the report of Mr Barnes, in that no photographs were taken of the downlights or transformers identified within the debris. She was further critical, as no attempt was made to specifically investigate and obtain the model numbers of all of the downlights throughout the property. She said this ought to have been undertaken, as it may assist in determining whether some of the downlights were manufactured after the date of the installation of the batts. She said that was particularly the case, given the theory that was put to her that there were only four downlights recorded in the property at the time of the installation of the batts, yet the insurance claim form referred to nine downlights being supplied. She said Mr Barnes’ investigation was not carried out in accordance with the National Fire Protection Association Investigation Standards, an American based set of standards, widely internationally accepted as a guide for fire investigations. As a result, she said Mr Barnes’ methodology was flawed.
31 Ms Jones said the aluminium shields could burn and oxidise at between 560 degrees and 650 degrees centigrade. The blow-in insulation could be moved around the roof cavity in the course of the extinguishing of the fire by the MFB. It could be blown all over the ceiling area. Her opinion was predicated upon the assumption that downlights had been installed in the property after the installation of the batts and before the fire. If in fact there had been no work undertaken to the downlights, then her opinion would fall away. She agreed that the inspection by Mr Barnes of the whole of the roof space, taking between 50 minutes to an hour, was a fair time, a long time, to undertake an examination.
Conclusions from the evidence
32 The various experts have all concluded that the cause of the fire at the property on 8 January 2012 was the ignition of some of the blow-in insulation which had come into contact with a low voltage downlight in the ensuite bathroom. It would appear over time the blow-in insulation had become degraded and combustible, and the significant heat emanating from the downlight had caused that combustion to occur.[17]
[17]The evidence of Mr Conway was that the point of ignition was either the downlight, or the fan in the ensuite, but I am satisfied from the report and evidence of Mr Barnes that in fact it was the downlight which caused the ignition. See further the evidence of Mr Conway T19-21, and of Mr Barnes T56-8
33 I accept the evidence of Mr Conway that he was not able to detect any aluminium or other shield when he inspected the property on the morning after the fire, despite looking for aluminium or other types of shields.[18] I further accept the evidence of Mr Barnes that he spent a considerable period, 50 to 60 minutes, in the roof cavity specifically looked for shields and found none. I accept that despite his inspection, no shields were evident anywhere in the roof cavity.[19] He accepted there was a guard amongst the debris, but this was related to the fan.[20] Further, in the course of his inspection, he found other areas of the roof where the blow-in insulations had come into contact with the downlights and transformers.[21] I further accept his evidence that he counted ten downlights within the property, including one in the ensuite and three different types in the hallway.
[18]T35-6
[19]Confirmed by Mr Barnes’ handwritten notes – Exhibit D
[20]T58, 61-2
[21]See photograph 14 at PCB 59
34 It is open, upon the evidence of Mr Barnes and Ms Jones, that at very high temperatures, such as may occur at the source of a fire, aluminium shields are burnt completely and oxidised into a fine white powder. If this occurred, it would be very difficult, after the extinguishing of the fire by the MFB officers, to detect any residue material.
35 In my view, Ms Jones’ criticism of various aspects of the investigation by Mr Barnes, in that he did not comply with proper investigation protocols, was unfair. As he said in evidence, he did not specifically take note and record the model numbers of the various downlights throughout the ceiling, as he was not asked to do so. His initial attendance and investigation was directed to the source and cause of the fire. It was only in mid-June 2014, when the report of Ms Jones was provided to the plaintiff’s solicitors, that there was an indication that the defendant would allege that at the time the batts were installed, there were only four downlights in the property, and by the time of the fire, there were nine or ten, thus leading to a conclusion that another five or six downlights were installed in the property after the batts were installed. In fact, it was only on the last day of the trial, with leave, that the defendant amended his Defence to make such an allegation.
36 I accept the evidence given by the plaintiff who, in my assessment, was a frank and forthright witness. I accept that at no time between when he purchased the property in 2008 and the date of the fire, did he undertake or authorise any works to be carried out to the lights, or arrange the installation of any downlights in the property. I accept his evidence that he was never informed by the agent, nor the tenant, that any such work had been carried out, nor authorised either of them to do so. Further, he said there was no work carried out or authorised by him in the roof cavity generally.[22]
[22]T4-7, T11-13
37 I have reservations about the evidence given by the defendant, Mr Firat Sonmez, and Mr Salim Uysal. Both Mr Uysal and Mr Firat Sonmez said they were able to particularly recall the work done at the property. At that time, the group had undertaken installation of batts in approximately 200 houses over a relatively short period of time. In my view, it is most unlikely they are able to recall this particular property. They were only asked to give evidence in the matter some month or so ago. Mr Firat Sonmez gave evidence that he could not recall attending this particular property.
38 Each relied upon the installation check document[23] which records: “Downlights: 4”. According to their evidence, that meant that there were only four downlights throughout the ceiling of the property, and further, that they would have placed shields around each of them. It was their usual practice to take particular note of the downlights as they were aware they represented a possible fire hazard, particularly in the presence of blow-in insulation. Aside from what is recorded in the installation check, I am satisfied none of them have any independent recollection of the installation of aluminium shields in the property. However, there is no basis upon which they were able to say that it was “certain” that all of the downlights had shields placed over them at the property, other than the fact that that was the usual practice, and that the check list recorded four downlights.
[23]Exhibit 1
39 From all of the expert evidence, there is no issue that an insulation installer in the position of the defendant should, in the course of installation of batts:
·ensure that the blow-in insulation was cleared away from any downlight area; and
·place appropriate shields, such as an aluminium shield, around the area above any downlight.
40 The defendant accepted that a failure to undertake these tasks represented a breach of the implied term of the agreement to carry out the work in a proper and tradesman-like manner, and of the duty of care owed by the defendant to the plaintiff in the circumstances.[24]
[24]See Wyong Shire Council v Shirt [1980] HCA 12 at 47 as to the perception of the magnitude of the risk and the degree of the probability of its occurrence in determining if there was a breach of duty.
Conclusions
41 Mr Scully, for the defendant, submitted that I should accept the evidence of the defendant and his co-workers that:
·The checklist represented a contemporaneous note confirming an inspection was made in the roof of the property, and only four downlights identified.
·The defendant and his co-workers either recalled installing aluminium shields around each downlight; alternatively, given their training, it was their invariable practice to install an aluminium shield around every downlight in a property, including the property.
·It was “certain”, as a result, that there were only four downlights in the roof of the property at the time, and aluminium shields were applied to each one.
42 As stated, I accept the evidence of Mr Barnes that when he inspected the property in 2012, there were 10 downlights located in the ceiling. Mr Scully’s submission is that from this evidence, I should infer the following:
·That because of the reference in the checklist, there were only four downlights in the premises at the time of the installation of the batts.
·Given there were 10 downlights in the premises at the time of the fire, either the plaintiff, or someone on his behalf, had installed an additional six downlights, which had either compromised the integrity of the shields already applied by the defendant to the four existing downlights; alternatively, one of the new downlights was the one in the ensuite where the fire started and the subsequent installation did not include a shield.
·As a result, the blow-in insulation came to be in the vicinity of the downlight in the ensuite which ignited and caused the fire.
43 In my view, I should not draw the inferences Mr Scully seeks. I say that for the following reasons:
(i) The inferences sought to be drawn stand in stark contrast to the evidence of the plaintiff, which I accept, that at no time between when the batts were installed, and the date of the fire, did he undertake, authorise or know of any works in the ceiling of the property, in particular in respect of any lights. While it is possible further downlights were installed without the plaintiff’s knowledge or authorisation, that prospect is extremely remote;
(ii) If four shields were put in place, as the defendant would have it, then some, or the remains of some, would have been detected either in the roof cavity, or amongst the debris. I accept the evidence of Messrs Conway and Barnes that despite specifically searching for such shields, none were found. Even accepting the possibility that one or even two of the shields could have been destroyed if they were situated at the seat of the fire, in my view, there would have been at least two others detected by either Mr Barnes or Mr Conway. The view of Ms Jones, the defendant’s expert, was that if shields had have been placed around the downlights, they, or their remnants, would have been able to be identified after the fire;[25]
[25]T152–154
(iii) At best, the checklist document[26] says there were four downlights present. It makes no statement about whether shields were applied. The defendant can only rely upon what he and his co-workers said was the “usual practice”;
(iv) The fact that I have concluded from the expert evidence that the fire was caused by the ignition of blow-in insulation by the heat generated from the downlight in the ensuite, meant that either there was no shield applied to the downlight, or that it was improperly fitted such as to allow the blow-in material to lay in situ above the downlight.
[26]Exhibit 1
44 For all these reasons, I conclude that the defendant and his co-workers did not affix an aluminium shield to the area above the downlight in the ensuite bathroom where the fire was ignited. While I could not exclude the possibility that one or possibly two shields were placed in the ceiling which were subsequently destroyed in the fire, I am of the view that it is more probable than not that no shields were placed in the ceiling by the defendant and his co-workers. The defendant’s case is that there were four shields placed around the downlights, not one or two.
45 In these circumstances, the plaintiff’s case succeeds. I shall make consequent orders.
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