Australian Char Pty Ltd v Wood

[2001] NSWCA 437

CITATION:	Australian Char Pty Ltd v Wood and Ors [2001] NSWCA 437
FILE NUMBER(S):	CA 41058/00
HEARING DATE(S):	26 November 2001
JUDGMENT DATE:	26 November 2001
PARTIES :	Australian Char Pty Ltd (Appellant) Elizabeth Jayne Wood (First Respondent) Coonara International Pty Ltd (Second Respondent) Paul Hutchinson (Third Respondent)
JUDGMENT OF:	Giles JA at 27; Heydon JA at 1; Foster AJA at 28

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 299/98
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	Mr L M Morris QC/Mr D J Russell (Appellant) Mr M J Joseph SC/Mr P J Frame (First Respondent) Mr P J O'Connor (Second Respondent)
SOLICITORS:	Moray & Agnew (Appellant) Lamrocks(First Respondent) Windeyer Dibbs (Second Respondent) Abbott Tout (Third Respondent)
CASES CITED:	Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Wyong Shire Council v Shirt (1980) 146 CLR 40
DECISION:	See para 29

CA 41058/00
DC 299/98
GILES JA
HEYDON JA
FOSTER AJA


26 November 2001

AUSTRALIAN CHAR PTY LTD v WOOD & Ors.

Judgment

As filed this was an appeal against a verdict and judgment for the plaintiff below in the sum of $230,020.98.

Background

2 The plaintiff was injured on 9 August 1996 while attempting to light a combustion stove manufactured by the first defendant. She was using rolled up paper, wood and a form of fire starter imported by the third defendant. The trial judge dismissed the proceedings against the second defendant (the landlord of the premises). He found that the third defendant should have foreseen the likelihood of an explosion when the fire starter ignited in the manner in which the fire had been lit, that it should have warned users of this risk, that its failure to do so was a breach of its duty of care, and that this caused the plaintiff injury. He reached similar conclusions in relation to the first defendant. He rejected a contention that the plaintiff had been guilty of contributory negligence. He apportioned liability as between the first and third defendants in the proportions 25% and 75%.

3 In the events which have happened, the subject matter of the appeal has concerned a dispute between the first and third defendants as to the apportionment of responsibility between them.

Findings

4 The trial judge quoted the plaintiff as saying in her evidence:

“I scrunched up paper like I normally do, put kindling on top of it, just put the heat bead in it or the fire starter in it and just lit the paper like I normally do and I went away. I came back. I noticed that it wasn’t taking so I put more paper in and saw something in the local paper – and that’s when it blew up.”
She also said that after she put more paper in, she pushed the door closed but did not lock it. She could not recall whether it was ajar, but said that the door was not sufficiently heavy to remain in the position to which it had been pushed. She said she did not read the instructions which came with the heater, Exhibit H.

5 The trial judge did not say so in terms, but he evidently accepted the plaintiff’s evidence.

6 The trial judge referred to reports from Professor Sergeant and Dr Adams. He said:

“these reports indicated that the fire starters were made of paraffin wax and that this wax would vaporise if not directly ignited. The plaintiff did not directly ignite the fire starter but lit the paper. I find more likely than not that the fire starter vaporised, that the door of the combustion stove was slightly ajar and that the vaporised gases exploded. I find that the plaintiff could not have foreseen such a result and was seriously injured as a consequence of the blast described as an explosion. However, I find that the first and third defendants could have foreseen such a risk.”

7 He then quoted two passages from Dr Adams’ report.

8 The first was:

“This instruction is particularly important in relation to the use of a combustion stove such as the Coonara with its large enclosed combustion space since on none of the commercially available packs of fire lighters which I inspected during the course of preparing this report is there any warning about the possibility of vaporisation of a fire starter if used in a confined or enclosed space without the fire starter having itself been ignited.”

9 The second was:

“Since the Coonara brochure specifically recommends the use of a fire starter or paper I believe that it would have been prudent for a prominent warning to have been included in the brochure, if not on the door of the stove itself about the absolute necessity of ensuring that if a fire lighter bead was to be used it, and not paper or other kindling, should be lit and burning before the door was closed. With reference to warnings in general and particularly warnings about a potentially very hazardous circumstance it is evident from the literature on warnings that any warning should be placed directly proximate to the location and object to which it is relevant. For example, it is common to encounter a specific warning about the safe use of microwave ovens printed on or immediately within the doorway so that they are immediately and obviously in front of the person as the appliance is used. While it may slightly detract from the aesthetics of the stove such as the Coonara to incorporate a small warning plate on or immediately below the door (perhaps adjacent to the brand label clearly visible affixed beneath the right hand end of the door) it would have been a simple and extremely prudent precaution to affix a small plate advising ‘Fire starters must be burning freely before door is closed’. I am also firmly of the belief that it is insufficient to give instructions of that type simply in an instruction book. Apart from knowing that the instruction in the instruction book is not particularly clear and certainly gives no direct warning about the possibility of a fire lighter vaporising and creating an explosive mixture in the stove if not alight and burning before the door is closed, there is a strong possibility that an instruction booklet, after having been read by the initial purchaser will be placed (or lost) in some location where it is not readily accessible to subsequent users of the stove. Consequently users who have not had access to the instruction booklet and who have not received specific advice or instructions from the owner of the stove may in all innocence and ignorance use a procedure such as that used by Mrs Wood placing themselves at significant risk of injury.”

10 The trial judge then said:

“A reasonable person in the position of the first defendant would, I find, have done more than merely produce exhibit H. The reasonable person in the position of the first defendant would have had the foresight in relation to the question of warnings referred to by Dr Adams in his report. This would have been a reasonable response to the foreseeable risk to have placed a warning on the combustion stove about the risk of explosion in the circumstances referred to. The first defendant did not do so and I am satisfied that there was therefore a breach of the duty owed to the plaintiff. I find that this was one cause of the plaintiff’s injuries.”

11 The trial judge then turned to the third defendant. He quoted the following part of Professor Sergeant’s report:

“The explosion would have been unlikely to happen if the fire lighter had been ignited directly and would not have happened if the fire box door had been open.”

12 The trial judge then said:

“I am satisfied from that opinion that this was a matter which should have been foreseen by the third defendant and that a proper warning in relation thereto should have been given in the packet in which the fire starter came. The packet which was tendered as exhibit C did not contain such a warning.”

13 Having referred to Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, he said:

“The reasonable man in the position of the third defendant would have foreseen the likelihood of an explosion in a situation where the fire starter was not ignited in the fashion referred to by Professor Sergent and should have warned those using it of that risk. In failing to do so was a breach of their duty of care which was a cause of the injury suffered by the plaintiff.”

14 He rejected contributory negligence in the following terms:

“It was suggested obliquely that there might have been some form of contributory negligence in this case but as I have already found the plaintiff could not and should not have foreseen the risk of the combustion stove exploding, particularly in the absence of any warning either from the manufacturer of the stove or the manufacturer of the fire lighters. I do not find that there was anything that the plaintiff did or omitted to do which was in any way a relevant cause of the injuries that she unfortunately suffered as a consequence of the explosion.”

The settlement

15 The court was asked to consider the apportionment issue against the following background. When the appeal was called on for hearing, the parties indicated that as against the plaintiff, the first defendant and the third defendant no longer challenged the trial judge’s reasoning. It was agreed that there should be a verdict recorded for the plaintiff, albeit in a somewhat smaller amount than that which the trial judge had arrived at. Consent orders were prepared and made.

Decision

16 To seek to assess whether the trial judge’s reasoning on apportionment was appellably erroneous, in circumstances where this Court is not asked to consider the correctness of the trial judge’s reasoning on liability, is to embark on an entirely artificial process. It is not entirely clear what the trial judge’s reasoning was on causation for though he stated distinctly that he found causation as against the first and third defendants, he did not say precisely why; nor is it clear precisely what warnings the trial judge considered should have appeared on either the stove supplied by the first defendant, or the packaging surrounding the third defendant’s product.

17 In Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492, the High Court in a joint judgment of Gibbs CJ, Mason, Wilson, Brennan and Deane JJ said at 494:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

18 That was a decision in relation to the apportionment based on the contributory negligence of a plaintiff. The principles stated by their Honours is equally applicable where the task is as here, an apportionment between two defendants of responsibility for their respective shares of damage.

19 It follows from that passage that what must be analysed is a comparison of the culpability of each defendant and the respective causal significance of the acts of each defendant in relation to the happening of the injury. Since the trial judge’s analysis is not clear on these issues, it follows that no reason has been exposed for interfering with his apportionment. While the appellant might have been able to argue that the trial judge stated no reasons, or no satisfactory reasons for his conclusions, as distinct from merely stating erroneous ones, the attack was not put on that basis.

20 The argument of the appellant, for the clarity of which the court is indebted, to Mr L M Morris QC, turned on three points.

21 The first point was that while the injury to this particular plaintiff appears to have resulted from the use by her of the third defendant’s fire lighters, similar injuries were capable of being caused by the use of the first defendant’s stove as a result of the use of, for example, painted wood as fuel, or the use of green wood, or the use of other forms of wood that contained inflammatory matter.

22 A second factual matter to which the appellant appealed was that fire lighters can be used in a variety of applications. In effect the appellant submitted that a person, like the first defendant, who encouraged the use of fire lighters in a confined space, had the primary obligation to give a proper warning in relation to how they should be used in that space. That is, it was for the first defendant to warn on its stove at the last available moment at which injury could have been avoided, rather than for the third defendant to have the primary responsibility for warning on its packaging. There were varying causes of possible injury, said the appellant, not all of which people in its position could warn against but all of which a stove manufacturer could warn against.

23 A third point made by the appellant was that it was not in a position to give a warning which would have the required quality of permanency. It could warn by the use of its packaging or possibly by the use of insertions into the package containing its goods but it was possible the packaging might be removed or destroyed. It was possible that even if the packaging was not removed, it might be stored in a part of the house where the warning was not easily visible. In short, the appellant submitted that because of the particular problems affecting it, it was erroneous on the part of the primary judge to have left it with the major responsibility for the plaintiff’s verdict.

24 Whether or not those arguments which, to some extent, have the character of lost opportunity arguments are sound, is an interesting question. The problem is that the arguments focus on questions of causation. They are arguments which are difficult to assess if the trial judge’s approach to causation cannot be analysed on the face of the reasons for judgment.

25 As indicated earlier, in view of the lack of reasons, the precise approach of the trial judge is not clear. In all the circumstances, it is not appropriate for this Court to embark upon a causation inquiry of its own.

Orders

26 I would propose the following orders additional to those pronounced by the presiding judge earlier. As between the appellant and the second respondent, the appeal and the cross appeal are dismissed. The appellant is to pay the second respondent’s costs in relation to the issue of apportionment.

27 GILES JA: I agree.

28 FOSTER AJA: I agree.

1. As between the appellant and the first and second respondents appeal and cross appeal allowed.

2. Set aside the verdict and judgment for the first respondent against the appellant and second respondent for $230,020.98.

3. In lieu thereof verdict and judgment for the first respondent against the appellant and the second respondent for $225,000.

4. No order as between the appellant and the first and second respondent varying the order made as to the costs of the trial.

5. Order the appellant and the second respondent to pay the first respondent’s costs of the appeal.

6. Note agreement of the appellant and the first and second respondents that interest will not commence to run on the verdict and judgment until 28 days from today.

7. As between the appellant and the third respondent appeal dismissed with no order as to the costs of the appeal.

8. As between the appellant and the second respondent the appeal and cross appeal dismissed.

9. Appellant is to pay the second respondent’s costs in relation to the issue of apportionment.

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