Cohen and Tierney v Westbury Holdings Pty Ltd
[2012] VCC 11
•25 January 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
GENERAL DIVISION
Case No. CI-09-02831
| VANESSA ROSE COHEN | First Plaintiff |
| and | |
| GUY ALAN TIERNEY | Second Plaintiff |
| v | |
| WESTBURY HOLDINGS PTY LTD (trading as “Air Group Australia”) (ACN 008 706 223) | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12, 13, 14 and 17, 18, 19, 20 and 21 October 2011 | |
DATE OF JUDGMENT: | 25 January 2012 (Revised) | |
CASE MAY BE CITED AS: | Cohen & Tierney v Westbury Holdings Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 11 | |
REASONS FOR JUDGMENT
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SUBJECT – DAMAGES
CATCHWORDS – Product liability – evaporative cooler causing fire damage to home – negligence in manufacture of evaporative cooler – causation.
LEGISLATION CITED –Trade Practices Act 1974 – ss.74D, 75AC and 75B – Wrongs Act 1958
CASES CITED – Jones v Dunkel (1959) 101 CLR 298 – Batchelder & Anor v Holden Ltd [2009] VSC 29; Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 853; Donoghue v Stevenson [1932] AC 562; Minchillo v Ford Motor Company of Australia Ltd [1995] 2 VR 594; Thompson v Johnson and Johnson Pty Ltd [1991] 2 VR 449; Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948; Transport Industries Insurance Co Ltd v Longmuir (19970 1 VR 125.
JUDGMENT – Judgment for the plaintiffs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A J Kelly SC with Mr A D Clements | Ligeti Partners |
| For the Defendant | Mr M W Thompson SC with Ms A J Golding | Moray & Agnew |
HIS HONOUR:
Introduction
1 In September 2004, Vanessa Cohen and Guy Tierney moved into 19 Schooner Bay Drive, Frankston. Their two children, Rachel Tierney and Ryan Tierney, moved in with them.
2 With the promise of a hot summer in 2004, Ms Cohen and Mr Tierney decided to have an evaporative cooler installed at their new home. In November 2004, Dale Air Megastore installed a Cool Breeze D160 to the roof of the house at 19 Schooner Bay Drive, Frankston. The cooler was used approximately thirty or forty times in the following three years.
3 On 11 January 2007, Ms Cohen left for work in Berwick. Prior to leaving the house, she engaged the evaporative cooler at 50 per cent of its capacity. The weather forecast for that day was for a very hot day. It was expected to be approximately 40 degrees centigrade. Her husband, Mr Tierney, was away at Shepparton, engaged in his work at the time. The people remaining in the house when Ms Cohen went to work were Rachel Tierney and her friend, Stacey Lothian.
4 Ms Cohen’s son, Ryan Tierney, had stayed at his maternal grandmother’s premises on the evening of 10 January 2007. He had spent the evening in company with an older cousin at that address and was up to the early hours of the morning. In the afternoon on 11 January 2007, Ryan rode his bike home to 19 Schooner Bay Drive, Frankston. He is not sure what time he arrived home but was there for a short time before someone was knocking on the door. On answering the door, he was advised that the house was on fire. I shall return to his full evidence about the fire later in this judgment.
5 As a result of the fire, the house was damaged.
6 This case is about who pays for the damage.
What is Agreed or Not Disputed by the Parties
(a) Ownership
7 It is not disputed that the owners of the property at 19 Schooner Bay Drive, Frankston on 11 January 2007 were Vanessa Cohen and Guy Tierney, the plaintiffs in this proceeding.[1]
[1]Exhibit F
(b) Quantum of damage
8 The parties agree that the quantum of the damage for the repairs to the house after the fire is $237,271.86, together with interest running from 23 June 2009 (the date of the Writ).
(c) Manufacturer
9 The parties admit that Westbury Holdings Pty Ltd is the proper entity to be sued as the manufacturer of the Cool Breeze D160 model evaporative cooler.
(d) Installation
10 The parties agree that there is no issue about the proper and appropriate installation of the evaporative cooler by Dale Air to the property at 19 Schooner Bay Drive, Frankston.[2]
[2]Exhibit B
Issues to be Decided in this Case
(a) Did the fire start on the balcony of the premises?
11 The defendant led evidence in the hearing to prove that the fire at the premises on 11 January 2007 commenced on the balcony. The defendant does not bear any onus of proving the seat of the fire. If the fire commenced on the balcony, then clearly there is no liability on the defendant in relation to the fire.
(b) Did the fire start in the cooler?
12 The plaintiff’s case is that the fire commenced in the cooler and travelled through the roof space down to the balcony and started the secondary fire in that position.
(c)If the fire commenced in the cooler, was it caused by a defect in the cooler?
13 The plaintiffs bring their case on the basis of a “defect” within the meaning of the Trade Practices Act 1974 (“the Act”), in that the cooler was not reasonably fit for the purpose, or that it was not of merchantable quality. The plaintiffs also bring a claim against the defendant on the basis that the cooler was either negligently designed or manufactured by the defendant.
(d) The burden of proof
14 The plaintiffs have the burden of proof in establishing their claim against the defendant. The defendant has not assumed any burden of proof by alleging that the fire commenced on the balcony.
(e) Expert evidence
15 In this hearing, there were a total of nine expert witnesses who gave evidence about the fire and the cause of the fire. Messrs Andrew McCartney, Colin Booth, William te Wierik and Phillip Glover all attended the fire scene either on the day of the fire or the following day. Dr Peter Hart attended the scene in May of 2007 and obtained samples from the premises. These witnesses had all seen the premises in its damaged condition.
16 The defendant called evidence from Messrs Trevor Rowlands, Donald Walsh, Peter Collins, and Professor Blackburn. Each of these witnesses either attended the premises after the repairs had been competed, or alternatively, were called to give evidence based on “after the event” testing.
17 The Court has to decide and determine which of the evidence from the experts is to be accepted and what conclusions are to be drawn from that evidence.
Did the Fire Commence on the Balcony?
18 The defendant relies upon the observations of lay witnesses in this case to establish the proposition that the fire commenced on the balcony at the rear of the premises. The evidence of the lay witnesses is then interpreted by the experts, Peter Collins and Donald Walsh, in order to provide professional opinion support for the proposition that the fire commenced on the balcony.
19 The first person to make observation of the fire was Mr Craig Wittison. Mr Wittison observed a fire on the balcony at the rear of the house from his premises which is to the north-east of the Cohen premises. In his evidence, he stated:
“I noticed on the rear balcony some smoke initially, and then saw some flames I think as best I can remember.”[3]
[3]Transcript (“T”) 436, L24-26
20 Mr Wittison was then asked:
Q: “What did the fire look like?---
A:Not a lot – it wasn’t a raging inferno, or anything, but it was enough to catch my attention.”[4]
[4]T 437, L23-25
21 Mr Wittison, upon seeing the fire, immediately contacted triple-zero. The transcript of the call to triple-zero is Exhibit 4.
22 Upon attending at the scene, Mr Wittison parked his car at the front of the premises and then knocked on the front door. He was unable to raise anyone in the house and then went down the side of the house in an attempt to find a hose to attack the fire. He only got as far as halfway down the side of the house when he was stopped by a Country Fire Authority (“CFA”) member (Shaun Ryan) and told to go back. He never saw the back of the house where the balcony fire was from the backyard of the plaintiffs’ premises.
23 The defendant’s position relied very heavily on the proposition that Mr Wittison did not see a fire on the roof of the house. In evidence, Mr Wittison was cross-examined about this. He stated as follows:
Q:“The true position is that on the – you can’t remember now whether on the day of the fire you saw the air conditioner or not. You just can’t remember?---
A: No.
Q:You can’t remember whether or not there were flames coming from the air conditioner or the smoke. You just don’t remember whether you could see it?---
A: Yes.”[5]
[5]T 443, L7-12
24 Based on this evidence from Mr Wittison, it is fair to conclude that he did not see any smoke or fire coming from the roof of the house. At the same time, it is clear that he is not saying that there was no fire on the roof in the area of the cooler.
25 The next witness to attend the premises at the time of the fire was Shaun Ryan, a volunteer fire fighter. Mr Ryan gave evidence that he had observed smoke coming from the back of the house.[6] He went to the back of the house in an attempt to fight the fire. He stated that when he got there, the fire was burning “well”.[7] Mr Ryan gave evidence that he saw no other fire.
[6]T 445, L11
[7]T 446, L15
26 The evidence of Shaun Ryan is inconclusive as to whether or not there was a fire on the roof at the time that he attended the premises.
27 It was submitted on behalf of the defendant that the evidence of Ryan Tierney, the son of the plaintiffs, was the most compelling evidence that the fire commenced on the balcony.
28 Ryan Tierney observed that when he entered his sister’s bedroom at the back of the house, the fire was dropping down from the cooler duct in the ceiling. He stated that at that time there was a fire already on the balcony. Ryan Tierney noted that the windows were dark.[8] Ryan Tierney made a statement in respect of this matter to the fire investigators.[9] In his statement, Ryan Tierney stated that he could “kind of smell smoke” when he was on the bed in his parent’s bedroom upstairs. The smoke detector had not been activated prior to Ryan leaving the house to answer the knock at the front door made by Mr Wittison.
[8]T 138-139
[9]Exhibit 5
29 Ryan Tierney did not hear the motor fall from the cooler into the roof space.[10]
[10]T 137
30 The defendant submits that if the fire commenced in the cooler then the noise from the falling motor of the cooler into the roof space and the other plastic residue onto the roof proper would have been noises that Ryan would have noticed and would have preceded any observation of fire on the balcony.
31 I have had the advantage of seeing Ryan Tierney give his evidence and note that at the time of the fire he was fourteen to fifteen years old. He had been up all night with his cousin at his grandmother’s house and had returned home to get some rest. He arrived at his parent’s home some time shortly prior to the fire and was upstairs on his parent’s bed watching television in the front room of the house. He was obviously tired and not really aware of his surroundings. He is suddenly presented with an emergency situation. He had strange people down the side of the house. He observed fire in his sister’s bedroom and on the balcony and smelt smoke. The failure by Ryan Tierney to hear the falling motor or other debris from the cooler is not evidence that would support the proposition that the fire had commenced on the balcony first and travelled back towards the evaporative cooler.
32 The missing piece of evidence for the fire on the balcony theory is an ignition source. The defendant proposed that the ignition source was from a cigarette butt left by Stacey Lothian on the morning of the fire. The proposition was that Stacey had gone out onto the balcony and left an unextinguished cigarette butt on the seat. This theory was first proposed by Mr Peter Collins. He advanced his theory and his investigations of it during the course of the trial. Mr Collins first raised the possibility of a fire commencing on the balcony in his report of 17 March 2011.[11] At that time, he speculated that the fire could have been lit by matches, a candle, a lamp or incense sticks as a source of a naked flame on the balcony.[12] There was no mention of a cigarette at that time.
[11]Exhibit 22, page 26
[12]Exhibit 22, page 27
33 Mr Collins later attended the property on 27 August 2011. This was part of a forensic inspection made by him and other experts on behalf of the defendant.
34 Mr Collins, in examining the premises after it had been repaired, took photographs of the balcony. Whilst on the balcony, he noticed and photographed a packet of cigarettes which was left on the balcony behind a brick. He moved the brick so he could take a better photograph of the cigarette packet. It was at this time that the cigarette theory was born.
35 Mr Collins, in the course of the hearing, had enquiries made about the changes in wind direction. The actual report from the Frankston Meteorology Division was not tendered in evidence in this case but Mr Collins gave evidence of the change in wind activating the smouldering cigarette. This was the first time that the wind change, combined with the smouldering cigarette to create the fire on the balcony had been fully and properly postulated.
36 Mr Collins’ theory, and the defendant’s proposition in this case, rely on a finding that Stacey Lothian had left behind an unextinguished cigarette butt on the seat on the balcony at the rear of the premises.
37 I find that this proposition is purely speculative. There was no evidence to suggest that Stacey Lothian had even been on the balcony at any relevant time.
38 Rachel Tierney was called to give evidence in this case. I found Rachel Tierney to be a reliable and responsible witness. She stated that during the time Stacey Lothian had stayed overnight at the family home, that neither she nor Stacey went out on the balcony.[13] She further stated that Stacey did not smoke any cigarettes on that night or at her house.[14]
[13]T 79, L16-21
[14]T 82, L16-19
39 I accept that Rachel Tierney is a witness of truth and reject the proposition put by Mr Thompson, on behalf of the defendants, that she was deceptive and a most unreliable witness.
40 Mr Thompson, Senior Counsel, on behalf of the defendants, submitted that Stacey Lothian was a “person of interest”. He submitted that as there was no proper explanation for Stacey Lothian not giving evidence in this case, that a Jones v Dunkel[15] inference can be drawn against the plaintiffs. The rule in Jones v Dunkel is that if the party has failed to call a witness that ordinarily would be expected to be called to give evidence, then an inference is drawn against that party that the evidence from the missing witness would not have assisted the case of the party. The rule does not extend to drawing an inference that a fact which is adverse to the interests of the party is proven. In this case, the defendant was seeking to persuade the Court that because Stacey Lothian was not called, then she left a cigarette butt, unextinguished, on a seat on the balcony. The defendant in this case was seeking to use the rule in Jones v Dunkel to convert a conjecture about a cigarette butt being left on the seat on the balcony into a fact. I do not accept that this is a proper application of the rule in Jones v Dunkel.
[15](1959) 101 CLR 298
41 I conclude that based on the evidence, or lack of it, there is no basis for finding that the fire commenced on the balcony. The ignition source does not exist on the evidence, and without the starting point for the fire, there is no seat for the fire on the balcony.
42 Mr Booth, the fire investigator, attended the fire immediately after it was extinguished. He ruled out the verandah/balcony as the area of origin of the fire.[16] Mr Booth gave evidence of his observations and concluded the fire on the balcony was caused by drop down fire from the eaves above the balcony. The evidence given by Mr Booth on this matter was:
[16]T 97, L10-12
“Q:Well that’s very suggestive of a fire coming up from the verandah and burning the springer, isn’t it?
A:No, no - - -
Q:No?
A:to me it looked the opposite way, the fire was in the roof – in the – in the eaves of the roof and it burnt through and dropped
down - - -
Q:Come on, fire burns up much more readily than it burns down, does it - - -?
A:And if it falls down – once it falls down because of the chair underneath it was light fuel – the chair, and once it got on there then the chair would have gone up, and created more damage.”
43 I accept Mr Booth’s expert evidence and observations that the fire did not commence on the balcony of the premises.
44 Mr Phillip Glover, fire investigation officer, examined the premises on 12 January 2007. He gave evidence that the fire on the balcony was started by burning debris dropping from above, as opposed to burning the other way.[17]
[17]T 196, L26-30
45 Mr Glover, after giving evidence of observing the windows of Rachel’s room from the balcony, stated:
“There was some, it looks like a large crack across the glass but it’s actually where the top of the fly wire has melted from the top, top down. The glass was not cracked. Had the fire occurred on the balcony it would’ve been burning for longer on the balcony and I would’ve expected the – the entire balcony to have been impacted, not just one small section. And I would have expected the fire to have entered that bedroom via the – the window and the curtains or any window dressings and we’ve got photographs I think that show those fairly well intact.”[18]
[18]T 197, L13-23
46 I accept Mr Glover examined the balcony before the balcony windows were boarded up.[19] I accept his expert opinion that the fire did not commence on the balcony.
[19]T 207, L3-6
47 In relation to the damage on the balcony, Mr Booth gave evidence that the extent of the damage was due to the fire load created by the chair. He stated as follows:
Q:“The structural damage was confined to the balcony area rather than in the roof space adjacent to the cooler?‑‑‑
A:Yes.
Q:Thank you. This photo indicates, does it not, that the fire had been burning for a considerable time in the area of the balcony?‑‑‑
A:No, I believe it's because of fire load that was there with the chair that was there.”[20]
[20]T 122, L26-31
48 The fact that the defendant has failed to “prove” that the fire commenced on the balcony does not mean the plaintiff wins this case. I will now turn to decide the issue of whether the fire started in the cooler and, if so, whether there was any fault on behalf of the defendant which caused the fire.
Legal Basis for the Claim against the Defendant
(a)The cause of action under the Trade Practices Act 1974
49 The plaintiffs’ claim under the Act relies on the provisions set out in PART V and PART VA. In particular, sections 74B, 74D, 75AC, 75AF and 75AG are the relevant provisions of the Act.
The Section 75AF and Section 75AG Claims(b)
50 It is convenient to commence with the plaintiffs’ claims under s.75AF and s.75AG of the Act. Both of these sections concern liabilities for goods that have a “defect”. The goods in question is the evaporative cooler.
51 Section 75AC deals with the meaning of goods having a defect. The section provides as follows:
“(1) For the purposes of this Part, goods have a defect if their safety is not such as persons generally are entitled to expect.
(2) In determining the extent of the safety of goods, regard is to be given to all relevant circumstances including:
(a) the manner in which, and the purposes for which, they have been marketed; and
(b) their packaging; and
(c) the use of any mark in relation to them; and
(d) any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and
(e) what might reasonably be expected to be done with or in relation to them; and
(f)the time when they were supplied by their manufacturer.
(3) An inference that goods have a defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied.
(4)An inference that goods have a defect is not to be made only because:
(a)there was compliance with a Commonwealth mandatory standard for them; and
(b) that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer.”
52 Section 75AF of the Act provides:
“Liability for defective goods—loss relating to other goods
If:
(a)a corporation, in trade or commerce, supplies goods manufactured by it; and
(b) they have a defect; and
(c) because of the defect, goods of a kind ordinarily acquired for personal, domestic or household use (not being the defective goods) are destroyed or damaged; and
(d) a person who:
(i)so used; or
(ii) intended to so use;
the destroyed or damaged goods, suffers loss as a result of the destruction or damage;
then:
(e) the corporation is liable to compensate the person for the amount of the loss; and
(f) the person may recover that amount by action against the corporation.”
53 Section 75AG of the Act provides:
“Liability for defective goods—loss relating to buildings etc.
If:
(a) a corporation, in trade or commerce, supplies goods manufactured by it; and
(b) they have a defect; and
(c) because of the defect, land, buildings, or fixtures, ordinarily acquired for private use are destroyed or damaged; and
(d) a person who:
(i) so used; or
(ii) intended to so use;
the land, buildings or fixtures, suffers loss as a result of the destruction or damage;
then:
(e)the corporation is liable to compensate the person for the amount of the loss; and
(f) the person may recover that amount by action against the corporation.”
54 Section 75AK of the Act sets out a defence to a claim under the Act. The defendant in this case did not plead or conduct the case based on this provision for a defence.
55 Sections 75AF and s.75AG of the Act set out elements that are to be satisfied in order to impose liability on the manufacturer. The elements are:
(i) the corporation manufactured the goods;
(ii) the corporation supplied goods in trade or commerce;
(iii) the goods have a defect; and
(iv) because of the defect an individual or individuals suffered damage.
56 It is to be noted that the defendant admits that it was the manufacturer of the goods. The defendant admits that the goods were supplied in trade or commerce. The defendant admits that the evaporative cooler fits within the definition of “goods” under the Act. The issue in dispute is whether the evaporative cooler had a defect. The second issue is, if there is a defect, did it cause the damage to the plaintiff’s property.
57 The plaintiffs also claim under the statutory provisions of s.74B and 74D of the Act. Section 74B is the provision relating to fitness for purpose. The section states:
“Actions in respect of unsuitable goods
(1) Where:
(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re‑supply;
(b)a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
(c) the goods are acquired by the consumer for a particular purpose that was, expressly or by implication, made known to the corporation, either directly, or through the person from whom the consumer acquired the goods or a person by whom any antecedent negotiations in connexion with the acquisition of the goods were conducted;
(d) the goods are not reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied; and
(e)the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not reasonably fit for that purpose;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply:
(a) if the goods are not reasonably fit for the purpose referred to in that subsection by reason of:
(i) an act or default of any person (not being the corporation or a servant or agent of the corporation); or
(ii) a cause independent of human control;
occurring after the goods have left the control of the corporation; or
(b) where the circumstances show that the consumer did not rely, or that it was unreasonable for the consumer to rely, on the skill or judgment of the corporation.”
58 The plaintiffs also rely upon the provisions set out in s.74D of the Act. This provision relates to the merchantable quality of the goods. Section 74D of the Act states:
“Actions in respect of goods of unmerchantable quality
(1) Where:
(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re‑supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
(c) the goods are not of merchantable quality; and
(d) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not of merchantable quality;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply:
(a) if the goods are not of merchantable quality by reason of:
(i)an act or default of any person (not being the corporation or a servant or agent of the corporation); or
(ii) a cause independent of human control;
occurring after the goods have left the control of the corporation;
(b) as regards defects specifically drawn to the consumer’s attention before the making of the contract for the supply of the goods to the consumer; or
(c)if the consumer examines the goods before that contract is made, as regards defects that the examination ought to reveal.
(3) Goods of any kind are of merchantable quality within the meaning of this section if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to:
(a) any description applied to the goods by the corporation;
(b)the price received by the corporation for the goods (if relevant); and
(c) all the other relevant circumstances.”
59 It is to be noted at this stage that many of the principles that relate to the defective goods claim set out under s.75AF and s.75AG are apposite to the determination of a claim under s.74B or s.74D.[21]
[21]See Batchelder & Anor v Holden Ltd [2009] VSC 29 at paragraph [19]
60 Section 75AC(i) establishes an objective standard for determining a defect which is based upon what the public at large, not any particular individual is entitled to expect.[22]
[22]See Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at [191] and Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 853 at [186]
(c) Negligence
61 The plaintiffs also bring the claim against the defendant on the basis that it breached its duty of care as manufacturer of the evaporative cooler. The alleged breach of duty by the defendant was based on its failure to properly design and manufacturer the evaporative cooler. The allegations were:
(a) use of Grade P0 plastic capacitors in the assembly of the cooler;
(b)Grade P0 capacitors were the lowest safety grade and known to occasionally fail catastrophically;
(c)Grade P1 and P2 capacitors were available at the time of manufacture and had an in-built safety protection to prevent fires;
(d)Placing the capacitor within the electrical control box;
(e)No ventilation for the electrical control box;
(f)Design should have been P2 capacitor outside of the electrical control box.
62 The law of negligence for liability by manufacturers to consumers is set out in Donoghue v Stevenson[23] and Minchillo v Ford Motor Company of Australia Ltd.[24] The breach of the manufacturer’s duty of care is a question of fact.[25]
[23][1932] AC 562
[24][1995] 2 VR 594 at [618]
[25]Thompson v Johnson and Johnson Pty Ltd [1991] 2 VR 449 at [491]
63 The common law of negligence is modified by s.48 of the Wrongs Act 1958.
64 In submissions, Mr Thompson, on behalf of the defendant, conceded that if the plaintiffs proved a defect in the cooler and causation as to damage then the plaintiffs would succeed on the Trade Practices Act claims without the extra hurdle of proving negligence leading to the loss.[26]
[26]T 797, L7-12
65 I will, in the course of this judgment, make findings in respect of the plaintiffs’ claim in negligence.
The Seat of the Fire
66 On the day of the fire there were three witnesses at the scene prior to the arrival of the fire brigade. Each of the witnesses, Ryan Tierney, Craig Wittison and Sean Ryan, were able to give evidence about their observations of the fire, and the whereabouts at the premises they observed the fire. Their evidence on its own does not lead to a conclusion about the seat of the fire.
67 The Court relies upon the expertise of fire investigators and observations made by them either at the time of the fire or shortly thereafter. Some of the experts have been forced to rely upon photographs of the damaged premises after the fire had been extinguished. It is clear that the witnesses who had the advantage of seeing the fire damaged premises almost immediately after the fire event have an advantage over those experts who rely on photographs and observing the premises after it had been repaired.
(a)Mr Donald Walshe
68 Mr Donald Walsh, a fire investigation consultant, was called to give evidence on behalf of the defendant. Mr Walshe prepared two reports for the purposes of the litigation: the first report is dated 25 July 2011[27] and the second report is dated 5 September 2011.[28]
[27]Exhibit 18
[28]Exhibit 19
69 Mr Walshe has had the advantage of a view and inspection of the premises on 27 August 2011. On that date, he took a number of photographs which became Exhibit 20 in this proceeding.
70 In the two reports referred to, Mr Walshe did not proffer a theory that the fire commenced on the back balcony due to an ignition source of a cigarette butt. In his evidence however, after having sat through the plaintiffs’ case, when he gave evidence he stated as follows:
Q: “What’s your theory? Spontaneous combustion?---
A: No. A cigarette.
Q:Your theory is a cigarette? You know that as an investigator you ought to base your conclusions based on evidence, don’t you?---
A: Yes.
Q:But in this case, for whatever reason, you’re prepared to base your conclusion on speculation aren’t you?---
A: Yes.”[29]
[29]T 570, L13-19
71 The evidence given by Mr Walshe is the first time that he has proposed the cigarette theory for the fire on the balcony.
72 Mr Walshe, in his report of 5 September 2011, which was prepared after his inspection of the premises on 27 August 2011, did not propose the suggestion that a cigarette was the cause of the fire on the balcony. This was even after he had taken a number of photographs, which included photographs of the cigarette packets left on the balcony, which became part of Exhibit 20. Mr Walshe did not give an explanation as to why he had developed the cigarette theory between the time of his report of 5 September 2011 and the time of giving his evidence on 18 October 2011.
73 Mr Walshe also based his theory for the fire commencing on the balcony on the extent of the charring to the areas of the balcony shown in the photographs. Mr Walshe also relied upon the fact that not all of the registers to the cooler had been damaged by fire. Mr Walshe was of the opinion that because the register in Rachel Tierney’s room had been destroyed by fire, it indicated the fire travelled from the back of the house to Rachel’s room and then towards the cooler. The timing of the destruction of the ducting to the cooler is critical in this sense.
74 The observation of Ryan Tierney was that he observed the fire in his sister’s room and then went to the bathroom nearby to get something to assist in extinguishing the fire. When he went into the bathroom, the electric fan had already burnt down in the bathroom.[30] This evidence from Ryan Tierney really indicates the fire was travelling from the bathroom direction towards Rachel’s room and then the balcony. It was clear that by the time Ryan Tierney observed the fire on the balcony, that the fire had burnt all the way along from the cooler towards the balcony. Mr Walshe interpreted Ryan’s evidence and the destruction of the register in Rachel’s room as indicating the fire had commenced on the balcony.
[30]T 139, L7-11
75 Mr Walshe also made comment about the burning chair on the balcony. He stated that the chair was most likely made of polyurethane foam. He said that such foam burns like petrol, it burns very hot and it produces a lot of flame and a lot of black carbon dioxide type smoke.[31] I find that the damage that Mr Walshe is referring to on the balcony can be produced as a result of the actual chair burning with great intensity.
[31]T 552, L1-3
76 Mr Walshe also speaks of the charring around the cooler unit. He stated in his evidence as follows:
“The charring damage around the cooler unit is severe, very severe, and that's indicative of the amount of fuel that was located there. The intensity of the fire that burnt there in that spot caused the severe damage to the roof structure that surrounded the air cooler unit. It's been stated in reports that it's indicative of the fire starting there but this is not the case at all. It's definitely an indication of the intensity of the fire at that point. It does not mean that the fire started there, only that the amount of fuel that was located there burnt so well and burnt the timber structure in that area to such a degree that it was, in fact, the most damaged area of the house.”[32]
[32]T 558, L17-29
77 This observation by Mr Walshe is consistent with the other experts who investigated the fire at the time of the fire.
78 I find the evidence of Mr Walshe does not assist me in concluding that the fire commenced on the rear balcony of the premises. As indicated, his observations of the flammability of the chair and the charring around the cooler are consistent with the experts called by the plaintiff, namely Andrew McCarthy, Colin Booth, William te Wierik and Phillip Glover.
(b) Andrew James McCarthy
79 Andrew James McCarthy was the Senior Station Officer from the Frankston CFA who attended at the premises on the day of the fire, 11 January 2007. Mr McCarthy supervised the fire fighting effort and co-ordinated the CFA appliances and crews. He was a fire officer of some twenty-five years’ experience.
80 After the fire had been extinguished, Mr McCarthy attended the upstairs of the premises and looked over the damage. He determined that he would call in a fire investigator by the name of Colin Booth. When asked what he thought the origin of the fire was, he stated:
“I believe it to be the air conditioner.”[33]
[33]T 155, L1-2
81 Mr McCarthy conceded that he thought the fire located on the balcony was at the front of the house rather than at the back. He was then asked:
Q:“Then finally, you said that you thought the seat of the fire was near the air conditioner. I presume that was because of the extent of charring in that area?---
A: Yes.”[34]
[34]T 157, L1-3
82 It was clear from the evidence of Mr McCarthy that, in his professional opinion, the fire commenced at the area of the air conditioner.
(c) Mr Colin Booth
83 Mr Colin Booth gave evidence in this hearing. Mr Booth was a man of some thirty-one years’ experience as a volunteer fire fighter. He was also a member of the Victorian Association of Fire Investigators. He stated that he had investigated some fifteen hundred to two thousand fires in his career. He was obviously an highly experienced and well trained fire investigator.
84 Mr Booth attended the damaged premises on 11 January 2007. He took photographs of the damage. The photographs became Exhibit E in this proceeding.
85 Mr Booth made an extensive examination of the damaged premises and concluded that the area of origin of the fire was the evaporative cooler and that the points of origin were inside the evaporative cooler. Mr Booth concluded that the ignition source was electrical and inside the evaporative cooler.[35]
[35]Exhibit C at page 10
86 Mr Booth was cross-examined in relation to the fire commencing on the balcony. He gave evidence that a hole had been burnt in the balcony roof. The following exchange then took place:
Q: “The wooden springer has been burnt?---
A: Yeah, yeah, yeah.
Q:Well that's very suggestive of a fire coming up from the verandah and burning the springer, isn't it?‑‑‑
A:No, no ‑ ‑ ‑
Q:No?‑‑‑
A:To me it looked the opposite way, the fire was in the roof - in the - in the eaves of the roof and it burnt through and dropped down ‑ ‑ ‑
Q:Come on, fire burns up much more readily than it burns down, does it ‑ ‑ ‑?‑‑‑
A:And if it falls down - once it falls down because of the chair underneath it was light fuel - the chair, and once it got on there then the chair would have gone up, and created more damage.”[36]
[36]T 117, L15-26
87 I have referred to this part of Mr Booth’s evidence earlier in respect of the fire commencing on the balcony. It is relevant also to the fire commencing in the evaporative cooler.
88 Mr Booth gave evidence that there was deep charring around the area of the cooler unit.[37] Mr Booth stated that when he inspected inside the roof space, the highest charring was around the evaporative cooler.[38] He concluded all the indicators put the fire inside the evaporative cooler.[39] In his evidence, Mr Booth was asked to explain what was the ignition factor. Mr Booth’s evidence was:
“A:Yes, the ignition factor is what started the fire. Put it down as electrical, an arc or something. Couldn’t determine exactly where the arc was but it was an electrical fault within the evaporative cooler, I’d say.
Q:Did you say “within”?
A:Within, yes. Inside it, yes.”[40]
[37]T 122, L18-23
[38]T 96, L1-10
[39]T 96, L23-24
[40]T 101, L23-39
89 Mr Booth prepared a report on his investigation of the fire.[41] In that report he states the “ignition source” for the fire was “electrical inside the evap. Cooler”.[42]
[41]Exhibit D
[42]T 98, L3-4
90 I accept in full Mr Booth’s evidence that the fire started due to an electrical failure within the evaporative cooler.
(d) Mr William te Wierik
91 Mr William te Wierik was a senior compliance officer with Energy Safe Victoria in 2007. He had been an electrical inspector since 1980. His previous employer was the State Electricity Commission of Victoria. Mr te Wierik has extensive experience as a senior compliance officer in electrical safety matters.
92 The fire investigator, Mr Booth, requested that Mr te Wierik come and examine the scene of the fire at 19 Schooner Bay Drive, Frankston. Mr te Wierik attended at the premises on 12 January 2007.[43] Mr te Wierik gave evidence that he made an inspection of the property both outside and inside the house. He stated that he did not get into the roof space because it was unsafe to do so. He said that he had observed the roof cavity through a hole in the ceiling of the upstairs part of the house.
[43]T 159
93 Mr te Wierik was responsible for the preparation of a number of reports as a result of his inspection. The reports became Exhibits P, Q and R in this proceeding. Mr te Wierik also took a number of photographs of the premises and the damage during the course of his inspection. These photographs became Exhibit S.
94 In the document headed “Incident Report Details” (Exhibit Q), Mr te Wierik noted the following conclusions after his inspection:
“House fire. Evaporative cooler appears to have failed resulting in fire confined to upper storey level roof space.
Remnants of evap/cooler failed to reveal true causes of fire, though it appears to have clearly emanated from the same. Refer photos.”
95 It is clear from this reporting and the evidence of Mr te Wierik that he had no doubt that the fire had commenced in the evaporative cooler, although he was unable to say precisely what had caused the fire to start.
96 Mr te Wierik also gave evidence that there were a number of evaporative cooler fires which had occurred in Victoria after the fire at 19 Schooner Bay Drive, Frankston. He stated that Electrical Safety Victoria published a notice for installers of evaporative coolers in 2008 to 2009, warning of the fire risks in respect of evaporative coolers. This notice was Exhibit T in the proceeding.[44]
[44]T 169
97 I accept the evidence of Mr te Wierik that as an experienced electrical compliance officer, that he had made full and proper observations of the fire scene at the plaintiffs’ premises and concluded that the fire had commenced within the evaporative cooler. The precise cause or ignition factor was unable to be determined by Mr te Wierik during the course of his inspection.
(e) Mr Phillip Morris Glover
98 Mr Phillip Glover was engaged by AAMI Insurance as the investigator of the fire in this case. AAMI Insurance were the domestic insurers for the plaintiffs’ premises.
99 Mr Glover gave evidence that he had been a fire investigator since 1989.[45] He had been a fire fighter in New Zealand for thirty-five years. He was then recruited in 2001 to become an officer of the CFA in Victoria. Over the course of his career as a fire investigator, he has investigated some 5,500 fires.[46] Mr Glover is a highly qualified and experienced fire investigator.
[45]T 172
[46]T 178
100 In his evidence, Mr Glover stated that he initially familiarised himself with the property by walking around the building at the premises. He stated that he went out onto the balcony in order to examine the fire that took place at that part of the building.[47] Mr Glover also got up into the ceiling cavity area of the roof where the major part of the fire had occurred. He stated that he was in that area for approximately ten minutes, stating that it was a dangerous and unpleasant place to be.[48]
[47]T 183, L25-30
[48]T 184, L18-21
101 Whilst Mr Glover was in the ceiling space, he took a number of photographs of the damage caused by the fire. Those photographs were Exhibit V. The photographs displayed the level of charring to the roof timbers around the area of the evaporative cooler. Mr Glover gave evidence that the extent of the charring clearly indicated that the fire started at and was most fierce around the evaporative cooler area in the roof.
102 Mr Glover prepared a report dated 11 January 2007. This report was Exhibit U in the proceeding. Mr Glover gave his conclusions as follows:
· “The fire originated within an evaporative cooling unit, located in the roof, in the approximate position as shown on the attached sketch.
· The total destruction of the cooling unit was such that identification of a definitive ignition source was not possible, however, there is clear physical evidence to conclude the ignition source was associated with the cooling unit.
· It may be difficult to determine if the fire occurred as a result of an installation fault or a fault within the unit itself.”
103 Between the time of his report in January 2007 and September 2011, Mr Glover was given the expert reports of Mr Peter Collins, Mr Donald Walshe and Professor Blackburn. Mr Glover stated that having taken into account all of those expert opinions, he maintained his opinion that the fire occurred in the evaporative cooling unit at the premises. Mr Glover gave evidence that identified the following matters to indicate the origin of the fire:
· The area of the greatest amount of fire damage was the near the evaporative cooler position;
· The charring to the surface of the remaining timber structures in the roof closest to the evaporative cooler;
· The direction of fire travel was from the position of the evaporative cooler;
· The greater heat damage to the roofing iron as directly over the evaporative cooler area of the roof.
104 Mr Glover based his opinion that the fire had occurred at the evaporative cooler on his observations in respect of the abovementioned matters.[49]
[49]T 192
105 In evidence, Mr Glover was taken to his report and asked about his conclusion about the ignition source for the fire. His conclusion in his report was stated as:
“The only potential heat source in or near the point of the fire origin was associated with the evaporative cooling unit.”
106 Mr Glover confirmed that opinion in his evidence. He then stated that he had no doubt whatsoever that that was the point of ignition.
107 Mr Glover was challenged about not taking any photographs in respect of the fire on the balcony. He stated in his evidence that after he had examined the whole of the fire scene, he had formed the opinion that due to the fire patterns, the source of the fire was the evaporative cooler. He then stated that he took photographs of the affected areas that displayed the fire pattern. Those photographs became Exhibit V in the proceeding.
108 I accept Mr Glover as a highly qualified and experienced fire investigator. I accept that he has carefully examined the fire scene on the day after the fire. Mr Glover has carefully considered all the available evidence to him on the day after the fire and the expert evidence from the defendant’s experts and he concludes that the fire originated in the evaporative cooling unit and that the ignition source was associated with the cooling unit. As previously mentioned in these reasons, I accept Mr Glover’s opinion that the fire did not commence on the balcony at the rear of the premises.
The Cause of the Fire
(f) Dr Peter Hart
109 Dr Peter Hart was called on behalf of the plaintiffs to give evidence in this proceeding. Dr Hart is an electrical engineer who had also completed the CFA forensic training course for fire investigations. Dr Hart had considerable experience in the investigation of fires involving electrical appliances.[50]
[50]T 233, L10 – T 235, L11
110 Dr Hart was engaged by the solicitors for the plaintiffs to inspect the property and provide a report as to the cause of the fire. Dr Hart made his inspection of the property on 6 May 2007. At the time of his inspection, the property had not been repaired.[51] In the course of his inspection, Dr Hart went into the ceiling space cavity of the home. He took a number of photographs of the damage, both from inside the home and inside the roof cavity. These became Exhibit Y in the proceeding.
[51]T 251, L31 – T 252, L1
111 Dr Hart made an examination of the roof space to determine whether or not there had been any electrical short circuiting. He determined that there was no short circuiting cause for the fire.[52]
[52]T 269, L6 – T 270, L3
112 Dr Hart, from his examination of the scene inside the roof cavity, concluded that the origin of the fire was the evaporative cooler. Dr Hart located the remainder of the evaporative cooler and its component parts in the ceiling. Much to the consternation of Ms Cohen, Dr Hart removed the remainder of the air conditioning unit from the ceiling via a hole that he made in that ceiling. He then took those items back to his workshop for examination.[53]
[53]T 271
113 Dr Hart, in his examination of the evaporative cooler remnants, excluded the blower motor as a cause of the fire. Dr Hart then examined the remnants of the control box. He described the control box as severely pyrolysed.[54] Dr Hart concluded that because of the pyrolysed condition of the control box within the evaporative cooler, that the most fierce burning took place inside the control box of the evaporative cooler. He contrasted the condition of the control box with the remnants of the exterior part of the cooler, which were also made of plastic, but had the appearance of having softened and melted into a solidified mass which ended up on the top part of the ceiling.[55]
[54]Exhibit X, page 27
[55]T 275, L4-13
114 Dr Hart was unable to locate the capacitor within the control box. The capacitor was a P0 grade. The plastic capacitor would not have survived the fire in Dr Hart’s opinion. Dr Hart concluded, by the burn patterns within the evaporative cooler, that the fire had started within the control box.[56] Dr Hart gave evidence about the propensity of polypropylene capacitors to occasionally fail in a catastrophic manner. He stated that this had been well known to electrical engineers over a period of at least a decade.[57]
[56]Exhibit X, page 27
[57]T 422, L23 and 24
115 Dr Hart, in a report dated 16 September 2009 (Exhibit AC), set out the three classes of safety protection for capacitors. The P0 capacitor was the type of capacitor that was installed in the evaporative cooler in the plaintiffs’ home. This capacitor had no fire protection rating. The P1 and P2 capacitors did have a fire rating capacity and Dr Hart was of the opinion that they were the appropriate capacitors to place within the evaporative cooler. The evidence in this case revealed that the defendant now uses P2 capacitors in its evaporative coolers. There is a specific electrical failure protection feature within that capacitor.[58]
[58]T 300, L23-28
116 Dr Hart was also critical of the design feature where the capacitor was contained within the electrical control box. In his opinion, the capacitor should have been placed outside the electrical control box so that it could get greater access to airflow and, hence, cooling capacity. It is to be noted that both of the recommended changes by Dr Hart in relation to the P2 capacitor and locating the capacitor outside the control box have been implemented by the defendant subsequent to this fire.[59]
[59]Exhibit AH
117 On page 38 of Exhibit X, Dr Hart stated his opinion as follows:
“The most likely explanation for the fire is that the motor start capacitor overheated and caught fire. The possible mechanism is that the polypropylene insulator suffered point breakdown that led to localised heating and gas build up. Eventually the capacitor ruptured and the gas ignited leading to fire. The capacitor failure was exacerbated by the extended period of operation at half blower speed that generated harmonic currents and exacerbated heating of the metallised film. Aging of the part may have been a factor. The lack of any cooling airflow is probably also relevant.”
118 Dr Hart has had the advantage of inspecting the scene of the fire and also been able to take away artefacts from the fire and examine them in his workshop. He gave careful and considered evidence in this trial. Dr Hart was cross-examined for approximately two days. I accept that Dr Hart is a reliable, appropriately experienced expert in relation to fire investigation and electrical engineering issues.
119 The critical parts of Dr Hart’s evidence are:
(a)His opinion is that the fire commenced as a result of the breakdown in the capacitor within the electrical control box which was situated within the evaporative cooler at the premises; and
(b)The design that had a P0 capacitor within the electrical control box was not an appropriate design. It is interesting to note that the defendant has subsequently changed its design of the electrical componentry to include the two criticisms Dr Hart had of the original design for the evaporative cooler which was installed at the plaintiffs’ premises.
120 In conclusion, I accept Dr Hart’s evidence that the most likely cause of the fire is an electrical failure within the capacitor which caused a spark resulting in a fire commencing within the electrical control box of the evaporative cooler.
121 Dr Hart is the only witness that descends to this detail of the cause of the fire, both in its origin and the source of ignition. The other experts in relation to the fire that were called to give evidence on behalf of the plaintiff place the source of the fire at the evaporative cooler and within the evaporative cooler, but are unable to state the actual cause of the ignition. I find, on the balance of probabilities, that the fire commenced within the electrical control box of the evaporative cooler and that it was due to the failure of the electrical componentry within that electrical control box. The design of the electrical control box, in particular containing the P0 capacitor, was a cause of the damage to the plaintiffs’ premises.
The Defendant’s Evidence
122 The defendant called two witnesses in respect of the fire. Mr Wittison and Mr Shaun Ryan, a CFA volunteer, gave evidence of their observations and actions on the day of the fire. I have previously dealt with their evidence in respect of the issue of the fire commencing on the balcony. I will not repeat their evidence in this section of my reasons.
123 On behalf of the defendant, Mr Devin McLevie, managing director of the defendant, Ms Joy van Jaarsveldt, quality control manager of the defendant, and Allan Eldridge, serviceman, were all called as lay witnesses on behalf of the defendant.
(a) Mr Devin McLevie
124 Mr McLevie gave evidence that he was operations and production manager of the defendant company in 2004. He is currently the managing director of the defendant. He gave evidence that the control box within the evaporative cooler was of a standard design.[60] He stated that in 2004 the evaporative coolers were fitted with capacitors which were all rated as P0.[61] Mr McLevie stated that in 2005, the defendant started using P1 capacitors in the evaporative coolers.[62] In 2009, the defendant commenced using P2 rated capacitors.[63]
[60]T 452, L18
[61]T 453, L10
[62]T 453, L27-29
[63]T 454, L3
125 In 2009, the European customers of the defendant required ROHS control boxes. These control boxes were of the same design as the earlier control boxes but the materials used in the box were slightly different. He gave evidence that the control boxes had fire retardant properties. It was an ROHS electrical control box that was sent to Advanced Technology Testing and Research (ATTAR) for testing. He gave evidence that these boxes were manufactured to the same design and specifications as those used by his company in 2004.[64]
[64]T 462
126 Mr McLevie gave evidence that tests had been performed on electrical control boxes at the defendant’s premises and he was satisfied that the fire retardant properties of the electrical control box were sufficient to prevent any fire.
127 He conceded, that since 2004, two major changes to the design of the evaporative coolers have been made. The first change is that the capacitors have been located outside the electrical control box. The second change is that the capacitors themselves have been changed from P0 grade to P2 grade with its safety mechanism and rating.
(b) Ms Joy van Jaarsveldt
128 Ms Joy van Jaarsveldt gave evidence on behalf of the defendant. She was identified as being the quality control manager from the period from 2004 until the present time. Ms van Jaarsveldt gave evidence that the changes to the electrical control box over the period of time were the addition of clips to the box to make the lid fit a little bit better and the modification to make the material for the electrical control boxes ROHS compliant. Ms van Jaarsveldt did not produce any documentation setting out the defendant’s record of the precise changes made to the electrical control boxes over the period from 2000 until the current time.
129 Ms van Jaarsveldt gave evidence that she had sent electrical control boxes and capacitors of the same type used in 2004 to the experts for testing. These items were included in the ATTAR testing.[65] The testing performed by ATTAR was on a ROHS compliant electrical control box. Whilst the changes to the electrical control box might be described as minor by Ms van Jaarsveldt, it is difficult to find that the electrical control boxes tested by the experts in 2011 were exactly the same as the electrical control box that was contained within the evaporative cooler installed at the plaintiffs’ premises.
[65]T 491, L29
130 Ms van Jaarsveldt also gave evidence of the record of the company in relation to returned control boxes and warranty claims. She stated that she had never seen a fire damaged electrical control box.[66]
[66]T 492, L16
(c) Mr Allan Robert Eldridge
131 Mr Eldridge was the maintenance and evaporative cooling mechanic that ran a business known as EMS Air situated at 29 Smith Street, West Brunswick. He was a director of that company. He had been operating the business since April of 2000. Mr Eldridge gave evidence that in his capacity as a serviceman for evaporative coolers that approximately one in fifty cases would involve a capacitor failure. Of those capacitor failures, he estimated that approximately half of those failures would be as a result of a rupture of the capacitor.[67]
[67]T 474
132 Mr Eldridge gave evidence that in his time as a serviceman, he had had cause to replace electrical control boxes due to rupture of a capacitor. He stated that he had never seen a control box damaged by explosion. He further stated that he had not seen evidence of a capacitor explosion.[68]
[68]T 476
133 Mr Eldridge also gave evidence of a number of warranty claims that related to evaporative coolers produced by the defendant. Exhibit 9 contained five examples of warranty claims. Each of the warranty claim forms post dated the fire that involved the plaintiffs’ house. The complaints listed in those warranty claim forms noted the house filling with smoke or the smell of burning and then the evaporative cooler not working. Each of those warranty claim forms resulted in the replacement of a capacitor and an MRU. It is clear from the warranty claim forms presented by Mr Eldridge that capacitors, even after the time of the plaintiffs’ fire, were still the cause of smoke and failure. The conclusion to be drawn from that is that the defendant’s evaporative coolers did have failures as a result of the capacitor and that those failures were known to the defendant.
(d) Mr Trevor Rowlands (ATTAR)
134 Mr Trevor Rowlands gave evidence on behalf of the defendant. He was responsible for testing the electrical control box and the vulnerability of the capacitor. The tests performed by Mr Rowlands were in 2011. I find that he gave his evidence in a straightforward and frank manner.
135 Mr Rowlands’ conclusions predominantly were that after deliberately setting the capacitor on fire and then closing it shut within the electrical control box, that the fire would go out. The conclusion to be drawn was that the fire could not be sustained within the electrical control box. The tests performed by Mr Rowlands were filmed and shown during the course of the evidence.
136 Mr Rowlands conceded that there were differences in the circumstances of his testing of the electrical control box and capacitor and that of the circumstances of the plaintiffs’ evaporative cooler on the day of the fire. The differences that were conceded by Mr Rowlands were:
(i)There was no electrical power running to the capacitors at the time of his tests;
(ii)That the tests were performed in a laboratory type situation and not on the roof of a house on a very hot day;
(iii)That the unit had been used on approximately forty occasions over a two-year period. The test capacitor was a brand new capacitor;
(iv)That there was no test of a build up of gas within the capacitor where it may explode within the control box.[69]
[69]T 537 – 539
137 It is also to be noted that the test electrical control box was clamped shut once the fire had been initiated in the capacitor. The evidence in relation to the electrical control box fitted within the plaintiffs’ evaporative cooler was that it was not clamped in the same manner. This would necessarily be a difference to how fire may escape from the electrical control box into the main part of the evaporative cooler.
138 In conclusion, the tests by ATTAR, whilst properly conducted in a laboratory type situation, are not a direct example of the conditions faced by the evaporative cooler on the top of the plaintiffs’ home on the day of the fire. It was also unclear from the totality of the evidence whether the electrical control box actually tested by ATTAR was precisely of the same design and material make up as the one fitted to the plaintiffs’ evaporative cooler prior to the fire. For these reasons, I am not satisfied that the testing performed by ATTAR and the results obtained exclude the escape of a fire source from the electrical control box within the evaporative cooler.
(e) Mr Donald Walshe
139 Mr Walshe gave evidence on behalf of the defendant. He stated that he was a consultant expert on fire cause and determination of the commencement of fires. He also stated that he ran a small fire training course. He gave evidence that he had thirty years’ service with the New South Wales fire brigades. He is obviously a person of great expertise and experience. Mr Walshe attended at the plaintiffs’ premises on 22 August 2011. This inspection was well after all the repairs had been made to the plaintiffs’ premises. Mr Walshe was limited to photographic evidence and commenting on reports prepared by other experts who had seen the house in its damaged condition.
140 The thrust of Mr Walshe’s evidence was that the fire had commenced on the balcony at the rear of the premises. I have previously dealt with his evidence in respect of that topic earlier in these reasons. I will not repeat them here.
141 I find that Mr Walshe’s evidence is compromised by the fact that he was unable to make an inspection and analysis of the scene of the fire in its damaged state. I reject his proposition that the source of the fire and the ignition point of the fire was a cigarette on a polypropylene seat which was on the balcony at the rear of the premises.
(f) Professor Trevor Blackburn
142 Professor Trevor Blackburn gave evidence that he was an Associate Professor at the University of New South Wales. He was an electrical engineer. Professor Blackburn was a highly qualified and experienced person in relation to electrical issues including those causing fire.
143 Professor Blackburn limited his evidence to an examination of the cause and source of the fire around the evaporative cooling unit. The basic premise under which Professor Blackburn was operating was that, in his opinion, there would not be sufficient gas build up from the capacitor to blow the lid from the electrical control box and that the gases emitted from the capacitor were not flammable to the extent of causing an explosion.[70]
[70]T 333
144 The two premises that Professor Blackburn was operating on do not fit with the evidence in this case. Mr Eldridge, the service mechanic, had seen instances of flammability and smoke caused by the failure of a capacitor. The warranty claim forms in Exhibit 9 are examples that have been drawn from the records of the defendant. The evidence of Dr Hart and Mr Rowlands also, if accepted, are examples of previous capacitor failures and fires.
145 Professor Blackburn was provided with a sample electrical control box and a number of the expert reports prepared by witnesses for the plaintiffs and the defendant in this case. The predominant basis for his opinion that the fire could not have occurred within the electrical control box and then escape from it relies heavily on the opinions expressed by other experts and their observations. It is not a situation where Professor Blackburn has had the advantage of examining the artefacts taken from the fire by Dr Hart. He has also not had the advantage of observing the fire damage in situ immediately after the fire had occurred.
146 I find that his base premise that the capacitors cannot explode or cause fire is not substantiated on the facts of this case. There is sufficient evidence in this case to indicate that capacitors do fail and can cause fire. Consequently, I do not accept the opinion of Professor Blackburn.
(g) Mr Peter Collins
147 Mr Peter Collins was called on behalf of the defendant as an expert in fire investigation and cause. Mr Collins prepared a number of reports in respect of the circumstances of the fire at the plaintiffs’ premises.
148 In the course of his evidence, it became clear that Mr Collins was originally engaged by the solicitors for the defendant in respect of evaporative cooler fires and on what Mr Collins described as “an insurance issue”. Mr Collins prepared a number of memoranda and reports in respect of that “insurance issue”. These reports and memoranda became Exhibits G, H, J and L.
149 In summary, the abovementioned report and memoranda had the conclusions:
(i)that the fire had commenced in the evaporative cooler at the plaintiffs’ premises;
(ii)that the capacitor P0 was unsafe;
(iii)that the design of the cooler was defective and he agreed that the capacitors should have been located outside the electrical control box.
150 In essence, he agreed with the points made by Dr Hart. It is to be noted that these memoranda and reports are dated between 15 June 2010 and an unknown dated in August 2010. It was clear from a reading of these reports and his conclusions that Mr Collins, as at August 2010, was of the view that the design of the evaporative cooler had major defects.
151 During the course of his evidence, Mr Collins also tendered reports dated 17 March 2011, 13 July 2011, 12 August 2011 and memoranda dated 24 August 2011 and 1 September 2011. These reports and memoranda were Exhibits 21 through to 26. In the later set of reports, Mr Collins nominated that the fire commenced on the balcony at the rear of the plaintiffs’ premises. I have previously dealt with Mr Collins’ reasoning in respect of the balcony fire. I have dismissed his theory in relation to that. I will not repeat an analysis of those reasons here.
152 In cross-examination, Mr Collins was taken to his earlier reports in 2010. He agreed with the proposition that you can have an electrical cause to a fire that shows no arcing.[71] Mr Collins agreed that he probably had told his instructing solicitor that the capacitor housing is flammable.[72] He agreed that in May of 2010, that a better quality capacitor was always best to be used.[73] In summary, Mr Collins, up until August of 2010, fully agreed with the findings of Dr Hart and his conclusions.
[71]T 684
[72]T 693
[73]T 694
153 It is not until his report dated 17 March 2011 that Mr Collins arrives at a completely different opinion for the cause and seat of the fire at the plaintiffs’ premises. He did not provide any plausible explanation as to why his opinion had changed to such a dramatic degree. I reject Mr Collins’ evidence in respect of the fire in the balcony theory. If anything, the weight of his evidence which part adopted his original and earlier opinions about the fire support the plaintiffs’ claim in this case.
The Burden of Proof
154 The plaintiffs allege that the evaporative cooler was defective and that the defendant had breached the condition of merchantability. The plaintiffs say that the defect in the evaporative cooler was the cause of the damage which occurred to their home on 11 January 2007.
155 The plaintiffs carry the burden of proving all the elements of their case. The standard of proof is on the balance of probabilities.
156 The defendant, through its counsel, has urged the appropriate approach for the Court is to follow was that set out in the authority of Rhesa Shipping Co SA v Edmunds (1985) 1 WLR at 948. In particular, the defendant relied on the passage which appears at page 951 where Lord Brandon of Oakbrook, who delivered the leading speech, said:
“The question, and the sole question, which your Lordships have to decide is whether, on the basis of those primary findings of fact, Bingham J and the Court of Appeal were justified in drawing the inference that the ship was, on the balance of probabilities, lost by perils of the sea.
In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on the balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they choose to do so, there is no obligation on them to prove, even on the balance of probabilities, the truth of their alternative case.
The second matter is that it is always open to a court, even after the kind of prolonged enquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship’s loss, even on a balance of probabilities, remains in doubt, with the consequence that the ship owners have failed to discharge the burden of proof which lay upon them.”
(Emphasis added)
157 The defendant relies on this authority to propose that if the Court does not accept the theory of the fire commencing on the balcony at the rear of the plaintiffs’ premises, then it does not mean that the plaintiff wins. I accept that that proposition is correct and that the plaintiff carries the onus of proving its own case, which is that the fire commenced within the evaporative cooler; that the fire in the evaporative cooler was caused by a defect in the cooler itself. Alternatively, the fire was caused by a design fault which resulted in the fire occurring.
158 This is a case where there is no direct evidence, nor could there be, of an observation of the capacitor starting on fire and then burning into the electrical control box and then into the evaporative cooler. Much of the evidence relating to the fire, and the circumstances surrounding it, is circumstantial.
159 I rely upon the proposition put by Winneke P in Transport Industries Insurance Co Ltd v Longmuir,[74] where it was stated a judge must not deny himself –
“ … the full benefit of the evidentiary impact of the combined weight of all the intermediary facts when considered as a united force.”
[74](1997) 1 VR 125 at 128
160 The essence of that proposition is that each piece of evidence does not have to be established on the balance of probabilities but, in establishing each element of the cause of action, the plaintiff must establish its case on the balance of probabilities. It is the totality of the evidence which must be considered in answering the question whether the plaintiff has established its case on the balance of probabilities.
161 I accept the expert evidence of Messrs McCartney, Booth, te Wierik, Glover and Dr Hart as the experts who had the advantage of examining the fire scene either immediately after the fire, or whilst the premises was still in a damaged condition. Each of those experts was in a position to make a full and proper examination of the fire scene and form views and an expert opinion based on their observations.
162 It is clear from the evidence of Messrs McCartney, Booth, te Wierik and Glover that the fire commenced in or around the evaporative cooler. Dr Hart, after examining the artefacts that he recovered from the scene of the fire, has formed the professional and expert opinion that the fire commenced as a result of the failure of the capacitor within the electrical control box of the evaporative cooler. It is clear from all of the evidence that electrical arcing can provide an ignition source in the setting of the design and placement of the capacitor within the electrical control box of the evaporative cooler. Mr Collins’ initial opinions in respect of the cause and source of the fire were exactly the same as Dr Hart’s. Mr Collins has resiled from that position but has not provided sufficient explanation as to why he has changed his view.
163 In conclusion, I find that the fire at the plaintiffs’ premises on 11 January 2007 was caused by a defect in the evaporative cooler. That defect caused the fire to damage the house at the plaintiffs’ premises.
164 I also accept Dr Hart’s evidence and opinion that the design fault inherent in having the capacitor of a P0 grade housed within the electrical control box was a defect and design fault. I accept that in electrical engineering circles it was well known in and before 2004 that P0 capacitors have the potential to fail. The subsequent actions of the defendant in this case in changing the rating of the capacitors from P0 to P2, the location of the capacitors from within the electrical control box to be outside of the electrical control box and contained within its own protective casing is confirmation that the defendant accepts that the original design was defective in nature. The evidence is that there had been other evaporative cooler fires in, around and after the fire which occurred at the plaintiffs’ premises. The defendant, as a manufacturer of evaporative coolers, would or should have known of the danger of fire due to a defect in the cooler.
165 I conclude that the plaintiffs succeed in their claim on the Trade Practices cause of action. They also succeed on their claim for negligence based on the defective design of the evaporative cooler.
166 I order that the defendant pay the plaintiff damages in the sum of $237,271.86.
167 I will hear the parties on calculation of interest on the judgment and the question of costs.
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