Glenmont Investments Pty Ltd v O'Loughlin & Ors No. Scgrg-91-2240 Judgment No. S494

[1999] SASC 494

GLENMONT INVESTMENTS PTY LTD v O'LOUGHLIN & ORS
[1999] SASC 494

MILLHOUSE J

BACKGROUND

1 Tyrannosaurus Rex was a marvellous contraption: total weight 18 tonnes, length about 30 metres and height 12 metres: twice the size we humans believe the prehistoric creature to have been but a wonderful representation of one of them, breathing, growling and moving: life-like as we imagine dinosaurs:  unique.   All built using a small model from the British Museum: made up from thousands of parts, activated by hydraulics and controlled by many mini computers.
2 T-Rex was the idea and creation of Mr Allan Edwin Limb of Launceston.  Limb is a fitter and turner by trade but in his early days he also was into drag racing, spray painting, panel beating and repairing damaged motorcars.  He worked hard and saved his money.  In the late 1970s he went into the business of sealing, of bituminising roads.  His company is Tarmak Pty Ltd.  He is still in the same business.  It is an enterprise in Launceston employing 12-20 employees.
3 At Christmas 1979 Limb, then in his late 20s and unmarried, had the idea of building a dinosaur.  He used as a guide, a model, less than 30 cms long and 12 cms high, which he obtained from the British Museum.
4 T-Rex was built in the yard of the Tarmak premises.  Limb designed it himself.  Disastrously, the plans were stolen from his car.  Beginning in August 1980, building took him about four years.   For Limb it was meant to be a spare time project, a hobby, but it became a consuming passion.  In times when not road-making - mainly in winter - his men worked with him on the project.   Mr Michael Robin Clayton, the Tarmak office manager said that sometimes he would arrive at work in the morning to find Limb asleep on a mattress: he had worked on the dinosaur through the night.
5 I should describe the skin in some detail for it was its skin which gave T-Rex its life-like appearance.  I may describe it best by reference to the evidence of Mr Chester George Bullock, structural engineer of Launceston, who saw the creature being built.  Examination-in-chief (by Mr Gregory Holland with Mr Timothy Anderson QC for the plaintiff):-
"Q.  Did you ever observe the process of putting the skin on any part of     the dinosaur.
A.   Yes.
Q.   How would you describe that process.
A.   Difficult.
Q.   Why was it difficult.
A.   Difficult from the point of view that it was not like placing a skin on a mattress, if you like.
HIS HONOUR
Q.   A skin on a.
A.   A skin on a mattress.
Q.   Mattress.
A.   Or something like that.  It is - it wasn't just a covering.  It was a skin, a coating that had to be lifelike and move in accordance with what children would expect when they were viewing it, and also withstand the abuse, if you like, that it might get when everything is moving.  Like, the tail swings through just about every movement that you could imagine, and it had to stay in its lifelike mode.  Ripples could not be allowed.  It still had to stay in that, and I was amazed by the amount of wires, springs, and weights, that were needed to make sure that it stayed in its lifelike position.
XN. 
Q.   From your observations, was there some trial and error with affixing the skin.
A.   Very much so.  It is a thing that I would find hard to design."
6 Cross-examination by Mr Michael Bell for the Royal Agricultural and Horticultural Society:-
"Q.  ... for how many hours were you there observing the skin being put on.
  A. Most probably the same sort of hours, I can't give it to you in hours.  I am aware of the amount of hours that it did take.   Again, I am guided by that and, again, believe me, you had to be there to see how difficult it was to make that skin work.  I used the analogy of a mattress,  I don't know that that was a good one earlier.  In getting the skin to work on this monster, it is not like putting a wet suit on someone and fitting it, because - it is totally different.  I will labour this point, because when it does move, if you got inside this thing and saw the wires and the springs and the amount of times that a piece of skin had to be changed.  If you look at a photograph of the tail, that tail has to stay as if the scales don't stretch apart.  Imagine if we had scales together when it is in straight and then we twisted the tail and you saw a bit of steel or you see a bit of material without the scale.  Well, Alan was a perfectionist on this and he wanted a kid to be able to stand six metres away and not say 'Come on, that's false, you can see its inside'.  It was a very difficult task to do and I know that Alan spent a lot of time and his workers ensuring that the concertina effect remained homogeneous."
7 The business of Tarmak ran down as a result of Limb's enthusiasm and hard work.  Eventually just as T-Rex was being finished the Westpac Bank put in a receiver.  The company was in receivership for about 12 months, covering the time of the events which I shall recount.
8 When almost finished the dinosaur was moved to the Launceston Show Grounds.  It (no-one I asked was quite sure of the sex - so it must be "it") had outgrown the yard at Tarmak.  People could see it at the Show Grounds but not as a formal exhibit. It did not yet move.
9 Limb would have liked to have set T-Rex up in Launceston for exhibition but the local authorities put too many obstacles in his way and he was obliged to look to the Mainland.  He decided to go to Surfers Paradise or thereabouts, in Queensland.   He took out a lease on land and set up Pre-Historic Park.  He was strapped for cash and badly needed capital.  Mr and Mrs Leslie Jetson, local people in Queensland were interested in putting in money.  They actually contributed $100,000.  That was in 1984.  By then Tarmak, the nominal owner of the dinosaur, was in receivership.  Had the Jetsons simply paid in their money to Tarmak much of it would have been swallowed up to pay the company debts.  They decided, on legal advice, each party being separately advised, to transfer ownership to another company, now the plaintiff in this action, Glenmont Investments Pty Ltd.
10 The arrangement was a complicated one, Glenmont being the trustee for the Tarmak/Jetson Unit Trust.  The late Mr WPM Zeeman, solicitor, of Launceston (later a member of the bench of the Supreme Court of Tasmania until his lamented early death) advised Tarmak.
11 The hydraulics in the dinosaur - worth more than $60,000 - were leased from Australian Guarantee Corporation.  As expected, in the lease agreements there were all sorts of injunctions against moving the creature out of Tasmania,  changing ownership and so on.  That the hydraulics were owned by AGC has become of significance during the hearing because of a point taken by Mr Darrell Trim QC with Mr Russel Harms for the second and third defendants.  I shall deal with it later.
12 Pre-Historic Park failed financially.  T-Rex was on exhibition only for about six weeks.  I suspect the creature was still having teething problems but Limb and Jetson put the failure down to the insistence of the local and State authorities that a great deal of money be spent on the site, putting in an access road and so on.  The defendants on the other hand, both in cross-examination of Limb and of Jetson and in final submissions, suggested that T-Rex simply was not a draw-card.  I must say that having had two big photographs, exhibits, staring at me in the courtroom during the eleven week hearing and having seen several times the promotional video I find that difficult to accept.  I cannot believe it would not be a great attraction to the public.
13 Whatever the reasons for failure Limb and Jetson were left with debts to pay.  Several creditors took proceedings.  Jetson personally paid out what was due under the lease of the land.

1. For a time the dinosaur was put in storage until it was brought down to Adelaide for the Royal Adelaide Show 1985.  Limb had thought of exhibiting at the Brisbane Show but nothing came of that.
   15 While T-Rex was at Pre-Historic Park some entrepreneurs from Sydney came to have a look.  They were planning publicity for a cinema complex opening in the Sydney CBD.   Their idea was that T-Rex would walk along George St.  [Actually T-Rex could not walk: it was mounted on a motor car chassis from which it was controlled.  However the nether parts could be sufficiently concealed so as to give the impression that it was walking.]  The walk would draw attention to the cinema complex.  It was a promising idea but there were again difficulties with the local authorities: they would have needed to close too many streets.  Instead the film people had a black tie reception.  A very dull substitute!  The fee being talked of for T-Rex was $50,000.
   THE ROYAL ADELAIDE SHOW

16 T-Rex' next (and last) public appearance was at the Royal Adelaide Show,  30 August to 7 September 1985. 
17 In January 1985, Limb approached the Royal Agricultural and Horticultural Society of South Australia.  He must have been sent a form, "Application for Exhibition Site".  I say "must have been" because I have seen - it is an exhibit - a completed (but unsigned) application.  Mr Clayton believes that he must have sent it off from Launceston to the Show and that he had a hand in filling it in.  Mr Paul Anderson, then known as "Manager, Commercial Exhibits" for the Royal Agricultural and Horticultural Society denied any recollection of ever having seen it.  Yet the completed form seems to have come, via the Coroner whose file was discovered, from the custody of the Show.
18 The problem compounding other problems in deciding the facts of this matter is that fourteen or more years have passed since all this happened.   Proceedings were not taken until 1991, just before the end of the limitation period, six years, and the interlocutory steps in the action dragged on for another seven years. Memories have dimmed: they are no longer entirely reliable, even though many of the witnesses may honestly believe they are.  Add to that the urge for self-justification, amounting in some witnesses to down-right dishonesty and the fact that office procedures, at Tarmak and at the Show, seem not to have had the crispness and precision of the perfect office.  I have to decide the facts through a blur of time, witness unreliability and laxness of procedures.
19 That is a digression relevant not only to this application form but to events I have already sketched and to events to which I shall come.
20 As for the application form, on the balance of probabilities I think it was received by the Show.  I cannot accept Mr Anderson when he says if he had seen it he would have refused the application.  He would have refused it, he says, because the Show Society did not provide water for fire protection: no-one before had even asked for fire protection. The Show acted on something because a site was allocated.  No other application has been discovered. On 21 June Mr Anderson wrote to "Mr A. Limb Tarmak Pty Ltd" detailing the site, sending an "Exhibit Site Agreement", an "Electrical Installation Hire Application", an "Invoice/Statement - now due and payable by 1st July" and an "Information and Conditions Booklet".
21 Why have I spent time on this application?   Because it has turned out to be a significant factor in deciding the liability of the RAHS, the Fifth defendant in the action.  I should mention several points in it. 
22 The first is the date:- "23-1-1985".
23 The second:-
"3.  Purpose of proposed exhibit.  (Include full details of any products or services to be offered for sale or promoted.) 
     The purpose of our exhibit is to show a fully working robot of a Tyrannosaurus Rex.  It is made up of a steel frame work and is covered in a thick layer of furniture foam and then coated in fabric, silastic, etc.  This gives a lifelike appearance and movement.  The public will pay to enter, they will see T-Rex go through a performance directed by an actor dressed in appropriate clothing.  See attached page showing technical details of T-Rex."
24 The third:-
"5.  Services required.
     (a) Electricity     For lighting and welding   (c) drainage   
(b) Water          For fire protection       (d) other"
25 The 4th:-
"Exhibitor's Business Name Glenmont Investments Pty Ltd.    "
26 I shall come back to each of these later.
27 On 1st July $2,500 was due to pay for the exhibit site: it was not paid: the site was cancelled.   Money was extremely tight for Limb.  Tarmak was in receivership. He was living hand-to-mouth financially.
28 In one way or another Limb was able to get enough money to pay the fee to the Show.  Another site was allocated.  T-Rex was to be exhibited, near the western end of 4th Avenue West, and pretty well opposite the Angas Hall, to the south.
29 I do not know what other paper work there was between 1st July and the allocation of the new site.  Mr Anderson suggested that another application form would have been completed but he could not produce one.  Even if there were another form, there is no reason why Limb should not have filled it in the same way as the first. On the balance of probabilities, the Show Society received and acted on the application dated "23-1-1985" in allocating the site on which T-Rex was exhibited
30 The dinosaur and its equipment, Limb and others, arrived at the Showgrounds during early August.  The dinosaur had to be assembled.  A tent had to be erected to cover and protect it and to ensure that only those who paid the entrance fee should see it.
31 Mr Bullock devised and Limb built a steel framework which was covered by canvas.  It was erected at the Showgrounds.  On it was a sign "Limb's $2,000,000 dinosaur".
32 The Information and Conditions Booklet given to Limb by the show had a heading "Fire Precautions": under it a number of directions to exhibitors.  The first two directions relate to fire extinguishers and then:-
"(c) Fire Points (reels, hydrants, etc.) must not be covered over and fire buckets must not be used for other than their intended purpose.
(d)  Exhibitors are responsible for ensuring that at least two persons on their stand are conversant with the use of any extinguisher and are acquainted with the position of the nearest Fire Points.
(e)  All decorative materials used on exhibit stands must be flame-proofed.  The use of paper for exhibit purposes must be kept to an absolute minimum."
33 Limb made himself familiar with "the nearest Fire Points" as directed.
34 Mr Michael William Apted, at the time a Tarmak employee, came over to the Show from Launceston.  Another employee, Peter Lee, also came over before the Show, to put together the dinosaur and to erect the enclosure surrounding it.  Apted and Lee stayed on during the first part of the Show itself. Limb pointed out to Apted the fire hydrants: the spot where one of these had been at the time (it is no longer there but I could see where it has been) was particularly pointed out during the view at the beginning of the hearing.  It is on the northern external wall of the Angas Building near the top of a ramp leading to the entrance to the Building.  Immediately next to the hydrant was a cradle holding a lay flat hose.  I noticed that the spot was easily seen from the exhibit site.  Mr Michael Bell  (supported by Mr Trim ) vigorously argued that Limb at that time had not seen the hydrant or the lay flat hose.  He relied particularly on an affidavit of the solicitor for the plaintiff Ms Sonia Bolzon sworn 25 May 1995.  In paragraph 6 of this affidavit Ms Bolzon deposed it was not until February 1995 that Limb had become aware "that one canvas lay flat hose existed adjacent to the hydrant at the Angus (sic) Building at the time of the fire."  The defendants jumped on the point with glee (in so far as there was any glee during the hearing): Limb had been "caught out".  The defendants applied to have Ms Bolzon called so that they could cross-examine her as to her instructions.  I refused to allow the application: it would have risked a breach of professional privilege and the point went only to Limb's credit.  Having practised the law for a long time and having both in practice and on the bench, watched others practise it, I know that misunderstandings between solicitor and client can occur: there can be a breakdown of communication, and sometimes people make mistakes.  Just what happened here I do not know but I have come to the confident conclusion (rather more than on the balance of probabilities) that Limb was aware of the hydrant and the adjacent lay flat hose before the Show.  There are three reasons; first, the hydrant was so obvious from the site on which he was working, for several weeks, before the Show began: second, I believe Limb when he told me he knew of it (more on his credit later): third, I have no reason to doubt that Apted was telling the truth when he said Limb pointed it out to him.
35 I should at this stage introduce two other characters.  The first is the now Mrs Deborah Jane Limb - nee West.  In 1985 at Show time, Miss West was Limb's fiancee.  The other is Mr George Archibald Limb, Limb's uncle, who lives in Adelaide.
36 Miss West came over for the Show and assisted about the exhibit.  Uncle George Limb also was about the place before and during the Show, as was Mr Les Jetson.  I found all three to be reliable witnesses.  Mr George Limb had worked at GMH for 30 years and seemed a sensible gentleman who was telling the truth.  The same goes for Jetson who incidentally was called (it seemed to me as a joint venture) by the defendants.
37 For a performance lasting eight to ten minutes, Limb charged $2.00 for adults and $1.00 for children.   The total takings at the Show were about $48,000.  Each day the takings were banked at the Commonwealth Bank at the Show Grounds, this despite Limb having an account with Westpac which had a branch next to the Commonwealth.  Limb and his wife both explained that Miss West had an account at the Commonwealth and it simply was more convenient to bank there.  The defendants tried to make something sinister of this, implying it was done to hide the proceeds.  I think it was all quite innocent. 
38 Perhaps this is as good a point as any to remark that Limb was an engineer (I describe him as that rather than as a fitter and turner: although he had no formal qualifications as an engineer, he deserves the description having built so wonderful a machine as Tyrannosauros Rex). He was an engineer and a business man: he was not a lawyer, not even, I think, well versed in business procedures.  It is one thing for counsel to criticize witnesses for not crossing every T and dotting every I, even sometimes not acting to the letter of  the law: it is another to find that this sloppiness is sinister.  I don't think the legal niceties as to which entity was entitled to the money taken at the Show entered Limb's head.  I remark too that Jetson, who had an interest to the extent of $100,000 in the dinosaur, was present and, I assume with confidence that he knew what was going on, and had no criticism.
39 I have already mentioned that Limb's finances were tight and that AGC was the owner of the hydraulics in the dinosaur.  It is not surprising that Limb was about $25,000 behind in his payments to AGC.  While the Show was on, AGC wanted to collect some money from Limb.  They engaged a licensed agent, Mr Anthony John Sobey, to try to collect it.  Mr Sobey in company  with a mechanic (who was to take out the hydraulics, if necessary) went to the Show and spoke to Limb. Limb bargained with AGC.  Eventually he paid $5,000 and Sobey went away.  Limb was to see Mr John Martin Overand, then a credit supervisor for AGC in Melbourne, to make some better arrangement. The AGC served an embargo notice on the Show Society, to what effect I am not sure: I doubt any.
 AFTER THE SHOW

40 The Royal Show came and went.  When it was over exhibits had to be removed.  The Show stipulated that they be gone by 20 September.  Neither the dinosaur nor its enclosure had gone by then.

41 Soon after the Show finished Limb went back to Launceston.  He had ideas for T-Rex in the future but nothing definite.  Above all he wanted to take the dinosaur to the United States and exhibit it on the State Fair circuit.  He had already been in contact with Mr Juarez Robert Minick, of Dallas, an expert in the amusement industry.  Limb had booked to go to America within weeks of the Show to seek Mr Minick's further advice.   In the meantime he had a couple of irons in the fire in Australia.    He had it in mind to go to Moomba (that is an annual activity in Melbourne) early in 1986.  He had also been in contact with Mr Ronald Victor Saunders, then engaged in making films: T-Rex might be in a film.  I shall come back to these matters when assessing damages.
42 In the meantime something had to be done to remove the enclosure and the dinosaur itself.
43 In The Advertiser of 19 September 1985 Limb advertised the steel structure of the enclosure for sale and removal, for $4,000.  The only response was by telephone from Mr Barry Peter O'Loughlin, the first defendant.  Limb and O'Loughlin met at the Showgrounds and had a discussion.  Eventually O'Loughlin offered, by telephone to Mr George Limb, $2,500.   Limb, who was back in Launceston, accepted the offer.  O'Loughlin said it would be done during the coming week.
44 By arrangement Uncle George Limb went to O'Loughlin's house to pick up a cheque for $2,500. That is all Mr George Limb remembers but O'Loughlin says that he had George Limb sign a receipt on the cheque butt - moreover a receipt which by its terms absolved O'Loughlin from any liability for damage caused by the removal of the enclosure.  O'Loughlin said he gave the cheque butt subsequently to his solicitor.  It has disappeared.  No other cheque butts, let alone a cheque butt with a receipt were tendered. I think O'Loughlin invented that story to cover himself for what subsequently happened.  The story is all so unlikely.
45 The next Limb knew, T-Rex had been burnt to destruction.
CREDIT OF WITNESSES

46 The defendants made a sustained and strong attack on Limb's credit.  Limb gave evidence-in-chief for four and a half days and was under cross-examination for seven and a half days.  His re-examination took another half  day.  I had ample time to see and hear him, to make an assessment.  His demeanour throughout was impeccable.  He was patient and courteous, he gave every indication that he was doing his best to answer every question to the best of his ability.  I thought him a good witness.
47 Certainly Mr Trim and other counsel for the defendants, found a few weak spots.  It would be surprising if during 12 days in the witness box a witness did not say something which could be attacked.  Here are examples.
48 Limb had already approached Moomba before the fire.  Afterwards he continued to negotiate about taking the dinosaur to Melbourne early in 1986.  He said he did it in an endeavour to help establish the value of the dinosaur by seeing how much Moomba would pay to have it exhibited.  Eventually he told Moomba the dinosaur had been burnt.  Limb admitted it was a silly thing to have done.
49 Limb asserted that he did not know O'Loughlin intended to take down the enclosure on Friday 27 September.  The defendants came on a message in the Tarmak message book of the preceding Wednesday.  It was from Uncle George Limb and read:-
"George Limb
Went to airport found Ford 5.00 per day
got keys in possession
everything O.K. at showgrounds
O'Loughlin $2,500 got cheque in post certified to house.
Going to start Friday."
50 The message had been crossed out, a sign that Limb had read it.  Limb swore that he had not seen it before the fire and in any case did not understand it to mean that the enclosure was to come down on the Friday.  He said at the time the message would have come, he was away on the north-west coast of Tasmania doing a job for Tarmak.
51 In the course of correspondence with Mr Minick, Limb received four letters (all sent on the same day) which were not so favourable to his case on damages as earlier advice had been.  Apparently Limb failed to disclose the letters to his solicitors: they were discovered only during the hearing.
52 I have already discussed Ms Bolzon's affidavit concerning knowledge of the lay flat hose. 
53 These examples (and other things of less significance) may be interpreted to dent Limb's credit.
54 I accept that the Moomba negotiation was - looking back on it -merely a silly thing to do.  It does not shew dishonesty.
55 I accept Limb's explanation that he did not get the message from his uncle a few days before the fire.  I do find it more difficult to accept that when he did read it he didn't understand it to mean the enclosure was to come down on the Friday.   If he had received the message I think he should have understood it and would have telephoned his uncle asking him to be present during the demolition.  That is what he had had in mind: his uncle would be present to look after his interests.  Having formed the view of the man - that he is careful and sensible - and remembering that the dinosaur was his creation, why wouldn't he have asked his uncle to be there?
56 As for the letters from Minick I don't know what the explanation may be.  There may be a quite innocent one.  Perhaps Limb did not appreciate the importance of handing them to his solicitors.  In any case I am not prepared to find him an unreliable witness merely on that one matter when my overall impression is that I can rely on what he said.
57 The conclusion is that, despite the attacks of the defendants, Limb was a reliable witness whose account of events I should and do accept.
58 The same goes for all the witnesses (except O'Loughlin and Paul Anderson) whom I have so far mentioned.  I accept them all as doing their best to be truthful and, after the lapse of fourteen years which is enough to blur the best memory, as having given, to the best of their ability, a reliable account of their parts in events.
59 Unfortunately, I have formed far less favourable views of the honesty and reliability of the witnesses who are to come into the story.  Up to this point I believe, at least on the balance of probabilities, I have been able to give an accurate account of events.  From now on I cannot accept the evidence of every witness at face value.
60 I have already mentioned O'Loughlin.  He had been a busdriver who had the misfortune to be knocked off his bike: he could no longer work.  In his young days he had made some pocket money collecting scrap.  He decided to go into business as a scrap metal dealer and had been doing that for about two years.   I described him to counsel as, "a real old Steptoe" and that is about the best description of him I can give - except that the original Steptoe was probably shrewder.
61 In some things, such as the cheque butt receipt, he was not being honest and I do not feel too confident of relying on his recollection of other events either unless it is corroborated.  This makes it pretty difficult to come to a conclusion when his evidence and that of Parker and Edwards (whom I am about to introduce) conflict but I have concluded that Messrs Parker and Edwards are even less reliable than is O'Loughlin.
62 O'Loughlin had had some business dealings with Messrs Parker and Edwards (the second and third defendants).  The second and third defendants  were in partnership under the name Parker and Edwards, as demolishers.  On their card they describe their business as "Demolition, Re Fabrication Erection". An advertisement in The Advertiser of 14 September 1985 read "Demolition.  All types of buildings.  Tall steel structural buildings our speciality".
63 O'Loughlin had done some work for them, notably on what was called "the Shell job", a few months before the fire.  It seems that Parker and Edwards took him down, didn't pay him as much as agreed. Yet surprisingly O'Loughlin continued to have some business relationship with them.  When he made the arrangement with Limb to take down the steel frame he approached Parker and Edwards to do the actual work of dismantling.
64 O'Loughlin and Parker went to have a look at the job.  Parker was to give a price for pulling down the enclosure.  Parker began making an estimate.  He got to over $1,000: O'Loughlin said that was too expensive.  They returned to the Parker and Edwards' office.  Parker said, "You'll need a rigger and a crane for a day."  Eventually a price of $600 was agreed for the use of Parker and Edwards' crane and the services of their men. That is the account given by both O'Loughlin and Parker and there is no reason not to accept it.  O'Loughlin says there was no talk of his having to supervise the job.  That is not surprising.  If there had been any talk of that I would have expected it to come out - Parker and Edwards probably knew anyway from their business relationship with him, that O'Loughlin had no experience whatever of dismantling structures, nor any knowledge of how to go about it.
65 One issue strongly contested between O'Loughlin and Parker and Edwards is the nature of this arrangement.  Was it, as O'Loughlin asserts, an all up price for Parker and Edwards to do the job of dismantling the enclosure?  Or was it, as Parker and Edwards assert, merely the hiring of a crane and the labour of the crane driver and a rigger, for O'Loughlin to use as he wished, to demolish the structure?
66 Before giving my conclusion I should say a bit more about the structure enclosing the dinosaur.  T-Rex was about 30 metres long and 12 metres high.  The main part of the structure in which it was housed at the Show was not high enough to cover the head of the dinosaur so there was, to cover the head, a smaller structure, a canopy, on top of the main structure.  The main structure was bolted together but the canopy, made of lighter steel, was welded to the horizontal bars of the main structure, at least at its four corners.  I accept that this could not be seen from the ground: O'Loughlin said he did not realize anything would have to be cut to get the whole thing down.
67 O'Loughlin said it didn't occur to him that the dinosaur, still inside the enclosure, might be inflammable.  I would have thought it was quite obvious to anyone with even a modicum of common sense that the creature was inflammable.  The risk of fire was quite high.  Anyone who looked at all closely at the dinosaur and who did not notice this would be careless to the point of negligence.  O'Loughlin looked at it, Parker had looked at it, Mr Koloman Clements (a friend of O'Loughlin's who had gone to the Showgrounds with him originally) had looked at it.
68 I have given my opinion of O'Loughlin's credit.  I must now give an opinion of that of Parker and Edwards.  I was not impressed by either: indeed I was unimpressed by both.  Each was quite dishonest and prepared to say anything which might, he thought, help his own position.  I prefer even O'Loughlin to them.  I made a note against my notes of Parker's evidence during cross-examination by Mr Anderson, "Unfavourable impression of his honesty and reliability": against that of Edwards in cross-examination by Mr Simon Stretton for the first defendant - "truculent" - and he was far more so during subsequent cross-examination by Mr Anderson.  I was as equally unimpressed by Edwards as by Parker.
69 There was much evidence and argument as to the true nature of the arrangement between O'Loughlin and Parker and Edwards for the demolition of the enclosure.  I shall not canvass it, merely give my conclusion.  I simply do not believe Parker and Edwards that it was a labour hire job.  Parker and Edwards decided to do an "el cheapo" job for an all up price of $600.  They would send a crane and a rigger and leave them to do the work as best they could.  Nothing was put in writing.
THE FIRE

70 We come now to the day of the dismantling, 27 September, 1985.  I mention for the first time Mr Jonathan Paul Foote, the fourth defendant and unrepresented at the hearing.  In September 1985 Foote was 22 years old "and reasonably green" (to use his own words).  He had qualified as a rigger in 1982 and had been working for Parker and Edwards for two or three weeks.  No doubt he was employed by them: the paper work shews that: it is not disputed.  There is some difference between witnesses as to how Foote got from the Parker and Edwards yard at Thebarton to the Showgrounds and what equipment was taken.  It doesn't matter much but probably Foote went in the cabin of the crane with the driver (whose name is thought to have been Wilson but of whom I know nothing more) and met O'Loughlin at the Showgrounds.  O'Loughlin was there with another man known as "Cowboy".  Cowboy was probably using oxy equipment to cut some of the steel already on the ground when Foote arrived.   Cowboy died several years after the fire. 
71 However it got there, oxy acetylene and oxy LPG equipment was on the job: some belonged to Parker and Edwards, some to O'Loughlin.  O'Loughlin told Foote to be very careful not to harm the dinosaur but nothing was said about cutting the steel or the use of the arc welding equipment.
72 O'Loughlin got Foote to help him load some railway wheels (they had been used as ballast for the tent) on to his truck.  O'Loughlin then took the wheels down to Simsmetal expecting to sell them, only to find they had been on hire to Limb and were to be returned: all he got was something for taking them back.
73 Some of the canvas was still on the structure.  When Foote got up to remove it he noticed what he hadn't been told, that the canopy was welded to the horizontals, not bolted as he had believed the whole structure was.  By then O'Loughlin had probably gone.
74 Foote had asked O'Loughlin how the job was to be done.  O'Loughlin metaphorically shrugged his shoulders and said he didn't know.  There was no equipment for getting up on the structure, no ladder, no bosun's chair or anything.  Foote said he'd get up there somehow and that's just what Foote did.  He rode up on the hook of the crane, an impermissible work practice.  After the fire I think Foote was as anxious about having broken the rules as he was about having burnt the dinosaur.
75 Cowboy refused to go up to cut the canopy off the main structure so Foote called, "Send your torch up and I'll cut it".  There was no thought of a fire blanket: anyway none was available at the site.  [A fire blanket is like a sheet but probably in 1985 still made of asbestos, which is thrown over an inflammable object to shield it from sparks etc.]  The oxy cutting equipment was sent up on the crane.  That's all: no fire blanket, no extinguishers even though Foote said it was general practice to have them handy.
76 Foote, unusually, gave evidence twice.  The first time he was called by the plaintiff.  Subsequently he asked to give evidence in his own case and he did so.  This, though, is what he said in examination-in-chief, questions by Mr Holland:-
"Q.  You told us that you had taken cutting equipment up there, did you have any thought at all about the possibility of the skin catching fire.
A.   Honestly it may have crossed my mind but I didn't really think about it too much because I really thought I was far enough away and the small amount of cutting I had to do I was well able to direct the spray of molten metal away from the thing and I didn't think it was - yes,  I didn't give it a lot of thought to be honest, I didn't think it would be a problem though.
Q.   While you are in the process of cutting did you notice something about a part of the dinosaur.
A.   Did I notice the fire?
Q.   You noticed a fire did you.
A.   Yes okay I did, I noticed a small fire.
Q.   Where was that.
A.   Just at the base of the neck, on the back of it, on its back.
Q.   What did you in particular first notice about that, did you notice flames, smoke or what.
A.   Yes just small orange flames and a fair amount of black smoke.
Q.   How far below you was it.
A.   I would say when I was standing probably a couple of metres below my head height, that it would have been - relative which part of me?
Q.   You were cutting.
A.   Looking at it from a standing position here it would have been about two metres below me.
Q.   When you saw that what did you do.
A.   I basically turned off my torch and I held on to it because I couldn't leave it there, turned off the torch and yelled out to the crane driver that there was a fire and that I needed to get over there somehow.
Q.   Did you yell on one occasion or more than one occasion.
A.   More than one occasion, it was difficult to get his attention.
Q.   Perhaps if you can just explain to us, the crane was in the position that you have previously indicated on the north-eastern side.
A.   Yes.
Q.   Where were you when you noticed in respect of the canopy and the crane, when you first noticed it.
A.   I was in this area here.  (INDICATES)
Q.   So northern side.
A.   It would have been on the northern side, yes and I worked my way back to this point here right opposite where the fire was.
HIS HONOUR:
Q.   Had you then done some of the cutting.
A.   Yes I had nearly finished the cutting, I had basically worked my way along the southern side and I would have only had one or two pieces to go, one or two cuts to go.
XN
Q.   What was the weather like that day can you recall.
A.   Reasonably fine, blue skies, it was a west/south-westerly breeze that was not constant, obviously because there was convection in the atmosphere, it blew in gusts, a fairly fine day.
Q.   You have described moving back towards the crane from where you were when you first noticed the fire.
A.   Yes.
Q.   Did it require you being careful moving along that area.
A.   Yes.
Q.   So you couldn't run along, you had to move quite gingerly.
A.   That's right.  It was only a short distance but the whole time I was up there I needed one hand I needed basically for holding on to something.
Q.   When you apparently got the attention of the crane driver what happened then.
A.   I asked him to - the instructions I was attempting to yell at him was that I needed to get on to the back of the dinosaur because of the fire and obviously he could see the smoke then quite clearly from then and my instructions to him were to get the hook with all the bottles and everything closer, basically between me and the dinosaur because I wanted to use them I guess to get myself over there as quickly as possible, it was just too far to jump, I was looking across at the gap and it was just too high, I wasn't quite that brave.
Q.   Was the crane driver able to get the hook where you wanted it.
A.   Yes he did after much manoeuvring.
Q.   He had to move from his original position.
A.   He wasn't far away from his original position but as I say being an articulated crane, just to move the jib from one direction to another may take a bit of work because you can't just swing the steering wheel, you have got to do everything in small movements.
Q.   So when the hook got to the position you wanted it in, the equipment was still on it.
A.   Yes.
Q.   What did you do then.
A.   I climbed on to the bottles, he then moved his hook just closer to the dinosaur and I jumped off on to the back of the dinosaur.
Q.   Did moving the hook closer to the dinosaur again involve him having to move the position of the -
A.   No not really.
Q.   What did you do when you got moved closer to the dinosaur.
A.   I jumped onto the back of it and I was kneeling down, I still had my gloves on and I attempted to put out the fire with my gloves by patting it.
Q.   How big was the area that was on fire at that stage.
A.   At that stage it would have been when I eventually got there perhaps half a metre square.
Q.   At that time - you have told us about the crane driver, you have told us what he was doing - were you aware of where the other man was.
A.   No.
Q.   Were you aware of anyone else in the vicinity at that stage.
A.   Yes out of the corner of my eyes I remember seeing people running on the ground, I particularly remember these two or three people on a nearby building balcony leaning over the railing and watching.

HIS HONOUR
Q.   How long had you taken to do the cutting that you had done by then.
A.   From the start of the cutting.
Q.   Yes.
A.   Perhaps 25 minutes.
Q.   As long as that.
A.   Yes because the difficulty was moving around on it.
Q.   Yes I understand.
A.   I was carrying all this gear in one hand and having to hold on with the other hand and it was quite difficult to keep myself up there.
XN
Q.   Were you able to put out the fire with your hands as you have described.
A.   No.
Q.   Why was that.
A.   As I patted out or - it smothered the flames in one area, they'd be springing up next to you and you start smothering them over there and the plastic or the foam or whatever that was burning basically stuck, it just basically - ended up I kept spreading it, I felt I was - I don't think I was really spreading it but I felt like I wasn't doing it any good, the molten plastic was sticking to my hands and my hands were burning or the gloves were burning then and because I was kneeling over it the smoke was coming off into my face and I was starting to be overcome by the smoke, it had a very very noxious sort of smell to it.
Q.   When you called out to the crane driver to move your position because of the fire did you call out and ask for a fire extinguisher.
A.   I don't remember whether I did, I don't think I did.
Q.   Did anybody call out to you and suggest they send one up to you at that stage.
A.   Not that I recall.
Q.   At that stage can you recall seeing any near the dinosaur.
A.   I remember when I first got to the job I believe the boilermaker had an extinguisher, at least one; maybe two with him and that was common practice at the time, but when I was actually up there in the heat of the moment and the fire, trying to put that out, I don't remember anyone going for one then.
Q.   So is it the situation that it was obvious that you couldn't put out the fire in the manner you were doing it.
A.   Yes.
Q.   What happened then.
A.   Once I became fairly clear - I felt overcome by the smoke and a couple of times I felt I was almost going to pass out in a sense and I started to get really worried that I was going to fall off this thing and was just frustrated that I wasn't able to do anything and so I called out to the driver, I yelled something like 'Get me down, get me down' and then I jumped back on to the bottles.
Q.   On that occasion did you appear to have any difficulty getting his attention.
A.   Not, not as much initially, although it just seemed frustratingly long - the time.    Obviously I felt I was in some sort of mortal danger there and maybe it seems longer, I don't know but it took awhile to actually get me in a position where I could be lowered.
Q.   You've described these people on the balcony that you saw, I think you said out of the corner of your eye, at that time did you notice any of them running around or did anybody -
A.   No, they were just watching.
Q.   You say that you jumped back on the hook.
A.   Yes.
Q.   Was the hook close by to you at that stage or it would have to be manoeuvred back towards you.
A.   No, it was still where it was when I got off it, so it was relatively close yes.
Q.   What happened then.
A.   Then he had to basically manoeuvre the crane - basically get himself a bit further away from the frame so he could lower me down to the ground, which he did, and as soon as I got near the ground I jumped off and started unhooking the bottles - the oxy and LPG bottle.
77 Foote unhooked the gas bottles when he got to the ground.  There were fire extinguishers lying about, maybe as many as six.  The crane driver told him none of them worked.  Foote saw no fire hose.  The Fire Brigade arrived some minutes after he was on the ground.  They attached their hoses to the lay flat hose by the hydrant on the northern side of the Angas Building or maybe directly to the hydrant.  By then it was too late to save T-Rex.  It was burnt out completely to the frame. 
78 The photograph taken soon after shews a pathetic sight.  What a disaster! What a tragedy!  What a heartbreak!
79 I am confident that the account Foote has given and which I have reproduced, is an accurate account of the fire itself and of what he did.
80 Within a few minutes the police were on the scene and Foote gave a statement to Constable Kokkotos.  It confirms almost exactly his evidence.  I say "almost exactly" because in the statement Foote said he was "standing on a rectangular lifting frame".  He was not: he went up on the hook of the crane.  I surmise he put that into the statement to try to cover himself because he knew he had broken the rules by going up on the hook. The statement, being taken within an hour of the fire is practically contemporaneous and apart from self exculpation about the frame, is the best account to be expected of what happened.
81 I note that in the statement Foote also said:
"I then called for a fire extinguisher and a workmate came back and said that every extinguisher he tried was empty."
82 On 12 November 1985 Mr Foote gave another statement, this one to chartered loss adjuster, Mr Peter Joseph Jeffrey.  This account of the fire does not altogether coincide with Foote's statement to the police and his evidence in court. The statement was criticized as being slanted in favour of Parker and Edwards.  Here are two examples.
83 The first:
  "At the time of the fire, I was working for Barry O'Loughlin and following instructions he gave me before leaving the site, I was not doing work on which I had been instructed by either Terry Edwards or David Parker."
84 It was suggested that this was put in to shew that Foote's labour had been hired out to O'Loughlin, that the job was O'Loughlin's not Parker and Edwards'.
85 The second:
"When Jack used the crane to get me to the top of the framework I saw that some parts were bolted and others welded.  The head extension was welded to the main framework in about 8 places and the individual lengths were welded together.  When I explained the situation to Barry, he said something like - 'The only thing to do is cut it up there.'  I might have suggested cutting the steel but the decision to do so was his.  He definitely instructed me to cut the head extension steel work which I started doing at about 2.45p.m. using an oxy LPG cutting torch he provided.  Barry started cutting the head extension steel work himself but had to leave the site.  Before doing so, he instructed me to continue cutting."
86 It was suggested this was put in to saddle responsibility more firmly on O'Loughlin.  Certainly what is written is quite inaccurate: O'Loughlin did not go up on the structure, let alone did he do any cutting.

1. At first I was unwilling to accept that the statement could be slanted -Jeffrey vigorously denied it - because I found it difficult to accept that Jeffrey might risk his reputation for honesty and accuracy.  Yet it must be.  That second example is obviously and blatantly inaccurate.  I don't believe Foote would ever have said it.  How he was persuaded to sign the handwritten statement I don't know. Jeffrey was instructed by MLC Insurance Ltd, Parker and Edwards' insurer. 
   88 I have set out what Foote said he did and what I accept.
   89  What about others in the vicinity?   No one did anything effective except, as I shall explain, too late, to call the Fire Brigade.
   90 I have already mentioned Mr Paul Anderson, a senior officer of the Show Society.  He actually saw the fire start.  Anderson was in the early afternoon in his office two to three hundred metres away.  Someone told him there was activity at the dinosaur site, so he decided to go over and have a look.  This is from his examination-in-chief (questions by Mr Bell):-
   "Q.  Can you tell the court what you did then, when you made that decision.
   A.   I elected to go and visit the dinosaur site and see who was involved in the work there.  I left the office and walked in the direction of the dinosaur site.
   Q.   How far did you walk before you could see the dinosaur.
   A.   The dinosaur was visible as you turned the corner from what is the Stirling Hall ramp.
   Q.   What did you see at that point.
   A.   I observed some work activity happening on the dinosaur site, the canvass shrouding had been removed and there were people - there was one person, at least - on the structure, cutting it with oxy acetylene.
   Q.   Did you see anyone else around.
   A.   There was a crane lift of some sort there; there was a couple of people involved, I'm not sure exactly how many.
   Q.   At that time did you keep walking towards the dinosaur, or did you stop and make observations.
   A.   I continued to walk and almost at that time it appeared to catch light in the head, so -
   Q.   What did you see.
   A.   There was molten debris falling from the cutting on top of the head of the dinosaur.
   Q.   You said it appeared to catch alight; what did you see, if anything, indicating that something was catching alight.
   A.   Well, there were flames coming out of the dinosaur's head.
   Q.   After you saw that, what did you do.
   A.   I immediately went up to the Angas Hall, which is on top of the ramp area and asked someone to call the fire brigade."
   91 I accept all that as accurate, except that Anderson "immediately went up to the Angas Hall ... and asked someone to call the fire brigade."  Some time, in fact, elapsed before the Brigade was called.  The picture I have from the various witnesses (some of whom I have yet to mention) is that there was a general scramble, if not panic, to find fire extinguishers and to get them to the fire to try to put it out.  Alas!  None worked. 
   92 The evidence on behalf of the Show Society was that soon before the Show the Fire Brigade came to check all extinguishers.  Goodness knows what had happened to them in the meantime.  The Show had been and gone.  There was no evidence that the extinguishers had been used to put out fires.  I would have thought that one check before the Show and nothing more was not enough.  On the other hand Mr Bell argued that the extinguishers even if they did work, would have been ineffective.  In the early seconds, even minutes, if say, Foote had had an extinguisher up on the structure with him he might have been able to use it effectively.
   93 I have digressed.  I am afraid that Anderson has not told the whole story.  I am satisfied on the balance of probabilities that some minutes passed between Anderson seeing the fire start and the call to the Brigade.  One only has to remember what Foote did in that time.  Mr Tim Anderson in his final address suggested that as much as 15 minutes passed before the Fire Brigade arrived.  I think that is at the upper end of the time scale but even if it were significantly less, say seven or eight minutes, that was still too long a time.  The Fire Brigade took only four minutes to get to the fire.  The call was received at 1542 hours: they were there at 1546.  Had the Brigade been called immediately, as Anderson implies it was, there was a good chance T-Rex, although damaged, could have been substantially saved.
   94 But there is more to the action or inaction by the servants of the Show.
   95 In 1985 the Show had no effective fire fighting precautions at all, apart from the extinguishers and relying on the Fire Brigade.  There were no drills, no instruction on the use of lay flat hoses, no chain of command in case of fire.  As I remarked during the hearing, fire precautions were abysmal.
   96 Anderson said that subsequently arrangements were altered.  I hope they were!  Many hundreds of thousands of people go every year to the Showgrounds.  The buildings and equipment they house from time to time must be worth millions.
   97 Apart from Anderson, the Show Society called several other employees.  The first was Mr Barry Robert Thorp.  He is a groundsman now, as he was in 1985.  He has worked at the Showgrounds for 30 years.  He said that most of the ground staff, including himself, about 12 months before the fire, had had training for half a day at fire headquarters in the use of extinguishers and they got a certificate for it.  That's all!  Yet in its Defence the Show Society, the Fifth defendant, alleged that "Thorp was well versed in the use of fire fighting equipment"!  He was not and he had been given no instructions on what to do if there were a fire.
   98 On the day of the fire Thorp and others were in the Angas Hall helping to set up the Wine Show, to begin on the following Monday.  Thorp had heard someone yell "Look out!"  He waited for a minute or so, then went outside.  The dinosaur was on fire.  Someone asked for an extinguisher.  He took a C02 extinguisher (in any case not the right kind of extinguisher to use) outside and attempted to shew the person how to use it but there was no pressure - it was no good.  Thorp said he then rang the switchboard to call the Fire Brigade (he didn't say Anderson asked him to do that).   He also rang the office of the Ground Manager, Mr Kingsley Cammiss.  Thorp and others went outside and watched from the ramp so as not to put themselves in danger.  I need not go to the evidence of the others, Messrs Teague and Cammiss.  All their evidence comes to the same.  There was no system for fighting fires.  They had hardly any, if any at all, training in fire fighting and none of them did anything to fight this fire.
   99 I have already mentioned the lay flat hose in its cradle by the fire hydrant on the ramp running up the northern side of the Angas Hall.  No one made the slightest attempt to use it until the Fire Brigade arrived.  The hose was thirty metres long (Thorp had thought it was thirty feet!) and the Fire Brigade officer Mr Edwin John Templer, said the jet would reach between fifteen meters and thirty meters.  The head of the dinosaur was fifty-three meters from the hydrant. A good chance, then, that the jet from the lay flat hose would have reached the seat of the fire.  In any case, hoses may be coupled together to give extra length.  Thorp said and Cammiss agreed that there was another lay flat hose in the Stirling Hall immediately to the east of the Angas Hall (indeed the Stirling Hall is the eastern end of the same building as the Angas Hall).
   100 Why was the lay flat hose not used?   Under cross-examination by Mr Anderson, Mr Thorp, the man in charge of fire control at the same time gave his explanation:-
   "Q.  Did he tell you specifically that you must never use them.
   A.   Not to use the fire hose, fire hydrants and hoses.  Told us that the fire department's supposed to use them, that is all.
   Q.   I just want to make sure I understand you.  Did Mr Cammiss tell you, that is you, directly.
   A.   He would have told the lot of us.
   Q.   Who did the lot of you include.
   A.   It would be including all the ground staff that went and done the test of the fire.
   Q.   Was the instruction - I am not suggesting these are the exact words he used, but was the instruction that you must under no circumstances ever use a lay flat hose.
   A.   I wouldn't say that.  I couldn't say that he said never.
   Q.   If, for instance, you had been down the end, which is the southern end, and in one of the horse pavilions hay bales caught alight and there was a lay flat hose there. You would have used the hose to put that out.
   A.   If I was in the area yes but used one of the fire extinguishers in that area first.
   Q.   Say there were a lot of hay bales in the horse or cow shed and they all started catching alight and you thought that it is a bit big for an extinguisher and there happened to be a lay flat hose there. You would have used that if that was the only thing there.
   A.   Not really.  They are too dangerous to handle.
   Q.   You would have just let it burn.
   A.   Would have used extinguishers to try to put it out that way.
   Q.   Say there wasn't an extinguisher there and only a lay flat hose and it was burning and the sheds were in danger of being destroyed.  Would you have used the lay flat hose then.
   A.   If it was a danger to the public, maybe yes.
   Q.   Danger of property, of the building catching fire.
   A.   No, I wouldn't have used a hose.
   Q.   You are serious about that.
   A.   Yes.  If you say the horse stables, it is not an area that is - the horse stables has a heck of a lot of extinguishers around that area as to what they have in other areas.
   Q.   I might have picked a bad example, any pavilion or shed where there was a lay flat hose nearby, if that had caught fire and you had been nearby.
   A.   If I was nearby, yes.
   Q.   And the shed was in danger, you would have used the hose.
   A.   At the last resort, yes, but no, I would not try and use a hose.
   Q.   Why not as a first resort if all it needed was a quick quantity - a quick but large quantity - of water, why wouldn't you use the hose.
   A.   As it is dangerous to use such a high pressure hose, to connect one of them up, run the hose up, connect the nozzle up and turn the pressure on.  You would have to have two people at least to do it.
   Q.   Okay, assuming there are two people, two of you in the course of your rounds and one of the sheds catches fire, and you haven't got quick access to an extinguisher, would the two of you use the lay flat hose.
   A.   No, I wouldn't have used one myself, no.
   Q.   I am asking you now about two of you, seeing you are concerned about using it yourself.
   A.   I don't think I would have used a hose, even if there were two of us.
   HIS HONOUR
   Q.   Is this the position, you would rather let the building burn.
   A.   Yes, if it means safety for us, rather not put ourselves in danger of anything.
   Q.   You would let the building burn.
   A.   Yes.
   XXN
   Q.   And if that building caught fire to the next building, you would let that one burn too.
   A.   By then we would have had some way of getting in touch with the fire department; at that time we had small speaker boxes where we could break the glass and get in touch with the fire brigade quite quickly.
   Q.   So you therefore wouldn't have done anything, as his Honour put to you, to stop the building burning, but you would have got in touch with the fire brigade and let them take control when they got there.
   A.   Yes.
   Q.   And if one building burnt or two buildings burnt that was too bad, is that right.
   A.   If the buildings were caught on fire, well, as I say, we would use the extinguisher as much as possible, and if that got out of control we contact the fire brigade.  Our job is to see if the place is empty, safe of all people, and then ring the fire brigade."
   101 This is what Mr Paul Anderson cross-examined by Mr Anderson said:-
   "Q.  Can I put this to you: On what you've told us, would it be the situation that if a fire broke out as a result of an electrical fault, say, inside the ghost train shed, and there were a hundred children inside, that no fire hoses from the show would be used and you would wait to ring the brigade, I'm talking about during the show of course.  Is that what you're saying.
   A.   I can't answer that, because we fortunately have not had that situation.
   Q.   Surely you must take precautions against it.
   A.   There are certainly precautions.  There are statutory requirements that they all have to comply with and Places of Public Entertainment and the other authorities enforce those regulations.
   XXN
   Q.   But you have got lay flat hoses within access of something that is flammable and it in fact catches fire, and you are saying that to your knowledge there is no instruction, for the scheme of things set out, as to what is needed to happen in the event of that fire.
   A.   The initial response is to look at safety of life and then -
   Q.   That is why I asked you about the ghost train.  I mean, I just want you to assume that there is a lay flat hose within reach of the ghost train - and it's a big shed, as I remember it from many many years ago - and there is lots of things inside that are mechanically and electrically operated.  Assume there is a short circuit, the shed catches alight, there are a hundred kids in there on the train, and you have got a hose within reasonable proximity afterwards.  Is there an instruction that you must not use that hose.
   A.   There is no instruction you must not use it.
   HIS HONOUR
   Q.   Is there any instruction about what to do in those circumstances.
   A.   Are we talking now, or in 1985.
   XXN
   Q.   1985.
   A.   In 1985 there were less emergency procedures in place than there are today.
   HIS HONOUR
   Q.   So things have changed since 1985 with regard to fire precautions.
   A.   Yes."
   102 Every witness for the Show Society said it was too dangerous: an untrained person might be injured.  Not only had the show staff not been trained in the use of lay flat hoses but they had been forbidden to use them!  This was, I think, just an excuse for inaction.  In all fairness Templer said that in 1985 fire hydrants and lay flat hoses were primarily - he did not say exclusively - for the use of Fire Brigade officers.  He also said that they were no problem for trained people.  They could be used by one person but it was better if there were two.  There were more than two Show employees there.
   103 The Show Society witnesses asserted that they were not to use the hydrants and lay flat hoses.  To the contrary, they should have been trained to use them - as happened in other big organisations like General Motors Holden and the Port Stanvac Refinery.  Although untrained for an emergency like this, with such obvious fire fighting equipment at hand, they should at least have made an attempt to put the fire out.  The assertion of prohibition to use the hydrant and lay flat hose is just an excuse by the Show witnesses for their inactivity.
   104 The implication of the Society's own literature was that hydrants were there to be used.  I have already quoted from the paragraphs under the heading "Fire Precautions" in the  "Information and Conditions" for the 1985 Show:-
   "(c) Fire Points (reels, hydrants, etc.) must not be covered over and fire buckets must not be used for other than their intended purpose.
   (d)  Exhibitors are responsible for ensuring that at least two persons on their stand are conversant with the use of any extinguisher and are acquainted with the position of the nearest Fire Points."
   105 What would be the good of knowing where the fire points were if they were not to be used?  The reason given by the Show witnesses - so they could direct the Fire Brigade to them - is so lame as to be unbelievable.
   106 Mr Bell called a forensic scientist, Mr Reginald Ray Robinson.  He was called to support the evidence of the Show Society witnesses that the fire happened and took hold so quickly that it was impossible for them to fight it.  Mr Robinson after the fire took samples from the debris.  He made tests and gave a couple of reports in 1986 to the effect that the dinosaur was inflammable.  His evidence was to the same effect.  Over the metal skeleton Tyrannosaurus Rex was covered by polyurethane which is inflammable and as it burns gives off noxious gases.  [Foote said he felt affected when he was still up in the air.]  Mr Robinson put forward a theory.  He called it the "flash over theory":  pieces of molten metal fell through into the interior of the dinosaur catching it alight inside.  This had a "chimney effect" which meant the fire went up with a "whoosh".  This was a theory, a possibility.  I do not accept it, as it is contrary to the implication of Foote's evidence that some minutes must have passed before the creature was well afire.  It was a constant process, not a sudden explosion of fire.
   THE AFTERMATH

107 So much for the fire itself.  What happened afterwards?  As the evidence of significance comes from O'Loughlin, Parker and Edwards, all of whom I have found to a greater or lesser extent unreliable, it is not easy to tell.  Fortunately it is not vital: the damage was already done.  Subsequent events merely go to credit.
108 What is certain is that someone telephoned Miss West in Launceston and told her what had happened.  She says there were two calls, the first from O'Loughlin and later from Parker.  She then had to tell Limb when he came back later from the North West Coast.   Each of O'Loughlin and Parker denies the call.  Probably it was O'Loughlin who rang (for what it is worth Edwards said he eavesdropped on the conversation): I don't know about Parker.
109 More significant is what Parker and Edwards did.  To explain this I come to the final player, Mr James Hunter.  He was in 1985 an MLC life agent.  His wife worked in the office of Parker and Edwards.  Hunter called quite often to pick her up from work.  He was on familiar terms with Parker and Edwards.  He had placed life insurance for them and had arranged for another agent, who had the authority which he did not, to write a public liability policy.  That was some months before the fire and before Parker and Edwards had a crane.  The policy had an exclusion of liability for cranes which were registered.  The Parker and Edwards' crane was registered.
110 I formed a poor opinion of Hunter's reliability. He was dogmatic and defensive.  This led him to being, while under cross-examination first by Mr Stretton and then by Mr Anderson, evasive.  Hunter denied that he knew of the fire until "about a week" later.  I really cannot believe that.  His wife worked for Parker and Edwards: he went to the premises quite often.  Anyway there was a report of the fire in the paper.  I don't believe Hunter when he says he didn't know of the fire on the day it happened.
111 Even though I wasn't much impressed by O'Loughlin's reliability I prefer his version of events to Hunter's.  O'Loughlin says that when, after the fire, he went back to Parker and Edwards' premises, Hunter was there talking to them.  O'Loughlin says Hunter was present three days later when Parker and Edwards tried to persuade him to sign a document absolving them retrospectively from liability for the fire.  All but O'Loughlin deny these happenings: I accept O'Loughlin when he says they occurred.
112 Certain it is that some time - probably on the day of the fire - Parker and Edwards took out comprehensive insurance on the crane.  Hunter had no authority to write comprehensive insurance (the MLC did not give that cover) but Mr Victor Isbester with whom he shared offices did - through Mercantile Mutual Insurance (Australia) Limited (at one time a Third Party in these proceedings).  Hunter admits that he did introduce Parker and Edwards to Isbester but asserted he does not know on what date.  If it were on 27 September he did not know there had been a fire.  The policy is dated 27 September but there was no disclosure of a fire - nor was it reported to the Mercantile Mutual later.  That company did not know of the fire until years afterwards.
113 On the balance of probabilities Hunter pointed out to Parker and Edwards, on the day of the fire, after it happened, that the crane was not covered under the public liability policy.  Parker and Edwards knew the crane had been used by Foote in doing the oxycutting. They were afraid of liability:  Hunter introduced them to Isbester to write a comprehensive insurance policy in the hope that, somehow, they could get cover.   Curiously the cheque in payment of the policy is dated 26 September.
114 As I have said all this goes only to credit: it is not relevant to liability, whatever Parker and Edwards may have feared.  Quite independently of all this I had formed my poor opinion of Parker and Edwards so that it does not in any way affect my decision.
115 There are the facts.
 LIABILITY

116  I should deal first with a threshold point (although it was pleaded quite late, not long before trial).   The point, taken strongly by Mr Trim, is that the wrong plaintiff has sued. 
117 Mr Trim argued that the plaintiff should be Tarmak because the purported transfer of the dinosaur to Glenmont was a nullity: at the time of the fire Tarmak owned T-Rex.  It is all to do with the hydraulics, admittedly owned by AGC and merely on lease to Tarmak.  The purported transfer of ownership to Glenmont was of everything including the hydraulics.  Mr Trim argued that as AGC was not told of the transfer, Limb and Jetson essayed to convert the property of AGC.  There is a clause in the lease agreement:-
"2.  I further agree: (a) ... (d) to keep the goods in my personal control and not to attempt or purport to sell or dispose of or encumber the same; (e) not to assign this agreement or my right hereunder ..."
118 To do any of these things is a criminal offence under s408C of the Queensland Criminal Code.  The transfer took place in Queensland.  As Limb has committed an offence under s408C then the transaction fails by way of illegality, Mr Trim said. 
119 S408C, in relevant part:-
"(1) A person who dishonestly -
(a)  applies to his or her own use or to the use of any person -
          (i)  property belonging to another; ...
     (b)  obtains property from any other person; or
(c)  induces any person to deliver property to another person; or
(d)  gains benefit or advantage, pecuniary or otherwise, to any person or
(e)  causes detriment, pecuniary or otherwise, to any person; or
(f)  induces any person to do any act which the person is lawfully entitled to abstain from doing; or
(g)  induces any person to abstain from doing any act which that person is lawfully entitled to do; or
(h)  makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment;
commits the crime of fraud. ...
(3)  For the purposes of this section -
     (a)  ...
(b)  A person's act or omission in relation to property may be dishonest even though -
               (i)  he or she is willing to pay for the property; or

(ii) he or she intends to afterwards restore the property or to make restitution for the property or to afterwards fulfil his or her obligations or to make good any detriment; or

(iii) an owner or other person consents to doing any act or to        making any omission; or

(iv) a mistake is made by another person; and
...
(d)  persons to whom property belongs include the owner, any joint or part owner or owner in common, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender's application of the property, had control of it;
...
(f)  if a person obtains property from any person or induces any person to deliver property to any person it is immaterial in either case whether the owner passes or intends to pass ownership in the property or whether he or she intends to pass ownership in the property to any other person."
120 "Dishonestly" is not defined in the Act but there are two Queensland decisions on the section in which the concept of dishonesty is considered.
121 The first is R v Laurie (1987) 2 Qd R 762, a decision of the Court of Criminal Appeal. The accused had sold a colour television which was on hire purchase. There are some helpful passages in the judgment of Connolly J (@ 763):
"Further guidance was given by the Court of Appeal in R. v. Ghosh [1982] Q.B. 1053 where it was held that the expression described the state of mind of the person accused, the test of dishonesty being subjective but the standard of honesty to be applied being the standard of reasonable and honest men. It was therefore held that the jury in determining whether an accused has acted dishonestly should first consider whether what he did was dishonest by the standards of ordinary honest people and, if they found that it was, they had then to consider whether the accused himself must have realised that what he was doing was by those standards dishonest."
122 Not long afterwards, the point was considered again by the CCA, R v Allard (1988) 2 Qd R 269: Thomas J (@ 270):-
"The test of dishonesty is essentially a question for juries which apply community standards of honesty or dishonesty from case to case.  In the present matter the learned trial judge summed up in accordance with the principles expressed in R. v. Ghosh ... This requires the jury first to determine whether the conduct of the accused was dishonest according to the objective standards of the community, and if so, whether the accused subjectively knew that his conduct was dishonest according to such standards."
123 Applying that test in this case, and being jury as well as judge, I could not possibly find proved beyond reasonable doubt that what Limb and Jetson did would be regarded as "dishonest according to the objective standards of the community" or that they "knew that this conduct was dishonest". Each gentleman was advised by solicitors.  The paperwork is extensive and complicated but in it are several references to the hydraulics being the property of AGC.  There was no concealment: no attempt to sell the hydraulics independently.  They remained in Limb's possession: Limb continued to make payments on account of the hire of the hydraulics.
124 Whether AGC knew the dinosaur had been taken out of Tasmania (this should not, according to the lease, have been done without permission) and was in Queensland is not clear.  Certainly AGC knew it was at the Royal Adelaide Show and did not complain about that.
125 I note that neither Limb nor Jetson was cross-examined about their states of mind regarding the transfer.  There is no evidence at all what they thought.  The chances of either Limb or Jetson being convicted of an offence under s408C are, I suggest, nil.  No offence under the section could be proved against them.
126 The point fails.  The transfer from Tarmak to Glenmont was effective.  Glenmont is properly the plaintiff.
127 I come now to consider in turn the liability, if any, of each defendant.
128 The first is O'Loughlin.  I have had some hesitation about whether he was liable at all but eventually have come to the conclusion that he was, to a small extent.  For this reason: he had seen the dinosaur: anyone who looked at it must have realised that there was a chance it was inflammable.  If so, it would be prudent to take some fire precautions, at least to have some fire extinguishers handy and to warn Foote whom he just left there doing the job, to be careful.  O'Loughlin said fire didn't even occur to him, even though oxy equipment was there and being used.  It should have occurred to him.  He owed a duty of care to Limb (or technically Glenmont) to take care in the dismantling of the enclosure and he breached it.  His failure to appreciate the risk was negligent. 
129 I should next deal with Foote.  Quite clearly he was negligent and he has been honest enough to admit it frankly.  He should never have been let loose on the job unsupervised.  He was young and keen to keep his job by doing what he had been sent to do.  He took risks using the oxy equipment above the dinosaur's head without taking any precautions.  Like O'Loughlin - and everyone concerned - he should have realised at one glance that there was at least the risk of fire.
130 What then of Parker and Edwards?   Their case has been that this was a labour and crane hire arrangement.  The job was O'Loughlin's, not theirs and so they are not liable.
131 First I do not accept that it was such a hire arrangement.  My finding is that they contracted with O'Loughlin to dismantle the enclosure for $600 - even though they have tried to dress up the documents (such as they are) to look otherwise.
132 I doubt, though, if it matters which was the true arrangement: if they were doing the job, they are clearly responsible for the actions of their servant, Foote, who was negligent. Even if it were a hire arrangement the law is, I suggest, against them. The authority is Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Limited (1947) AC 1. It has stood the test of fifty years both in England and in Australia.
133 In the learned author's commentary, under the heading "Borrowed Servants" Fleming, The Law of Torts, 8th edition (@ p375) says:-
"Borrowed servants"
     An employer frequently agrees to make the services of his employee available to a third party.  If in the course of performing the stipulated work, the employee injures someone, the general employer retains responsibility, unless he can establish that the effect of the transfer was to constitute his employee pro hac vice the servant of the employer.  In the course of the last 50 years, this burden has become increasingly heavy so that it can be discharged only in quite exceptional circumstances.  The principal reason for this bias may well be that the general employer, unlike the hirer, has selected the servant for the task and thereby makes himself responsible for the manner in which the work is carried out.  Besides, in the typical case of the general employer being in the business of lending out operating equipment and personnel, the cost of accidents can be quite economically absorbed in his own charges and rather more conveniently insured against because of his broader accident experience with this particular kind of risk.
     According to received doctrine, responsibility is here also identified with control.  Since in most cases control is divided between lender and borrower, the most obvious conclusion would perhaps have been to impose joint responsibility.  Instead, the assumption prevails that control and liability must, as a rule, be allocated exclusively to one or the other.  The test, we are told, is to ask 'Who exercised control not only over the task to be performed but also over the method of performing it?'   The ultimate question is not what specific orders, or whether any specific orders, were given but who is entitled to give the orders as to how the work should be done.  'Unless there be that authority, the workman is not serving the hirer, but merely serving the interests of the hirer.' "
134 Parker and Edwards sent Foote, with the crane and driver, to do the job.  It was up to him how he did it.  They held Foote out as capable and responsible.  Certainly he was told to obey O'Loughlin's directions but I accept the interpretation Mr Anderson put to me, that this was what to do with the steel, how to cut it once it was on the ground, where to stack it - not as to how Foote went about the dismantling, the expert work of a rigger.  O'Loughlin had no idea how to dismantle the structure. Parker and Edwards from their knowledge of O'Loughlin must have known that.  He made that known to Foote.  There are no "quite exceptional circumstances" by which Parker and Edwards can discharge the "increasingly heavy" burden of establishing that Foote was "pro hac vice the servant of" O'Loughlin.
135 Parker and Edwards are vicariously liable for Foote's negligence.
136 That only leaves the fifth defendant, the Show Society for me to consider.
137 Limb's application of 23 January 1985, in the name of Glenmont Investments Pty Ltd, for space to exhibit the dinosaur at the Royal Adelaide Show was received by the Society and it was the basis of the agreement between the plaintiff and the Society.  Eventually Limb paid the Society $2,780.  The application shews quite clearly - I have already set out this part of it - that water was a service required "For fire protection".  Paul Anderson being the draftsman of the form, said he had not meant it to be more than a request for water for cooking and things like that but there is no restriction stipulated on the form on the use for which water was required.  Limb was, on the face of the form, entitled to ask for water "For fire protection".  He paid $2,780 for that service, among other things.
138 Before the Show began someone had told Limb to have more fire extinguishers (he had brought some of his own).  He had seen the hydrant and was entitled to assume that it was to provide water for fire protection, that a hose would be long enough to reach.  The fifth defendant by accepting his money, not having demurred to his request for water for fire protection, had a duty to provide it: provision of water had become a term of contract.
139 Mr Trim pointed to paragraph 5(i) of the Exhibit Site Agreement:-
"5.i) The Society will under no circumstances be responsible for any accident damage or liability which may be caused through or by an Exhibitor or such Exhibitor's exhibit whether to the public or to another Exhibitor or to the employees of any Exhibitor or to their and any of their goods and chattels whatsoever and it shall be an express condition of the Licence hereby applied for that the Exhibitor shall hold the Society harmless and indemnify the Society from and against all legal proceedings and claims whatsoever arising out of such accident or damage or any breach by the Exhibitor of any statute or any By-law, Rule or Regulation thereunder for the time being in force and which may impose any liability on the Society."
140 He pointed to the Information and Conditions Booklet:-
"SECURITY
a)   The Society's normal security will be in operation during the period of the Show.  However, the Society accepts no liability for damage to exhibits by loss, fire, water, theft, storm, strike, riots or any other cause whatsoever."
141 These documents had been given to Limb.
142 Mr Trim argued that they avoided liability. Again I think the law is against him. I was referred to Carter & Harland (Third Edition) (@ 260-261, paragraph 763):-
" Negligence .  Whether an exclusion clause applies to protect a party from liability for negligence is, of course, a question of construction.  However, because negligence frequently results in personal injury or property damage rather than mere economic loss, it is usually said that the intention to exclude liability for negligence must be clearly expressed.  An express reference to negligence is sufficient.  However, a clause does not expressly exclude negligence unless it actually uses that word or a synonym."
The learned authors go on to make the point that courts are likely to allow a defendant to avoid liability if negligence be the only basis for liability.  Each clause must be considered.  They continue:-
"However, as Scrutton LJ explained in Rutter v Palmer, the rule is not invariable: the position is simply that the exclusion clause will 'more readily' exclude liability for negligence where that is the only basis of the defendant's liability."
143 Reading paragraph 5(i) of the Site Agreement it is quite clear that negligence is not the only basis on which there could be liability: the paragraph itself lists other bases.
144 Finally, on this point, Mr Trim argued that once the Show was over, the Show Society owed no further duty of care.  I do not accept that.  The exhibit was still on site lawfully - as it had been for some time before the Show opened: that the Society had given a deadline for removal of 20 September and that it still remained, did not make its presence unlawful.  The duty of care of the fifth defendant to the plaintiff was the same before, during and after the Show.
145 I conclude that the fifth defendant was liable to the plaintiff for its negligence.  That negligence consisted of the failure immediately to call the Fire Brigade - as soon as Anderson saw there was a fire - and not having, at least not using, the water available from the fire hydrant on the Angas Building to fight the fire.  The equipment was there: what was missing was the capacity to use it, through lack of training and lack of will.
146 Of course neither calling the Brigade immediately or using the fire hydrant would have avoided the fire but either could have greatly reduced the damage to T-Rex: it need not have been left a total loss.

147 I have wondered whether the plaintiff was guilty of any contributory negligence.  On the face of it Limb seems to have been fool-hardy to have left T-Rex at the Showground, trusting others to look after it.  Yet, if arrangements had been as he intended, his Uncle George would have been there to supervise and, I suppose, he was entitled to assume O'Loughlin and those he engaged were competent.  On reflection I have concluded that the plaintiff, through Limb, was not guilty of negligence.
APPORTIONMENT

148 I have already found the defendants negligent.  Each defendant has given contribution notices to the others.  All I need to do is to nominate their percentages of blame.  I fix the percentages:-
     Barry Peter O'Loughlin  10 per cent

David Allan Parker and
     Terry Peter Edwards jointly  50 per cent

Jonathon Paul Foote  10 per cent

Royal Agricultural & Horticultural Society     30 per cent

DAMAGES

149 I have found assessment of damages not easy: it is so much at large.  Limb had in mind lots of things at the time of the fire but nothing had been confirmed. The future was uncertain.
150 The plaintiff called several witnesses.  The defendants only one, on the cost of rebuilding the dinosaur: on other matters going to assessment, none.  They relied on skilful and searching cross-examination.  Despite all the skill and effort of Messrs Trim, Harms and Bell they did not dent the plaintiff's witnesses much: in detail, maybe: over  all, no.  I found the plaintiff's witnesses to be honest and truthful, competent, doing their best to help and not hesitating to acknowledge when their estimates may be inaccurate.  I propose to work on their figures but I bear in mind they are all estimates, not exact.  I can use them only as a guide.
151 Mr Holland, who addressed for the plaintiff on damages, put them under three heads - the cost of replacement of the dinosaur, the loss of a chance of making millions out of exhibiting it directly to the public and using it in films and so on, and interest.  I shall follow the three heads.
COST OF REPLACEMENT

152 At what time should the cost be computed? On this the defendants are in a bind.  On the one hand they argue that Limb (and so the plaintiff) was on his uppers in September 1984, living financially from hand to mouth.  They rely very heavily on this under the head of loss of a chance.  On the other hand the defendants argue that the plaintiff was under an obligation to minimize its loss: it should have got on with the rebuilding immediately.  Mr Trim even complained about the delay in taking proceedings, suggesting that the plaintiff should have taken proceedings quickly and obtained a declaratory judgment: it wouldn't have cost much, he said and could have been done in a year or so.  How he reconciled that suggestion with his argument that Limb was penniless and that even after proceedings were taken in 1991 eight years passed with the pre-trial procedures, I am not sure.
153 The plain commonsense of the matter is that there has been no way in which Limb could have gone ahead with the rebuilding until he had some money from this action.  He did not even have enough to begin the action until he had been paid out on the insurance and that took years.
154 My generation of lawyers was brought up on The Liesbosch v The Edison (1933) AC 449. Megaw LJ considered it in Dodd Properties (Kent) Ltd & Anor v Canterbury City Council & Ors [1980] 1 All ER 928 @ 935 and concluded:-
"A plaintiff who is under a duty to mitigate is not obliged, in order to reduce the damages, to do that which he cannot afford to do, particularly where, as here, the plaintiff's 'financial stringency', so far as it was relevant at all, arose, as a matter of common sense, if not as a matter of law, solely as a consequence of the defendant's wrongdoing."
155 That is to the point here.  The plaintiff up to now has had no money to rebuild.  There is a further complication.  The plans and sketches of T-Rex were stolen from Limb's car just when the dinosaur was nearly finished. That being so I propose to assess his damages as at trial: that is the cost in 1999 of rebuilding T-Rex.
156 Mr Chester George Bullock, consulting engineer of Launceston, has done calculations for the plaintiff.  The defendants had their own expert Mr Barry Allan Tozer.  Both gentlemen were helpful witnesses.  As one would expect they did not agree on their figures, Mr Tozer coming to lower figures than Mr Bullock.  I find it difficult to decide whose calculations are the more acceptable.  However, Mr Bullock had one great advantage over Mr Tozer.     Mr Bullock had been connected with the project from the beginning, in 1980.  As a structural engineer he had advised Limb, certified those parts of the work which needed certification and watched T-Rex grow.  He knew the creature from the beginning, literally inside out.  Mr Tozer on the other hand is an expert who has been brought in only since the fire and had no first hand knowledge of T-Rex.
157 Both plaintiff and defendants pointed to reasons why their expert should be preferred to the other but for me Mr Bullock's knowledge and experience of the building of T-Rex leads me to prefer his figures to those of Mr Tozer.  I shall use them as the basis for assessing the cost of rebuilding.  I say "basis" because with such a long and complicated job as this, precision is not possible.
158 I should also mention that the rebuilding will not be done in the same way as the original building.  In the early eighties Limb was a comparatively young man: he was single.  He was prepared to put all his spare time and energy into the project.  He was in every way the driving force in building T-Rex.  He is older now, married with children.  He cannot, he said, do it all again.  The rebuilding will have to be done by others.
159 Because I use Mr Bullock's estimates only as a ball park figure there is no point in going into every detail of them.  Suffice to say that I accept his figures as reliable even though some may have been a bit dented in cross-examination.  For purposes of my assessment I do not regard the dents as significant.  In March of this year Mr Bullock arrived at a total figure of $2,867,000.
160 To that I shall add sales tax.  I know, as I suppose we all do, that sales tax is likely to be abolished next year, to be replaced by the GST.  I should not take that into account: I must take the law as it is today.  I did not hear much argument about sales tax, I think because the defendants accept that it would have to be paid and therefore added to the cost of rebuilding.  The rate of sales tax is 22 per cent.  Adding it brings the cost of reconstruction to $3,497,740 according to Mr Bullock.  I shall be, if anything, a bit conservative so I shall allow $3,250.000 for rebuilding.
LOSS OF A CHANCE

161 I come now to the second head, the loss of a chance to make millions out of exhibiting T-Rex.  This is far more speculative than the cost of replacement.  Limb's plans were vague and none had yet come to fruition.  There are so many imponderables.
162 Limb had already, well before the fire, been in touch with Mr Juarez Robert Minick of Dallas, Texas.  Mr Minick who came to South Australia and gave evidence, has been in the amusement industry for the whole of his working life and is now principal in J R Minick & Associates Inc, advisers to the industry.  I readily accepted him as an expert specializing in entertainment at what are called in the United States "State Fairs": in Australia we call them "Shows", for example the Royal Adelaide Show.
163 Mr Minick's opinion was that T-Rex would be a success on the State Fair circuit, probably best if it travelled only to six to eight fairs each year.  Besides the fairs there would be opportunities for exhibiting at such places as shopping centres.
164 As with Mr Bullock, Mr Minick was vigorously cross-examined but retained his over-all optimism about success.  Apart from cross-examination his evidence was unchallenged.  I suggest that T-Rex would have been a success on the State Fair circuit in the United States: it had the potential to make millions for its owner.
165 Mr Stephen James Coultas, chartered accountant, of Adelaide made an estimate of how much T-Rex would have earned on the State Fair circuit, based on information Limb had given him on various costs involved in getting  T-Rex to America and of exhibiting it there.  Mr Coultas' calculations were put to Mr Minick and he broadly confirmed them but thought some of Limb's estimates might be 10 to 15 per cent high.  Mr Coultas estimated that from 1986 to 1992 on what he called the "Alternative Circuit (7 fairs)" - Minick's advice was that 6 to 8 fairs annually would maximise profit - T-Rex could have earned nearly $3,500,000 and, from 1993-2002 (allowing two plus years from trial for rebuilding - Mr Bullock's estimate was two and a half years and  Mr Tozer's two years) approximately $5,600,000.  That makes a total of nearly $9,100,000.  Taking off 15 percent brings it back to $7,735,000.  [These figures are in Australian dollars.]
166 The defendants' (I do not differentiate because on damages they made common cause) main attack was that Limb (and Glenmont) were penniless and could have done nothing with T-Rex.  Within a few weeks, they argued, had there been no fire, the creditors would have closed in and T-Rex would have been sold to pay them out, at least in part.  Even if that had not happened Limb could not possibly have found the money to pay the cost of getting T-Rex to the United States, let alone financed the dinosaur on the Fair Circuit.  Perhaps Limb and T-Rex may not even have been allowed into the States: T-Rex might not have met the requirements of fire regulations in the United States.  The defendants argue there just wasn't enough money and too many hurdles to jump.   T-Rex would have been going nowhere. 
167 All that may be plausible if one looks at the trees and misses the wood.  There would have been formidable hurdles for Limb to jump.  That is why I must discount heavily the chances of a profit in the United States.  But I do not accept the argument entirely.  It ignores several things. T-Rex was a marvellous contraption and had plenty of public appeal.  The creditors stood a much better chance of a return if the dinosaur continued to be displayed. Limb had in the past negotiated deals with his creditors to avoid repossession.  He was so determined to succeed that I believe the money would have been found.  All Limb needed to do was to get a financial backer.  I believe he would have done that.  So I shall work on the dinosaur having a chance of going to the United States and being a success. 
168 There were more opportunities than just on the Fair Circuit in the United States.  The evidence was mainly of other opportunities in Australia but the same opportunities could have been in the United States as well.
169 There had already been negotiations for T-Rex to go to Moomba in 1986 for a fee of $50,000.  When the dinosaur had been at Pre-Historic Park in Queensland, Limb had been approached about it being used in Sydney to promote a cinema complex.  That fell through but again a fee of $50,000 had been talked of.
170 Most of all T-Rex could have been a movie star.  The plaintiff called two gentlemen, Mr Ronald Victor Saunders and Mr Philip Gerlach to explain T-Rex' potential to be used in films.
171 Mr Saunders, who is now the Network Manager of major television for the ABC, a most senior position, in the early to mid 1980s had approached Limb about making a film with T-Rex as the central character.  I was told of the many pitfalls in film-making and the small proportion of films which succeed.  On the other hand I was told that most dinosaur films make a profit.  There was a chance this may have come off.   Public interest in dinosaurs was reaching a peak.
172 Mr Gerlach is Chief Executive Officer and Chairman of Total Film & Television, a feature film and television production and distributor company. Mr Gerlach was most enthusiastic and optimistic about T-Rex' success and earning capacity in films.  Not only from films themselves (I put it in the plural for Mr Gerlach talked of a film and sequel) but there is even more money to be made from spin-offs, merchandizing and so on.  Mr Gerlach did not and was not asked to make any specific estimates but I had the impression from the way he talked that profits could run into hundreds of millions of dollars.  I must acknowledge, though, that I found Mr Gerlach to be over enthusiastic.  Much of what he said was hyperbolic.  Yet even allowing for his exaggeration the future for T-Rex was financially most satisfying.
173 I don't want to give the impression that Mr Gerlach was unbalanced in his appraisal so I should mention that he did make three suggestions for "enhancing" T-Rex.  The neck area and jawline needed to be made more lifelike, fluids should be added to make the creature salivate and maybe its skin could be moisturised.  I accept the general thrust of Mr Gerlach's evidence but discount to an extent his great optimism.
174 Dinosaurs were in the 1980s and still are in the late 1990s, tremendous public attractions.  Most dinosaur films have been a success.  There is obviously an interest. T-Rex was built a few years before "Jurassic Park" was released.    T-Rex was far superior to other dinosaurs built about this time and Limb is at "the cutting edge of 'animatronics' ", Mr Gerlach said.
175 There was potential, which I readily accept from what I have heard about T-Rex, what I have seen in photographs and on video, for the dinosaur to make many millions, maybe hundreds of millions, of dollars.  I shall work on it being quite possible for T-Rex to have earned at least $100,000,000 from films, merchandising, fair circuits and other appearances.  On the other hand there's many a slip twixt cup and lip.  The whole thing may have come to nothing.  For that reason I shall discount by eighty percent the figure of $100,000,000 which is a conservative estimate of what T-Rex could have earned up to now. T-Rex was said to have at least a twenty-year life span so it would still have been going strongly today if all had gone right.  That brings me to a figure of $20,000,000 for the loss of the chance to have been a successful earner on the United States Fair Circuit and in film and on exhibition, either here or in America.
INTEREST

176 Finally there is interest.  Obviously there is no interest on the cost of rebuilding because it has not yet been incurred.  There should be interest, though, on the $20,000,000.  Mr Holland suggested 12 per cent.  Bearing in mind how interest rates have been in the last few years I think that is a bit high.  The writ was issued on 25 September 1991.  I allow $8,000,000 for interest.
177 That makes the total assessment:
     Cost of rebuilding                  $  3,250,000
     Loss of a chance  $20,000,000
     Interest  $  8,000,000

178 There will be judgment for the plaintiff for $31,250,000    I shall hear counsel on the orders I should make.

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