Jeffrey v Seeley International Pty Limited

[2012] VCC 1043

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-11-01615

JEFFREY	Plaintiff
v
SEELEY INTERNATIONAL PTY LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE MACNAMARA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April - 4 May, 14 & 15 May 2012
DATE OF JUDGMENT:	25 May 2012
CASE MAY BE CITED AS:	Jeffrey v Seeley International Pty Limited
MEDIUM NEUTRAL CITATION:	[2012] VCC 1043

REASONS FOR JUDGMENT

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Catchwords: Negligence; product liability; whether house fire attributable to air cooler manufactured and supplied by the defendant; Trade Practices Act 1974 Part VA; whether exhibiting `defect’; whether statutory defence under section 75AK Trade Practices Act 1974 available.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Kelly SC and Mr A Clements	Ligeti Partners
For the Defendant	Mr N Hopkins	Norton Rose

HIS HONOUR:

Background

1       On 21 January 2003 Mr and Mrs Jeffrey were both on annual leave.  They lived in the house at 4 Valley Mews, Wyndham Vale, a large reproduction Edwardian residence built for Mr Prewitt in 1996.  Mr Jeffrey is a nurse working as a member of the Crisis Assessment Team for Royal Melbourne Hospital.  This entails shiftwork.  As a result, he is not an early riser.  His practice is, when he wakes, to turn on the television in the master bedroom with a remote control.  His wife brings him a cup of coffee.

2       On this day he followed his routine.

3       One of the features of the Jeffreys’ house was an evaporative cooler mounted on the house’s iron roof above the kitchen meals area.  When she brought Mr Jeffrey his coffee, Mrs Jeffrey observed that the house “was a bit smokey”.  Mr Jeffrey told her to turn the evaporative cooler on using the fan rather than the cooling function.  There had been some bushfires and Mr Jeffrey assumed that some bushfire smoke had made its way into the house.  He intended that the fan from the evaporative cooler should expel or disperse the smoke.  Mr Jeffrey said he heard the motor in the cooler “click on” (as recorded in the transcript but counsel and I heard him say it “kicked on”).

4       Mrs Jeffrey said that in addition to turning the fan setting of the evaporative cooler on, she opened the house doors.

5       Mrs Jeffrey noticed that the smoke in the house had got thicker.  She noticed “a bit of an electrical burning smell, not like wood-fired smell”.  She said that she told Mr Jeffrey about this and turned the unit off.

6       Shortly afterwards the television in the master bedroom went off.  Mr Jeffrey assumed that this was simply a power cut.  Apparently power cuts are not infrequent in that area.  Mrs Jeffrey, however, went outside.  She said, “I just knew something was terribly wrong then”.  She said the evaporative cooling unit which was “above the sliding doors … from the kitchen … was billowing smoke”.  She rushed in and roused Mr Jeffrey from his bed.

7       When Mr Jeffrey emerged from the sliding doors in the kitchen immediately below the cooling unit, he saw a man whom he did not know with a hose pointing it up at the roof.  The water was not reaching the seat of the fire so Mr Jeffrey grabbed the hose and climbed on the roof himself.  He said he was barefoot and clad only “in my jocks”.  He climbed a ladder and though barefoot, was able to walk on the iron roof.  Again, he achieved little because the hose had “shocking pressure”.  Mr Jeffrey believed that the flow was constrained by a kink.

8       When he initially saw the fire the smoke was white.  In his bare feet he slipped off the roof and fell into the rockery.

9       Shortly afterwards, a unit from the Country Fire Authority arrived on the scene.  About this time the motor from the unit crashed down through the plaster ceiling, hitting the kitchen table and landing on the floor.  The volunteer fire fighters removed part of the roof so as to introduce hoses into the roof cavity.

10      According to Mr Jeffrey’s recollection, the kitchen ceiling as a whole collapsed later in the afternoon though he did not witness the collapse himself.  Eventually the fire was extinguished.

11      Before that ceiling collapsed, Mr Jeffrey had emptied the house, moving his family’s belongings into the garage.

12      According to Mrs Jeffrey, she was woken by her daughter, Michelle, who was living with her parents at this stage, at around 4:00 am and told that there was smoke in the house.  Mrs Jeffrey turned off the evaporative cooler which had been running through the night and closed all the windows since there had been bushfires the previous day and she believed the smoke had been coming in from outside.  She went back to bed.  Again, she had noticed a “haze” of smoke in the house when she awoke around 8:00 am and as previously noted, opened the windows and turned on the evaporative cooling unit to a “fan only” setting.  The smoke got worse.

13      The Country Fire Authority attended the blaze with multiple units.  The fire fighters were all volunteers.  The first unit, according to CFA records, arrived on the scene at 8:20 am.  One of the volunteers made an extensive photographic record of the scene and the fire fighting process.  There is some uncertainty as to the precise fate of the ceiling in the meals area.  Mr Jeffrey, as previously noted, recalls that the motor from the evaporative unit crashed through the ceiling presumably leaving a hole.  The rest of the ceiling collapsed, according to his recollection, spontaneously later on 21 July.

14      Other witnesses, including a number of experts, were of the belief that the ceiling had been “pulled down” by the fire fighters as part of the process of getting to the seat of the fire.  Amongst the photographs taken by the fire fighter on the scene are a number which show only a relatively small portion of the kitchen ceiling collapsed with fire fighters accessing the roof cavity by a ladder through that hole.  Another depicts a fire fighter with a hook implement on the end of a long handle which, it is agreed, is the implement used by fire fighters to pull down ceilings in these circumstances.  One of the fire fighter’s photographs shows puncture marks in the plaster ceiling in the vicinity of a number of downlights in the intact portion of the ceiling.  A ceiling may be punctured in this way with the hook implement with a view to either getting at the seat of the fire or testing whether the fire is burning immediately above the punctured section of the ceiling.

15      Two witnesses from the CFA gave evidence before me.  Captain Wells is a volunteer fire fighter with the Country Fire Authority and was, in 2003, the Captain of the Werribee Fire Brigade.  He was involved in a supervisory role in the fighting of the fire.  He was not aboard the first unit to attend, namely Werribee Tanker 2.  Captain Wells said that during his time as Captain, the Brigade attended hundreds of house fires every year.  He did not pretend to any independent memory of this particular incident and was guided only by the record which the Authority had made relative to this fire.

16      Mr Ranzenhofer, who is a fire investigator with the Country Fire Authority, also gave evidence.  Mr Ranzenhofer is a salaried officer.  He conducted an on-scene investigation of the fire according to his recollection later on 21 January.  The record which he made of the attendance showed the date as 22 January but Mr Ranzenhofer believes that this was simply an error in data entry.  He said he was on the scene for two hours and twenty minutes, spending 80 minutes examining within the roof cavity.  He found it safe to walk on the beams despite extensive charring.

17      Also in attendance on 21 January according to his records and recollections was Mr R, a forensic scientist who attended at the request of the Jeffreys’ household insurer and made a photo record for the purposes of his report.  According to his recollection, the whole of the ceiling in the kitchen meals area was down, which is a paradox given that Mr Ranzenhofer recollected that the ceiling was still up when he attended.

18      According to Mr Ranzenhofer and Mr R, they both attended the fire scene on 21 January.  Mr Ranzenhofer was on site for a couple of hours.  Mr R says he was there for a substantially longer period.  Neither seems to have seen the other.  The Jeffreys’ house is fairly large and I expect both examiners were interested in the house as a whole and would have viewed it in its entirety.  Nevertheless the fire, and most of the damage, was in the roof cavity above the kitchen meals area with a number of “drop” fires in that area and elsewhere.  Attention would have focussed on the kitchen meals area and the roof cavity above it.  It seems inconceivable that both examiners could have been on the scene at the same time and not have encountered one another.  This raises the possibility that the one, the other, or both of them are mistaken as to the day on which they attended.  If Mr Jeffrey is correct in his recollection that the ceiling as a whole in the kitchen meals area collapsed only later in the afternoon of 21 January, despite the entry in his records that he attended on 22 January, it seems likely that Mr Ranzenhofer did attend shortly after the CFA units and on 21 January.  Since Mr R found the ceiling already collapsed, there is much to be said for the view that he attended no earlier than the following day, 22 January.

19      The Jeffreys commenced this proceeding in the Supreme Court seeking damages from Seeley as the manufacturer and supplier of the evaporative air cooling unit.  Their case is that the fire originated in the unit as a result of design flaws in that unit.  They rely on the tort of negligence and also on certain statutory causes of action under the Trade Practices Act 1974.

20      The parties were agreed that the quantum of damages was $308,000.00 plus any statutory interest.

21      Seeley denies that its unit has any relevant design flaw.  Through its counsel, Mr Hopkins, it contends either that the evidence cannot establish the precise manner in which this fire occurred, in which case, since the Jeffreys bear the onus of proof, their claim must fail, or that it should be found that the cause of the fire was smouldering in Insul-fluff in the roof cavity caused initially by contact between one or more “downlights” in the house with blow-in Insul-fluff insulation in the roof cavity.

22      Given that this fire broke out while the owners of the house were in residence, and was fought and extinguished by a number of fire brigade appliances within only a matter of minutes of its initial outbreak with two fire investigators attending shortly afterwards, it is difficult to conceive that there could, at this stage, be serious uncertainty as to the cause and progress of the fire.  I was taken to an extensive photo documentation of the fire and its aftermath, with photographs taken by a volunteer fire fighter, by Mrs Jeffrey and by Mr R.  Because of an extraordinary combination of missteps and misfortune, substantial doubt does attend the cause and progress of this fire.

23      Mr Ranzenhofer said that as part of his investigation duties he usually takes extensive photographs.  On this occasion he had been told that a member of the Werribee Brigade had already taken photographs, therefore he took none himself.  The expert evidence before me indicates that whilst the Brigade member made a very extensive and informative photo record, there are important elements of the scene which he did not photograph.  Mrs Jeffreys’ photographs are most informative but are not selected with an expert fire investigator’s eye.

24      Mr R took the very significant range of photographs of the aftermath of the fire, but according to a number of experts, left important matters which may have shed light on causation or excluded potential causes, un-photographed.

25      Mr Moore, a metallurgical expert who carried out an investigation for the plaintiffs and gave evidence on their behalf, identified a damaged metal strip as the “smoking gun” which implicated the Seeley air conditioning unit as the cause of the fire.  Initially he believed that this damaged strip, which he said showed evidence of electrical arcing and which he believed to be the cause of the fire, was made of copper.  Ultimately, however, he discovered that it was made of mild steel.  He believes that this damaged strip came from the motor capacitor in the Seeley unit.  Experts giving evidence on behalf of Seeley initially denied that that metal strip was part of the Seeley unit at all, but ultimately accept that it may be following further investigations as to the type of motor capacitor in the relevant Seeley unit.

26      In the years since his initial involvement in this matter, Mr Moore has worked for a number of different employers.  The metal strip came from a bag of items which Mr R had collected from a point on the floor of the kitchen meals area generally below where the Seeley unit had been located.  He left those items un-catalogued and he seems from his reports to have displayed little interest in them.  Having implicated the metal strip, he identified a need for extensive testing, including a process of etching and investigation of a scanning electro-microscope.

27      Mr Moore conducted no investigation on the strip beyond viewing it under a low-powered microscope.  He took a number of photographs which other experts have said are sub-optimal in a number of respects.  When he changed employment the fire remnants which he had obtained from Mr R were left with his former employer.  A number of them were mislaid, including the alleged “smoking gun” – the metal strip.  Therefore, none of the other experts who have given evidence before me have had the opportunity of making a direct examination of the metal strip, being confined to viewing the sub-optimal photographs.  It is against this unhappy evidentiary background that a determination must be made as to whether, for legal purposes, the fire in January 2003 can be attributed to the defendant and its evaporative air cooling unit.

Technical considerations

The unit

28      The Seeley unit itself sat on the roof of the Jeffreys’ property with all of its mechanical parts above roof level.  It was quite large.  During part of the hearing a mock up was placed in the courtroom.

29      All four sides included lattice work piercing to permit the intake of outdoor air.  During the intake process the air passed through a permeable element which, operating in a cooling cycle, was kept wet and the air was cooled by passing through the wet element.  This cellular material was paper-based and highly flammable.

30      The area beneath the mechanical portion reaching into the roof cavity was known alternately as the dropper or shroud.  This was a void with the sole purpose of channelling the cooled air through a duct system which conveyed it to vents in the various rooms of the house.  The duct work was not part of the unit itself and was supplied by the contractor who installed the unit.  It was common ground that the duct work was flammable.  Following the fire, all that appeared to remain of it were a number of wires which had served the purpose of creating its shape.

The motor capacitor

31      The unit’s motor consisted inter alia of two windings.  With these windings energised, they would tend to cancel one another out, that is, the motor shaft would have no inherent inclination to turn either clockwise or counter-clockwise.  The motor capacitor supplies that inclination and in effect operates as the starter for the motor.

32      The capacitor was located in a plastic enclosure and was fitted to one end of the motor.  It appears that this plastic enclosure did not survive the fire and was entirely consumed.  The capacitor is tubular in configuration and fitted in the somewhat enlarged tubular shaped portion of the plastic enclosure.  It has four quarter inch terminals that are embedded in an epoxy end cap.  At the centre of the tubular construction are a number of items including terminals and an exceptionally thin foil section.  Wheels separate the terminals.  These items are embedded in epoxy resin.  The controversial damaged metal strip of which more will be heard later, was, according to the plaintiffs’ case, located at the very heart of the capacitor and covered entirely with the epoxy resin.

33      Whilst portions of the thin foil can break down in operation, current model capacitors, including whatever capacitor was fitted to the Jeffreys’ unit, are said to be self-healing.

34      In accordance with international standards, motor capacitors are classified as to their failure characteristic.  A capacitor which failed with an open circuit fails safely because no current will pass through the relevant circuit.  Where a failure takes place with a closed circuit, since the current continues to flow, a risk of further damage or fire remains.

35      The rating for this characteristic are P1 and P2.  A capacitor which is not demonstrated to have any particular protection to ensure that it fails safely is rated “PO”.  The capacitor which was used in the Jeffreys’ unit, unlike capacitors used in later Seeley units, was rated “PO”.

36      Another feature of the unit which attracted comment in the course of the evidence and possible causal attribution for the fire is the triac.  According to O’Loughlin J, who considered proceedings by Seeley International Pty Ltd against inter alia its supplier Newtronics Pty Ltd relative to fires in an earlier model Seeley unit, described the function of the triac thus:

“A triac is a well-known method of achieving variable speed operation of single phase motors; it can reduce the voltage that is applied to an AC motor and the reduced voltage causes the motor to run at a lower speed.”

Seeley International Pty Ltd v Cintro Pty Ltd & Newtronics Pty Ltd [2001] FCA 1862 [207]. The triac in the Jeffreys’ unit was located in a motor control box, once again an enclosure made of plastic and attached to the main motor housing. The triac’s function means that it tends to heat up. For that reason, it is mounted on an aluminium strip. Presumably, with a view to facilitating the strip’s fitting into the plastic enclosure it is bent at 90 degrees. The heat is intended to be transmitted from the triac to the aluminium or “heat sink”, as it is known, and dissipated from there.

Transformer

37      The controller housing is not absolutely airtight but it features no particular ventilation arrangement and is generally closed.  The motor control unit also included a transformer to produce 12 volt current for the circuit board.

Toroid

38      Another component in the motor control unit with a propensity to heat is the toroidal inductor.

Downlights

39      Downlights are small 12 volt lights typically set into the ceiling with a narrow focus.  They are sometimes referred to in the documents relative to this proceeding as “spotlights”.  They operate at a very high temperature and their components therefore are selected so as to survive those high temperatures without deformation or discolouration.  Since the normal household power source is 240 volts, they require transformers to step the current down to 12 volts.  These transformers are typically mounted in the roof cavity and are quite bulky and heavy.  No examples of the five downlights which it is common ground were installed in the kitchen/meals area of the Jeffreys’ residence have been put into evidence.  At least four of them are visible in photographs taken by the volunteer fire fighter.  The defendant’s experts have been inclined to inculpate them and Professor Baghurst (one of the defendant’s witnesses) produced photographs of exemplar downlights.  It is clear however, that these downlights are not of the same model as those installed in the Jeffreys’ residence.  Nevertheless, it was not suggested that the exemplars and those actually fitted did not share the same general generic features.  Professor Baghurst noted that cooling is provided by what he described as an “annular ring”; that is, a circular space towards the outer edge of the installation which allows the passage of air from the room to the roof cavity and vice versa.

Expert opinions

40      Whilst there is some doubt, as noted earlier, as to the precise order of attendance of the two investigators who examined the scene, namely Mr Ranzenhofer and Mr R, I incline to the view, as explained above, that Mr Ranzenhofer, the Country Fire Authority investigator, was first on the scene.

41      Mr Ranzenhofer concluded that the fire originated from the Seeley unit.  He observed that the damage in the roof cavity “lessened as it moved away from the unit” (T162, L28-9).  He observed that the roof trusses in the vicinity of the Seeley unit had burnt away completely (T163).  He also observed “metal discolouration on shroud of unit”.  He referred to what he described as “melt out”.  He explained this entry in his report as follows:

“There was on – in the area of the unit itself, there was a plastic component box.  I am not able to actually state what exactly was inside that box.  There were some electronics.  I am not sure exactly what they were.  What we look at is – ‘plastic melt out’ means that the fire had begun internally and thus allowed the plastic to melt away, whereas if a fire damages a plastic object from external, the plastic will tend to melt in.  So we look at which way – if the melt is outwards or inwards to give us another indictor of where the fire may have occurred.”  (T 164, L 23 – T 165, L 2)

This means that Mr Ranzenhofer observed a plastic control box as part of the unit which was partly destroyed and displayed features of having melted outwards, indicating a fire originating within.  Regrettably, as explained above, he took no photograph of this phenomenon.

42      Mr Ranzenhofer also noted charring in the beams supporting the unit and said:

“where you have the greatest amount of charring is an area that’s been subjected to fire for the greatest amount of time generally and so if you have got charring that’s quite low or in a particular area, as I have said, that’s an indicator also of where you are looking at the greatest amount of time that fire has been in that area.” [And is therefore the likely origin of the fire.]  (T 167, L 8-13)

He also noted damage to the trusses which he said were “above” the unit and supporting his view that the unit was the point of origin (T 167, L 16-21).  According to Mr Ranzenhofer the source of the ignition was “short circuit of wiring at evap. unit” (T 169, L 25-6).

43      Mr Ranzenhofer felt that his findings were supported by discolouration in metal portions of the Seeley unit.  It appears, however, that the discoloured metal object to which he was referring was a separate unit used for heating purposes and completely unconnected with the Seeley unit.  Further, he seems to have had a misconception as to the location of the unit.  All of its mechanical portions sat on the roof.  The area below the roof described variously as the “shroud” or “dropper” constituted no more than an open space through which cooled air travelled to be directed to various locations in the house through ducting.  The reference therefore to roof trusses as having sustained “overhead damage” on the supposition that they were “above” the Seeley unit seems to be, at best, a misnomer.

44      Mr Ranzenhofer said he investigated the downlights (T 404 L 31).  He said he “moved some of the Insul-fluff away from some of the downlights” (T 405 L 3‑4).  He found no guards around the downlight (T 405 L 13-14).

45      Mr Ranzenhofer noted photographs as showing dark lines on the un-collapsed portion of the ceiling in the kitchen meals area.  He did not believe that this was indicative of combustion immediately above, rather, he thought these lines were the joins in the plasterboard which are covered with tape and then plastered over during installation.  These joins represent a point through which the water poured on the fire would tend to seep (T 406 L 29 – T 407 L 2).  Mr Ranzenhofer said the photographs showed “ceiling hook damage” in the vicinity of one or more downlights in the un-collapsed portion of the ceiling (T 407 L 16).  Mr Ranzenhofer could not recall observing the remains of any downlight transformer.

46      Mr Ranzenhofer said he “found no evidence to point me in [the] direction of the downlights.” (T 415 L 22-3).  He saw no discolouration in the vicinity of the downlights and this was consistent with the photographs taken by the Brigade member.  Mr Ranzenhofer conceded that downlights operate at “extremely high temperatures” (T 416 L 28).  He said, however, that he had never seen evidence of a fire caused by downlights “without damage to the external part of it” (T 417 L 10).

47      Mr Ranzenhofer said he examined the possibility that one of the downlight transformers was the source of the fire but he excluded that possibility.  He said he looked through the plaster which had fallen from the corner of the room where the ceiling had collapsed at the time of his investigation and found no damage to transformers.  Even if a transformer were the source of the fire, he said he would expect some part of it to have survived (T 183-4).  Again he said that he examined the possibility that the downlights caused the fire and excluded that possibility (T 182).

48      Mr R attended the premises, according to his records, as the request of the Jeffreys’ household insurer.  According to his records, he attended on the day of the fire, though for reasons explained above, I think it more likely that he attended the following day.  Mr R recovered the electric motor from the Breezeair unit and what he described as “electrical system remains” for further examination.  Mr R, who describes himself as a forensic scientist specialising in metallurgical failure, investigation, materials, explosion and fire related investigations, concluded in his preliminary report to the insurer dated 28 January 2003, that:

“The fire had initiated in the roof space above the main living area adjacent to the kitchen and was directly associated with the evaporative cooling unit.”

He noted severe damage to the unit remarking on “artefacts of localised overheating associated with the rotor shaft bearings.”  Mr R prepared a further, lengthier report to the insurer dated 31 October 2003.  He reiterated his initial conclusion attributing the fire to “bearing overheating in service” and adding:

“Further, fusion of conductors ultimately arising from high resistance current tracking across the gradient insulation on wiring within the unit cannot be excluded as a contributing ignition source.  All other causes of the fire have been excluded.” 

49      According to Mr R his examination of the scene was substantially lengthier than that undertaken by Mr Ranzenhofer.  He said of the overheated bearing that he identified in the motor of the unit that the overheating was “evidenced by a significant ball race temper discolouration and artefacts of local fusion.”

50      By letter dated 8 December 2004, that is, almost a year after the fire, the solicitors for the Jeffreys raised a number of particular issues.  Paragraph six of the letter stated:

“We understand there was some transformers in the ceiling space above the kitchen for the spotlights.  These confirm the transformers were identified and found not to have been related to the cause of the fire.”

51      Mr R’s response was:

“Yes, downlights were present in the kitchen.  None exhibited evidence of either internal overheating leading to combustion or electrical malfunction.  They were excluded as a possible ignition source.”

52      Question Eight enquired as to the insulation material in the roof space and whether it was fire retardant.  Mr R responded:

“No evidence of significant combustion of the insulation was detected.  It was therefore concluded that it was in fact fire resistant/retardant, however, the nature of the retardant is not known.”

53      Mr R said he excluded the downlights as a cause of the fire.  He found all five of them and examined them.  This examination was not recorded in his report because it is his practice to record only those things which he regards as significant, not those which his enquiries have excluded as being causally significant (T 325 L 25, T 326 L 4).  The plaintiffs do not place specific reliance on Mr R’s report except perhaps in the most general sense that he inculpates the defendant’s evaporative cooling unit.  Mr R was called principally to give evidence as to the observations which he made and as to the custody of artefacts which he removed from the scene.  He said he delivered those artefacts to Mr Moore, another expert who gave evidence for the plaintiffs.

54      Mr R said that he acted only on the instructions given by the insurer.  He particularly abstained from obtaining any history from persons who were present at the fire, including the Jeffrey family or any CFA officers or volunteers.  He said that he regarded information that might come to him from such a source as inappropriately subjective.

55      Mr Moore holds the Degree Bachelor of Applied Science in Metallurgy and a Graduate Diploma in Engineering and Building Fire Safety and Risk Engineering.  He was engaged in June 2004 by the plaintiffs’ solicitors, seeking his advice as to the correctness of Mr R’s opinion and as to causal issues relative to the fire generally.

56      Mr Moore rejected the view of Mr R that the bearings initiated the fire.  He said the damage to the bearing relied on by Mr R was:  “considered to be a localised change in the colour of the oxidation and blueing possible [sic] due to molten plastic having run down the side of the bearing.”  Moreover he said the shaft associated with the relevant bearing “did not exhibit any signs of significant heat damage or wear due to rough or out of balance running of the bearing”.  Nevertheless, Mr Moore attributed the fire to the [Seeley] Breezeair unit.  He identified what he described as a copper strip.  He believed that:

“The most likely cause of the fire was an electrical fault within the Breezeair unit associated with the copper strip.  Further metallurgical examination should be performed on the recovered conductors and copper strip.” 

He remarked:

“The copper strip had a severely eroded area that was considered to be either due to arcing or liquid metal attack … given the shape of the damage, the lack of any molten aluminium and the lack of damage to the adjacent area it is considered that the cause was most likely arcing.  This should be confirmed by further metallurgical examination.”

57      In a further report dated 18 October 2006 to the solicitors for the plaintiff, Mr Moore, following discussion with Seeley, which seems to have been carried out without informing Seeley that the enquiries related to a negligence claim against it, representatives of Seeley suggested that the strip might be “a solder track off the electronics board”.  As a result, Mr Moore purchased a Breezair EMES switch terminal box.  He said:

“The control unit examined did not contain a solder strip of the same size and shape as that recovered from the fire scene.  However, it did contain a steel strip to which a number of copper contact points were soldered.”

Again, Mr Moore suggested further investigation.

58      Mr Moore was given certain documents relating to the design of the Breezeair unit.  He responded by letter of 26 February 2007 that:

“The solder strip could be that part of the circuit that supplies power to the various pumps and motors referred to in some of the documents received.”

Meanwhile, however, due to a change in Mr Moore’s employment, the strip had gone missing and it had become evident that the strip was steel rather than copper as initially thought.  All that could be provided to the solicitors for Seeley International, which had by this time been sued by the plaintiffs, were photographs in digital form.

59      Mr Moore provided a further report dated 27 December 2007 in which he responded to opinions expressed on behalf of the defendant by Mr Henry Kutek who rejected the notion that the strip was the cause of the fire.  Mr Moore responded:

“Given the level of metal loss it is considered that the damage to the strip would have occurred over a period of time and multiple arc events but did not trip the circuit breaker.  Given the strip comes from within a control box it is considered more likely that an external fire would cut the power to the unit prior to affecting the strip that is buried within the control box and hence surrounded by plastic that would melt around the strip, also the fire would be more likely to affect the conductors within the unit that would be more exposed.”

60      In an email to the solicitor for the plaintiff, Mr Moore once again re-asserted his opinion and rejected the view of the defendant’s expert Mr Kutek, that downlights were the cause of the fire:

“Mr Kutek also does not explain the presence of the steel strip in the debris, the observation of the fire from the unit, the conclusions of the CFA officers or the fact that the downlights were in the kitchen below the unit but he states the fire started further away in the southwest corner and started to spread.”

61      Mr Moore made a final reiteration of his opinions to the solicitor for the defendant in a short memorandum dated 10 April 2012.

62      The plaintiffs also called evidence from Dr Peter Hart, who is an electrical engineer.  In his first report to the plaintiff’s solicitors of 20 August 2008 he reviewed the existing expert opinion.  He concurred in the rejection by Mr Moore and Mr Kutek advising the defendants of Mr R’s theory that an overheated bearing caused the fire.  Dr Hart postulated some five causal scenarios.  The first entailed overheating the triac circuit.  He hypothesised the triac circuit caused the plastic box in which the triac is located to overheat and drape itself onto the circuit board, resting on the heat sink or the toroidal transformer.  This was the source of the smell and the smoke which was discovered at 4:00 am.  He continued:

“When the air cooler was turned on again the plastic covering the circuit board provided a thermal blanket that prevented proper cooling and led relatively quickly to fire initiation.”

63      The second scenario had the toroidal inductor IN1 overheating in its housing, catching fire.  He hypothesised as in scenario one that:

“The plastic enclosure may have softened and draped over the circuit.”

64      A third scenario had the transformer TF1 overheating and catching fire.  Once again, the plastic enclosure softening and draping over the circuit.

65      The fourth scenario entailed an electrical fault developing in the ceiling space resulting in an electrical short circuit.

66      The fifth scenario had the motor start capacitor failing and catching fire.  This resulted from “gradual deterioration due to internal heating”.  He thought this heating caused a “localised failure of the polypropylene separator which led to the build up of organic gases.  Eventually the capacitor ruptured.  This was the cause of the smoke haze through the house”.  He continued:

“When the motor was turned on again at 8:00 am … the capacitor was re-energised and generated further smoke before catching fire.  The internal polypropylene layer in the capacitor is combustible.”

In that scenario he said:

“The capacitor had ruptured but was operational to a limited degree.”

He noted that capacitors have an extremely thin metal layer on top of the separator.  He observed:

“Vaporised regions may not draw a significant fault current because of the fineness of the conductive layer and hence the high electrical resistance that limits fault current level.  It is possible but unlikely that the motor operated without apparent problems and blew air normally.  I expect some degradation of motor performance would have occurred however, this may not have been noticeable to the occupants.”

He said scenario five was:

“Possible but less likely than scenario one.”

He continued:

“The apparent absence of any motor capacitor parts (such as the terminals or the metal can) in the debris is consistent with the thesis that the capacitor exploded and caught fire.”

67      He favoured scenario one because:

“The air cooler had been on for an extended period because the ambient temperature conditions had been very hot. … The heating potential of the triac and toroidal inductor would be greatest at some intermediate speed setting.  Unfortunately there is no report about the air flow setting.”

68      Dr Hart provided a supplementary report in 2010, 7 April of that year.  In that report, following perusal of material from Professor Baghurst, another of the defendant’s experts, Dr Hart said that he agreed that the strip was not from the control or circuit board.  He continued, “It may have been from the motor capacitor”.  Dr Hart said that information provided to him by Mr James of Seeley was to the effect that for the relevant period, the rating of the capacitors used in the relevant unit was “PO” and that commentary provided by Professor Baghurst as to the performance of capacitors with a P2 rating was irrelevant.

69      Dr Hart included material which he said gave evidence of the possibility of capacitors causing fires.  He said that he re-asserted his view that:

“The damage to the strip is most likely to result from an electrical fault.  It appears to be arc erosion damage.”

He rejected the opposite opinion of Mr Kutek, one of the defendant’s experts.  Nor did he accept that the housing for the capacitor which was established as being Noryl, a flame resistant plastic, would necessarily contain any fire generated by the capacitor, or for that matter, the toroid or triac.  He said:

“The toroidal inductor, which is clearly from within the control enclosure, has burnt and been liberated from the enclosure.  The enclosure has burnt away.”

70      He provided a further supplementary report dated 10 March 2012.  He said:

“The inductor, IN1, is used to smooth the current wave form in the ‘run winding’.  It suppresses ‘harmonic currents’, which reduce motor efficiency.  The inductor heats up because it continuously carries the run winding current (which is the major component).  The higher the current the greater the heating effect.”

He said that the triac also got hot.  He referred to modification to the control box used in the EZH215 Breezeair model which he said was comparable with the ES210, the model fitted at the Jeffreys’ residence.

71      In his oral evidence he said the comparability derived from the fact that they both had 1500 watt motors.  The revised control box had enhanced cooling features.  This, he said, was indicative of a tendency to overheat in the version of the control box fitted to the Jeffreys’ unit which had a significantly smaller heat sink than the EZH215 and was completely sealed, in contrast to the EZH215 control box which had a cooling air flow.

72      In the fourth report dated 19 April 2012, Dr Hart responded to a discovery made by Professor Baghurst, one of the defendant’s experts, that the ICAR ecofill capacitor model MLR25PRL which was used in the Seeley units contained parts that were ferromagnetic, that is, made of steel.  Dr Hart dissected one of these ICAR capacitors.  He found the central metal strip to the strip terminal was ferromagnetic.  This led Dr Hart to the following conclusion:

“I am almost certain that the part Mr Moore inspected is from the motor capacitor of the Jeffreys’ evaporative cooler.”

He said that he believed the damage to the strip that was evident in the photograph was:

“due to clashing between two electrically live metal parts; that is short circuit.  The result is localised melting erosion of metal due to intense heating.” 

He tended to exclude liquid metal attack, observing:

“There is no evidence that there was molten aluminium in the vicinity of the capacitor.  The housing did not melt at that end.  The strip was protected by the plastic capacitor body.”

73      He noted that the capacitor is mounted inside a plastic enclosure:

“So the contact must have been from inside.  Because the central strip is normally inside a plastic insulating cylinder, there must have been an explosive failure of the part for this damage to occur.  The short circuit probably involved direct contact between the central strip and the other terminal metal.”

He said:

“The failure mechanism of polypropylene film capacitors is that micro-breakdowns of the insulating film occur and this liberates some organic gas.  A pressure build-up can occur but eventually leads to rupture.  The gas is flammable because it is derived from the plastic film.  Because the capacitor has live voltage across it, a spark is certain to occur.  The gas ignites and the capacitor explodes and burns.”

Dr Hart therefore, ultimately seems to have plumped for what he described as scenario five as the causal mechanism leading to the fire at the Jeffreys’ house.

74      The defendant relied on evidence from two experts, namely, Mr Kutek and Professor Baghurst.  Mr Kutek was engaged by the solicitors for Seeley in 2006 following the commencement of this proceeding in the Supreme Court.  Mr Kutek holds qualifications in metallurgy and engineering and offers consultant services in forensic engineering, fire and material matters.  His first report was dated 4 October 2007.

75      Commenting on the expert material relied on by the plaintiff at this stage, Mr Kutek observed, “Mr Moore is not a metallurgist.  If a metallurgist examined the components, where is his report?”  It is now accepted that this challenge to Mr Moore’s credentials was in error.

76      Mr Kutek was caustic in his criticisms of Mr R’s report, some of which he said “illustrate his [that is Mr R’s] apparent ignorance of the role of the electrical system and fire scene analysis”.  Had Mr R properly documented and mapped instances of electrical damage to circuits and the response of circuit ‘protection devices’, according to Mr Moore, Mr R “would have had information which would either confirm his view that the cooler was the point of origin of the fire or indicate that the origin was elsewhere, in which case further onsite examination could have been undertaken to correctly identify the area of origin and there to collect reliable evidence of the probable cause of the fire”.  Mr R, he said, “also seems oblivious to the fact that downlights may ignite loose fill insulation and did not determine if the lights had barriers fitted”.

77      As a result, said Mr Kutek, “the downlights were wrongly excluded as a possible ignition source”.  He felt that Mr R had not properly documented his investigation and photographed items in situ before removing them. 

78      Mr Kutek observed that where insulation “has been subjected to a smouldering fire of some duration [it] is greatly reduced and reduced to a mixture of ash and carbon. Remains easily disbursed during extinguishment of the fire”.

79      As to Mr Moore’s opinion, Mr Kutek said “Mr Moore’s conclusions that the fire was caused by an electrical fault within the air cooler are speculative and based on [Mr R’s] unsound investigative techniques and his own unqualified examination and debris removed by [Mr R.]”.

80      On the basis of what Mr Kutek regarded as unsatisfactory initial investigations, he concluded:

“From this remote distance it is not possible to confidently identify the cause of the fire.  It has been my experience that many fires are wrongly attributed to evaporative air coolers because that is where smoke and/or flames are first seen.  However, fires do start in evaporative coolers and the evidence of the cause of the fire is usually clear and unequivocal.”

81      With confirmation that the insulation was of the “blow in” type, Mr Kutek thought it was possible that the insulation may have been ignited by a downlight or other event “and smouldered for some hours”.  He said that if the smouldering fire on the night 20 to 21 January 2003:

“Had damaged a duct [of the cooling system] then, when the air cooler was turned on immediately prior to the fire, smoke would have been blown through the damaged duct into the room or rooms it served.  The air escaping from the damaged duct would then have provided forced ventilation to the smouldering installation which may have begun, flaming combustion.”

82      Mr Kutek said that the plaintiffs’ reports “lacked rigour and objectivity and their conclusions are not supported by the evidence”.

83      In a second report of 23 October 2008, Mr Kutek provided his commentary on Dr Hart’s report of 20 August 2008. 

84      Mr Kutek’s criticisms were brutal.  He said:

“Mr [sic] Hart demonstrates gross ignorance of the appearance of short circuit damage to conductors.  I refer him to Kirk’s Fire Investigation by John De Haan, where he can learn about ‘typical’ appearances of arc and fusion beads.”

85      Mr Kutek said that Dr Hart’s scepticism as to the smouldering fire was unjustified:

“I [that is Mr Kutek] have had personal experience with several roof fires involving accidental ignition of this type of installation in which it smouldered for many hours (in one case over 24 hrs) before resulting in a free burning fire.  Again Mr Hart demonstrates his lack of expertise in this area.  I again refer him to Kirk’s.”

86      Mr Kutek noted that Dr Hart tended to reject the theory that the fire was caused by smouldering insulation where he commented that “photograph 5 by Mr R showed Insul-fluff directly below the air cooler had not burnt”.  Mr Kutek believed that this was a reference to “photograph 15” showing the motor from the cooler lying on the floor “with what appears to be unburnt loose fill insulation near to it.  The location of this photograph is unknown, how the motor got there is unknown, how the insulation got there and where from are unknown. Hardly compelling evidence.”

87      As we now know, the motor was just inside the sliding doors to the kitchen and meals area and it landed there, having fallen through the ceiling, first striking the nearby table.  The inference that the insulation fell with it at the same time seems strong.

88      As to the five scenarios postulated by Dr Hart, Mr Kutek said they were “essentially unproven and unprovable hypotheses made by a person who lacks the fundamental knowledge of fire behaviour and interpretation of evidence from a fire scene to evaluate it with his own hypotheses.”   Mr Kutek maintained his opinions despite what was said in Dr Hart’s report. 

89      Mr Kutek provided a further report of 25 March 2009, this time in response to Mr Moore’s report of 27 December 2007.  As to the opinion that the fire was caused by lengthy smouldering in the “blow in” insulation, Mr Kutek referred to a work by Babrauskas “Ignitions Handbook”, remarking “Babrauskas reports instances of fire retardant treated cellulosic insulation smouldering for two days and smouldering rates of 100mm per hour for untreated material and 115-130mm per hour for material with insufficient fire retardant.”

90      He also reports that a test with a 75w lamp placed on a variety of commercial fire retardants treated cellulose insulation resulted in smouldering being initiated in 100 per cent of the trials.”

91      As to the metal strip, Mr Kutek first discounted the popular belief that short circuit “resulting in arc damage to a conductor” would be a likely cause of a fire.  He said:

“Mr Moore is unable to produce any evidence that the arc which preceded the fire, cannot historically differentiate between the two instances of apparent arc damage to the strip and has no idea what the first ignited fuel may have been.  It is hardly compelling evidence.”

92      Again, he said “it could not be established that the metal strip was from the unit”.  He rejected the idea that it was a solder track from an electronics board, remarking “steel is used not as a conductor on printed circuit boards”.  Mr Kutek continued “having examined samples of components that were used in the manufacture of the subject air cooler, I can say that the strip was not part of the cooler as supplied”. 

93      He said that whilst Mr Moore did consider the possibility of a downlight igniting the thermal insulation, he demonstrated “a lack of understanding, knowledge and experience in dismissing it so readily”.  He said “[Mr R] did not consider the possibility at all”.  He concluded “there was insufficient evidence to establish that the strip was the cause of the fire”.  He was almost certain that the strip was not part of the unit and therefore was of the view it was “improbable that the fire was caused by the air cooler”.

94      Mr Kutek’s next report was dated 15 February 2011 and was furnished as a commentary on Dr Hart’s report dated 7 April 2010.  Mr Kutek said “I accept that Dr Hart is a qualified and experienced electrical engineer.  I remain unconvinced of his competence in fire investigation and materials”.  Insofar as Dr Hart had suggested that the strip might have been part of the motor start capacitor, he said “this was mere speculation”, observing “Dr Hart had adequate opportunity to obtain a comparison capacitor, dismantle it and look for a steel strip”.

95      Again, there was scathing criticism referring to Dr Hart’s “poor understanding of the mechanisms of ignition of loose fill insulation” and to “often ill informed speculation”.

96      The final report of Mr Kutek was given on 10 April 2012 responding to the last of Dr Hart’s reports dated 10 March 2012.  Mr Kutek reiterated his contention that no proper evidence had been furnished by Dr Hart to support a theory that the motor capacitor of the ceiling unit was the cause of the fire insofar as Dr Hart suggests the triac or the toroid in the motor controlled unit.

97      Mr Kutek said:

“A 1500w motor operation of 250v draws approximately 6.25a.  I estimate that the heat generated by this current flowing through the inductor [that is the toroid] to be of the order of less than 1w.  A typical car taillight globe dissipates about 8w.  It is highly unlikely that the IN1 inductor would overheat while the motor was operating.”

98      Mr Kutek agreed that the triac may get hot.  He noted there was a manufacturer’s recommendation to provide a heat sink for the triac.  He said:

“Dr Hart does not suggest that the heat sink does not comply with the manufacturer’s recommendations.  Given the geometry of the circuit and enclosure, it is my opinion that the triac would catastrophically fail before the heat sink was hot enough to ignite the contents of the enclosure if there had been some circuit fault that caused the triac to overheat.”

99      He was doubtful of the comparison drawn by Dr Hart between the subject ES210 model manufactured by Seeley and the revised design of the later unit.  He remarked, “I am not sufficiently familiar with Seeley’s product to comment further at this time”.

100     In light of investigations carried out by Professor Baghurst, the defendant’s other expert witness, to which I will turn shortly, at the end of his cross-examination Mr Kutek was willing to concede that the metal strip probably came from the motor start capacitor on the Seeley unit.

101     The other expert witness relied on by the defendant was Professor Baghurst.  Professor Baghurst is an electrical engineer by profession.  His main activity is as principal of a company trading as CalTest, providing electrical testing services.  He is an adjunct Associate Professor at the University of South Australia.

102     In his first report dated 23 February 2009, Professor Baghurst was critical of Mr Moore’s investigation and report in similarly scathing terms as Mr Kutek.  He made similar criticisms of Dr Hart, saying “Hart’s knowledge of the essential electrical engineering and the aspects of the air cooler is rather confused, indicating that he has little familiarity with such equipment”.  Professor Baghurst felt the smouldering fire instigated by downlights was a more likely explanation.  He remarked:

“No investigator has found or mentioned any fire resistant barriers, as required by AS3000: 2000, and this strongly suggests that no such barriers existed, as it is most unlikely that all such barriers, had they been installed, would have been heat damaged to the point of being unrecognisable as such.”

103     He said:

“The action of switching on the air conditioner to clear the smoke raised the air pressure inside the house (which was the way in which such coolers operate) and…this pressure caused air to flow through the annular ventilation apertures in the downlights.  The sudden flow of air provided oxygen to the cellulosed-based insulation which had hitherto only smouldered, and a full-scale fire was the result.”

104     Professor Baghurst rejected Dr Hart’s hypothesis that the triac overheated.  He said:

“At excessive temperature, a triac tends to simply switch on permanently, and the motor is then supplied at maximum voltage, and runs at maximum speed.  Under these circumstances, the switching losses (that is, those losses associated with the switching interval, during which there is, for a very short period, simultaneously significant voltage across and current through the triac) are absent.  The effect of the absence of switching is therefore to reduce the average power disadvantage within the triac, and its temperature drops.”

105     He also rejected the hypothesis that the toroid might have overheated and said the cooler was operating normally and there was no reason to think it would overheat and, in any event, there was a protective device in the motor winder “which is both current and temperature sensitive. That device would open were…an excessive current to flow”.  He said “this protection would also operate with respect to the triac”.  He rejected any suggestion that the transformer would have overheated.  He said “were it to have failed catastrophically the air conditioner could not have restarted”.  As to the suggestion of an electrical fault developing in the ceiling space, he discounted this on the basis that it would have been dealt with either by the circuit breakers or fusers. 

106     Finally, he dealt with the attribution to the motor capacitor scenario fire, noting that the exemplar capacitor studied by Dr Hart was “of the P2 type which is designed to fail safely”.  In any event, the capacitor was “enclosed in a sturdy box of flame-retardant material”.  Were a P2 capacitor to fail the electrical circuit would be open and no current would flow in the circuit.

107     Professor Baghurst had been advised of a statement by Mr Jeffrey that he had placed the downlight transformers on the beams in the roof cavity, thereby moving them away from the direct proximity of the loose insulation.  He said the exemplar downlight transformer that he had tested was quite heavy.  Professor Baghurst thought the metal strip might have been from one of these transformers and he agreed with Mr Moore that “the metal strip may well have played an active role in the initiation of the fire, but [he could] say with confidence that the metal strip was not part of the air cooler unit”.

108     Professor Baghurst sent a letter to the defendant’s solicitors dated 19 May 2011.  This document is not in the form of a report and does not respond to specific questions raised by the solicitors.  It does, however, record investigations made by the professor into a range of capacitors.  This led him to the conclusion that the controversial metal strip might have come from an ICAR capacitor (which was one of the capacitors used in the relevant model of cooler), despite the steadfast denials which he and Mr Kutek had previously made.

109     He then delivered a further report dated 24 February 2012 responding to a request by Seeley’s solicitors to review a report from Dr Hart dated 7 April 2010.  This raised a further matter relative to the capacitor.  It will be recalled that in an earlier report the professor had spoken of the P2 capacitor’s characteristic of failing to “open” so that no electric current would flow through the circuit. 

110     In the report of February 2012 he said that he now understood “that the capacitor used in the air cooler in question was probably a PO type, which has different failure characteristics”.  He said of Dr Hart’s suggestion that the capacitor might have failed because of excessive harmonic current that he disagreed because the supply to the “start” winding “will be essentially sinusoidal”.  Hence, he disagreed with the suggestion. 

111     The professor said his instructions from Seeley were that it could not be established with certainty that the ICAR capacitor was fitted to the Jeffreys’ unit [note the concession made in cross-examination that the controversial strip probably was from the motor capacitor of the Seeley unit at the Jeffreys’ residence].  The professor said:

“Note that the steel strip found in the ICAR capacitor is located at the centre, and runs along the longitudinal axis of the capacitor (which has a cylindrical shape)…it is embedded at the centre of the capacitor in a heavy resin coating, which is, in turn, covered with a plastic sleeve.  In order for electrical arcing to take place, another solid metallic ‘electrode’, electrically connected into the motor circuitry, would be required.  No such electrode exists in a capacitor of this type, the nearest electrically conductive material to that central metal strip being the capacitor elements themselves…”

112     Finally, whilst the trial was in progress, Professor Baghurst was asked to comment on a transcript of Dr Hart’s evidence insofar as Dr Hart had referred to a “dancing arc” as having produced the damage to the metal strip.  Professor Baghurst said this phrase was not part of the electrical engineering lexicon and “appears simply to be a product of Dr Hart’s imagination”.  He said that capacitors do not suffer a gas pressure problem towards the end of their life leading them to explode, as he believed was implicit in Dr Hart’s evidence.  He continued:

“I would point out that in (say) Melbourne alone there would, at any given time, be millions of such capacitors in service and energised (primarily), but by no means exclusively, as ‘power factor’ corrector and devices in discharged lighting systems.  I have never experienced any capacitor failure which remotely resembles that which Dr Hart describes, and if capacitors did behave in the way he postulates, then age of capacitors would need to be treated as highly dangerous objects in a similar way to (say) unexploded ordinance.”

113     He described Dr Hart’s theories as “an ever increasing frenzy of baseless speculation”.

114     He noted that Dr Hart had, in viva voce evidence, suggested that had the motor capacitor in the Jeffrey’s unit failed in short circuit mode, the unit could nevertheless have been restarted at 8am, as the evidence shows that it was.  He noted that Dr Hart had referred, in support of this hypothesis to a student text, which apparently Dr Hart used as a student, “Electric Machinery” by Fitzgerald, Kingsley and Kusco.  Professor Baghurst said this was an excellent text but that in his view Dr Hart had misinterpreted.  He recorded how he conducted an experiment in which he disabled the capacitor laying a short circuit across it in a motor of a similar type to the one used in the Jeffreys’ unit.  He continued:

“That result (as expected) was that the motor produced a loud ‘growling’ sound, and the shaft (and associated belt-driven fan system) turned slowly and erratically at a very slow speed.  This phenomenon is well-known, and is described in a number of ways, including ‘stand-still crawling’, ‘low speed cogging’ etc, but neither the motor or its belt-driven motor capable of starting under those conditions.”

115     The report of this experiment was received over strenuous opposition from counsel for the plaintiff.

Causation of the fire

Downlights

116     I reject the contention that it should be found that this fire was caused by loose “blow in” insulation being ignited by contact with one or more of the downlights in the kitchen/meals area, leading first to a smouldering fire and then to a blazing one.

117     The defendant’s experts contend that the flow of air through the annular gap in the downlight could cause a change of pressure which would transform the smouldering fire into a blazing one.

118     There are a number of problems with this theory.  First, there is no explanation as to why smouldering should first occur in 2003, where the insulation had been in place without any fires since 1998.  If the loose insulation had come in contact with the hot downlights, one would have expected the fire to have manifested itself years previously.  Mr Hopkins, on behalf of the defendant, submitted that the placement of the insulation might have been changed by some phenomenon such as the activities of a rat or a possum, or perhaps wind within the roof cavity.

119     This is all speculative.  Whilst roof cavities might be quite windy when the roof consists of individual terra cotta tiles, which lap down over one another to exclude the ingress of rainwater, the lack of sealing allows wind to blow through.  Here, the roof consisted of fixed corrugated iron sheeting.  No doubt, it was not absolutely airtight but there seems little scope for wind to be blowing right through the cavity.  In his closing submissions, Mr Hopkins referred to the existence, as depicted in various photographs, of vents at the top of the gables in the roof.  These vents no doubt allowed for ventilation, but there is no reason to think, particularly at the high level at which they were located, that they allowed wind to blow through at the beam level so as to disarray insulation material which had apparently remained in place innocuously for five years.  There was no evidence at all of the hypothetical rat or possum.

120     I believe Mr Ranzenhofer was on sound ground when he said that a fire which originated immediately above a downlight would create at least some damage or discolouration to the plaster ceiling immediately around the downlight.  One of the fire brigade photos, according to a clock visible in the photograph at ten minutes past ten on 21 January 2003, shows four of the downlights.  None of them shows any discolouration or damage in their vicinity.  I agree with Mr Ranzenhofer’s interpretation of these photographs to the effect that a brigade member has pierced the immediate surroundings with a hook to ascertain if there is any combustion above the relevant lights.  The fact that this investigation was made, and apparently resolved in the negative, is also supportive, in my view, of the conclusion that none of these four downlights can be implicated as having caused this fire.

121     There remains the question of the fifth downlight which everybody agrees did exist in this kitchen/meals area.  Mrs Jeffrey’s evidence was that this downlight was in the area visible in the photograph which was at Plaintiff’s Court Book 344U, clearly depicting the other four, but for some reason, presumably an artefact of photography, is simply invisible on this photograph.

122     Another possibility is that the fifth downlight was in the area of the first collapse or collapses of the ceiling and is not depicted in this photograph because that part of the ceiling was already down.  Given that this area is remote from the island bar and close to the sliding doors giving exit from the kitchen/meals area to the outside, it is not obvious why a downlight would be located there.  One of the defendant’s experts believed he could identify the fifth downlight in an area of generally collapsed ceiling hanging down adjacent to one of the beams in the photograph at Plaintiff’s Court Book 344U, part of Exhibit Q.  This might be the downlight or it might not be.  It is not located in the spot which would be an obvious one for a downlight and the fact that the ceiling in this area is down may not be particularly indicative, firstly, because in any event this is close to the area where the Seeley unit was located and, secondly, in any event it seems likely that at least part of the initial ceiling destruction was the result of action by the fire brigade.  The “downlight” cannot be identified in other photos of the same general area from different angles.

123     To the extent that the same series of photographs indicate discolouration of the remaining ceiling, I accept the evidence of Mr Ranzenhofer that this discolouration followed the line of taped joins in the plasterboard and is indicative of water damage rather than combustion.

124     The attitude of Mr R that it is only those things which he judged ultimately to have been causally significant which it is appropriate to report on, seems, with respect, to be bizarre.  Incident investigation, one would have thought, essentially proceeds by exclusion.  One is reminded of the famous statement by Sherlock Holmes, “Watson, you know my methods.  Once you have excluded everything that is impossible, whatever remains, no matter how unlikely, must be the explanation”.  Certainly, the species of experts with which this Court is most familiar, namely, medical practitioners, not only carry out investigations to exclude various causes for injuries or disabilities but also document those investigations and exclusions meticulously.  I find it difficult to believe that any other principle could properly operate in other areas of expert inquiry.

125     Mr Ranzenhofer said that since 2003, different templates have been introduced in the Country Fire Authority which provide for the recording of items excluded rather than merely those which have been implicated by an investigator as being of causal significance.

126     Both Mr R and Mr Ranzenhofer gave evidence that they investigated the possibility that the downlights had caused the fire, identified the downlights, and excluded them from being part of the cause.  Clearly, one could accept this evidence with the greater confidence if the exclusion had been specifically documented at the time.  In the case of Mr R, a written record of that exclusion comes only in response to a letter written by the solicitors over a year after the event which was not, apparently due to Mr R’s illness, responded to for several months thereafter.

127     It follows that, given that Mr Ranzenhofer and Mr R, in giving the evidence that they did in this case, were relying on unaided memories many years old, the evidence must be deeply discounted.  Nevertheless, it is not of no value at all.  Downlights are a well-recognised cause of fires in roof cavities.  Therefore, the thought that these investigators would have examined and excluded the downlights as being causal is quite plausible, even in the absence of a proper documentation of the exclusion.  The evidence is far from being as persuasive as it would have been had the exclusion been documented, but it is of some significance.  However one characterises the role of Mr R in these proceedings, Mr Ranzenhofer made his investigations for entirely independent purposes in no way dependant on either the plaintiff or the defendant.  He had no axe to grind.

128     I note also that Mr Jeffrey was able to move about the roof during the early stages of the fire in his bare feet.  This tells against any fire’s having `flared up’ outside the footprint of the air cooler.

129     Having put the downlight theory to one side, what else remains?  I should record for completeness that I treat Mr Jeffrey’s evidence as to the presence of downlight guards in the roof cavity with some caution.  Mr Ranzenhofer found no trace of the downlight guards in his investigation.  Mr Moore, after having spoken to Mr Jeffrey, came away with the impression that Mr Jeffrey had moved the downlight transformers onto the beams in the roof cavity.  Given that Mr Moore, the first to raise the issue of downlight involvement, was clearly interested in the issue, it is highly likely that his questioning would have elicited an account of Mr Jeffrey’s pre-purchase inspection of the roof cavity.

130     The evidence showed that downlights are a well-established cause of fires in roof cavities, particularly when associated with loose or “blow in” insulation.  The relevant standards for downlight installation have been progressively tightened in the last decade and a half.  The standards for downlight guards were not as rigorous in 1998 as they are now, but they did exist.  It seems to me likely that, in light of the evidence of Mr Ranzenhofer, the requirements of those standards were not met and therefore the installation of the downlights was sub-standard.  Nevertheless, for the reasons already given, I do not accept that that consideration in itself indicates that these downlights were causally implicated in the fire.

The toroid, the transformer and the triac

131     The triac and the transformer components of the air cooler are all contained in the motor control box.  The suggestion that they, or one of them, is causally implicated in the fire appears to derive from investigations carried out by Dr Hart into the material generated by Seeley in the course of development of the model ES210.  In particular, some test results dated 13 March 1996 raised the following issues:  “Toroid temperature is dangerous”, “Transformer temperature has very little margin” and “Regulator temperature may be higher than normal specification – need to check specs or devices”.  According to Dr Hart, there was no documentation of a resolution of these design issues.  He inferred, therefore, that they might not have been resolved or might not have been wholly resolved.  One might link this view of things with the evidence given by Mr Ranzenhofer that he observed a plastic box with electronic components in it which exhibited features of what he described as “melt out”; that is, melting from the inside causing the plastic housing to move outwards.  He interpreted this as being indicative of the internal space in the box being the source of ignition.

132     While this proceeding moved to trial, there was a continual war on the discovery front.  Mr Kelly and Mr Clements took me to successive affidavits of documents filed on behalf of the defendant which, in the traditional form, asserted that the defendant had discovered all documents relevant to the proceeding which it then had or ever had had.

133     Mr Hopkins, on behalf of Seeley, called Mr James, Mr Zuodar and Mr Chau.  The effect of their evidence was that these issues, as identified in the document identified by Dr Hart, had been resolved before the model was placed on the market.  This raised the question, of course, where was the documentation of that resolution?  In the course of trial, a further supplementary affidavit of documents was filed on behalf of Seeley, made by Mr Graham, who manages the Chairman’s office, raising the possibility that part of the project file had simply gone astray in the 15 years and more that had elapsed since the relevant developmental work had gone on.

134     Mr Kelly and Mr Clements urged me to view Seeley as unforthcoming on this subject and to treat as suspicious or sinister the progress, or lack of progress, of discovery as to these matters.

135     There was further evidence from Mr Truscott, who was service manager in Western Australia for Seeley, and Mr McSharer, who was the principal of one of Seeley’s service agents in Western Australia, to the effect that they had identified numerous burnt out control boxes.

136     Ultimately, this suggested explanation does not rise above the level of speculation.  First, whilst the progress of discovery, or lack of discovery, on the part of Seeley is somewhat disturbing, particularly in circumstances where, as Mr Kelly and Mr Clements have pointed out, reports from Dr Hart have raised these issues years ago.  Ultimately, the thought that part of the development file has gone astray through simple misfortune after all these years is far from inconceivable.  Indeed, it is quite a plausible explanation.  Again, I see no reason why I should not accept the evidence of Mr Zuodar and Mr Chau that they did ultimately resolve these issues, even if the documentation which can prove that now no longer exists.

137     There is the further consideration that Mr Ranzenhofer’s evidence as to the component box demonstrated “melt out” needs to be treated with some caution.  There is no photographic record of the box which he observed.  It might have been the motor control box containing the units now under consideration or it might have been the capacitor box.  Whatever it was and whatever the merits of the theory of “melt out”, which was trenchantly criticised by Mr Hopkins on behalf of the defendant and the defendant’s witnesses, there seems much to be said for the view that, if the box in question, whatever it was, was the source of ignition, it would likely have been consumed by the fire.  As the evidence demonstrated, whilst substances such as Noryl, of which the control box and the motor capacitor box were constructed, are fire resistant or retardant, with the application of continuous flame, they will burn.  Aside from the problematic and unphotographed box with “melt out”, no artefact has been preserved, even in photographic form, which would implicate the three items in the control box in causing the fire.

138     I treated the evidence of the Western Australian witnesses with some caution.  In cross-examination, Mr McSharer was taken to quite hostile correspondence that he engaged in with Seeley when his company was not re-appointed as a service agent in the Perth area.  What happened was that Seeley re-structured its service agent coverage in the Perth metropolitan area and surrounding districts so as to provide for two such agents, rather than three.  This was a process of musical chairs and, when the music stopped, one of the incumbent service agents was left without a position.  It turned out to be Mr McSharer’s company and the material to which he was taken in cross-examination demonstrated hostility between him and Seeley in the aftermath.

139     Mr Truscott’s situation was somewhat different.  He has a number of physical restrictions and health problems, being said to have suffered, amongst other things, two strokes.  He gave his evidence by video link from Perth.  He resigned his commission with Seeley and was not sacked.  Nevertheless, he admitted in cross-examination that he was the subject of a fraud prosecution arising out of an insurance matter which ultimately was not proceeded with.  According to Mr Truscott, this was because of the simple lack of evidence or lack of merit in the prosecution.  It was put to him by Mr Hopkins that the prosecution was stayed because of his ill health.  Whatever the fact was, it was common ground that Seeley had assisted and provided material supportive of the prosecution.  This consideration could clearly give grounds for suspicion that Mr Truscott was actuated by considerations beyond the simple desire to tell the truth for the advancement of justice and that his evidence was tinged with hostility.

140     Aside from any concerns as to personal animosity on the part of these witnesses, as Mr Hopkins correctly observed, to identify, as they did, certain problems with burnt-out boxes, falls a long way short of establishing that these control boxes had the potential not merely to burn out, and presumably fail safely, but to fail catastrophically, consuming the air cooling unit and part of the building in which they were housed, which is a different thing altogether.

141     There is a further objection to the theory that these components in the control box overheated and caused the fire.  The premise of the theory seems to be that the unit had been labouring overnight in the face of high ambient temperatures.  The evidence showed that a cool change had arrived on the evening of the twentieth hence the supposed high ambient temperatures overnight had not occurred.

142     I do not accept that the three components in the control box, either jointly or individually, have been shown to be causally implicated in this fire.

143     A related but potentially distinct issue was raised by Dr Hart as to the design of the box itself.  He drew a comparison between the unvented box on the ES model and a more elaborately designed box on a later model also using a 1500 watt motor, which included ventilation and additional measures for the dissipation of heat.  At T 1024, Mr Hopkins, on behalf of Seeley, put it to Dr Hart that the difference in design between the control box on the ES model and the later EZH, which exhibited the ventilation and additional heat dissipation features, was dictated by significant additional design requirements for heat dissipation based on the different nature of the two units.  The effect was that the EZH box had to cope with a different and more demanding task of heat dissipation than the box on the EZ model.  Mr Hopkins submitted that, ultimately, Dr Hart conceded this to be true.  I accept that submission.

144     Accordingly, I put the motor control box and its contents to one side as causal factors in this fire.

The motor capacitor

145     My survey of the expert opinions in this case has already demonstrated the serpentine course that the theories, based on the alleged involvement of the motor capacitor in this fire, have followed.

146     It is significant, in my view, that the defendant’s expert, Mr Kutek, whilst not excluding the steel strip with its marked damage, discovered and identified by Mr Moore as the key to this fire, was probably from the Seeley unit’s motor capacitor, did not exclude the possibility that it could have come, for instance, from the transformer box of a downlight.  Given his concession that the strip “probably” came from the motor capacitor in the Seeley unit, with this view of things supported ultimately by Mr Moore and Dr Hart, I believe I should accept this rare concordance of expert opinion.  What flows from this?

147     The experts’ opinions seem to be that the damage exhibited by the strip could derive either from arc damage or molten metal attack.

148     As the survey of expert opinion demonstrates, the failure by the capacitor in open circuit would be a safe failure.  No further current would flow through the relevant circuit, therefore the failure could not be causative of a fire.  It is only if the failure were in short circuit that an issue could arise.  Again, the evidence demonstrates that there are international standards grading motor capacitors according to their propensity to fail safely, that is in open circuit, or unsafely in short circuit.  The existence of this international standard demonstrates that failures of capacitors in short circuit, whilst the experts agree is an unlikely and atypical event, nevertheless do occur.  In the course of investigating a fire in a residence at Lysterfield, Victoria, which was the subject of litigation ultimately compromised on undisclosed terms, a senior technical officer of Seeley, Mr Bob James, who was one of the witnesses at this trial, said to one of his assistants, Mr Shaun Mahoney, inter alia:

“The statements that ‘capacitors burn readily’ needs clarification.  Capacitors are made from fire retardant polymers.  These polymers will not support fire without an external energy source.  This energy source could come from arcing between foil layers within the capacitor, which would progressively consume the capacitor by driving off the fire retardants and then allowing the polymer to oxidise.  The capacitor is unlikely to be visibly on fire at this stage.  However, if the heat and energy of the arcing could get to polymers not so protected, fire could readily propagate.  The problem with most fire retardants is that they are volatile and are driven off by the fire.  Once they are driven off, the polymer is left unprotected and is then consumed.  Hence there is no trace left of the cap or electrical boxes, or the capacitor itself.  All these components are made of good fire retardant plastics, but are all consumed by the fire once the retardants are driven off.  About all you can conclude is that since they are completely gone, and lesser polymers in other parts remain, then these parts were probably near the seat of the fire.”

149     This appears to be an acknowledgement that motor capacitors do have the ability to create fires, as perhaps seems to have been alleged in the Lysterfield proceeding.

150     Professor Baghurst, giving evidence for Seeley, was critical of the idea that capacitors explode readily.  No doubt, they do not explode readily, but it does happen sometimes.

151     Dr Hart’s hypothesis is that the capacitor ruptured at some stage over the night of 20-21 January 2003 and that it failed in short circuit.  Mr Kutek and Professor Baghurst say, if this were true, the air cooling unit could not have re-started at 8:00 am, as Mr and Mrs Jeffrey say it did.  According to Mr Kelly and Mr Clements, the view of Mr Moore was that the rupture of the capacitor took place at approximately 8:00 am after and not before the morning restart.

152     If this is the correct interpretation of Mr Moore’s view of things, it is difficult to accept.  Professor Baghurst who, it will be recalled, has lengthy experience in testing capacitors said that if a capacitor ruptures, it does so with a very audible pop, bang or explosion.  The Jeffreys were both awake at 8:00 am.  In my view, they would have heard the pop or explosion, had it taken place at that time.  If there were a capacitor rupture, which is a necessary element of the hypothesis that the capacitor caused the fire, it must therefore have occurred at or before 4:00 am when the unit was previously turned off.  During the night, the inmates of the house were asleep.  Whilst it is perhaps quite likely that the noise in the rupturing capacitor would have roused them, that they would have heard it while they were asleep seems less certain than that they would have heard it whilst they were awake.  Moreover, a person can be roused from sleep by something which he does not consciously hear or recall.  The Jeffreys’ daughter, Michelle, who roused her mother at 4:00 am, may in fact have been aroused by the sound of the capacitor rupture without being conscious or remembering that that was the event which broke her sleep.

153     According to Professor Baghurst and Mr Kutek, however, the ultimate and unanswerable objection to this hypothesis is that, if the capacitor had ruptured overnight, then the unit could not have re-started at 8:00 am.  The capacitor, after all, is not like the appendix in the body, something which can be cut out, leaving the body apparently functionally unimpaired.  The final experiment conducted by Professor Baghurst was aimed at demonstrating this point.  Mr Kelly, in cross-examining Professor Baghurst, put it to him that his experiment operated based on a scenario different from the one which might have occurred on 21 January, namely, one in which the short circuit was a perfect short circuit with virtually no resistance.  Dr Hart’s theory, it will be recalled, is that there was a “dancing arc”, a non-continuous short circuit caused by one or more unidentified conductive element.  Professor Baghurst responded:

“I find it quite inconceivable that a capacitor should simply represent a fixed resistance or even by fixed I suppose that’s unduly unstable, but a resistance which is capable of starting this motor is a split phase motor as opposed to a capacitor motor, I don’t accept that that’s even slightly realistic.”  (T 1638 L 17-22)

154     He did not explain at that stage why it was unrealistic and, unsurprisingly, in final addresses, Mr Hopkins was unable to assist me on this point.  What Mr Kelly was putting to Professor Baghurst was that, with some element of resistance in the short circuit, it is conceivable that, even with the capacitor rupture, the motor could be set in motion to some degree.  It will be recalled that Mr Jeffrey said he heard the motor “click on” or “kick on”.  Whilst I have not accepted that the sound of a capacitor rupture could have occurred at approximately 8:00 am with Mr and Mrs Jeffrey being oblivious to it, I think it quite conceivable that the sound of the “click” or “kick” of the motor may not have been the sound of the proper and normal functioning of the motor, but rather of something abnormal and sub-optimal, perhaps with more resistance involved than Professor Baghurst’s experiment would have entailed, but creating something more approaching the sound of a normal re-start than the “growling” which his experiments produced.  On that hypothesis, the sound made was abnormal but, through lack of attention, the Jeffreys failed to notice.

155     Acceptance of this hypothesis would appear to provide an explanation as to what occurred with the subsequent fire.

156     Once one concludes that the steel strip was probably from the capacitor, as conceded by Mr Kutek, the only other explanation as to how it sustained the damage observed was molten metal attack.  Mr Moore’s view was that there was no obvious source of molten aluminium in the near vicinity which would explain the damage.  Therefore, in the regrettable circumstances flowing from the loss of the strip itself, it is easy enough to accept the view which commended itself to Professor Baghurst, when he believed that the strip probably emanated from a downlight transformer, that it exhibited arc damage.  If one puts both of Professor Baghurst’s hypotheses together, viz that the strip probably came from the capacitor and that it probably suffered arc damage, the conclusion that it was the cause of the fire is difficult to escape.

157     For these reasons, I accept the theory postulated by Dr Hart as to the capacitor being the cause of the fire.

Standard of proof

158     I was referred to a number of recent authorities on the issue of standard of proof in civil proceedings.  It is fair to say that they raised some arcane questions that arose out of some fairly arcane fact situations.  In my view the best guidance as to standard of proof here is an old case determined by a distinguished court Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1. The court was Dixon, Williams, Webb, Fullagar and Kitto JJ and in a joint judgment their Honours said inter alia:

“…this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture …. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise … All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.” (1951) 217 ALR 1, 5, 6.

159     For the reasons given in the findings which I have indicated above the hypothesis as to the role of the motor capacitor satisfies the criteria laid down by their Honours in the quoted passage.  Bradshaw’s was a case where the evidence available at trial was in their Honours’ words “meagre”.  Due to the extraordinary circumstances surrounding this case which I have explained already, whilst the trial was of an inordinate length and there was an overwhelming volume of evidence, as to the most crucial matters in light of the widespread destruction caused by the fire and the failure of proper documentation in the immediate aftermath and before the removal of the remains, on the crucial questions of causation the evidence was nevertheless ultimately as meagre as was the evidence in Bradshaw’s case.

Negligence

160     In paragraph 8 of the plaintiffs’ Amended Statement of Claim, the plaintiffs allege a breach of Seeley’s duty of care by way of negligence “in the manufacture and supply of the evaporative air conditioner”.  The particulars include the following:

(ca)designing and/or manufacturing the evaporative air conditioner so that the motor capacitor was liable to failure and catching fire.

(cb)using a type of motor capacitor that if it failed it generated sufficiently to catch fire and ignite combustible material.

(cc)using a type of motor capacitor it knew or should have known was likely to catch fire and ignite combustible materials.

Mr Hopkins on behalf of the defendant made factual submissions which he said should lead me to reject by way of findings of fact the allegation made in the extracts of the plaintiffs’ pleading quoted above.  He submitted I should find that the Seeley air cooler played no part in the fire’s causation at all.

161     For reasons already given I have not accepted Mr Hopkins’ submissions on these points, per contra I accept that the plaintiffs’ claim in negligence as to the parts quoted has been made good.  I did not understand the defendant to make any submission that were such findings of fact made, the determination on the question of negligence should go other than in favour of the plaintiffs.

162     The evidence indicated that had a motor start capacitor of the “P2” grade been used in the Breezeair unit supplied to what became the Jeffreys’ house, as was done later in the production run of that model, the fire as it actually occurred would not have eventuated because the motor start capacitor would have failed safely with an open circuit.  The evidence of Mr James was that the conversion to a “P2” grade motor start capacitor was made not because of concerns as to the safety of the “PO” motor start capacitor used in the earlier production runs but rather because of relief that mandatory standards would require this upgrade.  As it turned out, those standards never were made mandatory but the upgrade occurred in any event.  What is important to note here is that the upgrade would have prevented this fire and it was open to Seeley at all times to have used the “P2” grade capacitor which would have avoided this fire.

Trade Practices Act 1974

163     The plaintiffs made an alternative claim under Part V A of the Trade Practices Act 1974 of the Commonwealth of Australia that alleged that the evaporative cooler had a “defect” within the meaning of that part of the Trade Practices Act.  Amongst the particulars alleged at paragraph 11 of the Amended Statement of Claim were the following:

(c)the evaporative air conditioner was manufactured so that the motor start capacitor was liable to failing and catching fire and/or igniting combustible material;

(d)using a type of motor start capacitor that if it failed it generated sufficient heat to catch fire and ignite combustible material.

164     Part V A of the Trade Practices Act imposes liability on manufacturers and importers for defective goods.  Section 75AC of the Act explains what it means for goods to have a defect in the following terms:

“75AC  Meaning of goods having defect

(1)For the purposes of this Part, goods have a defect if their safety is not such as persons generally are entitled to expect.

(2)In determining the extent of the safety of goods, regard is to be given to all relevant circumstances including:

(a)the manner in which, and the purposes for which, they have been marketed; and

(b)      their packaging; and

(c)       the use of any mark in relation to them; and

(d)any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and

(e)what might reasonably be expected to be done with or in relation to them; and

(f)       the time when they were supplied by their manufacturer.

(3)An inference that goods have a defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied.

(4)An inference that goods have a defect is not to be made only because:

(a)there was compliance with a Commonwealth mandatory standard for them; and

(b)that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer.

165 Section 75 AG imposes a liability on a supplier or manufacturer of defective goods where a user of the goods suffers loss to his or her buildings the supplier of the goods is liable to compensate those goods. The use of “PO” motor start capacitor in the Jeffreys’ unit means its safety was “not such as persons generally are entitled to expect”. The use of the unit by the Jeffreys led to damage to their house. Therefore, they would appear to have a good cause of action under s.75AG of the Trade Practices Act.

166 Mr Hopkins on behalf of the defendant submitted that it should have available to it the defence under s.75AK of the Trade Practices Act which is in the following terms:

75AK  Defences

(1)         In a liability action, it is a defence if it is established that:

(a)the defect in the action goods that is alleged to have caused the loss did not exist at the supply time; or

(b)they had that defect only because there was compliance with a mandatory standard for them; or

(c)the state of scientific or technical knowledge at the time when they were supplied by their actual manufacturer was not such as to enable that defect to be discovered; or

(d)if they were comprised in other goods (finished goods)—that defect is attributable only to:

(i)        the design of the finished goods; or

(ii)the markings on or accompanying the finished goods; or

(iii)the instructions or warnings given by the manufacturer of the finished goods.

(2)         In this section:

supply time means:

(a)in relation to electricity—the time at which it was generated, being a time before it was transmitted or distributed; or

(b)in relation to other goods—the time when they were supplied by their actual manufacturer.

167     Mr Kelly and Mr Clements submitted that no such defence should be admitted because aside from anything else it had not been pleaded, nevertheless said Mr Hopkins the case had evolved during trial and in the circumstances the defence should be admitted.

168     It is not obvious to me how it would be proper for me to consider this defence unless an amendment were made to the pleadings so that it was actually raised in the pleaded defence.  Nevertheless I will consider it because even if I do regard it as properly before me, in my view it has not been made out.  According to Mr Hopkins “It is plain that the capacitor was not defective, as the AC [scil. air conditioner] operated properly from 1998 to 2003 and could not have done so if the capacitor had failed earlier.”

169 This cannot be what the defence in s.75AK(1)(a) was intended to mean. Were I to accept this submission it would mean that an item of consumer goods with a high propensity to fail would be regarded as non-defective as long as it had functioned for some period of time before failure. The level of safety which people legitimately expect to find in consumer goods is that they will operate for a relatively indefinite period of time and that when they ultimately fail, they will fail safely. The PO capacitor always from the very moment of its installation in the unit had the potential to fail unsafely in a way which a “P2” capacitor would not have. The defence, even if properly before me must therefore fail.

Result

170     There should be Judgment for the plaintiffs in the sum sought plus statutory interest.

Postcript

I would like to record my thanks to all members of Counsel for the efficient and courteous manner in which they presented their clients’ cases.  They omitted no point which should have been urged but put all with a measure of courtesy and good grace to me and one another which should stand as a model for all civil proceedings.