Kim v Cole - [2001] QSC 289

SUPREME COURT OF QUEENSLAND

CITATION: Kim & Anor v Cole & Ors [2001] QSC 289

PARTIES: JE WON KIM and DONG-HEE KIM
(plaintiffs)
CAROLE COLE
(first defendant)
MICHAEL WILLIAM HURST t/a HURST PLUMBING AND GAS SERVICES
(second defendant)
WESFARMERS FEDERATION INSURANCE LTD
(ACN 009 027 221)
(third party)

FILE NO: S 8637 of 1999

DIVISION: Trial Division

PROCEEDING: Civil

DELIVERED ON: 31 July 2001

DELIVERED AT: Brisbane

HEARING DATES: 18 – 22 June 2001

JUDGE: Byrne J

ORDER:

CATCHWORDS:
TORTS – NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY - where a gas oven explosion occurred in the first defendant’s leased pizza shop – where the force of the explosion destroyed the plaintiffs’ building housing the pizza shop - where the gas valve was discovered in the “on” position after the explosion – whether human error was not too remote to be the cause of the gas escape – whether the first defendant is liable for the plaintiffs’ loss

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where the second defendant plumber and gas fitter installed a manual gas valve to the first defendant’s pizza oven prior to the explosion - whether foreseeable consequences arose from the risk of installing a gas valve that was not “failsafe” – whether second defendant departed from a reasonably expected standard of care – whether the second defendant’s conduct materially contributed to the plaintiffs’ loss

TORTS – LIABILITITY FOR OTHERS’ NEGLIGENCE – OTHER PERSONS – where the first defendant’s fiance assisted in the aforesaid’s shop but was not an employee or partner – whether the first defendant is vicariously liable for her fiance’s conduct.

CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where the second defendant contracted to repair the first defendant’s shop gas oven – where the second defendant’s advice to the first defendant on rectification was an incident of the contractual relationship – whether it was an implied term of the contact that the second defendant exercise reasonable care in providing the advice – whether the second defendant breached the implied term

INSURANCE – GENERAL - POLICIES OF INSURANCE – CONSTRUCTION - where a policy exists between the second defendant and the third party for the former’s insurance against “Legal Liability” in a plumber/gas fitter business – where compliance with “Regulations” is a general condition of the policy – whether a literal interpretation of the condition ought not to be accorded – where the second defendant permitted the appliance oven to be used when it did not comply with gas regulations – whether such conduct amounted to a deliberate courting of the danger - whether the second defendant knowingly contravened Regulation 81(b) of the Gas Regulations 1989 and consequently breached a condition of the policy and is not entitled to indemnity for his liability to compensate the plaintiffs

Gas Regulations 1989, reg 81(b), reg 96(1)

Gold Coast Bakeries (Qld) Pty Ltd v Heat & Control Pty Ltd [1992] 1 Qd R 162, followed

Vosten v The Commonwealth

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] QSC 289
Decision Date: 31 July 2001

CaseChat Overview and Summary

In the matter of Kim v Cole, the plaintiffs sought damages from the first and second defendants for losses incurred following an explosion in a gas oven at the first defendant's leased pizza shop. The explosion resulted in the destruction of the plaintiffs' building, which housed the pizza shop. The gas valve was found in the "on" position post-explosion, raising questions about the cause of the gas leak and the potential liability of the defendants.

The primary legal issues before the court were whether human error was not too remote to be the cause of the gas escape, and whether the first defendant could be held liable for the plaintiffs' loss. Additionally, the court had to determine if the second defendant, a plumber and gas fitter, departed from a reasonably expected standard of care by installing a non-failsafe gas valve, and whether this contributed to the plaintiffs' loss. Furthermore, the court examined whether the second defendant breached an implied term in their contract to exercise reasonable care in providing advice on rectifying the oven, and whether the first defendant could be held vicariously liable for the actions of his fiance, who assisted in the shop but was not an employee or partner.

The court found that the first defendant was not liable for the gas leak as it resulted from human error. The court ruled that the second defendant's installation of a manual gas valve was not a breach of duty, as it was not negligent to install a valve that complied with the relevant regulations. The court also held that the second defendant did not breach any implied term of care in the contract for providing advice on the oven. However, the court found that the second defendant did knowingly contravene a gas regulation, which amounted to a deliberate courting of the danger and constituted a breach of the insurance policy condition.

The court ordered that the first defendant was not liable for the plaintiffs' loss, and that the second defendant's breach of the insurance policy condition meant that the third defendant was not entitled to indemnity for the liability to compensate the plaintiffs. The court awarded damages to the plaintiffs against the second defendant for their loss.

Orders