Lenane Holdings Pty Ltd v Summit Rural (WA) Pty Ltd

[2023] WADC 42

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   LENANE HOLDINGS PTY LTD -v- SUMMIT RURAL (WA) PTY LTD [2023] WADC 42

CORAM:   SHEPHERD DCJ

HEARD:   7-10, 13 JUNE & 29, 31 AUGUST 2022

DELIVERED          :   6 APRIL 2023

FILE NO/S:   CIV 23 of 2021

BETWEEN:   LENANE HOLDINGS PTY LTD

Plaintiff

AND

SUMMIT RURAL (WA) PTY LTD

Defendant

Catchwords:

Negligence - Duty of care - Obligation of defendant in the hire of Caterpillar 938K Loader - Obligation of defendant in the hire of loader used in defendant's fertiliser plant - Whether duty of care extended to turning off isolator switch - Loader caught fire and destroyed - Whether harm caused by defendant's failure to turn off isolator switch - Causation - Contract - Whether defendant under contractual obligation to turn off isolator switch

Legislation:

Civil Liability Act 2002 (WA) s 3, s 5B, s 5B(1)(a), s 5B(2), s 5C, s 5C(1), s 5C(1)(a), s 5C(1)(b), s 5C(2), s 5C(2)(a), s 5C(2)(b), s 5D

Result:

Judgment for the plaintiff in the sum of $245,500

Representation:

Counsel:

Plaintiff	:	Mr J Healy & Mr M Massarotto
Defendant	:	Mr A P Hershowitz & Ms G C P Wilts

Solicitors:

Plaintiff	:	Barry Nilsson Lawyers
Defendant	:	Gillis Delaney Lawyers

Case(s) referred to in decision(s):

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420

Allied Pumps Pty Ltd v Hooker [2020] WASCA 72

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

CGU Insurance Ltd v Coote [2018] WASCA 117

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217

D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87

East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147

Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640

Fazio v Fazio [2012] WASCA 72

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Hirst v Sydney South West Area Health Service [2011] NSWSC 664

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613

Husher v Husher [1999] HCA 47; (1999) 197 CLR 138

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Jones v Sutherland Shire Council [1979] 2 NSWLR 206

King v Nash [2022] WASC 102

Livingstone v Rawyards Coal Co (1880) 5 App Cas 25

Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Montemaggiori v Wilson [2011] WASCA 177

New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486

Osborne Park Commercial Pty Ltd v Miloradovic [2019] WASCA 17

Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92

Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989; [1976] 3 All ER 570

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330

Robinson v Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2017] WASCA 190

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182

Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173

Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537

The State of Western Australia v Cunningham [No 3] [2018] WASCA 207

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422

Van Gervan v Fenton (1992) 175 CLR 327

Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375

Waverley Council v Ferreria [2005] NSWCA 418

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Table of Contents

A.           Introduction

1....... Overview

1.1           The plaintiff's action

1.2           The defendant's position

1.3           Summary

2....... The issues to be determined in this trial

3....... What was not in issue at trial

4....... The terms of the Agreement: the 'master key'

4.1          Overview

4.2          The Agreement

4.3          The terminology used at trial

4.4          Finding

5....... Where there was no evidence

5.1          Caterpillar

5.2          WesTrac

5.3          The after-market equipment

5.4          Existing fault within the loader

6....... The expert evidence - overview and my approach

6.1           Overview

6.2          Assessment of the reliability and credibility of the witnesses

7. ..... The technical aspects of the loader

7.1          Overview

7.2          The outer aspects of an undamaged loader

7.3          The inner physical aspects of an undamaged loader

7.4          The components of the starting circuit within the engine compartment

7.4.1        Mr Manser's diagrams

7.4.2        The isolator switch

7.4.3        The earth strap

B.           The origin of the fire

8....... Hypothesis One - The fire originated in the cabin

8.1          Overview - Hypothesis One

8.2          Mr Manser's approach to the investigation

8.3          The evidence in support of Hypothesis One

8.3.1        The after-market equipment installed in the cabin

8.3.2        An 'arc damaged cable' within the cabin

8.3.3        The door handle

8.3.4        The aluminium window frame

8.4          Other aspects to Mr Manser's evidence

9....... Hypothesis Two - The fire originated in the engine compartment

9.1          Mr Jones' approach to the investigation

9.2          Why Mr Jones supported Hypothesis Two

9.2.1        The evidence of fire burn patterns

9.2.2        The damage caused to the tyres of the loader

9.2.3        The damage to the fire extinguisher

9.2.4        The lack of damage to the rear counterweights of the loader

9.2.5        The fibreglass panels and metal vent

9.2.6        The aluminium radiator

9.2.7         The engine cover

9.2.8        The right side of the engine compartment

9.2.9        The left side of the engine

9.2.10       The front section of the engine compartment

9.2.11       The negative earth strap

9.2.12       Arcing on the electrical cabling within the debris on the solenoid and starter

9.2.13       The confined area of the electrical interaction

9.3          Mr Jones' response to Hypothesis One

9.3.1        The door handle

9.3.2        The rear-view mirror

9.3.3        The door frame

9.3.4        No evidence of arcing on the cable located within the cabin

9.3.5        The after-market equipment

9.3.6        The damage to the front tyres

9.3.7        No evidence of arcing outside the area of the starter motor

9.3.8        The impact on the fire extinguisher, fuel load and ignition source

9.3.9        Mr Manser's evidence about no distinct fire patterns

9.3.10       Hypothesis One would 'defy the physics of fire travel'

9.3.11       Mr Manser's evidence: 'no positive cables in the vicinity of the earth strap'

9.4           Other propositions rejected by Mr Jones

9.5          Mr Gatland's approach to the investigation

9.6           Mr Gatland's conclusions on the area of origin of the fire

9.7          Mr Tomlinson's approach to the investigation

9.8          Mr Tomlinson's opinion on the area of origin of the fire

9.9          The evidence Mr Tomlinson relied upon about the area of origin of the fire

C.           The battery isolator switch

10..... The purpose versus the effect of a battery isolator switch?

11..... Mr Manser's evidence

12..... Mr Jones' evidence

13..... Mr Gatland's evidence

13.1         The purpose of the isolator switch

13.2         Had the isolator switch been turned off would the fire have occurred that evening?

14..... Mr Tomlinson's evidence

14.1         The effect of the battery isolator switch being off

14.2         The purpose of the battery isolator switch

D.           Other expert evidence

15..... Mr Gatland's theories on the possible causes of the fire

16..... Mr Tomlinson's evidence about the VisionLink system

E.           Findings from the expert witnesses

17..... Mr Manser

17.1        Mr Manser as a witness

17.2        Findings on Mr Manser's evidence and reasons for rejecting Hypothesis One

18..... Mr Jones

18.1         Mr Jones as a witness

18.2         Findings of fact from Mr Jones' evidence

18.3         Conclusions from Mr Jones' evidence

19..... Mr Gatland

19.1         Mr Gatland as a witness

19.2         Findings on Mr Gatland's evidence: 'possible' causes

19.3         Ultimate findings on Mr Gatland's evidence

20..... Mr Tomlinson

20.1        Mr Tomlinson as a witness

20.2        Findings of fact from Mr Tomlinson's evidence

20.2.1       The area of origin of the fire

20.2.2       The effect of the battery isolator switch being off

20.2.3       VisionLink system

F.           Overall findings and conclusions

21..... The effect of the battery isolator switch

22..... Ultimate conclusions on the area of origin of the fire

G.           The Agreement

23..... The terms of the Agreement

24..... The issues regarding the interpretation of the agreement

25..... What is meant by 'master key'?

25.1         The plaintiff's position

25.2         The defendant's initial position

25.3         The terminology used by the witnesses

25.3.1       Mr Parsons

25.3.2       Mr Manser

25.3.3       Mr Jones

25.3.4       Mr Gatland

25.3.5       Mr Tomlinson

25.4         The defendant's position in closing

25.5         The plaintiff's closing address

25.6         Conclusions on the meaning of 'master key'

26..... What was Summit's obligation in respect of the master key?

26.1         The plaintiff's pleaded position about the master key

26.2         The defendant's pleaded position about the Agreement

26.3         The defendant's opening and closing submissions

27..... The law

28..... Findings on Summit's contractual obligation

29..... Did Summit breach the contractual requirement to turn the master key off?

H.           Causation

30..... The pleadings and the way in which the evidence unfolded

31..... But for the defendant's failure to switch off the master key would the loader have been damaged?

I.           Did the defendant owe the plaintiff a duty of care?

32..... Did Summit owe Lenane a duty of care and if so, how did that duty arise?

33..... Finding on whether the defendant owed a duty of care to the plaintiff

34..... What was the standard of care owed?

35..... Did the defendant breach the duty of care?

35.1          Relevant law as to breach of duty of care

35.2          Did Summit breach the duty of care owed to the plaintiff?

35.3         Was the risk of harm a foreseeable risk?

35.4         Was the risk 'not insignificant'?

35.5         What precautions would a reasonable person in the position of the defendant have taken?

36..... Conclusions on duty of care

37..... Causation

37.1        Relevant law as to causation

37.2        My approach

38..... Scope of liability

39..... Concurrent wrongdoing

J.           Damages

Final orders

ANNEXURE 1 - PHOTOGRAPHS OF AN UNDAMAGED LOADER

ANNEXURE 2 - DIAGRAMS

ANNEXURE 3 – PHOTOGRAPHS OF A DAMAGED LOADER

SHEPHERD DCJ:

A.     Introduction

1. Overview

1. On or about 24 October 2017 Lenane Holdings Pty Ltd (Lenane) entered into a contractual agreement to lease a Caterpillar 938K loader (the loader) to Summit Fertilisers (Summit) for a weekly fee (the Agreement).[1]

   [1] Exhibit 1, Agreement No 11 for the Hire of the 938K Loader.

2. Summit operated a fertiliser plant and the loader was to be, and was, used in an environment where fertilisers were being, or were to be, handled.

3. One of the terms of the Agreement was that Summit agreed to complete daily checks and servicing[2] of the loader.  Another term of the Agreement was that Summit was to 'turn off master key every night'.[3]

   [2] Exhibit 1, cl 6.0(d); the term of the agreement was not in dispute at trial, however, its interpretation was.

   [3] Exhibit 1, Appendix B, cl 9; the term of the agreement was not in dispute at trial, however, its interpretation was.

4. Prior to delivering the loader to Summit, Lenane had wrapped denso tape around certain electrical cables and wiring within the loader as a corrosion prevention mechanism.[4]

   [4] ts 18.

5. Following the handover of the loader to Summit, Summit installed after‑market equipment in the cabin of the loader.  How, and to where, the wiring was connected is unknown.

6. The loader was manufactured by Caterpillar and was serviced by WesTrac.

7. In October 2018 Benjamin Parsons was employed by Summit as a dispatch operator.[5]  His duties included operating the loader and feeding the blending plant.[6]

   [5] ts 54.

   [6] ts 55.

8. Prior to operating the loader Mr Parsons was provided with training which comprised 'running through the controls' with a representative of WesTrac and 'with Allan Lenane himself'.[7]

   [7] ts 55.

9. Mr Parsons understood that at the end of his shift the loader was to be refilled and 'isolated'.[8]  In clarifying what he meant by 'isolated' Mr Parsons explained that:[9]

   … at the back of the machine there is a - what you call a master switch that you turn off at the - the end of a shift.

   [8] ts 55.

   [9] ts 55.

10. Mr Parsons could not recall whether he was told during that particular training to turn the 'isolation switch' off, however he said:[10]

    … generally it's a general thing to - to do, isolate a machine, yeah.

    [10] ts 55.

11. Mr Parsons could not recall receiving an operation manual for the loader prior to 4 October 2018 and he could not recall receiving any instruction in how to use the loader from anyone from Summit.[11]

    [11] ts 57.

12. On 4 October 2018, having finished his shift, Mr Parsons parked the loader in a shed on Summit's property and left for the day.

13. It was not in issue at trial that at the end of his shift Mr Parsons did not turn the switch which isolates the electrical circuit within the starter motor of the loader into the off position.  This was a fact conceded by the defendant.[12]

    [12] ts 38.

14. Later that night, or in the early hours of 5 October 2018, the loader caught fire and was completely destroyed.

15. At trial four expert witnesses were called to give evidence about the cause and origin of the fire.  One expert was called by the plaintiff and three experts were called by the defendant.  Mr Parsons also gave evidence.

16. The expert witnesses all agreed that the precise cause of the fire could not be determined.  The cause of the fire is therefore not an issue to be, or that can be, determined in this trial.

17. What emerged from the expert evidence were two hypotheses as to the origin of the fire.

18. Hypothesis One was favoured by the plaintiff through its expert witness, Mr Jim Manser.

19. Hypothesis One was that the origin of the fire was in the cabin of the loader as a result of improperly installed after-market equipment after Summit had taken possession of the loader.

20. Hypothesis One was that the fire then progressed from the cabin backwards towards the engine compartment of the loader.[13]

    [13] ts 140 - ts 141.

21. Hypothesis Two was favoured by the three expert witnesses called by the defendant, Mr Sean Jones, Mr Grant Gatland and Mr Guy Tomlinson.

22. Hypothesis Two was that the origin of the fire was in the left side of the engine compartment in the vicinity of the starter motor.

23. All four experts agreed that the negative earth strap, which is bolted between the starter motor flange and the metal chassis of the loader, showed evidence of an 'electrical event' or 'arcing'.[14]

    [14] See ts 133, ts 135 (Mr Manser); sections 9.2.11 - 9.2.12 (Mr Jones); [475] - [479] and [503] (Mr Tomlinson); [328] (Mr Gatland).

24. All four experts agreed that an 'arcing' event could only be the result of an energised circuit; here, within the starting circuit of the engine of the loader.[15]

    [15] See for example [476] and [503] (Mr Tomlinson); [292] (Mr Jones).

25. The effect of the isolator switch remaining on was that the electrical circuitry of the starting circuit within the engine compartment remained energised.

26. An arcing event in the starting circuit of the loader could therefore only occur when the isolator switch was in the on position.[16]

    [16] [319] - [320] (Mr Manser); [323] - [328] (Mr Jones); [481] (Mr Tomlinson); [336] (Mr Gatland).

27. Ultimately much of the expert evidence led at trial was unnecessary to determine the real issue in this trial.  That issue is: what is the effect of the isolator switch being on and, conversely, of being turned off?  Put differently, what is the practical effect on the electrical circuitry of the loader, specifically, the starting circuit, of the isolator switch being turned off?

28. That finding, in conjunction with my findings about the area of the origin of the fire, are necessary to answer the ultimate question in this trial: but for the failure by the defendant to turn the isolator switch into the off position, would the fire have occurred that evening?

1.1     The plaintiff's action

1. Lenane brought this action against Summit in contract and in tort.

2. In contract, Lenane argued that Summit was under a contractual obligation pursuant to the Agreement to turn the master key off every night.

3. 'Master key' is not defined in the Agreement.

4. Lenane's position is that the 'master key' in the Agreement is a reference to the switch or the key that has the effect of isolating the battery in the engine compartment of the loader.

5. Lenane's case in contract is the conceded fact that Mr Parsons did not turn off the switch or the key that isolated the battery of the loader when he finished his shift on 4 October 2018.

6. That, Lenane argued, comprised a breach of Summit's contractual obligation to 'turn [the] master key off' on the evening of 4 October 2018.

7. The effect, Lenane argued, of Summit's failure to turn off the master key was that the machine was not 'isolated'.  That meant that the positive electrical circuit within the starting circuit in the engine compartment remained on and an electrical event was able to occur.

8. Lenane argued that but for Summit's failure to isolate the loader by turning the master key off, the fire would not have occurred that evening.

9. Further, or in the alternative, Lenane also brought its action against Summit in negligence.

10. Lenane argued that Summit owed Lenane a duty to exercise reasonable care to ensure that the master key was turned off and the loader was thereby isolated.

11. Lenane argued that the duty of care owed by Summit to switch off the master key was to ensure that there was no electrical fire to the loader when it was not being operated.[17]

    [17] Statement of claim par 17; plaintiff's closing submissions 31 August 2022, pars 41 - 42.

12. Lenane argued that under both contract and tort, Summit's breach by failing to turn the master key off at the end of Mr Parsons' shift, or to ensure that that was done, caused the loss suffered by the plaintiff.

1.2     The defendant's position

1. The defendant's pleaded position in contract was that Summit admitted that it agreed to turn off the master key every night pursuant to Appendix B, cl 9 of the Agreement.[18]

   [18] Defence filed 25 February 2021, par 5(e).

2. At trial, however, the defendant's position was that whilst the Agreement between the parties refers to 'daily checks' as including the term, 'turn off master key every night',[19] that was not a mandatory nor essential term of the Agreement.

   [19] The Agreement, exhibit 1.

3. Late during the course of the trial,[20] the defendant's position developed further to argue that the reference to master key in the Agreement was not a reference to the key or the switch which had the effect of isolating the battery of the loader.  Rather, it was a reference to a switch or key other than the switch which isolated the battery within the loader.[21]

   [20] Raised for the first time during the cross-examination of the defendant's final witness, Mr Tomlinson, ts 486.  See section 25.3.5.

   [21] 'Ignition key', ts 486; 'engine start switch', ts 507.

4. The defendant's argument in closing was that the plaintiff had failed to prove on the balance of probabilities that the 'master key' in the Agreement was a reference to the switch, the effect of which when turned off was to isolate the battery in the starting circuit of the loader, and not to any other switch, including the ignition switch or the 'engine start switch'.[22]

   [22] See defendant's closing submissions, ts 506, ts 507, ts 512.

1. The defendant argued that the failure by Mr Parsons to turn the master key into the off position on the evening of 4 October 2018 did not cause the fire and the subsequent damage to the loader.[23]

   [23] This was run consistently by the defendant throughout the pleadings and the trial.

2. In respect to the plaintiff's claim against it in negligence, the defendant denied that it owed a duty of care to Lenane. 

3. The defendant argued that even if the master key in the Agreement is a reference to the key or switch which isolates the battery within the loader, the purpose of installing a battery isolation switch is not as a fire prevention mechanism but as a safety mechanism. 

4. The defendant's position was that any failure by Summit to turn off the master key on 4 October 2018 'could never have been and was not the cause of the fire'.[24]

   [24] Defendant's written submissions in closing 31 August 2022, par 42.

5. The defendant invites the court to reject the plaintiff's claim in both contract and tort.

1.3     Summary

1. Whilst the expert evidence in this trial concerning the electrical circuitry of the loader, the fire burn patterns and overall damage to the loader was at times complex and convoluted, the real issues for determination in this trial are not. 

2. The first issue for determination is whether the 'master key' is the same or a separate key or switch to that which has the effect of isolating the electrical circuitry within the engine compartment of the loader.

3. For the reasons I give at section 25.6, the answer to that primary question is that the master key is synonymous with, or the same as, the isolator switch.  It is not a reference to the 'ignition switch' or the 'engine start switch'.

4. The ultimate issue for determination in this trial is simply this:[25] but for the defendant's failure to turn the master key into the off position, would the fire have occurred that evening?

   [25] Refined during the course of the trial for the reasons given in section 30.

5. The short answer to that is no.

6. For the reasons that follow I therefore find for the plaintiff.

1. The issues to be determined in this trial

1. The issues for determination in this trial and the factual findings necessary to resolve those issues and to answer the ultimate question for determination in this trial are:

   1.How is 'master key' in the Agreement to be interpreted?

   2.What was the area of origin of the fire?

   3.What was the effect of the battery isolator switch on the starting circuit within the loader?

   4.Is there any relationship between the isolator switch being in the on position and the origin of the fire?

   5.To what extent does any relationship between the isolator switch being left on and the origin of the fire assist in determining the ultimate question in this trial?

   6.Is the purpose of the installation of the battery isolator switch a relevant question?

   7.Was the defendant under an obligation to turn the 'master key' into the off position under the Agreement?

   8.Was the defendant's failure to turn the master key off on 4 October 2018 a breach of a term of the Agreement?

   9.Was that causative of the plaintiff's loss in contract?

   10.Did the defendant owe the plaintiff a duty of care?

   11.What was the ambit of the duty of care owed?

   12.Was the duty of care breached?

   13.Did the breach cause the plaintiff's loss?

   14.What damages flow?

1. What was not in issue at trial

1. The background facts as set out in [1] ‑ [14] were not in issue at trial.

2. Other background facts not in issue were that Mr Jones attended the premises of Summit on Saturday 6 October 2018, the day after the fire, and examined the loader on instructions from the defendant.

3. Mr Jones took photographs of the loader as it was positioned in Summit's shed in situ.[26]

   [26] ts 248, ts 249.

4. Having photographed and examined the loader, Mr Jones removed the starter motor and the negative earth strap from the loader for further analysis.[27]

   [27] ts 255.

5. At a later date the loader was moved from within the shed to the rear yard of Summit. 

6. Some weeks later, on a date unknown, Mr Manser, instructed on behalf of Lenane, attended the premises of Summit to examine the loader in the rear yard. 

7. The defendant subsequently instructed Mr Gatland and Mr Tomlinson to examine the photographs taken of, and the physical items removed from, the loader.

1. The terms of the Agreement: the 'master key'

4.1     Overview

1. Whilst the interpretation of the Agreement between the parties is a live issue in this trial, the terms of the Agreement are not.

2. It is therefore useful at this point to set out, in summary form only, those terms of the Agreement that pertain to the 'master key'.[28]

4.2     The Agreement

[28] A full extract of the Agreement is at Part G below. The parties' positions in respect of the interpretation of the Agreement and my findings are in Part G.

1. It is a term of the Agreement under the heading 'Conditions of Hire', cl 4.2 'Daily Servicing and Minor Repairs' that:

   All daily checks and servicing and minor running repairs (see Appendix B) are the responsibility of Summit Fertilizers and should be carried out as per the manufacturer's specifications.[29] 

   [29] Exhibit 1.

2. Clause 6 of the Agreement headed 'Summit Fertilizer's obligations' contains at par (d):

   'Complete daily checks and servicing'.

3. Appendix B, stated on page 1, cl 2 as comprising part of the Agreement, is headed 'Daily Checks and Services'.  In Appendix B under the sub-heading 'Daily Checks - Front End Loaders', cl 9 provides:

   Turn off master key every night.[30]

4.3     The terminology used at trial

[30] Emphasis added.

1. It is necessary to say something here about the different terminology used during the trial and the way in which the trial was conducted in respect of the master key.

2. At the commencement of the trial,[31] indeed for the majority of the trial,[32] both counsel and all the witnesses had used different, but interchangeable, terminology to refer to the 'master key'.

   [31] This was not raised as an issue on the pleadings; Defendant's oral opening address ts 27, ts 40; Defendant's submissions for trial dated 3 June 2022 at pars 10 and 15 'isolator switch/master switch'; see section 25.

   [32] Up until Mr Tomlinson as the final witness in the trial proffered his opinion in cross-examination that he would interpret 'master key' as, effectively, the ignition switch of the loader; ts 486.

3. That terminology included: the 'master switch', the 'isolator switch', the 'battery isolator switch', the 'disconnect switch', the 'battery disconnect switch' and the 'cut-off switch'.  I refer to them collectively as 'the switch terms'.

4. Mr Tomlinson proffered his interpretation of the master key as meaning, or potentially meaning, the ignition key.[33] 

   [33] ts 486.

5. At no stage, until that point in the trial, was there any suggestion by any of the witnesses that the switch terms included or referred in any way to the ignition key or switch.[34]   

   [34] Or in the defendant's closing submissions as the 'engine start switch', ts 507.

6. At trial, no-one was under any illusion or confusion that a reference to any of the switch terms was a reference to anything other than the switch or the key, whatever terminology is used, that had the effect of isolating the machine.

7. On Mr Parsons' uncontested evidence, it was the switch at the back of the machine that had the effect of isolating the machine.[35]

   [35] ts 55.

8. On Mr Manser's uncontested evidence (on this point), the isolator switch was located at the rear of the machine.[36]

   [36] See Annexure 2D.

9. On Mr Tomlinson's own diagram of the starting circuit, the isolator switch is drawn consistently with where Mr Parsons and Mr Manser referred it as being located in their evidence.

10. To the extent that Mr Tomlinson's attempt in cross-examination to interpret master key to refer to anything other than the switch terms as defined, this was at odds with the manner in which the defendant's case was run throughout the trial to this point.  It was not a matter that was pleaded by the defendant.[37] 

    [37] See section 25.6.

11. To the extent that the defendant's case thereafter became that 'master key' was a reference to the ignition switch or engine start switch, and not to the switch that isolates the battery in the engine starting circuit, this proposition was not put to the plaintiff's expert Mr Manser nor to Mr Parsons in cross‑examination.  It was not led from Mr Jones, Mr Gatland nor from Mr Tomlinson himself in examination‑in‑chief.

12. The plaintiff was taken by surprise by this late development at trial. 

13. I reject Mr Tomlinson's attempt to offer his interpretation of 'master key' in the Agreement to mean the ignition key/switch and not the isolator switch.   

4.4     Finding

1. For the reasons I give at section 25, any reference to the 'master key' is synonymous with any of the switch terms,[38] as defined.

   [38] Which do not include 'ignition switch' or 'engine start switch'.  'Engine start switch' was a term referred to by the defendant in its closing submissions, ts 507.

2. I use those terms interchangeably throughout this decision.

3. The master key is not the same or synonymous with the ignition or engine start switch.

1. Where there was no evidence

1. It is necessary for me to say something about where there was no evidence of certain matters during the trial, or evidence of limited weight, and how I have approached those matters.  They fall into four main categories:

   (i)no evidence from Caterpillar;

   (ii)no evidence from WesTrac;

   (iii)no evidence about how the after-market equipment was installed; and

   (iv)no evidence of any underlying fault within the loader prior to the fire.

5.1     Caterpillar

1. There was no evidence led at trial from the manufacturer of the loader, Caterpillar, as to the purpose of installing the master key/isolator switch, or at all.

2. It appeared to be uncontested at trial that there was an Operator's Manual in place in 2018 (2018 Manual), that the 2018 Manual had been provided to Summit, but that it was physically within the cabin of the loader and was destroyed in the fire.  

3. I note that there was no evidence of those facts adduced at trial, however, both parties proceeded on what I take to be agreed facts on these points.

4. There was no evidence led at trial as to the content of the 2018 Manual.

5. Whilst there was evidence led at trial about the manual in operation in 2020 (the 2020 Manual),[39] there was no evidence as to whether this differed in any way to the 2018 Manual, and if so, how.

   [39] Exhibit 11.

6. Specifically in respect of the critical issues in this case, there was no evidence led at trial that the 2018 Manual contained any detail in respect of the isolator switch.

7. I have approached this matter on the basis that there is insufficient evidence before me from which I am able to draw an inference that the 2018 Manual would have been, or was, in identical, or even similar, terms to the 2020 Manual in respect of any sections to do with the isolator switch. 

8. For those reasons I do not consider that I can have regard to the 2020 Manual and have not done so in reaching my determination of this matter.

5.2     WesTrac

1. There was no evidence called from anyone from WesTrac, the company responsible for servicing the loader. 

2. At trial copies of service dockets headed 'Time, Expenses Sheet and Service Reports' dated, variously, 30 April 2018, 5 July 2018, 8 August 2018 and 29 September 2018 were tendered into evidence by both parties (the WesTrac Service Records).[40]  

   [40] Exhibits 13, 14, 15 and 57 respectively.

3. In the absence of a witness from WesTrac, there was no explanation as to the notations on the face of those documents, nor whether the notations on the face of those documents comprised accurate or complete records of any examinations or servicing undertaken, or not undertaken, on the loader.

4. The WesTrac Service Records make no mention of the existence of any known electrical faults within the loader.  The 5 July 2018 Service Report documents that the alternator was replaced.[41]

   [41] Exhibit 14.

5. There was no evidence before me to explain why the alternator was replaced, nor when the alternator first became faulty such that it was ultimately replaced.

6. There was no evidence led at trial as to whether there was anything located within the alternator that would permit me to draw any inference about the alternator as a possible cause of, or contributor to, the fire.

7. Nor was there any evidence about the effect of any faulty alternator being such that it led to, or was causative of, any subsequent damage to any of the componentry of the loader; whether to the electrical componentry or to the insulation or denso tape surrounding any electrical cabling or other parts of the loader.

8. Whilst the WesTrac Service Records were tendered by agreement between the parties, the evidential weight of those records is, in my opinion, limited.

9. The weight I give to the WesTrac Service Records is limited to the face value of the notations contained on those documents.  That is, that on the dates of the respective documents the loader was serviced and that on 5 July 2018 the alternator within the loader was replaced. 

10. To the extent that there was any submission at trial that I could draw any inference or inferences from the WesTrac Service Records reflecting that the alternator had been replaced and the effect that a faulty alternator had, or might have had, on the electrical and other componentry within the engine compartment, I disagree. 

11. To the extent that any expert evidence was based on a finding that the alternator within the loader was faulty, such that it caused consequential damage to the loader, electrical or otherwise, I put that evidence to one side as being speculative.[42]

    [42] For example, see the evidence of Mr Gatland, at ts 434 on this point.

12. To the extent that there was any suggestion at trial that I could draw inferences from the WesTrac Service Records regarding any failure by WesTrac to undertake specific examinations of the loader, I disagree. 

13. I consider that there is insufficient evidence from those documents to draw any inference about the effect of the alternator being replaced, nor am I able to draw any inference that WesTrac's servicing was thorough nor, conversely, that it was not. 

5.3     The after-market equipment

1. There was no evidence led at trial as to how the after‑market equipment was installed after Summit had taken possession of the loader.  There was no evidence as to the wiring configuration utilized with respect to that installation.

2. Any evidence sought to be given at trial about the 'likely' installation of the after-market equipment is not based on any evidence and is therefore speculative.  It follows that I do not accept any expert opinion evidence based on the 'likely' installation of that equipment.[43]

5.4     Existing fault within the loader

[43] See for example the evidence of Mr Manser at ts 173, ts 179.

1. There was no evidence that there existed any separate, known fault within the loader as at the date of the fire.

2. To the extent that there was any suggestion that there must have been another fault within the loader for it to catch fire on 4 October 2018,[44] there is insufficient proof of any such fault for the defendant to establish on the balance of probabilities that there was any concurrent wrongdoing on behalf of the plaintiff.[45]

1. The expert evidence - overview and my approach

6.1     Overview

[44] See for example the evidence of Mr Gatland at ts 457; the evidence of Mr Jones at ts 370.

[45] See section 39; the defendant did not pursue concurrent wrongdoing in its closing submissions.

1. Whilst a considerable part of the expert evidence was, in my opinion, ultimately unnecessary in order for me to determine the outcome in this trial, in fairness to the parties I summarise the evidence of each of the expert witnesses as briefly as possible.

2. To the extent that I do not refer to the evidence given by one of the expert witnesses on any aspect of their evidence, it is because I consider that the evidence is not relevant to my determination of the issues in this trial, or because that evidence reiterates or supports the evidence of a witness whose evidence I have set out in detail and whose evidence I have accepted, or because that part of the witness' evidence does not affect the findings of fact I need to make to determine the outcome of this trial.

3. I summarise the relevant evidence each expert gave in respect of the significance of, or the operation of, the relevant componentry, physical and electrical, in Part A, section 7.

4. I summarise the evidence each expert gave about his findings relevant to the origin of the fire in Part B.

5. I summarise the evidence given by the experts about the effect of the isolator switch in Part C.

6.2     Assessment of the reliability and credibility of the witnesses

1. It was necessary for me to assess the credibility and reliability of the evidence of each witness and thereby determine the weight to be given to the respective witness' evidence.[46] 

   [46] King v Nash [2022] WASC 102.

2. In determining credibility, I was assessing the honesty of the witness.  In assessing the credibility of the witnesses in this case I have taken into account whether I considered that the witness made concessions when it was appropriate for the witness to do so.  I have also taken into account whether the witness answered the question openly and fully, explaining his evidence and the reasons for reaching his conclusions, or whether the witness demonstrated an unwillingness to fully and frankly answer the questions asked of him.

3. In respect of the expert witnesses, I have taken into account whether the witness demonstrated the impartiality that the court expects of an expert witness giving evidence.

4. In determining reliability, I have assessed whether the witness gave an accurate account of what they saw, heard or did.  In this case in determining the reliability of a witness' evidence I have considered the circumstances in which the witness undertook their investigation, the thoroughness of the investigation, any advantage or disadvantage the witness had in their investigation and the factual foundation for the opinion expressed by the witness.  

5. I have also considered whether the witness' testimony was consistent with what had been said on a previous occasion by that witness and, if there were any inconsistencies, whether the inconsistencies were in respect of significant matters or matters of little significance.  I have further considered whether there was any reasonable explanation for those inconsistencies.

6. If a witness' evidence was inconsistent, or changed over time, that was a factor that I took into account in assessing the evidence of that witness.  Where the evidence was consistent on significant matters, that was a factor that I took into account, together with other factors, as supporting a determination that the witness' evidence is reliable.

7. I have considered whether the evidence of a witness was consistent with the evidence of other witnesses whose evidence I have accepted.

8. I had regard to the demeanour of each of the witnesses in assessing their evidence.  I have been mindful that some witnesses, understandably, may have felt apprehensive when giving evidence in a court room.  In those circumstances, to the extent that this was a factor that I considered affected the witness' demeanour, I have considered that this alone did not necessarily reflect on the credibility of the witness.

9. I have taken into account that I am able to accept all or part of the evidence of a witness or disregard all or part of the evidence of a witness.  I have been mindful that the evidence of a witness is the answers that are given in response to a question and not the question itself.

10. I have applied those principles in making an assessment of each of the witnesses who gave evidence in this trial.[47]

1. The technical aspects of the loader

7.1     Overview

[47] See Part E. 

1. Before turning to the detail of the expert evidence, it is necessary to give a brief overview of an undamaged Cat 938K loader.  The summary is necessary in order to understand:

   (a)the expert evidence and its import;

   (b)the location of different physical components of the loader in relation to one another;

   (c)the electrical components of the starting circuit within the loader;

   (d)the significance of the damage to the loader from the fire;

   (e)the two different hypotheses that emerged from the expert evidence; and

   (f)the relationship between the origin of the fire and the operation of the isolator switch.

2. During the course of the trial, to assist my understanding of the evidence, I requested that Mr Manser and Mr Jones draw diagrams of the loader and its componentry, physical and electrical.[48]  Those diagrams were drawn at short notice by both witnesses, either during a brief adjournment in the evidence or from the witness box as the witness was giving his evidence.  Mr Tomlinson as the final witness had the advantage of coming to court with a pre-prepared diagram of the electrical circuitry of the starter motor of the loader; to that extent his diagram is the most complete and accurate.[49]

   [48] Mr Manser drew six diagrams, Annexures 2A - 2F; Mr Jones drew two diagrams of the electrical componentry within the starter motor, Annexure 2G.

   [49] Annexure 2H.

3. In giving the brief overview of an undamaged loader I work from the outside of the loader inwards.  I use a combination of the photographs taken by Mr Jones of undamaged loaders in Albany and Geraldton and a combination of the diagrams drawn by Mr Manser, Mr Jones and Mr Tomlinson.

4. What follows is a brief, non-technical summary of parts of the outer aspects of the loader and the electrical circuitry of the loader in my own language.  It does not purport to be a technical overview of the machine. 

5. A selection of the photographs  and diagrams referred to are contained at Annexures 1 and 2 respectively.

7.2     The outer aspects of an undamaged loader

1. The loader pictured in the photograph taken by Mr Jones is at Annexure 1A.  It shows a similar, undamaged loader looking at the loader from the left‑hand side.  The hydraulic arms are to the front and to the left of the picture leading to either a fork or a bucket at the front of the machine.

2. The driver's cabin is to the right of the front left tyre, the driver's door is framed in black in the middle sitting on top of a metal plate.  There are three steps leading from the ground to the platform or plate on which the driver's cabin sits.  The door handle to the driver's cabin is the long rectangular piece in the bottom left of the driver's door.[50] 

   [50] See close up of the driver's cabin and fire extinguisher in its bracket at Annexure 1B.

3. To the right of the driver's cabin moving towards the rear of the machine is a fire extinguisher on top of the metal plate situated on top of the left rear tyre.  The yellow panels to the right of the fire extinguisher in which the mesh is seen are fibreglass panels,[51] with the engine compartment housed underneath.

7.3     The inner physical aspects of an undamaged loader

[51] The fibreglass panels are depicted by Mr Jones at Annexure 1C for the left‑hand side and Annexure 1D for the right‑hand side.

1. A photograph of the internal componentry within the engine compartment of an undamaged loader is seen at exhibit 59.[52]

   [52] Annexure 1E.

2. Mr Manser's drawing of the cabin and the engine compartment taking an aerial view shows, moving left to right, the front of the loader, the door, the driver's seat, the location of the emergency steering and the location of the starter motor and starter solenoid to the bottom left-hand corner of the engine compartment, situated slightly forward and between the right and the left rear tyres.[53]

   [53] Annexure 2A.

3. At the bottom right‑hand corner of the engine compartment is the location of the alternator and towards the rear of the loader is the rear‑mounted radiator.  The isolator switch is to the right, rear of the loader, with the battery box sitting behind the left rear tyre towards the rear of the loader.[54]

   [54] Annexures 2A and 2C.

4. The plan view of the engine compartment from the left side, as drawn by Mr Manser, shows the cabin to the left of the engine compartment.[55]  Within the engine compartment is the starter motor and solenoid in a rectangular box above the horizontal rectangle marked with crosses.  That depicts the engine sump oil which is where the oil sits when the machine is not in use.

   [55] Annexure 2D.

5. Above the engine sump to the right of the engine compartment is the alternator.  Below the engine sump and in a shape horizontally and upwards to the end on the right-hand side is the diesel tank of the loader.

6. To the right at the rear of the diagram is the isolator switch and below that is the battery box.  The square in the middle of the engine compartment is the turbo charger and exhaust.[56]

7.4     The components of the starting circuit within the engine compartment

7.4.1     Mr Manser's diagrams

[56] Annexure 2D.

1. Mr Manser's diagrams, drawn on no notice and at the request of the court, whilst not perfect, did assist the court in understanding the expert evidence broadly and the evidence that followed about the general wiring system and the operation of the isolator switch.

2. Mr Manser's wiring diagram depicts the battery, engine starter motor, alternator and emergency steering motor.[57]  On that diagram the starter motor is depicted in the middle of the diagram with the negative side to the left and the positive side to the right. 

   [57] Annexure 2E.

3. Under the negative side, the negative earth strap is bolted to the chassis of the loader.  To the right, the positive side leads to a switch which, when closed, connects the positive side of the starter motor to the cables running to the alternator, to the positive side of the battery and to the positive side of the emergency steering motor.[58]

7.4.2     The isolator switch

[58] See also the wiring diagrams drawn by Mr Jones at Annexure 2G.

1. The isolator switch is drawn by Mr Manser as two circles with a line raised from circle one towards, but not touching, circle two.[59]  Mr Manser explained that these are two copper contacts, with a copper bar across the top of them.

   [59] Annexure 2E.

2. When the isolation switch is in the on position it forces the copper bar down onto the two contacts; that completes the electrical circuit resulting in the negative side of the battery being connected to the metal chassis of the loader.[60]

   [60] ts 127.

3. Mr Manser explained that when the switch is in the on position that would result in positive electrical energy coming from the positive side of the battery through the solenoid switch to the positive side of the starter motor. 

4. Electrical current is then able to flow through the starter motor because the negative side of the starter motor is connected to the chassis of the loader through the earth strap.  The electrical current is therefore able to flow through that circuit from the positive side back to the negative side on the battery. 

5. Mr Manser explained that if the isolation switch was turned to the off position, the circuit would be broken and the starter motor would stop.[61]

7.4.3     The earth strap

[61] The isolator switch at Annexure 2E is in the off position as the bar on the left copper contact does not touch the right copper contact; ts 63, ts 127 - ts 128.

1. Because of the evidential significance of the earth strap in this trial, it is useful at this point to highlight a photograph of an undamaged negative earth strap.[62] The silver braided electrical cable is the negative earth strap that is bolted at both ends, one end onto the flange of the starter motor,[63] and the other end onto the chassis of the engine, the metal frame of the loader.[64] 

   [62] Annexure 1F.

   [63] Towards the middle of the photograph at Annexure 1F.

   [64] Towards the lower middle part of the photograph at Annexure 1F; ts 133, ts 189.

2. On Mr Manser's diagram, the earth strap is depicted as the vertical line with two large dots at either end.[65]  The top dot is the physical connection to the outside metal frame of the starter motor and the bottom dot is the physical connection of the earth strap to the metal chassis on the left-hand side of the engine compartment. 

   [65] Annexure 2F.

3. The emergency steering motor cable passes by the earth strap at that location.[66] 

   [66] Annexure 2F; ts 130.

4. None of that aspect of Mr Manser's evidence appears to be contentious.[67]

   [67] See also diagrams drawn by Mr Jones at Annexure 2G and the diagram drawn by Mr Tomlinson at Annexure 2H.

B.     The origin of the fire

1. Hypothesis One - The fire originated in the cabin

8.1     Overview - Hypothesis One

1. Mr Manser supported Hypothesis One.  In his opinion, the more likely hypothesis was that the fire had started in the cabin and progressed back towards the engine compartment of the loader.[68]

   [68] ts 140 - ts 141.

2. During the course of the trial Hypothesis One was explained in terms of the fire starting in the cabin in the after-market equipment before it progressed out the back window, around the outside and melted the fibreglass panels which then dripped into the engine compartment.  The fire then burned the radiator and then went back into the engine compartment.[69]

8.2     Mr Manser's approach to the investigation

[69] Objection was taken to Mr Manser giving evidence about his hypothesis that the fire then extended from the cabin back into the engine compartment on the basis that this comprised no part of his expert reports.  Nothing turns on the objection because of the findings I make at section 17.

1. Mr Manser inspected the loader some time after the fire, after the loader had been moved from where it had burnt inside the shed to the outside of Summit's premises.[70] 

   [70] ts 165.

2. He therefore did not view the loader in situ.  By the time Mr Manser inspected the loader various parts had been removed from the loader by Mr Jones,[71] debris surrounding, and within, the loader had been disturbed and the tyres of the loader were not in the same position as they were immediately after the fire.

   [71] ts 85, ts 92.

3. Mr Manser was therefore at a significant disadvantage in examining the loader in those circumstances and that affected the reliability of his evidence.[72]

8.3     The evidence in support of Hypothesis One

[72] See sections 17.1 and 17.2.

1. Mr Manser relied on the following four pieces of evidence from which he concluded the fire had originated in the cabin:

   (i)the after-market equipment installed in the cabin;[73]

   (ii)an 'arc damaged cable' within the cabin;[74]

   (iii)the door handle; and

   (iv)the aluminium window frame.

   [73] ts 86.

   [74] Annexure 3A as marked by Mr Manser; for location of arc damaged wire see Annexure 3B, markings '2' and '3'.  Marking '2' on Annexure 3B is where Mr Manser located the figure 8 'flex' wire; ts 84, ts 88.

2. I deal with each of these in turn.

8.3.1     The after-market equipment installed in the cabin

1. Mr Manser gave evidence that his hypothesis regarding the origin of the fire as starting in the cabin was because he 'became aware' that an after‑market electrical control device had been fitted to the machine after it was delivered to Summit. 

2. Mr Manser said:[75]

   … I was not able to see exactly how that aftermarket device was energised, where its positive connection was, where its fuse was, all those necessary things that I think are required to make sure that that is a safe system to install.  Because in my experience in over 30 years of fire investigation, including vehicle fires and machinery fires, one of the most common causes of fires on machines, cars, semi-trailers is the aftermarket device.

   [75] ts 86.

3. In respect of the after-market equipment, Mr Manser said that he was able to identify wiring within the cabin that did not 'appear' to him to be:[76]

   ... consistent with wiring that I would expect to be installed on a machine such as this loader.  I associated the wiring that I saw … more with a domestic type wiring and domestic type connectors.

   [76] ts 86.

4. One of the cables Mr Manser said that he located in the cabin was consistent with a figure 8 flex 'he had used' and installed 'himself' in domestic installations.  His evidence was that the figure 8 flex was wiring that he usually associated with domestic installations such as bed lamps.[77]

   [77] ts 88; the location of where Mr Manser said he found the 'figure 8 cable' is marked at Annexure 2B by a line in red immediately to the right of the X and above the word 'door'.

5. Mr Manser gave evidence that he had previously worked as an electrician.[78]

   [78] ts 161.

6. Mr Manser said further that:[79]

   Electrical connectors typically used in domestic installations were also located in the remains of what is presumed to be the radio control system.  There was no evidence of how that electrical system was connected to the electrical system of the machine.

   [79] ts 86; exhibit 16, par 7.8.

7. Mr Manser gave evidence that the metal post on which the after‑market equipment was installed and the cross brace attached to the A pillar supported his opinion that the after‑market equipment was 'very crudely constructed and installed'.[80]

   [80] Referring to the yellow dotted line on exhibit 16, TB 602, photograph 16; ts 87.

8. Mr Manser said that those additions by Summit were not part of the original manufacturer's equipment.[81] 

   [81] Exhibit 16, TB 601, par 7.8.

9. Mr Manser concluded:[82]

   It is more likely that the aftermarket equipment and electrical connections have caused the fire to occur than the OEM equipment.

8.3.2     An 'arc damaged cable' within the cabin

[82] Exhibit 16, TB 609, par 9.5.

1. The second reason Mr Manser gave for his conclusion that the origin of the fire was within the cabin of the loader was his evidence that he located 'evidence of arcing on a cable on the left side of the cabin'.[83] 

   [83] See Annexures 3A and 3C; ts 88.

2. Mr Manser marked on one of his diagrams where he said he found debris on the floor of the cabin.[84]

   [84] Annexure 2B is marked by Mr Manser with a dotted line to the right and the bottom of the box with an 'X' where Mr Manser said he found debris on the floor of the cabin.

3. Mr Manser gave evidence that the 'arc damaged' copper cable was located to the rear of the driver's seat towards the rear of the cabin.[85] 

   [85] Annexure 2B is marked by Mr Manser in red as the position where Mr Manser located the cable that he said was 'arc-damaged'.

4. Mr Manser explained that electrical arcing occurs when electrical current flows through a cable and the cable is unable to withstand the amount of electrical current because of a high resistance joint or a fracture through part of the cable.  It then becomes what is called a 'parting arc'.[86]

   [86] ts 84. 

5. Mr Manser said that upon examination of that cable, 'necking' was visible on the end of the cable, by which he explained that the cable had melted and narrowed down.  He explained that this was, in his opinion, the result of electrical arcing that occurred at that location.[87]

   [87] Referring to the cable at Annexure 3A; ts 88, ts 197.

6. Mr Manser also said that that cable showed evidence of 'beading' on the end of the cable.[88]  By 'beading' Mr Manser said right in the centre of the photograph is a ball and it looks like a round sphere attached to the end of the copper wire.  This, said Mr Manser, is where 'arcing' took place.[89] 

   [88] See Annexure 3A; the yellow arrow on Annexure 3C indicates where Mr Manser said he located this cable; ts 197.

   [89] Annexure 3A.

7. Mr Manser confirmed that was the only area in the cabin where he said that arcing was evident.[90] 

   [90] ts 197 - ts 198.

8. Mr Manser agreed that globules of copper on that cable could be evidence of melting but maintained that this cable is the result of electrical arcing.[91]

   [91] Annexure 3A; ts 199.

9. Mr Manser's evidence was that the fire had started in the cabin from an arc on wiring inside the cabin, 'possibly' from the cable that Mr Manser said evidenced 'beading'.[92]

   [92] See Annexure 3A where Mr Manser circled in black where he said the cable evidences 'beading'; ts 150. 

10. Mr Manser theorised that the fire then developed inside the cabin through the combustible material such as plastic trims, the insulation, the plastic seat and through any combustible material inside the cabin.[93] 

    [93] ts 88.  Objection was taken by the defendant to Mr Manser giving this aspect of his opinion because it was not contained in his report. I deal with this aspect of Mr Manser's evidence in my findings on his evidence, section 17.

11. Mr Manser said that the cabin was completely burnt out and he opined that there had been an extensive fire burning inside the cabin that caused the windows to fail.  He said that the fire inside the cabin then transmitted through radiant heat and possibly through gaps in the back of the cabin into the engine compartment and progressed towards the back of the machine.[94]

8.3.3     The door handle

[94] ts 88.

1. Mr Manser relied on the evidence of the melted door handle as further support for his hypothesis that the fire had started in the cabin of the loader.

2. Mr Manser said that the outside of the door handle was undamaged by fire as was the lock and the plastic surface of the body of the handle.  He said that the door handle had melted from the inside and had fallen away from the machine and was not damaged.[95]

   [95] ts 91; ts 95.

3. Mr Manser concluded that fire had not come from outside of the handle, rather, that the handle had melted off the door when the frame heated up from a fire burning inside the cabin.[96] 

   [96] ts 95.

4. That the door handle had melted off the machine indicated to Mr Manser that there was a fire in the cabin 'before it was elsewhere'.[97]

8.3.4     The aluminium window frame

[97] ts 150 - ts 151.

1. During the course of his investigation, Mr Manser physically replaced the aluminium window frame back into the door.[98]  Having done so, Mr Manser said that it showed that the aluminium frame was missing on the back and the top side; that is, that there was more damage to the back and the top of the window frame than to its front.

   [98] Exhibit 16, TB 606, photograph 24.

2. That indicated to Mr Manser that a fire was burning 'more intensely at that location coming from right to left from the back of the cabin towards the front of the cabin'.[99]

   [99] ts 96; ts 150 - ts 151.

3. Mr Manser said that his hypothesis was that the fire moved from the back of the cabin to the front of the cabin.  It was his hypothesis that the fire started behind the seat where the majority of the electrical controls in the cabin are mounted.[100]  By electrical controls Mr Manser said that he meant air conditioners, heaters, 'all of those ancillary devices that the machine has on it'.[101]

8.4     Other aspects to Mr Manser's evidence

[100] ts 96 - ts 97.

[101] ts 97.

1. Mr Manser said that fire patterns can 'in some circumstances' show the direction of travel of a fire,[102] but denied that they did so in this case.[103]

   [102] ts 185.

   [103] ts 186.

2. Mr Manser explained that in machinery fires the patterns go 'all over the place'; the fire ebbs and flows backwards and forwards, up and down.  In his opinion using a 'V' pattern is an unreliable way of determining the origin of the fire.[104]

   [104] ts 202.

3. Finally, Mr Manser did not agree with the following propositions:

   (a)that if a fire originated in the cabin it could not possibly have burnt downwards and back into the area of the starter motor without having travelled further forward and upwards on the machine;[105] 

   (b)that the lack of damage to the front of the loader does not support the proposition that the fire travelled from the cabin backwards to the engine compartment;[106]

   (c)that the combustion patterns to the front tyres do not support his hypothesis that the fire travelled backwards;[107] and

   (d)that the lack of damage to the driver door window frame does not support his hypothesis.[108]

1. Hypothesis Two - The fire originated in the engine compartment

   [105] ts 217.

   [106] ts 218.

   [107] ts 218.

   [108] ts 218.

1. Mr Jones, Mr Gatland and Mr Tomlinson all supported Hypothesis Two.  I deal with Mr Jones' evidence at sections 9.1 - 9.4 and Mr Gatland's evidence and Mr Tomlinson's evidence, with regard to the origin of the fire, at sections 9.5 - 9.6 and sections 9.7 - 9.9 respectively.[109]

9.1     Mr Jones' approach to the investigation

[109] The other evidence Mr Tomlinson gave about the battery isolator switch is summarised in section 14.  The evidence he gave about the VisionLink system is summarised in section 16.  My findings of Mr Tomlinson as a witness and the findings of fact I draw from his evidence is set out in section 20.

1. Mr Jones examined the loader on 6 October 2018.  The loader was still in situ within the shed when Mr Jones attended the premises.  It did not appear to be in contention that the loader had not been moved from its position prior to the fire.

2. Mr Jones' approach to his examination of the loader was thorough, detailed and methodical.  He commenced his investigation from the outside inwards.  Mr Jones took photographs of the external aspects of the loader before moving inwards and taking photographs of the internal aspects of the loader.

3. Mr Jones then conducted a detailed examination of the damage to the external and internal parts of the loader; this examination also included an examination of the debris located on the ground outside of the loader.

4. Having taken photographs, Mr Jones then removed the starter motor and the negative earth strap from the loader for closer inspection.

5. Mr Jones' approach to his examination enabled him to have a full understanding of the context in which the loader was positioned immediately after the fire, the relevance of external damage to the loader and, working inwards, the relevance of the internal damage to the loader. 

6. Having completed his physical examination of the loader Mr Jones travelled to both Albany and to Geraldton to examine other similar loaders that were not damaged, by fire or otherwise.  That provided Mr Jones with the ability to comment on the damage that he found to the exterior and interior of the loader, the subject of this matter, when compared to other, undamaged loaders.

9.2     Why Mr Jones supported Hypothesis Two

1. Mr Jones relied on numerous pieces of evidence to explain why he reached the conclusion that the origin of the fire was in a narrow area to the left side of the engine compartment near the starter motor.[110]  Those reasons included the significance of fire burn patterns in determining the area of origin; Mr Jones identified 11 burn patterns across the loader.  These are summarised at section 9.2.1.

   [110] ts 292.

2. Mr Jones gave a further 12 reasons why he came to the conclusion that the origin of the fire was in the area to the left side of the engine compartment near the starter motor. 

3. I summarise those reasons moving from the damage to the external aspects of the loader (sections 9.2.2 - 9.2.10) towards the damage to the internal components of the loader (sections 9.2.11 - 9.2.13).

4. I then set out Mr Jones' response to Mr Manser's evidence, summarised in 11 points (sections 9.3.1 - 9.3.11) before summarising Mr Jones' response to other propositions put to him (section 9.4).

9.2.1     The evidence of fire burn patterns

1. Mr Jones gave evidence that fire burn patterns are a reliable tool to use in determining fire travel and direction in a fire examination including in machinery fires such as this.[111]

   [111] ts 271.

2. Mr Jones said that fires typically move upwards and outwards in a 'V' pattern.[112]  A fire that is not accelerated with a liquid accelerant will normally burn in that pattern, upwards and outwards, because the fire is in search of oxygen. 

   [112] ts 265 - ts 266.

3. As the fire develops it will leave behind a 'V' pattern which indicates the travel of the fire.  That is because the area within the 'V' is where it is hot; there is essentially a line as the fire spreads from where it is burning.  Below the point of the 'V', the area will either be unburnt or just heat damaged.

4. Mr Jones said that fires will burn reasonably uniformly forwards and rearwards depending on the fuel load and ventilation.  Ventilation was not an issue in this case.[113]

   [113] ts 266.

5. The 11 locations evidencing fire burn patterns were consistent with the fire originating out of the area of the origin of the fire, namely the area around the starter motor.

6. Mr Jones' evidence about the burn patterns and their significance at those 11 locations can be summarised as:

   (a)the aluminium window frame which showed a 'V' pattern;[114]

   [114] ts 267.

   (b)the roof of the cabin and the top of the engine compartment cover which showed combustion patterns;[115]

   [115] ts 285.

   (c)the left side of the loader where the honeycomb metal vent pattern is located.  That showed that the fibreglass had been consumed from the front of the engine rearward.  It was not completely consumed on the right‑hand side, which showed that the left side had been exposed to the fire for a longer period;[116]

   [116] ts 293.

   (d)the right, rear of the machine, where the aluminium radiator is, which showed the combustion pattern to the aluminium in a 'V' pattern;[117]

   [117] ts 294.

   (e)the inside of the engine cover on the left-hand side of the engine compartment behind the fire extinguisher.  That indicated more severe damage in the area towards the front of the engine compartment on the left-hand side;[118]

   (f)the metal bracket attached to the engine cover.  That indicated more complete combustion and oxidation on the cover in that area;[119]

   (g)the alloy components at the front of the engine.  That indicated that this area of the engine had been exposed to more heat for a longer period of time.[120]  It is consistent with a fire that came around the front of the engine and then travelled rearward on the right side of the engine compartment;[121]

   (h)the rear of the engine.  That revealed that the damage was less severe to the alloy components;[122]

   (i)the top of the engine as viewed from the left side and the remaining alloy components at the top.  That showed the fuel injection lines, which reflected the partial consumption of the remaining alloy components;[123]

   (j)the right side of the motor, which was less severely damaged than the left side of the motor.  That indicated to Mr Jones that the area of origin was on the left side of the engine;[124] and

   (k)the large hydraulic oil tank, which showed a combustion pattern that originated from this area, and is consistent with the fire having come out of the engine compartment, forward, and then impacting the rear.[125]

9.2.2     The damage caused to the tyres of the loader

[118] ts 295.

[119] ts 296 - ts 297.

[120] ts 298.

[121] ts 300.

[122] ts 299.

[123] ts 302.

[124] ts 303.

[125] ts 304.

1. The external examination of the loader showed that the damage was more severe towards the rear than the front of the loader.

2. The left rear tyre was completely consumed.[126]  The right rear tyre had been almost completely consumed.[127]

   [126] Annexure 3D; ts 257.

   [127] Exhibit 36, TB 633, par 12.23.

3. The damage to the front left tyre showed that the fire had impacted on the tyre from the inside, down low.[128]  The damage to the bottom of that tyre is significant because it is an indication of the flow of the fire onto the left tyre, from the inside out.[129]  The fire did not extend over the top of the front left tyre.[130] 

   [128] Annexure 3E.

   [129] ts 258.

   [130] ts 260; Annexure 3F is marked by Mr Jones and shows the direction of the travel of the fire.

4. The totality of the damage to the front left tyre showed that the bottom area closest to the inside of the loader was fully consumed with just the bets left.[131]  That damage is progressively less as one moves to the outside of the machine.

   [131] ts 260.

5. The damage to the right front tyre indicated that it was impacted by fire travelling under the machine within the chassis area impacting it from the inside.[132]  The most complete combustion or consumption of that tyre was on the inside of the lower side of the tyre closer to the ground.

   [132] Annexure 3G; ts 259, ts 260 - ts 261.

6. Mr Jones said that his hypothesis was that on both the left and right front tyres, the fire appears to have travelled under the chassis and under the cab and impacted on both of the tyres from the inside and low down.[133]

9.2.3     The damage to the fire extinguisher

[133] ts 258.

1. The fire extinguisher originally sat on the left side of the machine on the platform guard directly above the left wheel outside the cabin on the side of the engine compartment in a metal bracket.[134]

   [134] Annexure 3H; ts 284.

2. When Mr Jones conducted his examination of the loader he located the fire extinguisher sitting off to the left side of the machine.

3. The damage to the bracket indicated that the fire extinguisher had experienced a mechanical explosion to the rear.  That was consistent with the fire coming out of the engine compartment onto the fire extinguisher.[135]  It was further consistent with the fire venting out of the opening of what was a fibreglass cover prior to the fire.[136]

9.2.4     The lack of damage to the rear counterweights of the loader

[135] ts 281 - ts 283.

[136] Annexures 3I and 3J.

1. The rear counterweights are the large yellow areas at the rear of the loader.  The lack of damage to the rear of the loader, with areas of paint that had not been consumed at that point on the loader, indicated to Mr Jones that the very rear of the loader was away from the area of origin of the fire.

2. That meant that the fire could not have started at the very back of the engine compartment.[137]

9.2.5     The fibreglass panels and metal vent

[137] ts 292.

1. The damage to the fibreglass in which the honeycomb-patterned metal vent sat, located on the left side around the engine compartment behind the cabin, showed that the fibreglass had been completely consumed on the left side of the mesh.  The fibreglass on the right‑hand side of the mesh had not been completely consumed.[138]

   [138] See Annexures 1C and 1D as marked by Mr Jones depicting the fibreglass panels of the left and right‑hand sides of a loader respectively; ts 409.

2. Mr Jones said that the damage to the fibreglass reflects that it was consumed from the front of the engine compartment rearward.  That the fibreglass had been completely consumed on the left-hand side was an indication that the left side was exposed to the fire for a longer period of time than the right side.

3. That, Mr Jones said, is consistent with the fire originating out of the left side of the engine compartment near the starter motor.[139]

9.2.6     The aluminium radiator

[139] ts 293.

1. The combustion pattern to the aluminium on the radiator showed that the top was mostly consumed with less damage caused further down.  This was an indication that the fire came from the right side of the image onto the aluminium and is consistent with the fire travelling from the front of the engine compartment rearward in this area of the engine compartment.[140]

9.2.7      The engine cover

[140] Annexure 3K is a photograph looking at the right rear of the machine.  The silver component in that photograph is what was left of the aluminium radiator after the fire.  The arrow on Annexure 3K indicates that the fire came from downwards on the right, up towards the top left of the aluminium radiator; ts 294 - ts 295.

1. Mr Jones removed the engine cover which was bolted on the left‑hand side behind the fire extinguisher.  When examining the metal work in the area directly behind the cover when removed, heavy oxidation was noted on the front left side of the engine compartment. 

2. Mr Jones noted that on examination of the cover, the fire patterns indicated more severe damage in the area towards the front of the engine compartment on the left side.[141] 

   [141] Exhibit 36, par 12.26, photograph 44.

3. It also resulted in the distortion of the metal bracket or plate that was attached to that cover.[142]  The burning was only on the inside and not the outside of the cover.[143]

   [142] Exhibit 36, page 26, photograph 44.

   [143] Exhibit 36, page 26.

4. Mr Jones considered that this was another fire pattern consistent with the fire originating out of the area of origin being around the starter motor.[144]

   [144] ts 297, ts 385.

5. In terms of the burn patterns to the top of the engine cover,[145] Mr Jones observed more complete combustion of the paint and surface on the left side than on the right side.  The fact that the paint was consumed on the left side indicated that it had sustained either more heat for a longer period or simply more heat.[146]

9.2.8     The right side of the engine compartment

[145] Annexure 3L.

[146] ts 389.

1. Mr Jones' examination of the right side of the engine compartment of the loader showed severe damage in this area. 

2. He noted firstly that the right rear tyre had been almost completely consumed by the fire and secondly, that the combustion to the alloy components within the engine compartment on the right side of the engine block became more severe as one moved forward on the engine. 

3. Mr Jones concluded that the fire patterns in this area were consistent with the fire having travelled from the left side to the right side around the front of the engine.[147]

   [147] Exhibit 36, par 12.23; see Annexure 3M as marked by Mr Jones showing from the front of the engine rearward where the alloy has been completely consumed; ts 299 - ts 300; ts 390.

4. Mr Jones said that the more complete consumption of the alloy components at the front of the engine indicated that that area of the engine had been exposed to more heat for a longer period.

5. That, Mr Jones said, is consistent with the fire coming around the front of the engine from the left side travelling rearward on the right side of the engine compartment.[148]

   [148] ts 390.

6. Whilst accepting that the fire from the lower right-hand tyre had some impact on the engine compartment, he disagreed that the damage seen to the right side of the engine could have come from the heat generated from the burning of the right-hand tyre.

7. Mr Jones said that the combustion patterns and damage to the right side of the engine, were consistent with the fire having come around the front of the engine at that point and were inconsistent with Hypothesis One.[149]

   [149] ts 390; exhibit 36, photographs 38 and 39; Annexure 3M.

8. Whilst Mr Jones accepted 'to some degree' that once the fibreglass panel was burnt away, the fire from the right‑hand tyre would have impacted the exposed engine compartment,[150] he rejected that the damage to the right side of the engine came from the tyre.[151]

9.2.9     The left side of the engine

[150] ts 393.

[151] ts 392.

1. The damage to the alloy components mounted at the top of the engine were not as severe to the right side of the engine as compared to the left side of the engine,[152] where what were previously alloy components have been completely consumed.[153]

   [152] Annexure 3N is a view from the top of the engine as viewed from the left‑hand side.

   [153] ts 302.

2. Mr Jones relied on this as an indicator that the area of origin of the fire was on the left side of the engine.[154] 

9.2.10   The front section of the engine compartment

[154] ts 303.

1. Mr Jones said that the combustion patterns coming out of the engine compartment are consistent with the fire coming out of the engine compartment forward and then impacting on the rear.[155] 

9.2.11   The negative earth strap

[155] See Annexure 3O showing the front section of the engine compartment.  Mr Jones circled the orange area and the arrow shows the combustion pattern pointing back to the direction from where the fire travelled when it impacted on this component; ts 304 - ts 305.

1. Mr Jones photographed the earth strap in situ.[156]

   [156] The end of the earth strap that was separated is in the middle of Annexure 3P.  That is the thread on the bolt/stud and that is the terminal for the earth strap.  The wired flat grey area running to the left of that image is the actual earth strap; ts 310.

2. When Mr Jones examined the loader, the side that was still attached to the strap was bolted to the inside left of the chassis rail.  The end with the arc damage was where the stud fits onto the starter motor flange.  Mr Jones said that the earth strap showed evidence of arc damage, or an electrical interaction, at the stud end where it is mounted to the starter motor.[157] 

   [157] ts 254.

3. There is another cable running from the right side of the image which stopped underneath.[158]  This was the cable that ran from the starter motor solenoid forward to the secondary steering solenoid.[159]  It had been severed in line with the earth strap. 

   [158] Annexure 3P.

   [159] ts 310.

4. Mr Jones said there was clear evidence of an electrical interaction, evidence of 'arcing', between the earth strap and the main power cable running between the starter solenoid and the secondary steering solenoid.  The arcing on the other cable was located within the terminal bolt from the starter solenoid.[160]

   [160] ts 317.

5. Mr Jones said that when the arcing occurred the earth strap could not still have been bolted to the starter motor.  For the arcing to have occurred the alloy housing had to already have been consumed to allow it to come into contact with a positive cable running from the solenoid through to the secondary steering.[161]  For the PVC insulation to have been compromised and to have fallen away, allowing the arcing event to occur, it must have been hot.

   [161] ts 313.

6. That, Mr Jones said, indicated that the area of origin was where the starter motor is, with the starter solenoid and its cable evidencing associated arc beading.[162]

   [162] ts 353.

7. Mr Jones said from his scene examination it appeared that the negative cable had come into contact with the positive cable that was originally located approximately 30 mm below it.[163]

   [163] ts 256.

8. Mr Jones agreed that he could not say that the fire started on the starter solenoid.[164]

9.2.12   Arcing on the electrical cabling within the debris on the solenoid and starter

[164] ts 353.

1. Located within the debris was a small piece of electrical cabling attached via a terminal to a bolt with a contact plate at the opposite end.[165] 

   [165] Annexure 3Q.

2. That particular cable was located by Mr Jones near the starter motor near the crossmember.[166]  Mr Jones said that the bolt on the flange appeared to be the contact for the starter solenoid which is attached to the starter motor.[167]

   [166] Annexure 3Q.

   [167] ts 309; Annexure 3Q.

3. Mr Jones said that the cable shows evidence of arcing or beading on the ends of the individual strands shaped like globules or balls.[168]  The beading is the result of an arcing event;[169] the arcing is the result of an electrical interaction.[170] 

   [168] ts 307.

   [169] ts 308; Annexure 3Q.

   [170] ts 308.

4. Mr Jones noted that it has another strand of cable of a different thickness crossing at right angles.[171]  The beading or arcing on that piece of debris indicated that an electrical interaction had occurred. 

   [171] Mr Jones was referring to the orange wire on Annexure 3Q that runs like 'a half horseshoe, almost'; ts 308.

5. Mr Jones' evidence was that that arcing event occurred near the starter motor.[172] 

9.2.13   The confined area of the electrical interaction

[172] ts 309.

1. The damage had not travelled further along the cables to the mounting 'P' brackets; the main power cable passed through on either side of this 'event'.

2. Had the insulation on the cable been compromised due to a fire that originated outside of the starter motor area, Mr Jones would have expected to have seen evidence of some interaction to the cables when they passed through those brackets.[173]

   [173] Exhibit 36, par 12.34.

3. The evidence of arc beading was in the narrow area between the P clips on the earth strap and nowhere else.[174]  Mr Jones concluded that the fire could not have started elsewhere in the engine bay.[175]

1. The relationship between two parties entering into a commercial arrangement whereby the defendant hired an expensive piece of machinery is a recognised category of relationship by virtue of which the law imposes a duty of care.[462]

1. Finding on whether the defendant owed a duty of care to the plaintiff

   [462] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [27] (McHugh J), [63] (Gummow J); Osborne Park Commercial Pty Ltd v Miloradovic [2019] WASCA 17 [129] - [130] (judgment of the court) (Osborne Park); D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87 (Gething DCJ) (D'Souza).

1. Applying those factors to the relationship between the plaintiff and the defendant, there are five reasons why I find that Summit owed Lenane a duty of care in tort. 

2. First, the defendant was a commercial operator hiring the loader to work in a fertiliser plant.  That the defendant operated complex machinery relying on energised circuits informs me that a reasonable person in the position of the defendant was under a duty to take reasonable steps to ensure that the loader was safely stored overnight. 

3. Second, Lenane placed reliance on Summit to take reasonable care of the loader and Summit assumed the responsibility to do so.

4. Third, the defendant's knowledge of the circumstances in which the loader would be used and stored and its knowledge, articulated frankly by Mr Parsons, was that the machine had to be 'isolated' at the end of each shift.

5. Fourth, Lenane depended on Summit to exercise reasonable care of the loader. Lenane was to an extent vulnerable to harm from Summit's conduct given that the loader was operated and stored at the premises of the defendant, away from the plaintiff.

6. Fifth, the physical, geographical, and commercial propinquity of the parties, in the activities of each in which one suffered, and the other caused, the harm.

7. I am therefore satisfied that the defendant owed the plaintiff a common law duty of care to the plaintiff to exercise reasonable care to avoid any foreseeable risk of harm to the plaintiff's loader as a lessee of the loader. 

1. What was the standard of care owed?

1. I need to consider whether there is anything in the circumstances of this case which warrants the imposition of a more specific or onerous duty of care over and above the terms of the agreement entered into at arm's length between the parties.  I have concluded that there is not. 

2. The standard of care owed by the defendant was to take reasonable precautions to ensure that the plaintiff did not suffer harm. 

3. The standard of care owed by Summit was coexistent with its contractual obligations to utilise, store, maintain and keep the loader in a manner which would avoid the risk of harm to the loader.

4. By 'harm' I refer to damage to the loader as a result of failing to store the loader safely overnight in all the conditions as the defendant knew them to be.[463]  The risk of harm includes damage to property. 

1. Did the defendant breach the duty of care?

35.1           Relevant law as to breach of duty of care

[463] As to which see section 33.

1. In addressing the question of whether there has been a breach of the duty of care which I have identified, I must have regard to the terms of the Civil Liability Act 2002 (WA) (CLA) s 5B.

2. That section provides that a defendant will not be liable for harm caused by his or her fault in failing to take precautions against a risk of harm unless three elements are found:

   (a)the risk was foreseeable (that is, it is a risk of which the defendant knew or ought to have known);

   (b)the risk was not insignificant; and

   (c)in the circumstances, a reasonable person in the position of the defendant would have taken those precautions.

3. Specifically, CLA s 5B does not provide that a person is liable for harm caused by that person's fault in failing to take precautions against a risk of harm. Rather, it modifies the common law as to breach of duty of care by, among other provisions, articulating situations in which a person is not liable for harm.[464]

   [464] CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117 [77] (judgment of the court) (CGU Insurance); Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [70] - [83] (Buss JA) (Department of Housing and Works); D'Souza [402] (Gething DCJ).

4. CLA s 5B requires identification of what precautions a reasonable person in the position of the defendant would have taken by way of response to a foreseeable, not insignificant, risk.

5. This is to be determined objectively.[465]  It is also to be determined prospectively, not with the wisdom of hindsight.[466]  In particular, the precautions which a reasonable person would have taken are to be assessed before the harm occurred.[467]

   [465] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [70] (Gummow J); Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [33] (Buss P & Vaughan JA), [116] (Murphy JA) (Allied Pumps).

   [466] Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [31], [40] (French CJ, Gummow, Hayne, Heydon & Crennan JJ) (Adeels Palace); Allied Pumps [12], [33], [120]; CGU Insurance [78].

   [467] CGU Insurance [78].

6. The 'response to a foreseeable risk is to be judged by the criterion of reasonableness, not some more stringent requirement of prevention'.[468]

   [468] Allied Pumps [12].

7. The court must look forward to identify what a reasonable person in the defendant's position would have done, not backward to identify what would have avoided the injury to the plaintiff.[469]

   [469] Adeels Palace [31]; New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [57] - [58] (Gummow & Hayne JJ); CGU Insurance [78].

8. The answer to this question involves a factual judgment turning on the facts of the case as they are proved in evidence.[470]

   [470] Adeels Palace [40]; Allied Pumps [15], [122].

9. The phrase 'in failing to take precautions against a risk of harm' refers to 'a failure by the person in question to take positive action against the possibility of the occurrence of harm of any kind including personal injury, damage to property and economic loss'.[471]

   [471] Department of Housing and Works [78]; D'Souza [403] - [405] (Gething DCJ).

10. By CLA s 5B(2), in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

    (a)the probability that the harm would occur if care were not taken;

    (b)the likely seriousness of the harm;

    (c)the burden of taking precautions to avoid the risk of harm; and

    (d)the social utility of the activity that creates the risk of harm.

11. This subsection restates the common law position as set out in Wyong Shire Council v Shirt.[472]

35.2           Did Summit breach the duty of care owed to the plaintiff?

[472] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 - 48 (Mason J); Waverley Council v Ferreira [2005] NSWCA 418 [45] (Ipp JA with whom Spigelman CJ & Tobias JA agreed); Allied Pumps [6] ‑ [10], [114]; D'Souza [401] - [405] (Gething DCJ).

1. For the purposes of CLA s 5B, the 'harm' said to have been caused by the defendant's fault, its failure to isolate the machine when stored overnight, is damage to the loader.

2. 'Harm' is defined in s 3 CLA to mean 'harm of any kind including damage to property'.[473]

   [473] CLA s 3.

3. In determining whether Summit 'should have reasonably foreseen a risk of injury, it is not necessary that it should have foreseen the precise risk of harm or how it occurred'.[474]   Rather, it is 'sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen'.[475] Hence, CLA s 5B refers to 'a risk of harm' and not 'the risk of harm'.

   [474] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87] (McHugh J) (Graham Barclay Oysters); Allied Pumps [8].

   [475] Graham Barclay Oysters [87]; Allied Pumps [8].

4. In my view, the relevant risk of harm for the purposes of CLA s 5B in the present case is a risk of damage to the loader,[476] however caused, by the defendant's failure to store the loader with the isolator switch in the off position.

35.3   Was the risk of harm a foreseeable risk?

[476] Allied Pumps [12], [19] ‑ [22], [123].

1. The first issue is whether the risk of harm through the failure to store the loader with the isolator switch in the off position was a foreseeable risk, that is, a risk of which Summit knew or ought to have known.[477]

   [477] CLA s 5B(1)(a).

2. I find that Summit ought to have known of the risk of harm, that is the risk of damage to the loader, if the isolator switch was not turned off when the loader came to be stored at the end of the day.  

3. I come to that conclusion for the following five reasons.

4. First, the experts were all in agreement that the effect of leaving the isolator switch in the on position was that the positive circuits within the starting engine would remain energised. 

5. Second, that has to be viewed in the context of the loader being used, operated and stored within a commercial fertiliser plant. 

6. That meant that the loader, stored overnight in the defendant's shed having been used commercially in a fertiliser plant, on any objective view, was at risk of harm if the starting circuit within the engine of the loader remained positively energised. 

7. The combination of fertilisers and heat generated from an energised starting circuit (the circumstances) creates a risk of harm that is foreseeable.

8. Third, that the loader remained at risk of harm in the circumstances where the loader was unattended by the defendant overnight and was beyond the supervision of the plaintiff.

9. Fourth, it was reasonably foreseeable that a failure to remove any energised circuits within the engine compartment at the conclusion of a shift in all of the circumstances as identified would give rise to a risk of harm, meaning damage to the loader. 

10. The precise harm caused does not need to be foreseen: that is, the risk of fire does not itself have to be foreseen. 

11. In the context of this case and all of the circumstances as outlined, I conclude that leaving a loader with an energised starting circuit on where the loader has been used with fertilisers and stored in the shed of a fertiliser plant the risk of fire is one which is foreseeable. 

12. Fifth, that the employee of the defendant knew that 'the machine had to be isolated' demonstrates that the defendant knew that it had a duty to turn the isolator switch off at the conclusion of each shift. 

13. In conclusion I find that the risk of harm of damage to the loader by failing to turn off the isolator switch was a foreseeable risk, that is a risk of which Summit knew or ought to have known.[478] 

35.4   Was the risk 'not insignificant'?

[478] CLA s 5B(1)(a).

1. The second issue is whether the risk of harm is not insignificant.

2. I find that the risk of damage to the loader by leaving the isolator switch turned on, and the resultant effect that the starting circuit remained positively energised, in the circumstances of being used in connection with fertilisers, meant that the risk of damage to the loader was not insignificant.

3. The effect of not isolating the loader meant that the machine was left energised, via the positive cables within the starting circuit, overnight, unattended, in the defendant's shed, in a fertiliser plant.

4. The effect of leaving the isolator switch on and the resultant effect that the positive circuitry of the starting circuit remained on, thus created the circumstances for an electrical event in the starting circuit to occur.

5. Said differently, the failure to turn the isolator switch off failed to prevent the harm occurring that evening.

6. The risk of an electrical event occurring was a risk which was not insignificant.

35.5   What precautions would a reasonable person in the position of the defendant have taken?

1. The third issue is whether, in the circumstances, a reasonable person in the position of the defendant would have taken the precautions which the evidence establishes the defendant did not take: that is, to turn the isolator switch into the off position at the end of Mr Parsons' shift on 4 October 2018. 

2. In determining whether a reasonable person would have taken precautions against a risk of harm, the court must consider, amongst other relevant things, the probability that the harm would occur if care were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm.[479]

   [479] CLA s 5B(2).

3. In assessing the probability that the harm would occur if care were not taken, when one considers the effect of leaving the isolator switch on, that is, that the starting circuit remains energised, and therefore at risk of an electrical event, I consider the probability that the loader would suffer damage is high.

4. Again, the surrounding circumstances provide the context in which to assess the likely seriousness of the harm, or damage to the loader.  With the electrical circuitry within the starting circuit of the loader's engine remaining on, in the context of the loader being used in connection with fertilisers, and stored overnight, and unattended, in the defendant's shed, the likely seriousness of the harm to the loader is high.

5. I therefore consider that the likely seriousness of the harm, or damage to the loader, of an electrical event in all the circumstances as set out was high.

6. The burden of taking precautions to avoid the risk of harm was low; it involved simply turning a switch into the off position before being stored overnight.

7. The social utility of the activity that creates the risk of harm, by which I identify as the failure to turn the isolator switch into the off position was zero.

8. In considering 'all other relevant things,' I take into account the fact that the defendant entered into a contract with the plaintiff, at arm's length, in which the defendant agreed that one of its obligations to the plaintiff in respect of the loader was to turn the isolator switch into the off position every night. 

9. The employee of Summit, Mr Parsons, knew that the machine had to be isolated at the end of each shift.

10. All of these factors speak to the steps that a reasonable person in the position of the defendant would have taken.

11. It was no more than what the defendant had agreed contractually to do.

1. Conclusions on duty of care

1. The defendant had a duty of care co-existent with its contractual obligations to utilise, store, maintain and keep the loader in a manner which would avoid the risk of harm to the loader.  The risk of harm includes damage to property. 

2. That the employee of the defendant, Mr Parsons, in his evidence made it clear that he knew that 'the machine had to be isolated' demonstrates that the defendant knew that it had a duty to turn the isolator switch off at the conclusion of each shift. 

3. The defendant was a commercial operator hiring the loader to work in a fertiliser plant.

4. That the defendant operated complex machinery relying on energised circuits informs me that a reasonable person in the position of the defendant ought to have taken reasonable steps to ensure that the loader was safely stored overnight. 

5. It was reasonably foreseeable that a failure to remove any energised circuits within the engine compartment at the conclusion of a shift in all of the circumstances would give risk to a risk of harm, meaning damage to the loader. 

6. I therefore find that the precaution of turning the battery isolator switch into the off position was a precaution which a reasonable person in the defendant's position would have taken.

7. For those reasons I conclude that the defendant failed to take the precaution that a reasonable person in the defendant's position would have taken in respect of a risk of harm that the defendant knew or ought to have known and in respect of which the risk was not insignificant.

8. I therefore conclude that Summit breached the duty of care it owed to the plaintiff.

1. Causation

37.1   Relevant law as to causation

1. The CLA guides, but does not displace, the application of the common law on the issue of causation.[480]

   [480] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 [22] (Wallace).

2. The issue of causation is governed by CLA s 5C which provides:

   5C.General principles

   (1)A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -

   (a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and

   (b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).

   (2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -

   (a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and

   (b)whether and why the harm should be left to lie where it fell.

   (3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault -

   (a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and

   (b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.

   (4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.

3. As the High Court pointed out in Wallace, the distinction between factual causation and scope of liability reflects the common law:[481]

   The common law of negligence requires determination of causation for the purpose of attributing legal responsibility.  Such a determination inevitably involves two questions: a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person.  The distinct nature of those two questions has tended, by and large, to be overlooked in the articulation of the common law … Statute now requires that the two questions be kept distinct.

   [481] Wallace [11] - [12] (judgment of the court).

4. The test of factual causation in CLA s 5C(1)(a) is to be determined by the 'but for' test: but for the negligent act or omission, would the harm have occurred?[482]

   [482] Wallace [16]; Adeels Palace [45]; Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 [20] (Strong); East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147 (Ellis) [586] - [613].

5. That is, a determination in accordance with [s 5C(1)(a)] that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.[483]

   [483] Wallace [16].

6. It is sufficient for the plaintiff to prove that the fault of the defendant was 'a necessary condition of the occurrence of the harm', as opposed to, for example, 'the necessary condition' of the occurrence of the harm.[484]

   [484] Ellis [596] - [601].

7. In cases where it appears that the cause of harm may be multi‑factorial, it is sufficient that the defendant's conduct contributes to the occurrence of the harm in the sense that it is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm.[485]

   [485] Strong [20].

1. The defendant's fault need only be one cause (or 'a cause') of the plaintiff's harm.  The contribution of other causes, where present, does not negate the causal connection if the defendant's negligent act is 'a cause'.[486]

   [486] Ellis [597].

2. The relevant enquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.[487]

   [487] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd[2013] HCA 10; (2013) 247 CLR 613 [45] (French CJ, Hayne & Kiefel JJ); The State of Western Australia v Cunningham [No 3] [2018] WASCA 207 [117]; Ellis [598] in considering the meaning of ‘material contribution’ as understood in the ‘first’ way in the CLA s5(1)(a).

3. In this sense, the notion of 'material contribution' means little more than that the defendant's negligent act or omission was 'a necessary condition' of the plaintiff's harm as opposed to 'the sum of the conditions which are jointly sufficient to produce it'.[488]

   [488] Ellis [599].

4. 'Material contribution' in this sense is picked up in s 5C(1)(a) in the requirement that the plaintiff establish 'that the fault was a necessary condition of the occurrence of the harm' (as opposed, for example, to 'the necessary conditions').[489]

   [489] Ellis [600].

5. Properly understood, therefore, for a plaintiff to prove that the defendant's fault 'materially contributed' to the plaintiff's harm[490] is not an alternative to what is required by s 5C(1)(a); it is what is required by s 5C(1)(a). Material contribution' to the harm is what the plaintiff must prove, not how the plaintiff might go about proving it.[491]

   [490] In this 'first sense' as explained in Ellis [597] - [600].

   [491] Ellis [601].

6. The following observation by Hayne and Bell JJ in Tabet v Gett is apt:[492]

   For the purposes of the law of negligence, 'damage' refers to some difference to the plaintiff.  The difference must be detrimental.  What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant's negligence was a cause of that difference.  The comparison invoked by reference to 'difference' is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred.

   [492] Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 [66] (Hayne & Bell JJ).

7. This comment is equally applicable to the concept of 'harm' in the CLA.[493]

   [493] D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87 [485] - [493].

8. In order for the issue of factual causation to arise, I would have to find that the defendant failed to exercise reasonable care so as to expose the plaintiff to the risk of damage or harm to the loader by the defendant's failure to turn off the isolator switch.

9. This is the 'fault' for the purposes of CLA s 5C(1)(a).

10. The determination in accordance with s 5C(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with CLA s 5D.[494]

    [494] Wallace [14].

11. Causation may be proven by inference from circumstantial evidence.[495]   Inferences 'from actual facts that are proved are just as much part of the evidence as those facts themselves'.[496]

    [495] Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 [98] (Spigelman CJ).

    [496] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 309 (Menzies J).

12. In order to draw an inference, I must be satisfied that the circumstances raise a more probable inference in favour of what is alleged: 'where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference'.[497]   Further, the drawing of an inference is an assessment of what is human experience, rather than a mathematical or scientific calculation.[498]

    [497] Luxton v Vines[1952] HCA 19; (1952) 85 CLR 352, 358 (Dixon, Fullagar & Kitto JJ); Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 536 (Gibbs CJ & Mason J); Robinson v Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2017] WASCA 190 [47] (reasons of the court); Fazio v Fazio [2012] WASCA 72 [48] (Murphy JA, with whom Pullin & Newnes JJA agreed) (Fazio).

    [498] Fazio [46]; D'Souza [497].

13. In the end, I must make any finding of causation on the evidence and not assume the existence of a fact.[499]  The evidence must go beyond guesses and speculation.[500]  I am required to be actually persuaded as to the probability of a fact being true.[501]  

    [499] Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173 [153] (Allanson J).

    [500] Hirst v Sydney South West Area Health Service [2011] NSWSC 664 [114] (Davies J).

    [501] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 343 (Latham CJ).

14. The 'facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied'.[502]  I must have 'the appropriate degree of confidence in its existence or correctness based on or judged according to reason'.[503]

    [502] Jones v Dunkel (305) (Dixon CJ).

    [503] Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 227 (Mahoney JA).

15. The issue of proving causation was addressed in Ellis as follows:[504]

    … it is clear, and there can be no doubt, that mere proof by a plaintiff of the possibility that a defendant's breach caused the plaintiff to suffer harm is insufficient.  The court must be satisfied that it is more probable than not that the defendant's breach caused the relevant harm; it is not sufficient to conclude that the breach may have been a cause of the harm ...

    At the same time, it is also well‑established that causation may be proved by inference.  If direct proof is not available, an inference of causation may be drawn if the circumstantial evidence is sufficiently strong and coherent to support a definite inference to that effect.  Before such an inference can be drawn, there must be more than two conflicting inferences of equal probability …

    The drawing of an inference has been described as 'an exercise of the ordinary powers of human reason in the light of human experience' … A court must, of course, avoid conjecture, but the distinction between permissible inference and conjecture occurs on a continuum in which there is no bright line division …

    [504] Ellis [597] - [600].

16. In summary, for the purposes of determining causation under the CLA:

    (a)it is first necessary to identify the relevant 'fault';

    (b)it is then necessary to identity the relevant 'harm';

    (c)the onus is then on the plaintiff to prove that the fault was a necessary condition of the occurrence of the harm as required by CLA s 5C(1)(a);

    (d)if the plaintiff cannot prove that the fault was a necessary condition of the occurrence of harm, the plaintiff has a second avenue by which to establish causation in CLA s 5C(2), namely by reference to established principles, relevantly, whether the fault materially contributed to the harm;[505] and

    (e)the plaintiff must also prove that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (as required by CLA s 5C(1)(b) or s 5C(2)(a) and s 5C(2)(b)).

37.2   My approach

[505] In the circumstances of the present case it is not necessary for me to consider the alternate means of establishing causation in CLA s 5C(2), as to which, see generally: Ellis [586] - [613].

1. With these principles in mind, the relevant 'fault' is the defendant's failure to turn off the isolator switch after Mr Parsons' shift on 4 October 2018.  The relevant 'harm' is the damage caused to the loader; here that it was destroyed by fire on the evening of 4 October 2018 or in the early hours of 5 October 2018.

2. The next question is whether the plaintiff has proved that the fault was a necessary condition of the occurrence of the damage to the loader.  Or more specifically, that the damage to the loader would not have occurred absent the fault of the defendant.

3. I find that the plaintiff has proved on the balance of probabilities that had the isolator switch been turned into the off position at the conclusion of Mr Parsons' shift on 4 October 2018, the loader would not have caught fire later that evening.  That is, but for the defendant's failure to turn the isolator switch off, the fire would not have occurred that evening; the harm would not have arisen.[506]

   [506] I rely on the reasons set out in section 31 in reaching this conclusion.

4. Turning the isolator switch into the off position would have prevented the fire occurring that evening.  That is because I find, consistently with the evidence of Mr Jones, Mr Gatland, Mr Manser (on this point) and Mr Tomlinson (on this point) that in the area where I accept the fire originated, there was an electrical event which would not, and could not, have happened had the isolator switch been in the off position. 

5. The defendant knew that the machine 'had to be isolated'.  So much was clear from the evidence of Mr Parsons, the defendant's employee.

6. Whilst the prevention of fires may not be the reason why a machine such as this has a battery isolator switch, it is clear from the evidence of the expert witnesses that the effect of turning the isolator switch off would be that the electrical circuitry within the starting circuit were not be full energised.

7. As a result, the effect of turning the isolator switch off is that there could not have been any electrical events within the starting circuit, such as arcing on the negative earth strap.

8. The effect of not turning the isolator switch into the off position was therefore to create the circumstances, in combination with any other unidentified fault within the loader, for an electrical event to occur and the loader to catch on fire.

9. I am satisfied on the balance of probabilities, consistent with the expert evidence on this point,[507] that but for the defendant's failure to turn the isolator switch off, the loader would not have caught fire that evening.

   [507] Mr Manser ts 175; Mr Jones ts 369 - ts 370; Mr Gatland ts 453; Mr Tomlinson ts 481; ts 488 - ts 490.

10. In the language of CLA s 5C(1)(a), I find that the defendant's failure to turn the master key off, and thereby isolate the machine, was a necessary condition of the occurrence of the harm.

1. Scope of liability

1. Having resolved the issue of factual causation in favour of the plaintiff it is necessary for me to consider the second question set out in CLA s 5C(1)(b): is it appropriate for the scope of the tortfeasor's liability to extend to the harm so caused?

2. For the purpose of determining the scope of liability, 'the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor'.[508]

   [508] CLA s 5C(4).

3. No onus of proof arises in respect of the application of the second element.  It is a qualitative, normative assessment to be made based on the facts as I have found them to be.[509]

   [509] Ellis [622] - [623]; Wallace [14].

4. In my view this is a case in which the scope of liability for the consequences of the harm should be, and are, coextensive with the content of the defendant's duty which has been breached.[510]

   [510] Wallace [26]; Ellis [630] - [633].

5. There is no reason why the scope of the defendant's liability should not extend to the harm caused to the plaintiff in the destruction of the loader by the fire late on 4 October 2018 or in the early hours of 5 October 2018.

1. Concurrent wrongdoing

1. Whilst the defendant's pleaded position was that, in the event of a finding of negligence, WesTrac was a concurrent wrongdoer the defendant abandoned that submission in its closing address.

2. The defendant's expert evidence that there must have been some underlying fault in the loader for the fire to occur on the evening of 4 to 5 October 2018.  There is no evidence of any underlying faults the loader may have had.

3. The defendant did not press any issue of concurrent wrongdoing in its closing submissions.

4. There is no finding of concurrent wrongdoing by the plaintiff or any third party.

J.      Damages

1. At common law, the damages that are to be awarded to a victim of negligence are 'that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation …'[511]

   [511] Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn); Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, 142 - 143 [6] (Gleeson CJ, Gummow, Kirby & Hayne JJ).

2. The common law position is subject to the provisions of the CLA.  The time­-honoured approach is to assess damages by reference to established heads of damages. 

3. The fundamental principle underlying the assessment of damages is that the plaintiff is only compensated for what he has actually lost.[512] 

   [512] Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 19 (McHugh J).

4. The process of assessment must be governed by considerations of practical common sense in the context of the facts of the particular case.[513]

   [513] Van Gervan v Fenton (1992) 175 CLR 327, 343 (Deane & Dawson JJ); Montemaggiori v Wilson [2011] WASCA 177 [30] (Buss & Newnes JJA); D'Souza [615].

5. The parties have agreed that in the event of a finding for the plaintiff that damages in the amount of $245,500 ought to be awarded.[514]

Orders

[514] See statement of claim (15(a)); Outline of Defendant's Opening submissions [34].

1. For these reasons there be judgment for the plaintiff against the defendant in the agreed amount of $245,500.

2. I will hear from the parties as to costs.

ANNEXURE 1 - PHOTOGRAPHS OF AN UNDAMAGED LOADER

ANNEXURE 1A

Exhibit 58

ANNEXURE 1B

Exhibit 60

ANNEXURE 1C

Exhibit 61: Copy of page 259, exhibit 58, as marked by Mr Jones showing the fibreglass panel

ANNEXURE 1D

Exhibit 62: Photograph of page 261 as marked by Mr Jones

ANNEXURE 1E

Exhibit 59

ANNEXURE 1F

Exhibit 27

ANNEXURE 2 - DIAGRAMS

ANNEXURE 2A

Exhibit 21: Diagram drawn by Mr Manser headed 1 – cabin and engine compartment looking top down

ANNEXURE 2B

Exhibit 22: Diagram drawn by Mr Manser headed 1A – cabin looking from the top down

ANNEXURE 2C

Exhibit 23: Diagram drawn by Mr Manser headed 2 – plan view of the loader from the left side

ANNEXURE 2D

Exhibit 24: Diagram drawn by Mr Manser headed 3 – plan view of the engine compartment from the left side

ANNEXURE 2E

Exhibit 25: Diagram drawn by Mr Manser headed 4 – wiring diagram

ANNEXURE 2F

Exhibit 26: Diagram drawn by Mr Manser headed 5 – electrical wiring of the starter motor

ANNEXURE 2G

Exhibit 63: Two diagrams drawn by Mr Jones

ANNEXURE 2H

Exhibit 67: Drawing by Mr Tomlinson

ANNEXURE 3 – PHOTOGRAPHS OF A DAMAGED LOADER

ANNEXURE 3A

Exhibit 32: As marked by Mr Manser

ANNEXURE 3B

Exhibit 28: As marked by Mr Manser

ANNEXURE 3C

Exhibit 16: Photograph 18

ANNEXURE 3D

Exhibit 6

ANNEXURE 3E

Exhibit 33

ANNEXURE 3F

Exhibit 38: As marked by Mr Jones

ANNEXURE 3G

Exhibit 29

ANNEXURE 3H

Exhibit 7

ANNEXURE 3I

Exhibit 42

ANNEXURE 3J

Exhibit 43

ANNEXURE 3K

Exhibit 48:  As marked by Mr Jones

ANNEXURE 3L

Exhibit 44:  As marked by Mr Jones

ANNEXURE 3M

Exhibit 49:  As marked by Mr Jones

ANNEXURE 3N

Exhibit 50

ANNEXURE 3O

Exhibit 51:  As marked by Mr Jones

ANNEXURE 3P

Exhibit 54

ANNEXURE 3Q

Exhibit 53: Two photographs

ANNEXURE 3R

Exhibit 66: Supplementary Fire Incident Report of Mr Tomlinson, dated 5 February 2020, photograph 4.7, remains of earth strap, left arrow.  Remains of originally energised positive cable as found by Mr Jones, right arrow (page 17 of Report)

Exhibit 66: Supplementary Fire Incident Report of Mr Tomlinson, dated 5 February 2020, photograph 4.8, close up view of reconstructed short circuit between earth strap and positive cable (page 18 of Report)

Exhibit 66: Supplementary Fire Incident Report of Mr Tomlinson, dated 5 February 2020, photograph 4.9, exploded view of short circuit.  Remains of earth strap, upper arrows, remains of originally energised positive cable, lower arrows (page 19 of Report)

ANNEXURE 3S - PHOTOGRAPHS OF THE DAMAGED EARTH STRAP

Exhibit 56

Exhibit 36: Fire scene examination report of Mr Jones, dated 16 January 2019, photograph 53, starter motor in position after fire, sever ends of main supply cable running from the starter solenoid forward indicated by red arrows, earth strap indicated by yellow arrow (page 30 of Report)

Exhibit 36: Fire scene examination report of Mr Jones, dated 16 January 2019, photograph 56, earth strap terminal within position after fire (read arrow) with severed starter motor end of main cable (yellow arrow) (page 32 of Report)

Exhibit 36: Fire scene examination report of Mr Jones, dated 16 January 2019, photograph 57, earth strap in position after fire (red arrow) with severed end of main cable running forward to driver's cab area (yellow arrow) (page 32 of Report)

Exhibit 36: Fire scene examination report of Mr Jones, dated 16 January 2019, photograph 58, earth strap removed from loader.  Note evidence of electrical interaction at starter motor terminal end of cable (page 32 of Report)

Exhibit 36: Fire scene examination report of Mr Jones, dated 16 January 2019, photograph 59, earth strap, starter motor terminal end, mounting stud and nuts still attached to terminal.  Evidence of electrical interaction to terminal and end of cable (page 33 of Report)

Exhibit 36: Fire scene examination report of Mr Jones, dated 16 January 2019, photograph 60, earth strap, starter motor terminal end, mounting stud and nuts still attached to terminal.  Evidence of electrical interaction to terminal and end of cable (page 33 of Report)

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

JC

Associate to the Judge

5 APRIL 2023