Marzouk v Gippsland Building Services Pty Ltd
[2020] VCC 1038
•24 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI−17−04729
| CAROL MARZOUK | Plaintiff |
| v | |
| GIPPSLAND BUILDING SERVICES PTY LTD | First Defendant |
| And | |
| AVANSO PTY LTD | Second Defendant |
| And | |
| FAST ELECTRICAL PTY LTD | Third Defendant |
| And | |
| MELBOURNE FIRE AND EMERGENCY SERVICES BOARD | Fourth Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 June 2020 – 23 June 2020 | |
DATE OF JUDGMENT: | 24 July 2020 | |
CASE MAY BE CITED AS: | Marzouk v Gippsland Building Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1038 | |
REASONS FOR JUDGMENT
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Subject: PROPERTY DAMAGE
Catchwords: Negligence – property damage – house fire - plasterer – duty of care
Legislation Cited: Evidence Act 2008 (Vic); Wrongs Act 1958 (Vic); Competition and Consumer Act 2010 (Cth)
Cases Cited:Dare v Pulham (1982) CLR 685; Banque Commercial SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; Leighton Contractors Pty Ltd v Fox & Ors (2009) 240 CLR 1; Indico Holdings Pty Ltd v TNT Australia Pty Ltd (1990) 41 NSWLR; Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 303 ALR 583; Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Simpson | Sparke Helmore Lawyers |
| For the First Defendant | No appearance | Meridian Lawyers |
| For the Second Defendant | Mr A Muller | Colin Biggers & Paisley Lawyers |
| For the Third Defendant | No appearance | Norris Coates Lawyers |
| For the Fourth Defendant | Mr R Harper | K & L Gates |
HIS HONOUR:
1 The ignition point of paper is 219° Celsius. The heat produced by a halogen light is 490° Celsius. To stop materials around a halogen light from overheating, heat shields are placed around a halogen light.
2 Insulation in many older Australian homes is of a loose-fill cellulosic type. In other words, it is shredded paper, often old phone books. The shredded paper is coated in a substance called borate. This acts to make the insulation inflammable. Over time the borate is shed from the insulation.
3 The case before the Court arises because an unshielded halogen light ignited loose fill roof insulation. The subsequent fire caused extensive property damage. When and how this occurred is in dispute. Who is required to pay for the property damage is the central issue between the homeowner, Ms Marzouk and the plastering company, Avanso. All other claims against and between the other defendants were resolved.
4 The facts of the matter can be broadly and easily stated. However, there is great dispute about the detail surrounding each of the events. Though it may be duplicative it is useful to set out the matter in general first. Detail will then be focused on each of the separate critical events. The determination of those factual disputes determines each cause of action.
FACTS
5 In about 2004, Ms Marzouk moved into a property located at 7 Golf Links Drive, Mill Park. That was a residential property that had been built in approximately 1988. Some time prior to Ms Marzouk moving into the premises, there had been loose-fill insulation placed into the roof. Annexure “A” to the Joint Statement of Agreed and Assumed Facts, filed on 3 June 2020, shows the general layout of the property. From around 2010, additional yellow fibreglass-batts insulation had been randomly distributed within the roof cavity. Several rolls of these batts were then left in the roof. The roof was a standard cathedral type. It comprised joists running east-west and beams running north-south. In the roof cavity, at some point, the owners had laid down plywood sheeting over the joists and beams to form a floor. Similarly, they had walled the roof cavity, before the eaves, by using plywood sheeting as well. This converted roof cavity - an attic - was accessed by an opening in the corridor roof via a ladder.
6 On the western wall of the premises around the point of bedroom three and the laundry/bathroom, affixed to the roof, was an evaporative air-conditioning unit. That air-conditioning unit had, coming from it, ducts which ran through the roof. Those ducts terminated in various vents in the ceiling throughout the premises.
7 Around 22 February 2014, the air-conditioning unit began to leak. That leak spread along the ducts and into the roof space. The leak produced wet plaster above the living room. Over time, that had two effects. First, it began to cause electrical problems, and secondly, it caused a weakening of the ceiling plaster in the living room.
8 Ms Marzouk reported the damage to her insurer. The occurrence of the water damage necessitated repair and replacement works to be performed at the premises.[1] The replacement works fell into the following categories:
(a) removal and replacement of the water-damaged ceiling;
(b)removal and replacement of the water damaged insulation above the ceiling;
(c)replacement of light fittings and carrying out electrical repairs for the property.[2]
[1]Joint Court Book (“JCB”) 297 at paragraph [14]
[2]JCB 297 at paragraph [14]
9 The insurer for Ms Marzouk arranged for what are termed “make safe repairs” to be carried out. Those repairs were conducted by a company named J.K.G Pty Ltd (“JKG”). Work was conducted by JKG around 3 March 2014. That work was the removal of the plaster that was damaged by the water in the living room, some work involving wiring which ran above the living room ceiling, erection of three battens in place of the water-damaged ceiling plaster and the installation of black tarpaulin to cover that area. These works are shown at Annexure “B”.[3] It is agreed that a dangling wire from the plastic sheeting is shown, which has tape and/or plastic fitted to the end. Exactly what wire that is, or whether it used to connect to a halogen light fitting, is in dispute.
[3]JCB 306
10 On or shortly before 18 March 2014, Ms Marzouk reported to a company, known as Marshall Restorations, during their inspection, when assessing the extent of water damage, that “power to the lights and points ha[d] been shorting out since the incident.”[4] In response, on that same day, Marshall Restorations reported to the insurer’s agent that an electrician should attend as soon as possible to check and make safe the electrical circuits and lights to the affected rooms and check the dishwasher (which may have been electrically affected).[5]
[4]JCB 298, at paragraph [18]
[5]JCB 432
11 The insurer for Ms Marzouk arranged for Gippsland Building Services (“GBS”) to begin the process of repairing the premises. This company was, until the first day of trial, the First Defendant. It is the company Mr Bronstring worked for. GBS issued a scope of works which required, relevantly, plaster ceiling work to be done, the disconnection and reconnection of various downlights and fittings, a check on all electrical works and painting works, and the removal of insulation in the ceiling.[6]
[6]JCB 444
12 It was obvious that the works could not be completed by one particular trade. As a result, various trades were engaged to perform the work. The plastering work was allocated to Avanso Pty Ltd (“Avanso”) – the Second Defendant. This is the company that Mr Anikeev worked for. The electrical work was allocated to Fast Electrical Pty Ltd (“Fast Electrical”). This company was, until the first day of trial, the Third Defendant. This is the company that Mr Micallef worked for.
13 At some point, workers from Brivis Climate Systems Pty Ltd (‘Brivis’) attended at the house and went into the ceiling space. They did so to fix the air-conditioning unit which had malfunctioned. Not much more is known about their involvement.
14 On 23 April 2014 Mr Anikeev, the plasterer, attended at the premises to do measuring work. At this stage, Mr Micallef, the electrician, had not attended. On 25 April 2014, Mr Anikeev attended with another worker. They brought with them ceiling plaster and insulation batts. The evidence of Mr Anikeev is that he and his co-worker did not go into the ceiling but stood in the living room and performed their work from underneath the ceiling. This is disputed. They removed the black tarpaulin and some of the waterlogged insulation. Having done that, they then placed the fibreglass batts into the roof space from below and secured them into position. His evidence was that he did not do any electrical work on any of the light fittings or wires. He rendered “Tax Invoice 5”, described as the removal and replacement of plaster ceiling and the removal and replacement of 5m2 insulation.[7]
[7]JCB 301 at paragraph [32]
15 On 30 April 2014 Mr Micallef, the electrician, attended at the premises. At this point the evidence is that the downlights in the living room had not been operated since 22 February 2014.[8] This means that, for a period of about three months, the living-room lights had not been operated at all. During the course of his attendance, Mr Micallef operated the downlights. Shortly afterward a smell of smoke was noticed. At the time Ms Marzouk was not home. Mr El-Osta, her former husband, was at home. Mr Micallef went into the roof and there discovered a “small orange glow” indicative of a fire. On closer investigation, that fire was above one of the halogen lights in the living-room area. Mr Micallef took a photograph of this halogen light from below. The location of that fire is allegedly depicted by the red dot marked closest to bedroom three on the Annexure “A” sketch.[9] However it must be noted that the sketch is not to scale and the placement of the dot was done by Officer O’Toole, a Fire Investigator of the MFB, after he had discussed the matter with Mr El-Osta. Whether the position of that red dot is actually the position of the first fire is in dispute. Mr Micallef gave evidence that the photographs he took are of halogen lights in the kitchen area. This would place the position north and east of the position that was recorded on Annexure “A”. Mr Micallef extinguished that fire with a fire extinguisher and then, with the help of Mr El-Osta, removed burnt insulation from that area and took it outside.
[8]JCB 301 at paragraph [36]. See also JCB 239 at paragraph [21]
[9]JCB 305
16 This fire which occurred on 30 April 2014 is referred to as the first fire. At the time, Mr Micallef telephoned 000 and requested the attendance of the fire brigade. They attended at the house. Officer Wood was the relevant MFB officer in charge, together with Officer Mothersole.
17 Mr Micallef then remained at the house for some period of time. His evidence is, broadly, that he made the downlights safe and left the bedroom lights available for the occupants of the house to use. He gave evidence in his witness statement that he diagnosed a faulty mechanical switch, which he isolated at the light-switch plate. In his witness statement, he gave evidence that he believed he performed a double isolation of the downlights in the living-room area. That evidence is heavily in contest. In any event, the next day Mr Micallef provided a Certificate of Electrical Safety, which appears to indicate that the light switches at the house were in good electrical working order.
18 It is here (at about 2021 hours on 30 April 2014) that the parties also substantially diverged as to what occurred. On the plasterer’s case, the MFB officer, Officer Wood, told Mr El-Osta and Mr Micallef that they were not to use the downlights and that the downlights should be isolated. Officer Wood gave evidence that the family should stay elsewhere for the night and that if the lights were operated, they risked burning the house down. Mr El-Osta and Mr Micallef deny being told this. What then occurred is the subject of much dispute, Avanso alleging that the downlights were operated and Ms Marzouk alleging that they were not operated.
19 At around 0439 hours on 1 May 2014, a second fire broke out in the roof space above the living room. This was a substantial fire and burnt much of the house. This is the second fire. The fire brigade attended again. Both Officers Wood and Mothersole attended. Fire Investigator O’Toole attended at about 0700. He spent a large part of the day at the property.
20 At about 1100 on 1 May 2014 a third fire broke out. This is the third fire. It was located above the wall of the second bedroom and the ensuite. It was brief and caused no damage. The MFB were already in attendance and put it out.
21 There was no relevant damage to the property or contents in the first fire. The substantial damage to the house and contents which occurred in the second fire led to Ms Marzouk’s home and contents insurance policy responding. It has paid for her insured loss and damage. Her insurer, by its rights of subrogation, now pursues the builder GBS, the plasterer Avanso, the electrician Fast Electrical and the MFB in negligence and for breaches of the Australian Consumer Law. Notices of Contribution were filed by GBS against Avanso, and Fast Electrical. Concurrent wrongdoer provisions were invoked pursuant to part IV AA of the Wrongs Act 1958, particularly by the plasterer, who claimed that both Fast Electrical and the MFB were concurrent wrongdoers.[10]
[10]See the Amended Defence of the Second Defendant dated 5 June 2020.
22 On the first day of Ms Marzouk’s proceedings, her claims against GBS, Fast Electrical and the MFB were resolved. At the same time contribution proceedings between the Defendants were resolved leaving only Avanso, the plasterer, to contest the matter.
23 As so many of the fundamental facts were in dispute, it is necessary to resolve those factual issues prior to determining the constituent elements of Ms Marzouk’s causes of action.
How many downlights were in the living room and ceiling? Where were they located?
24 The agreed Statement of Facts essentially determines this issue. The property at 7 Golf Links Drive, Mill Park, is a brick-veneer dwelling. The internal walls are clad with plasterboard. The ceiling is clad with plasterboard. Above the ceiling runs beams, joists and battens. At some point, loose-fill insulation, which I find was primarily paper, had been blown into and settled above the ceiling area of the premises, including above the living-room ceiling.[11] From around 2010, additional yellow fibreglass batts had been randomly distributed within the roof cavity. Additional rolls of batts, most likely 2 rolls, were left in the roof cavity after this work. Those rolls were there at the time of the water leak, about 22 February 2014.
[11]JCB 296 at paragraph [5]
25 Before February 2014, halogen downlights (sometimes referred to as recessed luminaires) had been placed specifically into the living-room ceiling. Ms Marzouk gave evidence that there were six in the area of the living room.[12] Those downlights ran in a pattern from east to west. I note that Annexure “A” shows at least two of these downlights. The 6 downlights are seen in the photograph at JCB 423.[13] I accept that evidence and find there were only 6 downlights in the living room.
[12]T 138, Line (“L) L 22 - 28
[13]JCB 423
26 The ceiling downlights in the living room ran in a pattern from east to west. One light was on the southern side and close towards the window and one was on the north side and close to the kitchen bench.
27 Despite Ms Marzouk’s evidence, the Plaintiff argued for the proposition that there were 2 downlights in the area which was immediately adjacent to the wall that separated bedroom 3 from the living room. It was said that these 2 downlights were additional to those identified by Ms Marzouk and seen in the photo at JCB 423.[14] The Plaintiff drew support from Mr El-Osta to support this contention. Mr El-Osta gave evidence that after the water damaged ceiling fell, “two downlights where the ceiling had fallen down were dangling from the ceiling”.[15] In support of this contention was the marking of Annexure “A” with the red dot. It was argued that the evidence in the case showed that the first fire occurred only by reason of a halogen light heating insulation such as to cause ignition.[16] It was argued that the point of that ignition is marked on Annexure “A” and as such discloses the location of a halogen light. Such inferential reasoning does not stand scrutiny, in my opinion, when regard is had to the following facts. First, the red dot was marked by Officer O’Toole after a discussion with Mr El-Osta. It is a recording taken in the aftermath of a large fire in the living room which had destroyed much of the ceiling and left a scene of some destruction. The usual landmarks of orientation were gone. Second, Mr El-Osta admitted that after the first fire there was a scene of commotion.[17] His ex-wife, daughter and the MFB were there. In this circumstance it is likely he was prone to miss things, such as the pinpoint location of the first fire. Third, at the time he smelt the smoke he was standing in the kitchen.[18] This is important for the fourth reason being that the location of the first fire was identified by Mr Micallef as occurring at the downlights shown in the photograph located at JCB 440, which he located as being in the kitchen.[19] Mr Micallef took this photograph shortly after the first fire. It is good contemporaneous evidence of the location of the first fire. Further the evidence of both Officers Wood[20] and Mothersole[21] is that at the time of the attendance they saw downlights dangling from the ceiling in the kitchen as being those depicted in JCB 440. Officer Wood had a specific recall of standing at the end of the kitchen bench and talking to Mr Micallef, who was on his left in the kitchen, and Mr El-Osta to his right of the kitchen bench in the living room. He said the dangling light was above them. Officer Wood identified the insulation seen in the photograph at JCB 440 as being burnt. Finally, and importantly it is telling, in my opinion, that Ms Marzouk, who had lived at the house for about 10 years at the time of the first fire did not say that there were two downlights in the area where the ceiling was damaged. It could be expected that she would know if there were. She did not give this evidence in her witness statement or during her viva voce evidence. It leaves Mr El-Osta’s evidence isolated on this point. She was not asked about this issue.
[14]Ms Marzouk admitted in her evidence that there were six downlights at T 139, L 1
[15]JCB 237 at [5]
[16]JCB 318
[17]T 120, L 13-15
[18]T 119, L 23
[19]T 218, L 2 – comment based on photographs at JCB 351
[20]T 526, L 2
[21]T 556, L 6-7
28 These matters reinforce my finding that the location of the first fire was at about the location of a downlight near the kitchen.[22] Quite clearly that photograph shows the downlight wires dangling through the ceiling plaster. The evidence from Mr Anikeev was that neither he nor his co-worker had cut holes in the plaster they installed. This evidence was not challenged – it being the Plaintiff’s case that the failure to cut holes in the plaster and pull the halogen lights through had not been done. This can only mean, and I find, that the downlight shown was in an area away from that repaired by Avanso; that is not under the area covered by the black plastic - or shown by the red dot closest to the bedroom’s wall.
[22]JCB 440
After the water damage what work was conducted in the make safe works?
29 To understand this topic, the starting point is the water damage itself. The first water damage claim simply notes “water dripping through the ceiling in the living room … [which] is now a steady flow”.[23]
[23]JCB 549
30 The initial preliminary scope of works was to remove and replace the ceiling (plaster and cornice) and insulation, provide allowance to replace light fittings, carry out electrical repair to the living room and check for further resultant water damage.[24]
[24]JCB 550
31 Both JKG and GBS were instructed to compile a detailed scope of works. However, only JKG attended the premises on 3 March 2014. Mr Giurdanella from their office attended. He provided evidence by witness statement,[25] and was not cross-examined. His report is at JCB 420. The exact works done as part of make safe are unclear. It can be inferred, at least from the photographs, that JKG workers went into the ceiling space in order to affix the tarpaulin. The work order for the make safe allowed for $385. At some point in early March the works were completed. The invoice was marked to be paid on 6 March 2014.[26]
[25]JCB 258
[26]JCB 551. See also, invoice at JCB 430
32 What is agreed between the parties is that after the make safe works, a wire was left hanging from the ceiling, which had been taped up. This can be seen in Annexure “B”. Mr El-Osta said that what used to hang from the wire was part of the downlights.[27] The basis on which he could make such a determination is unclear. He is not an electrician. He did not install the lights. He did not remove the alleged downlight. He doesn’t give positive evidence that he saw what occurred. There was no evidence that JKG had removed the downlight. There is no way to know if JKG had done this work. However, JKG issued a scope of works on 17 March 2014.[28] It set out the works needed, being ceiling plaster, then:
“Disconnect and reconnect two existing down lights, replace one light fitting as per existing and replace three down lights as per existing … and make sure all is OK.”[29]
[27]T 118, L 14
[28]JCB 431
[29]JCB 431
33 Insulation of 5m2 was also required to be replaced.
34 This is consistent with instructions that Ms Marzouk gave to Marshall Restorations, who attended her house on 18 March 2014. They recorded her as saying the following:
“The insured stated that power to lights and points has been shorting out since the incident. We believe this is consistent with the claim, and recommend that an electrician attend as soon as possible to make safe electrical circuits and lights to the affected rooms … .”[30]
[30]JCB 432
35 This material all suggests that the make safe works conducted on or about 3 March 2014 were simply to remove the ceiling plaster and erect the tarpaulin. No electrician attended and no electrical work was conducted. It is not possible, on this evidence, to state whether the wire shown in Annexure “B” was a taped end of a light fitting. The evidence tends against that. First, the wire dangles out of east-west alignment of the other downlights. Second, to disconnect a light fitting is work only to be performed by an electrician and JKG were not electricians.[31] Third, the charge for the make safe works contains nothing for electrical work,[32] and fourth, there is no Certificate of Electrical Safety provided. Fifth, if one light fitting had been disconnected, removed and the end taped over, then logically the other would be also. It does not appear at all in the photographs. Sixthly, the downlights in the ceilings are connected with a grey cable. The wire seen in Annexure “B” is black, once again suggesting it is not a downlight cable. I am unable to be satisfied on the balance of probabilities that there was a downlight affixed to the end of the black cable shown in Annexure “B”.
[31]T 307, L 11
[32]JCB 430
What was the plasterer contracted to do?
36 On 10 April 2014, Mr Bronstring of GBS emailed Mr Anikeev of Avanso with a trade scope of works. This was in essentially the same terms as that issued by JKG. As recorded, it included plaster work, electrical work and the removal of insulation.[33]
[33]JCB 443-444
37 Quite clearly, the work required an electrician. This must have been known by Mr Anikeev and by Mr Bronstring. Mr Bronstring makes this point in his outline of evidence, which he confirmed during the course of trial. This is because the trades scope clearly identified work such as disconnecting fittings and checking electrical circuits. Such could only be done by a qualified electrician. I interpolate that Marshall Restorations had clearly conveyed a potential widespread problem in the electrical circuits in the house. Such needed to be addressed. It was addressed in the scope of works, which required the checking of all circuits to make sure that they were in good order. A licensed builder can be taken to have known that such work could not be performed by anyone other than a licensed electrician. Mr Bronstring gave evidence that while he provided the entire trade scope to Mr Anikeev it was, in part, done so that the relevant plasterer might know what other works were also going to be performed onsite. However, the scope of works issued to Mr Anikeev required him only to do that work which was within his trade speciality – the plaster replacement and insulation removal. I accept that was the effect of the scope of works. I find that that was the only work in the scope of works that Mr Anikeev was contracted to provide. While Avanso knew that other trades were to do work at the premises and I accept that, Mr Anikeev was not contracted to do any work outside of his trade, particularly work that was electrical in nature i.e. disconnect or fit lights.
38 It is significant, however, that from the scope of works Mr Anikeev knew that electrical circuits needed to be checked and made safe.
What did the plasterer do on 23 and 25 April 2014?
39 Mr Anikeev attended on 23 April 2014 to measure up the job. He gave evidence he did not go into the roof space and neither did anyone with him.[34] He stated that he then went to buy plaster, cornices and insulation batts. He returned on 25 April 2014 with a co-worker to complete the works. He said that these works were all done from within the living room. He and his co-worker took down the tarpaulin and with it came the damaged insulation. They cleared this from the living room. They then sized the batts that they bought and fitted them between the joists – all while standing in the living room. They then sized the plasterboard and cornices and fitted them into place.
[34]JCB 286 at paragraph [14], see also T 451, L5-9
40 Ms Marzouk gave a different version of events. She gave evidence that shewas present at the time on 25 April. Her evidence was that the plasterers “moved the wiring and threw the insulation ‘all over the place’ before leaving”.[35] Mr El-Osta gave evidence that the plasterers went into the roof space and in fact used the old insulation rolls already in the roof, rather than new insulation.
[35]JCB 317, T 156 L 2
41 I do not accept this contrary version put by Ms Marzouk and Mr El-Osta to that of Mr Anikeev. It was very useful to see the parties give their evidence. Mr Anikeev appeared very knowledgeable about his trade and answered directly and confidently. He made appropriate concessions. For example, he admitted that in his discussions with Mr Cousins he was in the car on a phone and was not able to recall detail well. In contrast, he said as he came to think about the events, he was better able to recall events at the time he dictated his outline of evidence. His evidence on the whole was far more consistent than that of Ms Marzouk and Mr El-Osta as to the work that the plasterers performed.
42 As an example of the inconsistencies in the evidence of Mr El-Osta, the invoice from Avanso dated 28 May 2013 (an error acknowledged to be 28 May 2014),[36] does not descend to confirm if new rolls of batts were actually bought. While Mr El-Osta gave evidence that the plasterers went into the ceiling to do their work, his evidence was confused as to whether the plasterers used the old insulation rolls already in the ceiling.[37] If, for example, there were two rolls of insulation in the roof before the plasterer’s work and they used these two rolls, then there could not be two rolls remaining, as he suggested. A similar inconsistency plagues Ms Marzouk’s evidence. She gave evidence that the plasterers did go into the roof.[38] I do not accept the evidence of Ms Marzouk. I prefer the evidence of Mr Anikeev. I do so for the following reasons. First, Ms Marzouk did not have a good recall of the events or sequence. As an example, she could not remember the plasterers attending twice. Further, she freely admitted that events occurred a long time ago, and with her young daughter being around with the fires, it was a very stressful time. Having watched her give evidence, I formed the view that she was confused as to the sequence of events in the weeks leading up to the fires. This is partly because on some occasions she was present at the home and on others Mr El-Osta was. They obviously have discussed these matters – in the course of coordinating works onsite – and it seems they have become unclear which trade did exactly what. Mr Anikeev was much more straightforward. He gave evidence as to the usual practice of standing in the living room and doing work. He confirmed that is how he performed the work on this occasion. He was adamant that on no similar jobs had he ever worked from the roof cavity, rather he had worked from below.
[36]JCB 548
[37]T 132, L 8-10
[38]T 142, L 13
43 I accept Mr Anikeev’s evidence on this point.
Why did Mr Micallef attend and what did he do – Part 1?
44 GBS contracted Fast Electrical in accordance with the scope of works on 29 April 2014. Fast Electrical employed a qualified electrician, Mr Mark Micallef. It must be said at the outset that his evidence was most unreliable and contradictory. This was not through any deliberate attempts on his behalf to mislead, but rather due to the passage of time and unreliability of his memory. Having watched him give evidence, I have formed the view that he tried honestly to answer, but most of the relevant detail had slipped his mind.[39]
[39]T 209, L 10. See also, T 210, L 27-31 where Mr Micallef admitted his memory was somewhat hazy recalling 1 job in perhaps 3000
45 Mr Micallef was tasked with the scope of works from Mr Bronstring in an email dated 29 April 2014 at 3.29pm.[40] As set out previously, that was not only for work on the downlights, but also to check all the electrical circuits and make sure “all is OK”. It seems completely unclear, why, given the note from Marshall Restorations on 18 March 2014, noting significant concerns with the electrical wiring on the house, almost six weeks had elapsed with no electrical work being commissioned.
[40]JCB 441
46 Mr Micallef attended the premises in the late afternoon of 30 April 2014 to assess the work to be done. I accept this evidence. It fits with the fact that the scope required numerous things to be done and until an assessment was made, neither the tools, fittings nor likely time to complete the work would be known. It is also consistent with his statement.[41] At the time of his attendance, he knew by observation that the lights were halogen.
[41]JCB 249
47 At some point around 7:00pm – 7:45pm he operated the downlights in the house on 30 April 2014. This is consistent with him testing them in accordance with the scope of works. Whether he then turned them off is unclear. However, as he was leaving, he and Mr El-Osta smelled smoke. He went into the roof space. There, he saw “a little orange glow”.[42] This was entirely different to his statement, where this is not mentioned. [43] He said he then went to his van to get the fire extinguisher and douse the area. His statement said:
“I do not recall seeking (sic) any flames. I did not inspect the area before dousing it”.
[42]T 213, L 31
[43]JCB 250 at paragraph [13]
48 He then called the fire brigade. In cross-examination, he accepted the fire he doused was small and he was satisfied that he had doused it and it was out.[44] He and Mr El-Osta used a bucket to remove some of this burnt insulation.
[44]T 214, L 30-31
49 The notes taken by Officer O’Toole the next morning are illuminating. It is recorded[45] in the Field Notes of Officer O’Toole taken 1 May 2014 that:
“Elec isolated the whole house removed burnt fluff insulation then called fire brigade. Stayed for 2 hours and elec reinstated Bed 1 and ensuite.”[46]
[45]JCB 660
[46]JCB 660
50 At that point (the evening of 30 April 2014 after the first fire), I find that Mr Micallef knew that the energisation of the light circuit caused a significant problem for the safety of the house. He knew the house had halogen lights and loose insulation in the ceiling space, from observation and his work in the ceiling. It is also likely, I find, that he knew these halogen lights had no heat shields around them, though this does not matter given the facts I have found and set out below. This finding is made on the basis that in dousing the fire, clearing the insulation and then taking the photographs at JCB 440 he must have been in such proximity to the lights to observe the absence of such shields.
51 I will return to Mr Micallef’s involvement shortly to formalise findings about what he did after the first fire, but it is necessary to make findings about the MFB first.
The attendance of the MFB after the first fire: What did they do?
What did they say to Mr El-Osta, Mr Micallef and Ms Marzouk?
52 The MFB Officer in charge was Ronald Woods. He and the MFB crew arrived at 1956 hours on 30 April 2014. His evidence was of observing halogen downlights hanging by their wires out of the ceiling in the living room, with scorched blow in insulation sticking to it.[47] At the time, he noticed no smell of burning, smoke or flame. He went into the roof cavity. He saw no signs of active fire. Thermal imaging taken within the roof space by the MFB crew showed no signs of fire.[48] I accept this evidence. It is strong scientific evidence. It is supported by Mr Wood’s own inspection, the observations of Mr El-Osta and Mr Micallef. I find the first fire was completely extinguished at the time the MFB left the premises at 2021 hours on 30 April 2014.
[47]T 519, L 1-10. See also T 520, L 1-8
[48]JCB 650 at paragraph [10]
53 The cause of the first fire was posited by Officer Wood to be loose-fill insulation coming into contact with the halogen lights. This seems to be the position accepted by Mr Barnes and Mr Conroy, the other fire experts, and I accept it. It fits temporally with the fact that the downlights had not been used since at least mid-March and, then, upon first use by Mr Micallef, the first fire had started. How the insulation had come into contact with the halogen light is unclear. That halogen light, as described by Officer Wood, was the one dangling from the ceiling. This cannot have been a light pushed into the ceiling by the plasterers, as they had cut no hole in the plaster they erected. This must have been an extant light, though none are shown dangling by their wires out of the ceiling in the photographs at Annexures “B” and “C”. Officer Mothersole confirmed several halogen downlights had been detached and were hanging by their wires at the time he attended.[49]
[49]JCB 693 at paragraph [6]
54 I confirm my findings that the first fire was caused by the downlights being turned on by Mr Micallef. That light heated, causing the loose-fill insulation to catch fire. I find that that halogen light had no heat shield. I find that the plasterer had done no work to this downlight, either to move it or lower it. I am not able to make such a finding, given Mr Anikeev denies any work on the downlights and Mr El-Osta and Mr Micallef give no evidence about it. On the balance of probabilities, that finding cannot be made.
55 I confirm that I find that the first fire was completely extinguished by the time the MFB crew departed.
What was said by the MFB?
56 There was much debate as to what Officer Wood said or did not say after his inspection of the roof space to Mr Micallef, Mr El-Osta and Ms Marzouk.
57 Officer Wood said that he spoke to Ms Marzouk and Mr El-Osta and said:[50]
“I said to him that I wanted the power off and if he turned the lights back on the insulation could burn and the house could catch fire again. I told him that I did not want anyone staying in the house overnight. I told him he needed to have an electrician come in to check the downlights and clear the insulation away from the lights to make the house safe.”
[50]JCB 651, at paragraph [12]
58 This was denied by Mr El-Osta[51] and Mr Micallef.
[51]T 121, L 14
59 Officer Wood says that he said to Mr Micallef that he wanted the power isolated overnight.[52] Mr Micallef denies this.[53]
[52]JCB 651, at paragraph [13]
[53]T 229, L 28
60 Officer Wood said to Mr El-Osta:[54]
“You realise I want the power off, no-one is to stay in the house, if you don’t do what I say about making the house safe you will burn the house down.”
[54]JCB 651, at paragraph [14]
61 Mr El-Osta and Ms Marzouk deny this.
62 Officer Mothersole broadly supports Officer Wood’s assertions of the statements made to Mr El-Osta and Ms Marzouk, saying that he recalls Officer Wood saying:[55]
“… the electricity needed to stay off until an electrician had inspected all of the wiring and assessed it as safe.”
[55]At JCB 693, paragraph [10]
63 I accept that Officer Wood made the statements set out above. I do not accept the evidence of Mr El-Osta, Ms Marzouk and Mr Micallef on this point. First, it was pointed out to Mr El-Osta that Officer Wood knew that they had relatives close by that Ms Marzouk and her daughter could stay with overnight.[56] Mr El-Osta agreed with this. This suggests Officer Wood had asked them to make an alternate sleeping arrangement consistent with the family not staying in the property. There is no other way that Officer Woods could have obtained this evidence, which is included in his statement, without making such an enquiry directly of Mr El-Osta, Ms Marzouk or her mother. This is a substantial inconsistency in Mr El-Osta and Ms Marzouk’s evidence and undermines the veracity of their evidence. Second, it is consistent with Mr Micallef staying at the property after the MFB left and performing work. It is to be recalled that he was initially attending only to check the requirements for the job, but given the events, including the likely instructions from the MFB,[57] he stayed to perform works: such works being inspection of the wiring and assessing the house as safe. This finding is bolstered by the fact that he ultimately issued an invoice and a Certificate of Electrical Safety. The invoice lists four-and-a-half hours work as “testing, investigating, fault finding and making interlation (sic) safe”.[58] I interpolate the word “interlation” may be a misspelling for “installation” or “insulation”. This was not explored in evidence. In any event, the work invoiced for is consistent with the task set by Officer Wood, and confirmed by Officer Mothersole, for the electrician. The Certificate of Electrical Safety is in similar terms. It noted testing of the power and lighting circuit, identified a faulty circuit causing smoke and stated “left house in a safe condition after firemen”.[59] The Certificate of Electrical Safety also noted that the faulty circuit had been isolated at the “meck” switch. In his statement, Mr Micallef stated this was an isolation, not at the switchboard circuit, but at the location of the physical light switch in the living-room area. This is all consistent with the instructions Officer Wood is alleged to have given as part of his warning. Fourth, Mr El-Osta accepted that the electrician said to him that he had left the house in a safe condition.[60] This, too, is consistent with Officer Wood tasking Mr El-Osta and Mr Micallef with ensuring the electrical circuits were safe before anyone could stay in the house. Ms Marzouk gave evidence that the MFB said to her that “everything is safe and it’s up to you if you want to stay in your house.”[61] This contradicts directly both Officer Wood’s and Officer Mothersole’s evidence. In context, however, Ms Marzouk had just given evidence that the scene after the first fire was chaotic.[62] I find, consistent with the evidence of Mr El-Osta, the invoice and the Certificate of Electrical Safety of Mr Micallef, that it was likely that this statement was made by Mr Micallef himself. I am supported in this finding by Ms Marzouk’s failure to remember matters accurately at this time. For example, she could not remember Mr Micallef being at the premises at all after the first fire for several hours. He no doubt was.
[56]T 121, L 16-18
[57]JCB 693 at paragraph [10]
[58]JCB 450
[59]JCB 471
[60]T 122, L 30
[61]T 145, L 21-22
[62]T 144, L 31
64 In cross examination Officer Wood was pressed about his statements set out above.[63] His evidence was not shaken. In fact, the way that he presented gave every confidence in his evidence. He is an experienced MFB Officer with over 40 years’ experience. His evidence was given calmly and clearly. When pressed about why people couldn’t stay in the house that night given the first fire was out, he noted that if people stayed they would use electricity. Given the cause of the first fire was likely to have occurred from an electrical heat source he was not comfortable with them staying. As such in evidence he said that he had informed “Joe” (another name for Mr El Osta) the work needed to be done “tomorrow”.[64] He explained his rationale that in daylight hours the tiles of the roof could be removed to provide natural light to the area of the ceiling cavity. This would allow the electrical safety checking to be done without use of the electricity and would be safer than using the lights to illuminate the area. This answer was clear and logical. It strengthens my finding that I accept his evidence that the warnings were given to Ms Marzouk, Mr El-Osta and Mr Micallef, as he and Officer Mothersole describe.
[63]T 539
[64]T 539, L 29 – T 540, L 5. See also T 537, L 19-20
Why did Mr Micallef attend and what did he do – Part 2?
65 I previously dealt with this topic at [44]-[51]. I return to it now.
What electrical work did Mr Micallef do?
66 The best sources for this finding are external, as the evidence of Mr Micallef is compromised by his lack of recall and its contradiction by his own documents and evidence of other witnesses and their documents.
67 After the first fire, Mr Micallef isolated power to the whole house.[65] At this point it is necessary to make findings about the switchboard. It had one circuit for lights, one for power points and one for the hot-water service.[66] I find that after the MFB departed at about 2021 hours on 30 April 2014, Mr Micallef stayed and did work in accordance with the Certificate of Electrical Safety and his invoice. That is, he checked the electrical circuits. He isolated a fault at the wall-switch plate, which he referred to as the “meck” switch and then fixed the fault.[67] He turned the power on. This energised the lighting, power point and the hot-water service circuits. I do not accept that Mr Micallef isolated one circuit for downlights and left the bedroom lights functioning. As the switchboard had only 1 lighting circuit, this is impossible.
[65]JCB 660
[66]T 221, L 25 – L 31
[67]JCB 471
68 I do not accept that he performed a double isolation of that circuit. To do this required the removal of fuse wire to the light fuse and the use of a lock dog on that light circuit breaker. I do not accept this evidence, primarily because Mr Micallef’s evidence of these actions is so contradictory. First, he believed there were two light circuits. There are not. He admitted that error in his evidence.[68] This is consistent with Officer O’Toole’s investigation of the switchboard, which confirmed only one lighting circuit.[69] If this circuit was on then both the bedroom lights and the downlights in the living room could be used. Similarly, if the fuse was taken out and a lock dog was applied, this was not found by Officer O’Toole on his examination of the switchboard. The absence of a fuse wire might be missed – though for a fire investigator this is unlikely – but the presence of a lock dog, I find, would have been noted. Officer O’Toole was adamant that none was present. I find that it was not present. In contrast, Officer O’Toole impressed me as a witness of truth. He was a clear and accurate historian. I was most impressed by his giving of evidence. His notes record that Mr Micallef had left the bedroom lights circuit on when he departed. It is not necessary to go further than this but, in reasoning from later facts, after the second fire, Officer Mothersole recorded that upon MFB’s attendance, the house lights in the premises were on. I find these were ceiling or downlights, and not lamps, as was suggested. The only way such ceiling lights could have been on was that the circuit itself was operational. This necessarily means that the lighting circuit was not double isolated as Mr Micallef suggested.
[68]T 222, L 4
[69]T 649, L 23-26
Were the downlights used between the first and second fires?
69 On the first day of trial, the Plaintiff sought leave to file and serve a Further Amended Statement of Claim. Relevantly that proposed Further Amended Statement of Claim sought to entirely recast the pleading at paragraph 6. It is useful to set out in short form the history of that pleading. The Plaintiff issued proceedings on 11 October 2017. At the time of issuing her proceedings she pleaded at paragraph 6 of the Statement of Claim the following:
6. The plaintiff used the downlights on the evening of 30 April 2014.
70 By reason of its location in the pleadings this necessarily meant that the Plaintiff positively alleged that after the first fire was extinguished, she had used the downlights on the evening of 30 April 2014.
71 The Second Defendant admitted that allegation.
72 In the week prior to the trial, numerous parties reached settlements with each other on the state of that pleading.
73 On the first day of trial the Plaintiff sought to amend paragraph 6 so that it read that the Plaintiff did not use the downlights on the evening of 30 April 2014 after the first fire had been extinguished. I denied the Plaintiff’s application to amend her pleadings in an oral ruling. My ruling was primarily based on the fact that the parties to that time had acted on the pleaded claim to reach settlements for value against numerous other parties. The proposed pleading then sought to raise a new and different formulation of the claim against the remaining Second Defendant, being Avanso. To allow such an amendment would offend principles of finality of litigation and cause prejudice to Avanso which could not be remedied by an order for costs and an adjournment. In the face of that ruling the Plaintiff then elected to proceed on the extant pleading.
74 During the course of the trial, Ms Marzouk gave evidence that she did not use the downlights on the evening of 30 April 2014 after the first fire had been extinguished. Mr Simpson argued that even though this evidence was in conflict with the Plaintiff’s pleadings he was entitled to proceed on the basis of the evidence given rather than the positive pleading and the admission drawn as to paragraph 6. Mr Muller objected to the evidence being given. He objected on the basis that the evidence of Ms Marzouk was irrelevant and ought be excluded given the extant pleading. Primarily this was by reason of operation of section 135 of the Evidence Act 2008 (Vic) in that Ms Marzouk’s evidence was unfairly prejudicial. Mr Muller submitted that the positive pleading had been made at a very early stage, and the proposed change to the pleading was a complete about face which was not explained even though there was opportunity to do so. He further submitted that the positive pleading was consistent with instructions Ms Marzouk had given to Mr Barnes who had attended at the site only one day after the fire.
75 In assessing the unfair prejudice to the Second Defendant however it must be recognised that the Second Defendant was afforded an opportunity to cross-examine Ms Marzouk at length about the change (if it be that) in her instructions and subsequent pleading.
76 This factor goes some way to alleviating any prejudice suffered by the Second Defendant given the change in the Plaintiff’s case.
77 However, the Second Defendant has acted in settling its claim against the other Defendants on the basis of the pleadings. It has conducted negotiations during mediation and conducted the litigation on the basis of the pleaded paragraph 6.
78 However, where there is disconformity between the pleaded case and the evidence deliberately led there needs to be an assessment of whether such reliance leads to an unfair or prejudicial result. To my mind the prejudice to the Second Defendant is too great to permit the Plaintiff to run her case on the basis that she did not in fact use the downlights on the evening of 30 April 2014. I make this finding primarily because by the time the evidence was given by Ms Marzouk the Second Defendant had conducted its litigation for three years on the basis of the pleaded paragraph 6 and most importantly reached settlements for value with other litigants in the matter. The cases make plain that each case is to be assessed on its own merits.[70] Here, the Second Defendant has never consented to the alteration in the Plaintiff’s pleadings and had extremely late notice of the proposed amendment and consistently relied on the positive pleading as a key plank in its defence. A further factor is that despite losing its application to amend the pleading at the outset of the trial, the Plaintiff has persisted in running her case on the basis that the downlights were not used after the fire was extinguished on 30 April 2014. I consider that her evidence ought to be excluded pursuant to section 135 of the Evidence Act on the basis that it is unfairly prejudicial for the reasons set out above.
[70]See Banque Commercial SA (En Liqn) v Akhil Holdings (1990) 169 CLR 279 at [286]-[287]
79 Alternatively, and even if I am wrong in excluding Ms Marzouk’s evidence I now turn to consider Ms Marzouk’s allegation that she did not turn the lights on after the first fire and before the second fire.
80 Given my previous findings, I reject the evidence of Ms Marzouk given in her statement and viva voce evidence that she did not turn the lights on after the first fire and before the second fire. I find that after the warning and instruction Officer Wood gave to Mr Micallef and Mr El-Osta, Mr Micallef stayed to do the relevant checking and making safe of the electrical circuits. Certainly, Mr Micallef told Mr El-Osta that the electrical circuits were safe to use. In that circumstance, there was no reason not to use the downlights, strengthening my finding that they were used after the first fire.
81 This is also consistent with the recording of Mr Barnes who is a fire investigator engaged by Allianz and who provided a report dated 2 May 2014. In the course of that report he interviewed Ms Marzouk. He has recorded her instructions that after the first fire and before the second fire the lights were used.[71] This is reasonably contemporaneous reporting and is important because Mr Barnes was not challenged that his history taking was incorrect. Mr Barnes was called by the Plaintiff. It is telling that the Plaintiff called Mr Barnes and tendered his report with that history. In these circumstances I draw the inference that his evidence would not have assisted the Plaintiff given this contemporaneous recording of Ms Marzouk’s operation of the lights after the first fire is so critical to the Plaintiff’s case.[72] I accept that his reporting accurately reflects the fact that the downlights were used between the first and second fires. I am fortified in rejecting Ms Marzouk’s evidence because the unanimous opinion was that the cause of the second fire was the ignition of loose fill insulation above a downlight in the living room. Reasoning backwards this most likely means Ms Marzouk operated the downlights after the first fire and initiated the second fire.
[71]JCB 317
[72]Kuhl v v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [63-64]
The cause of the second fire
82 The cause of the second fire is almost unanimously agreed between all relevant witnesses. It is the heat from an unprotected energised halogen light causing loose fill insulation to ignite in the living room.
The location of the second fire
83 The point of origin of the second fire is seen in photograph Figure 2 at JCB 280. This is taken from Officer O’Toole’s fire investigation and analysis report. In particular it is at the intersection of a hanging beam and a ceiling joist. This point is marked on Annexure “A” by the red dot by Officer O’Toole closest to the southern wall. I accept this is the physical location of the point of origin of the second fire. I find that this location in the ceiling was directly above a downlight. I make this finding as to the location of the second fire on the basis of the expert evidence that the fire occurred by reason of the heat produced by the halogen light – meaning that the fire had to occur in close proximity to it. Mr Barnes has a contrary view – that the second fire had been smouldering for several weeks by this stage. It is an isolated view not supported by anyone else and is an outlier. I do not accept it for the following reasons. The lights had not been on since 22 February 2014. This means that such a smouldering fire must have been missed by JKG, Brivis, Mr Micallef, Mr El-Osta, the MFB members and the thermal imaging camera. All of them went into the roof after 22 February 2014 and before the second fire. None of them noticed a smouldering fire.
84 Next, the layout of the downlights shown in the photograph at JCB 424 seems to correspond with the location of the edge of the hanging beam and where it would intersect with the window frame seen on the south wall. I find that the location of the second fire was at the point about the downlight on the south side of the living room and the closest to the western wall.
The third fire
85 The third fire was little commented upon. However, Officer O’Toole gave evidence that it occurred by reason of environmental spread from the second fire. He said that most likely wind carried it from the second fire to the point of ignition of the third fire.[73] I accept that and find accordingly.
[73]T 624, L 29-31
Were the first and second fires linked?
86 Given my findings above I find that the first and second fires were not linked. I have set out above the evidence why at the conclusion of the first fire I consider it was extinguished. I place great weight on the negative finding of an ongoing heat source by the thermal imaging camera. Three further facts can be added. First the notes of Officer O’Toole record that Mr El-Osta kept going back to the roof for about 2 hours after the first fire to check that it was out.[74] His failure to notice any further fire activity supports the total extinguishment of the first fire. Second, Mr Micallef remained on scene for several hours after the first fire. He did not notice anything untoward. Third, the expert evidence draws no relevant link between the 2 fires. Officer O’Toole explained carefully in evidence that there was no joist or beam along which the first fire could run to reach the point of origin of the second fire.[75] Mr Conroy was of the view that each fire was caused by a separate downlight in proximity to loose fill insulation.[76] Mr Barnes was of the same opinion.[77]
[74]JCB 312
[75]T 659, L 26-28
[76]JCB 361
[77]JCB 318
87 It is useful now to set out a summary of factual findings.
a) The area where the ceiling collapsed from water damage did not contain down lights;
b) The plasterer repaired the roof from inside the living room and did not go into the ceiling;
c) The plasterer inserted new insulation batts into the roof;
d) The plasterer did not push light fittings into the ceiling and embed them in the insulation before fixing the ceiling plaster into place;
e) The first fire occurred because an exposed halogen light which had no heat shield ignited loose fill insulation which was too close to it;
f) The first fire did not occur at a location where plastering works had been done;
g) The second fire occurred because an exposed halogen light, which had no heat shield, ignited loose fill insulation which was too close to it;
h) The first and second fires were not linked;
i) The second fire did not occur at a location where plastering works had been done.
88 I now turn to consider the various causes of action pleaded by Ms Marzouk.
The Plaintiff’s claim in negligence
89 The first cause of action pleaded against the Second Defendant arises at paragraph 7B of the Third Further Amended Statement of Claim filed on 5 June 2020. That alleges that the Second Defendant owed a duty of care to the plaintiff to:
‘take reasonable care while carrying out or causing to be carried out the works, and to do so in a proper and workmanlike manner”.
90 Relevantly the works are described at paragraph 3A as “including removing and replacing the plaster ceiling and ceiling insulation at the property.”
91 While there is not much dispute as to the existence of a duty of care between Avanso and Ms Marzouk the real question concerns the content of the alleged duty of care and allied with that questions of breach. Those issues are set out at paragraph 8A of the Third Amended Statement of Claim. The allegations can be broken into the following subgroups. First, the failure to warn the Plaintiff about the risk posed by the downlights and/or insulation being installed too close to the downlights. Secondly, failing to ensure that there was a clearance between insulation and the downlights. This involves the installation of flameproof shields around the downlights. Thirdly, allowing ceiling insulation to come into contact with the downlights.
92 These arguments can be put to one side on the basis of the factual findings above. This is because I have found that the second fire did not occur in an area where any works were done by the plasterer. It could not be suggested reasonably that the plasterer had a duty, the content of which was to inspect areas of the roof cavity over which they were not working, and to check for risk posed by downlights in these areas.
93 Even if I were wrong in my factual findings and the first fire did occur in an area close to the western wall of the living room in an area where plastering works were done, such that the halogen lights were embedded in the insulation by the plasterer, I have found that the first fire did not cause the second fire. In that event the chain of causation from the alleged breach of the Second Defendant is severed. The second fire is an entirely separate event.
94 Further, even if it could be said that there was an absence of heatproof shields around the halogen light embedded by the plasterer’s work, it could not be argued that the plasterer had an obligation to check all the downlights, including the area where he did not work, being the downlight which resulted in the second fire. On that basis the content of the duty owed by the plasterer in respect of his works did not require him to perform checking of other downlights in the living room where he was not working which may then have prompted him to warn the Plaintiff about the risk posed by other downlights such as the one which caused the second fire. This also means there was no obligation to install shields around this downlight or prevent insulation coming into contact with it. That would be to argue for a duty of enormous scope. I do not accept this is in line with authority.[78]
[78]Leighton Contractors Pty Ltd v Fox & Ors (2009) 240 CLR 1
The Plaintiff’s claims pursuant to the Australian Consumer Law (“ACL”)
95 Claims pursuant to section 60 and 61 of the ACL were made by the Plaintiff.
96 The claims fall into broad categories as defined in Scenic Tours Pty Ltd (2018) 361 ALR 456 at [8]. Relevantly these are:
a) the failure to provide services with due care and skill (“the care guarantee”);
b) providing services not fit for purpose as per s 61 (“the purpose guarantee”) and;
c) the provision of services not of the nature and quality as could reasonably be expected to achieve the result Ms Marzouk wished to achieve by the provision of services, s 61(2) (“the results guarantee”).
These three statutory guarantees can be collectively referred to as the Consumer Guarantees.
97 The basis for these claims was said to be the provision of services which included the trapping of the downlights and wiring with insulation above the replacement plaster ceiling of the living room.[79]
[79]JCB 447
98 It was accepted between the parties that Avanso was a supplier of services, the supply of plastering services was in trade and commerce, was for benefit and that Ms Marzouk was a consumer. However, it was denied that s 61(b), which required Avanso to know the particular purpose for which their services were being supplied was made known, was not met. For the reasons of fact found above and for the reasons set out below it is not necessary to consider this particular point. However, my preliminary view is that this subsection would be met as it was clearly known that the particular purpose Avanso was engaged for was the installation of insulation and ceiling plaster to provide for safe installation of ceiling lights.
99 The short answer to the Plaintiff’s submissions is found in the factual findings that I have made above. That is that there was no trapping of downlights and wiring with insulation above the replacement plaster ceiling.
100 It is also necessary however to have regard to the way that the Plaintiff pleaded her claim and paragraph 8C of the Third Further Amended Statement of Claim. This is because the relevant services were not defined as specifically as the Plaintiff did in her closing submissions. The pleadings alleged that the works provided by Avanso to the Plaintiff were not provided with due care and skill. Relevantly paragraph 3A defined the works as being “removing and replacing the plaster ceiling and ceiling insulation”. Even considering this pleading in its most broad form there is no evidence that the works, being the relevant services, were provided in breach of ss 60 and 61. The term ‘due care and skill’ is a test of reasonableness.[80] It requires evidence which supports the allegation that due care and skill was not applied.[81]
[81]Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733 at 432
101 As I have found there was no trapping of halogen lights and wires with insulation above the ceiling plaster installed, there would have to be other evidence to support the allegation that due care and skill was not applied. It was said that this arises by reason of the disturbance of insulation by Mr Anikeev in the roof space about the areas where he installed insulation and then affixed the plasterboard. It was argued that this disturbance of insulation caused the insulation to move too close to the halogen downlights thereby providing the necessary ignition point for the second fire.
102 I reject this argument. There is no evidence to support the allegation that insulation was disturbed in Mr Anikeev’s work about the downlight the source of the second fire. Further, there is no evidence to support the allegation that it was this, if it be found, disturbed insulation, that moved too close to the downlight which was the source of the second fire. The Plaintiff argued that the temporal and geographical connection between Mr Anikeev’s work and the second fire made it possible to draw this inference. I reject that argument on the following grounds. First the lights in the premises had not been turned on since about 22 February 2014 until Mr Micallef turned them on between 1900 hours and 1945 hours on 30 April 2014. The lights were only on for a short period of time before the first fire was noticed. It may well have been the case that the time the downlights were on was insufficient for the downlight, the cause of the second fire, to ignite the insulation. This allows for the fact that insulation had been moved into a position which was dangerous by any number of factors but had just not ignited in the short period the lights were on. Further, and most importantly, there had been numerous other factors at work on the ceiling insulation from 22 February to the time of the second fire in the roof. These were firstly the leaking evaporative cooler, secondly the JKG make safe works, thirdly the activities of the Brivis workers, fourthly the activities of the MFB and fifthly the activities of Mr Micallef and Mr El-Osta on the night of 30 April 2014. Any of these parties could have disturbed insulation surrounding the downlight at the source of the second fire. There is simply no way to know if it is their actions individually or in combination that disturbed the insulation closest to the downlight the cause of the second fire. There is no way to separate out the influence of Mr Anikeev’s alleged disturbance of insulation in the way that would support the Plaintiff’s allegation that this action caused a disturbance of insulation which led to the second fire.
103 Turning then from the allegation that the works were not provided with due care and skill to consider whether the services provided by Avanso were reasonably fit for purpose, I find in favour of the Second Defendant. There was no evidence criticising the work of plastering and insulation removal by Avanso, save for criticism based on the factual assumption that Avanso had trapped the halogen lights and wires with insulation. As I have found that that did not occur this allegation must fall away. Similarly, there can be no finding that the works were not of the nature, quality, state or condition as could reasonably be expected to achieve the result expected.[82] This is for the same reasons as set out immediately above.
[82]See s 61(2) Australian Consumer Law
104 In summation, I find against the Plaintiff on the ACL claims.
105 I find the Plaintiff has not made out her causes of action. Her claims must fail.
Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 303 ALR 583 at [161]
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