McGreal v Dunphy
[2002] QDC 27
•28 February 2002
DISTRICT COURT OF QUEENSLAND
| CITATION: | McGreal v Dunphy [2002] QDC 027 |
| PARTIES: | PAUL McGREAL |
| FILE NO/S: | Southport 388 of 2000 |
| DIVISION: | Civil Jurisdiction |
| PROCEEDING: | Claim |
| ORIGINATING COURT: | Southport |
| DELIVERED ON: | 28 February 2002 |
| DELIVERED AT: | Brisbane |
| HEARING DATE: | 10 September 2001 |
| JUDGE: | Judge Alan Wilson SC |
| ORDER: | |
| CATCHWORDS: | BAILMENT - BAILMENT FOR REWARD - DUTIES OF BAILEE NEGLIGENCE - DUTY OF CARE - RES IPSA LOQUITUR Jones v Sutherland Shire Council (1979) 2 NSW LR considered; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, considered. |
| COUNSEL: | Mr PB de Plater for the plaintiff |
| SOLICITORS: | Primrose Couper Cronin Rudkin for the plaintiff Murrell Stephenson for the defendant |
In 1999 the plaintiff owned a timber boat, the “Ballantyne”, and he arranged through the defendant’s brother to have the exterior of it refurbished by the defendant, a boat repairer trading as “Dunphy Shipwright Services” at Southport Marina. It was transported from Sydney to Southport and the defendant began work, for which he was paid on invoices rendered to the plaintiff after June 1999.
On 5 October 1999 while the defendant and one of his workers, Rod Elliott, were moving the boat from Runaway Bay to Southport Yacht Club via the Broadwater, it caught fire north of Wavebreak Island and burnt beyond economic repair. Fortunately the defendant and his employee were unharmed.
The plaintiff pleads the fire occurred by reason of the defendant’s breach of contract of bailment, or other contract, or negligence, and sues for the boat’s value and some expense allegedly occurred during storage of it, after the fire.
The defendant’s pleading admits he received the vessel to perform work upon it; that he was, at the time, in the business of repairing vessels, and in sole possession and control of this boat, and that he was a bailee of it; that it was an implied term of the bailment, or of a contract between him and the plaintiff, that he would take all reasonable care for the vessel’s safety, and not place it at risk, including risk of damage from fire; and, relevantly, that at about 7.00 a.m. on 5 October 1999 he was in sole possession and control of the vessel; that he lit the gas stove which was positioned in the galley; that he then left the galley unattended, while he went to the stern of the vessel; and, that the boat then caught fire, and was completely destroyed.
Each of the plaintiff’s claims is supported by the same particulars:
“(a) Failing to take all reasonable care for the safety of the vessel;
(b) Placing the vessel at risk of damage from fire;
(c) Exposing the vessel to a risk of damage;
(d)Lighting the gas stove in the galley in circumstances where and at a time when a reasonably prudent person would not have done so;
(e)Failing to remove all and any material from the galley that could reasonably have accelerated or fuelled the flames from the gas stove;
(f)Failing to ensure that the on-board extinguisher was situated in a place where it could have been readily available in the event of a fire in the galley;
(g)Leaving the galley area and the lit stove unattended in circumstances where and at a time when a reasonably prudent person would not have done so;
(h)Placing or allowing times of thinners and paint to be stored on the sink in the galley in circumstances where and at a time when a reasonably prudent person would not have done so.”
He also pleads and relies upon the doctrine of res ipsa loquitur.
The defendant says the fire occurred fortuitously, and without fault on his part. The central dispute concerns the source, and cause of it. As the case progressed the plaintiff also appeared to raise, without objection, an unpleaded allegation that the defendant failed to put the fire out in a timely fashion, by using an extinguisher allegedly attached to a wall in another part of the boat, but which the defendant denies was present.
The Location, and Cause of the Fire
Evidence about this central issue came from three sources; the defendant gave a statement to the police on 5 October 1999 (Exhibit 7), and at trial; a report from Mr Edward Bietz of Queensland Fire Services, dated 1 December 1999 (Exhibit 12); and three reports (Exhibits 17, 18 and 19) from an engineer, Mr Terrence Casey who had some apparent expertise in fire investigation, and was called and said that (and I accept) he had investigated between 25 and 35 boat fires since 1980. The plaintiff also tendered a report the defendant had prepared to Queensland Transport (Exhibit 8: “Marine Incident Report”).
As that evidence shows the defendant has always said that after he and Elliott left Runaway Bay in the boat, with Elliott steering, he lit the gas stove in the galley, put the kettle on to make tea, and then went down to the stern section of the boat to check if a stern gland was leaking, which it was. He stayed there for about five minutes checking this gland, then came up out of the aft cabin and saw smoke near the galley, attempted to get to a fire extinguisher in the galley but was unable to do so and, eventually, abandoned ship with Elliott. In Exhibit 8, prepared the day after the accident, he reported that the weather at the time was clear, but water conditions were choppy and the wind was of moderate force. His statement to the police, given on the day of the fire, contains this version:
“After we left Runaway Bay I put the jug on and then went down to checked (sic) the stern gland as it had leaked previously. I nipped it up a bit.
I came out of the aft cabin where the stern gland is and saw smoke. This smoke was coming from the galley. I yelled out to Rod and tried to get to the fire extinguisher. The fire extinguisher (store) (sic) on the starboard side of the vessel down near the galley.
I could not get to the fire extinguisher due to the smoke. Rod had entered the cabin, but we were both forced to leave due to the smoke.”
The report of Mr Bietz shows he inspected the boat and spoke to the defendant on the day of the fire, and includes the following:
“Due to the extensive damage by fire it was not possible to establish an exact point of origin. Witness statements gave indication that the fire started in the galley. The gas stove was on at the time the fire was noticed. Stored in the sink approximately one metre from the stove were metal containers of thinners and an open tin with a paint brush in it.”
It was stated by Damein Dumply (sic) who was on the boat at the time the fire started, that he lit the gas stove in the galley to boil the kettle and while it was heating, he was at the back of the boat checking for water in the bilge when he noticed smoke coming from the galley area of the boat. He was unable to reach the fire extinguisher as it was located on the wall in the galley and there was to (sic) much heat and smoke coming from that area to be able to reach it. He stated that the fire spread from the galley to the rear of the boat and that he had to jump overboard as the heat and fire became too intense ... the wind was steady from the south east and fanned the fire to the starboard side of the vessel and this explained why the fire totally consumed the starboard side of the galley and main cabin.
Stairs that lead down to the galley were heavily charred on the port side stringer and not so much on the starboard side giving an indication that the fire came for the port side where the stove was located. The stair treads were burnt away more on the port side as well compared to the starboard side also again indicating that the fire came from the stove area.”
Under the heading “Cause of the Fire” Mr Bietz concluded:
“The gas stove was put on to boil water for a cup of coffee and left unattended. There were thinners and paint stored on the sink within one metre of the stove, one container was open containing a number of paint brushes. It was not clearly determined what act, defect or omission took place to actually start the fire, but it was considered an unsafe practice to have tins of flammible (sic) liquids positioned so close to a gas flame which was approximately one metre.”
In his evidence the defendant confirmed that when he first saw smoke, it was coming from the galley. When he lit the stove there were, on benches in the galley, tins of acetone, turpentine, resin and paints, and a gas bottle. As to the tin containing paint brushes, he said they were clean, and not in any liquid. He said he had, previously, used the gas stovetop in the galley to boil the kettle, but only when the boat was moored. He said he had used a gas stove on other vessels which were underway, and left them unattended.
He denied a suggestion that there was a second fire extinguisher on the left side of a staircase between the cockpit of the boat and the bridge deck, said to be shown in a photograph, Exhibit 25. (This is, it appears, the fire extinguisher the plaintiff alleges he might have successfully used to put the fire out.) He denied the object in the photograph was a fire extinguisher. I am unable to determine what it is from the photograph, and am not persuaded this alleged second extinguisher was present on the boat, or available to Mr Dunphy.
Mr Casey, in his reports and evidence, said the physical evidence detected within the photographs and available documents suggested that the most sustained, intense fire had occurred within the forward section of the forward cabin of the boat. He also records a statement from the employee, Elliott, (who was not called) that he first observed smoke coming from the forward port cabin window, but when he reached the galley it appeared wholly on fire. While there was a significant quantity of flammable liquid stored in the galley, it was all in sealed containers and could not have contributed to the ignition of the fire. His conclusion was that it was more likely than not the fire initiated within the forward cabin, rather than the galley area. When asked to identify a possible source, in the forward cabin he said (Transcript, p. 39):
“Well there is a cabin and presumably there are lights. I don’t know that for sure, as I said, I wasn’t on the vessel and nobody in any of the evidence referred to them, but given it is a cabin for occupation I assume there are electrical circuits at least for lighting and possible low voltage appliances, that would be one possibility, a hot junction in an electrical connection. Given that it is not unusual to have repair materials on boats that I have seen, there are stock – there is a stock of drying oils for marine varnishes, there is a stock of extra material such as bedding and all those sort of materials which may or may not be in this particular vessel. Leakage of that sort of material could cause spontaneous combustion.”
He also said the most common cause of fire on boats was a hot surface and, most often, one associated with the engine and engine systems, and exhaust systems, and the spillage of fuels in those areas. When it was put to him that the most likely explanation for the fire was the flame on the stove he said:
“Narrowed down so far you would have to answer yes, but that would be like saying that because a house fire occurred at the time of an electrical storm it must have been lightning ignoring all the other parameters which are relevant”.
He also said that, although the defendant might only have been away from the galley for as short as five minutes, a fire could have commenced in the forward cabin and moved back into the galley with sufficient intensity, in that short time, to prevent the defendant and his employee being able to go into that galley, or get the fire extinguisher.
Amongst Exhibit 11 (12 photographs of the boat, after the fire) there are several which show the burned remains of the galley, and the stove and nearby tins which contained the substances described by Mr Dunphy. Mr Casey agreed (Transcript, p. 32) that their proximity could have caused ignition of the fire; and, that some of these containers appeared to be without lids, but it was impossible to say whether those lids had been blow off by the heat of the fire (although one appeared to have burst, suggesting it was sealed). Neither he nor Mr Dunphy were asked, however, about one tin shown in a photograph, part of Exhibit 11, which appeared to be without substantial damage, and clearly had no lid on it.
Mr Casey never saw the boat itself, and his report is compiled from photographs and reports. I am persuaded, without difficulty, that despite the expertise and intellectual effort he has brought to the exercise, his explanation is speculative, and overborne by other evidence which points, quite clearly, to the galley as the source. The defendant is a man with over 20 years experience building and repairing boats, who had been working on this vessel for some months, and was very familiar with it. He said, from the outset, that he first saw smoke coming from the galley. He was away from that area for only a short time and, by the time he returned, the fire was so intense as to prevent him re-entering it. In truth, as his statement to the police and report to Mr Bietz show, he never seems to have doubted the fire started at the stove. He did not, ultimately, deny that when he visited the plaintiff in Sydney some time after the fire he may well have said words, as the plaintiff claimed, to the effect that it was the most expensive cup of tea he ever had. Mr Casey is unable to point to any feature of the forward cabin which might have caused the fire, or even to say if any combustible features existed there. Otherwise, his theory depends upon an attempt to reconstruct the path of the fire by reference to information which is uncertain and, with respect, conjectural.
In a contest of the this kind the question is whether the court is persuaded, on the balance of probabilities, that source, or event x caused the fire. Where different explanations and hypotheses are presented they are tested, as Mahoney JA suggested in Jones v Sutherland Shire Council (1979) 2 NSWLR 206 at 227-8, against the evidence, and the weight of evidence; by asking whether or not one explanation, or another is reasonable; and, ultimately, by inquiring whether one or other creates a “subjective conviction” – or, as has been said elsewhere, whether or not the mind of the tribunal is “reasonably satisfied” (Reifek v Mcelrow (1965) 112 CLR 517 at 521), or feels a “actual persuasion” (Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J at 361). There is a ready, and obvious explanation for this fire: flame from a gas stove, in a small galley containing tins of flammable substances of which one, at least may have been open, on a vessel in open waters in moderately windy conditions. When this circumstance is combined with the coincidence of the fire, the defendant’s evidence about his initial observations, and his reports within a short period after the fire, no difficulty is encountered in concluding that the weight of evidence points to the stove, and it is a reasonable explanation. For these reasons, I find it was the source.
Bailment and Contract
The parties were not in dispute about the principles of law to be applied and, indeed, the plaintiff’s counsel adopted the defendant’s written submissions in that respect, and himself referred to no other authorities. A bailee in the defendant’s positions is required to meet that standard of care of the goods on bailment which is reasonable, in all the circumstances: Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 per Windeyer J at 238; and, see Palmer, Bailment (2nd Edition, Sydney, LBC, 1991) at pp. 779-80. When, as here, the goods are lost there is an onus upon the bailee to show that loss or damage has not arisen from any want of reasonable care on his part: Palmer (supra, at 790); CKS Farming Pty Ltd v Waraluck Mining Pty Ltd (1996) 2 Qd R 99 per McPherson JA at 104. In the case of a fire destroying the bailed goods Palmer suggests (at 802) the bailee is not bound to furnish an accurate explanation of how the fire occurred: Thomas National Transport (Melbourne) Pty Ltd v May and Baker(Australia) Pty Ltd (1966) 115 CLR 353. Mr Casey agreed that it was not appropriate practice to store flammable materials approximately one metre from a naked flame (Exhibit 18, p. 6). That unsafe practice, combined with conduct which involved leaving a gas stove unattended on a moving wooden vessel travelling across choppy seas and through moderate winds (the Marine Incident Report, Exhibit 8, signed by the defendant) cannot, in my opinion, be described as reasonable in all the circumstances and constitutes a clear breach of the required standard of care of the defendant as bailee; and, of the admitted terms of the contract.
Negligence and Res Ipsa Loquitur
The bailee’s duty does not vary according to whether the bailee is sued on the contract of bailment, or in tort for negligence: Nibali v Sweeting & Denney(WA) PtyLtd (1989) Aust Torts Reports 68, 756 (FCWA) per Malcolm CJ at 68,748. The defendant’s want of reasonable care is also, I find, a breach of the duty owed to the appellant and amounts to negligence, in the particulars set out in paragraph 5 of the Statement of Claim.
My finding as to the cause of the relevant occurrence, and that it can be attributed to the defendant’s negligence means the claim in res ipsa loquitur is superfluous: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121. For the reasons I have given I do not, in any event, think this is a case in which there is a fact, or event (the fire) from which, if it be unexplained, it is permissible to infer negligence: see e.g., Windeyer J in Anchor Products Ltd v Hedges (1966) 115 CLR 493 because, adopting the reasoning in Schellenberg, a fire is not something of which it can be said that it does not ordinarily occur without negligence.
Damages
Both parties called valuers about the worth of the lost boat. The plaintiff’s expert, Mr Schofield suggested a range of $80,000-$100,000 but conceded (Transcript, p. 27) that in truth the real figure was probably closer to the lower. The defendant’s valuer Mr Davies had the range at $60,000-$80,000. The boat, it appears, was worth considerably less when delivered to the defendant, but the plaintiff has paid invoices for associated repair costs from time to time before the fire. I am persuaded the median figure of $80,000 reflects the value of the lost vessel, and fair damages. There is a separate claim for some costs of salvage and storage amounting to $11,939, of which the plaintiff has paid $8,349 which was not disputed. I give judgment for the plaintiff for his claim in the sum of $91, 939, and will hear further submissions about interest, and costs.
0
8
0