McNeela v Volta (Aust) P/L - [2008] SADC 160

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MCNEELA & ANOR v VOLTA (AUST) P/L
[2008] SADC 160
Judgment of His Honour Judge Muecke
27 November 2008
TORTS - NEGLIGENCE
Fire commenced in plaintiffs' laundry - claim against manufacturer of portable vacuum cleaner hanging in its cradle 'on charge' - Held that plaintiffs had not proved that vacuum cleaner responsible for the fire - most likely that an operating clothes dryer next to the vacuum cleaner responsible - claim dismissed.

MCNEELA & ANOR v VOLTA (AUST) P/L
[2008] SADC 160

During the night of 16 December 2002 there was a fire at the home of the plaintiffs, Mr and Mrs McNeela. There is no doubt that the fire originated in the laundry of their home. There is also no doubt that within the laundry at the time there was a washing machine, a clothes dryer and a vacuum cleaner which had been manufactured by the defendant, ‘Volta’. It was a vacuum cleaner that had been mounted on one wall of the laundry. It had been mounted adjacent to the clothes dryer. The mount for the vacuum cleaner was a permanent fixture on the wall. The vacuum cleaner was stored on the wall mount and its battery was charged from one power point of a two power point wall fitting. It was charged via a four point power board into which was plugged a standard and portable transformer. The other end of the transformer was plugged into the vacuum cleaner. The dryer was also plugged into the power board. The washing machine was plugged into the other power point.
The vacuum cleaner itself was in two parts. One part was detachable from the other such that it became a hand-held vacuum cleaner. When the hand-held vacuum cleaner was attached to the other part of the vacuum cleaner it became a vacuum cleaner which could be used to vacuum floors by using it in a conventional way. A metal rod attached to the base of the vacuum cleaner served as a handle for the vacuum cleaner.
When the vacuum cleaner was in its cradle attached to the wall of the laundry and when the transformer was connected to the power source at one end and to the vacuum cleaner at the other the vacuum cleaner would be on ‘charge’. The battery which was within the hand-held part of the vacuum cleaner would be charged. When on charge a small light would be activated on the hand held part of the vacuum cleaner to indicate that it was on charge.
I find that Mrs McNeela was the only member of the household who used the Volta vacuum cleaner and that when she did so she invariably used it in the traditional way, as opposed to using it as a hand-held device separated from the other part of the vacuum cleaner. I find that Mrs McNeela used the Volta vacuum cleaner no more frequently than about once every week. I find that when the vacuum cleaner was not in use Mrs McNeela would store it on its cradle and put it on charge. I find that she did that because that was what Volta recommended users of the vacuum cleaner do. In other words, I find that Mrs McNeela stored her Volta vacuum cleaner when it was not in use on charge as recommended by Volta.
I find that on the night of 16 December 2002 the Volta vacuum cleaner was housed within its cradle, it was on charge with its on/off switch in the ‘off’ position.
Mrs McNeela’s evidence was, and I find, that Mr McNeela and their young children had been to the beach in the evening of 16 December 2002. Mrs McNeela had remained at home and had done some housework within the laundry of her home. That involved washing some of the family’s clothes. I find that there were at least two or three piles of clothes on the floor of the laundry. I find that at least some of the clothing on the floor was immediately in front of the dryer. I find that Mrs McNeela had placed within the clothes dryer some of her children’s clothing that she had washed and spun dry. Those clothes consisted of shorts, t-shirts, some underclothes and other ‘summer-type gear’. I find that clothing was a small load for the dryer, probably about a quarter of its capacity. Mrs McNeela said the load ‘wasn’t very much’. I find that Mrs McNeela set the clothes dryer on ‘hot’ and set the timer on it for about an hour.
Mrs McNeela said, and I find, that some time after she had set and started the clothes dryer her husband and children returned home from the beach. When she was inside the house and her children were getting organised for bed she smelt ‘like paper burning’. (Whether or not it was paper I am not able to find. I do not find that it was paper.) After trying to find where the smell was coming from she eventually discovered that the laundry of the home was on fire. Whilst her husband was trying to put the fire out she rang the fire brigade. The fire brigade attended and extinguished the fire which had damaged parts of the rest of the house, having escaped from the laundry and then through air conditioning ducts. The fire caused considerable damage to the McNeela’s home. Loss and damage caused to the plaintiffs was in the sum of $262, 283.42.
In this action the plaintiffs claim that Volta caused them to suffer that loss. If they succeed in this action the plaintiffs will be entitled to judgment for that sum.
The plaintiffs’ case at trial was that the fire at their home was caused by the self-ignition of Volta’s vacuum cleaner. They allege that the fire resulted from Volta’s negligence and its breach of provisions of the Trade Practices Act (Cwth), the Fair Trading Act (SA) and the Manufacturers’ Warranties Act (SA). They claim that the Volta vacuum cleaner had a structural defect, that it was unsafe, that it was manufactured with a design fault (being the absence of a fuse or similar thermal protecting device in the body of the vacuum cleaner), and that Volta knew or ought to have known that its vacuum cleaner was hazardous by virtue of an earlier incident (the Massie incident) together with the absence of a fuse or similar thermal protection device in the body of the vacuum cleaner.
Volta’s case at trial was that the plaintiffs could not prove, and the evidence at the trial did not prove, that it’s vacuum cleaner in any way caused or contributed to the fire at the plaintiffs’ home on the night of 16 December 2002. Volta’s case was that as the plaintiffs cannot prove that they are not entitled to judgment. Volta’s case was that, although it is not necessary for it to be established what was the probable cause of the fire, the likely cause was the clothes dryer and not the Volta vacuum cleaner.
For reasons that follow I am not satisfied that the plaintiffs have proved that the fire at their home on the night of 16 December 2002 was caused, or contributed to, by Volta’s vacuum cleaner. I am satisfied that the most likely cause of the fire related to some operation of the clothes dryer in the plaintiffs’ laundry. I am unable to find exactly how the fire was started by the clothes dryer. Somehow fire escaped from the dryer and ignited clothing on the floor of the laundry.
In opening the plaintiffs’ case Mr Harms, of counsel, told me that the resolution of this case will essentially be a matter to determine as between the competing opinions of the experts. He said that he did not anticipate there would be any significant factual dispute.
That, in fact, did not ultimately transpire to be the case, at least so far as I am concerned, regarding the evidence as to the facts. There were features of the evidence which I consider important. One of those relates to evidence given by the lay witnesses and another relates to evidence given by the expert witnesses. In one sense, neither are factual disputes as between the parties. Both, however, relate to the fact that neither were seen, nor perhaps could they be seen other than in retrospect, to be particularly and strikingly important until the evidence at trial was adduced. They evolved over time and continued to evolve during the trial.
Before I deal with these features in more detail, I make some findings regarding the purchase of the subject vacuum cleaner, the layout of the laundry and the movements of the plaintiffs when the fire was discovered.
I find that the plaintiffs purchased the Volta vacuum cleaner on about 23 September 1997. There was some disparate evidence during the trial about the time of the purchase of the vacuum. In opening the plaintiffs’ case Mr Harms said that Mrs McNeela had purchased the vacuum a few years earlier than the fire. Mrs McNeela’s evidence-in-chief was that she thought she had owned the vacuum for about two years (when the fire occurred). She said she had purchased it just before they had built the house in which they were then living which they had been in for two years. She later said, still in chief, that she may have purchased it in the two year range. In cross-examination, however, she agreed that she had purchased it in about 1997. She said that, if that is what she had said, that sounds about right, although it is not clear to what she was referring when she said that. She agreed that she had used it once a week for about five years. The Statement of Claim refers to the purchase of the vacuum by Mrs McNeela on or about 23 September 1997 from a Myer department store situated within the Marion Shopping Centre complex at Marion for the sum of $129. That purchase date also appears in Dr Ertugrul’s report dated 17 May 2006 (Exhibit P6, page 3.1). I infer that date appeared in Dr Ertugrul’s letter of instruction from the plaintiffs’ solicitors dated 23 August 2005, which was the only letter from those solicitors to Dr Ertugrul not tendered as part of Exhibit P8. There is reference to this topic on a plan said to have been prepared by Mrs McNeela, being part of Exhibit P19 with 38A in the top right hand corner. Mrs McNeela’s handwriting appears at the foot of the plan (if the plan is held sideways). The note reads: ‘The dryer was bought from Harris Scarfes and was approximately 10 months old”. I am satisfied that Mrs McNeela purchased the vacuum on about 23 September 1997. Nothing much turns on how it was that different assessments were given by Mrs McNeela at different times, except perhaps that it causes me to wonder if Exhibit P19 is the actual brochure that the McNeela’s received with the vacuum cleaner or whether it is something that has been obtained since. That doesn’t matter because it is agreed and I find that Exhibit P19 illustrates the model vacuum cleaner that is the subject of this action, being Volta Model UB 156C.
As will become evident later in my reasons various versions of the layout of the appliances, equipment and items within the plaintiffs’ laundry were conveyed to investigators, to solicitors and to me in evidence at trial. It seems common ground that as one walks into the laundry from the back yard all the appliances and much of the equipment and other items was lined up on the wall to the left, that is the eastern wall of the laundry. It is common ground that the washing trough is first in line against the eastern wall (in the north-eastern corner) and the washing machine is then next to that trough. After that the evidence varies, sometimes considerably and significantly. Even the diagrams as drawn by Mrs McNeela and her evidence is at variance with each other. I have ultimately concluded that next past the washing machine was a cabinet on which the clothes dryer sat. Its controls were uppermost with its plastic door and the opening to it facing into the laundry. I find that there was next along the eastern wall the subject vacuum cleaner fixed to either a horizontal or a vertical timber batten which formed the structure of the wall attached to which were the inner and outer sheets that formed the eastern wall of laundry. Then, between the vacuum cleaner and the southern wall of the laundry in the corner it appears the most likely item was a cabinet of some sort or another. I am unable to find whether it had trolley wheels and I am unable to find whether anything, and if so what, was on that cabinet. I have already made findings as to items of clothing on the floor of the laundry.
Mr and Mrs McNeela gave evidence as to what they did immediately prior to and after discovering the fire in the laundry. Mrs McNeela initially searched for the source of a smell that smelt to her like something burning. I find that she ultimately went to the laundry door, being the door in the south-western corner of the laundry whereby access is gained to the laundry from inside the plaintiffs’ house.
Mrs McNeela said that she opened the laundry door and saw a fire in the laundry. She said she did not know if the clothes dryer was still running, as she had left it, when she opened the door. When she looked into the laundry she did not pay much attention to what was going on inside, it was the size of the fire that she was concerned about. She said that when she saw the fire she left the laundry door open and retreated back into the house to call the fire department. That is what she did. I find that Mrs McNeela was the first to see the fire within the laundry when she opened the door and looked inside.
Mr McNeela gave evidence that he was behind his wife when she opened the laundry door. He said: ‘I’m sure I could see flames or fumes emanating when she opened the door, up to the ceiling’. He said that his wife immediately closed the door (contrary to his wife’s evidence that she left it open) and being inquisitive he wanted to find out what was going on as well, so he opened the door himself as his wife passed him going the other way.
Mr McNeela said that when he opened the door: ‘I could see on the floor there seemed to be lots of small bits of flame, fire on the floor, and I remember looking round and instinct was “Okay” – because I knew the dryer was on, I remember looking at the dryer and the dryer seemed okay but everything was on the floor, that seemed to be the problem with the flame’. He said: ‘I could see the clothes still turning inside the dryer’. He said he could see the drum of the dryer still rotating. He was then asked:
QOn the front of the dryer, what is there on the door. What’s that made of.
AIt was all plastic, I remember that. Then there is a lint filter. That’s about it really.
QDid you notice anything about the door or the lint filter that looked in any way unusual.
ANo.
QWere they still in place at the time that you looked.
AThe lint filter, yes. What drew me to the problem was actually – everything was on the floor that concerned me the most.
QWhat was burning on the floor that you noticed.
AWell, there just seemed to be like small little spot fires, you know. It just – small little flames on the floor.
Mr McNeela said that he then closed the door of the laundry and went around to the front and then to the back of the house to try and extinguish the fire using a garden hose from the back garden.
Mr McNeela said that his wife had a much better memory than himself as to how the laundry was laid out. His evidence as to where things were in the laundry was unconvincing. It is no wonder that Mr Kutek was given incorrect information.
Under cross-examination by Mr Goodall, Mr McNeela agreed that he had a picture in his mind as to what the clothes dryer looked like before the fire. He said he had seen it many times. He agreed that when the door was closed there was a plastic grille on the front. He was asked:
QAnd if you close the door with the plastic grille on the front you couldn’t see what was inside the dryer, could you.
ANo. But you could hear the dryer turning.
QBut the door was not see through.
AYou can’t see right through it, no.
QNot at all.
ANo.
QYou can’t see at all inside it, can you.
ANo.
A bit later on the following questions were asked and the following answers were given:
QI think you agreed with me a moment ago that with this type of dryer you couldn’t see inside the dryer at all, the clothes inside.
ANo, we couldn’t, yes.
QDo you agree with that.
AYes.
QIn your evidence before this time you said you thought the dryer was still rotating.
AMmm.
QWas that because you could hear the process of the clothes rotating within the dryer.
AYes.
QDid you conclude from that that the dryer was still operating.
AI am trying to recollect it now. I am sure that the dryer was still operating at the time.
QI am trying to understand why you say that. Do you say that because you could hear a noise because of the rotation, the noise they make when they are operating.
AYes.
QDo you have a recollection of hearing the noise.
AYes, I could hear a noise.
QYou also said that you could see the clothes inside the dryer.
AMmm. That can’t be true.
QI could be true, because I suggest that the front door had melted off.
ANo. That’s not true.
QWhy do you say you have a recollection of seeing the clothes inside the dryer.
ABecause I saw the door missing – no, that’s not true.
QWell it can’t also be true that you saw the clothes inside the dryer.
ANo, no. It must have been the noise and the – I saw the door missing. For the door to be missing that means the door would not have fallen off, and if it was melted I would have seen that as well.
QYou didn’t stay and look for very long.
ANo; just leaned inside the door.
QIt was a glimpse.
AYes.
QAnd you realised there was a big problem with your house and your children and family.
AYes.
QAnd you just wanted to get the hell out of there and deal with the problem.
AYes.
I find that Mr McNeela neither saw nor heard the clothes dryer operating when he looked into the laundry after his wife had been there. On his own account (and his wife’s) the fire was well and truly under way. He inferred in his description that the flames were up to the ceiling. I find that Mr McNeela did not see the clothes dryer in operation although I am satisfied that he now believes that he may have heard it in operation. I consider that his evidence on this topic is an incorrect reconstruction over the years since the fire.
I am unable to make any finding as to whether the clothes dryer was in operation at the time Mrs McNeela and Mr McNeela looked into the laundry. That is a topic upon which I am just unable to make any finding because of the inherent unreliability of Mr McNeela’s evidence on the topic. It does not matter to the ultimate outcome of this case because Mr Cox gave evidence, which I accept, that a clothes dryer such as this could still operate where its plastic front door had melted away.
I now turn to the features of the evidence as to the facts which I consider became important during the course of the trial and which related to some evidence given by the expert witnesses and to some evidence given by the lay witnesses.
The first concerns the evidence as to whether paint, or remnants of paint, are to be seen after the fire above the hole at the front of the clothes dryer where a plastic door was before the fire. This was the door through which the clothes dryer was loaded and unloaded with clothes before and after the dryer was in operation. There is no doubt that this plastic door melted away during the fire, however the fire was caused. The ‘dispute’ arose because Mr Kutek (called by the plaintiffs) asserted that paint or remnants of paint remained and can be seen in photographs in that area after the fire, whilst Mr Cox (called by the defendant) maintained it was not paint or remnants of paint, but something else. The relevance of this evidence related to the opinions of the experts as to whether or not the fire initiated within the drum of the clothes dryer or otherwise within the clothes dryer cabinet. Both experts agreed that if it did the fire was likely to have melted the plastic door and then escaped initially through the resulting open hole at the front of the dryer cabinet. Both experts ultimately agreed that a ‘primary’ or ‘dominant’ plume had its origin just in front and slightly to the right of the centre of the clothes dryer. (The two experts named above used one or other of these terms. Mr Kutek used the word ‘dominant’ and Mr Cox used the word ‘primary’. Mr Cox said the two terms meant the same to him.) Mr Cox, on the one hand, maintained that the ‘primary’ plume obliterated the plume that would have been, and was, caused by a fire starting somewhere within the clothes dryer. On the other hand, Mr Kutek maintained that the ‘dominant’ plume did not obliterate a plume that would have been expected to be seen above the open hole on the front of the clothes dryer, if the clothes dryer was the cause of the fire.

Mr Kutek was the only person (other than Mr Sulley, then of the South Australian Metropolitan Fire Service who attended at the fire on the same night it occurred) who saw the cabinet of the clothes dryer after the fire. Mr Kutek took some photographs of the cabinet where he found it on the back lawn of the plaintiffs’ home when he visited the home on 6 February 2003. The fire scene had been disturbed prior to his arrival. The burnt out cabinet of the clothes dryer has not been seen since by any witness who gave evidence at trial.. That is just a fact. It does not reflect adversely on anyone. It was submitted during the trial that I should prefer Mr Kutek’s evidence as to whether paint, or remnants of paint, were or are visible above the door opening of the dryer because he had the benefit and advantage of inspecting the cabinet, whereas the other experts had not.
I am not satisfied that Mr Kutek had any such advantage over the other experts. That is because I am satisfied that Mr Kutek did not carefully examined the area above the hole in the front of the cabinet on 6 February 2003. I am satisfied that Mr Kutek’s evidence about paint or remnants of paint in the area above the front opening was given from photographs and not from a recollection of what he saw. I am satisfied that Mr Kutek excluded the cabinet as having anything to do with the fire for reasons that had nothing to do with the absence of evidence of a plume above the door opening. The visual evidence of other fire damage to the cabinet which Mr Kutek later conceded indicated that the ‘dominant’ plume originated in front and slightly to the right of the centre of the clothes dryer must have been evident to Mr Kutek when he first looked at the burnt out clothes dryer, although he did not refer to that in any of his reports to the plaintiffs’ solicitor until his last one when he was asked to comment on a diagram in one of Mr Cox’s reports. I consider that to be one factor which, with others, ultimately lead me to conclude that I could not rely on Mr Kutek’s evidence and opinions over the evidence and opinions of Mr Cox. Another striking feature of Mr Kutek’s evidence on this topic is his preparedness to concede to Mr Goodall, of counsel for the defendant Volta, that he did not refer in any of his earlier reports to what he said was the ‘dominant’ plume because he couldn’t make any sense of it. I am satisfied that because of those matters, in combination with others, I should not and can not rely on Mr Kutek’s evidence as to the lack of existence of a plume above the hole in the front of the cabinet and his evidence as to the cause of the fire. Other reasons are that Mr Kutek did not conduct a full examination of the interior of the burnt out dryer, he did not dismantle the dryer and search for all of its electrical circuitry, he did not search for and test the motor of the dryer and its heating element and he did not test its heating element although he conceded that there was a simple test available to do so. He conceded that because he did not do that he did not know whether that heating element had failed.
In fairness to Mr Kutek he had been given incorrect information by Mr McNeela as to where the clothes dryer was situated within the McNeela’s laundry before the fire. He said in his evidence that he did not consider the possibility that the dominant plume originated from clothes in front of the dryer because he did not know of their existence. Despite not referring expressly to the obvious burn patter on the exterior of the dryer, which he conceded in his oral evidence was evidence of the dominant plume caused by a fire in front and to the right of the dryer, he said in evidence that there was no rhyme or reason for that damage to the dryer.
Mr Kutek’s evidence was that he was informed by Mr McNeela as to the pre-fire location of certain items within the laundry when he visited the house on 6 February 2003. He was apparently told that the clothes dryer was on a cabinet in the south-eastern corner of the laundry. He was told that all the electrical equipment was along the eastern wall in the following order. Moving in a southerly direction from the door at the northern wall, there was first a washing trough in the north-eastern corner, then a washing machine over which was a double power point with a four point power board in one of the points and the plug for the washing machine in the other. It appears from the evidence that at least that trough, that appliance and the power point and board were in the positions just referred to. Mr Kutek was told that between the washing machine and the southern wall there was next the vacuum cleaner mounted on the wall which hung above a box of newspapers for recycling, and then, in the south-eastern corner stood the clothes dryer on some sort of cabinet. It was the juxtaposition of the vacuum cleaner and the clothes dryer which was the subject of different, and quite different, evidence.
Mr Kutek prepared all of his reports except the last on the basis of his understanding that the clothes dryer was on a cabinet in the south-eastern corner of the laundry. I have already referred to his evidence that he did not consider the possibility of clothes igniting from in front of the dryer because he did not know of the existence of any such clothes. I have already referred to his evidence that he thought he would not refer to the dominant plume on the clothes dryer because he could not make any sense of it. As I have also indicated he did not dismantle the clothes dryer and conduct a detailed examination and testing of any of the wiring and the motor of it. The fact is, and I find, that Mr Kutek must have realised that something was wrong with what he saw when he examined the scene on 6 February 2003. He said he could not make sense of it. That he did not report on these matters, and that he discounted the dryer as being responsible without trying to resolve the mystery by further enquiry or testing, leads me to have grave reservations about the reliability of his evidence as to the probable cause of the fire. I am satisfied from the evidence of Mr Cox that the fact that the clothes dryer was ‘on’ and operating was, in itself, sufficient reason for Mr Kutek to have dismantled the dryer and closely examined and tested whatever remained of its wiring and anything associated with its electrical operation.
The reservations that I have as a result of these matters are compounded by the fact that in his first two reports Mr Kutek expressed no firm opinion as to the involvement of the vacuum cleaner in the fire.
I think that it is striking that when Mr Kutek first reported by letter dated 3 April 2003, following his examination of the scene of the fire ‘with a view to determining the cause of the fire’, he concluded that ‘there was insufficient evidence to allow a reliable conclusion as to the cause of the fire to be made’. In that report he said that the pattern of fire damage he saw was consistent with a point of origin in the vicinity of where Mr McNeela indicated the vacuum cleaner had been stored. However, no debris identifiable as a battery powered vacuum cleaner was recovered. He said he had made enquiries with the Office of the Technical Regulator which had revealed that there were ‘no known incidents involving Electrolux battery powered vacuum cleaners in Australia’. Mr Kutek stated further that his examination of other items recovered from the site such as electrical cable, a four way power board and the clothes dryer did not identify any electrical damage. What I have just referred to is the extent of Mr Kutek’s first report. As previously indicated it omits to mention or comment on a number of matters which were the subject of his later evidence. He does not set out in his report what his examination of the clothes dryer comprised. I am satisfied that it was a cursory examination. Furthermore, it seems to me that what he later conceded was the dominant plume on the outer skin of the clothes dryer was inconsistent with a point of origin in the vicinity of where Mr McNeela indicated to him the vacuum cleaner was stored, being to the left side of the clothes dryer (as one would have faced it) and between the washing machine and the clothes dryer.
Mr Kutek was later asked to comment on the MFS report written by Mr Sulley and dated 17 December 2002. He was asked to comment by the plaintiffs’ solicitor by letter dated 18 October 2004. Mr Kutek was still acting upon the information that the clothes dryer was in the south-eastern corner of the laundry. Mr Kutek wrote in his report dated 22 November 2004 that he had examined the clothes dryer, which had been moved into the back yard, but he found no evidence consistent with the dryer being the cause of the fire. He disagreed with Mr Sulley that dryers involved in fires are generally destroyed. He wrote that the steel housing and drum always survive domestic fires.
Mr Kutek wrote that he could not identify any electric fault in any of the items recovered from the apparent area of origin of the fire. He wrote that the clothes dryer had been damaged by the fire to the extent that the switches had charred and crumbled, the paint was burned away and the stainless steel drum discoloured. He does not state in his report what he means by ‘the paint was burned away’.
Mr Kutek went on to refer to the power point, the power board and the cables associated with them. He wrote that he had failed to identify any evidence of electrical damage and concluded that none of those items was the cause of the fire. (All experts who could express an opinion of these matters agreed with Mr Kutek’s conclusion.)
Mr Kutek concluded in his written report that ‘while there was insufficient evidence to allow the cause of the fire to be confidently determined, there was evidence that the fire began in the vicinity of the rechargeable vacuum cleaner’. He wrote that he could find no evidence of ‘other credible ignition sources in the vicinity’. He then wrote: ‘While I am not comfortable with the notion of “by elimination of all other possible ignition sources, the cause must be …”, I must agree with Mr Sulley’s assessment of the cause as “probable electrical equipment failure within a rechargeable wall mounted vacuum cleaner”.’
During cross-examination Mr Kutek said that he maintained (that is, he still had), at the time that he gave evidence at trial, the discomfort that he felt with the notion of eliminating other possible ignition sources and then drawing a conclusion as to the cause of the fire.
The solicitor’s letter to Mr Kutek dated 18 October 2004 seeking the written report dated 22 November 2004 also asked Mr Kutek to have regard to ‘the comment made by Mrs McNeela that it was her observation prior to the incident that the vacuum cleaner … would not fully charge and that there seemed to be a fault with the charging unit, as the charger light would only illuminate only spasmodically’. Mr Sulley had stated in his report dated 17 December 2002 that Mrs McNeela had stated that the vacuum ‘would not fully charge and that there seemed to be a fault with the charger unit, as the charger light would only illuminate spasmodically’. The only reference Mr Kutek makes to that apparent comment made by Mrs McNeela is that he was not advised of any problems with the vacuum cleaner. He wrote that he did not have any knowledge of the particular vacuum cleaner so he could not draw any conclusions from the symptoms except that they would indicate a problem with the charging circuit or its connection to the vacuum cleaner. He found no apparent problems with the transformer, which was of the size and type found in plug pack battery chargers. The windings were still encased in unburned plastic and were clean and bright indicating that electrical overheating had not occurred.
Mrs McNeela gave no evidence at all of any problems she had encountered with the vacuum cleaner prior to the fire. I find that she had experienced no problems. I find that, as I have previously indicated, the vacuum cleaner spent much of it’s life in its cradle in the laundry of the McNeela house on charge, and that Mrs McNeela only used it at most once per week. I further find that she never experienced any difficulties or problems with it. This is important when Mr Baghurst’s opinion is considered to the effect that ‘it is almost impossible to envisage a situation in which a short-circuit would spontaneously occur in a device which is neither in operation nor even being handled. Even a pre-manufacturing fault is most unlikely to spontaneously result in a short-circuit without a stimulus of some kind’. Mr Kutek said he agreed with those remarks. Mr Baghurst also stated:
It is difficult, however, to conceive of a situation in which a fault could have spontaneously occurred within the vacuum cleaner or its associated power supply which could have led to the fire: Examination of the circuit, as explained in a previous report on this subject, revealed that the circuitry was relatively ‘standard’, and there was no evidence found that the design or the components used were in any way under-rated or inappropriate.
It is extremely unlikely for faults in electrical equipment to occur spontaneously when that equipment is in a non-operational or ‘quiescent’ state, unless the fault is precipitated by external factors such as transient power supply disturbances, application of load or adverse environmental factors such as heat, water or impact. (Exhibit 312, p2)
The evidence was that an email was sent to Mr Kutek by the plaintiffs’ solicitors on 12 September 2007. A sketch that was described as being prepared by Mrs McNeela was sent with the email. That sketch appears in a bundle of documents that is Exhibit P5. It is marked with a number 38 in the top right hand corner. The evidence was that after receiving that email Mr Kutek prepared a report dated 8 October 2007. That report is Exhibit P4. The sketch showed that the clothes dryer was on top of a bench adjacent to the washing machine and the vacuum cleaner was to the right of the clothes dryer as they are looked at from the front. In his report Mr Kutek said that ‘new evidence’ allowed a more reliable interpretation of the burn patterns to the dryer. He wrote ‘those burn patterns are consistent with a fire to the right front of the dryer. The only identified fire load in that area was the rechargeable vacuum cleaner and a box containing newspapers. The sketch does not allow a more confident identification of the cause of the fire to be made’. Mr Kutek still, by that time, had no information about any clothes that were on the floor of the laundry to the front right of the dryer.
Mr Kutek’s evidence under cross-examination was that he spoke to the plaintiffs’ solicitor before he delivered his report dated 8 October 2007. He agreed that he told the solicitor words to this effect: ‘with the dryer where Mrs McNeela now has identified, the burn pattern makes sense’. He said that he may have told her that it was consistent with a point of origin on top of the newspapers. Because of what was later said I am satisfied that he did say that to her. I find that a day or two after that telephone conversation and after his report (both of which occurred on the same day) Mr Kutek was telephoned by the plaintiffs’ solicitor. She asked him why he had changed his mind, referring to a point of origin on top of the newspapers (in the telephone conversation) and a fire to the right front of the dryer (in his report). Mr Kutek agreed that she had said to him that he had told her on the phone that the pattern was consistent with a point of origin on top of the newspapers. She pointed out that his report didn’t say that. Rather, it said that the burn patterns are consistent with a fire to the right front of the dryer. Mr Kutek agreed that he may have said in answer to her (as to why he had changed his mind): ‘I was worried about being challenged in court’. I find that he did say that. I find that Mr Kutek’s statement in his report dated 8 October 2007 that ‘the only identified fire load in that area (which could only be referring to the right front of the dryer) was the rechargeable vacuum cleaner and the box containing newspapers’, was an attempt by Mr Kutek to try and give some support to the plaintiffs’ case and to his previously expressed opinion (based on an exclusionary approach) that the vacuum cleaner was in some way implicated in causing the fire. To his credit, however, he concluded his final report with the words ‘the sketch does not allow a more confident identification of the cause of the fire to be made’. When that is viewed in conjunction with his discomfort with the notion of finding the cause by elimination of other possible ignition sources it is hardly an opinion which imbues me with confidence. It is certainly not an opinion which would or could lead me to conclude on the basis of Mr Kutek’s evidence that the vacuum cleaner was probably the cause of the fire at the McNeela’s premises which started in their laundry.
For the first time Mr Kutek proffered a theory in his evidence as to how the vacuum cleaner started a fire the dominant plume of which indicated that it started to the right front of the clothes dryer where the dryer was positioned as shown in the sketch at the page marked 38 in Exhibit P5. By then Mr Kutek was aware that Mrs McNeela had drawn a further diagram which depicted the dryer on a cupboard or counter in about the middle of the eastern wall of the laundry. Mrs McNeela has written on this diagram the words ‘*clothes were on the floor in separate washing piles’ in front of where the dryer is depicted. The theory proffered by Mr Kutek was based upon the fact that Mr Kutek agreed that the dominant fire plume originated to the right front of the dryer. He also had been informed that there was some clothing on the floor in about that area. Mr Kutek said this:
I understand the vacuum cleaner had been hanging on the bracket attached to the wall above the stack of newspapers, if the vacuum cleaner had ignited it would have dripped molten plastic, burning plastic down on to the pile of newspapers it eventually would have fallen out of its cradle and in falling it could have ended up basically anywhere in the laundry depending on how it landed and so, it would have spread burning plastic basically over the floor and on to anything that was on the floor Now if there had been a pile of clothing or something just in front of that area then it would have ignited that and then it’s seems there, probably because that would then explain the plume of fire damage to the clothes dryer.
That was a theory with which Mr Cox disagreed on a number of occasions.
Mr Cox was, to me, a very impressive witness. He seemed to me to express his opinions carefully and seemingly to justify them with what appeared to me to be a considerable amount of logic and common sense. He was an impressive witness, and I found him to be a convincing witness.
Mr Cox started from what seemed to me to be an impressive and logical scientific commencement point. That was to the effect that he was not prepared to express any view as to what probably caused this fire (other than it involved electrical equipment of some kind) by excluding a number of possible causes, being then left with a final possible cause, and converting that into the probable cause where there was no evidence to support that as anything more than another possible cause. I was impressed by his conclusion that such an approach lacked scientific cogency. I have tested this by assuming that the power board, for example, had been completely destroyed or could not be found so that no tests could be made on it and no examination could be made of it. If no evidence could be found implicating the vacuum cleaner the result would necessarily be, on the approach adopted by or referred to, albeit with reservations, by Mr Kutek, the power board would or might be then expressed to be the probable cause of the fire. I have no doubt that that is why Mr Kutek was initially, and was still at trial, ‘not comfortable with the notion of “by elimination of all other possible ignition sources, the cause must be …”’.

I am satisfied that there is in this case no scientific evidence upon which the vacuum cleaner has been or could be implicated. I am convinced that Mr Cox is correct when he said that if the primary fire emanated from the eastern wall of the laundry a plume pattern would be formed on the right hand side of the clothes dryer (looking at it from the front) in a reverse pattern than the one that actually occurred. I am also satisfied that Mr Cox is correct when he said that if a fire occurred spontaneously within the vacuum cleaner it would melt, sag and drip onto the newspapers underneath it and it would not fall over and ignite clothes in front of the clothes dryer as postulated by Mr Kutek.
I am also satisfied, on Mr Cox’s evidence, that the grey area referred to by Mr Kutek at the front top left of the clothes dryer as paint or remnants of paint is not paint or remnants of paint but is more likely to be magnetite, as stated by Mr Cox. I am convinced by Mr Cox’s evidence that the primary plume from the front right of the dryer would have been far more intense than any plume that could be expected to have been produced from a fire within the drum of the clothes dryer, or from otherwise within the clothes dryer, which might escape through the melted plastic door and plume upwards and outwards within the laundry. That is logically consistent with Mr Cox’s opinion that the area above the door hole was magnetite and not remains of paint. It is also consistent with Mr Cox’s opinion that the primary plume was far more intense than what you would expect from a fire commencing within the drum because that intensity is evidenced on the right side of the dryer, and he would not expect damage to the front of the dryer to be any different to the damage that is seen on the side of the dryer.
I have no doubt that Mr Sulley was, at the time of the McNeela’s fire, an experienced and knowledgeable fire investigator. I am not satisfied, however, that his conclusion can prevail over the opinions and conclusions expressed by Mr Cox and Mr Baghurst. His ‘exclusionary’ approach suffers scientifically in the same way as Mr Kutek’s ‘exclusionary’ approach, although Mr Kutek, as has been indicated, was not comfortable with such an approach.
There are a number of other features of Mr Sulley’s report that raise doubts in my mind about the reliability of his conclusion. First, he refers to being informed by Mrs McNeela that the vacuum cleaner would not fully charge and that there seemed to be a fault with the charger unit, as the charger light would only illuminate spasmodically. Secondly, Mr Sulley refers to the dryer giving no indication internally that it had caused the fire. He wrote that ‘that is always present when a dryer is the cause of a fire. In fact, dryers when involved in fire are generally destroyed’. Neither proposition was supported by any of the other expert evidence. That evidence was to the effect that a stainless steel drum may sustain little visible damage even at very high temperatures and that dryers are not generally destroyed when involved in fire. Thirdly, Mr Sulley was giving his evidence in the absence of his field notes that he said he would have prepared when he considered the fire scene. Fourthly, Mr Sulley makes no reference in his report to any external burn patterns on the clothes dryer. These patterns were important to the expert witnesses Mr Kutek and Mr Cox. In the same way Mr Sulley makes no reference to his being informed that there was some clothing on the floor of the laundry in front of the clothes dryer. Fifthly, Mr Sulley said that the clothes dryer was at the far end of the laundry when he first saw it, which was a position similar to where Mr Kutek was told the dryer was housed. And lastly, Mr Sulley was not told by anyone about seeing spot fires in front of the dryer. He said he would have made a note of that had he been told that such spot fires were seen.
Mr Sulley stated in his report that although he did not eliminate the dryer he did not believe it was the cause of the fire. Having stated that, he then, apparently, did eliminate the dryer.
With all respect to Mr Sulley, whilst he impressed me as a conscientious and experienced fire examiner, I was not convinced, in respect of this particular fire, that his conclusion was justified.
I am also not convinced that the plaintiffs’ case gained any support from the evidence about ‘the Massie incident’ or the so-called Finland incident. I have no doubt that Mrs Massie’s Volta vacuum cleaner, of the same model as the plaintiffs, ignited and burnt. That happened, however, when Mrs Massie turned her vacuum cleaner on. That was when she smelt some burning smell. That did not happen when her vacuum cleaner was in its cradle on charge where the switch was in an ‘off’ position. The vacuum cleaner involved in the Finland incident was a different model and the only evidence I have about what happened is in a document prepared by the defendant. The incident occurred in 2003, after the McNeela fire. The background to the incident reads only: “The customer was at home and suddenly noticed smoke from the vacuum cleaner. Further development of the fire was prevented”. It is not evident from the document whether or not the vacuum cleaner was in an operating mode when the fire occurred. It was submitted by Mr Harms that I could draw adverse inferences against the defendant as they were in a position to call and adduce evidence as to that incident. I am not prepared, in the circumstances of this case, to draw any adverse inference from such failure. The Finland incident occurred after the plaintiffs’ fire in their laundry, it involved a different model, and I consider that it is altogether too much to expect a defendant in Volta’s position in Australia to adduce evidence other than that was tendered. The reference in the “Product inspection report” to the effect that pressure may have reduced the thickness of the wire insulation in not borne out by the expert evidence from Mr Baghurst, which I accept.
Mr Baghurst, like Mr Cox, was an impressive witness. He said that there was no indication that there was any pressure on wires within the housing of the hand-held vacuum cleaner. He said that wires in such appliances are often in close proximity with each other and he had seen no indication that pressure might lead to a short circuit. He said that PVC insulated wire of the type used in this appliance is extremely robust. I accept that evidence and I am convinced by it that the Finland incident does not assist the plaintiffs’ case here, and that it is highly unlikely that a short circuit between wires was caused by any pressure to which they might have been subjected whilst in close proximity with each other.
Apart from the Massie incident there was no other direct evidence as to any incidents whereby the particular Volta model owned by the McNeela’s had burst into flames, either spontaneously or at all. The evidence of Mr Baghurst and Mr Cox as to the unlikelihood of the plaintiffs’ vacuum cleaner spontaneously bursting into flames when in a supine off position whilst sitting on a bracket, even on charge, is compelling. In the circumstances of this case Mr Dillon’s evidence is of some probative weight. Even allowing what I am satisfied are imperfections relating to the reporting of such incidents to Volta by their agents, the lack of any complaints of fire occurring in these vacuum cleaners where many thousands have been put on the market by Volta over the years, in circumstances where there is no suggestion or evidence to suggest that they are released otherwise than in accordance with the regulatory requirements set by regulators from time to time, is significant. Those matters, together with the evidence of Mr Baghurst and Mr Cox as to the unlikelihood of such an event occurring spontaneously, to my mind enforces the conclusion that I have reached that the plaintiffs have not established that the Volta vacuum cleaner was in any way responsible for the fire in their laundry.
Dr Nesimi Ertugrul was the other expert called by the plaintiffs at trial. Whilst I am sure that he is technically and intellectually well-qualified in electronic engineering I have concluded that he was giving his evidence from a position of theoretical expertise with little, if any, regard to the practicalities of the design, manufacture and use of vacuum cleaners such as was concerned in this case. It seemed to me that Dr Ertugrul would require a counsel of perfection in the design of such equipment. He would wish to have several special fuses at various specially selected places within the equipment, and even within the transformer to charge the equipment. When asked to comment on a fuse that appears to have been added in some recalled vacuum cleaners to address a particular problem (and Dr Ertugrul said that he did not know what the reason was for a fuse being placed where it was) Dr Ertugrul said that a fuse in the position seen would not avert a possible problem because it was not an appropriate fuse and it had not been placed in the appropriate place.
There was an unfortunate, and serious, mistake in Dr Ertugrul’s first report where he set out a simplified block diagram of a UB 156C vacuum cleaner system showing desirable fuse locations for effective protection. Dr Ertugrul’s report stated that the fuse indicated at position ‘D’ may not be necessary. He said that the fuse at position ‘C’ was the ‘very critical’ one. Dr Ertugrul said, when that was pointed out to him in evidence, that he had transposed the letter ‘C’ and the letter ‘D’. I was not sure during his evidence whether he had, indeed, made a mistake in his report. I do not consider that I have to decide that issue. That is partly because Dr Ertugrul’s evidence was principally relevant to the question as to whether, if the vacuum cleaner did cause the fire, there was something lacking in its design or the lack of a fuse or similar thermal protection device that was known, or should have been known, to Volta such as to make Volta liable to the plaintiffs.
Suffice to say that I do not think that Dr. Ertugrul’s evidence on this issue convincing, even when taking account of the evidence of Mr Baghurst that he probably would have (may well have) put a fuse in. There would still be the issue of an appropriate fuse and the appropriate position.
My ultimate conclusion is that the plaintiffs have not established that the defendant’s Volta vacuum cleaner had anything to do with the fire. Accordingly, it is not necessary to resolve the issues raised by Dr Ertugrul. I do consider, however, that Dr Ertugrul was recommending a design that was nothing less than perfect and I am not convinced that a vacuum cleaner of a design which was championed by Dr Ertugrul could be effectively and practically manufactured.
For these reasons I consider that the plaintiffs’ claim against the defendant Volta should be dismissed.