Moama Bowling Club Ltd v Thomson
[2013] VSC 744
•24 DECEMBER 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 04364 of 2010
| MOAMA BOWLING CLUB LIMITED (ACN 001 046 939) | Plaintiff |
| v | |
| BRETT ANTHONY THOMSON | First Defendant |
| and | |
| OTHERS | Second, Third and Fifth Defendants |
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JUDGE: | VICKERY J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 15, 20-21, 25-28 NOVEMBER, 2-3, 5, 11, DECEMBER 2013 | |
DATE OF JUDGMENT: | 24 DECEMBER 2013 | |
CASE MAY BE CITED AS: | MOAMA BOWLING CLUB LTD v THOMSON | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 744 | |
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TORT – CAUSATION – Place of origin and cause of a fire – Expert conclaves – Uncertainties as to fire origin - Degree of persuasion necessary on balance of probabilities in civil case - Where no direct complete evidence of causation - Drawing of inferences from circumstantial or inconclusive evidence - Evaluation of circumstantial evidence in civil case – Balance of probabilities - Whether causation sufficiently proven on evidence - Court unable to arrive at the necessary degree of actual persuasion that the fire was initiated as alleged by the plaintiff – Cause of action against defendant fails.
TORT - NEGLIGENCE - Breach of duty of care - Building destroyed by electrical fire - Whether significant or insignificant risk - Foreseeability of risk that electrical contractor knew or ought reasonably to have known - Foreseeability of risk of fire - Whether floodlights knowingly unsuitable for intended use - Whether electrical contractor negligent – Consideration of the knowledge an electrical contractor would have been likely to have possessed at the time of the conduct in question - Whether breach shown - Finding of no negligence - Pt X of the Wrongs Act 1958 (Vic) ss 51 and 52.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Garratt QC and Mr T Messer | Hall & Willcox |
| For the Defendants | Mr P Solomon SC and Mr P Wallis | Norris Coates |
HIS HONOUR:
Background
Halogen lamps were invented in 1882, but were not commercialized for a long time, according to Dr Vytenis Babrauskas,[1] first coming onto the consumer market in the United States a hundred years later, in 1983. They operate with a tungsten filament which vaporizes a certain amount of tungsten, resulting in the tungsten being deposited on the inner glass walls of the globe. Ingeniously, to this is added another ingredient – halogen gas. In a tungsten-halogen lamp, the halogen gas interacts with the tungsten vapour and an equilibrium is established which keeps the glass envelope largely free of metal deposit, thereby maintaining the integrity of the lamp.[2]
[1]Dr Vytenis Babrauskas “Ignition Handbook”, Fire Science Engineers, 2003 at 749.
[2]Dr Vytenis Babrauskas “Ignition Handbook”, Fire Science Engineers, 2003 at 749.
It is this most beneficial invention which gives rise to the present litigation.
The Plaintiff (the “Moama Bowling Club” or the “Club”) is the proprietor of the land and buildings known as the Moama Bowling Club at 6 Shaw Street, Moama (the “Club premises”).
This proceeding arises out of a fire which occurred on 26 June 2008 which caused extensive damage to the Club premises. The Club places the blame for the disastrous fire on a floodlight containing a tungsten-halogen lamp which was installed inside the building by an electrical contractor, the Fifth Defendant (“the Thomson Company”), in July 2007.
As at June 2008, the Club premises comprised of extensive gaming and entertainment areas, a bottle shop, a bistro and café, a substantial kitchen and a foyer and reception area. The premises had undergone a number of renovations since first constructed, the most recent of which was completed in 2007.
In June 2008, the Moama Bowling Club had approximately 13,500 members. Approximately 70 per cent of the membership was aged 50 years or older.
A shuttle bus service ran to and from the Club premises every half an hour servicing Moama and Echuca. The bus would collect and return patrons to places in and around Moama and Echuca. Patrons were accustomed to congregate at the Shaw Street entry of the Club whilst waiting for the shuttle bus. There were several settees and other items of furniture in the foyer near the Shaw Street entry to accommodate people waiting for the shuttle bus.
In July 2007, the Plaintiff retained the Thomson Company to carry out electrical works at the Club premises. The works involved installing lighting above a large display board in the foyer of the Club premises near the Shaw Street entrance.
On 12 July 2007, the Thomson Company purchased two Philips Outdoor A500 floodlights from an electrical retailer in Echuca (the “Floodlights”). Included inside the package of each Floodlight was a 500 watt tungsten-halogen lamp. The Floodlights were open-faced with no glass front or other protective device included in the package of either light.
The Thomson Company installed the Floodlights inside the Club premises above a large display board which was about 10 metres from the entrance doors at Shaw Street. The display board was made of particle board covered with vinyl, and spanned two columns. The particle board was supported on a pine timber frame standing close to, but in front of, the floor to ceiling north east glass wall.
The Thomson Company mounted the floodlights by attaching steel conduits to the back of the display board. The conduits projected outwards over the display board. The Floodlights were screwed onto the ends of the conduits and angled so as to illuminate the display board. The Floodlights were powered by an electrical cable running from a 240 volt general power outlet in the column near the right hand end of the display board.
After the installation and prior to 26 June 2008, a couch was positioned in front of the display board and beneath one of the Floodlights. The couch was in this position as at 26 June 2008.
The couch was one of several purchased by the Moama Bowling Club. It was covered with a micro-suede fabric. The seat cushions were made from a dense polyurethane foam, with a thin layer of wadding between the fabric and the foam. The micro-suede was a fine woven polyester fabric.
On the evening of 25 June 2008, the last patron left the Club premises shortly before midnight. The last member of staff to leave was the Duty Manager, David Simpkin, who departed the Club premises at approximately 12.10 am.
At approximately 4.30 am on 26 June 2008, a fire started inside the Club premises. The fire was first observed by Christopher Foster, a security guard. Foster telephoned 000 to report the fire.
The firefighting services attended the Club Premises at approximately 4.40 am. The fire was extinguished within an hour.
As a result of the fire, the Club premises were extensively damaged.
Procedural Steps
On 25 November 2013 it was ordered by consent that the proceeding against the First, Second and Third Defendants be dismissed, with no order as to costs. This leaves the proceeding against only the Fifth Defendant, the Thomson Company, in place for determination.
The trial before me proceeded on the question of liability only.
Expert Conclaves
The experts met together prior to the trial in two groups.
The first group of experts dealt with the origin and cause of the fire which occurred at the Moama Bowling Club on 26 June 2008. This group (the “First Conclave”) comprised Mr Lee (a chartered electrical and mechanical engineer called by the Plaintiff) and Mr Glover (a forensic fire investigator called by the Fifth Defendant) and Dr Hart (and electrical engineer called by the Fifth Defendant). The First Conclave met on 18 November 2013 and produced a “First Joint Experts’ Report” which was admitted into evidence. The First Joint Experts’ Report listed the assumed facts upon which the experts proceeded to consider the issue; a short description of the issues upon which they agreed; and a short description of the issues upon which they disagreed.
The second group of experts dealt with the Fifth Defendant’s compliance with the applicable regulations in the selection and installation of the Floodlights and lamps at the Moama Bowling Club in July 2007 and the adequacy of the selection and installation. This group (the “Second Conclave”) comprised Mr Lee (called by the Plaintiff) and Mr Lofthouse (an electrician called by the Plaintiff) and Dr Hart (called by the Fifth Defendant). The Second Conclave met on 15 November 2013 and produced a “Second Joint Experts’ Report” which was admitted into evidence. The Second Joint Experts’ Report followed the form of the First Joint Experts’ Report.
The experts in the First Conclave were called to give their evidence concurrently in the course of the trial on 3 December 2013, and the experts in the Second Conclave were called to give their evidence concurrently on 5 December 2013.
These procedures had the advantage of considerably reducing the technical issues in dispute and defining with clarity the issues for determination. By these means, the expert evidence was able to be presented efficiently, effectively and fairly.
The Issues
The Fifth Defendant in final address abandoned its claim against the Plaintiff founded on contributory negligence.
The following are the remaining issues for determination by the Court:
Issue One – Where was the place of origin and what was the cause of the fire?
Issue Two – Was the Fifth Defendant guilty of negligence?
Issue Three – Were the Floodlights fit for purpose?
Issue Four – Is the claim of the Plaintiff an apportionable claim and, if so, which of the proportionate liability regimes applies?
Issue One – Place of Origin and Cause of the Fire
It was the Plaintiff’s contention that the fire originated on a couch placed in front of the display board on the eastern side of the premises situated close to the entrance doorway.
It was the Plaintiff’s further contention that the fire at the premises of the Moama Bowling Club was caused when a couch caught fire consequent on the globe in the Philips A500 Apollo Floodlight shattering and hot shards of glass ejecting and coming into contact with the couch.
However, the Fifth Defendant put the case that, on the balance of probabilities, the Plaintiff has not established that the fire originated on the couch in front of the display board, and that the Plaintiff has not established that the fire was caused in the way it alleged involving the Philips A500 Apollo Floodlight as the source.
Issue Two –The Negligence Allegations
A plea of negligence is advanced by the Plaintiff against the Fifth Defendant (the “Thomson Company”) in that it is alleged that the Thomson Company failed to exercise reasonable care and skill in the performance of the electrical works, being the supply and installation of the 2 Philips A500 Apollo Floodlights to illuminate a display board within the building occupied by the Moama Bowling Club.
It is alleged by way of particulars in the plaintiff’s claim of negligence that the Thomson Company knew or ought to have known that, by reason of a number of matters particularised, the Floodlights were unsuitable for use inside the premises (the “knowingly unsuitable claims”).
It is also alleged by way of particulars of negligence that the Thomson Company knew or ought to have known that, by reason of a number of further matters particularised, the Floodlights were defective or dangerous (the “knowingly defective claims”).
Both the knowingly unsuitable claims and the knowingly defective claims are founded on allegations concerning the knowledge that the Thomson Company possessed or which it ought to have possessed about the lamps at the time of installation.
In response to the allegations of negligence, the Fifth Defendant says, in essence:
(a)It was not careless to select the Philips A500 Apollo Floodlight for indoor installation;
(b)It was not careless for the Fifth Defendant to install an open-faced light in illuminating the display board; and
(c)In supplying and installing the Philips A500 Apollo Floodlight, the Fifth Defendant neither knew nor ought to have known there to be a real risk of the globe exploding causing hot glass to shatter.
Issue Three – The Contractual Warranty Allegations
Breaches of a contractual warranties are also alleged against the Fifth Defendant.
The contractual warranties in question are pleaded to arise by implication from Part 2A of the Fair Trading Act 1999 (Vic) and/or Division 4 of Part 4 of the Fair Trading Act 1987 (NSW) and/or s 74(1) of the Trade Practices Act 1974 (Cth) (as it was in force at the time).
Warranties of fitness for a specified purpose, and fitness for purpose are alleged.
These are said to have been breached because, at the time of the installation by the Thomson Company and thereafter, the Floodlights were unsuitable for installation inside the premises and/or were dangerous.
Two defects are pleaded by the Plaintiff:
(a) The Floodlights were open -faced; and
(b)The Floodlights were not fitted with glass fronts to prevent the escape of incandescent or hot particles should the lamps rupture.
The Fifth Defendant contends that the Philips A500 Apollo floodlight was suitable for use indoors.
It further contends that the Philips A500 Apollo Floodlight was suitable for use without the presence of a glass cover over the globe.
Issue Four – Whether the Claim of the Plaintiff an Apportionable Claim and, if so, which of the Proportionate Liability Regimes Applies?
Philips supplied in the one package both a floodlight and a globe to the Fifth Defendant for its installation in the Moama Bowling Club.
In the event (which is denied) that the Fifth Defendant is liable in respect of the selection and installation of the Philips A500 Apollo Floodlight, the Fourth Defendant (Philips Electronics Australia Limited) is claimed by the Fifth Defendant to be a concurrent wrongdoer.
The allegation made in paragraph 20C of the Second Amended Defence is: “At all material times, the Fourth Defendant [Philips] knew, or ought reasonably to have known that if it failed to exercise reasonable care and skill in the design, manufacture and/or supply of its floodlights and halogen lamps there was a real risk of damage to premises in which the same were installed”.
The allegation made in paragraph 20C of the Defence addresses a risk of which is alleged that the Fourth Defendant [Philips] knew about, or ought reasonably to have known about, in 2007 through to 2008.
A question arises as to whether, in the event of the Fifth Defendant being found liable to the Plaintiff, the apportionment statutory law of New South Wales (s 35 of the Civil Liability Act 2002 (NSW)) or that of Victoria (s 24AI of the Wrongs Act 1958 (Vic) applies, and in either case to what effect.
The Fourth Defendant Philips elected to take no part in the trial of the proceeding.
Issue One - Evidence as to Origin and Cause of the Fire
For the purposes of explaining the evidence, reference will be made to the diagram of the Club premises depicted below prepared and adopted by the experts in the First Conclave (the “Diagram”).
Evidence of Eye Witness – Mr Foster
The only eye witness to the events directly relevant to the origin and cause of the fire was Mr Christopher Foster, as security guard.
The last member of staff to leave the Club premises was the duty manager, Mr David Simpkin, who departed the premises at approximately 12.10 am. At approximately 4.30 am on 26 June 2008 the fire started inside the Club premises. The fire was first observed by Mr Foster, who telephoned 000 to report the fire. The fire fighting services attended the club premises at approximately 4.40 am and the fire was extinguished within an hour.
Mr Foster had been a security guard since 2004, employed by a family business, Echuca Security Options. At the time of the fire he had been a security guard for a little under four years.
On the night of the fire, on 26 June 2008, between 1.45 am and 2.30 am in the morning Mr Foster did an external check of the Club premises to ensure that the premises were locked and secured. He found that no door or window was open and that the premises were secure.
Following the security check of the Club premises, Mr Foster continued on his patrol until approximately 4.25 am, when he arrived back at the Moama Bowling Club to open up for the cleaners.
Mr Foster disarmed the security system and entered the Club premises. He smelt what he described as “hot dogs”, which to him was not a usual smell within the Club when entering.
He described a pie warmer on the end of the bar in the sports lounge on the western end of the Club premises. He thought that this may have been causing the smell. He checked the pie warmer and found it to be cold and turned off, so he discounted this as the source of the smell.
Mr Foster then proceeded to the “Bowlers Lounge” shown in the area of the “President’s Lounge Area” on the Diagram, and picked up a chocolate bar from a vending machine. He then proceeded through the service area. When he reached near the doorway into the bottle shop he could see what looked to him like “flickering flames over in the servery area, or bistro court servery”.
He thought that at that point the kitchen was on fire. So he then quickly proceeded into the reception area. He then realised that the flames he had seen were actually only a reflection from a glass fridge in the servery area which was reflecting a fire that was actually in the foyer area.
When proceeding into the reception area Mr Foster actually caught a glimpse of the fire in the corner of his eye over to the left. He quickly turned and saw the fire, upon which he stopped proceeding further towards the servery/kitchen area and stopped near to the reception desk.
He observed that the fire was on a two seater couch, taking up most of the two cushions that provided the cushion seating, and was consuming some of the some of the back of the couch as well.
While he stood near the reception desk, he got his mobile telephone out, and contacted “000” to call the fire brigade. The phone call in all probably took about a minute, but he could not be sure of exact times after five and a half years. He said that he suffered some anxiety but was in control at the same time. After getting off the phone with the fire brigade Mr Foster then proceeded to exit the building via the service area.
Mr Foster said that he observed the fire on the couch for “around a minute by the time that I was on the phone with the fire brigade”.
Mr Foster then stopped at the exit of the service area into the bottle shop due to the fact that there was thick, black smoke that had appeared in that area. He then turned back around and exited the service area back out into the bowlers lounge.
He then proceeded in an easterly direction towards the sports area of the Club premises and exited the building from the entrance that he had used originally to open up. Once outside the building he went onto the bowler's green and then proceeded to contact his father, who was his employer at the time, to inform him of the fire.
Once Mr Foster had completed his telephone call to his father, he then proceeded to his patrol vehicle which was parked in the staff car park. He got into his vehicle and proceeded up to the eastern part of the car park to make sure that no other staff members were attempting to enter the Club premises.
The fire brigade teams arrived while Mr Foster was still at the site, although outside the building. Mr Foster remained in the vicinity until approximately 5.15 am.
Mr Foster gave evidence that the neon tube lighting was generally left on and, although he was not sure, there may have been down lights also lit up in the middle of that risen part of the ceiling. He also said that, from his own knowledge, the Floodlights illuminating the display board were also left on.
At the time when Mr Foster entered the Club premises that morning at 4.25 am, to his knowledge there was no other person in the premises.
Mr Foster described the fire he observed on the couch. When he first observed the fire the flames were not touching the ceiling, but were about half a metre to 70 centimetres from the ceiling. While he was on the phone with the fire brigade, Mr Foster described the flames as having started to set the display board on fire and had reached the ceiling by the time he had completed his phone call.
Mr Foster did not see any other source of fire, apart from the fire on the couch, and said that he was not aware of any other source of smoke or heat.
Gaps in the Evidence of Mr Foster
While it is accepted on the evidence of Mr Foster that the couch under the display board had caught fire, his evidence stopped short of identifying how it was that the couch caught fire.
Mr Foster did not see the couch catch on fire, and he did not see whether or not a fire had dropped through a down light or not onto the couch. Further, he said that he did not see a broken globe close to the couch on the morning of the fire. His evidence was that the fire had commenced for a little while, as he observed it, at the time when he first noticed the couch through his left lateral vision.
Mr Foster did not enter the ceiling cavity of the Club premises, and was not in a position to observe whether the computer room was or was not already on fire.
Foster observed the fire burning on the couch for only about one or possibly up to two minutes, during which time he called the fire brigade. On his evidence, this activity in itself occupied about a minute. At this time he was in a state of some anxiety, although he maintained self-control. He then proceeded to leave the building.
Mr Foster’s evidence is corroborated by the Incident Log maintained by the Katoomba Incident Control Office, which is admissible as a business record. It records a building fire at the Moama Bowling Club being reported by a call made at 04:28:10 am. The call is reported as being “Assigned” at 04:29:49 am, one minute 39 seconds later. The timing of this incident report accords with Mr Foster’s evidence that he first entered the premises at approximately 4.25 am.
Based on the handwritten diagram prepared by Mr Foster for the police after the fire dated 27 June 2008, when considered alongside the scaled plan of the Club premises which was also in evidence, at the time when he observed the fire on the couch, Mr Foster was approximately 20 metres from the seat of the fire. He did not move closer than this before leaving the building.
At the time of the fire Mr Foster was not able to say whether the Floodlights illuminating the display board were on or off. Indeed, he gave no evidence as to any observations he made about the Floodlights at all during the short period he observed the fire. In particular, he gave no evidence as to the physical state of the Floodlights and whether the globe in either of the Floodlights had shattered or either had been damaged in any way.
During the period of his observation, Mr Foster did not see the ceiling itself on fire, and apart from this, gave no evidence as to any observations he made about the ceiling during the short period he observed the fire.
Expert Evidence
The first body of concurrent expert evidence called addressed the question as to the origin and cause of the fire which occurred at the Moama Bowling Club on 26 June 2008.
For this purpose the experts in the First Conclave assumed the following facts, which I find established by the evidence to have existed at the time of the fire:
1.The ceiling lining in the foyer, the walkway and the reception areas was plaster board suspended on folded steel channels. The plaster was sealed in place. The significance of this is that the plaster ceiling provides a higher fire resistance rating than is typical for removable ceiling-panel construction.
2.The ceiling lining in some regions in the bistro area had removable acoustic ceiling tiles supported by a suspended steel frame.
3.There was a round ceiling atrium, lined by plaster board, in the Bistro area that was higher than the removable acoustic ceiling tiles.
4.At the junction of the plaster ceiling board with a vertical surface, hard plaster cornices and coving was installed.
5.The thickness of the ceiling plaster was not reported, but was 12 mm or maybe more.
6.The cornices and coving along the eastern window wall had a significant height of about 500 mm.
7.There was a horizontal step and a linear air register extending the full length of the eastern window wall underneath the cornice and coving.
8.12V dichroic lights were installed in the horizontal step immediately above the eastern window wall. These 12V dichroic lights, had been disconnected whereas other 12 V dichroic lights in the foyer, walkway, bistro and reception areas had not been disconnected. These other lights may or may not have been on.
9.The plaster ceiling and the acoustic panel ceiling were penetrated at intervals by 12V dichroic lights, speakers and air registers.
10.There were 12V dichroic lights installed in the ceiling over the trafficable parts in the foyer, bistro, walkway and reception areas.
11.There were ‘cold-cathode’ (“neon tube”) lights installed in an alcove at the top of the cornices along the eastern window wall and on the cornices on the western side of the walkway. These lights were on.
12.There was a display board built between two round structural columns that was located close to, and mid-way along the eastern window wall.
13.There were two flood lights (the Floodlights) that illuminated the display board. These Floodlights were on.
14.There was a gap of about 400 mm between the eastern wall windows and the display board outer surface.
15.The display board was in two parts. The upper part had presentation frames attached to it. The lower part, which was about 800mm high, was deeper than the top part and was built directly onto the floor.
16.Both parts of the display board had a timber frame and were covered on one side only with a timber particle (chip) board and finished on that surface with a vinyl material.
17.The display board was positioned so that the air register above it was exposed along the top line of the display board.
18.The two Floodlights that illuminated the display board were on at the time of the fire.
19.There was no blow-in cellulose thermal insulation in the ceiling cavity of the lobby, reception, bistro and walkway areas. (The ceiling cavity is the space above the suspended ceiling and below the roof). The significance of this is that there is a known fire risk when blow-in cellulose insulation contacts or covers energized 12 V dichroic lights.
20.There was no blanket thermal insulation in the ceiling cavity. The significance of this is there is a known fire risk when blanket thermal insulation covers 12V dichroic lights or their transformers.
21.There were CCTV cameras affixed to the soffit of the ceiling at intervals throughout the building, although no video record is available from the CCTV cameras.
22.The heating/air-conditioning system was off. Therefore, there was no air being blown through the air-distribution ducts and registers in the ceiling space.
23.The fire was first seen by Mr Foster at the 2-seater couch which was positioned in front of the southern end of the display board.
24.The “V-burn” pattern of damage to the display board extends upwards from the joint between the top part and the bottom part of the display board.
25.The “V-burn” pattern spreads at the top, which is due to flames hitting the horizontal step and going sideways.
26.The base of the “V-burn” pattern coincides generally with the top of the rear cushions on the 2-seater couch.
27. The fire did not start as a result of arson.
The experts in the First Conclave agreed on the following facts and issues, which I find as facts:
1.The ceiling collapsed within an area that is illustrated on the following plan diagram. The ceiling collapse occurred (approximately) between the dotted line and the eastern window wall.
2.The collapsed section of ceiling as shown in the drawing above, could be due to fire damage or fire-fighting activity, or a combination of both.
3.The 2-seater couch (marked N on the Diagram) was alight at an early stage in the fire.
4.There are two possibilities for the origin of the fire. The first possibility is that the fire started on the couch. The second possibility is that the fire started at an undetermined location in the ceiling cavity.
5.The fire in the 2-seater couch (marked N on the Diagram) resulted from a hot or flaming object falling onto the couch. That is, there was no energy source inside the couch that could have caused the fire.
6. The energy source that started the fire was most-probably electrical.
7.There was probably no flashover fire. There is minor fire damage to the coffee table and the 2-seater couch (S in the Diagram). If a flashover fire occurred, these items would have exhibited a greater level of fire damage than was displayed.
It was also initially assumed by the experts for the purposes of giving their evidence that “The direct fire damage in the second-floor services/storage room was minor”.
However, on being presented with “after–fire” photographs of this area in the course of their examination by senior counsel for the Fifth Defendant, all agreed that the damage to this area was significant.
Findings of Fact Upon Which the Expert Evidence as to the Suitability of the Floodlights Proceeds
The second body of concurrent expert evidence called addressed the question as to the Fifth Defendants’ compliance with regulations in the selection and installation at Moama Bowling Club in July 2007 of the Floodlights and the associated lamps and the adequacy of the selection and installation.
For this purpose the experts in the Second Conclave assumed the following facts, which I find established by the evidence to have occurred before the time of the fire:
1.The Fifth Defendant supplied and installed electrical wiring between an existing power point located on the southern column adjacent to the display board, and two flood lights mounted on outreached steel conduits affixed to the display board.
2.The electrical wiring was 1.5 sq mm, 3 core flat thermoplastic insulated and sheathed cable (TPS), terminated at one end with a 3 pin plug top in the correct sequence (for connection to the power outlet) and run to a junction box mounted on the bottom plate of the display board.
3.The electrical wiring was continued from the junction box as two separate runs of 1.5 sq mm cable, one each to the two flood lights.
4.The electrical wiring was fixed flat to the rear of the timber frame of the display board using approved type cable clips.
5.Each run of the electrical wiring entered a steel conduit at the rear of the top of the display board and passed through the conduit and entered the terminal box of each flood light.
6.Each of the two floodlights was a Philips A500 Apollo flood light fitted with a 500 Watt quartz linear tungsten halogen lamp.
7.The Fifth Defendant connected the electrical wiring to the terminals of each flood light in the correct sequence.
8.The power outlet, into which the electrical wiring plug top was inserted, was switched ON.
9.The relevant person employed by the Fifth Defendant is a registered electrical contractor (REC).
10.The electrical installation for the flood lighting of the display board was done by a person holding the appropriate licence.
The experts in the Second Conclave agreed on the following facts and issues, which I find as facts:
1.The subject electrical installation is of a non-prescribed type. It follows that no-independent inspection was required. It was believed that a Certificate of Electrical Safety should have been issued for this work.
2.The electrical installation at the display board was required to comply with AS/NZS3000:2000 – Wiring Rules. Setting aside the obvious non-compliance of the termination of thermoplastic sheathed wiring in a 3 pin plug, as discussed below, the experts believed the remainder of the installation was compliant. Furthermore, a Note to Clause 1.4.43 of AS/NZS3000 draws attention to the limits of an electrical installation as defined, as being at the power outlet. It was believed that in this case the installation continues to and includes the flood lights.
3.The use of flat 1.5 sq mm TPS cable is not suitable for connection via a 3 pin plug top. The cable should have been of a flexible cord type, because of cable anchoring requirements, and flexibility.
4.The method of running the electrical wiring through the conduit and its termination in the flood lights was acceptable. This opinion applies whether or not the outer sheath of the TPS cable had been removed inside the conduit.
5.The television set had been removed from the display board at some time prior to the fire. The method of connection to a electricity supply was unknown to the experts.
6. The fastening of the flood lights to the conduit ends was effective.
7.There is no physical evidence upon which the experts could assess the correctness of the connections between the electrical wiring and the flood lights at the terminal blocks. The experts noted that the flood lights had operated for a considerable period of time.
8.The subject flood lights were non-prescribed equipment and therefore had to comply with AS/NZS3820:1998 – Essential Electrical Safety Requirements for Low Voltage Electrical Equipment, Clauses 4.1, 4.2, 4.3, and 4.5.
9.The subject flood lights failed to comply with AS/NZS3820:1998, Clause 4.2(c), which reads as follows:-
Electrical equipment shall comply with the following criteria:
(c)Persons and domestic animals shall be adequately protected against non-electrical dangers caused by the electrical equipment that are revealed by experience.
Note: Examples of potential dangers are flammable of explosive hazards that might arise from operation of the equipment, instability, vibration, falling or ejected objects …
The experts agreed that there is a risk that hot quartz fragments could be ejected should the lamp rupture, and that experience reveals that quartz halogen lamps occasionally rupture.
The experts agreed that Clause 4.21 of AS/NZS60598-1:2003 – Luminaires, contains advice that quartz halogen lamps should only be used in light fittings which are designed so that particles from a shattering lamp cannot impair safety or be ejected. This advice is not mandatory.
10.The “shovel” type of tungsten halogen luminaire without a protective glass or screen was a widely used form of floodlight still available in 2005.
11.The experts agreed that the packaging for the Apollo A500 floodlight indicates an intention for the unit to be used outdoors, but there are no markings on the unit itself to prohibit use indoors.
Mr Glover’s Evidence
Mr Glover was called by the Fifth Defendant. Mr Glover is an Advanced Fire Scene Investigator, endorsed by the New Zealand Fire Service and Country Fire Authority and by the Victoria Country Fire Authority in Australia. Mr Glover is the Gippsland Area’s CFA Fire Investigation Co-ordinator. Mr Glover has served in the fire service for 40 years and has held senior operational positions in fire services and fire authorities in New Zealand and Australia over that time. He was a fire fighter and officer with the New Zealand Fire Service for 35 years, retiring with rank Deputy Chief Fire Officer. From 2001 to 2006, in Victoria, he held the position of Officer in Charge of the Morwell Fire Brigade and was Regional Operations Officer of the Gippsland Area Country Fire Authority.
Mr Glover has attended over 10,000 fire scenes during his career either as a member of the fire fighting crew or as Incident Commander. As a fire scene investigator he has conducted over 5,000 fire investigations. Mr Glover holds fire service related qualifications including a Certificate 4 and Associate Diploma of Operational Fire fighting. Mr Glover has certified in senior operational certification qualifications from the New Zealand Fire Service and the Country Fire Authority, with a focus on fire scene investigations. He is a licensed private investigator, a member by examination of the New Zealand Fire Brigades Institute, an Endorsed Structural and Vehicle Fire Investigator (NZ) and a member of the National Association of Fire Investigators (USA).
It was Mr Glover’s opinion that the couch fire was a secondary or subsequent fire that occurred from debris dropping on it from above. The original fire initiated somewhere up in the ceiling space, slightly to the north of where the couch was located. Mr Glover said that there was a number of electrical items up in the suspended ceiling area, and that any one of those could have provided an ignition source. He said that those items were associated with the running of the building, including computer items, audio items, control areas of air conditioning and heating and the associated wiring and equipment. He said that the electrical power wasn't isolated to those items at the conclusion of the business day or evening and they were connected to an active power supply.
Mr Glover noted that there were many recorded cases of electrical items of those types that have faulted through a number of causes: warn out components, bad connections, electrical connections, arcing within the appliance.
He said that inside the roof area there would be ducting, PVC, plastic type ducting and PVC insulation on electrical cables other electrical items that may have been in the pathway of the fire. His opinion was that the pathway of the fire was towards the area of the couch, as it was possibly seeking oxygen, and would have been moving towards a possible opening in the external wall of the building behind where the couch was located. He said it would have been contained within the ceiling space for some time before it breached the ceiling, and we note that the ceiling over the lobby area. He said that the standard plasterboard in this area had a fire resistance rating of half an hour. It followed that a fire in the ceiling could exist for at least 30 minutes in that area before the fire would break through. The fire could feed on combustible materials that would have been up in the roof, and possibly didn't develop in any great fierce manner for some time until it broke out into the building.
Mr Glover explained that prior to joining the career fire service he was a volunteer fire fighter and during that time he served a cabinet making apprenticeship and continued afterwards in that trade. In the course of this work he built numerous couch and lounge suite frames. He described them as being built from softwood so that it assists the upholsterer in attaching staples and tacks a lot easier than a hardwood frame does. He concluded that the couch in question in this case was most likely built of a softwood timber which was easily ignited and would burn quickly. He described the couch as being upholstered with or padded with foam rubber which is a petroleum based product and it was upholstered with a synthetic material which again was a petroleum based product. Mr Glover described the average domestic lounge suite as containing the equivalent of between seven and 10 litres of petrol. This illustrated how quickly a fire could take hold of and destroy a couch or a lounge suite and the ferocity of that fire. Mr Glover concluded that the fact that the particular couch in question in this case was still well alight when the fire brigade arrived some 20 odd minutes later, according to the fire brigade report, indicated to him that that couch was not the first item to have ignited.
Mr Glover observed photographs that were taken by fire fighters shortly after they had extinguished the fire and before any scene disturbance had taken place. One photograph clearly shows the couch frame of the relevant couch. In Mr Glover’s view, there was far too much of that frame still remaining if that couch had been burning for any length of time before the fire was extinguished and was not therefore a likely origin of the fire. If it had been the origin of the fire, based on his experience of other fires where couches had been the origin of the fire, Mr Glover would have expected to have seen just the metal parts of the couch frame sitting on the floor.
Mr Glover also noted that on the display panel behind the couch there was a localised V shaped burn pattern in the panel, roughly aligned with where the couch was. He described the burn pattern as being a narrow V coming up from approximately the top of the couch. It extended out laterally at some point probably where it met a horizontal building member which influenced the fire development and the flame shape. Nevertheless the shape of the burn pattern clearly showed that it's burned up from the back of the couch.
Mr Glover described the display panel as being built from a lightweight pine frame and it was covered with MDF sheets of particleboard and covered on the surface available to view with a vinyl type material. It was constructed of materials which could be easily ignited and would burn quite readily. However, only a substantial burn pattern remained on the display board in the area just behind the couch. He said that the burn pattern would have occurred no matter what time during the fire that couch caught fire.
As to the evidence of Mr Foster, Mr Glover said that in his experience there were numerous fires that he had attended as either part of a fire crew, the officer in charge of the event or the investigating officer subsequent to the fire, where “the people have been sleeping in bed, have been sitting on the - on their couch watching TV and are totally unaware that there was a fire blazing in their ceiling until either the ceiling falls in or a neighbour comes running in and says, "Your roof's on fire", and they've been able to go around in the house quite safely, quite - quite at ease and remove items before the - before the fire got to a point where it was no longer habitable by humans so it's - it's quite possible that a fire, and quite common for a fire to be in the ceiling space and no one knows about it until it falls through”.
Mr Glover, having been shown the photograph of the burnt out computer room in the witness box, said: “I believe that it supports my opinion in that the fire initiated in the ceiling area and, um, although my - my report shows the area that I believed it was - started in was somewhat remote from this particular area, I then came back, after our conclave meeting, and - and believe that the fire started north of the position of the couch which places it roughly where this room that we're discussing now is, I believe. It also tells me that the - that the people who attended the scene initially while the scene was - was more intact, didn't appear to look beyond the - the area - the lobby area or the - or the couch area and didn't look at the scene as a whole”.
I find that Mr Glover’s conclusion as to the cause and origin of the fire was a plausible and possible explanation.
Mr Lee
The Plaintiff called Mr Russell Lee. Mr Lee is a consulting forensic and electrical engineer. He is the principal of Russell F Lee Pty Ltd, Consultants and holds a Master of Technology degree from Deakin University, a graduate Certificate of Fire Investigation from Charles Sturt University, a Grad Certificate of Engineering from the Institution of Engineers Australia, a Certificate and a Diploma of Electrical Engineering from Swinburne University.
Mr Lee’s area of expertise is the investigation and origin and cause determination of electrical fires as well as fires from other ignition sources, physical damage to communications equipment and alarm system failures, lighting accidents, electrical machinery failures and accidents, electrical equipment faults and failures, electric burns, shock and electrocution.
Mr Lee is accredited as a Chartered Professional Engineer, a Fellow and Member of the Electrical and Mechanical Colleges of the Institution of Engineers Australia, a member of the Illuminating Engineering Society of Australia and New Zealand. He is also a member of the International Association of Arson Investigators (USA), the Victorian Association of Fire Investigators (IAAI) and the Fire Protection Association of Australia. He has appeared as an expert witness in proceedings in VCAT and in the Magistrate’s, Coroner’s, County, Supreme and Federal Courts.
Mr Lee first attended the scene approximately a month after the fire on 21 July 2008. He then made his observations of various of artefacts extending from later in July 2008 right through into January of 2009.
Mr Lee agreed with Mr Glover that there can be instances of fires in ceiling spaces and occupiers being totally unaware of it until late in the event. However, he disagreed with Mr Glover’s conclusion as to the origin of the fire.
In Mr Lee’s opinion, the origin of fire was on the couch. He believed that a failure of a linear halogen lamp mounted and operating generally above that couch failed by rupture ejected significant shards of quartz at temperatures up to seven to 800 or 900 degrees centigrade onto the couch and that the fire was ignited by heat liberated from the shards.
Mr Lee said he was particularly drawn by the relatively small area of the base of the V burn pattern which in his view was established on the couch. The V burn pattern indicated to him generally where the fire burned longest. He read the scene as saying that the fire burned longest on the southernmost cushion of the couch which formed the base of the V burn pattern.
Mr Lee however also said that there were other possible sources of the ignition other than the two Philips Floodlights. He described extensive runs of neon tubing, or cold cathode tubing, that usually operate at voltages up to about 5000 volts. He said that they are known to produce arcs under failure of sufficient energy release to form an ignition. They were mounted in the ceiling. Mr Lee also looked for the remains of the transformers which would have served the cold cathode tubing lights. He was satisfied that those that he discovered were not involved, and that there was no evidence that the general lighting, other than the Floodlights, was a cause of the fire.
As to Mr Glover’s theory, Mr Lee said that for a fire which is in the ceiling space earlier in the vent than what was observed by Mr Foster, that is some ignition in the ceiling prior to Mr Foster's entry or during his entry, he would have expected to have seen evidence of additional drop down, that is evidence of plastic or combustible materials fastened to a ceiling ignite and fall in a dripping fashion. Mr Lee noted that Mr Foster made no mention about any view or observation of additional fires on that floor. Mr Lee said he would have expected additional fires from drop down in the bistro and lobby areas if there'd been a fire earlier in the event. For that particular reason he believed that the initiation of the fire and the origin of the fire was below ceiling level.
During his scene investigation, Mr Lee on that occasion did not have the opportunity to see the computer room in its damaged state. He explained this as being “not of great interest” to him at the time and because he “didn't consider it to be necessary to go in there”.
Mr Lee, on being shown the photographs of the burnt out computer room, while observing that the room “contains a number of items of equipment, any one of which could provide an ignition course” was not minded to alter his opinion as to the source of the fire. He said that it was “important to understand that a high fuel load does not necessarily indicate an origin of fire even though it may show significant damage”. Mr Lee concluded with the statement that: “observations of a fire scene need to be taken as a whole in determining the origin”.
In Mr Lee’s report prepared in September 2009, his theory as to the point of origin of ignition he stated was speculative, in the following passage:
The tests must be considered disappointing in that no firm indication of a quartz lamp was discovered. The factor coupled with the opinion of Barry Gartner that no arc melt occurred between the wiring and the support conduit as proposed by Murrihy, means that reliance for an ignition by a fractured lamp throwing hot fragments from the right hand lamp is speculative and must rest on the view of the principal witness Foster and the factor that no other viable ignition source was discovered in the origin of the fire. I note from the field report of the NSW Police Scene examiner Larkin that no electrical artefacts were discovered in the origin of fire at the couch. It remained for Murrihy to discover those. See his report. Were those artefacts in place when the police examiner was there and were not recognized for what they were, or were they there in debris not examined, or did they fall later? Murrihy is emphatic that they were under the couch and he shows them in position in his photographs 28 and 29 and the bracket is still up.
[Emphasis added]
In the witness box he clarified this statement as being ”speculative to the extent that [he] had found no shards of quartz at the scene”. He said that some pieces had been recovered, earlier, but he found none when he was there. Those items which he reported as having been found were discovered, so he said, underneath the left hand Floodlight on his understanding. However, in making this observation he was clearly relying on the hearsay evidence of Mr Murrihy, who was not called to give evidence.
I find that Mr Lee’s primary conclusion as to the cause and origin of the fire was a plausible and possible explanation.
Dr Hart
Dr Peter Hart was also called by the Fifth Defendant. He is a qualified electrical engineer and the principal of Hartwood Consulting Pty Ltd, an electrical and mechanical engineering consulting service. Dr Hart holds three degrees in electrical engineering from Monash University: a Bachelor of Engineering, a Master of Science in Engineering and a PhD in electrical engineering. The title of his PhD thesis in 1990 was Measurement and Application of Power System Equivalent Circuits.
Dr Hart’s areas of expertise and experience include industrial power systems, electrical safety, testing and assessment of electrical equipment, and product performance investigations. He has completed more than 250 electrical engineering assignments including electrical investigations and testing of the installation of fire appliances for Metro Melbourne Fire Brigade and over 100 investigations into fire causation in electrical equipment for regulators, manufacturers and in legal proceedings.
Dr Hart is accredited as an Associate Consultant on Electrical Safety with the National Safety Council of Australia, a Member of the Institution of Electrical and Electronic Engineers, and a signatory recognised by the National Association of Testing Authorities for electrical safety assessments under EN 60204, the uniform international standard which describes the safety of machinery and electrical equipment of machines. Dr Hart is an electrical safety consultant to Hydro Tasmania. He is also a Unisearch Associate on Expert Witness matters.
Dr Hart considered that there were two plausible explanations for the fire: one being that the fire started in the ceiling space generally on the window side beyond the bistro towards the window; and the second being that that one of the Floodlights ruptured and a hot piece of quartz landed on the couch. On balance Dr Hart considered that it was most likely that the latter occurred, but he could not exclude the former.
Dr Hart thought that there were plausible explanations for the fire starting in the ceiling space. He pointed to fixed wiring running to the lighting transformers and also wiring that runs to the, the cold cathode downlights. Ho observed that there was no complete inventory of the electrical equipment that was in the ceiling space.
Dr Hart said that fire damage was a very important indicator of potential fire initiation site. He said that he was no longer of the view that the initiation was in the ceiling area between the lobby and reception because his current understanding was that the ceiling generally survived in that area, whereas the ceiling failed closer to the, the window wall.
However, in the witness box, Dr Hart was shown for the first time photographs of the fire damage to the computer room. He said that this “certainly raises questions in my mind because I would like to understand why there is severe fire damage in this photograph” because “there has been a - what appears to be a hot fire in the computer room”. Dr Hart was not previously aware of this being the case.
Dr Hart further noted that the photographs of the burnt out computer room, while interesting to him, “create[d] more questions than they answer. If the fire started here, how did it get over to the, the couch?” Ultimately he concluded that he was unable to base firm conclusions on these photographs.
Dr Hart said that he was unaware of any photographs taken of the external roof of the building. Had there been such photographs available they could have been quite revealing because it was often the case that the fire first initiation point tends to cause the most damage to the iron roof of the building. However, that evidence was not available.
Uncertainties as to Fire Origin
Considering the evidence as a whole as to the cause and origin of the fire, there remain numbers of unknowns.
As Mr Lee said, taking the ceiling collapse in the lobby area as an example, it is not known what was pulled down and what fell down.
Mr Lee also said that this was a very complex fire scene, not only for its size but also for the arrangement and the changes in materials.
When Mr Lee was asked whether anything had occurred between September 2009 and today which would permit him to alter the view expressed in his report, he responded by saying that nothing else had occurred, concluding with the statement: “I can say nothing else other than … it's a speculation”. “The, the big problem was that people had trafficked it and the … difficulty of trying to isolate a piece. Even if I did find something it wouldn't be of … a significant size I would[n't] suspect”.
Dr Hart commented as to the absence of a photograph of the roof following the fire, in the context of this being potentially an important piece of evidence which may have aided the experts to pin point the cause and origin if the fire.
The Problem of Proof
Whether the tort of negligence has been made out must be decided in accordance with Pt X of the Wrongs Act 1958 (Vic) in respect of causation. The Part provides:
Division 3 — Causation
51 General principles
(1)A determination that negligence caused particular harm comprises the following elements —
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
52 Burden of proof
In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Degree of Persuasion
The High Court has emphasised that the ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.[3]
[3] Neat Holdings Pty Ltd v Karajan Holdings Pty (1992) 110 ALR 449, 450 (Mason CJ).
However, and equally in a civil case, proof on the balance of probabilities can only be arrived at upon the tribunal of fact following a process which results in it being persuaded to a reasonable level of satisfaction as to the existence of the fact. This has been elaborated thoroughly in the common law. As Dixon J said in Briginshaw v Briginshaw:[4]
[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.[5]
[4] Briginshaw v Briginshaw (1938) 60 CLR 336 ("Briginshaw”).
[5] Briginshaw v Briginshaw (1938) 60 CLR 336, 361.
Further, the degree of persuasion in relation to the issues, the burden of proving which lie upon the party asserting the same (in this case the plaintiff), depends on the nature of the issue.
Although the application of the approach of Dixon J in Briginshaw is not to be considered in the context of an allegation of arson or some other act of grave moral delinquency, for there was no such allegation here, nevertheless, the observations of his Honour as to the degree of persuasion required before a fact in issue can be found as a fact in a civil case generally, are applicable. On this theme, Dixon J observed in the oft-quoted passage on Briginshaw:[6]
[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[6] Briginshaw v Briginshaw (1938) 60 CLR 336, 362.
As Dixon J further observed in Briginshaw:
This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[7]
[7]Briginshaw v Briginshaw (1938) 60 CLR 336, 362-363.
A majority of the High Court (Mason CJ, Brennan, Deane & Gaudron JJ) in Neat Holdings Pty Ltd v Karajan Holdings Pty reinforced the Briginshaw approach in the following statement:[8]
[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.
Evaluation of Circumstantial Evidence
[8]Neat Holdings Pty Ltd v Karajan Holdings Pty(1992) 110 ALR 449, 450.
Much of the proof of the case presented by the plaintiff as to the cause and origin of the fire in the present proceeding depends upon an evaluation of circumstantial evidence. This arises because the direct evidence available to the plaintiff, namely the evidence of the security guard Mr Foster, is limited.
The High Court considered the assessment of circumstantial evidence in a civil case in Luxton v Vines.[9] This case involved a claim for damages for personal injuries where the plaintiff was struck by an unidentified car. On the question of proving negligence arising from circumstantial evidence, Dixon, Fullagar and Kitto JJ said:[10]
But this is a civil and not a criminal case. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise.
[Citations omitted]
[9](1952) 85 CLR 352.
[10] Luxton v Vines(1952) 85 CLR 352, 358.
Luxton v Vines was followed in Chamberlain v R (No 2).[11] In the joint judgment of Gibbs CJ and Mason J at 536 the following was said of the approach to the assessment of circumstantial evidence which should be applied in this country:
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence.
[Citations omitted]
[11](1984) 153 CLR 521 (the “Chamberlain case”).
Luxton v Vines was also followed by the Court of Appeal in Victoria in Transport Industries Insurance Co Ltd v Longmuir[12] and was cited by Nettle J in Berlyn v Brouskas.[13]
[12][1997] 1 VR 125, 141.
[13][2002] VSC 377 [32].
Where direct proof of a fact contended for is not available, the evidence in question in a civil case must be evaluated as a whole with a view to ascertaining "whether the evidence paints a picture to be derived from an accumulation of detail”. As was observed in Nicholson v Knaggs:[14]
In a civil case, when a court is asked to infer a fact from various items of circumstantial evidence, whether the inference is to be founded upon a chain of sequential reasoning and or an accumulation of circumstances from which the fact may be inferred, it must consider the combined or cumulative effect of the evidence and the totality of circumstances. This approach was emphasised by the Court of Appeal of Victoria in Nolan v Nolan in the joint judgment of Chernov and Eames JJA (Ormiston JA concurring):
Although the observations [as to the assessment of the totality of the circumstantial evidence] made by the High Court in Chamberlain (No. 2) and Shepherd were expressed in the context of criminal proceedings, the principles also have application in civil cases. Indeed, Tadgell JA explained in Longmuir that, both in the civil and criminal law context, the evidence in question must be evaluated as a whole and that the object of the exercise in a case such as the present, where direct proof of the disposition contended for is not available, is to ascertain "whether the evidence paints a picture to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details".
Reference should also be made to the observation of Buchanan JA (with whom Philips CJ and Charles JA agreed) in R v Huisman & Shiells that "the distinction between the evidence founding a chain of sequential reasoning and an accumulation of circumstances from which a fact may be inferred was explained metaphorically in Wigmore on Evidence, vol.9 para.2487, as the distinction between links in a chain and strands in a cable. See Shepherd v R and in R v Ng the Court of Appeal held: "It is the very essence of a circumstantial case that the items of evidence should not be examined in isolation, but must be considered in their totality".
This process of assessing circumstantial evidence is a matter of ordinary logic as much as common sense, just as much as it is the subject of authority.
[Citations omitted]
[14][2009] VSC 64 [44]-[45].
I will apply these principles in assessing the evidence called at the trial as to the cause and origin of the fire.
Conclusion as to the Origin and Cause of the Fire
Having examined the inferences to be drawn from the evidence as a whole going to the cause and origin of the fire, when considered in the context of the direct evidence of Mr Foster, as far as it goes, to my mind I am left with conflicting inferences of equal degrees of probability with the result that the choice between the possible causes is a mere matter of conjecture or surmise.
It is accepted, founded on the first hand evidence of Mr Foster, that the fire within the ground floor lobby area of the Moama Bowling Club premises originated on a couch placed in front of the display board on the eastern side of the premises situated close to the entrance doorway.
However, I do not find that it has been established by the Plaintiff that the fire was caused when the couch caught fire consequent on the globe in the Philips A500 Apollo Floodlight above it shattering and hot shards of glass ejecting and coming into contact with the couch. This remains no more than a possible cause of the fire.
The Floodlights installed by the Fifth Defendant had operated for approximately one year prior to the fire without apparent fault or mishap. Given that these lights were left on 24 hours in the day seven days per week, they produced about 8,000 hours of light during that time. The evidence was that halogen light globes of the type fitted to the Floodlights had a usual service life of about 2,000 hours. Accordingly, it is likely that there was at least one, and probably more, light globe changes carried out for the Floodlights, probably by a staff member of the Plaintiff, during that time.
At the end of the day, after standing back and considering the totality of the evidence, I am unable to draw an inference from the circumstances of the case, when considered in the context of the direct evidence of Mr Foster, which raise a more probable inference in favour of what is alleged by the Plaintiff, than not.
It follows that I have not arrived at the necessary degree of actual persuasion that the fire was initiated by the globe in the Philips A500 Apollo Floodlight shattering resulting in hot shards of glass ejecting and coming into contact with the couch.
Issue Two – Was the Fifth Defendant Guilty of Negligence?
Although in the light of my finding as to the cause of the fire it is strictly unnecessary to do so, because I am conscious of the professional reputational interest of the Fifth Defendant being at risk arising from the allegations of negligence made against it by the Plaintiff, I will proceed to make findings as to those allegations.
The question of whether there has been negligence in the execution of the relevant works depends on a breach of any extant duty of care owed at the time of the commission of the conduct complained of which causes foreseeable harm that is not too remote from the negligent acts as alleged.
Prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff.[15]
[15]See: Lord Atkin's statement of principle in Donoghue v Stevenson [1931] UKHL 3; (1932) AC 562, 580, as it has been refined in later decisions: Home Office v Dorset Yacht Co. Ltd.[1970] UKHL 2 [1970] UKHL 2; (1970) AC 1004, 1027, 1034, 1054, 1060; Anns v Merton London Borough Council (1978) AC 728, 751-752; See also Wyong Shire v Shirt(1980) 146 CLR 40 [1] (Mason J).
It has not been suggested that there were present in the instant case any considerations which negated the duty of care.
However, in deciding whether there has been a breach of the duty of care in this case the Court must first ask itself whether a reasonable man in the defendant's position (in this case a person acting on behalf of the Fifth Defendant company) would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the Court to determine what a reasonable man would do by way of response to the risk.
Assessing the reasonable man's response calls for a consideration, amongst other things, of the knowledge which a reasonable person in the position of the defendant would have been likely to have possessed at the time of the conduct in question which is alleged to have been negligent.
Knowledge gained at a later time, in this case coloured with the full benefit of hindsight including the occurrence of a disastrous fire, is not relevant to the negligence which is alleged.
That is to say one must ask: what a reasonable person in the position of the defendant would do by way of response to the then- identified risk. Not the risk which becomes appreciable to the reasonable person upon the realisation of said harm.
The authority for this point was set out clearly by Barwick CJ in Maloney v Commissioner for Railways NSW,[16] and continues to be good law.[17] In that case the Chief Justice said:[18]
Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. That matter must be judged in prospect and not in retrospect.
What the Fifth Defendant Knew and Ought to have Known
[16](1978) 18 ALR 147.
[17]Approved by the HCA in Wyong Shire v Shirt, NSW v Fahy (2007) 236 ALR 406.
[18](1978)18 ALR 147, 160 [139].
The contract to supply and install the Floodlights at the club premises in 2007 was made by the Moama Bowling Club with the Fifth Defendant, the Thomson Group Pty Ltd.
The Fifth Defendant was an electrical contractor. Those who worked for the company and managed its affairs were electricians.
In July 2007, the Plaintiff retained the Thomson Company to carry out electrical works at the Club premises. The works involved installing lighting above a large display board in the foyer of the Club premises near the Shaw Street entrance.
On 12 July 2007, the Thomson Company purchased two Philips Outdoor A500 floodlights from an electrical retailer in Echuca. Included inside the package of each Floodlight was a 500 watt tungsten-halogen lamp. The Floodlights were open-faced with no glass front or other protective device included in the package of either light.
The Thomson Company installed the Floodlights inside the Club premises above a large display board which was about 10 metres from the entrance doors at Shaw Street. The display board was made of particle board covered with vinyl, and spanned two columns. The particle board was supported on a pine timber frame standing close to, but in front of, the floor to ceiling north east glass wall.
The Thomson Company mounted the floodlights by attaching steel conduits to the back of the display board. The conduits projected outwards over the display board. The Floodlights were screwed onto the ends of the conduits and angled so as to illuminate the display board. The Floodlights were powered by an electrical cable running from a 240 volt general power outlet in the column near the right hand end of the display board.
The Fifth Defendant supplied and installed electrical wiring between an existing power point located on the southern column adjacent to the display board, and two flood lights mounted on outreached steel conduits affixed to the display board.
The electrical wiring was 1.5 sq mm, 3 core flat thermoplastic insulated and sheathed cable (TPS), terminated at one end with a 3 pin plug top in the correct sequence (for connection to the power outlet) and run to a junction box mounted on the bottom plate of the display board. The electrical wiring was continued from the junction box as two separate runs of 1.5 sq mm cable, one each to the two Floodlights. The electrical wiring was fixed flat to the rear of the timber frame of the display board using approved type cable clips. Each run of the electrical wiring entered a steel conduit at the rear of the top of the display board and passed through the conduit and entered the terminal box of each flood light. The Fifth Defendant connected the electrical wiring to the terminals of each Floodlight in the correct sequence.
Although there was some criticism by the experts of some aspects of the wiring of the Floodlights, none of the experts identified any breach of the Wiring Rules that was relevant to the fire at the Moama Bowling Club.
The relevant person employed by the Fifth Defendant was a registered electrical contractor (REC). The electrical installation for the flood lighting of the display board was done by a person holding the appropriate licence.
Each of the two floodlights was a Philips A500 Apollo Floodlight fitted with a 500 Watt quartz linear tungsten-halogen lamp. I accept that Philips was a reputable manufacturer and supplier of such equipment.
The packaging for the Philips A500 Apollo Floodlight indicates an intention for the unit to be used outdoors, but there are no markings or warnings on the packaging against the use of the unit indoors. The packaging for the Philips floodlight is marked “Outdoor” but does not contain any warning to the effect that it is only for outdoor use. The Philips floodlight itself also contains no warning and instead includes the statement: “NO UPWARD AIMING OUTDOORS”, which implies that the Philips floodlight can be used and aimed upwards indoors.
Similarly, the mounting instructions included with the Philips floodlight do not state that the lamp is not suitable for indoor installation. Indeed, the instructions show a “ceiling mount”, which implies that the lamp is suitable for indoor installation. The instructions also do not contain any warning against the linier tungsten halogen globe exploding.
The Philips A500 Apollo Floodlight was “shovel” type of tungsten halogen luminaire which was supplied without a protective glass or screen. This was a widely used form of floodlight still available in 2005.
Prior to installing the Philips A500 Apollo Floodlight in the Moama Bowling Club, similar units had been professionally installed and used indoors in the Echuca cinema, to the knowledge of the Fifth Defendant.
Mr Brett Thompson was called to give evidence. He has been a qualified electrician since 1987. He said the following things of relevance to the present issue: the salient features of the evidence of Brett Thomson as to issues one and two were as follows:
· there are six small electrician businesses in the Echuca/Moama area;
· in selecting a light fitting and a globe he had been told that the light fitting and the globe was for the purposes of illuminating a noticeboard at the Bowls Club and he knew the dimensions of the noticeboard;
· the features of the light fitting and globe on which he focused were that it was inexpensive and that it was a wide-spread light;
· at the time of selection, he had never heard of tungsten halogen globes exploding;
· he considered the reference on the packaging to “outdoor” to be a reference to the fact that the light fitting was suitable for outdoor installation in order to withstand weather conditions;
· at the time of selecting this light fitting, he knew that open-faced light fittings had been installed previously in the Echuca cinema and were still in operation;
· he knew that a tungsten halogen lamp, and indeed any lamp, could pose a fire risk in respect of materials that were near it;
· he had never installed an accessory, a wire guard, on the Philips A500 lamp.
Mr David Long was also called to give evidence. Mr Long had been a proprietor of an electrical contractor business in Echuca/Moama for 32 years. He had undertaken training to be a registered electrical contractor which involved, among other things, a knowledge of the Wiring Rules. He said that in or about 2000, he installed a series of open-faced light fittings containing tungsten-halogen globes at the local Echuca cinema. In 2007, and previously, he had installed both external and internal light fittings containing halogen globes. He was able to obtain information for the products that he installed from local wholesalers: AWM, Middendorp and SwitchGear Direct. He had never obtained information in respect of floodlights containing tungsten-halogen globes, because he had been working with them since he started his apprenticeship and was aware of all aspects of them. He did not accept that there was a risk that halogen lamps could explode stating “No, I’m not aware of that”. In relation to a symbol with a notation inside a triangle found on the packaging of the tungsten globe supplied by Philips, he stated that he had not seen that symbol on a product he had installed.
Whilst the experts each agreed that the risk of a tungsten-halogen lamp exploding was not insignificant, none of the experts were aware of any statistics that indicated the likelihood of this occurring, and none ventured an opinion as to the general knowledge among electrical contractors in 2007 of the likelihood of this occurring.
An extract from a catalogue published by Philips’ Australian distributor, Pierlite, and produced by Philips in response to the Thomson Group’s subpoena contains an entry for the Philips floodlight under the name “Apollo”. Under the heading “Features”, the extract states:
Suitable for indoor and protected exterior applications.
The Philips Trade Price List dated March 1993 contains the following entry for the Philips floodlight under the heading “Commercial Floodlights”:
Apollo Halogen Flood Light
A compact open fronted lightweight halogen flood made of die-cast aluminium in powder coated brown finish. Suitable for indoor or outdoor applications. A wire guard is also available for areas where extra protection of the lamp may be required. Supplied complete with 500w Double Ended ‘Plusline’ Halogen lamp in an attractive coloured carton.
The Australian Trade Product Guide 2007/2008 published by Philips’ Australian distributor, Pierlite, contains the following entry for the Philips floodlight:
Apollo A500 a compact open fronted lightweight halogen flood made of die-cast aluminium in powder coated black finish. Suitable for indoor or outdoor applications. Supplied complete with 500w Double Ended ‘Plusline’ Halogen lamp in an attractive coloured carton.
The Plaintiff did not adduce evidence by subpoenaing any witness from Philips, or any another manufacturer, to speak to the question of risk or knowledge of that risk in the market place in 2007.
I am not satisfied that the Philips A500 Apollo Floodlight was a “luminaire” within the definition of AS/NZS 60598.1:2003 and therefore was required to comply with that standard. Dr Hart’s evidence was that AS/NZS 60598.1:2003 did not apply to the Philips floodlight because it is not a “luminaire”, as there defined.
In seeking to make out its case, on the question of negligence, the Plaintiff submitted that the risk of explosive failure of a tungsten-halogen lamp fitted to one of the floodlights inside the club premises was well known and foreseeable.
The Plaintiff relied upon the following matters:
(a)According to Mr Lee, the propensity for ruptured quartz halogen lamps to cause ignition was well documented. He referred to the work of Dr Babrauskas and to a statistical study undertaken by the Consumer Product Safety Commission (USA). Dr Babrauskas was and is a respected authority with respect to matters of fire safety, and fire ignition, and related forensic science, and his Ignition Handbook, published in 2003 has been a very useful and important reference. Mr Lee’s evidence as to risk was not confined to specialised knowledge drawn from Babrauskas. It was also based on personal experience over 50 years, and discussion with contemporaries and lighting engineers.
(b)The Second Joint Experts’ Report states the shared opinion of Messrs Hart, Lee and Lofthouse that experience reveals that quartz halogen lamps occasionally rupture. Their evidence in conclave was to the same effect. The risk of explosion was estimated by Dr Hart to be in the order of 2 to 3% of lamps installed.
(c)Dr Hart, Mr Lee and Mr Lofthouse all agreed that sound opinion from 2003 was that halogen lamps should not be installed in an open faced light fitting.
(d)The tungsten lamps (light bulb) supplied with the Philips floodlights came in packaging embossed with a symbol indicating that they were only to be used in a light fitting with a glass face. The meaning of the symbol could be readily ascertained by asking a wholesaler, or asking Phillips or using the internet. The symbol warned against the risk of particles from a shattering lamp escaping and impairing safety, the experts agreed. The symbol is an international graphical symbol.
(e)As early as August 2005, Philips published a brochure containing the following warning:
PAR HALOGEN CAUTION NOTICE: Before using bulb, see operating instructions on inside flap. Adherence to operating instructions will reduce the risk of personal injury or fire. The filament capsule contained inside this glass bulb is pressurized, operates at high temperature and could unexpectedly shatter. Should the outer bulb break, particles of extremely hot glass could be discharged into the fixture and/or the surrounding environment, thereby creating a risk of personal injury or fire.
However, the question is whether the Fifth Defendant knew or ought to have known of the risk of the tungsten lamp in the Philips A500 Apollo Floodlight shattering - with the result that, being an unguarded light fitting, it carried with it the risk of causing a fire.
What may have been known or appreciated by the experts is not directly in point. The question is what was known or ought to have been known by an electrical contractor in the position of the Fifth Defendant in mid-2007.
Although the statistical work of Dr Babrauskas published in his American text the “Ignition Handbook” in 2003 may have been a useful reference work for the experts, there is no evidence that it, or its contents, were generally known in the market place amongst competent electrical contractors in Victoria or New South Wales in mid 2007. Further, the Babrauskas text also has its shortcomings for present purposes. It makes reference to a statistical study conducted in the United States in respect of halogen lamps. The statistical study was not put into evidence, and the methodology of the study was not explained by Dr Babrauskas in his work. The types of tungsten-halogen globes that were the subject of the study, and in particular, how many if any of them were linier, is not set out by Dr Babrauskas. Further, the evidence establishes that tungsten-halogen globes operate at different voltage levels in the United States compared with those in use in Australia. Dr Hart considered that by reason of this difference, it is not possible to draw any firm conclusions from the statistics assembled by Dr Babrauskas and directly apply them to the rate of failures in Australia.
I am not satisfied on the evidence that the identified risk, both in terms of the magnitude of the risk and the degree of the probability of its occurrence, or indeed that it was recognised as a risk at all, was known or that it ought to have been known to an electrical contractor in the position of the Fifth Defendant in mid 2007.
Although some brochures and written material which was publicly available at the time which pointed to the risk being present, it was not published on the packaging of the Philips A500 Apollo Floodlight, nor was it available in any instructions or documentation which accompanied the unit, as it was supplied to the Fifth Defendant.
Further, I am not satisfied that the symbol which appeared on the packaging of the tungsten lamp supplied with the Philips A500 Apollo Floodlight in 2007 was well known or understood by electrical contractors in the position of the Fifth Defendant at the time.
It follows that, even if it was necessary to make a finding as to whether the Fifth Defendant was negligent in the selection, supply and fitting of the Philips A500 Apollo Floodlight in mid 2007, I would have found that the Fifth Defendant, and the persons connected with the Fifth Defendant who made or participated in the decision to select and install this particular Floodlight in the Moama Bowling Club, were not negligent.
Issue Three – The Contractual Warranties and Fitness for Purpose?
By reason of my findings as to the origin and cause of the fire, it is unnecessary for make any findings as to whether the supply and installation of the two open-faced Philips Apollo A 500 Floodlights inside the reception area of the Moama Bowling Club premises fitted with 500 watt tungsten-halogen lamp globes, were fit for purpose or breached any of the statutory warranties found in Part 2A of the Fair Trading Act 1999 (Vic) and Division 4 of Part 4 of Fair Trading Act 1987 (NSW) or s 74(1) of the Trade Practices Act 1974 (Cth).
Issue Four – Is the claim of the Plaintiff an apportionable claim and, if so, which of the proportionate liability regimes applies?
Again, by reason of my findings as to the origin and cause of the fire, it is unnecessary for make any findings as to whether, the claim of the Plaintiff is an apportionable claim and, if so, which of the proportionate liability regimes applies.
Orders
Subject to hearing further from the parties, should it be necessary to do so, I propose to make the following orders:
1.The Plaintiff’s proceeding as against the Fifth Defendant and the other Defendants is dismissed.
2. The Plaintiff is ordered to pay the costs of the Fifth Defendant.
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