Moama Bowling Club Ltd v Thomson Group Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0028

MOAMA BOWLING CLUB LTD (ACN 001 046 939)

Appellant

V

THE THOMSON GROUP PTY LTD (ACN 087 958 254)

Respondent

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JUDGES:	NETTLE, TATE and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 September 2014
DATE OF JUDGMENT:	3 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 245
JUDGMENT APPEALED FROM:	Moama Bowling Club Ltd v Thomson [2013] VSC 744 (Vickery J)

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TORTS – Causation – Whether fire in appellant’s premises proved to be caused by explosion of lamp in Philips A500 open faced quartz halogen floodlights supplied and installed by respondent – More than one possible cause of fire – Whether proved that one cause more likely than another.

NEGLIGENCE – Professional negligence – Whether registered electrical contractor negligent in failing to be aware of risk of explosion posed by open faced quartz halogen floodlights and, therefore, in supplying and installing same in appellant’s premises.

SALE OF GOODS – Statutorily implied warranties – Fitness for purpose – Whether Philips A 500 open faced quartz halogen floodlights fit for purpose for which respondent supplied them – GoodsAct 1958 (Vic), s 19(a).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R M Garratt QC with Mr T R Messer	Hall & Wilcox
For the Respondent	Mr P H Solomon QC with Mr P H Wallis	Norris Coates

NETTLE JA
TATE JA
BEACH JA:

This is an appeal from a judgment given in the Common Law Division. The appellant’s claim below was for damages suffered as a result of a fire which occurred at its premises on 26 June 2008. The appellant contended that the fire was caused by the explosion of one of two tungsten halogen lamps fitted in two floodlights installed above a display board in the premises. The respondent was an electrical contractor which supplied and installed the two floodlights in 2007. The appellant contended that the respondent was negligent in the selection of that type of floodlight for installation indoors; negligent in the manner in which it installed the floodlights; and, further or alternatively, guilty of breach of contract in supplying floodlights that were not reasonably fit for the purpose for which they were supplied.

The judge rejected all aspects of the appellant’s claim. His Honour was not satisfied on the balance of probabilities that the fire was caused by either of the floodlights. He considered that there were two plausible but conflicting inferences as to the origin of the fire and that each was of equal degree of probability. His Honour was also not satisfied that the respondent was negligent in the selection or installation of the floodlights. He found that there was insufficient evidence to establish that the risk of the lamps exploding was known or ought to have been known to an electrical contractor in the respondent’s position in 2007. His Honour said that, in those circumstances, it was unnecessary for him to determine whether the respondent was guilty of breach of contract.

The evidence below

The evidence as to the cause of the fire was in large part given by one eye-witness, Mr Foster, and three expert witnesses, Mr Lee and Dr Hart (who were called by the appellant) and Mr Glover (who was called by the respondent).

(i) Mr Foster

Mr Foster was a security guard at the premises. At approximately 4.25 am on 26 June 2008 while on his external rounds he arrived back at the Club in order to open it for the cleaner. Upon entry, he found that the two seater couch positioned below the floodlights was on fire. He said that the fire was taking up most of the two cushions of the couch and was consuming some of the squab. He used his mobile telephone to call the fire brigade but, by the time the brigade arrived at 4.40 am, the premises were well alight. By the time the fire was ultimately extinguished, the premises had sustained extensive damage.

The judge noted that there were a number of gaps in Mr Foster’s evidence:

1)Although Mr Foster’s evidence established that the couch caught fire, it stopped short of identifying how the couch caught fire.
2)Mr Foster did not see whether the fire dropped onto the couch from the ceiling cavity or went from the couch up to the ceiling.
3)Mr Foster did not enter the ceiling cavity and he was not in a position to observe whether other parts of the building were on fire.
4)Mr Foster observed the burning couch for only about one or two minutes and, although he maintained self-control, he was in a state of some anxiety.
5)When Mr Foster first observed the burning couch he was standing approximately 20 metres away and he never moved any closer.
6)Mr Foster did not observe the physical state of the floodlights and in particular whether the lamp in either floodlight had shattered or was otherwise damaged, or at least gave no evidence as to any observation he made of that.
7)Mr Foster did not see whether the ceiling was on fire or at least he gave no evidence as to any observations he made of the ceiling.

(ii) Mr Lee

Mr Lee was a consulting forensic and electrical engineer whose area of expertise was in the investigation of the origin and cause of electrical and other fires. He first attended the scene approximately one month after the fire. In his opinion, the origin of the fire was the couch and the couch had been set alight when one of the two floodlights exploded and ejected shards of quartz at temperatures of up to 900 degrees centigrade onto the couch. Mr Lee said that he was particularly drawn to the conclusion that the couch was the seat of the fire because of the relatively small area of the base of the inverted V burn pattern which he observed on the display board contiguous to the couch. It indicated to Mr Lee that the fire burned longest on the southernmost cushion of the couch.

Mr Lee said he discounted the possibility of the fire having begun in the ceiling cavity because, if that had been the case, he would have expected Mr Foster to see evidence of plastic or combustible materials falling from the ceiling in a dripping fashion, and evidence of additional fires from dropdown in the bistro and lobby areas of the premises. He said that the absence of evidence of dropdown signified that the origin and initiation of the fire was below ceiling level.

As the judge noted, however, Mr Lee’s opinion was subject to a number of qualifications:

(1)In his report prepared in September 2009, some years before the trial, Mr Lee stated that:
[The fact that] no firm indication of a quartz lamp was discovered. … 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 fact that no other viable ignition source was discovered in the origin of the fire…[1]
(2)In evidence, he accepted that there were possible sources of ignition other than the floodlamps. They included extensive runs of neon tubing, or cold cathode tubing, which usually operates at up to 5000 volts and is known to produce arcs under failure of sufficient energy release to result in ignition. There were also low voltage lamps served by transformers installed in areas of the ceiling. Mr Lee said that he had looked for the remains of transformers which would have served the cold cathode tubing lights or low voltage lamps and found no evidence that the general lighting other than the floodlamps was the cause of the fire. But, of course, as Mr Lee acknowledged, significant parts of the roof cavity electrical equipment, including roof transformers, had been totally destroyed by fire.
(3)He did not have the opportunity during his visit to the scene to see the computer room in its damaged state and he did not examine the ceiling cavity as such. Indeed, he did not inspect any of the first floor of the premises, from which there were good vantage points from which to inspect the ceiling cavity. He said that he stayed on the ground floor and looked up to the ceiling.
(4)On being shown photographs of the burnt out computer room, which he had not seen before, he observed that the room ‘contains a number of items of equipment, any one of which could provide a source of an ignition course’. But he said that he was not minded to alter his opinion that the source of ignition was an exploding lamp in one of the floodlights because, although the computer room comprised a high fuel load, a high fuel load and the source of the fire were not necessarily the same thing.
(5)Although, when asked in evidence about the fact that he had acknowledged in his report that reliance for an ignition by a fractured lamp throwing hot fragments from the right hand lamp is speculative, he said that by ‘speculative’ he meant he had not found shards of quartz at the scene.
(6)There was no evidence of any shards of quartz being found at the scene.
[1]Moama Bowling Club v Thomson [2013] VSC 744 (Vickery J) [108] (emphasis added) (‘Reasons’).

(iii) Dr Hart

Dr Hart was an electrical engineer whose areas of expertise included industrial power systems electrical safety, testing and assessment of electrical equipment and product performance investigations. He considered that there were two plausible explanations for the fire: either that the fire started in the ceiling space generally on the window side beyond the bistro towards the window or that one of the floodlamps ruptured causing a hot piece of quartz to land on the couch, although he said that it would need to have landed between the cushions in order to ignite the couch. On balance, he considered that a ruptured floodlamp was the more probable cause, but he could not exclude the possibility that the fire had started in the ceiling cavity.

The judge noted that Dr Hart’s opinion was also subject to a number of qualifications:

(1)When shown photographs of the fire damage to the computer room – which he had not seen before giving evidence — 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’. Before giving his evidence, Dr Hart had not been aware that there had been a ‘hot’ fire in the computer room.
(2)Dr Hart also noted that the photographs of the burnt out computer room ‘create more questions than they answer. If the fire started here, how did it get over to the couch?’ He said that he could not base any firm conclusions on the photographs.
(3)Dr Hart said that, if any photographs had been taken of the external roof, they would have been quite revealing: because the first initiation point tends to cause the most damage to the iron roof above it. He was not aware of any such photographs having been taken.

(iv) Mr Glover

Mr Glover was a licensed private investigator and an Advanced Fire Scene Investigator endorsed by the New Zealand Fire Service, the Country Fire Authority and the Victoria Country Fire Authority in Australia. He was also Gippsland Area’s CFA Fire Investigation Co-ordinator with 40 years of senior operational service. He considered that the couch fire was a secondary or subsequent fire which came about when debris dropped from the ceiling cavity above. In his opinion, the original fire initiated somewhere up in the ceiling space, to the north of where the couch was located. He said that there were a number of electrical items in the ceiling cavity and that any one of them could have been the source of ignition. They included computer items, audio items, control areas of air-conditioning and heating and associated wiring and equipment and lighting.

Mr Glover added that the average domestic couch contains combustible material equivalent to between seven and 10 litres of petrol and, in his opinion, that illustrated how quickly a fire would be likely to have taken hold of the couch and the ferocity of the fire. He considered that the fact the couch was still well alight when the fire brigade arrived some 10 minutes after the alarm was sounded showed that it was not the first item in the premises to catch alight. Based on the photographs of the couch which were taken by the fire fighters, Mr Glover considered that there was far too much of the frame not consumed by fire for it to have burned for any length of time before being extinguished.

The judge noted that Mr Glover’s opinion changed in the course of giving evidence. When shown a photograph of the burned out computer room, Mr Glover said:

I believe that it supports my opinion in that the fire initiated in the ceiling area and, … although my — my report shows the area that I believed it … started in was somewhat remote from this particular area [of the computer room], I then came back, after our conclave meeting, and [I now] believe that the fire started north of the position of the couch which places it roughly where this room [the computer room] we’re discussing now is, I believe.[2]

[2]Reasons [95].

As Mr Glover explained, however, that change in opinion was the result of getting access to more of the photographic evidence than had originally been available to him and, although it altered his opinion as to where in the ceiling the fire started, it strengthened him in the view that it started in the ceiling rather than below it.

(iv) The Conclaves

There were two meetings or ‘Conclaves’ of expert witnesses. The judge noted that the experts in the First Conclave agreed on the following facts, which the judge accepted:

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.[3]

[3]Reasons [97].

The judge stated that the Second Conclave had found the following additional facts, which his Honour also accepted:

1.The subject electrical installation [scil. the installation of the flood lights] 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 an 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 or 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.[4]
[4]Reasons [84].

The judge’s findings

Based on the totality of that evidence, the judge concluded that he was left with conflicting inferences as to the cause of the fire, each of which was of equal probability, with the result that the choice between them was a matter of conjecture or surmise. As his Honour put it:

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.[5]

[5]Reasons [138]–[143].

The judge further found that he was not satisfied that the respondent had been negligent in the selection or installation of the floodlights because, although the experts agreed there was a not insignificant risk of a tungsten halogen lamp exploding:

none of the experts was 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.[6]

[6]Reasons [170]–[175].

The judge noted that the appellant relied on evidence of Mr Lee that the propensity for ruptured quartz halogen lamps to cause ignition was well documented — Mr Lee referred to work undertaken by Dr Babrauskas in the United States and a statistical study undertaken by the Consumer Product Safety Commission (USA) to which Dr Babrauskas referred — and that the Second Joint Experts’ Report stated that experience revealed that quartz halogen lamps occasionally ruptured. Dr Hart estimated the risk of rupture to be in the order of two to three per cent of lamps installed. The judge thus accepted that, from 2003, sound opinion was that halogen lamps should not be installed in an open faced light fitting of the kind fitted in this case. But, as the judge said, the question was not what was not known by experts or accepted by experts in 2003 as opposed to what was known or ought to have been known by the respondent 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.[7]

[7]Reasons [180].

The judge found that there were some brochures and written material publicly available in mid-2007 which pointed to the risk of halogen bulbs exploding, but his Honour said that:

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 were 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.[8]

[8]Reasons [182]–[184].

The judge was not satisfied that the respondent knew or ought to have known of the risk in 2007:

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.[9]
[9]Reasons [180]–[181].

Grounds of appeal

The appellant’s notice of appeal advanced seven main grounds of appeal, many of which contained numerous parts and sub-parts, to the effect that the judge erred by paying no or insufficient regard to various aspects of the evidence. At the outset of oral argument, counsel for the appellant also applied ore tenus for leave to add a further ground to the effect that the judge erred in finding that Australian Standard AS/NZS 60598.1:2003 was not applicable to the subject floodlamps. After some discussion of the delay which such an amendment might entail, counsel abandoned the application.

Accordingly, we shall deal with the matter by reference to the grounds of appeal in the order which they are set out in the notice of appeal.

Grounds 1 and 2

Under cover of Grounds 1 and 2, the appellant contended that the judge erred by paying no or inadequate regard to:

(a)the fact that Mr Lee inspected the fire scene whereas Mr Glover did not;
(b)what was said to be unchallenged evidence that inspection of the fire scene was of vital importance;
(c)Mr Lee’s opinion that the origin of the fire was to be assessed according to the physical evidence before having regard to potential sources of ignition;
(d)the fact that Mr Glover identified no point of origin of the fire and no source of ignition;
(e)the change in Mr Glover’s evidence as to possible points of origin;
(f)the fact, it was said, that Mr Glover’s evidence was critically dependent on his assumption that the couch was still burning when the fire brigade arrived, and there was no evidence that it was still burning when they arrived;
(g)the fact that Mr Foster did not see or hear a fire burning in the ceiling space and what was said to be the improbability of a fire being in the ceiling space if Mr Foster did not see or hear it; and
(h)the fact that Dr Hart concurred in Mr Lee’s conclusions.

Taking those matters in turn, we do not think the first and second of them to be of much significance. To start with, although it is true that Mr Lee was the only expert physically to inspect the fire scene, he did not inspect it until almost a month after the fire by which time the scene had been well and truly contaminated and a large part of electrical equipment (which conceivably could have been a cause of the fire) had been removed. Such advantage as was to be derived from physical inspection of the premises in those circumstances is problematic. Mr Lee claimed that it was a significant advantage. But, contrary to the appellants’ submission, his evidence on that point did not go unchallenged. In Mr Glover’s view:

I think Mr Lee attended the scene some time after it had all been started to be cleared away so none of us have the advantage of seeing the scene untampered with, except for the photographs that were taken by the fire fighters at the time.

Secondly, it is clear the judge was aware that Mr Glover based his opinion on photographs of the scene which had been taken by fire-fighters[10] — so did Dr Hart — and obviously the judge was aware of the limitations which that might have imposed on Mr Glover’s ability to determine the cause of the fire. But Mr Glover’s evidence did not stand alone. It fell to be considered in light of the opinions of the other expert witnesses and the results of the First and Second Conclaves. Seen in that light, it added significantly to the conclusion, accepted by all experts including Mr Lee, that there were at least two possible sources of ignition: the floodlights and an unknown source in the ceiling cavity consistent with the fire damage to the computer room.
[10]Reasons [91].

Thirdly, the judge specifically referred to the change in Mr Glover’s evidence and, accordingly, there is no reason to doubt that his Honour took it into account. Perhaps more importantly, given this is an appeal by way of rehearing,[11] we do not think that Mr Glover’s change of opinion at all assists the appellant. Although Mr Glover changed his mind about the position in the ceiling at which the fire originated, he did so, as we have said, as the result of being exposed to more of the evidence than had been available to him when he first expressed an opinion on the subject. So far from undermining his opinion, exposure to the additional evidence served to strengthen him in the view that the fire originated from a source in the ceiling other than the floodlamps. As he said:

COUNSEL: Mr Glover, having now seen these photographs, what does that cause you to tell [h]is Honour in relation to the opinion you’ve previously expressed? --- 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.

[11]Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 124 CLR 118.

That aspect of Mr Glover’s testimony accords with logic and common sense and is convincing. The substantial fire damage to the computer room logically bespoke the possibility of a source of ignition other than the floodlamps, as both Mr Lee and Dr Hart acknowledged.

It is true Mr Lee said that, in his opinion, it was an insignificant possibility because a high fuel load does not necessarily indicate an origin of fire. But Mr Lee’s evidence on that point does not strike us as convincing. It looks more like an ad hoc excuse for failing to inspect the computer room and ceiling cavity when the opportunity was available:

COUNSEL: Mr Lee, now you’ve had an opportunity to see these photos, do you believe your investigation on 21 July might have been assisted by you entering and reviewing this room? --- It might have been, but at the time I didn’t think it was important to go into that room…
…
COUNSEL With the benefit of hindsight, do you accept that the completeness of your investigating might have been assisted by attending at or in the computer room or otherwise the ceiling cavity on the day of your inspection? --- Um, no, um, as I said, I had already, um, discounted that area. It was not an area of interest to me because my views of the whole bistro area, ah, I was of the opinion that what had occurred over that side of the building was secondary damage. I was influenced also by the quantity of material in that room and the, ah, effect [of] an increased fuel load. It’s important to understand that a high fuel load does not necessarily indicate an origin of fire even though it may show significant damage. It needs to be read – it’s a bad word to say you’re reading a fire scene, but the observations of a fire scene need to be taken as a whole in determining the origin.

Of course, we have not had the advantage of hearing and seeing Mr Lee give his evidence. That might make a difference to our perception of his opinion. But we derive some assurance in that respect from the fact that our perception of his evidence appears to accord with the judge’s assessment based on his Honour’s first hand observation of the witness.

Fourthly, it is true that Mr Glover’s opinion about the length of time that the couch remained alight was to some degree diminished by the absence of direct evidence that the couch was not still alight when the fire brigade arrived. It is also notable that the judge did not refer to that consideration in his reasons. But looking at Mr Glover’s opinion overall, as the judge plainly did, it will be seen that it was based on a good deal more than whether fire-fighters observed that the couch was alight when the fire brigade arrived. So far as the couch was concerned, it is apparent that Mr Glover’s opinion was predominantly based on what could be seen remained of the couch in the photographs of the fire scene taken by the fire-fighters after the fire had been extinguished:

Based on my interpretation of the various reports and photographs provided to me, and recalling my extensive operational firefighting experience, I do not believe the couch was the first item ignited.
I base this opinion on the fact that there was still a substantial amount of the wooden couch frame still available after the fire had been extinguished (see photos 6 & 7 of the Murrihy report) yet substantial fire damage had occurred to large rooms adjacent to the foyer where the couch was positioned (see attached photos 17-20).
The couch was described as being padded with a foam rubber material upholstered with a synthetic material, both of which are petroleum based products which ignite easily and burn intensely, in fact in the average modern lounge suite there is the equivalent of 7-10 litres of petrol, which accelerates the fire in the area of the lounge suite, usually totally destroying the suite including the wooden frame.
In my 40 years Fire Service career, I have attended numerous fires involving all types of buildings which had lounge suites in various rooms.
It had been my experience that when a couch or chair, upholstered with a synthetic material over foam rubber, was proven to have been the origin of the fire, they had been totally destroyed, whereas they were usually damaged to a lesser degree if they were not the origin of the fire (see attached photographs 1-11).
It is usual, but not always the case, for the items first ignited at the point of fire origin to display a noticeably greater level of fire damage as they had been burning for longer than any other part of the building, and that is particularly so when the items first ignited were constructed from highly flammable materials, such as the ‘couch of interest’ in this case.
In the case of the fire in the bowling club, if, as alleged by Mr Murrihy, Mr Lee and Mr Cousins that the couch had been the first item ignited I would have expected the couch to have been totally destroyed along with the display board positioned directly behind the couch.
You will note in photographs taken by Mr Murrihy and in photo 12 appended to this report, there is still a substantial amount of the wooden couch frame and the display board still present after the fire had been extinguished.
I have discussed the couch construction and materials used, and I note the display board was also constructed from combustible materials and the front was covered with a vinyl material, which again is a petroleum based product, yet only part of the display board was destroyed, and that was the section directly behind the couch (see attached photos 12 & 13 and Figure 4 and Photos 4 & 5 of the Murrihy report).
The notation of the radio message from the initial firefighting crew to enter the building where they comment ‘Lounge in reception well alight’ suggests that while the couch was still burning at the time the fire crew entered the building, a significant fire had already taken hold elsewhere in the building in order for the adjoining rooms to be destroyed and structure collapse to occur to the degree shown in Photos 17-21 appended to this report.[12]

[12]Report [5.1].

Counsel for the appellant submitted it was apparent that Mr Glover tailored his evidence to accord with Dr Hart’s suggestion of the possibility of a ‘trickling fire’ or ‘creeping fire’, as opposed to a well-established surging ceiling fire of the kind to which Mr Glover had referred in his first opinion. But the difficulty with that suggestion, as counsel for the respondent pointed out, was that Mr Glover was in fact the first expert witness to articulate the possibility of a creeping fire:

COUNSEL: Well from that initial point which you’ve identified at N7 [near the computer room] on the plan, how do you say the fire progressed in your opinion? --- Ah, it would have been contained within the ceiling space for, for some time before it, ah, breached the ceiling, and we note that the ceiling over that, ah, lobby area was, ah, plasterboard - - -
COUNSEL: Yes? --- - - - which, um, standard plasterboard has a fire resistance of half an hour. That would have been possibly a thicker board than a more domestic one in that application. So we’re looking at a fire resistance rating of, um, at least 30 minutes in that area before the fire would break through. Um, the fire could feed on, ah, combustion materials and could have been up in the roof, and, um, possible didn’t, ah, develop in any great fierce, um, manner for some time until it, it sort of broke out into the building.
COUNSEL: And at what point did it break out and where? --- Well it, ah, I believe that the fire had, um, extended across the ceiling towards the, where it was in the bistro and those other larger areas that are, that are adjacent to the lobby area, and I based that on, ah, the photographs that I’ve seen taken by the others of the, um, substantial fire damage and, the drop down structural damage from those ceilings compared to the area that we were looking at in the lobby.

Later, Dr Hart came to a similar conclusion:

I think we’re having a discussion about whether there was a raging fire in the ceiling space or whether there was a creeping fire along a plastic duct. We don’t know the nature of the ducts, whether they were modern or whether they had fire retardancy or whatever. I believe that fires do occasionally crept(?) along ducts. If the fire was a raging fire, I think it would have been obvious both from the noise and also from some drop down/lighting, light escaping from around the 12 volt lights so I think, - and I’ve previously said that I think it’s possible that the fire started in the ceiling space so that – the implication would be – it was a creeping fire that somehow reached the eastern window wall and it probably came along a duct because there’s nothing obvious – obviously going to transmit it other than, I think, a duct.

In our view, therefore, the possibility of a creeping ceiling cavity fire presented as a distinctly plausible explanation of the mechanism by which fire may have moved from the source of ignition close to the computer room to the section of the ceiling above the couch in the lobby.

Fifthly, we accept it is significant that Mr Foster did not perceive any signs of a fire in the ceiling cavity. His evidence on the point was as follows:

COUNSEL: I want to now take you back to the fire that you saw. For how long were you observing the fire on the couch that evening? --- For around a minute, by the time that I was on the phone with the fire brigade.
COUNSEL: And how high were the flames that evening, that you saw, during the period of your observation? --- They started off as, I couldn’t give an exact height, but from the ceiling, like, they weren’t touching the ceiling at that point. They were probably at least that far from the ceiling.
HIS HONOUR: You’re indicating, what, about half a meter? --- About half a meter, and changing, because the flames were flicking, but it would be within half a meter, maybe up to 70 centimetres from my initial time of seeing the fire. And whilst on the phone with the fire brigade, the flames had started to catch the noticeboard on fire and also had reached the ceiling by the time I had gotten off the phone with the CFA and the flames were actually touching the ceiling.
COUNSEL: During the period of observation, was the ceiling itself on fire? --- No.
COUNSEL: Did you see any other source of fire, apart from the fire on the couch? --- No.

As the judge noted, however, Mr Foster did not see any damage to the floodlights either, or even if they were switched on or off, and he did not undertake any examination of the ceiling or the ceiling cavity. He could not say whether or not the computer room was already alight. He was stressed and under pressure and, understandably, as soon as he saw the couch alight, his principal focus was on calling the fire brigade. He observed the fire for only one or two minutes, two at most, and he was standing at a considerable distance from what he could see of the fire. He did not go into other areas of the building and, in particular, he did not go to the area of the ground floor below the computer room where Mr Glover conjectured the fire began.

In those circumstances, we think it is unlikely that Mr Foster would have been looking or listening with the kind of concentration required to perceive the indicia of roof cavity conflagration identified by experts like Mr Lee and Mr Glover. As Mr Glover observed, laypersons are often unaware of the signs and sounds of fire:

I go back to my point earlier that there’s been numerous fires that I’ve attended as either part of a (indistinct) fire crew, the officer in charge of the event or the investigating officer subsequent to that 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’, …it’s quite possible that a fire, and quite common for a fire to be in the ceiling space and no one know about it until it falls through.

Finally, the fact that it might be said that there was a concurrence in views expressed between Dr Hart and Mr Lee is not of course determinative. The issue of causation is not to be determined by reference to the number of witnesses for or against a proposition, but rather by the proper analysis of the whole of the evidence to which we have referred.

In the result, we reject Grounds 1 and 2.

Ground 3: Adequacy of Reasons

Under Ground 3, the appellant contended that the judge failed to give adequate reasons as to why Mr Glover’s final hypothesis was plausible.

We reject that contention. As has been seen in the sections of the judge’s reasons already referred to, his Honour went to considerable lengths in identifying and explaining the evidence in support of each of the competing hypotheses and, therefore, why each of them was to be regarded as a plausible, possible explanation of the cause of the fire. That accorded with Dr Hart’s opinion that there were two possible explanations for the fire; with Mr Lee’s concession that electrical equipment in the ceiling cavity malfunction was a possible cause of the fire; and with the First Conclave’s conclusion that there were two possibilities for the origin of the fire: the couch and an undetermined location in the ceiling cavity.

In our view, too, it accorded with logic and common sense. Once it was seen that there was extensive damage to the computer room, and it was recognised that the fire could have started in the ceiling cavity as a result of the failure of one or more of the electrical fittings which were no longer available for inspection, there was potentially just as much chance that the fire started there as it did with the floodlights over the couch.

Ground 4: Error in holding that MBC had not established its case

Under Ground 4, the appellant contended that the judge erred in holding that the appellant had not established its case that the fire started when shards of hot quartz fell from the floodlights onto the couch below.

We do not accept that contention either. Apart from the considerations already mentioned, it is apparent that there were a large number of gaps in the appellant’s case. To start with, the only contemporaneous investigator of the fire scene was Mr Murrihy. As was earlier noted, Mr Lee did not go to the scene until almost month after the fire and by then the scene had been significantly compromised. It was accepted that Mr Murrihy was not available to give evidence and that nothing was to be made of the fact that he was not called. But it remains that there was no one called who was able to give first hand evidence of the condition of the building immediately after the fire.

Secondly, there was no evidence of any scientific testing of a couch like the one in question in order to show whether and how easily it would ignite if sprayed with quartz by an exploding halogen tube and, if it ignited, how quickly it would burn. The whole mechanism of ignition was largely speculative albeit based on an informed understanding of fires and general experience of fire scenes. There was an absence of precision in the identification of the materials within the couch and an absence of any reasonably rigorous scientific calculation of the probability of the postulated mechanism of ignition. There was little if anything to rebut Mr Glover’s opinion (based it would seem on many years’ experience) that, if the couch had been the source of the fire, it would have been consumed by fire to a far greater extent than shown in the post conflagration photographs. Indeed, there was very little apart from Mr Lee’s opinion and suppositions which would explain why the computer room was as badly destroyed as it was if in truth the fire started in the lobby over the couch.

Thirdly, there was a paucity of evidence as to the materials from which roof ducts and other fittings within the ceiling cavity were constructed. There was no evidence from which it might safely be concluded that the ductwork would have been unlikely to catch fire, or on the basis of which to discount the possibility identified by Mr Lee that the fire started with cold cathode neon tubes or low voltage lamps fitted across the ceiling or in one or other of the roof transformers later destroyed in the fire.

Fourthly, there was no evidence as to how much of the ceiling damage was apparent on the day after the fire — because Mr Murrihy could not be called — and there was no evidence of how much of the ceiling damage observed a month after the fire was caused by the fire as opposed to firemen pulling the ceiling down in order to attack the fire. There was evidence, however, given by Mr Glover, that it was the modern practice of firemen to pull down large parts of fire affected ceilings to ensure that the fire is not still burning inside the cavity.

Fifthly, there were no photographs of the state of the ceiling cavity, which it was said would have been of considerable assistance to the experts in either confirming or eliminating the roof cavity as the source of the fire.

Sixthly, there was no first hand evidence of glass or quartz shards of the kind which it was expected one would see if the floodlamps had exploded and showered quartz onto the couch below; and, as Mr Lee said, in the absence of evidence of that kind, his hypothesis that the floodlamps were the cause of the fire was necessarily speculative.

In the result, we agree with the judge that, although the possibility of floodlamp failure was a plausible source of ignition, so too was the possibility of ceiling cavity conflagration the result of some other kind of electrical failure; and the state of the evidence was such that it was not possible to say with the kind of conviction which is required that it was more likely than not that the floodlamps were to blame.

Ground 5: Risk of which Thomson and Co should have known

Under Ground 5, the appellant contended that the judge erred in holding that the risk of the floodlamps exploding was not one of which the respondent knew or ought to have known at the time of supplying and fitting the floodlights in 2007. The appellant relied in particular on the following:

(a)what was said to be unchallenged evidence of Mr Lee that the risk was well known and documented;
(b)evidence of Dr Hart, Mr Lee and Mr Lofthouse that the risk was well known by experience;
(c)the evidence of Dr Hart that explosive failure occurred in two to three per cent of lamps installed;
(d)evidence of Dr Hart, Mr Lofthouse and Mr Lee that, from 2003, sound opinion was against the installation of tungsten halogen lamps in unguarded light fittings;
(e)publication by Philips in August 2005 of a lighting brochure warning that tungsten halogen lamps might explode with a concomitant risk of fire;
(f)the risk was so well known prior to 2007 that it was referenced in the Australian Standard on luminaires;
(g)evidence that proper practice require electrical contractors to keep up with information concerning the products which they installed;
(h)the packaging of the floodlamp, which bore a symbol warning against its installation in an unguarded light fitting.

In our view, each of those propositions considerably overstates the position. Mr Lee’s evidence was not that the risk was well known but rather, as the judge noted, that there had been some recorded instances of exploding tungsten halogen lamps having started fires in the United States. Further, as the judge observed, the United States’ domestic electric power system operates at a different voltage to Australian systems and there was no evidence whether the experience in the United States was applicable to Australian conditions. There was no evidence that the risk was well known in Australia at the relevant time. Dr Babrauskas’ text on which the appellant relied was published in the United States. There was no evidence of the nature of its publication in this country, other than that it was consulted by experts, and no evidence that any other texts or materials referring to the risk were known to electrical contractors in this country at that time.

There was no direct evidence that the risk was known to electrical contractors at the relevant time. To the contrary, Mr Thomson, a director of the respondent and a qualified electrician since 1987, had never heard of halogen lamps exploding and had previously installed them indoors and was aware of them being installed by other electrical contractors indoors, including in significant numbers in the Echuca Cinema. Mr Long, a qualified electrician for almost forty years and the proprietor of his own electrical contracting business for the last 32 years, said that he was not aware of the risk and, at the relevant time, had been in the habit of installing floodlights of the kind in question indoors in the same way as the respondent.

The judge summed up the evidence on that point as follows:

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.[13]

[13]Reasons [180].

Nor did Dr Hart, Mr Lee or Mr Lofthouse, a onetime electrical contractor and later electrical engineer who was called by the appellant, say that the risk was well known by experience by 2007. Mr Lee said that the risk was known to him by reason of his experience. As the judge observed, however, that said nothing about the general state of knowledge among electrical contractors or more particularly about the general state of knowledge among electrical contractors in 2007:

Whilst the experts each agreed that the risk of a tungsten-halogen lamp exploding was not insignificant, none of the experts was 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.[14]

[14]Reasons [170].

Certainly, the risk of explosion was estimated by Dr Hart to be in the order of two to three per cent of lamps installed but, as the judge said, what may have been known or estimated by the experts like Dr Hart was hardly to the point. The question was what was known or ought to have been known by an electrical contractor in the position of the respondent in mid-2007 and there was very little evidence of that.

Additionally, as the respondent pointed out, to say that there was a risk of between two and three per cent across the board did not necessarily say a great deal about the risk of explosion of the type of tungsten halogen lamps which were supplied in the subject Philips floodlight boxes; or as to the period in use after which such lamps might be prone to explode; or as to whether there were any causes other than the inherent qualities of the lamps which were likely to be causative of the lamps’ observed propensity to explode.

As it was, the appellant failed to adduce any evidence of the sort which would ordinarily be offered as a basis for drawing a statistically meaningful assessment of the relative likelihood of a linier tungsten halogen lamp of the kind in question exploding when compared to other types of halogen lamps or incandescent globes, whether in 2007 or at all.

It is true there was evidence that, as early as August 2005, Philips published a brochure in the United States containing a warning as to the risks posed by tungsten halogen bulbs. As the judge noted:

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.[15]

[15]Reasons [177](e).

But, as the judge also observed:

(1)There was no evidence that the brochure was published in Australia and, we add, there was no evidence that what it said about the Par Halogen bulb was applicable to the Apollo Halogen Floodlight lamp.
(2)The Philips Trade Price List dated March 1993 contained 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.[16]
(3)The Australian Trade Product Guide 2007/2008 published by Philips’ Australian distributor, Pierlite, contained the following entry for the Philips floodlight:
Apollo A500 a compact open fronted lightweight halogen flood light 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.[17]
(4)The appellant 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.[18]

[16]Reasons [172] (emphasis added).

[17]Reasons [173] (emphasis added).

[18]Reasons [174].

It is correct that expert witnesses agreed that the floodlights failed to comply with AS/NZS3820: 1998, Clause 4.2(c). It provided that:

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 danger are … flammable or explosive hazards that might arise from operation of the equipment instability, vibration, falling or ejected object…[19]

The experts said that:
We agree that there is a risk that hot quartz fragment could be ejected should the lamp rupture, and that experience reveals that quartz halogen lamps occasionally rupture.

[19]Emphasis in original.

It is to be noted, however, there was evidence that Philips is an international manufacturer of world class reputation which it might readily be supposed would take steps to ensure that the products which it sells in this country comply with the standards of this country. If so, why should an electrical contractor in the position of the respondent in 2007 have reason to think that what Philips sold might not comply with Australian Standards. More specifically, given that the floodlights in question came boxed with the lamps included, with instructions for fitting the lamps in the floodlights once installed, why should an electrical contractor in the position of the respondent have considered that there was any risk of the lamps exploding and ejecting quartz particles, let alone such a risk that fitting those lamps in the floodlights would be contrary to AS/NZS3820: 1998, Clause 4.2(c).

We do not overlook that the boxes were marked as suitable for external installation. But there was no suggestion that they were not also suitable for internal installation. And, in any event, as each of the experts said, the risk of rupture and hazards of rupture were the same whether the light was fitted indoors or out (albeit that there may sometimes be bigger fuel loads indoors than out).

The experts also agreed that AS/NZS60598-1;2003 contained ‘advice’ that quartz halogen lamps should only be used in lights designed to stop the ejection of particles the result of shattering:

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 shattering a lamp cannot impair safety or be ejected. This advice is not mandatory.

As the judge observed, however, it was not established that AS/NZS60598-1;2003 necessarily identified a risk of explosion in the kind of floodlights in question. The Australian Standard applied to ‘luminaires’ and, in light of Dr Hart’s evidence, the judge found it was not established that the subject lights were luminaires:

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.[20]

[20]Reasons [175].

Otherwise, similar considerations apply here to as to AS/NZS3820: 1998 but with the additional observation, noted by Mr Lee (when responding to a leading question asked by counsel for the appellant as to whether the advice was ‘sound’), that:

The advice of course is sound, however, it’s stated with the benefit of hindsight because the standards and understandings have progressed. There’s been technical progress and there’s been a better understanding of the risk associated with particular events and so back in the early and mid-2000’s lamps were commonly used without any protection. Nowadays we would look at those lamps and say, well, that’s not good enough. Apologies, I thought that was off. So there’s an element of benefits of hindsight in that.

We are reminded of the observation of Gleeson CJ in Rosenberg v Percival:

There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated…[21]

[21](2001) 205 CLR 434, 441–2 [16] (citations omitted).

There is, too, a further consideration concerning AS/NZS 60598.1:2003 which appears to have arisen for the first time in the course of oral argument before this court. Clause 4.21.1. of the standard provides that:

4.21 Protective shield (tungsten halogen lamps)
4.21.1 Luminaires incorporating tungsten halogen lamps, without an integral outer envelope shall be fitted with a protective shield except when the lamp is:
— a mains voltage (general lighting source) replacement lamp; or
— a low pressure tungsten halogen lamp as specified in 9.1 of IEC 60357.

The appellant did not adduce any evidence at trial that the tungsten halogen lamps supplied by Philips as part of the boxed floodlights kits purchased by the respondent to fit in the appellant’s premises, and installed by the respondent in the floodlights as fitted, were not low pressure tungsten halogen lamps as specified in 9.1 of IEC 60357. Mr Thomson was asked in cross-examination whether he knew, but he did not know. Understandably, he assumed that what Philips supplied would be suitable. For all we know, they may have been although the case below appears to have been run on the assumption that they were not.

As to the idea that proper practice requires electrical contractors to ‘keep up with information concerning the products which they installed’, the only evidence as far as we can see was Mr Lofthouse’s answers to two leading questions asked by counsel for the appellant, as follows:

COUNSEL: I just wanted to ask you this, Mr Lofthouse, as a practising electrician how does one keep oneself up to date with information about products that you might be using? --- One can attend trade seminars, product launches, sales reps visiting the premises or [in an] electrical contractor’s case, your local wholesaler. And also there’s Energy Safe as well.
COUNSEL: Is it important to keep up to date with information in relation to products you’re using? --- Well, it is important because you have to be up with the latest because your competitors are doing the same and that keeps you abreast with what is now used and what is not used previously [sic].

There was no evidence of what ‘seminars, product launches or visiting representatives’ might have revealed by way of relevant information to the respondent in 2007; Energy Safe was not called; and, as has been seen, the respondent’s local wholesaler, Pierlite, which was the Philips’ distributor that sold the floodlights kits in question to the respondent, and on whose advice the respondent was accustomed to rely, had as recently as 2005 published a brochure recommending those floodlights for indoor and outdoor installation.

Counsel for the appellant referred to evidence that Mr Curry, who was a former employee of the respondent, had recommended using a different style of light for installation in the appellant’s premises and had been overruled by Mr Thomson. Counsel suggested that, because the respondent did not call Mr Curry to give evidence about that event, it ought be inferred that Mr Thomson negligently rejected advice to use a safer product.

We do not accept the submission. Mr Thomson gave evidence about his discourse with Mr Curry concerning the lights to be fitted. He said that, although Mr Curry at first recommended a ‘para flood’ light for the job, Mr Thomson had in consultation with Mr Curry chosen the Apollo A 500 floodlights because they had a greater spread and therefore less lights were required – two instead of three or four. There was no suggestion that Mr Curry suggested para floodlights because he considered them to be safer than A 500’s, still less any evidence that they were any safer, and it was never put to Mr Thomson that there was anything to do with safety involved in his or Mr Curry’s recommendation or their final choice. There is also no reason to suppose that a former employee of the respondent was any more in the camp of the respondent than of the appellant.[22] There was nothing to stop the appellant calling Mr Curry. So, if there were anything significant about his absence from the witness box, we are inclined to think that it would militate as much against the appellant as against the respondent.
[22]Payne v Parker [1976] 1 NSWLR 191, 201–2; Davies v Pyke (2004) 10 VR 339, 347 [26].

Finally, with reference to the packaging of the floodlights, the judge noted that the lamps supplied with the Philips floodlights came in packaging embossed with an international graphic symbol – a triangle with a notation inside it — which was said to amount to a warning against installation of the lamps in an unguarded light fitting and, therefore, that they should only be used in a light fitting with a glass face. His Honour accepted that it would have been possible to ascertain the meaning of that symbol by asking a wholesaler or inquiring of Philips or by looking it up on the internet. But, his Honour said, he was not satisfied that the symbol was well known or understood by electrical contractors in the position of the respondent in 2007 and, although the packaging for the Philips A500 Apollo Floodlight indicated an intention for the unit to be installed outdoors, it contained no warning against installation indoors. Indeed, there was some evidence that the fact that it was suitable for installation outdoors was an indication of greater weather resistance capacity such as would render it even safer for installation indoors. In any event, as the judge observed, the fitting instructions which came with the unit implied that it could be fitted indoors by means of a ‘ceiling mount’.

In the result, we agree with the judge and we note that, in addition to the evidence which his Honour mentioned, his conclusion about what a reasonable electrical contractor would or should have known in 2007 was also supported by the fact that Mr Lee’s only knowledge of the symbol appeared to come from asking someone at Philips whom Mr Lee could not identify and who was not called. Mr Lofthouse agreed with Mr Lee and Dr Hart said that, while it was an international symbol, he did not believe it was an Australian symbol. Neither Mr Thomson nor Mr Long had any knowledge of it, and both of them had fitted significant numbers of the floodlights indoors. No other electrical contractor was called to say what knowledge he had of it. It was not put to Mr Thomson or Mr Long that the meaning of the symbol had been explained in Australia in 2007. Philips was not called to say otherwise. Most importantly, as it seems to us, the floodlights were open faced lights and were sold by Philips with the lamps included.

Ground 6: Negligence in selection and installation

Under Ground 6, the appellant contends that the judge erred in failing to hold that the respondent was negligent in the selection and installation of the floodlights. We reject that contention for the same reasons as we have given under Ground 5.

Ground 7: Lack of fitness for purpose

Finally, under Ground 7, the appellant contended that the judge erred in not finding that, by reason of the risk of explosive failure of halogen lamps with a concomitant risk of fire, the Philips A 500 floodlights were not fit for the purpose for which they were supplied and thus that the respondent breached the warranty of fitness for purpose implied by s 19(a) of the Goods Act 1958.

Assuming the lamps were not low pressure lamps as specified in 9.1 of IEC 60357, we would accept that contention. It is not disputed that the appellant made known to the respondent at or before the time of contract the particular purpose for which it wanted the floodlights; or that the purpose was disclosed in a way which made it clear that the appellant relied on the respondent’s skill and judgment, and did in fact rely on it; or that the floodlights were of a description which it was in the course of the respondent’s business to supply.[23] The only question is whether the floodlights were reasonably fit for the purpose for which they were supplied.
[23]Grant v Australian Knitting Mills Ltd [1936] AC 85, 99.

Again making the assumption that the lamps were not low pressure lamps as specified in 9.1 of IEC 60357, we would accept that the floodlights would not have been reasonably fit for that purpose. The floodlights were open faced and, as is now known, tungsten lamps other than low pressure lamps as specified in 9.1 of IEC 60357 were not suitable for fitment in lights which were open faced. As appears from the Philips brochure published in 2005, that was because the filament capsule contained inside the lamps was pressurized, operated at high temperature and could unexpectedly shatter. In that event, particles of extremely hot glass could be discharged into the light enclosure and, if the light were not fitted with a glass face, into the surrounding environment with consequent risk of personal injury or fire.

No doubt, the question of fitness for purpose is in one sense relative. It is a question of fact to be decided by weighing up the risk of failure against the gravity of the consequences. But here, according to the expert evidence, the risk of explosion was significant and, self-evidently the risk of explosion and consequent discharge of particles of extremely hot glass into the surrounding environment would have been potentially catastrophic. Thus, the question of fact should be answered in the affirmative. The risk of failure measured against the consequences of failure meant that the floodlights were not reasonably suitable for the purpose for which they were supplied.

Alternatively, it might be said that, as is now known, the tungsten filaments had the potential to be dangerous in that, unless installed behind an appropriate glass face, there was a significant risk that they could explode and emit particles of extremely hot glass into the surrounding environment. Electric lights designed for installation in habitable premises are not normally prone to explode, or at least to explode in a fashion which discharges particles of extremely hot glass into the surrounding environment. Consequently, it would follow that the respondent was under a contractual duty to warn the appellant of the need for a glass face protection. The failure to warn had the result that the tubes were not reasonably fit for their purpose.[24]
[24]Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] 1 QB 88, 104-5 (Rees J); Fillmore’s Valley Nurseries Ltd v North American Cyanamid Ltd (1958) 14 DLR (2d) 297, 319; Sutton, Sales and Consumer Law, 4^th Ed. 264; cf Scanlon v American Cigarette Co (No 2) [1987] VR 281, 284 (Nicholson J).

Of course, so to say is not to suggest that the respondent knew or ought to have known of that risk of explosion. Plainly enough, it did not know and it was not established that it should have known. But liability for breach of s 19(a) of the Goods Act 1958 is strict (albeit requiring only that the goods in question be reasonably fit for the purpose for which they are supplied),[25] and in this case there is no suggestion of any contractual or other exclusion of liability.[26]
[25]Christopher Hill Ltd v Ashington Piggeries Ltd [1972] AC 441, 488 (Lord Wilberforce); Slater v Finning Ltd [1997] AC 473, 486 (Lord Steyn); Gharibain v Propix Pty Ltd [2007] NSWCA 151, [62] (Mason P).
[26] G H Meyers & Co v Brent Cross Service Co [1934] 1 KB 46, 53–4, 5;Young v McManus Childs Ltd [1969] 1 AC 454, 468 (Lord Reid); Helicopter Sales (Australia) Pty Ltd v Rotor-Work Pty Ltd (1974) 132 CLR 1, 9 (Stephen J); By Design Group Pty Ltd v Blackpool Rock Co Pty Ltd [2008] WASCA 138 [21] (Martin CJ).

Ultimately, however, it is necessary to emphasize once again that it has not been demonstrated the floodlights caused the fire. Accordingly, even if the appellant had established that the lamps were not low pressure lamps as specified in 9.1 of IEC 60357, only nominal damages for breach of contract would be recoverable. As has been seen, the appellant did not establish that fact. Thus, the claim for breach of contract must be rejected.

Conclusion

For these reasons, the appeal must be dismissed.

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Citations

Moama Bowling Club Ltd v Thomson Group Pty Ltd [2014] VSCA 245

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

0

Davies v Pyke [2004] VSCA 124

Gharibian v Propix Pty Ltd [2007] NSWCA 151

BY Design Group Pty Ltd v Blackpool Rock Co Pty Ltd [2008] WASCA 138

[2014] VSCA 245

3 October 2014