Nicholls v Elgas Ltd and Woolacott
[2012] ACTSC 128
•July 25, 2012
REBEKAH KATHLEEN NICHOLLS
v
ELGAS LTD & ANOR
[2012] ACTSC 128 (25 July 2012)
NEGLIGENCE – personal injury – defendant supplying gas cylinder for barbecue – overfilling cylinder – gas explosion and fire – plaintiff visitor to home of owner of barbecue – defendant owed duty of care – breach of duty established.
DAMAGES – personal injury – burns to face and right arm – minor permanent scaring – temporary psychological symptoms – no issue of principle.
EX TEMPORE DECISION
No. SC 359 of 2006
Judge: Master Harper
Supreme Court of the ACT
Date: 25 July 2012
IN THE SUPREME COURT OF THE )
) No. SC 359 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:REBEKAH KATHLEEN NICHOLLS
Plaintiff
AND:ELGAS LTD
(ACN 002 749 260)
First Defendant
AND:SANDRA JUNE WOOLACOTT
Third Party
ORDER
Judge: Master Harper
Date: 25 July 2012
Place: Canberra
THE COURT ORDERS THAT:
judgment be entered for the plaintiff for $110,543.00.
judgment be entered for the third party.
the defendant pay the plaintiff's costs as between party and party up to 23 July 2012, and the plaintiff's costs as between solicitor and client from and including 24 July 2012.
the defendant pay the third party's costs.
Whilst it is not entirely clear what happened or how this incident came about, it is clear that gas escaped from the pressure relief valve of the cylinder for some reason. The defendant's expert, Mr Munday, with whose evidence I was most impressed, concedes that it is possible and realistic, to use his expression, that the gas cylinder was supplied to the third party as a customer in an overfilled condition, perhaps significantly overfilled.
Having considered the hypotheses, I am satisfied that it is more likely than not that the cylinder had been overfilled. I do not suggest that that was anything other than inadvertent, but that created a potentially dangerous situation.
There is no suggestion that the plaintiff herself did anything wrong. She was the victim of an unforeseen catastrophe. I do not need to find whether the spare cylinder was facing in any particular direction within the cavity. There is some doubt whether the ignition of the escaping gas was caused by a candle on the table or by the gas burners of the barbecue. Each of them was capable of being the source of the ignition.
On balance, I prefer Mr Munday's opinion that because the gas burners were closer, and because of the tendency of the jet stream of gas emanating from the cylinder to spread a little and to be drawn by the heat of the air around it up towards the burners on the barbecue, the more likely cause of the ignition was one of the burners on the barbecue.
The gas ignited, causing something in the nature of what has been described as a large welding torch, which blew the plaintiff some distance over the deck and caused her serious injury.
More probably than not, the cylinder was overfilled by the defendant at its Fyshwick depot is enough, which amounted to a breach of its duty to its customers and to their guests.
It is unarguable that gas cylinders used for barbecues are potentially highly dangerous. They are filled with highly flammable gas. The facts of this case are an illustration of the sort of damage they can cause if something goes wrong. It is incumbent on an organisation in the position of the defendant to ensure that cylinders are not overfilled.
The defendant owed a duty of care to persons in the position of the plaintiff who was, in a perfectly normal fashion, supervising the cooking of meat on the barbecue at the time when this happened.
It was foreseeable that if a cylinder was overfilled such that gas escaped near an ignition source, a catastrophe like this might occur. It was also foreseeable that a gas cylinder might be in the proximity this cylinder was to both the barbecue and the candles. I am satisfied that the defendant committed a breach of its duty of care to the plaintiff and that that breach was the cause of her injuries.
During closing addresses I announced my provisional view that the defendant had not made out its case against the third party (the owner of the house and of the barbecue, who had bought the cylinder from the defendant). Counsel for the defendant did not wish to be heard further on that issue. I directed the entry of judgment for the third party with costs and excused her counsel from further attendance.
As to damages, counsel for the plaintiff submits that an appropriate range is $100,000.00 to $120,000.00. Counsel for the defendant submits that a starting figure for the range should be closer to $60,000.00. I take account of the fact that this was a terrifying experience for the plaintiff. She suffered burns to her right arm and to her face. Fortunately, she has made a generally very good recovery from her physical injuries.
She went through a period for some months of flashbacks and other psychological consequences of the injury, and again fortunately has made a good recovery from those, although entirely understandably, she is still nervous about barbecues and gas bottles and probably will be for the rest of her life. Nevertheless, fortunately, she has been able to return to a generally normal life since this happened.
Weighing up the various factors, it seems to me that a reasonable award for general damages is $90,000.00, and I award that amount. That attracts interest on its past component. On the range of $100,000.00 to $120,000.00, counsel for the plaintiff has calculated interest on a 50% past component for the seven and a half years since the accident of $7,500.00 to $9,000.00. My general damages figure is a little below counsel for the plaintiff's range, but I would have apportioned rather more of it to the past and less to the future. I allow $7,000.00 for interest on general damages.
The treatment expenses are agreed at $1,700.00 including interest. I allow that amount. There is a claim for the commercial value of the plaintiff's need for assistance during the months after the accident which has been calculated in some detail by counsel for the plaintiff, the calculation generally not being challenged by counsel for the defendant, in an amount of $11,843.00 including interest, which I also allow.
There will be judgment for the plaintiff for $110,543.00.
Having regard to a letter which conveyed a Calderbank offer, I order that the defendant pay the plaintiff's costs as between party and party up to Monday, 23 July 2012, and the plaintiff's costs as between solicitor and client from and including Tuesday, 24 July.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 2 August 2012
Counsel for the plaintiff: Mr SR Hausfeld
Solicitors for the plaintiff: Snedden Hall & Gallop
Counsel for the first defendant: Mr WL Sharwood
Solicitors for the first defendant: Bartier Perry
Counsel for the third party: Mr SH Pilkinton
Solicitors for the third party: Moray & Agnew
Date of hearing: 24, 25 July 2012
Date of judgment: 25 July 2012
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