Nicholls v Elgas Ltd and Woolacott

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:

1. judgment be entered for the plaintiff for $110,543.00.

2. judgment be entered for the third party.

3. 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.

4. the defendant pay the third party's costs.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. More probably than not, the cylinder was overfilled by the defendant…