Ondaatje v Honda Australia Pty Ltd
[2014] VCC 883
•19 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-05951
| SIMON ONDAATJE | First Plaintiff |
| and | |
| GEORGINA ONDAATJE | Second Plaintiff |
| v | |
| HONDA AUSTRALIA PTY LTD (ACN 004 759 611) | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7, 8, 9,10, 13, 14 and 15 May 2013 | |
DATE OF JUDGMENT: | 19 June 2014 | |
CASE MAY BE CITED AS: | Ondaatje & Anor v Honda Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 883 | |
REASONS FOR JUDGMENT
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Subject: DAMAGES
Catchwords: Product liability – car fire in garage of home – defective goods – merchantable quality – defect in car causing fire
Legislation Cited: Trade Practices Act 1974, s74D, s75AC, s75AF, s75AG, s75AK and s75AN; Evidence Act 2008, s79
Cases Cited:Batchelder & Anor v Holden Ltd [2009] VSC 29; Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 853; Jones v Dunkel (1959) 101 CLR 298; Grinham v Tabro Meats Pty Ltd [2012] VSC 491; Rhesa Shipping Co SA v Edmunds [1985] 2 All ER 712; Transport Industries Insurance Co Ltd v Longmuir (19970 1 VR 125
Judgment:Judgment for the plaintiffs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A D Clements SC with Mr M P Barrett | Ligeti & Partners |
| For the Defendant | Mr M V McInnis | Hunt & Hunt Partners |
HIS HONOUR:
Introduction
1 In 2001, the plaintiffs moved into 40 Dean Street, Kew. The premises were registered in the name of the second-named plaintiff, Georgina Ondaatje.[1] The plaintiffs and their two children continue to live in the premises in Kew.
[1]Transcript (“T”) 43
2 In May 2005, the first-named plaintiff, Simon Ondaatje, purchased a Honda Odyssey wagon, registered number TNT 040 (“the car”), from Eastern Honda, Doncaster. The plaintiff selected this car on the basis that it was going to be a suitable vehicle for the pending arrival of their twin children in July 2005. The car was registered in the name of Mr Simon Ondaatje. Mrs Ondaatje was the main driver of the car from the time of purchase until the fire which brings this matter to court.[2]
[2]Exhibit L, the contract of the car
3 On 24 October 2008, Mrs Ondaatje had been to visit her parents in Thornbury. She had taken her twin children, who were then approximately three years old, to see their grandparents. She returned home at approximately midday and parked the car in the garage of the family home. The children were given lunch and had a brief rest.
4 Mrs Ondaatje’s brother attended at the family home, together with his children, later in the afternoon. The visit was a social visit between the two families. At approximately 5.00pm on 24 October 2008, Mrs Ondaatje’s brother left the home at Dean Street, Kew with his two children. Whilst Mrs Ondaatje was cleaning up the home after the family visit, she heard the smoke alarm go off in the upstairs part of the home. She went upstairs to investigate the smoke alarm. On her way downstairs, she noticed smoke coming from the doorway to the garage. The doorway is an internal doorway from the garage to the family home.
5 Mrs Ondaatje opened the door to the garage and observed that the car was on fire.
6 Mrs Ondaatje immediately evacuated her two children from the family home and went next door to the neighbours. Emergency services were contacted.
7 Mrs Ondaatje then returned to the home in the company of Mr David Hutchinson, her neighbour. Mr Geoffrey Hutchinson, the son of Mr David Hutchinson, also attended the premises with a small fire extinguisher. There was nothing any of these people could do to control the fire at that stage. They left the home.
8 The fire brigade attended the fire and extinguished it. The house was extensively damaged. The car was completely consumed by the fire.
9 This proceeding is to determine who pays for the damage to the house, contents of the house and car as a result of the fire.
What is agreed or not disputed by the parties
(a) Ownership
10 It is not disputed that the owner of the property at 40 Dean Street, Kew on 24 October 2008 was Georgina Ondaatje, the second plaintiff in this proceeding.
11 It is not disputed that the owner of the car on 24 October 2008 was Simon Ondaatje, the first plaintiff in this proceeding.
(b) Quantum of damages
12 On the third day of the hearing, the parties agreed that the quantum of the damage for the repairs to the house and contents, and the total loss of the car after the fire, was $660,000, together with interest running from 16 December 2010 (the date of the Writ).
(c) Manufacturer
13 The parties admit that Honda Australia Pty Ltd is the proper entity to be sued as the manufacturer of the car.
(d) Service of the car
14 The parties agree there is no issue about the proper and appropriate servicing of the car by Camberwell Service Centre (“CSC”) from the time of purchase of the car by Mr Ondaatje to the date of the fire.
Issues to be decided in this case
(a) Did the fire start in the CD player of the car?
15 The defendant led evidence in the hearing to prove that the fire in the car on 24 October 2008 commenced in the audio unit of the car as a result of coins being inserted in the CD slot of the audio unit. The defendant does not bear any onus of proving the seat of the fire. If the fire commenced in the audio unit as a result of the introduction of foreign metallic objects to the CD unit, causing an electrical fire, then clearly there is no liability on the defendant in relation to the fire.
(b) Did the fire start in the car?
16 The plaintiffs’ case is that the fire commenced in the cabin of the car and proceeded to totally destroy the car and move from the garage to the house adjoining the garage.
(c)If the fire commenced in the car, was it caused by a defect in the car?
17 The plaintiffs bring their case on the basis of a “defect” within the meaning of the Trade Practices Act 1974 (“the Act”), in that the car was not reasonably fit for the purpose, or that it was not of merchantable quality. In this case, the plaintiffs were alleging that the defect in the car was an electrical fault within the cabin of the car, causing the fire to commence.
(d) The burden of proof
18 The plaintiffs have the burden of proof in establishing their claim against the defendant. The defendant has not assumed any burden of proof by alleging that the fire commenced in the audio unit as a result of coins being placed in it.
(e) Expert evidence
19 In this hearing, there were a total of five expert witnesses who gave evidence about the fire and the cause of the fire. Evidence was also given by Mr Brendan Tyquin from the Metropolitan Fire Brigade on his attendance at the scene of the fire. Mr Paul Murrihy and Mr Timothy Cousins attended the fire scene at 40 Dean Street, Kew, in the days following the fire. Dr Peter Hart did not attend the fire scene nor examine the damaged car. He did examine the artefacts from the damaged car which had been collected by Mr Timothy Cousins.
20 The defendant called evidence from Mr Russell Lee and Mr Peter Collins. Mr Lee had examined the car in a damaged condition after it had been moved from the plaintiffs’ premises to a storage facility in Nunawading on 6 and 12 November 2008.[3]
[3]Exhibit 10
21 Mr Collins has not attended the plaintiffs’ premises at any stage. He has not examined the damaged car. He has examined an exemplar vehicle and provided an exemplar audio unit in the course of his evidence in the proceeding.[4]
[4]Exhibit 9
22 The Court has to decide and determine which of the evidence from the experts is to be accepted and what conclusions are to be drawn from that evidence.
Legal basis for the claim against the Defendant
(a)The cause of action under the Trade Practices Act 1974
23 The plaintiffs’ claim under the Act relies on the provisions set out in PART V and PART VA. In particular, s74D, s75AC, s75AF and s75AG are the relevant provisions of the Act.
Section 75AF and Section 75AG claims(b)
24 It is convenient to commence with the plaintiffs’ claims under s75AF and s75AG of the Act. Both of these sections concern liabilities for goods that have a “defect”. The goods in this case is the car manufactured by the defendant.
25 Section 75AC deals with the meaning of goods having a defect. The section provides as follows:
“(1) For the purposes of this Part, goods have a defect if their safety is not such as persons generally are entitled to expect.
(2) In determining the extent of the safety of goods, regard is to be given to all relevant circumstances including:
(a) the manner in which, and the purposes for which, they have been marketed; and
(b) their packaging; and
(c) the use of any mark in relation to them; and
(d) any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and
(e) what might reasonably be expected to be done with or in relation to them; and
(f)the time when they were supplied by their manufacturer.
(3) An inference that goods have a defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied.
(4)An inference that goods have a defect is not to be made only because:
(a)there was compliance with a Commonwealth mandatory standard for them; and
(b) that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer.”
26 Section 75AF of the Act provides:
“Liability for defective goods—loss relating to other goods
If:
(a)a corporation, in trade or commerce, supplies goods manufactured by it; and
(b) they have a defect; and
(c) because of the defect, goods of a kind ordinarily acquired for personal, domestic or household use (not being the defective goods) are destroyed or damaged; and
(d) a person who:
(i)so used; or
(ii) intended to so use;
the destroyed or damaged goods, suffers loss as a result of the destruction or damage;
then:
(e) the corporation is liable to compensate the person for the amount of the loss; and
(f) the person may recover that amount by action against the corporation.”
27 The plaintiffs rely on this section to claim for the loss of the car and the contents of the house and car.
28 Section 75AG of the Act provides:
“Liability for defective goods—loss relating to buildings etc.
If:
(a)a corporation, in trade or commerce, supplies goods manufactured by it; and
(b)they have a defect; and
(c)because of the defect, land, buildings, or fixtures, ordinarily acquired for private use are destroyed or damaged; and
(d) a person who:
(i) so used; or
(ii)intended to so use;
the land, buildings or fixtures, suffers loss as a result of the destruction or damage;
then:
(e)the corporation is liable to compensate the person for the amount of the loss; and
(f) the person may recover that amount by action against the corporation.”
29 The plaintiffs rely on this section to claim for the loss and damages to the house, fixtures and fittings at 40 Dean Street, Kew.
30 Section 75AK of the Act sets out a defence to a claim under the Act. The defendant in this case did not plead or conduct the case based on this provision for a defence.
31 Sections 75AF and s75AG of the Act set out elements that are to be satisfied in order to impose liability on the manufacturer. The elements are:
(i) the corporation manufactured the goods;
(ii) the corporation supplied goods in trade or commerce;
(iii) the goods have a defect; and
(iv) because of the defect an individual or individuals suffered damage.
32 The defendant admits that it was the manufacturer of the car. The defendant admits that the car was supplied in trade or commerce. The defendant admits that the car fits within the definition of “goods” under the Act. The first issue in dispute is whether the car had a defect. The second issue is if there was a defect, did it cause the damage to the plaintiffs’ property, car and contents?
33 The plaintiffs also rely upon the provisions set out in s74D of the Act. This provision relates to merchantable quality of the goods. Section 74D of the Act states:
“Actions in respect of goods of unmerchantable quality
(1) Where:
(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re‑supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
(c) the goods are not of merchantable quality; and
(d) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not of merchantable quality;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply:
(a) if the goods are not of merchantable quality by reason of:
(i)an act or default of any person (not being the corporation or a servant or agent of the corporation); or
(ii) a cause independent of human control;
occurring after the goods have left the control of the corporation;
(b) as regards defects specifically drawn to the consumer’s attention before the making of the contract for the supply of the goods to the consumer; or
(c)if the consumer examines the goods before that contract is made, as regards defects that the examination ought to reveal.
(3) Goods of any kind are of merchantable quality within the meaning of this section if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to:
(a) any description applied to the goods by the corporation;
(b)the price received by the corporation for the goods (if relevant); and
(c) all the other relevant circumstances.”
34 It is to be noted at this stage, that many of the principles that relate to the defective goods claim set out under s75AF and s75AG are apposite to the determination of a claim under s74D.[5]
[5]See Batchelder & Anor v Holden Ltd [2009] VSC 29 at paragraph [19]
35 Section 75AC(i) establishes an objective standard for determining a defect which is based upon what the public at large, not any particular individual, is entitled to expect.[6]
[6]See Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at paragraph [191] and Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 853 at paragraph [186]
36 In its Amended Defence, the defendant has pleaded that the plaintiffs have caused the loss and damage to the house, car and contents by failing to supervise, instruct or stop their children from placing coins in the CD player of the car. This allegation by the defendant relies upon s75AN of the Act. Section 75AN of the Act states:
“75AN Contributory acts or omissions to reduce compensation
(1)If the loss in a liability action under section 75AD or 75AE was caused by both:
(a)an act or omission of the individual who suffers the injuries concerned; and
(b)a defect of the action goods;
the amount of the loss is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to that individual’s share in causing the loss.
(2)If the loss in a liability action under section 75AF or 75AG was caused by both:
(a)an act or omission of the person who suffered the loss; and
(b)a defect of the action goods;
the amount of the loss is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to the person’s share in causing the loss.
(3)For the purposes of this section, the acts and omissions of a person who is responsible for another person include the acts and omissions of that other person.”
37 The defendant also relies upon an intervening act causing the damage. The intervening act is the allegation the plaintiffs’ children placed coins in the CD player. The defendant further relies on the allegation that the plaintiffs assumed of the risk of the children placing coins in the CD player.
Failure to call Mr Seegar-Snowdon
38 Mr Seegar-Snowdon is an expert in fire investigation. The solicitors for the plaintiffs, in a related Federal Court action, had engaged Mr Seegar-Snowdon to report on the origin and cause of the fire at the plaintiffs’ premises on 24 October 2008. Mr Seegar-Snowdon’s reports were not in evidence in this case. Neither the defendant nor the plaintiff called Mr Seegar-Snowdon to give evidence.
39 Mr McInnis, on behalf of the defendant, submitted that a “Jones v Dunkel”[7] inference should be drawn against the plaintiffs because they failed to call Mr Seegar-Snowdon in this case. The basis for this submission was that the plaintiffs had engaged Mr Seegar-Snowdon to give expert evidence in relation to the origin and cause of the fire at their home.
[7](1959) 101 CLR 298
40 The defendant had access to the report or reports of Mr Seegar-Snowdon. The reports from Mr Seegar-Snowdon are referred to by Mr Peter Collins in his report dated 8 August 2010.[8]
[8]Exhibit 11
41 Mr Seegar-Snowdon was referred to as an expert witness. The defendant could have called evidence from Mr Seegar-Snowdon if it so desired. It was not established that Mr Seegar-Snowdon was “in the camp” of the plaintiffs. In his position as an expert witness, Mr Seegar-Snowdon has a duty to give unbiased and informed expert opinion evidence.[9]
[9]Grinham v Tabro Meats Pty Ltd [2012] VSC 491
42 The rule in Jones v Dunkel[10] is that if the party has failed to call a witness that ordinarily would be expected to be called to give evidence, then an inference is drawn against that party that the evidence from the missing witness would not have assisted the case of the party that failed to call the evidence. The rule does not extend to draw an inference that a fact which is adverse to the interests of the party is proven.
[10]Supra
43 I do not accept that the failure of the plaintiffs to call evidence from Mr Seegar-Snowdon gives rise to the operation of the rule in Jones v Dunkel in this case. The defendant, whilst bearing no onus of proof, could have called Mr Seegar-Snowdon as an expert witness. It elected not to do so. I draw no inference against either party for the failure to call Mr Seegar-Snowdon to give evidence in this case.
Burden of proof
44 The plaintiffs allege that the car was defective and that the defendant had breached the condition of merchantability. The plaintiffs say that the defect in the car was the cause of the damage which occurred to their home and car on 24 October 2008.
45 The plaintiffs carry the burden of proving all the elements of their case. The standard of proof is on the balance of probabilities.
46 The defendant, through its counsel, Mr McInnis, has urged the appropriate approach for the Court to follow is set out in the authority of Rhesa Shipping Co SA v Edmunds[11] (The Popi M). In particular, the defendant relied on the passages where Lord Brandon of Oakbrook, who delivered the leading speech, stated:
“… The question, and the sole question, which your Lordships have to decide is whether, on the basis of those primary findings of fact, Bingham J and the Court of Appeal were justified in drawing the inference that the ship was, on a balance of probabilities, lost by perils of the seas.
In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the seas, is and remains throughout on the shipowners. Although it is open to the underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.
The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship’s loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay on them.”[12]
(Emphasis added)
[11][1985] 2 All ER 712
[12]at page 951
47 The defendant relies on this authority to submit that if the Court does not accept the theory of the fire commencing in the CD unit of the car, then it does not mean that the plaintiffs succeed in this litigation. I accept that proposition is correct and that the plaintiffs carry the onus of proving their own case, which is that the fire commenced within the car and the fire was caused by a defect in the car itself. Alternatively, the plaintiff’s alleged the fire was caused by a design fault. The alternative allegation of design fault is only operative in this case if the fire commenced in the CD unit.
48 This is a case where there is no direct evidence, nor could there be, of an observation of the electrical system of the car starting a fire and then burning the car and eventually into the house at 40 Dean Street, Kew. Much of the evidence relating to the fire, and the circumstances surrounding it, is circumstantial evidence.
49 I rely upon the proposition put by Winneke P in Transport Industries Insurance Co Ltd v Longmuir,[13] where it was stated a judge must not deny himself –
“… the full benefit of the evidentiary impact of the combined weight of all the intermediary facts when considered as a united force. … .”
[13](1997) 1 VR 125 at 128
50 The essence of that proposition is that each piece of evidence does not have to be established on the balance of probabilities but, in establishing each element of the cause of action, the plaintiff must establish its case on the balance of probabilities. It is the totality of the evidence which must be considered in answering the question whether the plaintiff has established its case on the balance of probabilities.
Background
51 The first plaintiff, Mr Ondaatje, purchased the Honda Odyssey wagon sedan on 6 May 2005.[14] The plaintiffs chose this type of car as a suitable family vehicle for the impending arrival of their twin children in July 2005. In fact Alex and Chloe were born on 12 July 2005.[15]
[14]Exhibit L
[15]T42
52 The car was fitted with a Phillips CD player and audio unit at the time of purchase. The car was supplied with an Owner’s Manual. On page 177 of the Owner’s Manual, the following warning is published:
“Never try to insert foreign objects in the CD player or the magazine.”
53 This page of the Owner’s Manual became exhibit 7 in the proceeding.
54 The defendant relied upon this part of the Owner’s Manual to base the allegation under s75AN of the Act in its Defence. I have found there is no basis in the evidence to establish that coins or foreign objects were inserted into the CD player or audio unit at the time relevant to the fire which occurred on 24 October 2008. The basis for this finding is set out later in these Reasons for Judgment.
55 After purchasing the car, the plaintiffs took it to Eastern Honda for the first two services. The first service was a 1,000-kilometre service.[16] The second service was the 10,000-kilometre service.[17] Thereafter, the plaintiffs decided to have the car serviced at CSC. The reason that the plaintiffs changed the place for servicing the car was twofold: Firstly, Eastern Honda was too expensive and, secondly, CSC was conveniently located near the plaintiffs’ home in Dean Street, Kew.
[16]T211
[17]T47
56 The plaintiffs’ car was serviced by CSC on 18 July 2006.[18] This service was a minor service consisting of engine oil flush and adding fuel injector cleaner.
[18]Exhibit B
57 In September 2006, Mr Ondaatje had difficulty starting the car after he had been shopping in Maling Road, Canterbury. He contacted the RACV, who “jump started” the car for him.[19]
[19]T214
58 On 5 July 2007, the car could not be started when Mrs Ondaatje was in East Melbourne. On that occasion, the RACV were called to the car twice. The first occasion was the emergency attendance. The second occasion was the battery replacement crew.[20]
[20]Exhibit C; T49
59 On 8 November 2007, Mr Ondaatje took the car to CSC for its 50,000-kilometre service. This service was the manufacturer’s standard service.[21] There were no electrical issues with the car at this service.
[21]Exhibit D
60 Mrs Ondaatje gave evidence that on one occasion late in 2007, she observed her son trying to put a coin in the CD player.[22] Her son was approximately two-and-a-half years old. Mrs Ondaatje stated that she disciplined her son and told him not to do that again. Mrs Ondaatje said she never saw either of her children trying to, or putting coins into the CD player thereafter.[23] Mrs Ondaatje’s evidence was that after the summer holiday of 2007 in Mt Martha, the CD player in the car did not work. The radio in the car had ceased to work prior to the holiday.
[22]T54
[23]T58
61 Mr Ondaatje gave evidence that late in February 2008, he took the car to Eastern Honda because the dashboard lights were dimming and the radio and CD player had stopped working. Mr Ondaatje thought there was a warranty claim for the car. Mr Ondaatje was told by the Eastern Honda serviceman the problems with the car were a service issue, not a warranty issue.[24] Mr Ondaatje was shown two pages of an Eastern Honda document dated 31 January 2008.[25] Mr Ondaatje denied that he was at Eastern Honda on 31 January 2008, because it was his birthday.[26] He stated he was never advised by the mechanic at Eastern Honda there was a blown fuse or a coin in the CD player.[27] The Eastern Honda invoice dated 31 January 2008 and its accompanying note became part of exhibit 6 in the proceeding. The note states:
“Short in radio unit found blown fuse requires removing CD unit (possible coin in unit).
[indecipherable signature].”[28]
[24]T216
[25]Court Book (“CB”) 280 and 281
[26]T218-219
[27]T217
[28]Exhibit 6; CB 281
62 It is difficult to reconcile this evidence. The one fact that is clear is that Eastern Honda was not going to repair the car under warranty.
63 On 6 March 2008, Mrs Ondaatje took the car to CSC. The work performed on the car at that time was:
“Remove CD player dark facia and sundry components, dismantle CD player, clear coins and re-assemble and refit CD player and dash fascia top and replace fuses and test.”[29]
[29]Exhibit E
64 The car’s odometer reading at that time was 60,828 kilometres.
65 There was no evidence that any coins or other foreign objects were placed or fell or entered the CD player after this work was done by CSC.
66 Mr Ondaatje gave evidence that after March 2008, and prior to the fire in October 2008, the radio had ceased to work again.[30] The CD player continued to operate up to the time of the fire.
[30]T219
67 On 23 September 2008, the car was taken to CSC for the 70,000-kilometre service. The odometer reading at that time was 71,889 kilometres.[31]
[31]Exhibit M
68 The service did not involve any work on the radio or CD player by CSC. The car had travelled approximately 11,000 kilometres since the coins were taken from the CD player in March 2008. The only change to the operation of the car in that time was the radio had stopped working. There is no evidence to explain why the radio stopped working in that period of time.
69 The car was completely destroyed in the fire that occurred on 24 October 2008.
Did the fire commence in the CD player of the car?
70 The defendant called Mr Peter Collins, electrical engineer, as an expert witness in this case. Mr Collins set out his qualifications, experience and expertise in an addendum to his report dated 8 August 2010. The full curriculum vitae appears at Court Book 809-810. Mr Collins’ expertise was not challenged in this Court. He stated he had investigated and reported on twenty automobile fires.[32]
[32]T649
71 Mr Collins did not examine or visit the scene of the fire at 40 Dean Street, Kew. Mr Collins did not examine or inspect the car the subject of the fire in this case. Mr Collins examined an undamaged Honda Odyssey (exemplar vehicle) in a caryard at Geelong on 7 May 2010.[33] He produced an exemplar audio unit in the course of his evidence.[34] He used the exemplar audio unit to demonstrate how coins could enter the unit and then fall down within the unit to cause an electrical fault.
[33]CB 799
[34]Exhibit 9
72 In his first report dated 8 August 2010,[35] Mr Collins reviewed the reports prepared by other expert witnesses engaged to advise on the fire the subject of this litigation. The expert reports received by Mr Collins were:
[35]Exhibit 11
(a) Paul Murrihy dated 16 November 2008;[36]
[36]Exhibit Z
(b) Tim Cousins & Associates dated 10 November 2008;[37]
[37]Exhibit U
(c) Russell Lee dated 27 March 2009.[38] (Mr Collins had this report dated 27 March 2008,[39] some six months prior to the fire).
(d) John Seegar-Snowden dated 3 September 2009.
[38]Exhibit 10
[39]CB 793
73 In the course of his first report, he stated:[40]
[40]CB 804 and 805
“I have reviewed the documentation relating to the various repairs undertaken on the vehicle. I set out the chronology for these repairs.
Date Party Event Comments 4 May, 2005 EHD Purchase of vehicle Contract for Sale. 18 July, 2006 CSC Service Invoice 393480 8 November, 2007 CSC Service Invoice 3361 January, 2008 CSC Mr Ondaatje took vehicle to CSC. Complained that the clock and the dashboard lighting were not operating. Mr Ondaatje was referred to EHD. Information provided in undated letter from CSC. 31 January, 2008 EHD Repairs.
Radio and dash display not working.
Short in radio unit.
Found blown fuse.
Requires removing CD unit.
Possible coin in unit.This information comes from the EHD repair order dated 31/3/2008.
EHD would appear to have correctly identified the problem with the audio and the clock.
A blown fuse was located but there is no mention of the fuse being replaced.
Which fuse replaced is unknown.March, 2007 Mr Ondaatje Noticed no digital clock and audio unit not operating This information comes from Mr Ondaatje’s email dated 29 February 2008.
It is assumed that Mr Ondaatje incorrectly states the date as 2007 when it should be 2008.6 March, 2008 CSC Audio unit removed and dismantled.
Coins removed and audio unit replaced.
Fuses replaced.CSC invoice 130, dated 6 March 2008.
Which fuse replaced is unknown.23 September, 2008 CSC Service
Replaced the audio fuse.
Fuse immediately operated.
Disassembled the audio unit and found coins and removed coins. Audio unit replaced along with new fuse.
Audio unit operated correctly.This information is contained in the CSC invoice 386 and the attaché and undated letter from CSC.
Which fuse was replaced is unknown.
No mention of digital clock.From the above data it appears that the fault and fire in the vehicle was within the audio unit. The facts are extremely compelling:
• Mr Ondaatje reported the audio unit and the clock was not functioning,
• the dashboard lighting control was not functioning correctly,
• EHD found a fuse which had operated, this fuse supplied the audio unit,
• CSC investigated the audio unit and found coins within, and
• the coins were removed and the fuse relaced and the radio again operated,
• however, the digital clock remained faulty.
The fire occurred four weeks later.
One of the significant features of the schedule above is the failure of the clock to be repaired. I believe this was caused by permanent damage occurring when the coins were within the audio unit. It must be recalled that there were multiple power supplies to the unit and there is mention of only one fuse having been replaced.
Also the coins could easily have created electrical short circuits within the unit and these short circuits could cause damage to the components or the circuit tracks on the circuit board. Both of these could lead to a later fault and ignition.
CSC did not inspect and test the audio module for fault. CSC merely removed the coins and replaced an operated fuse. I would not expect CSC to have the expertise and equipment to undertake an inspection and test on the audio unit. It is a specialised item of electronics, sufficiently sophisticated to warrant the manufacturer to assign a special workshop and technicians to the diagnostic testing and repair of audio units.
At the very least I believe either or both EHD and CSC should have advised Mr Ondaatje to have the audio unit removed and sent to the manufacturer (Pioneer) for inspection, test and repair (if needed),
It is possible the coins damaged the clock circuit and it became inoperative and failed benignly. The same coins caused the fuse to operate. The coins were removed and the fuse replaced and the audio, but not the clock returned to service.
It is possible, at a later time, more coins were inserted into the CD slot and these coins, soon after initiated the fault, and initiated the fire. I cannot say whether this happened as none of the parties who investigated the fire fully dismantled the centre console and fully inspected the audio unit under laboratory conditions. Had this been done then findings relating to damaged components, arcing or other faults may have been found.
In relation to the reinsertion of the coins into the CD slot, I suspect the Ondaatje children are the only parties able to answer that question.”
74 I note that at the time of the fire, the Ondaatje children were about three years old.
75 Mr Collins’ theory in relation to the coins in the CD player as a cause for the electrical fire in the car was heavily reliant on his alleged repairs conducted by CSC on 6 March 2008 and 23 September 2008 respectively. As he noted in his report, the most recent removal of coins from the CD unit was only four weeks before the fire.
76 The CSC invoice dated 23 September 2008 and numbered 368 (not 386 as set out in the Collins’ report above), became exhibit “M” in this case. The detail of the work carried out on the car on 23 September 2008 by CSC is as follows:
“CARRY OUT 70.000 KM SERVICE REFER ATTACHED SERVICE REPORT
1 CAN OIL FLUSH 1 CAN OIUL (sic) ADDATIVE
CARRY OUT TRANSMISSION DRAIN AND REFILL (GENUINE TRANSMISSION OIL)
SUPPY AND FIT 3 NEW WIPER BLADES.”
77 There is no mention whatsoever of any repair to or removal of coins from the audio unit in this invoice. Mr Collins could not satisfactorily explain how he made this fundamental error in his evidence when given an opportunity to do so.[41] He said the error did not change his opinion.[42] In short, I find that Mr Collins decided on the ‘coin in the CD theory’ and then set about finding evidence to prove it in his subsequent reports and investigations which became exhibits 13, 14 and 15.
[41]T738-742
[42]T695
78 Mr Collins’ theory on the cause and origin of the fire in the car is based on the probability that there were coins in the CD player of the car. He “suspects” the coins were placed there by the Ondaatje children. There is no evidence in this case that supports the proposition that there were any coins in the audio unit of the car after the removal of coins from it on 6 March 2008.[43]
[43]Exhibit E
79 Mr Collins’ explanation for the cause and origin of the fire is based on pure speculation by him that there were coins in the CD player at the time of the fire.
80 Mr Collins gave evidence on the relevance of the coin in the CD player to his theory about the cause of the fire as follows:
Q:“So in terms of your audio unit theory, you think it’s highly unlikely what Dr Hart says, and what you say is, ‘I think it started in the CD player’?---
A:Yes.
Q:Then in terms of your theory, what do you say about whether or not there was a coin in the unit at the time of the fire?---
A:I don’t know whether there was a coin in there or not.
Q:But do you think it’s likely there was?---
A:If my thesis were to have legs, then more than likely there was a coin in the CD, yes.
Q:To put it another way. Do you accept that your thesis is more plausible if in fact there was a coin in the CD unit on the day of the fire?---
A:Yes.
Q:Equally, if there was no coin in the CD player on the day of the fire, your thesis becomes implausible, doesn’t it?---
A:No, because - - -
Q:Less plausible?---
A:No. If we say that there was a coin, if a coin were within the CD unit on the day of the fire then there’s a high probability that that coin initiated the fault. But it is possible that a coin inserted at a previous time and be removed at a previous time, could have instigated a fault in the CD which manifested itself at the later time.
Q:But let’s just say for a moment that in fact there were no coins in the CD player at any time between March 2008 and day of the fire, 24 October 2008. Just assume that’s right for a moment?---
A:Yes.
Q:If that is right---?---
A:Yes.
Q:- - - your theory that the fire started in the CD player, becomes less plausible, doesn’t it?---
A:Only marginal.
Q:I suggest to you that it’s much less plausible if there’s no coins in the CD unit in that seven month period before the fire?---
A:I can’t put – it’s semantics we’re talking here and l---
Q:Well, is it impossible to quantify?---
A:Yes, it’s impossible.
Q:If the position is that there were no coins in the CD player between March 2008 and 24 October 2008, and during that whole seven month period CDs could be played in the CD player. Your theory becomes implausible, doesn’t it?---
A:No.”[44]
[44]T704-5
81 I do not accept Mr Collins’ evidence that the cause of the fire was a coin or coins being placed in the CD player prior to the fire on 24 October 2008. Initially, his thesis was based on incorrect information concerning the servicing of the car on 23 September 2008. Once that error was discovered and the proximity in time of the coin in the CD player and the date of the fire expanded out to seven months, Mr Collins postulated the thesis that the coins in March 2008 had caused the electrical fault in October 2008 – the day of the fire.
82 Mr Collins was prepared, in his evidence, to attempt to argue a position to support his thesis for the cause and origin of the fire. I was concerned about his impartiality as an expert witness.
83 Mr Lee had been called by the defendant to give evidence in this case. In cross-examination of Mr Collins, the following evidence was given:
Q:You’ve already indicated to His Honour that Russell Lee – you hold him in high regard as a fire investigator. Correct?---
A:Yes, I do.
Q:You accept he was in a better position than you to form a view about where this fire commenced. Correct?---
A:Yes, he was.
Q:The evidence he gave to His Honour was that in his opinion, having inspected the fire-damaged vehicle, the fire did not start in the audio unit. Are you aware that he gave that evidence?---
A:I have no knowledge of his evidence at all.
Q:Does the fact that Mr Lee, enjoying the advantages over you that he did in this case, has the opinion that the fire did not start in the audio unit, does that cause you to have any doubts about your theory that the fire started in the audio unit?---
A:No, but it would be nice if Mr Lee had said that it was in the audio unit.”[45]
[45]T706, L19-31
84 The other experts called to give evidence in this case as to the cause and origin of the fire in the car rejected Mr Collins’ thesis.
85 Mr Murrihy, the first expert to examine the scene of the fire, expressed the view the fire commenced in the engine compartment.
86 Mr Cousins, the second expert to examine the car, gave evidence the fire commenced at the right-hand side of the driver’s console area.
87 Mr Lee, the third and last expert to examine the car, gave the opinion the fire commenced in the driver’s and central console area of the car, not the audio player.[46]
[46]T538
88 Professor Hart did not examine the car but examined artefacts and photographs and opined the fire commenced in the console area of the car above the steering column. Professor Hart excluded the fire starting in the audio unit.[47]
[47]T573; T589
89 Each of the other four fire experts in this case did not support the thesis of Mr Collins that the fire commenced in the audio unit of the car. Similarly, none of these experts supported the coin or coins in the CD player part of Mr Collins’ thesis.
90 In his closing address, Mr McInnis, for the defendant, submitted the defendant did not rely on the evidence of Mr Collins to establish an area of origin for the fire. I accept that was an appropriate submission to make. The coin in the CD player was an unnecessary distraction in this case.
91 I find the fire did not start in the CD player. I find there is no evidence to support Mr Collins’ thesis that the fire was caused by an electrical fault in the CD player as a result of coins being placed in that appliance.
The area or origin of the fire
92 The evidence in this case on the area or origin of the fire was given by lay witnesses and expert witnesses.
93 The starting point in this case is the evidence of the fire given by the lay witnesses who were present at the scene of the fire when it commenced. The eye witnesses in this case were Mrs Ondaatje, Mr David Hutchinson and Mr Geoffrey Hutchinson.
Mrs Ondaatje
94 On the day of the fire, Mrs Ondaatje had been to her parents’ home in Thornbury. She had driven with her two children in the Honda car to Thornbury, and back to her home in Kew. She arrived back at her home at approximately 12.30pm.[48] Mrs Ondaatje was visited at her home by her brother and his children. After that visit was completed at approximately 5.00pm,[49] Mrs Ondaatje then started to tidy up after her visitors departed. She then heard what she thought was a fire alarm.[50] Mrs Ondaatje investigated the noise by going upstairs in the house. On her way down the stairs, she observed smoke coming through the top section of the internal hallway door to the garage of the house.
[48]T62
[49]T65
[50]T66
95 Mrs Ondaatje’s evidence was:
Q:“So what did you do about that if anything?---
A:What I did was, I came downstairs quickly and opened up the door to find out where the smoke was coming from.
Q:What happened when you opened up the door?---
A:Well, I stood - I didn’t go into the garage - I stood just at the doorway and I had a look at the car and I could see that there was smoke coming from the car, smoke coming from the Honda.
Q:Just before I ask you about that. Is there a difference in level between the hallway and the floor of the garage?---
A:There’s a step there. It’s very difficult to see in this picture. It’s about 12 to 14 centimetres high. So you’ve got to take a step up to get into the house. So I stood ‑ ‑ ‑
Q:So if you’re in the garage you’ve got to take a step up into the house?---
A:That’s right.
Q:When you say you didn’t go into the garage, in relation to the step where were you when you were looking into the garage?---
A:I was just in the doorway.
Q:At the top of the step or down below?---
A:No, at the top of the step.
Q:Just taking it slowly, what did you see?---
A:I saw smoke and I saw flames coming from the inside of the car in the driver's section of the car. So I saw it coming from where the driver would be sitting.
Q:Whereabouts within the driver’s section?---
A:Specifically to the best of my memory it was towards, it was around about where the steering wheel was. So I could see the steering wheel being - I saw flames and smoke around the steering wheel area and in particular in that little corner there. So it would be ‑ ‑ ‑
Q:What corner?---
A:Okay, the corner near where say where the hinge of the door ‑ ‑ ‑
Q:Which door?---
A:The driver’s seat door and where the dashboard begins. So that corner there.
Q:What did you see there?---
A:I saw smoke coming up, smoke and then flames coming up.
Q:Did you see flames anywhere else?---
A:I saw flames moving up from that area onto the roof, so sort of coming up in a funnel and then sort of moving up to the roof area on the driver’s side.”
HIS HONOUR:
Q:“But within the car?---
A:Within the car.”
MR CLEMENTS:
Q:“Did you see smoke coming from anywhere else?---
A:To the best of my memory there was some smoke coming up from where the driver would have their feet. So I didn’t see smoke from anywhere else, it was coming up from that section and then moving up around that part of the dashboard and then sort of coming up to the roof.
Q:How thick was the smoke in the car?---
A:It was pretty dark but I could still through to some - at that stage when I first got there, you could still see the different sections in the car. You could still see, say, what was happening in the back or what was happening on the side. So it wasn’t completely covered in smoke at that stage.
Q:Was there any lighting present in the garage at that time?---
A:No. There’s only one window which allows some natural light to come in.
Q:What was the degree of light in the garage at the time that you saw the car that you've been describing?---
A:Well, it was a sunny day so there was enough light in the garage for me to be able to identify where the smoke was coming from the car.
Q:Could you see from one side of the car through to the other?---
A:I could, yes.
Q:What about the CD player, did you see the CD player?---
A:I can’t remember looking for the CD player.
Q:Did you see any flames coming out of the CD player?---
A:No, not that I can remember.
Q:For what reason were you looking in the car?---
A:I was trying to work out whether it was safe to open up the driver’s door because the smoke seemed to be coming from where the hinge is on the driver’s door. So I was trying to work out, can I grab a fire extinguisher and put that section out. That’s why I was looking in the car, I was trying to work out whether it was safe enough for me to open up the driver's door to put the fire out.
Q:What decision did you come to about that?---
A:No, I thought it would not be safe. I thought it was more important to get the kids out of the house.
Q:So did you end up opening the car door?---
A:No, I did not.
Q:Did you move off the step at the entrance the garage whilst you were looking at the car?---
A:No, I stayed on the step.
Q:Doing the best you can, can you estimate the distance between you on the step and the side of the car closest to you?---
A:About a metre, a metre and a half at most.
Q:For how long were you looking at the car when you were on the step?---
A:Just a few seconds; three, four, five seconds. I didn’t stay there for much longer. I was actually scared.
Q:What did you do next?---
A:I went inside, I closed this door. I went inside and I just got the kids out as quickly as possible, so I grabbed the kids and took them out through the front.”[51]
[51]T67-69
96 Mrs Ondaatje was cross-examined about her discovery of the source of the fire. Her evidence was:
Q:“Did you have to open the garage door or could you see the car?---
A:The garage door was probably a couple of centimetres open; the door leading to the garage.
Q:So it was ajar?---
A:It was ajar. That’s right. And then I opened it completely.
Q:When you opened it completely you could see instantly almost that there was smoke emanating from the inside of the car. Is that correct?---
A:That’s correct.”[52]
[52]T138-139
97 Mrs Ondaatje confirmed that after she left her house with her children she did not return to the garage. She returned with the Hutchinson’s but remained in the hallway to the garage.[53]
[53]T139
98 I accept that Mrs Ondaatje had a good opportunity to observe the fire in the car when she first opened the garage door. Whilst her observations of the smoke and flames in the car were over a short period of time, I accept her stated observations as accurate. Mrs Ondaatje impressed as a sensible witness, capable of quick and accurate observation which led to her action of evacuating the house with her children as soon as possible.
99 I accept that Mrs Ondaatje observed the flames and smoke in the steering wheel area and towards the corner near the hinge area of the cabin of the car.
Mr David Hutchinson
100 Mr David Hutchinson lived in the house adjoining the plaintiffs’ property at the time of the fire. Mr Hutchinson stated that he was at home on 24 October 2008. He stated that at approximately 4.00pm, there was urgent knocking on the door of his home.[54] He went to the front door and found Mrs Ondaatje at the door. Mrs Ondaatje had “a serious degree of urgency” and said “There’s a fire in the car”.[55]
[54]T199
[55]T199
101 Mr David Hutchinson then attended the plaintiffs’ premises in company with Mrs Ondaatje. He thought the Ondaatje children were still in the house. He then attended at the internal garage door of the plaintiffs’ home. His evidence was as follows:
Q:“What did you do when you got to this point - when you were first into the house - was the door open or closed to the garage?---
A:I can’t recall.
Q:What did you do after you go to this point?---
A:I had a look at it, I saw ‑ ‑ ‑
Q:When you say you had a look at it ‑ ‑ ‑?---
A:The fire.
Q:- - - where were you at that stage?---
A:Well, I’d gone to the edge ‑ ‑ ‑
Q:When you say, ‘the edge,’ that’s ‑ ‑ ‑?---
A:Of the passageway into the garage. I can’t recall whether I took one step into the garage or whether I took none. However, it was very - because it’s very close. You open the car door and you just walk straight in, there's not much space.
Q:Yes?---
A:I - and observed the fire.
Q:Was Mrs Ondaatje behind you or in front of you at this stage?---
A:I can’t recall.
Q:Did you have a clear view of the car from where you were standing?---
A:Absolutely.
Q:What did you see?---
A:The fire - it was very clear there was a lot of smoke coming out of the corner of the car, up on the right‑hand side - on the driver’s side, at the top of the dashboard and out from under the engine, but it was top right‑hand side of the vehicle – driver’s side.”[56]
[56]T200
102 Mr David Hutchinson went on to state that he could not recall flames but that “the smoke was getting thicker”.[57] He went on in his evidence to describe where the smoke was coming from as follows:
[57]T201
Q:“From where you were standing - and I think you’ve described the area that the smoke was coming from ‑ ‑ ‑?---
A:Yes.
Q:- - - if, for example, you were sitting in the driver’s seat ‑ ‑ ‑?---
A:Yes.
Q:- - - near the steering wheel ‑ ‑ ‑?---
A:Yes.
Q:- - - where relative to that, looking forward, would you see it?---
A:To the right of the steering wheel, and most cars tend to have a dashboard with a level - if you call it a dashboard - the front piece - and it was in the corner where the windscreen was, and where the top of the dashboard was, and almost where the door hinges or where the door opens on the inside, but there was also on the outside, coming out from under the bonnet. That whole section.”[58]
[58]T201
103 Mr David Hutchinson stated that the fire extinguisher his son brought to the fire was “a joke”. His opinion was the fire was out of control by that time. He stated he was close to the fire and that he was not going to remain there. I accept Mr David Hutchinson’s evidence that the smoke and area of the fire, to his observation, was in, and to the right of the steering column on the driver’s side of the Honda car. Whilst his observation of the fire and emergency situation was over a very short time, his evidence was:
Q: “Well let’s leave it at that. When you first saw the car and you saw smoke and flames, you concentrated on what you saw?---
A: That’s right.
Q: And as far as you can remember the smoke was coming from inside the cabin of the car?---
A: Well, that’s very - what I saw at the outset will remain with me probably forever because for me that was the nub of the issue and it was the first time I’d ever seen anything at close quarters like that.”[59]
[59]T204
104 I conclude that Mr David Hutchinson had a clear view of the fire and where it was within the Honda car.
Mr Geoffrey Hutchinson
105 Mr Geoffrey Hutchinson was visiting his parents on the day of the fire at the plaintiffs’ premises. He did not speak directly to Mrs Ondaatje when she came to his parents’ home. He was told there was a fire next door. Mr Geoffrey Hutchinson immediately retrieved the fire extinguisher from the laundry of the house and went next door. His evidence, on arriving in the house, was:
Q:“Once you made it into that hallway and you said you could see into the garage, where did you go next?---
A:I went to the door. I didn’t go into the garage but sort of stood maybe just inside the garage. We didn’t get too close to the garage given it was on fire.
Q:In terms of the fire, what did you see?---
A:It was quite striking really because - basically, it looked like the windscreen was sort of melting down onto the car seat and from the base of the windscreen - so where the windscreen meets the bonnet, that seemed to be the source of heat just in front of - on the driver's side and the windscreen itself was clearly so hot that it was starting to sort of melt into a hole that was sort of melting on to that.
Q:In terms of the actual flames you saw, can you tell His Honour whether they were outside the car, inside the car or somewhere else?---
A:Given at that point the windscreen actually opened sort of - it sort of seemed like it was both inside and outside, around the point where the dash would meet the - or the windscreen would meet the dash - would meet the outside of the car and it appeared therefore both inside and outside.
Q:On what side, passenger or driver?---
A:On the driver’s side sort of directly above - directly in front of the driver’s seat.
Q:Whereabouts compared to the steering wheel were the flames?---
A:Literally right above that.
Q:What was the visibility like in the garage at that time?---
A:It was fine. It hadn’t really sort of filled up with smoke or anything like that. Visibility was perfect. I could see exactly what was going on.
Q:Could you see into the car?---
A:Into the car?---
A:No. I guess from the position I was more, sort of, side on to - I could, sort of, see the back of the car but I could, sort of, see it - where you come into it you can see in the diagram that it’s, sort of, more towards the front of the car.
Q:What did you then do once you saw these flames?---
A:I had this little fire extinguisher and I emptied it and it ran out extremely quickly. It’s not really designed for that sort of thing.
Q:Where did you aim it?---
A:At that spot that I described literally just at the - exactly where I described.
Q:Was the extinguisher able to suppress the fire to any extent?---
A:Not at all, it was completely ineffective.”[60]
[60]T190
106 Mr Geoffrey Hutchinson had arrived at the scene of the fire after his father. He observed the fire to be at its most severe in the area of the steering wheel part of the Honda car. Mr Geoffrey Hutchinson conceded he did not look at the CD section of the console. He stated he concentrated on the driver’s side dashboard area with the fire extinguisher and left the scene when it was exhausted.
107 I accept Mr Geoffrey Hutchinson was in a position to make a proper observation of the fire in the Honda car and he identified the front right cabin area of the Honda car as the main area of the fire.
Brendan Patrick Tyquin
108 Mr Tyquin is a station officer with the Metropolitan Fire Brigade. He holds the qualifications of Bachelor of Fire Technology and Graduate Diploma in Risk Management. Mr Tyquin had worked for the Metropolitan Fire Brigade for twenty-seven years, twenty of those years as a leading firefighter.[61] Mr Tyquin gave evidence that he had attended several hundred house fires. Mr McInnis accepted Mr Tyquin was an expert.
[61]T295
109 Mr Tyquin attended the fire on 24 October 2008 at the plaintiffs’ premises. He stated that when the front door of the house was opened, black, thick, acrid smoke was down to knee level.[62] Mr Tyquin entered the garage through the rear door. He observed that the car was totally engulfed in flames and the fire was into the roof structure of the garage. Mr Tyquin completed the Australian Incident Reporting System (AIRS) document which is exhibit “R”. In his evidence, Mr Tyquin gave an explanation for his conclusion that the fire started due to “unspecified short circuit etc.”. His explanation was:
Q:“What was that based on?---
A:The time that the owner had left the car in the garage and the time that actual fire was broken through and set off a smoke alarm. It tends to mean it’s been a slow-smoking fire inside the compartment. Once it just - the amount of smoke which stopped the fire breaking out of the compartment - so the smoke would have slowly built up and the heat inside the vehicle would have also built up and then once one of the windows had broken - I would suggest it would have been the sunroof, then the whole interior of the vehicle would have virtually ignited releasing all the black thick smoke. That would have been enough to go into the house and set off the smoke alarm upstairs. So being in the compartment, the owner only had little toddlers so I don’t think there would be any of those or the owners setting it alight. So for a fire of that type the only thing in the compartment in the interior of the vehicle would be an electrical short-circuit.”[63]
[62]T297
[63]T301
110 Mr Tyquin went on to give evidence that he did not call in the Fire Investigation Unit because he was sure about the cause and origin of the fire. Mr Tyquin completed the AIRS Block E form, stating:
“Form of the Heat of Ignition: 240 – Unspecified short-circuit arc.”
“Ignition Factor: 960 – Vehicle. Included are exhaust systems and other vehicle parts.”[64]
[64]Exhibit R (Block E)
111 Mr Tyquin was at the scene of the fire and has documented his opinion on the origin and cause of the fire. The defendant’s Counsel accepts Mr Tyquin’s expertise. I find that the fire commenced within the car and that the ignition of the fire was a result of an unspecified short-circuit arc. I accept Mr Tyquin’s evidence as being accurate and objective.
Expert evidence
112 A number of expert witnesses were called to give evidence by the parties in this case. I have previously considered the evidence of Mr Peter Collins and his conclusions. I will not repeat those findings in this section of the Reasons for Judgment.
Mr Paul Murrihy
113 Mr Paul Murrihy, forensic consultant, was called to give evidence by the plaintiff. Mr Murrihy prepared a report dated 16 November 2008.[65] Mr Murrihy examined the plaintiffs’ property and car in a fire damaged state on 28 October 2008. He took a large number of photographs of the burnt out car and damage to the garage and house at the plaintiffs’ property.[66]
[65]Exhibit Z
[66]Exhibit AA
114 On 8 April 2013, Mr Murrihy sent an email to the solicitor for the plaintiffs, commenting on the reports of Mr Peter Collins and confirming his opinion previously expressed in his report dated 16 November 2008.[67]
[67]Exhibit AB
115 Mr Murrihy, in his initial report, stated that, in his opinion, the fire had started in the car and spread to the house.[68] In that report, Mr Murrihy went on to opine:
“A fire in the engine compartment of the vehicle severely damaged the combustible components, hoses and wiring (as seen in photographs 11 to 24). The intensity of the damage appeared to be more severe on the nearside between the fuse/relay housing and the firewall where the combustible components were burnt, the bodywork was more severely oxidized and the nearside front tyre was the only tyre deflated as a result of the fire. An inspection of the wiring here indicated that the wires were severely heat-affected compared with the remainder of the vehicle. This damage supported the fire originated in this area of the engine compartment, but due to the intensity of the damage here it was not possible to determine the exact cause of the fire.”[69]
[68]CB 385
[69]CB 385
116 Mr Murrihy concluded in his report that he was unable to find an exact cause of the fire, as any indicators of the fire’s cause had been destroyed in the fire.[70]
[70]CB 386
117 In his follow-up report dated 8 April 2013, Mr Murrihy considered and disagreed with the opinions of Mr Peter Collins. He completed this correspondence with:
“Therefore, I believe the only reasonable result in this case was to report the cause of the fire as undetermined.”[71]
[71]Exhibit AB; CB 407
118 Mr Murrihy gave evidence in the trial of this proceeding. He adopted his reports referred to earlier in these reasons. He stated it was a definite advantage to a fire examiner to attend and examine the scene of the fire.[72]
[72]T457
119 Mr Murrihy stated that he removed the bonnet of the fire-damaged car to enable a better inspection by him. Mr Murrihy stated he used a wrecking bar to get a better look at the audio unit within the cabin of the car.[73] He photographed the audio unit section of the interior.[74] Mr Murrihy confirmed his opinion the radio was damaged as a result of the fire and was not the cause of the fire.[75]
[73]CB 463
[74]CB 513
[75]T470
120 In his evidence, Mr Murrihy said there were three possible causes for the fire in the car:
(i) Steering wheel fluid leaking onto a hot part in the engine bay of the car. He discounted this cause, because the fire started four hours after the car was parked;
(ii) An electrical cause or fault in the car. He described this cause as a “short circuit”;
(iii) A fuel leak from the car ignited by a spark. In further explanation of this possible cause, Mr Murrihy introduced the evidence of a spark coming from a refrigerator in the garage lighting petrol vapours from the car.[76] Mr Murrihy said he could not find any evidence to support the possibility that the refrigerator was a cause of the fire.[77]
[76]T509
[77]T510-511
121 The conclusion of Mr Murrihy’s opinion was that due to the amount of fire damage and the fire brigade’s attempts to put the fire out, “the only outcome is to say the cause was undetermined”.[78] In Mr Murrihy’s opinion, it was probable the fire started in the engine bay of the car.
[78]T511
122 Mr Murrihy is the only witness in this case that places the origin of the fire in the engine bay of the car. His opinion on the origin of the fire is not consistent with the eye witnesses to the fire: Mrs Ondaatje, Mr David Hutchinson and Mr Geoffrey Hutchinson, who observed the early stages of the fire within the cabin of the car.
Mr Timothy Cousins
123 Mr McInnis, on behalf of the defendant, objected to the evidence of Mr Timothy Cousins being led in this proceeding on the basis his evidence did not qualify as expert evidence. I ruled that Mr Cousins was an expert and could give evidence pursuant to s79 of the Evidence Act 2008.
124 Mr Cousins inspected the scene of the fire, with the car remaining in the garage of the plaintiffs’ premises. The inspection and examination took place on 31 October 2008, seven days after the fire. Mr Cousins was the second fire investigator to inspect the premises.
125 Mr Cousins prepared three reports for the purpose of this proceeding. Mr Cousins also took numerous photographs of the fire scene and car on 31 October 2008.[79] Mr Cousins sets out his observations and examination of the fire scene. In that report, Mr Cousins gave his opinion that the origin of the fire was:
“… to be within the passenger compartment, behind the console and directly above the accelerator pedal.”[80]
[79]Exhibit V
[80]Exhibit V; CB 570
126 Mr Cousins went on to state:
“The damage around the origin is consistent with an electrical fire with a small, but developing, initial heat source.
It is my opinion that the initial heat source was small and highly localised to a small section of the wiring loom or a single connector.”[81]
[81] Exhibit U; CB 580
127 Mr Cousins stated the cause of the fire most likely involved electrical arcing or a high resistance short circuit within or around an electrical termination block.
128 Mr Cousins prepared a second report dated 15 June 2011.[82] This report was predominantly a review by Mr Cousins of the reports prepared by Mr Murrihy, Mr Lee, Mr Collins and Mr Seegar-Snowden. Mr Cousins, having reviewed the reports of the aforementioned experts, confirmed his opinion that the fire started in the cabin of the car behind the driver’s console and directly above the accelerator pedal. He stated the most likely cause of the fire was an electrical fault.[83]
[82]Exhibit X
[83]Exhibit X; CB 596
129 Mr Cousins prepared a third report dated 3 April 2013.[84] Mr Cousins, in this report, reviews the statement of expert evidence dated 15 March 2013 prepared by Mr Peter Collins. Mr Cousins confirmed his opinion that the fire was caused by an electrical fault and its origin was in the console area of the car above the accelerator pedal. Mr Cousins expressly disagreed with Mr Collins’ opinion regarding the origin of the fire as the CD unit in the car based on Mr Cousins’ examination of the fire pattern in the car at the scene.[85]
[84]Exhibit Y
[85]Exhibit Y; CB 601
130 In his evidence, Mr Cousins confirmed that his opinions expressed in the reports prepared by him were unchanged. Mr Cousins relied on sequencing information to determine the origin of the fire. In this case, he referred to molten green plastic found by him which was adhered to the carpet of the driver’s side footwell in the car.[86] In his evidence, Mr Cousins conceded that the molten green plastic does not help him recognise a cause for the fire but it helps him with sequencing information for the fire.[87]
[86]T449
[87]T410
131 Mr Cousins did not give evidence that he found a cause for the fire in his examination of the fire scene – his evidence is that the origin of the fire is in the area of the cabin above the accelerator and the likely cause was an electrical fault. Mr Cousins agrees with the other fire examiners who actually saw the car (Mr Murrihy and Mr Lee), that the point of origin of the fire could not be determined due to the extent of the fire damage.
132 I do not accept Mr McInnis’ submission that the conclusion by Mr Cousins that the cause of the fire was an electrical fault is speculation. The conclusion by Mr Cousins about the cause of the fire is based on his observations and examination of the fire scene and the information from Mrs Ondaatje.
Mr Peter Hart
133 Dr Peter Hart was called to give evidence by the plaintiffs. Dr Hart did not inspect the scene of the fire nor the damaged car.[88] Dr Hart did inspect an exemplar Honda.[89] Dr Hart stated that in the course of his investigation into this fire, he checked the recall notices for Honda Odyssey vehicles. He stated that none of the recall notices were relevant to this case or the relevant model of Honda Odyssey.[90]
[88]T553
[89]T554
[90]T555
134 Dr Hart prepared two reports for the purposes of this proceeding. The first report is dated 8 March 2012.[91] In this report, he reviewed the following reports:
[91]Exhibit AC
(i)MFB report dated 29 June 2006;
(ii)Georgina Ondaatje’s affidavit dated 23 November 2010;
(iii)Paul Murrihy’s report dated 16 November 2008;
(iv)Tim Cousins’ report dated 10 November 2008;
(v)Russell Lee’s report dated 25 March 2009;
(vi)John Seeger-Snowden’s report dated 3 September 2009;
(vii)Peter Collins’ report dated 8 August 2010;
(viii)John Seeger-Snowden’s supplementary report dated 18 August 2010;
(ix)John Seeger-Snowden’s supplementary report dated 28 August 2010;
(x)Peter Collins’ supplementary report dated 14 December 2010;
(xi)An Affidavit made by Simon Ondaatje, dated 19 November 2010 which was prepared by Keith Hurst & Associates, Lawyers;
(xii)Affidavit by David Hutchinson, undated.
135 Dr Hart also had a copy of Mr Murrihy’s photographs.[92]
[92]Exhibit AA
136 Dr Hart had inspected the exemplar vehicle prior to the preparation of his first report. The solicitors for the plaintiff sought the opinion of Dr Hart as to the origin and cause of the fire at the plaintiffs’ premises after a review of the above materials.
137 Dr Hart, after a review of all the materials and reports sent to him, opined as follows:
“The fire occurred about four hours after the vehicle had been turned off. No ignition keys were found inside the vehicle and it can be safely assumed that the ignition was off. The vehicle engine and exhaust would have been cold. Furthermore, there was not (sic) explosion of the fuel tank.
An electrical fault must have occurred on wiring that is live when the ignition switch is off. This assumes that there was no fault in the ignition switch, which might have enlivened the circuits past the ignition switch. There was no reported problem with the ignition switch that might otherwise indicate that the switch failed. Therefore, the fault must have occurred on a battery-powered circuit. It can safely be concluded that the cause was an electrical fault on a battery powered circuit and not a circuit that was controlled by the ignition switch.[93]
The eye-witness reports about the fire that Mrs Ondaatje and Mr Hutchinson made should be given great weight. I conclude that the fire did not start in the engine compartment but spread there from the passenger compartment. I also conclude that the fire started under the instrument console generally in front of the steering column. The fire was high up under the console rather than low down. If it were low down it would have destroyed the plastic fuse panel and the brake-pedal rubber pad, which were not badly burnt.[94]
Fires do sometimes start on vehicle electrical system many hours after the vehicle is stopped. In my experience this can only occur when there is a pre-existing fault. As the components gradually cool from operating temperature, they tend to contract. This can pressurize a point of contact. Insulation that is chaffed or split can allow low-level current to flow. The current causes heating which tends to worsen the condition of the insulation. Over many hours, the insulation degrades further and the current level increases. Eventually the insulation gets hot enough to ignite.
Mr Murrihy’s photo PM10 shows an aerial view of the … centre console. There is a main wiring loom running through the photo. It is shiny copper, which suggests the fire was intense in the region between the centre console and the steering column. A hot fire burns off carbon deposits that survive a cool fire. Lack of carbon soot is a marker that fire investigators look for. The cause of the fire was either in this loom or close-by. This is further evidence that the fire started in the immediate vicinity of the instrument console.”[95]
[93]Exhibit AC; CB 729
[94]Exhibit AC; CB 732
[95]Exhibit AC; CB 732
138 In his evidence, Dr Hart confirmed the opinion he set out in his report and made an additional statement, so his opinion was:
“The electrical loom seen in Figure PM8 & PM9 probably had connections behind the instrument console. It is located well away from the radio in the centre console. There is no reason from (sic) this loom to be disturbed during service or fault finding on the radio. It is likely that this loom would supply the radio and LED panel in the centre with battery and ignition switched power from the fuse panel under the driver console.
The most likely cause of the fire is a wiring loom fault on the main console loom that runs under the console from left to right. It runs generally behind the instrument console. The fault could have been chaffing or abrasion or melted that damaged the insulation or maybe a connection terminal that had pulled out. A high-resistance fault could have existed that over-time became hot and led to further degradation and eventual fire. The most likely fault location is on the main loom that comes out of the fuse panel that is under the driver-side console. There is no evident reason why either Eastern Honda or Camberwell Service Centre would have disturbed the console loom, other than for fault finding purposes.
The most likely cause of the fault is a manufacturing defect in the vehicle electrical system on the driver-side of the instrument console.”[96]
[96]Exhibit AC; CB 733; T569
139 Dr Hart prepared a second report dated 29 April 2013.[97] The solicitors for the plaintiffs sent further documents and reports for his consideration. These materials included the following:
[97]Exhibit AD
(i) The Honda Odyssey workshop repair manual including Section 22, Body Electrics;
(ii) Honda Shop Manual — Odyssey Supplement, undated;
(iii) Excerpt from the Odyssey Owners’ Manual, undated;
(iv) Report of Mr Tim Cousins, Ref V08J099 B, dated 15 June 2011;
(v) Report of Mr Peter Collins, Ref 09250 – Supplementary Report 2, dated 13 February 2013
140 Dr Hart, after considering the further information and reports referred to above, revised his conclusions on the cause and origin of the fire in the following terms:
“5. Revised Conclusions
New conclusions are identified with an underline. Unmodified conclusions are in normal text. Deleted conclusions are
struck through.1The fire started from an electrical fault on the vehicle.
2It is possible for fire to develop after some hours on an electrical cable with damaged insulation.
3The most likely cause of the fire is that electrical wiring behind, or close to the drivers’ instrument console had an insulation or connector defect.
4The defect allowed an abnormal current to flow that heated the cable near to the defect. Over time, the insulation was heated and eventually caught fire.
5The fire started generally behind or underneath the driver-side instrument console.
6The electrical cable ends that are seen in Photos PM8 & PM9 are a
likelypossible point of fire initiation.7In the absence of the physical evidence I cannot say how the damage to the battery / alternator cables occurred.
8The possibility that a coin inserted into the CD slot caused the fire can be excluded. The circuitry inside a CD player that is exposed to a coin is not live when the ignition switch is turned off. There is no evidence that a coin can start a fire in a CD –player that has no ignition power. This possibility was never demonstrated.9 The possibility that the fire started inside the audio unit because there was a coin inside it at that time which caused a short-circuit can be excluded.
10 The possibility that a coin inserted into the CD slot could cause a short-circuit was not demonstrated to my satisfaction. However, I note that the audio fuse was replaced and this suggested that a coin can cause a short-circuit.
11
The most likelyA possible cause of the fault that lead to fire is that a manufacturing or design defect existed in the car.12 A possible cause of the fire is that there was insulation damage to wires in the loom that ran to the audio unit and that this led to a short-circuit and to fire. The cause of this insulation damage could have been excessive current flow at a previous time due to a coin being inserted into the CD slot on the audio unit.
13 The ability of the 15A rated fuse that is used on the battery power wire to the audio unit to prevent wiring damage due to a short-circuit inside the audio unit requires further investigation.
14If a fire can result from insertion of a metal coin into the CD slot of the audio unit, then the audio unit design and the car electrical-system design are defective. Insertion of a metal coin is a foreseeable occurrence and it should not result in a catastrophic fault such as a fire.
15There is no evidence that anything that service personnel did caused the fire. However, the details of the observations and repairs that CSC made are not reported which prevents an informed assessment being made.”[98]
[98]Exhibit AD; CB 780A and 781A
141 Dr Hart confirmed his opinion in the course of his evidence.[99] Dr Hart gave evidence that, in his opinion, the fire did not start inside the audio unit of the car.[100]
[99]T579-580
[100]T589
142 In his evidence, Dr Hart stated that he had examined the artefacts which were part of exhibit “W” and his opinion was unchanged by what he observed in those artefacts.
143 Dr Hart has not had the advantage of examining the car and the scene of the fire directly. As an expert, he has had the advantage of reviewing the opinions of five separate fire investigators and photographs taken by them. A fair summary of his opinion is that the fire, the subject of this proceeding, was caused by an electrical fault arising from a defect in the electrical wiring between the central console and driver’s instrument console which was the area of the origin of the fire.
Russell Lee
144 The defendant engaged Mr Russell Lee to conduct an investigation into the cause and origin of the fire the subject of this proceeding. Mr Lee examined the car at the premises of GIO Ltd in Nunawading on 6 and 12 November 2008. The car had been removed from the plaintiffs’ premises prior to the inspection by Mr Lee.
145 Mr Lee prepared a report dated 27 March 2009.[101] Mr Lee was the third fire examiner to inspect the plaintiffs’ car after the fire.
[101]Exhibit 10
146 Mr Lee had also seen the artefacts which are part of exhibit “W”. Mr Lee gave evidence about those artefacts at the trial of the proceeding. His opinion was that the printer circuit board[102] showed the fire had advanced to this artefact rather than the fire developing on it.[103] Mr Lee does not agree with Mr Cousins that the area of the fire commenced to the right side of the driver’s console. Mr Lee conceded that he was at some disadvantage in examining the car as two other fire examiners had previously examined the car and taken artefacts and disturbed the debris in the car.
[102]Exhibit W1
[103]T517
147 Mr Lee went on to say in his evidence:
Q:“Unfortunately, that makes your task a lot more difficult than it would have been if it had not been disturbed before your investigation?---
A:In terms of detail, yes. In terms of generalities, not necessarily so. For instance, the vehicle still presented a general picture from which impressions and data can be obtained. Certain artefacts had been removed, which I didn’t have the ability to examine. Whether or not those particular artefacts would have affected my view is one issue. But there was enough of the vehicle present to enable me, in my opinion, to identify where I thought the area of the origin of the fire was, and I did that by using the typical physical indicators: metal colour, condition of wiring, destruction of combustible materials, loss of materials, in particular. Those sorts of indicators provide the essential data because it’s important to determine the area of origin, then the origin, then the ignition source, in that order. So it’s a general view, then a detailed view, and then a minute view, if you understand what I mean.”[104]
[104]T522, L3-22
148 Mr Lee’s opinion was that the fire was a cabin fire rather than an engine bay fire.[105] Mr Lee’s evidence on the cause of the fire was:
[105]T526
Q:“So on the balance of probabilities the cause of the fire is an electrical cause?---
A:Some sort of electrical cause, yes.
Q:When you say, ‘Some sort of electrical cause,’ what you mean is some sort of electrical fault, don’t you?---
A:It will be, yes. With this delay in order to get an ignition we would have to have some form of heat, energy, discharge liberation and that implies some form of fault.
Q:Some form of abnormal operation of the electrical system?---
A:Yes.
Q:Because certainly if the electrical system was operating in the way it’s supposed to, it wouldn’t cause a fire?---
A:It wouldn’t cause a fire.”[106]
[106]T526-527
149 In re-examination, Mr Lee confirmed that he was of the opinion the fire was electrical. He could see no other viable ignition source in the car.[107] He stated:
“Other than the electric’s, of some form or other, and that implies a fault, for whatever reason, some sort of electrical condition that produced heat energy liberation.”[108]
[107]T540
[108]T540-541
150 In his report dated 27 March 2009, Mr Lee stated his opinion that the area of origin of the fire was more likely than not within the cabin and in the driver’s console area, and the wiring and artefacts associated therewith. He stated he was unable to discriminate between the driver’s console and the central console. The damage was equally severe in both adjacent areas.[109] Mr Lee disagreed with Mr Murrihy that the area of origin was the engine bay of the car. Mr Lee was unable to identify the origin of the fire due to the great damage in the area of origin of the fire. In his evidence, Mr Lee was cross-examined about the area of origin of the fire, and he stated:
Q:“But you have never been of the opinion that the fire started in the audio unit, have you?---
A:No, I’ve always thought it was between the consoles, Your Honour - the steering wheel and the console.”[110]
[109]Exhibit 10; CB 764
[110]T538
151 In his report, Mr Lee produced a schematic drawing of the area of origin of the fire.[111] In his evidence, he described the edges of the electrical area of origin as “fuzzy”. His evidence was the area of origin extended from the driver’s console across to the central console of the car. He described the driver’s console as the area you look at through the steering wheel and there are switches and indicators and that sort of thing.[112]
[111]Exhibit 10; CB 757
[112]T527
Conclusion
152 I accept the evidence of Mr Cousins, Mr Lee and Dr Hart in deciding that the area of origin of the fire was within the cabin of the car. I accept that the area of origin of the fire was in the console area of the car described as between and including the driver’s console and the central console. Mr Lee and Dr Hart agree on this area of origin. Mr Cousins’ opinion was the fire started in the area of origin to the right of this area but included the driver’s console.
153 I accept the evidence of Mr Lee, Dr Hart and Mr Cousins on the issue of area of origin of the fire because they have based their opinions on documented evidence of the fire damage and the observations of the lay witnesses to the fire.
154 Mr Murrihy, in his report, stated the fire started in the engine bay of the car. At the very end of his evidence, he introduced the possibility the fire may have been started by a spark from a refrigerator in the garage. Mr Murrihy’s evidence was that the fire was of an undetermined cause. I do not accept Mr Murrihy’s evidence because it is not internally consistent.
155 I have previously set out my reasons for rejecting the evidence of Mr Collins on the issues of the cause and origin of the fire. I will not repeat them here.
156 The expert evidence from Mr Lee, Mr Cousins and Dr Hart are in agreement that the fire was caused by an electrical fault in the car. Each of the experts place the electrical fault in the area of the origin of the fire. None of the experts have given evidence of the precise area or defect which caused the fire. Each of the experts explain that it was not possible to determine the exact point of origin nor the precise electrical fault due to the degree of damage caused by the fire.
157 I find, based on all the evidence in this case, that the Honda Odyssey car had a defect which resulted in an electrical fault which caused the fire to occur in the plaintiffs’ car on 24 October 2008. The fire engulfed the car and the plaintiffs’ home. The agreed damages are $660,000.
158 I find that the car, on the balance of probabilities, had a defect, such that the safety of the car was not as persons are generally entitled to expect. The test is an objective test. A defect which results in a car catching fire satisfies that test under s75AC of the Trade Practices Act 1974.
159 The plaintiffs have not proved the precise defect within the car that caused the car to catch fire. It is not necessary for them to do so.[113]
[113]Transport Industries Insurance Co Ltd v Longmuir (1997) 1 VR 125.
160 The plaintiffs have proved, on the balance of probabilities, that there was a defect in the car in the driver’s console and central console area which resulted in an electrical fault causing the car to go on fire. The plaintiff’s have established their claims under sections 75AF and 75AG of the Trade Practices Act1974.
(1) I order there be judgment for the plaintiffs in the sum of six-hundred-and-sixty-thousand dollars ($660,000).
(2) I order that the defendant pay damages by way of interest to the plaintiffs in an amount to be agreed.
(3) I will hear the parties on costs.
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