Owners Corporation v Carter
[2021] VCC 1358
•23 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-19-04315
| OWNERS CORPORATION 29175 and ORS (as per the attached Schedule of Parties) | Plaintiffs |
| v | |
| GERALD CARTER | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 August 2021 | |
DATE OF JUDGMENT: | 23 September 2021 | |
CASE MAY BE CITED AS: | Owners Corporation & Ors v Carter | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1358 | |
REASONS FOR JUDGMENT
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Subject:TORT
Catchwords: Negligence – Non-delegable duty of care – Whether occupier of property owed non-delegable duty to owners corporation – Whether occupier breached lease agreement – Whether use of a deep fryer constitutes a ‘dangerous activity’
Cases Cited:Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; AD & SM McLean Pty Ltd v Meech & Anor (2005) 13 VR 241; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Kondis v State Transport Authority (1984) 154 CLR 672; Jones v Dunkel (1959) 101 CLR 298; Payne v Parker [1976] NSWLR 191; Ronchi v Portland Smelter Services Ltd [2005] VSCA 83; Fox v Percy (2003) 214 CLR 118; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; Torette House Pty Ltd v Berkman (1940) 62 CLR 637; Vairy v Wyong Shire Council (2005) 223 CLR 422
Judgment:Claim dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A M Donald | Holman Webb Lawyers |
| For the Defendant | Mr M McKenzie | Ellinghaus & Lindner |
HIS HONOUR:
Introduction
1Mr Gerald Carter leased two small factories from some of the Plaintiffs. On 10 June 2016, Mr Carter let a friend, named Mr Terry Parker, use the kitchenette in one of the factories to make some hot chips using a deep fryer. Mr Parker left the fryer on and unattended. It caused a fire which spread, causing damage to adjoining factories. The owners of those adjoining factories seek to recover from the Defendant, Mr Carter. While Mr Carter had allowed Mr Parker to use the fryer, he was unaware that it had been left on and was unattended. To sheet home liability to Mr Carter, the Plaintiffs argued that a non-delegable duty of care was imposed on him once Mr Parker left the fryer on and unattended for more than 30 minutes. They also argued that permitting the fryer to be used on the premises was a breach of the lease because it constituted a dangerous purpose. The issues raised by the dispute can be decided by answering the following questions:
(a) Was a non-delegable duty of care imposed on Mr Carter to ensure that the fryer was not on and unattended for more than 30 minutes? Mr Carter accepted that if he knew or ought to have known the fryer was on and unattended for more than 30 minutes this would constitute a breach of his duty as an occupier.
(b) Was the use of the fryer a dangerous activity or a dangerous purpose?
For the reasons set out below I have found the use of the fryer was not a dangerous activity and there was no breach of the lease by permitting its use. Further, I have found that Mr Carter did not know, and there were no facts from which it could be said he ought to have known, that the fryer was on and unattended for more than 30 minutes. As such, no non-delegable duty of care can be imposed on him, and further, there was no breach of his duty as an occupier.
Facts
2At 9-11 Rutherford Road in Seaford, Victoria, there are commercial premises. They comprise eight small factories around a central driveway arranged in a horseshoe-shape. Factories one, two, three and four are situated on the right-hand side of the central driveway and factories five, six, seven and eight are on the left-hand side. Each of the factories are owned by a number of the Plaintiffs in this action. The Owners Corporation, which is the First Plaintiff, is responsible for the common areas. Mr Carter, the Defendant, leased factories five and two from the landlord, being the Third Plaintiff. These two factories are on opposite sides of the driveway running down the centre of the property. From those two factory premises, Mr Carter operated a business called Bayside Hydroponics.
3On 10 June 2016, in the early evening, a small birthday party was being held in factory five. Present was a gentleman named Mr Parker. This man was known to Mr Carter and he had been allowed to use factory two to sleep in on occasion. At some time prior to this night, Mr Parker had brought into factory two a domestic deep fryer unit. It had two vats. It was plugged into the wall and was used by Mr Parker to cook food, such as chips. Mr Carter was aware of this.
4At around 7 – 7.30pm on 10 June 2016, Mr Parker asked Mr Carter if he wanted some chips (by that I take it he meant hot deep fried chips).[1] Mr Carter replied that he did not.[2] It is not established that Mr Parker then left, but it can be so assumed from facts that I will come to. What time he left is uncertain. It can be inferred that Mr Parker went to factory two and turned the fryer on. What time that occurred is uncertain. It is uncertain whether he cooked any chips. At some point in time, which is uncertain, he returned to factory five. Mr Carter gave evidence that he was not aware of the time Mr Parker returned to factory five.[3] However, at about 8.30pm, those at the party in factory five noticed the security camera for factory two go out.[4] Suspecting something was wrong, they opened the door of factory five to look over at factory two. At that time, Mr Carter became aware of Mr Parker at the door and he and another man, Darren, went “straight out” and noticed visible fire from factory two.[5]
[1]Transcript (“T”) 60, Line (“L”) 10 – 35
[2]T64, L40
[3] T68, L35 – 40
[4] T69, L25
[5]T72, L15
5That fire went on to spread to factories one, three and four. It resulted in the extensive damage set out in Exhibit P1.[6] The extent of the damage caused is not in contest.
[6]Exhibit P1 – Cost Breakdown for 9-11 Rutherford Rd, Seaford – prepared by Daniel Fox on 17 August 2021
6It was accepted that Mr Paul Murrihy’s opinion be accepted as to the cause of the fire. He opined:[7]
“The nature of the damage to factory unit 2 and that of a deep frying unit in a kitchen at the northern end of this factory suggested the fire had resulted from the ignition of the fat/cooking oil in the right hand vat of the operating frying unit.”
[7] Plaintiff’s Court Book (“PCB”) 282
7I find, combining the facts, that Mr Parker had placed the fryer in the unit with the knowledge of Mr Carter.[8] On the night in question, he had offered to make chips for at least Mr Carter. I find that Mr Parker did leave the party, go to factory two and then turned the fryer on.[9] I further find, that he left the fryer unattended while it was on and returned to the party in factory five. I find that the fryer controller was in the “on” position at the time of the fire. I find that the unattended fryer caused the fire and resultant damage.
[8]T67, L5
[9]T65, L15 – T66, L5
8Findings beyond that require a consideration of other inferences and the parties submissions. I will come to those.
9The timing of Mr Parker’s movements is important. This is because the expert fire investigator, Mr Tim Cousins, opines that from the time of starting to heat the oil in the fryer to the 30 minute mark, there was no increase in the fire risk posed by leaving the fryer unattended.[10] Beyond that, the risk becomes a medium fire risk[11] and is the point at which the Plaintiffs submit a non-delegable duty arises on Mr Carter to ensure care was taken in the use of the fryer. The Plaintiffs accept that it is only if Mr Carter knew or ought to have known that the fryer was on for 30 minutes and then unattended that a non-delegable duty on Mr Carter arises.[12]
[10]PCB 296, at paragraph [8]
[11]PCB 297, at paragraph [12(c)(c)]
[12] T95, L20 – 45; T96, L15 – 20
The contentions of the parties
10The critical issues in dispute in this case can be broken down in the following way.
11First, the parties agree that Mr Carter owed the Plaintiffs a duty of care. That duty was to take reasonable care as an occupier of the factory to ensure that those premises were reasonably safe.[13]
[13] PCB 19, at paragraph [13]; T85, L35 – 40
12Second, the parties agree that in order for that duty to be classified as a non-delegable duty, it is necessary to show Mr Carter knew or ought to have known that:[14]
(a) the fryer was on;
(b) the fryer was unattended;
(c) the fryer was unattended for more than 30 minutes.
[14] T85, L40; T86, L5 – 15; T95, L20 – 30
13It was accepted that if these factors were made out, they would warrant a finding of there being a dangerous activity on Mr Carter’s premises sufficient to raise a non-delegable duty upon him to ensure that care was taken in the use of the fryer.
14Third, the parties agreed that a fire emanated from the fryer and caused extensive damage to factories one, two, three and four. The damage associated with that loss was agreed in the amount of $457,000. Such loss was further agreed to be apportioned in accordance with Exhibit P1 being the loss occasioned to each individual Plaintiff by Mr Fox.[15]
[15]Exhibit P1 – Cost Breakdown for 9-11 Rutherford Rd, Seaford – prepared by Daniel Fox on 17 August 2021
15There was also an alternative claim made for breach of lease. The terms of the lease allegedly breached were:[16]
“Use of premises (1)(o)(ii): Not to use or permit the Premises or the Building to be used for any illegal, noxious, improper, immoral or dangerous purpose nor to allow or keep any animal or bird…” (my emphasis)
[16] PCB 47, at paragraph [1(o)(ii)]
16Such a breach was put on the basis that Mr Carter contravened the lease by permitting:
(a) the fryer to be turned on;
(b) the fryer to be left unattended;
(c) the fryer to be left unattended for more than 30 minutes.[17]
[17] T95, L20 – 45
17That conglomeration of factors was said to constitute a ‘dangerous purpose’ in breach of the permitted use of the premises as set out in the lease.[18]
[18]PCB 47, at paragraph [1(o)(ii)]
18If the Plaintiffs could prove each of the three factual matters, then it was accepted that:
(a) Mr Carter owed a duty of care to the Plaintiffs;
(b) such a duty was non-delegable;
(c) the duty was breached by permitting the fryer to be left in that situation for more than 30 minutes;
(d) the lease was breached;
(e) damage from the breach of lease and breach of duty was as set out in Exhibit P1.
Legal principles
19The higher courts in Australia have made it clear that the law as to non-delegable duty is complex.[19] It is often an attempt to outflank general negligence and impose strict liability.[20]
[19] Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 at [78] – [81] (Kirby J)
[20] Ibid at [73] (Kirby J);Ibid at [155] (Hayne J)
20In AD & SM v Meech,[21] Nettle JA stated that it is the control of the tortfeasor over the premises and the vulnerability of the Plaintiffs that are the most relevant factors to the imposition of the non-delegable duty.[22] At paragraph [20], His Honour cited Burniev General Jones[23] with approval:[24]
“one party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things.” (my emphasis).
[21] AD & SM McLean Pty Ltd v Meech & Anor (2005) 13 VR 241
[22] Ibid at [16] (Nettle JA)
[23] Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
[24] AD & SM McLean Pty Ltd v Meech & Anor (2005) 13 VR 241 d, at [20] (Nettle JA)
21His Honour formulated the principal in this way:[25]
“Under those principles, a person who takes advantage of his or her control of premises to carry on a “dangerous activity” or to allow another to do so, owes a non-delegable duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another.” (my emphasis).
[25] Ibid at [21] (Nettle JA). For a general discussion of the topic of non-delegable duty of care, see
Corkhill, A, “‘Dangerous Substances and Activities in the Context of a Non-Delegable Duty of Care” (2007) 15 TLJ 233; Fleming, The Law of Torts (10th ed, Sappideen, 2011) 15.10 – 15.30
22A duty that is non-delegable is one that extends to seeing that care is taken.[26] Thus in Burnie, the fact that the contractor employed by the Burnie Port Authority did welding in close proximity to flammable Isolite, which was a negligent performance of its task, did not absolve the Authority of its legal duty that it owed to General Jones.
[26]Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at [36]; Kondis v State Transport Authority (1984) 154 CLR 672 at 686
23The duty is breached where the alleged tortfeasor has not acted reasonably in dealing with the dangerous substance on his or her premises.
Jones v Dunkel
24Mr Donald, for the Plaintiffs, argued that the Defendant’s failure to call Mr Parker ought to result in an inference that his evidence would not have assisted the Defendant’s case.[27] Mr McKenzie, for the Defendant, denied that such an inference should be drawn. He argued that the Plaintiffs had decided not to bring an action against Mr Parker and further chose not to find him or elicit any evidence from him. Mr McKenzie submitted that the evidence of Mr Carter, during cross examination, was that he had not been able to locate Mr Parker[28] and that this was clear evidence of no ongoing relationship with Mr Parker. No evidence was led as to what steps had been taken to try and locate Mr Parker by either party.
[27] Jones v Dunkel (1959) 101 CLR 298
[28] T63, L5 – 10
25For the principles in Jones v Dunkel[29] to be applied, the Court must be satisfied that the “missing witness would be expected to be called by one party rather than another”.[30] This has later been articulated as the absent witness needing to have been “in the camp” of one party rather than the other before such an inference can be made.[31] This is a case where the Defendant and the absent witness, being Mr Parker, did have a relationship of some kind at the time of the fire. The Answers to Interrogatories, which are relied upon by both parties, indicate that the extent of this relationship was as follows:[32]
“[Mr Parker] asked if he could give the second factory as his address to his parole officer and placed a bed in that factory and he, [Mr Parker], actually to the best of the defendant’s knowledge spent most nights at his girlfriend’s place elsewhere, [Mr Parker] was not accommodated at the second factory at all. He did use the property to do some repair work on motor vehicles.”
[29]Jones v Dunkel (1959) 101 CLR 298
[30] Payne v Parker [1976] NSWLR 191 at 201 (NSWCA), Glass JA
[31] Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 at [33]
[32] PCB 362, Answers to Interrogatories, Answer 2
26It is agreed that Mr Parker was part of a group connected to the Defendant, who were at factory five at the time of the fire, celebrating a birthday. However, as noted above, ongoing contact between Mr Parker and Mr Carter appears to have ceased following the fire. It is clear from both the case law and Cross on Evidence under the heading ‘Absence of explanation and failure to give evidence: Jones v Dunkel’,[33] as discussed in Ronchi,[34] that the stronger the relationship between the party and the witness, the more likely it is that the inference will be drawn. This is a case where the relationship appears to have broken down completely as Mr Carter gave evidence, which I accept, that he could not locate Mr Parker.
[33] LexisNexis Australia, Cross on Evidence (online at 3 September 2021) [1215]
[34] Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 at [33]
27Further, in determining whose “camp” Mr Parker was in, it could be said that the evidence he could have given would have been of great benefit to the Plaintiffs, more so than to the Defendant. This is because the timing of Mr Parker’s movements is a central issue in this case. That is to say that Mr Parker, alone, would be able to give evidence as to when he turned the fryer on and when he returned to factory five. In circumstances where I cannot find that there was any ongoing relationship between Mr Carter and Mr Parker at the time of trial and where the evidence of Mr Parker would have been of as much assistance to the Plaintiffs as the Defendant, I do not draw the inference as suggested by the Plaintiffs, that the evidence of Mr Parker would not have assisted the Defendant.
Factual findings
When did Mr Parker leave factory five?
28There is no evidence that Mr Carter knew when exactly Mr Parker left factory five. In Answers to Interrogatories, he deposed that within 30 minutes of the fire “[Mr Parker] stated he was going to the second factory to cook some chips”.[35] However, in cross examination Mr Carter said that Mr Parker told him he was going to factory two to cook some chips and asked Mr Carter if he wanted some, to which he replied that he did not. He timed this conversation to “7/7.30, something like that.”[36]
[35]PCB 363, Answers to Interrogatories, Answer 10
[36]T66, L20
29This is a direct conflict in the evidence of the Defendant. It must be resolved by an appreciation and weighing of all the evidence.[37] The first point to make about this is that the evidence of Mr Carter was extremely brief, both in examination in chief and also in cross examination. Nothing of substance could be said as to the demeanour of the witness, given the time for observation was so short no sound conclusions can be drawn from those brief observations about the veracity of his evidence.
[37]Fox v Percy (2003) 214 CLR 118 at [25]
30The time when Mr Parker left is important because if he left factory five within 30 minutes of the fire being noticed, then the Plaintiffs’ case cannot succeed because the Plaintiffs would not be able to show that the fryer was on and unattended for more than 30 minutes.
31I consider it important that prior to giving the answer in cross examination to Plaintiffs’ Counsel, Mr Donald, Mr Carter had been expressly taken to Answer to Interrogatory 10. It was read to him and he confirmed it. He then added two further matters. The first being that “it was more like he asked me if I wanted any chips”[38] and then he added that the conversation was about “7/7.30, something like that”.[39]
[38]T64, L5
[39]T66, L20
32The Answers to Interrogatories were given on 3 October 2020. This was before there was any legal significance being placed on the timing of how long the fryer was left unattended, particularly that to leave the fryer unattended for more than 30 minutes resulted in a medium fire risk. Such did not become known until Mr Cousins’ report was received in May 2021 at the earliest. It could be thought then, that the Answers to Interrogatories are the best evidence, free from any attempt to shape the evidence to suit the Defendant’s case. However, this also means that the oral evidence in cross examination is more likely to be correct as having been specifically taken to an answer highly beneficial to his case, having it read to him, Mr Carter then volunteered the time of the exchange with Mr Parker. This volunteering of information, against his own interest, speaks to the veracity of Mr Carter’s evidence. I accept that particular answer, as to the time when he was first approached by Mr Parker, in preference to the Answers to Interrogatories. I also record at this time, that I consider that Mr Carter was an honest witness and I accept his evidence overall as true.
33The issue of the timing of the conversation is said, by the Defendant, to lead to a number of inferences. First that shortly after that time, Mr Parker did in fact leave factory five. That inference could be drawn, it was said, as Mr Parker had clearly indicated that was his intention – even if Mr Carter did not want any chips.[40] Secondly, the fact that the fryer was turned on, as shown in the photographs[41] and is noted specifically in Mr Murrihy’s report.[42] Thirdly, that the fryer had to have been heated for over 30 minutes to reach the temperatures necessary to start boiling the oil, and start the fire, suggested that the fryer had been on for at least 30 minutes prior to the fire. Fourthly, that the fire, when first noticed, was already well established suggested that some time had passed from ignition to it getting to the stage it was when noticed by Mr Carter when the factory five door was opened at about 8.30pm.
[40]T64, L10 – 40
[41]PCB 288
[42]PCB 281
34I cannot accept this latter matter. The court was not directed to any expert material on this point, despite there being two fire experts involved in this case, Mr Cousins and Mr Murrihy. Neither of them provide opinion on how long the fire had been burning at the time it was noticed. It was clearly a matter which was important to the Plaintiffs’ case, given Mr Cousins’ view that the fryer needed to have been on and unattended for at least 30 minutes before it became a medium risk. I am simply not able to infer how many minutes that the fire had been burning for on the basis of what Mr Carter saw when he opened the door from factory five. Other than to say that the fire was visible and this took some time from ignition I cannot go further.
35Looking at the other inferential evidence on this point, given the acceptance of Mr Murrihy’s and Mr Cousins’ opinion, that the fryer was in the “on” position and needed to have been heated for at least 30 minutes to get to a level which caused a medium fire risk, I consider it possible to infer, and I find, that the fryer was turned on some time prior to 8pm. Exactly when is unclear. This then leads to the finding that Mr Parker left factory five sometime after asking Mr Carter if he wanted some chips at “7/7.30, something like that”.[43] I find that Mr Parker left reasonably shortly after telling Mr Carter that he was going to make some chips because he indicated that was his intention and there is no reason to suppose that he would not have acted on it.
[43] T66, L20
36However, I find in accordance with my acceptance of Mr Carter’s evidence, that he did not know exactly when Mr Parker left.
When did Mr Parker return?
37The Plaintiffs’ case is built on Mr Carter knowing, or being in a position such that he ought to have known, that the fryer was on and unattended. Necessarily, the Plaintiffs had to prove that Mr Carter knew that Mr Parker had returned to factory five at least 30 minutes prior to 8.30pm to prove the fryer was unattended. Alternatively, the Plaintiffs’ case seemed to be that if Mr Parker did not return within 30 minutes then Mr Carter should have gone to check that the fryer was being monitored. I will address that point in dealing with legal submissions.
38Mr Carter gave direct evidence that he did not know that Mr Parker had returned to factory five.[44] However, he said that when the alert was raised at about 8.30pm and he made for the door, Mr Parker was there also. On that basis he inferred that at some point Mr Parker had in fact returned to factory five.[45] He was adamant however, that at no time prior to 8.30pm was he aware of Mr Parker returning to factory five. Faced with this denial, the Plaintiffs suggested that Mr Carter’s evidence was not believable, given there were only 6 others at the party in factory five – meaning that Mr Carter must have seen him return. I do not accept this argument. First, no evidence was elicited about the layout of factory five. No evidence was elicited about the location of the guests between 7 and 8.30pm. No evidence was elicited about the position of the door, or Mr Carter’s view of it in the relevant period. Given I have already indicated that I accept Mr Carter’s evidence as honestly given, there is no reason to doubt his denial and the simple suggestion that he “must have” seen Mr Parker return because the gathering was small cannot be accepted as it is a bald assertion and no more.
[44]T68, L40
[45]T69, L5 – 20
39To summarise the facts as I have found them to this point. A function of eight people was occurring in factory five on 10 June 2016. At some time around 7 – 7.30pm, Mr Parker said to Mr Carter he was going to make hot chips and asked if Mr Carter wanted some. Mr Parker then left factory five and went to factory two. At some time before 8pm, he started the fryer. The fryer remained on. Mr Parker left factory two with the fryer in the “on” position. At what time this was is unclear. Mr Parker returned to factory five at some time. Mr Carter did not know Mr Parker had returned to factory five before 8.30pm when the fire was noticed.
Analysis
40The finding of facts set out above essentially determine the matter in favour of the Defendant.
41Applying the facts to the legal principles. I accept that Mr Carter exercised the relevant control of factory two to satisfy that part of the test for a non-delegable duty to be imposed. He was the lessee and had exclusive possession for a fee. Similarly, the Plaintiffs were in positions of vulnerability sufficient to found the non-delegable duty.[46]
[46] Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 at [119] (Kirby J)
42However, I do not accept that the operation of the fryer constitutes a dangerous activity. It is a domestic appliance and available for home use. It is similar to a pot on the stove with oil used to fry chips. I note the Plaintiffs’ initial pleading claimed the Defendant had installed a commercial grade deep fryer in breach of building regulations.[47] However, this allegation was abandoned. At trial, the Plaintiffs accepted that the fryer was a domestic piece of equipment that was simply plugged into a normal wall socket. It was also not in dispute that all the factories at the premises had a kitchenette in which there was sink and benchtop. Here, staff had kettles and toast makers and the like. The fryer was simply an addition to the benchtop appliances in factory two. There was nothing inherently dangerous in the introduction of that piece of kitchen equipment, I find. Similarly, the process of cooking that it introduced into factory two could also not be considered a dangerous activity.[48]
[47]PCB 8
[48]Torette House Pty Ltd v Berkman (1940) 62 CLR 637
43Then as to the Plaintiffs’ argument that once the fryer was permitted to be on for 30 minutes and unattended that it then became a ‘dangerous activity’ which was allowed to cause the fire. There are two factors which do not permit the imposition of the non-delegable duty. First, even if it were on for 30 minutes and unattended it would not automatically become a dangerous activity. This depends on a range of factors as outlined in Mr Cousins’ report but not addressed in the evidence by the Plaintiffs. For example, was the oil old or new, what type of oil was it, was it filled with foods and was it heated from cold? All these factors impact on the risk posed by the fryer as it was warmed. This all goes to whether or not it could be classified as a “dangerous activity” because those factors might heighten the risk appreciably. Secondly, and most importantly, is the fact Mr Carter did not know that the fryer was on and unattended beyond 30 minutes. In that sense the dicta in Burniev General Jones[49] and AD & SM v Meech[50] make clear there was no ‘allowing’ of the activity of leaving the fryer on and unattended beyond 30 minutes. Similarly, there are no surrounding circumstances which would permit the Plaintiffs to make good the argument that Mr Carter ought to have known that the fryer was on for 30 minutes and unattended. There is no evidence as to when Mr Parker returned to factory five. This is fatal to the Plaintiffs’ case that Mr Carter “allowed” the operation of the fryer unattended for a period of time after 30 minutes of operation.
[49] Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
[50] AD & SM McLean Pty Ltd v Meech & Anor (2005) 13 VR 241
44As has been set out above, Mr Carter’s knowledge extended only so far as knowing that Mr Parker likely left the party at some time around 7 – 7.30 to make chips.
45I cannot find on the facts that his knowledge went beyond that.
46A further matter also arises in considering the Plaintiffs’ argument. As Nettle JA stated in AD & SM v Meech:[51]
“Following the decision in Burnie Port Authority, the question in each case is whether the combined effect of the magnitude of the foreseeable risk of an accident occurring and the magnitude of the foreseeable potential injury or damage if an accident does occur, is such that an ordinary person acting reasonably would consider it necessary to exercise “special care” or to take “special precautions” in relation to it.”
[51] Ibid at [22] (Nettle JA)
47In this case I do not think that they do. I have set out the fact the fryer is an ordinary domestic piece of equipment in a kitchenette, like many other pieces of such equipment. Its use was entirely unremarkable. Going further, I consider the Plaintiffs’ argument proceeds by going to the circumstances of the breach (the fryer being on and unattended for more than 30 minutes) and then working backwards to impose a non delegable duty of care. This is impermissible. The imposition of the duty is made from a prospective standpoint based on the facts known or that ought to have been known prior to the breach by the alleged tortfeasor. To do otherwise is contrary to principle.[52]
[52] Vairy v Wyong Shire Council (2005) 223 CLR 422, Gummow J at [60] – [61] and Hayne J at [123] –
[126]
48As I have found that the fryer was not an inherently dangerous piece of equipment and that, similarly, its use could not be considered a “dangerous purpose”, I find that there was no breach of the lease.
49I will dismiss the Plaintiffs’ proceeding and hear the parties on the question of costs.
Schedule of Parties
CI-19-04315
| Owners Corporation 29175 | First Plaintiff |
| Gary Ricardo | Second Plaintiff |
| Leanne Davey | Third Plaintiff |
| Stephen Morris | Fourth Plaintiff |
| Jenny Morris | Fifth Plaintiff |
| Eugenia Sottile | Sixth Plaintiff |
| Alessandria Marziale | Seventh Plaintiff |
| Carmel Savoia | Eighth Plaintiff |
| Terrance Morris | Ninth Plaintiff |
| Rita Morris | Tenth Plaintiff |
| -and- | |
| Gerald Carter | Defendant |
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