Pendrigh v Canon Australia Pty Ltd - [2000] VSC 511

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 4850 of 1997

IAIN PENDRIGH and JOAN PENDRIGH	Plaintiffs
v
CANON AUSTRALIA PTY LTD	Defendant

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATE OF HEARING:	18-22, 23-27 October 2000
DATE OF JUDGMENT:	6 December 2000
CASE MAY BE CITED AS:	Pendrigh v Canon Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2000] VSC 511

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Product Liability – alleged negligent manufacture and supply of electric typewriter – residence destroyed by fire – origin of fire claimed to be transformer in electric typewriter – conflicting evidence as to source and origin of fire – whether case proved on balance of probabilities – circumstantial evidence - Briginshaw v Briginshaw (1938) 60 CLR 336 - Transport Industries Insurance v Longmuir [1997] 1 VR 125

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Gunst QC with Mr A. Clements	Ligeti Partners
For the Defendant	Mr P. Riordan	Ebsworth & Ebsworth

HIS HONOUR:

On 29 April 1996 a three level timber home owned by the plaintiffs at 1 Fraser Street, Queenscliff was destroyed by a fierce fire. The blaze was attended by Country Fire Authority (CFA) fire crew, including Mr Neil Barnes, and also by Mr Lang, a consultant engaged by the insurers of the plaintiffs’ home. Both Mr Lang and the CFA officers concluded that the fire had started on the second level of the house in the vicinity of the study, which was the central room on the southern side of the building. The window of that room had been on the southern side of the house. Directly above the study was the kitchen. On both sides of the study, as was also the case for the kitchen, there were adjoining rooms.

In the study there had been a heavy wooden desk placed against the window. The window commenced at about the level of the desk top, and did not extend across the width of the room, but was about as wide as the desk itself. Upon the desk there had been a Canon ES43 portable electric typewriter, which had been manufactured in Mexico by one of the Canon group of companies and transported to Australia, where it was sold by Canon Australia Pty Ltd. The typewriter had been purchased by the plaintiffs on or about 18 May 1994 and had been used primarily by Mr Iain Pendrigh to type occasional letters to his mother in England. From time to time he and his wife used the typewriter for other purposes. It did not have frequent use.

The typewriter was plugged into a wall power point which was on the southern wall of the study, near floor level, at a point to the right of a person sitting at the desk.

From the time when the typewriter had been purchased the plaintiffs had both noticed a “buzz” which emanated from the machine when it was plugged into the wall outlet and switched on at the wall. That sound continued even when the typewriter itself…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] VSC 511
Decision Date: 6 December 2000

CaseChat Overview and Summary

The case of Pendrigh v Canon Australia Pty Ltd involved a claim by the plaintiff against the defendant for alleged negligent manufacture and supply of an electric typewriter. The plaintiff alleged that the electric typewriter caused a fire that destroyed his residence. The case was heard in the Supreme Court of Victoria. The plaintiff sought compensation for the damage caused by the fire, which he claimed originated from a transformer within the electric typewriter supplied by the defendant.

The legal issues before the court were whether the plaintiff had proved, on the balance of probabilities, that the electric typewriter was defective and caused the fire. The court had to consider whether the plaintiff's case was established by circumstantial evidence and whether the standard of proof in civil cases, as established in Briginshaw v Briginshaw and Transport Industries Insurance v Longmuir, had been met. The court also had to weigh the conflicting evidence presented by both parties regarding the source and origin of the fire.

The court found that the plaintiff had not discharged the onus of proving that the electric typewriter was defective and that it caused the fire. The evidence presented by the plaintiff was largely circumstantial and there were significant inconsistencies in the accounts of witnesses and the documentary evidence. The court held that the plaintiff had not met the required standard of proof on the balance of probabilities. The court also noted that the evidence of the defendant, including expert testimony, provided a plausible explanation for the origin of the fire that was not related to any defect in the electric typewriter.

The court dismissed the plaintiff's claim and ordered the plaintiff to pay the defendant's costs of the proceeding. The judgment emphasised the importance of the standard of proof in civil cases and the need for clear and compelling evidence to establish liability in product liability cases.

Orders