Pendrigh v Canon Australia Pty Ltd
[2000] VSC 511
•6 December 2000
| 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 | 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 had not been switched on by activating the switch which was on the body of the typewriter.
At about 4.30 pm on the evening before the fire occurred, Mr Pendrigh had commenced to type a letter, but had not completed it when it came time for him and his wife to depart for a dinner engagement. They left at about 6 pm. Mr Pendrigh left the part-completed letter in the typewriter carriage and switched off the typewriter at its own switch. He did not turn off the switch at the wall power outlet, to which the power cord of the typewriter was attached. Next morning Mr Pendrigh left home early to visit a country property. After breakfast his wife performed some laundry work at the lower level of the house, and then left at 9.20 am to attend art class. At about 9.40 am a neighbour noticed flames and smoke in the house and called the CFA, which attended the scene by 10 am. The timber home was beyond saving when the fire crews attended.
Those inspecting the fire scene on the day of the fire concluded that the fire had originated at about the point near the window of the study where the desk had been situated. Both Mr Lang and Mr Neil Barnes said they also concluded that the fire commenced at a point above floor level which coincided with the height of the desk top. On the evidence before me, the only electrical item which had been present at that point, and which had been energised at the time of the fire, was the typewriter.
There is no dispute between the witnesses in this case that the buzzing sound emanated from the transformer of the typewriter. Nor is there any dispute that the buzzing sound represented a failure of the typewriter to comply with one of the manufacturer’s specifications. There is disagreement, however, as to whether the specification was concerned with safety or merely reflected the manufacturer’s awareness of consumer dislike for strange, but perfectly innocent, buzzing sounds. It is the plaintiffs’ case that the transformer was defective, and at risk of overheating and then catching fire. When the case was opened, counsel for the plaintiffs contended that the buzzing of the transformer was an indicator that the transformer was overheating, and that the manufacturer’s specification, which dictated that there be no buzzing noise, reflected its awareness that such a sound meant that the machine was at risk of overheating.
After the fire the damaged transformer was recovered, and was subsequently inspected by expert witnesses. On inspection conducted on behalf of the defendant by an electrical engineer, Professor R.E. Morrison, and upon testing of the resistance in the high and low voltage windings, the transformer was found, indeed, to be faulty but Professor Morrison said he could not say whether the fault preceded the commencement of the fire in the house (and, therefore, was the probable cause of the fire). The inspection revealed, too, that there was fusion in a conductor which comprised part of the thermal fuse which was installed in the transformer, and which was designed to operate so as to shut off power when overheating was occurring. The issue as it emerged between the expert witnesses on either side was whether the fusion of the thermal fuse had occurred in response to a fire which had originated elsewhere than in the typewriter, or whether the fusion resulted from a serious overheating which had occurred within the transformer itself, due to some defect in the component parts of the transformer, and which led to combustion within the transformer, thus starting the conflagration which destroyed the house. Mr Robert Barnes, the expert witness called for the plaintiffs, supported the latter explanation. The experts called for the defendant, contended that it was improbable that the transformer could have caused the fire.
On the plaintiffs’ behalf, it was contended that it was unnecessary to establish precisely what fault caused the transformer to ignite. It was sufficient to establish that it could only have been the typewriter that was capable of causing the fire at the place where the evidence proved the fire had originated. Once that was established, the liability of the defendant was established on the balance of probabilities.
On behalf of the defendant, however, it was submitted that the transformer was not defective before the fire commenced, and that the transformer was designed and manufactured in such a manner that it was highly improbable that it could catch fire. That fact, of itself, so it was submitted, confirms that the plaintiffs’ witnesses were in error in fixing upon the study desk as the place of origin of the fire. For the defendant, it was contended that the plaintiffs had concentrated attention on the typewriter not because they could demonstrate that it was defective or was capable of erupting in flames, but because they had wrongly assessed that the fire started at the point where the typewriter had been located. In fact, so it was submitted, the plaintiffs failed to prove that the fire originated in the study at all, let alone at a place near the desk top in the study. Thus, the plaintiffs had simply jumped to conclusions which were not justified on the evidence, all deriving from the erroneous presumption that the fire started on the desk in the study. The plaintiffs were confirmed in their mistaken belief because of the buzz in the typewriter yet, so it was submitted, the buzz has now been shown to have no significance at all, and to have no direct relationship, at all, with the source of the fire, given the theory as to the cause of the fire which the plaintiffs’ expert witness, Robert Barnes, eventually settled upon. Because the plaintiffs and their expert witnesses fixed upon the desk as the location where the fire commenced, other potential sources for the origin of the fire have not been eliminated, nor been adequately addressed, so it was submitted.
The place of origin of the fire
The primary way in which the plaintiffs’ case was put was that the origin of the fire could be established as having been in the study, and, specifically, at a place above floor level - at about desk height - in the study, at the place where the desk and typewriter had been located. Given that the typewriter was the only electrical item which was located at that point and was energised, it followed that it must have been a fault in the typewriter which caused the fire. On that analysis, it was unnecessary for the plaintiffs to establish precisely what fault caused the typewriter to catch fire.
On behalf of the defendant, it was conceded that if it was established to my satisfaction that it was indeed the typewriter which caught fire and caused the house damage then it could not be contended otherwise than that the defendant would be liable for the consequent damage. The defendant submitted, however, that the technical evidence should satisfy me that it was improbable that a fault in the typewriter could have occurred so as to cause a fire, and that I should reject the evidence which sought to prove otherwise by a process of elimination derived from the supposed point of origin of the fire. Counsel for the defendant submitted that the evidence as to the origin of the fire which was led by the plaintiffs was deficient, and, in particular, started from an assumption that the typewriter was the source of the fire.
The evidence as to the place of origin of the fire which was led by the plaintiffs came primarily from two witnesses, Mr Lang and Mr Neil Barnes, but was supported by other evidence. Mr Lang attended the scene on the day of the fire on behalf of the insurer of the property. He remained at the scene for two hours and returned the following day for six hours, at which time he carefully searched through the debris, looking for indicators of the source and origin of the fire.
Mr Lang held formal qualifications as an A grade electrical mechanic and served with the CFA and the Fire Brigade for 30 years until his retirement in 1984, at which time he commenced employment as a fire cause investigator and electrical contractor, in private practice. He had vast experience, including two years on secondment with the Victoria Police Arson Squad. He told me that he had attended some 1500 fires as a fire officer and about 500 as an investigator. His Resumé was impressive as to his memberships of relevant committees and associations, and his awards, and training, as an arson and fire investigator.
Mr Neil Barnes held formal qualifications of a Diploma of Applied Science (Chemistry) and Graduate Diploma in Environment and Occupational Health and Safety (Analysis). He had twenty one years experience as a forensic scientist specialising in fire and explosion investigation, which included a period of some 10 years when he was the Officer in charge of the Fire and Explosion Section of the Victorian Forensic Science Centre, until his retirement in 1988. From that date he was a private consultant and from 1992 to 1998 was the manager of the Fire Investigation and Fire Modelling Section of the CFA. He told me that while engaged with the Victorian Forensic Science Centre he would have been involved in the investigation of some 3500 fires and that from the time of this fire in 1996 until the present he would probably have investigated a further 2000 fires. Mr Neil Barnes attended this fire scene in his capacity as a CFA officer, being specifically charged with responsibility to check the opinion of the senior CFA officer then in attendance at the scene, Mr Flett. Mr Barnes spent some two to three hours at the scene on the day of the fire.
The firm opinion of both Mr Lang and Mr Barnes was that the origin of the fire was the study, on the second level of the house. Furthermore, they were in agreement that the fire commenced near the south wall of the study, and above floor level. They were both of the opinion that the fire commenced at a place consistent with the height of the top of the desk in the study. On that desk sat the typewriter, energised – as it had been for some 15 hours before the fire commenced - and producing a buzzing sound which was an emanation contrary to the specifications of its manufacturer.
The witnesses referred to a number of significant factors which they said demonstrated the origin of the fire. Both Mr Lang and Mr Neil Barnes said that they could discern a clear “V” pattern on the south side of the house, which emanated from the study, a factor which Mr Barnes said was strongly indicative of the origin. Furthermore, they saw what Mr Lang called a flow pattern, and what Mr Barnes called direction indicators.
Mr Lang said that the fact that most of the bearers were intact on the study floor, in comparison with the floor of the kitchen, above, was a significant indicator that the fire started below the kitchen. The severity of the damage to the walls in the vicinity of the study, was also significant as to the study being the origin of the fire, and the nature of the burning to the walls was consistent with fires started above floor level, he said.
Both Mr Lang and Mr Barnes were of the opinion that the fire started above the floor level in the study, and near the window of the study. This opinion, if accepted, is obviously very damaging to the defendant’s cause. It was submitted by Mr Riordan, counsel for the defendant, that given the totality of damage to the southern wall of the study it was not possible for the witnesses to have drawn this conclusion. Furthermore, he submitted, there were inconsistencies and uncertainties in the evidence which demonstrated that the firm opinions which were offered were not justified. What was happening, counsel submitted, was that the witnesses were starting from the knowledge that there was a typewriter on the desk and were then leaping to a conclusion as to the place of origin of the fire which was not justified on the evidence from the scene. That is a contention which necessitates careful attention, and I have subjected the evidence of the two witnesses to close scrutiny on this issue.
The entire wall, and window, of the study was destroyed in the fire, but the wall and window frame of the adjoining room was largely intact, and from the placement of that window, and the burn marks on the southern wall of that room, the witnesses said they could draw conclusions as to the pathway of the fire from the window in the study, after that window would have exploded in the fire. Although Mr Lang said that one factor which suggested that the fire started at desk height was the fact that the fire exited through the window of the study, he agreed with counsel for the defendant that even if the fire started at floor level then at some point it would have reached the desk and fire would then have exited through the window. To his observation, however, there remained a distinctive pattern in the pathway of the fire, from the window and laterally to the adjoining rooms. He said the damage on the floors above and below where the desk had been located produced a fire pattern which indicated, to his eye, that it had started above the floor at about the height of the desk. The fact that the ceiling above the desk’s position had been completely burnt out, whereas the floor of the study retained substantial beams, meant that the burn had commenced “some distance above, at what height, I envisage it’s about approximately at table height, because of the burn pattern that has come out through the window”.
Mr Lang said that the photographs taken on the day following the fire were unable to show the pattern which he identified at the scene; it was a pattern of which he said he had previous experience when dealing with “elevated fires”. He said that when something sits on a desk and burns down “it creates an entirely different flow pattern of fire within the room”. He was asked to further explain and said: “It’s very difficult to explain, having looked at a lot of them”. He said that the bearers underneath where the desk had been had a burn on top where the flooring had been burnt off, which meant to him that the fire had come from above that spot, and the wall damage also indicated a fire which had burned from an elevated position, upwards, and had then moved laterally and then burnt down low again. He was asked why the damage might not be consistent with a fire starting at floor level - at the power point - and said “It’s just an extremely difficult question to answer. Just from my previous experience, such as television sets catching on fire, that you always have that level of indication that the fire has started above the floor”. He said that had the fire started at floor level he would have expected more damage to the bearers on the floor of the study, and the bases of the vertical wall beams would also have been destroyed.
As to the flow pattern, Mr Lang said he saw beams which by their burnt shape demonstrated a vertical fire moving from the study, but the most important factor was the damage to the bearers of the kitchen floor, when contrasted with the floor of the study. He said the kitchen floor damage was a total burn-out which was “quite incredible” and which indicated that it had been pre-heated from below. Had the fires started on the third level it would have burned down to the passage area in the second level but the signs did not indicate that the fire had flowed in that direction.
Mr Neil Barnes’ evidence was substantially consistent with that of Mr Lang. There was no suggestion that Mr Barnes had any interest in the outcome of the case. He was not engaged on behalf of one of the parties when he conducted his investigation with Mr Flett; he was simply performing his job as the CFA fire investigator. Apart from what he said was the strongly indicative V pattern he had also walked up the stairs to the second level, but could not proceed into the study area itself, because the flooring was unsafe. The charring to the stairwell indicated to him that the fire had spread from the second level to the third level. He had no doubt that the fire had commenced in the study, He said the directional charring to the walls of the study was more severe on the study side than the other side and that there would have been a lot different charring to the walls in the study and to the stairway had the fire started in the kitchen and then spread down. In particular, the charring to the kitchen floor beams would have been entirely different, and also the wall charring of the study. The beams above where the desk had been were more deeply charred than the side of the beams facing the kitchen. The remaining wall frames were more burnt to one side and were rounded on the study side and square on the opposite side, all these being “very specific direction indicators of which way the fires actually spread.” He said: “It was quite easy to pick which way the fire had spread, from my experience”. He said there was no likelihood, at all, that the fire started anywhere else except the study.
As to the place in the study where the fire commenced, Mr Barnes said that the damage to the flooring and the stairwell damage, taken together with the exterior damage, led him to conclude that the seat of the fire was in the area of the desk along the south wall of the study. He concluded that the desk had collapsed and the fire had then burned through the floor to the garage below. The desk was totally consumed.
The evidence of Mr Lang and Mr Neil Barnes was strongly challenged by counsel for the defendant. Both witnesses based their conclusions on observations they made at the scene of the fire. A series of photographs were taken by the CFA officers and were tendered, but were regarded by the witnesses as being inadequate for the purpose of demonstrating the factors which were of importance in the formation of their opinions. It was, however, only to those photographs that witnesses challenging the opinion of the plaintiffs’ witnesses as to the origin of the fire could refer. Mr Neil Barnes said that to observe the V pattern you had to stand 10-15 metres away from the south wall of the house, which the photographer had not done. He accepted that the photographs might not show to a viewer the distinctive V pattern which he had seen but, he said, “you had to be there”. Asked whether there was any likelihood that the fire commenced elsewhere than in the study, Neil Barnes responded: “No, none at all”.
To the evidence of Mr Lang and Mr Neil Barnes there should be added the evidence of the CFA officers who attended the scene. A Fire and Accident Report Form was completed by a fire officer attending the scene and was tendered, but in the absence of the writer the opinions expressed in it were not sought to be relied on. Counsel for the plaintiffs did, however, rely on the report of Mr Flett, the Acting District Officer who attended the scene and who wrote a detailed report as to his observations and opinions. Mr Flett was to have given evidence, but a combination of a serious illness of his wife and the consequent stress of that illness on himself meant that he was not able to be called. Counsel for the defendant did not object to the tender of the report of Mr Flett but submitted that I should give it reduced weight because of the failure of Mr Flett to give evidence.
In his Structural Fire Investigation Report Mr Flett stated that the severity of damage indicated that the area of origin was in the study, and that: “On investigating the study area, it was established that the area of origin was where a desk was located”. As to the other signs Mr Flett reported “Due to the damage sustained by the building, V patterns were difficult to distinguish but were evident on the rear external wall adjacent to the study. Depth of charring on timbers in the study area also gave an indication to the area of origin”. Additionally, he reported that: “Second level ceiling timbers found displayed deep charring, particularly in the area above the study and desk”. He noted, too, that the extent and depth of charring was more significant in this area than others, thus indicating the study as the area of origin. The “Point of Origin” was said to be “Location Desk adjacent to the window in the study”. He noted “Depth of charring, overhead damage and penetration through the floor into the garage indicated that the fire had originated in the area where the desk had been located. Desk was totally destroyed in the fire”.
I make due allowance for Mr Flett’s absence as a witness, but all of those observations made and recorded contemporaneously are consistent with the evidence of Mr Lang and Mr Neil Barnes, who also attended the scene.
Neither Mr Lang nor Mr Neil Barnes purported to give expert evidence that the typewriter had caught fire. In essence, their position was that the fire started where the typewriter was, and where no other energised item of equipment was located, and in circumstances where they found no indication of any other source of the fire. Neither was asked whether they had previous experience of fires being caused by a faulty transformer in a typewriter (or in any other item). Mr Lang said, however, that from his experience in other electrical investigations there is a potential ignition source wherever there’s a potential electrical energy source. He said his experience was of having conducted several hundred investigations into fires caused by electrical faults. The fact that the fire started in a very short time, possibly 20 minutes, would still be consistent with its origin being an electrical appliance, he said.
Mr Barnes inspected the scene with Fire Officer Mr Flett and they located the power point and its wiring which had been on the southern wall of the study near floor level. It was this power point to which the typewriter had been plugged. There was no evidence of any arcing or other defect in that wiring. He was not able to inspect any other wiring in the room. As to whether any other appliance might have been implicated, the only item which counsel for the defendant could suggest was the halogen light which had been in the ceiling of the study, above the desk. That was not a very common cause of fire, Mr Barnes said, but, he said, they do have transformers. The transformer for the halogen light was also recovered, but no witness suggested that it was shown to have been faulty. He did not think that the halogen light would cause the desk and typewriter to ignite, but it depended what was on the desk. (As I will later discuss, the halogen light must be excluded, in my opinion.) He agreed that typewriters of this composition do not ignite easily, but said that once they had ignited they burned readily.
Counsel for the defendant submitted that the evidence of Mr Lang and Neil Barnes as to the degree of damage to the kitchen floor bearers was inconsistent, in that the former said they were almost totally destroyed, whereas Mr Barnes said there were substantial remnants remaining. Among other criticisms, he contended that Mr Barnes’ evidence as to severe charring to the underside of the bearers was a recent invention. I do not consider that the criticisms were justified. Such differences as there were between them in their evidence were either explicable or were unimportant.
I found the evidence of Mr Lang and Mr Neil Barnes powerful and persuasive. It was submitted that Mr Lang was not an independent expert - being retained by the plaintiff’s insurer - but nothing in his evidence caused me to doubt his objectivity. In the absence of clear and compelling photographs one is dependent, to some extent, on their assertions of what their experienced eyes showed them. Given their vast experience of fires that is likely to be strong evidence if they are accepted as reliable witnesses. There is, of course, the danger that having been told, at some stage, that a typewriter was in the study (and it does not appear to me that they were told that the typewriter emitted a buzz, or gave any other indication of a possible fault) they may have fixed on that as the conclusion to which their investigations must inevitably lead, but I saw no indications that they did approach the matter in such a manner. Indeed, the report of Mr Neil Barnes indicates that he and Mr Flett had concluded that the fire had originated near the window in the study prior to being told that there had been a desk at that location. Mr Barnes and Mr Flett, as professional colleagues, worked together, but came to the same conclusions as to the fire originating in the study at the area of the desk. It was Mr Barnes’ duty to specifically check the opinion of Mr Flett, so as to ensure that it was correct. Mr Lang worked alone, and was eventually directed away from the scene by the fire officers, on the day of the fire, because it was unsafe.
In addition to Mr Lang and Neil Barnes, I heard evidence from other witnesses as to the probable source of the fire. These witnesses did not attend the fire scene but relied on interpretation of the photographs. Thus, for the plaintiff, Mr Robert Barnes supported the conclusions of Mr Lang and Neil Barnes. I will later discuss the qualifications of Robert Barnes, but it is sufficient to note that he had considerable experience in the investigation of fires. All expert witnesses were permitted to remain in court so as to hear each other’s evidence if they chose to do so. Mr Robert Barnes said that the methodology employed by Mr Lang and Neil Barnes was appropriate, and his viewing of the photographs led him to the same conclusion as they had reached about a V pattern emanating from the study. Whilst the photos were inadequate for the task of checking the other observations which had been made at the scene he did note that one upright shown in a photo showed more damage on the study side than on the outer side. He said that the most severe lower level damage coincided with the place where the desk had been located.
For the defendant, the witness John Marshall disputed the conclusions reached by Mr Lang and Neil Barnes. Whilst acknowledging that “without doubt” he was in an inferior position to that of Mr Lang and Neil Barnes, because he did not inspect the scene, he contended that the photographs suggested that the fire might have originated in the kitchen or in the ceiling above the study, rather than in the study itself, and that the damage to the study may have been the product of a secondary fire. Mr Marshall suggested that Mr Lang’s evidence of what he called the flow pattern was: “unscientific and not based on any technique of forensic examination method that I am aware of”.
I did not regard Mr Marshall’s evidence as to the origin of the fire as being very persuasive. In contrast to the vast practical experience of fire investigation held by Mr Lang and Neil Barnes, Mr Marshall’s practical experience in fire investigation, on close scrutiny, is very modest. That lack of experience, when coupled with the fact that he did not attend the scene, means that I would be slow to favour his opinions over those of Mr Lang and Neil Barnes. Indeed, his experience in this regard is inferior, also, to that of Robert Barnes. In any event, while leaving open the possibility of other sites as the place of origin of the fire, Mr Marshall conceded that there was far more severe damage evident at the front wall of the study than elsewhere in the house. If the fire did originate in the study then he accepted that certainly one possibility was that it started at the typewriter, but said other possible sites for a study fire were the three power point locations and their fixed wiring. Only one of those power points was near the southern wall; that was the one near the floor of the southern wall, alongside the desk. As I have said, the wiring for that power point was recovered and examined, and no fault was observed as might suggest that it had caused the fire.
The evidence of all of these witnesses leads me to the confident conclusion that the study was indeed the place of origin of the fire. I have no difficulty accepting that evidence. However, it remains to be assessed whether I can be equally satisfied that the precise location of the origin of the fire was at or about the location and height of the desk in the study. In considering that question, there is a danger, as counsel for the defendant cautioned, that by placing to one side the scientific evidence as to the likelihood, or otherwise, of the transformer producing a flame, one could uncritically elevate the strength of the fire scene evidence to that of near certainty as to whether the precise placement of the origin of the fire was on top of the desk. I agree that before reaching any conclusion it is appropriate that I should test the evidence of Mr Lang and Neil Barnes against the expert evidence as to the likelihood, or otherwise, of the transformer having caught fire and starting the conflagration.
was the transformer capable of causing the fire?
The transformer from the typewriter was recovered after the fire, in a badly damaged state. It was examined by Professor Morrison, Mr Marshall and by Mr James Schwerin, for the defendant, and by Mr Robert Barnes for the plaintiffs. Their opinions were far from united as to what was disclosed upon examination. Mr Schwerin, who was the last expert witness to give evidence, could not be regarded as being an independent witness, insofar as he is the Assistant Director of Research and Development for Canon Business Machines Inc of California. The others were all engaged by the parties as expert witnesses. Before dealing with their evidence it is first necessary to consider the specifications and manufacturer’s instructions which related to the typewriter and its transformer.
The instructions which came with the typewriter gave no directions or advice as to the appropriateness of leaving the machine plugged into the wall and switched on at the wall when the typewriter was not in use. The instruction manual merely directed, “in case of trouble (smoke, odd smells, or noise) disconnect the plug from the outlet immediately. Keep obstacles away from the outlet so you can disconnect any time”.
The instructions, under the heading “Turning the Power On”, read as follows:
“1. Plug the power cord into an AC outlet.
2. Turn the power switch on as shown in the illustration.”
The illustration showed a switch on the right side of the typewriter, near the rear of the typewriter. The power cord ran from the main to the rear of the machine and thence to a transformer.
The internal construction of the transformer comprised an “E” frame laminated core wrapped with a high voltage winding, in turn overwound with a low voltage winding. An insulating compound polymeric “yoke”, called a “former”, separated the high voltage windings from the low voltage windings and separated the high voltage windings from the core. The high voltage windings were closer to the core than the low voltage windings. The “E” frame core was covered by a laminated “bar”, which was welded on to the transformer after the assembly of the insulated windings to the “E” frame core. The transformer was designed to reduce the power from 240 volts mains power to 14 volts. Because the switch to the machine came after the power had first travelled from the power point to the transformer - in the electrical sequence - this meant that if the typewriter was plugged into the wall and the switch turned on at the wall the transformer would be energised even if the switch on the machine was itself not turned on so as to activate the typewriter.
The transformer, being designated HN8-3022, was made for Canon Business Machines Inc by Tabuchi Electric Company of America. The specifications for the transformer noted that its rated primary voltage was 230 volts. Under the heading “Temperature Rise” the specification noted as follows:
“5.11 Temperature Rise
The temperature rise on each winding and core shall not be more than 50 degrees when a temperature equilibrium is reached on the transformer which has been energised with 230 volts applied across the 230 volts primary input terminal. The load conditions shall be 1.4 Adc. The winding temperature shall be determined by the resistance method, and the core temperature shall be determined by the thermometer method.”
The dimensions of the core of the transformer were 58 mm by 40 by 50 mm. It was made of cold rolled steel or silicon steel. The insulating materials comprised a moulded bobbin of glass reinforced polyethylene terephthalate. This was the “yoke” or “former”. The primary winding comprised 1010 turns, the secondary winding 63 turns. The winding was made of copper wire. The transformer had a thermal fuse which operated at 133 degrees Centigrade. The casing for the typewriter was treated with a flame retardant of class UL94V-O.
Under the heading “Others”, specification 8.1 read as follows:
“8.1 Audible Sound Check
The Transformer shall not produce any audible buzz when a test voltage of 264 volts, 50 HZ is applied across its 230 volts primary input terminal. In case of doubt, a limit sample shall be used.”
From the time when the typewriter was purchased some two years earlier it had buzzed whenever it was plugged into the wall and when the wall switch was turned on so as to activate the transformer. Mr Pendrigh said the buzz was a low pitch, faint vibratory sort of noise, which was much softer than the sound of a blowfly, but could be heard when one sat quietly at the typewriter. His wife said that it was a low buzz which was not very audible, but which worried her and caused her to insist to her husband that he should turn off the typewriter at the wall outlet when he finished using it. Mr Pendrigh, however, frequently forgot to turn off the typewriter at the wall, and on the day of this fire the typewriter had been energised for some 15 hours from the time when on the previous evening, Mr Pendrigh had left an unfinished letter in the typewriter, and had gone to dinner. He did not cover the keyboard with the typewriter cover with which it was equipped. I am satisfied that he turned off the light switch to the study, and thus, the overhead halogen lamp was not energised and, as Mr Marshall accepted during cross-examination, could not have been the source of the fire.
It seems likely, given the infrequency of use of the typewriter, that on occasions Mr Pendrigh may have left the typewriter turned on at the wall outlet for days at a time, if not longer. Nothing in the specifications suggested that it would be inappropriate to do so, and it was assumed by the manufacturer that such would often be the case with users of the typewriter.
It was the plaintiffs’ case that the probable cause of the fire was a failure of the transformer, and that whilst it was unnecessary to do more than demonstrate that the place of origin of the fire meant that it must have been the typewriter that caused the fire, an examination of the remains of the transformer confirmed that it had in fact failed and had caused internal overheating and fire. Precisely why that overheating occurred was, once again, unnecessary for the plaintiffs to establish, so it was contended. The evidence of internal overheating, so it was submitted, was merely confirmation of the proof of responsibility which was independently established by the evidence of Mr Lang and Mr Neil Barnes, as to the place of the origin of the fire.
Robert Barnes, who was called for the plaintiffs, is a forensic consultant who specialises in investigations of materials, fires, explosions, and firearms. He holds a Fellowship Diploma in secondary metallurgy. He is a chartered engineer and chartered chemist and holds membership of the Royal Australian Chemical Institute, the Institute of Materials and the Institute of Explosives Engineers (UK). He had some 25 years experience in investigations, including the period 1987 to 1993, when he was responsible for the forensic investigations of all fires and explosions in Victoria for the Victoria Police. In that period he was branch manager of applied science, and that branch had several sections, one of which was fire and explosions, which had as its head, initially, Mr Neil Barnes. In other words, Mr Robert Barnes had overall responsibility for fire and explosions investigations, but Mr Neil Barnes was his deputy with respect to that investigative work. After a couple of years, Mr Neil Barnes left to join CFA as its fire investigator. Mr Robert Barnes later became assistant director of the chemistry section, which had responsibility, overall, for materials investigations. His Resumé states that he has conducted many hundreds of investigations of fires, bombings and other incidents, including residential house fires. He was not asked, and it was not clear to me, how many of his investigations concerned house fires, or more precisely, house fires related to faulty electrical appliances.
The qualifications of Robert Barnes as a metallurgist, chartered engineer and chartered chemist are coupled with membership of associations concerned with arson and explosives investigations. He is also a member of the Technical Advisory Panel for Materials Testing of the National Association of Testing Authorities, which he said tested a wide range of materials and chemical testing procedures. He served for 10 years as a Standards Australia committee member in relation to dynamic testing of materials.
Mr Robert Barnes wrote several reports which were tendered. He examined the transformer which had been found at the scene and eventually cut it open so as to examine the interior. He noted that the laminations which comprised the iron core had separated, and the insulation which had coated the laminations had been removed by the fire.
Upon his inspection of the damaged component parts of the transformer (which he said comprised an intensive macro examination), Mr Robert Barnes concluded that whilst there was obvious extensive damage caused by the fire, there was clear evidence consistent with there having been a severe fire which had originated internally in the transformer. Among the factors which led to that conclusion were the following matters:
(a) There was damage both to the laminations and the windings which was more severe on those surfaces which faced internally towards the core of the transformer than on those surfaces which would have been closer to an external flame. The surfaces which would have presented to an external fire indeed showed damage consistent with being caused by an external fire - in particular, showing the characteristic reduction in intensity of damage as the flame moved towards the interior of the transformer. On the internal surfaces, however, Mr Barnes saw signs, he said, of overheating and of a fire which had originated internally in the transformer, which signs were not referable to an external fire source;
(b) Examination of the insulation yoke, or former, which separated the high voltage and low voltage windings showed damage consistent with internal combustion. The side of the yoke which faced towards the high voltage winding side of the former (and thus towards, and closer to, the interior of the transformer) sustained damage which was different from and more severe than that shown on the low voltage winding side. The damage on the low voltage side was consistent with being caused by an external heat source, but on the high voltage side there was evidence of severe overheating, and the presence of bluish “hot spots” on the yoke. The damage on the low voltage side was less pronounced than that on the high voltage side, and there was no evidence of hot spots, he said. He excluded as an explanation an external fire having caused the damage on the high voltage side of the former, because where the hot spots were found was an oxygen-deprived location and was comprehensively protected from the effect of external fire;
(c) The high voltage windings, themselves, had a discrete region of localised overheating which had affected, perhaps, eleven turns of the high voltage windings, with complete consumption of the insulation at that point, and with the surface of the copper conductors being significantly oxidised and bearing signs of severe overheating. The location of the damage to such an area of the high voltage windings was consistent with the hot spot areas found on the high voltage windings side of the yoke, which surface pressed against the windings. The low voltage windings showed no similar signs referable to a hot spot, and no similar evidence of severe degradation of the copper conductors.
The opinions of Robert Barnes - in particular as to the significant differences in appearance between the high voltage windings side of the yoke and the side facing the low voltage windings - gained support and apparent confirmation by photographs taken by him and tendered in court.
Mr Barnes had a theory as to what had occurred. Aspects of his theory underwent some modification over time. Mr Riordan, counsel for the defendant, observed, with some justification, in his final address that it was difficult to grasp precisely what the theory was. It seemed to me that aspects of the theory were under continuous development both during the course of the evidence of Mr Barnes and during the cross examination of defence witnesses by counsel for the plaintiffs. In fact, many of the theories and possibilities which were explored by counsel for the plaintiffs during cross examination of defence witnesses were never discussed by Robert Barnes in his evidence, or by any other witness called by the plaintiffs. At the same time, some of the issues which Mr Barnes did raise in his evidence in chief or in his written reports were neither the subject of cross examination, nor of comment by defence witnesses. In those circumstances, gaining a clear understanding of the competing contentions as to highly technical evidence was not an easy task, and I have found it necessary to read and re-read the transcript and exhibits in order to gain what I hope to be a reasonable understanding of the competing contentions. Having done so, I have concluded that whilst Mr Barnes did shift position as to some issues, the thrust of his theory remained constant.
Mr Barnes said that the buzzing of the transformer may have indicated that there was a pre-existing electrical fault, which later caused overheating. Mr Barnes said that the process which probably occurred was that a localised breakdown of the insulation occurred on the high voltage windings, thus creating a new pathway for the current, which in turn would create further heating. This, he said, was a process known as “tracking” or “current tracking” and arises without a short circuit necessarily being caused. (Had there been a short circuit the thermal fuse would have been activated, and would have shut off the power to the transformer). This process would be sufficient to lead to an outbreak of fire, which would spread from the burning insulation thence throughout the transformer. Once the fire spread from the fully enclosed yoke the rapidly increasing heating would cause the thermal fuse to then activate, but the fire would then be under way and would continue. He said that inspection of the thermal fuse showed that its conductor had fused, but, as he stated in one report, “it is noteworthy that localised intense heating leading to combustion associated with tracking phenomenon will not cause fusion of a thermal fuse in the early stages”.
As to what caused the breakdown in the insulation in the high voltage windings, thus leading to the process of current tracking, Mr Barnes said in his written report of 3 September 2000 that degradation of the insulation for the high voltage windings could have been produced by virtue of the windings, at manufacture, having been inadequately located or fixed, or by being wound unevenly. That would, in turn, lead to excessive heating at a localised spot, then to a hot spot, and then flame. Whilst it was now impossible to demonstrate any such manufacturing defect by reference to the damaged transformer, itself, the fact that such manufacturing defects might occur could be seen, he said, by photographs which he had taken of an exemplar transformer, which had such faults in the windings. Whilst he accepted that those defects in the exemplar transformer could have been caused during the process of sectoring of the exemplar transformer for exhibition purposes, he said that it was equally possible that that transformer, and the transformer in this fire, had such defects at the time of manufacture.
In his oral evidence Mr Barnes said that the damage to the laminations was typical of an internally generated heat source, and was inconsistent with fire damage arising from external heat and flame, because the transformer core had expanded due to oxidation of the insulation (ie. the coating of insulation separating the laminations), damage which, he said, required high temperatures deep within the core, which is otherwise protected from external heat or flame. (As will be later noted, one defence witness, Mr Marshall, contended that the fact that the core is so well protected from heat is the same reason why it cannot flame, ie, it is coated with fire retardant insulation and is in a location without oxygen.)
Almost all of the critical findings and conclusions which Mr Barnes drew from inspection of the parts of the transformer, and his opinions as to the suggested pathway and mechanism of fire erupting and escaping from the transformer, were disputed by one or more of the experts called by the defendant, who had conducted their own inspections.
For the defendant, three expert witnesses gave evidence. Mr John Marshall is a metallurgical engineer, having gained his degree in 1987. He is a member of professional arson investigation and forensic associations, including the Institute for Metals and Material Australia. He said he had investigated some 600 domestic, retail, commercial and industrial fires, including some arising out of wiring faults and electrical appliance malfunctions. Professor Robert Morrison is Sir John Monash Professor of Electrical Power Engineering at Monash University, and after gaining his Ph.D in 1981 specialised in power systems design in the UK and Australia. The third defence witness, Mr James Schwerin, gained a degree in science (in electrical engineering technology) in 1974, and after seven years in the aerospace industry, then spent nine years designing electronics for high speed printers. He joined Canon Business Machines Inc in 1991, where he is now Assistant Director of Research and Development Systems at its R & D Centre in California.
In broad terms, and without being exhaustive, what was contended by some or all the defence experts was that:
(a) the damage, on inspection, was entirely consistent with it all having been caused solely by externally generated fire;
(b) the “hot spots” were not necessarily so, and were artefacts which may not give any indication of a specific localised area of added heat, or, even if they did, were signs not inconsistent with being caused by an external fire;
(c) “hot spots” would not be expected to occur in a transformer of such low voltage;
(d) defects in the windings could not have generated fire, as the area has no oxygen;
(e) the thermal fuse was designed to cut off the power once heating such as Mr Barnes described began to occur; once the heating source was removed there is no possibility that overheating could have continued to the stage of fire;
(f) the material with which the components of the transformer and the typewriter are made, and the insulation treatment applied to them mean that the components are fire retardant, or fire resistant, so that even if a fire started it could not be maintained once the heat source ceased;
(g) it is unknown, worldwide, in the experience of Canon, for a transformer in one of these typewriters to catch fire or malfunction by overheating;
(h) the buzzing sound is normal, and gives no indication that there is any defect in the transformer.
(i) there is no such thing as a “localised high current” in a transformer. The same current runs throughout the transformer. It is possible however, that if there were more windings at a specific place the heat at that point would be higher than elsewhere.
Before examining the evidence of the defence witnesses in detail I will address some particular issues identified by Mr Riordan, counsel for the defendant, as being instances of changes in the opinions of Mr Robert Barnes which emerged between his written reports and in his oral evidence. The changes in this evidence were demonstrative of the fact that Mr Barnes’ theories were of little weight, and his opinions should be disregarded where they were at odds with those of the defence witnesses, Mr Riordan contended.
In his final address, Mr Riordan, submitted that one substantial and unexplained shift in opinion on a critical issue related to the cause of the buzzing sound. In his report dated 3 September 2000, Mr Barnes commented on tests conducted by defence expert witness, Mr Marshall, and on a report by Professor Morrison. Mr Marshall had subjected specimen transformers to external burning, but in discussing the cause of transformer “buzzing” Mr Barnes said this:
“Transformer ‘buzzing’ may occur in consequence of vibration of the transformer core laminations under the influence of the induced magnetic field developed by the 240 Volt, 50 Hertz current flow where the laminations are inadequately clamped. Similarly, where windings are inadequately located or fixed, winding interference or ‘irritation’ can occur due to relative movement causing both insulation degradation and audible ‘buzzing’.
This defect will ultimately lead to insulation breakdown and localised overheating or hot spot development. This defect generally will be found in the primary winding in a step down transformer (that is, of the type used in the Canon typewriter).
Overheating in a localised zone can also occur in consequence of uneven winding of the high voltage (primary) winding leading to localised high current.
Each of the above defects arise in direct consequence of manufacturing defects and are unrelated to service conditions.” (My emphasis)
The two passages which I highlighted, above, were challenged by Professor Morrison as being scientifically flawed. I will deal later with the second issue, the contention that current might be higher at one place in the transformer than in others. As to the first issue, in his evidence in chief Mr Barnes apparently confirmed the contention, made in his report, and which had also been emphasised by counsel for the plaintiffs in his opening address, that the buzzing might relate to movement of the windings or their uneven placement. In cross examination, however, he said that the buzz was due solely to the movement of the laminations, and was not related to the location of the windings. He agreed that his theory as to the failure of the transformer was therefore predicated on there being two independent faults in the transformer: first, a looseness in the laminations which caused them to knock together and produce the buzz, and secondly, the development of a hot spot which is the product of unevenness or looseness in the windings. He related the two events as having some cumulative effect, however, even though they arose entirely independently. He said that the vibration in the laminations reflected a loss of energy, that is, it causes the production of heat, which although producing only a small rise in temperature would act cumulatively on any other increases of heating. The totality of the unplanned increase in heating would contribute to the degradation of the insulation of the windings, which, in turn, could produce current tracking. As I understood his evidence, he said that the vibrations in the laminations would affect the windings, if not in any mechanical sense then at least by adding unwanted heat which would affect the insulation varnish. He said that one outcome might be the production of eddy currents, which will themselves produce heat.
Thus, the mechanism of the fire, as he postulated it, might have occurred independently of any buzzing in the laminates. The hot spot indicated that the windings were uneven, and that fact, Mr Barnes said, would produce a difference in the current flow at different points on the windings. If there is a greater concentration of windings at one point the current at that point will be greater than at other points, which, in turn, might break down the insulating varnish, and lead to “current” tracking which leads to further heating, further breakdown in insulation, then to pyrolysis and burning.
It was conceded by Mr Riordan that at all times Mr Barnes had attributed the buzzing to vibrations in the laminations, whether or not he had also suggested that the windings, too, might cause such an audible noise. The explanation relating to the laminations was common ground among all of the experts. It was submitted that Mr Barnes had abandoned his alternative theory that looseness in the windings themselves may also have produced the noise, because he realised that it was untenable, but refused to acknowledge his mistake. When it was put to him in cross examination that he had previously advanced the alternative explanation, Mr Barnes said that he had not intended to convey that impression in his report, but said that what he intended to convey was that following on from the vibrations in the laminations there would be a “subsequent pull on effect” to the windings. The contention that vibrations in the laminations may translate to vibrations in the windings was not at odds with the subsequent evidence of Mr Marshall, who accepted that there could be a mechanical transmission of vibrations to the windings in that way. Whilst the passage cited from Mr Barnes’ report would seem to be quite clearly advancing an alternative hypothesis for the buzzing noise, it must be said that if he did change his position then he did so before any defence witness had challenged his opinion, in this regard. Whether this was a shift in position does not seem to me to be a matter of great importance, save for indicating that Mr Barnes might be less confident in his theories than his written reports otherwise suggested.
Another issue which I understood counsel for the defendant to say represented a shift in position related to the place over which the current tracking was said to have occurred. Mr Riordan submitted that the theory eventually advanced by Mr Barnes had the current tracking occurring internally within the former or yoke, a position which he suggested had been advanced so as to offer an explanation why the thermal fuse would not have opened in response to the generation of heat by current tracking. Because the heat was running within the former, and not externally, i.e. between the windings, the thermal fuse would not be activated until after the overheated former had caused combustion to occur. On close examination of the written reports of Mr Barnes, however, I am satisfied that this theory had always been advanced by him. Thus, in his report of 6 March 2000 he had referred to fire “breaking out” from the fully enclosed yoke, and in his report of 3 September 2000 he spoke of fire spreading “from within the primary winding insulation”. One difficulty in this case is that that neither counsel expressly drew that theory to the attention of any other witness, thus leaving me in the situation where it is difficult to know if it would have been rejected out of hand. I might add, that I am not surprised that neither counsel thought to do so because notwithstanding that I am satisfied he had always advanced this theory they, like me, may not have appreciated until very late in the case that Mr Barnes was postulating that the current tracking occurred within the former itself. It was not a proposition which was clearly articulated either in his written report or in his oral evidence.
I return to some of the issues on which the opinion of Mr Barnes was challenged by defence witnesses.
Professor Morrison disputed the contention of Mr Barnes (being the second matter highlighted by me in the above quotation from the report of 3 September 2000) that loose or unevenly located windings might cause current variations throughout the transformer, i.e. the notion of a “localised high current”. He accepted that the uneven placement of windings might produce greater temperature at one place rather than another, but not a difference in the current at any point. He said that a higher current could be produced in the primary windings if there was short circuit in the winding, but that was not the process which Mr Barnes was postulating. Professor Morrison said that the increase in temperature which would accompany uneven placement of windings would be so small, however – in the order of only a 1% or 2% rise – that it would have no effect either on the insulating varnish of the windings or on the yoke itself. Professor Morrison and Mr Schwerin both agreed that for the varnish to be degraded on the windings the temperature would have to climb to about 148 degrees Celsius. Professor Morrison said that he did not know at what temperature the yoke would be degraded, but Mr Marshall later accepted that the yoke would begin to soften at temperatures in a range between about 82 degrees to 100 degrees Celsius.
On the evidence, if the transformer was about to fail due to overheating it would first emit an offensive smell, but no witness ventured a time prior to failure when this smell would become apparent. It may be that such signs arose overnight, and without the Pendrighs being aware, since they did not re-enter the study.
If overheating in the yoke occurred in this case then it probably did so as a result of current tracking produced by some defect in the high voltage windings following insulation degradation. Mr Marshall said that it was “virtually impossible” for a fire to develop “within the closely constrained and concealed yoke”, because there would be very, very little opportunity for oxygen to be introduced into that area. Mr Marshall said that because there was no oxygen the former would simply char if there was an internal overheating, and that there was no possibility of that happening without the thermal fuse operating.
Those are significant comments, although I do not think that by his reference to “internal overheating” Mr Marshall was there intending to be addressing the precise mechanism of overheating within the former, itself, which was propounded by Mr Barnes. As I have said, Professor Morrison was certainly not asked to comment on that theory of internal, former, current tracking being the forerunner to a fire. If a fire did develop in that way I am unable to say what range of factors may have operated so as to generate the insulation breakdown and to cause fire without the thermal fuse or the insulation material itself having prevented the generation or maintenance of fire. Neither Professor Morrison nor Mr Schwerin, however, spoke of the lack of oxygen within the confined space of the transformer as being a factor which meant that combustion was impossible.
Robert Barnes was asked whether he could produce any scientific literature which suggested that such a hot spot would occur without the thermal fuse opening. He said he could not, but added, as an aside which betrays, perhaps, the reliance on experience over formal training: “But I have certainly formed that opinion”.
When tested by Professor Morrison after the fire, this transformer was found to be faulty. The question was whether it was faulty before the fire, or whether it was only the external fire which caused it to fail. Like Robert Barnes, I am impressed by the fact that on that side of the former which was furthest from an external fire, gross damage and significant blue spots, were found. At a point consistent with those hot spots very severe damage was seen on the high voltage windings. Those are objective findings which have not been adequately explained by the witnesses called for the defendant. While explanations such as corrosion due to water were ventured by Mr Marshall, he conceded that those were signs consistent with a localised increase in heating.
Robert Barnes’ theory that the thermal fuse would not have been activated at an early stage because the tracking pathway was within the former was criticised by counsel for the defendant as a contention which made no sense and was made only very late. A re-reading of his reports does, however, show that he had made this assertion (although not clearly) in his written reports, and I do not consider that it has been shown to be so untenable as to demonstrate that the plaintiff’s case could not succeed (in the event that other evidence, in combination, tended to prove the case).
The task of analysis of this evidence does require care, because there is a danger of elevating the reliability of the fire scene evidence above its value, and of undervaluing the evidence which suggests that it would be unusual for the transformer to have ignited. In many ways, this is a circumstantial case. The task in assessing such evidence requires that I consider the weight of the combination of facts which have been proved to my satisfaction and then to determine whether the combined weight of those facts and circumstances support the inference, as a matter of probability, that the typewriter was the cause of the fire.[1] It is only at that point that I should apply the onus of proof to the final stage of reasoning. Inference must be carefully distinguished from conjecture or speculation; there can be no inference unless there are objective facts from which it might be derived.[2]
[1]Transport Industries Insurance v Longmuir [1997] 1 VR 125, at 129 per Winneke P.
[2]Gaswell v Powell Duffryn Associates Collieries Ltd (194) AC 152, at 169, per Lord Wright.
I accept the contention of counsel for the defendant that when applying the standard of proof of the balance of probabilities, I should adopt the gloss applied by Dixon J in Briginshaw v Briginshaw[3], that before accepting that a matter had been proved I should feel an actual persuasion of its occurrence or existence. There must be a belief in the reality of the disputed proposition. It is appropriate to exercise care, because a finding against the defendant may have serious consequences for its reputation and that of its parent and related companies, worldwide. Having not before had a finding of heat or fire failure of this transformer an adverse decision could have serious financial consequences, worldwide, for the defendant. I have kept that uppermost in my mind, and this has not been an easy case to resolve; it was opened by counsel for the plaintiffs as having a simplicity and inevitability which I did not myself perceive, at any stage.
[3](1938) 60 CLR 336, at 361-362.
I am drawn to the conclusion that however inadequate the explanations offered by Robert Barnes for the pathway of fire from the transformer, and however much it may have been the intended design of the transformer that it should not erupt into flame, it is probable that it was the transformer which was responsible for the fire. That is so, notwithstanding the fact that I have no evidence that such a transformer failure has ever previously occurred in one of these typewriters. The inadequacies of the explanation do not overturn the fact of the proven location of the fire, and the fact that the transformer was capable of malfunctioning and causing a fire, even if that would be a very unusual event. If the windings in this transformer had been inadequately installed, then it was possible for insulation breakdown to occur and fire to result. Whilst it may be difficult for oxygen to get into the transformer it is not impossible, and will arise if there is any gap in the placement of the windings. Whilst the material with which the transformer was made was designed to be either fire retardant or fire resistant, a flame could be maintained even if the thermal fuse subsequently opened.
I have concluded that, taking all of the evidence together, and notwithstanding the skilful and seductive arguments of counsel for the defendant, I am persuaded, on the balance of probabilities, that it was the transformer which caused the destruction of the plaintiffs’ house. That being so, there was no dispute that the defendant would be liable for the damage which was caused, and it is unnecessary to address the various statutory or common law bases on which the plaintiff pleaded its action.
There was no serious challenge to the quantum of the plaintiffs’ claim for damages. The total which I will allow is $221,100 made up as follows:
Value of house $120,000 Block clearing 4,500 Rent 6,600 Contents 90,000
There will be judgment for the plaintiffs in the sum of $221,100. I will hear counsel as to costs and interest.
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