Pickett v Homeswest - [1999] WADC 10

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PICKETT -v- HOMESWEST [1999] WADC 10

CORAM: NISBET DCJ

HEARD: 5 &11 MARCH 1999, 15 JULY 1999

DELIVERED : 23 JULY 1999

FILE NO/S: CIVO 76 of 1997

BETWEEN: TRACEY PICKETT
Plaintiff
AND
HOMESWEST
Defendant

Catchwords:

Section 47A of the Limitation Act 1935 (WA) application for leave to institute proceedings - Proceedings enjoying no prospect of success - Leave refused.

Legislation:

Limitation Act 1935 (WA)

Result:

Plaintiff's application refused.

Representation:

Counsel:

Plaintiff: Mr B Nugawela and Ms T Laslett
Defendant: Mrs P Rafferty

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: Greenland Brooksby

Case(s) referred to in judgment(s):

Jaensch v Coffey (1984) 155 CLR 549
Keddis v WA Government Railways Commission, unreported; DCt of WA; Library No 4136; 1 September 1994.
Posner v Roberts [1986] WAR 1

Case(s) also cited:

Blum v MVIT [1966] WAR 121, 127
Brisbane South Regional Health Authority v Taylor (1966) 186 CLR 541
Davey v WA Coastal Shipping & Ors, unreported; SCt of WA; Library No 7983; 5 December 1989
Farris v Western Australian Government Railways Commission, unreported DCt of WA; Library No 4152; 20 September 1994
Gudgeon v Board of Management of Sir Charles Gairdner Hospital, unreported; DCt of WA; Library No D970052; 21 February 1997
Jackamarra v Krakouer & Another 153 ALR 276
Kennedy v The State of WA, unreported; DCt of WA; Library No 3762; 24 June 1993
Marshall v WA Government Railways Commission, unreported, DCt of WA; Library No 4093; 26 July 1994
Milentis v The State of Western Australia & The Minister for Education, unreported SCt of WA; Library No 9020; 30 August 1999
Northern Sandblasting Pty Ltd v Harris 71 ALJR 1428
Pitcher Products v County Roads Board [1964] VR 661
Ridgeway v Shire of Moora [1986] A Tort Rep 80-033
Roberts & Roberts v City of Gosnells, unreported; DCt of WA; Library No 2817; 18 July 1990
Victorian Railways Commissioner v Casaccio [1961] VR 157

NISBET DCJ: Section 47A of the Limitation Act 1935 (WA) provides that no action may be instituted against any body corporate, Crown agency or instrumentality of the Crown created by an Act, in respect of any neglect or default in the execution or intended execution of any Act or of any public duty or authority or in respect of any neglect or default in the execution of any such Act, duty or authority unless that action is commenced before the expiration of one year from the date on which the cause of action accrued.
The section goes on to provide that an application may be brought to the court for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued in which case the provisions of s47A(3)(b) apply:
"Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be was occasioned by a mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose."
By an originating summons filed 7 May 1997 the plaintiff sought leave to bring an action for damages against the defendant for personal injuries she claims she sustained on or about 17 August 1995 by reason of the negligence of the defendant in causing the death of her daughter.
In essence the plaintiff is seeking to bring an action against the defendant of the Jaensch v Coffey (1984) 155 CLR 549 type. The plaintiff's daughter Chloe, born 27 June 1992, died on 17 August 1995 when she was caught in a house fire in premises in Coolbellup which the plaintiff rented from the defendant.
The plaintiff's tenancy commenced sometime she says in about 1991 or 1992 when she was provided this accommodation by the defendant for herself and her then three children Chantal born 20 July 1986, Candice born 28 November 1989 and Chloe who, as I have already mentioned, was born on 27 June 1992. Sometime in 1995 the plaintiff said that her auntie Wendy Pickett and her husband and five children began staying with her as they had been evicted from another Homeswest property. The papers do not disclose the names or ages of these five children however the plaintiff deposes that on 17 August 1995 she went shopping with her mother and her sister leaving Chloe in the house with her first cousin Jasman Davis then aged 23, (in some papers his name is given as Jasmin) her nephew Cedric Anderson then aged 16 years and two other children David Austin aged 4 and Joshua Collard also aged 4.
Whilst the plaintiff and her mother and sister were away from their homes they were approached by another sister of the plaintiff who told them that their houses were on fire. Upon returning to her home the plaintiff saw her house in flames as was the house of her mother situated next door. Ultimately both houses were burnt to the ground.
The essence of the plaintiff's case is that upon learning that her daughter Chloe could not be found and was presumed dead, she was distraught and this trauma has left her with an identifiable psychiatric illness. She claims that the defendant is liable to compensate her for the damage she has sustained by reason of its negligence which in the first prospective statement of claim filed by the plaintiff and dated 22 September 1998 is pleaded this way;
"The defendant was negligent in that it:
(a)failed to adequately maintain the gas heater in the lounge room after the plaintiff had complained on numerous occasions that the safety switch was no longer working and that leaking gas could be smelt;
(b)failing to take any or any adequate measures to ensure that the premises were safe for occupation and normal use;
(c) allowing, permitting or requiring the plaintiff to still reside at the premises with her children in circumstances where it was unsafe for her to do so."
In her affidavit sworn 7 August 1998 the plaintiff claims that there was frequently a smell of gas in the premises which she claimed emanated from a gas heater in the lounge room the "safety switch" to which was defective. It was further claimed that another source of the leaking gas was from the griller facility in the gas stove in the kitchen. The plaintiff claims to have complained to the Homeswest Accommodation Manager for the Coolbellup area, Ms Julie Stewart, about the defective switch in the room heater and the smell of leaking gas coming from that heater and the stove in the kitchen. The defendant denies that such complaints were ever made.
The matter was first listed for hearing before me on 5 March 1999. By an affidavit sworn by the plaintiff on 3 March 1999 the plaintiff claimed that the "safety switch" on the gas room heater "was supposed to have prevented children from operating the gas heater" and went on to state: "If the defendant had repaired the child-proof safety switch when I complained that it had stopped working in or about 1993 I verily believe that my deceased daughter would not have been able to light the heater in the first place." The plaintiff's affidavit then exhibited a letter from the Western Australian gas supplier, Alinta Gas, attaching a copy of a report from a utilisation inspector dated 24 August 1995 wherein the inspector concluded from information received from a Detective Sergeant Willoughby of the Arson Squad that "the fire was caused by a young child in the house lighting paper on the burner of the gas space heater and then setting fire to the furniture".
The affidavit further exhibited the finding on inquiry of the State Coroner dated 29 December 1995 which reads in part as follows:
"On the 17th August, 1995 the deceased was in the lounge room of her house in which was located a gas heater. The deceased was observed to place a piece of paper into the heater causing it to ignite. The deceased then threw the burning piece of paper onto a nearby lounge chair which subsequently caught alight.
Upon the lounge chair catching alight the other occupants of the room exited the house. At this time it was noticed that the deceased had apparently not exited with the other occupants."
When the matter first came on for hearing before me on 5 March 1999 the plaintiff maintained that a child started the gas heater in circumstances where a child ought not to have been able to operate the gas heater but had been able to do so because of the faulty so-called child safety switch and that the defendant's negligence was in failing to repair the faulty so-called safety switch. During the course of the hearing the plaintiff's counsel accepted that the state of the evidence then before the court was such that the plaintiff's prospective action could only be regarded as speculative in the absence of any evidence as to who lit the gas heater, it being an available inference that an adult could have lit it, or a 16 year old visitor. Additionally, there was no evidence to link the alleged negligence of the defendant to the cause of the fire. In those circumstances, in his reply, plaintiff's counsel sought an adjournment to enable him to bring further evidence before the court. I accordingly adjourned the matter to 11 March 1999 to enable the plaintiff to file further affidavits to address the defects in her case.
By affidavit sworn 10 March 1999 the plaintiff deposed that it was her belief that one of the children at the house "aged between 3 years and 7 years old" turned the heater on. She said that the heater was definitely not on when she left the home that morning and exhibited a copy of one page of a statement she made "some time in 1996". The plaintiff does not depose that the contents of the statement are true, leaving it to me to infer that she adopts the statement there made. It is as well to set it out:
"I have been told afterwards that what happened was that the two young children, David Austin and Joshua Collard were in the lounge room with Chloe playing with the heater. Joshua said that they had got the heater started and one of them put a piece of paper in the heater and lit it. The piece of paper was thrown into the lounge room. He said that then the fire was in the air. The two boys ran out and tried to get Chloe to run out too. Joshua said she just kept playing with her Barbie doll in the lounge.
I do not know where the other children or my nephew and cousin were when this fire started. I am told that the fire burnt so quickly that no one could get in to get Chloe out.
The heater definitely was not on when I had left for the shops. It was a very hot day."
Apart from the fact that it is difficult to believe that 17 August 1995 was a very hot day the problem faced by the plaintiff in attempting to show which of the persons she had left in charge of her home when she went shopping that day had started the fire is exacerbated rather than helped by this further affidavit and its annexures. Exhibit B to this affidavit is the Fire Brigade report which likewise the plaintiff appears to adopt. The passage the plaintiff refers to reads:
"Examination of the damage and burning patterns indicated that the fire originated at the heater. It was reported by the oldest boy in the house (approximately 7 years) that the deceased girl ignited a piece of paper at the heater and walked to the northern corner of the room depositing the ignited paper in a single seat lounge chair."
Again, this highlights the plaintiff's problems. Firstly the passage from the plaintiff's 1996 statement is complete hearsay and it would be inadmissible in any trial. Secondly who started the gas heater and how and in what circumstances is quite unknown. Thirdly all of the evidence suggests that the fire that took Chloe's life was a fire which began by a child setting something alight from the gas fire which was then thrown onto furniture in the house which caught alight, that is to say, there was no causal connection between the alleged faulty so called "safety switch" and the fire which burned the house down and took Chloe's life.
When the matter came on for hearing before me on 11 March 1999 after some discussion it was adjourned further to enable the defendant to respond to the plaintiff's further affidavits. The defendant took this opportunity and filed an affidavit sworn by Ms Julie May Stewart, an Accommodation Manager employed by Homeswest responsible for the management of the premises let to the plaintiff. Whilst Ms Stewart does not properly join issue with the plaintiff's allegations that she (the plaintiff) had complained directly to her about the alleged faulty "safety switch", Ms Stewart did depose to the fact that Homeswest regards reports of any problems with gas leaks as emergency repairs in respect of which urgent action is required to be taken to arrange for a contractor to attend to effect repairs. At that time the contractor was required to attend and complete repairs within a four-hour period. Ms Stewart says that having searched the records of Homeswest she could find no record of any complaint made by the plaintiff of any defect or problems with the gas heater installed on the property. She then identifies the gas heater as a Rinnai. The defendant further filed an affidavit of Ms Lea Rafferty sworn 20 April 1999 in which she deposed to her investigations in relation to the type of "safety switches" on the Rinnai gas heater installed in the premises occupied by the plaintiff and this discloses that gas heaters of this type do not, as I had discussed with the parties when the matter first came on before me, have a "safety switch" at all. What gas heaters of this type have is a three stage lighting procedure designed to eliminate the prospect of accidental ignition. The steps to be taken are firstly that a button regulating gas supply to the pilot light has to be depressed for a certain period of time. A second button then has to be operated which operates a striker to cause a spark to ignite the pilot light. Once the pilot light is going the gas supply button has to be kept depressed to maintain the supply to the pilot light for a specified period of time after which it can then be released and the main heater burners activated. This is not a safety switch in the sense that that term is usually employed.
After these affidavits were filed the plaintiff filed a further affidavit by Tiffany Laslett, sworn 10 June 1999. Ms Laslett exhibited a further proposed statement of claim which added two further particulars of negligence namely:
"(d)failing to provide a heater with a child-proof safety mechanism;
(e)alternatively, failing to provide a heater with a working child-proof safety mechanism."
Additionally her affidavit exhibited statements called "Initial Proof of Evidence" of each of Jasmin Davis and Cedric Anderson. The statement of Jasmin Davis does not assist the plaintiff. It does not identify the children who were in the house when the fire started or their ages and it further says "I can't recall ever turning on the heater, so I can't say whether or not there was a child‑proof safety switch and if so whether or not that was defective". Mr Anderson's statement likewise does not assist the plaintiff, failing to state who was in the house when the fire started and stating additionally: "I remember that the heater had two buttons and you needed to keep one of them pushed down while you pushed the other one to get the heater started. I can't really remember whether both of those switches were still working when the fire happened."
In addition to exhibiting an amended proposed statement of claim and the statements of each of Jasmin Davis and Cedric Anderson, Ms Laslett's affidavit deposed as to information she had received in respect of the starter mechanism on the Rinnai room heater. That information may be fairly summarised as demonstrating that the starting mechanism on the Rinnai room heater is not properly categorised as a safety switch but its method of operation does have the effect of making the heater difficult to operate by children. The plaintiff swore another affidavit on 21 April 1999 which wasn't filed until 11 June 1999 in which she reaffirmed her earlier deposition to the effect that she had complained to Ms Stewart about the heater, this time deposing "I told her that it was broken and that it was dangerous for little kids. I also told her that my daughter kept messing around with the heater all the time."
This then completed the evidence and as far as I am concerned the state of the evidence is such that the plaintiff's prospective cause of action may properly be described as hopeless. See for example the tests set out in Posner v Roberts [1986] WAR 1 at 6 and decisions in this Court such as Keddis v WA Government Railways Commission, unreported; DCt of WA; Library No 4136; 1 September 1994.
The reason for this is that the plaintiff's case has its beginning and end in an alleged defective switch in the Rinnai room heater, said to be defective because it permitted children to operate it. The plaintiff changed her position in relation to this part of her claim from the beginning of the case to the end when the problems in it were exposed by argument. Initially she was saying that the defective heater caused gas to leak but lastly she was saying that the alleged defective switch enabled a child to operate it easily. The difficulty is that there is no evidence as to who started the gas heater. It would be impossible to infer that it was one of the young children in the house. Such an inference would be no more than a guess hence indicating that the commencement of the chain of causation which leads the plaintiff to seek to put forward her claim is entirely speculative. Next, it needs to be remembered that all of the available evidence put before the court by the plaintiff shows that the cause of the house fire was a child placing some flammable material into the gas heater, whether it be to a naked flame or to a very hot glass protecting the naked flame, the plaintiff does not say, but it was that action and the throwing of the item then put alight into furniture in the lounge room which caused the house to burn down. I cannot see in this any prospect of any liability attaching to the defendant, for the necessary consequence of the plaintiff's case would be that every landlord of every property in which there was a room heater which could be operated by children would be under a duty to ensure that, in effect, no child could play with the fire, a hopeless proposition if ever there was one. And, finally, the plaintiff could not point to a single factor which would demonstrate where such a duty of care began and ended. Are room heaters to be rendered incapable of operation by children aged 2? 4? 7? 10? Or any other age? If so, by what criteria is such age to be chosen? What if rendering a room heater incapable of operation by a child has the consequence of rendering it incapable of operation by the aged, the infirm and the disabled?
The plaintiff's application for leave to institute proceedings out of time is dismissed. I will hear the parties as to costs.