Thirlway v Parnell LP Gas Systems Pty Ltd
[2009] WADC 36
•17 MARCH 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: THIRLWAY -v- PARNELL LP GAS SYSTEMS PTY LTD
CORAM: STEVENSON DCJ
HEARD: 9-13 FEBRUARY 2009
DELIVERED : 17 MARCH 2009
FILE NO/S: CIV 1564 of 2006
BETWEEN: COLIN THIRLWAY
Plaintiff
AND
PARNELL LP GAS SYSTEMS PTY LTD (ACN 007 446 111)
Defendant
Catchwords:
Tort - Negligence - Alleged failure of installer of LP gas system in car to warn of risk of fire or explosion if system not checked annually - Duty of care - Scope of duty of care - Australian Standard AS 1425 - Duty to warn - Whether duty of care breached - Causation - Whether causation established
Legislation:
Civil Liability Act 2002 (WA)
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr B L Nugawela
Defendant: Mr J R Criddle
Solicitors:
Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: SRB Legal
Case(s) referred to in judgment(s):
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell (2007) 34 WAR 109
Dobler v Halverson [2007] NSWCA 335
Halverson v Dobler [2006] NSWSC 1307
Morgan v Owners of Strata Plan 13937 [2006] NSWSC 1019
Ohlstein & Ors v E & T Lloyd trading as Otford Farm Trail Rides [2006] NSWCA 400
Taylor Woodrow Home Buildings Pty Ltd v Chitarra, unreported; FCt SCt of WA; Library No 940739; 30 December 1994
Waverley Council v Ferreira [2005] NSWCA 418
Wyong Shire Council v Shirt (1980) 146 CLR 40
STEVENSON DCJ:
The incident
It was 1.42 am. The CCTV was watching over Milligan Street in the Perth CBD. The screen monitor reflected the beginning of a fine cold winter morning on 16 June 2005. The street outside Fast Eddy's restaurant was quiet.
Colin Thirlway, a 48‑year‑old disability pensioner and former chef, walked towards his car and unlocked it remotely. The car headlights flashed in the dark.
Mr Thirlway opened the driver's door and slid into the seat of his eight‑year‑old car. The car was reliable: it always started just fine and was spot on mechanically. He placed the key in the ignition, started the motor and put his seat belt on. While the engine was warming up, he reached over to the passenger seat and grabbed his Marlborough cigarettes. He took a cigarette out of the packet, ignoring the health risk warning.
Mr Thirlway gave no thought that morning, nor on any previous occasion, to the fact that he had bought the car second‑hand from a fleet dealer three years earlier. At the time of purchase he made no inquiries about the service history of the vehicle. He did not know when the alternative LP gas fuel system was installed. He did not know if it had ever been inspected or serviced by an authorised or competent person. It never occurred to Mr Thirlway that the alternative LP gas fuel system had a finite life that could be prolonged by regular servicing and maintenance.
Mr Thirlway, however, knew that LP gas is a potentially dangerous and inflammable gas and that there is a risk of explosion if it is exposed to a naked flame.
When Mr Thirlway purchased the car he was given a white plastic folder marked LP Gas Systems. The folder contained a document stating that the certificate had to be kept with the vehicle at all times whilst it was operating on LP gas. The certificate in turn carried a warning that the vehicle had to be presented to an authorised LP gas service centre for inspection and testing every 12 months. The folder also contained an LPG vehicle instruction book and the terms and conditions of the installer's product warranty – but he never looked at this because he never opened the folder. When he purchased the vehicle he put the folder in the glove box without opening it and left it there for three years.
It did not occur to Mr Thirlway that he should consider the contents of the folder, even though he had never owned or been in an LPG fuelled vehicle before. He never read its contents, even though he personally undertook responsibility for performing all the routine safety and maintenance checks on the vehicle. He never once had the car serviced by a qualified mechanic.
Without winding the car windows down and without any thought about the potential risks of using his cigarette lighter or smoking in an LP gas fuelled vehicle, Mr Thirlway reached out and grabbed his BIC lighter to light his cigarette.
Instead of lighting the cigarette he ignited a mixture of volatile LP gas inside the car causing an explosion. The car was instantly engulfed in a fireball. The street lit up with the flash and flames from the burning gas. The CCTV continued to record images, but these were washed‑out by overexposure. Mr Thirlway, still in shock, reached into the fire around him and released his seat belt to escape from the car. Eventually the Fire Brigade arrived and put out the flames.
There was one constant throughout everything that occurred that morning after the explosion. The headlights of Mr Thirlway's car continued to burn and illuminate the road ahead, showing the way forward. But now there was a dilemma. Which route should he, as the owner and driver of the car, take in the aftermath. Was somebody, apart from himself, responsible for what happened? As is often the case when seeking to understand or know the cause of something, before you can go forward it is first necessary to go backwards in time.
After treatment for his injuries (which fortunately do not appear to have been life threatening) and counselling for ongoing effects associated with his trauma, Mr Thirlway sought legal advice on the prospects of successfully recovering an award of compensation for what had occurred. After investigation of the fire by experts it soon became clear that the precise origin and source of the leak of the LP gas could not be established. This fact diminished the basis of and scope of any legal claim.
Background to the action
On 15 August 2006, over 12 months later, the plaintiff's lawyers commenced an action for damages against the defendant, the company that installed the LP gas system in the vehicle on 3 June 1997 for the then owner of the vehicle. It was common ground that the plaintiff purchased the vehicle in September or October 2002.
The commencement of the trial was delayed by a day and a half due to pleadings issues. The plaintiff was granted leave to amend his statement of claim to clarify his personal knowledge of the contents of the white folder which contained information about the LP gas system. The folder was at all material times located in the glove box of the vehicle. The amendments also purported to clarify the plaintiff's state of knowledge about the risk of material danger if the vehicle was not presented to an authorised LP gas service centre for inspection and testing every 12 months.
By reason of the plaintiff's amendments it was consequentially necessary for the defendant to amend its defence. Without conceding the necessity to do so, the defendant amended its defence to plead the relevant sections of the Civil Liability Act 2002 (WA). It proposed to rely upon this Act and had previously referred to it in its written outline of submissions for trial. The defendant did this without conceding any legal requirement to do so. Although the parties made limited submissions on the issue, it was not necessary to delay the trial to permit the matter to be fully argued and considered because for reasons personal to him the plaintiff was concerned not to delay the trial.
No specific prejudice was pointed to by the plaintiff and the plaintiff was allowed further time to consider his position and to adduce additional evidence in relation to the issues raised by the Civil Liability Act 2002 (WA). However, no further application was made in this regard. Without determining the matter the provisions relied upon by the defendant in the Act could have raised the need for either party to adduce additional evidence.
The obvious purpose of pleadings is to define the issues for the parties prior to trial and for the Court at trial. In assessing the evidence and parties' submissions, the Court is entitled to proceed, and must proceed on the basis that the pleadings properly define the issues between the parties about which the Court is required to make its determination. It is a fundamental matter of procedural fairness that each party know as early as possible in the action the precise issues and contentions of each other party and which they require the Court to determine.
My provisional view, without a detailed consideration of whether the provisions of the Civil Liability Act 2002 (WA) should be construed as "procedural" or "substantive" for legal purposes, is that a party wishing to invoke the provisions of the Act, either in aid of or in defence of a claim, should expressly plead the provisions relied upon, to ensure that the requirement for procedural fairness is not violated.
The trial concerned the issue of liability only. The parties informed the Court that quantum had been agreed at $100,000.
The pleadings
It is not in issue that the defendant is incorporated and at all material times was engaged in the business of installing liquefied petroleum gas fuel systems into motor vehicles.
The defendant admits that, on 3 June 1997, it installed an auto LP gas system into a motor vehicle, registration number QHZ‑421, in order to facilitate the operation of the motor vehicle by LP gas or, alternatively, by petrol fuel. That is, the vehicle had a dual fuel system.
The plaintiff pleads that he purchased the motor vehicle from a used car dealer, Australian Fleet Sales, in September or October 2002. This is not contested and I find as a fact that he did so.
It is also admitted on the pleadings, and I find accordingly that, at the time the plaintiff purchased the vehicle in 2002, he was given a white folder containing a certificate from the defendant that the vehicle must be presented to an authorised LP gas service centre for inspection and testing every 12 months. The folder also contained an LPG vehicle instruction handbook.
The defendant admits par 7 of the plaintiff's statement of claim which pleads as follows:
"7.After purchasing the motor vehicle, the Plaintiff did not read the contents of paperwork that was kept in the vehicle glove box, and was neither aware that:
7.1he had to present the vehicle to an authorised LP Gas service centre for inspection and testing every 12 months;
7.2there was any material danger or risk to his personal safety if the vehicle was not presented to an authorised LP Gas service centre for inspection and testing every 12 months."
The defendant denied par 8 of the statement of claim which pleaded:
"8.The Plaintiff without appreciating the importance and significance of the requirement for inspection and testing, and having regard to the financial constraints of having to prioritise expenditure under budget had not presented the vehicle to an authorised LP Gas service centre for inspection and testing for more than 12 months."
The plaintiff pleads that on 16 June 2005 he returned to his motor vehicle after parking it in Milligan Street, Perth. He says he started the engine and then decided to light a cigarette. In the course of lighting the cigarette, the motor vehicle exploded in flames causing him to suffer severe burns. These allegations are denied by the defendant but were not challenged during the evidence or the trial.
The gravamen of the plaintiff's claim is found in par 11 of the statement of claim which pleads:
"11.The accident was caused by the negligence of the Defendant.
PARTICULARS OF NEGLIGENCE
The Defendant, its servants or agents were negligent in failing to provide any or any adequate warning of the risk of an explosion in the event that the motor vehicle was not inspected and tested at an authorised LP Gas service centre every 12 months."
In its defence, the defendant pleads that at the time of installation the system:
(1)was constructed and installed in compliance with the requirements of Australian Standard 1425;
(2)that this allowed for the safe ventilation of any gas which might escape from the storage unit; and
(3)was otherwise safe in all respects.
The defendant also pleads that the system was constructed and installed to remain safe and well‑ventilated for the life of the motor vehicle, subject only to due observance of the service and other requirements specified in the handbook provided to the owner of the motor vehicle.
As mentioned, the defendant relies on s 5B of the Civil Liability Act 2002 (WA) and says it is not liable as the risk of harm complained of was insignificant; and/or a reasonable person in the defendant's position would not have taken the precaution suggested. As to causation the defendant pleads that, for the purposes of s 5C(1) of the Act, the failure by the defendant to take the precaution suggested was not a necessary condition for the occurrence of the harm because:
"13.1the Plaintiff would not have acted on the precaution;
13.2the Defendant's conduct, in the circumstances, was reasonable and was sufficient to discharge any duty of care owed."
Relevantly, par 14 of the defence pleads:
"14.For the purposes of section 5C(1) of the Act the scope of any duty owed did not encompass the precaution suggested as:
14.1the risk was obvious for the purposes of section 5O of the Act;
Particulars
14.1.1the Plaintiff knew or ought to have known that gas is explosive if exposed to a naked flame;
14.1.2the Plaintiff did read or ought to have read the warnings contained in the documents referred to in paragraph 6 of the Statement of Claim;
14.1.4the Plaintiff smelt or ought to have smelt the presence of LP gas in the cabin of the motor vehicle immediately prior to his use of the cigarette lighter to light a cigarette as referred to in paragraph 11 of the Statement of Claim.
14.2The Defendant's conduct, in the circumstances, was reasonable and was sufficient to discharge any duty of care owed, in which regard the Defendant refers to and repeats paragraph 11 hereof."
In addition, the defendant relies for the purposes of s 5N of the Act on the allegation that the risk of harm complained of was obvious on the basis of the particulars set out in the previous paragraph. The defendant also for the purposes of s 5O of the Act contends that the scope of any duty of care owed by the defendant did not encompass the precaution suggested.
Further and alternatively, the defendant contends that the plaintiff's loss was caused by the plaintiff by:
(a)allowing or permitting the system to deteriorate or become unsafe;
(b)using the motor vehicle after allowing or permitting it to become unsafe; and
(c)failing to observe the service and other requirements specified in the handbook provided to the owner of the motor vehicle.
Finally, for the purposes of s 5K of the Act, the defendant contends, if the defendant is liable, that the plaintiff's accident was caused by or attributable to his own contributory negligence and repeats the three allegations in the preceding paragraph.
In his closing address, counsel for the plaintiff contended that the defendant should have provided adequate warning of potential risk, by placing a warning sticker prominently on a part of the vehicle. Two examples were produced. They were:
"1.Danger
Pressurised gas system must be checked by authorised gasfitter annually to avoid risk of fire or explosion;
2.Warning
LP gas hazard. Must be checked by authorised gasfitter annually to avoid risk of fire or explosion."
A third option suggested was to substitute the word "danger" with the word "attention", keeping the content the same. With respect to the content of the proposed warning, I would note that it is, on one view, potentially misleading because the risk referred to is not a risk of fire or explosion resulting from a failure to have the system checked annually. It is, rather, a risk that a leak might occur which, if exposed to a naked flame or spark, might cause the gas vapour mixture to explode or ignite.
Colin Thirlway
The plaintiff was born on 3 July 1958. At the time of the incident on 16 June 2005 he was 46 years old. At that time he was the beneficiary of a disability support pension having previously worked as a chef.
The plaintiff purchased the 1997 Altera LS sedan, registration number QHZ‑421 from Australian Fleet Sales in Melbourne in September or October 2002. The purchase price was $25,000.
When he purchased the vehicle it had already been modified to operate on LP gas. Prior to this the plaintiff had not owned an LP gas fuelled car, driven an LP gas car, nor ever knowingly sat in an LP gas fuelled car.
In March 2003, the plaintiff drove the vehicle to Perth via Adelaide, Alice Springs and Darwin arriving in Perth in mid‑2003. The plaintiff was asked during his examination‑in‑chief whether he did anything to the vehicle prior to commencing the trip to Perth. His evidence was:
"Absolutely not. No. I – yes, I did, actually. I – I – I took the vehicle to have it serviced at Ultra Tune in Melbourne prior to the road trip. As far as I know it had a clean bill of health." (T 128)
In cross-examination the plaintiff said that he had taken the vehicle to Ultra Tune because he was going on a long trip and "wanted to ensure that it kept on running smoothly". His evidence was that, apart from this occasion, he never had the vehicle serviced at any time by a mechanic or anybody else for any reason whatsoever.
The plaintiff's evidence was that the vehicle " … was a very reliable vehicle … Mechanically it was spot on, perfect. Started just fine. Never missed a beat". The plaintiff said that he never paid for the vehicle to be serviced but said he occasionally looked under the bonnet to ensure the fluid levels were adequate "and to make sure – like – the – tyres had enough air in them; to drive safely, really, you know, yes." (T 128). His evidence was that he would perform these checks every couple of days. In cross‑examination he went to some lengths to say that anything mechanical, about which he had no knowledge, he would take to a professional person.
The plaintiff gave evidence that on 15 June 2005 he spent the entire day at home. At midnight he walked to the Commonwealth Bank in Maylands and collected some of his pension funds which had just been credited to his account. He then walked to a service station where he purchased a five litre jerry can, which he filled with petrol. He walked home to where his vehicle had run out of fuel and put the petrol in the car. He then got into the vehicle, "hit the transfer switch back to petrol" and started the car before driving it back to his normal parking place. He then went into his flat to change his clothes. He went back to the car, started it and wound the windows down. He maintained that there was no smell of petrol or gas at any stage during this journey. His evidence was:
"I always drive with my windows down, and I lit a cigarette before I drove off, really."
The plaintiff said he then drove to another service station and proceeded to fill the car up with gas and using the "fill tank button" refuelled the LP gas cylinder in the boot of the car. The petrol and the gas intake tubes were next to each other underneath the fuel cap.
The plaintiff said he then got into the car and pressed the changeover button to LP gas, started the car and drove to Beaufort Street. At the bottom of the Horseshoe Bridge, he made a right‑hand turn into Wellington Street where, the plaintiff said:
"I hit the fuel button back to petrol. The car momentarily coughed and spluttered a little bit. There was no smell of gas or petrol. That's all. Yeah." (T 131)
The plaintiff said this was not a normal engine response when changing the fuel button back to petrol. No evidence was led by either party as to whether this was an uncommon engine response to a fuel changeover.
The plaintiff said he drove to Milligan Street where he parked the vehicle, went into Fast Eddy's and had a meal. The plaintiff said he did not open the boot of the vehicle at any time on 16 June 2005 and that when he parked the vehicle outside Fast Eddy's the windows were up.
The plaintiff gave evidence that on approaching the vehicle on his return, he used the remote control to unlock the doors. This was captured by the CCTV images of the incident. He said he opened the driver's door and:
"I jumped into the vehicle; I placed the key into the ignition; turned the motor on, and I put my safety belt on … whilst the engine was warming up, I reached over to the passenger's side and I took a Marlborough cigarette out of a pack, along with a lighter, and I – I – I leaned forward and attempted to light my cigarette, and that's when the explosion occurred." (T 131)
The plaintiff said he was immediately engulfed in flames and could not see anything. Although still in shock the plaintiff said he was horrified that he had to put his hands into the flames to release the safety belt before he could escape from the vehicle. The plaintiff described having been on fire and the secondary explosion and continual ignition of the gas.
The plaintiff said he did not smell gas before he attempted to light his cigarette. If he had, he said he would not have attempted to light the cigarette but would have switched the motor off and investigated the problem.
The plaintiff's evidence was that the white folder containing the LP gas information was given to him by Australian Fleet Sales at the time he purchased the vehicle. He said the white folder remained in the glove box of his vehicle from the time of purchase and that at no time prior to looking at the contents in the presence of his lawyers in preparation for the trial had he ever looked at or read the contents of the folder. His evidence was that he received the plastic folder in the mail after the vehicle had been taken away following the explosion and that he sent it on to his lawyers without opening it or looking at any of the documentation inside it. The heading on the outside of the white folder was "LP Gas Systems".
The plaintiff was handed the white folder in examination‑in‑chief and his evidence was as follows:
"All right, now can you open that up and have a look at what's inside. Take your time?---It's – yeah - - -
If you look at all the materials that are inside. Have you finished?---Yeah.
When was the first time you have seen the materials inside that folder?---The first time I have seen this material, which in – in preparation – how do I explain it? The first time I'd seen the material for this, like, I saw this through my lawyers, sorry, yeah.
Do you know how the white plastic folder and its contents got to your lawyers?---Yes. I – I posted this to my lawyers.
After the explosion?---Yes."
The white folder contained a single page document (Exhibit 7.2) which relevantly contained the following information:
"PARNELL LP GAS SYSTEMS
This is to certify that the LPG conversion on vehicle registered …….................... has been installed, inspected and tested to AUSTRALIAN STANDARD 1425 ‑ 1989.
This certificate must be kept with the vehicle whilst it is operating on LP gas.
The vehicle must be presented to an authorised LP gas service centre for inspection and testing every 12 months."
The plaintiff in his evidence referred to Exhibit 7.2 as a warranty certificate. He maintained this view, although he conceded in cross‑examination that the document did not contain the word warranty. It is noteworthy that his evidence was that he did not read the document until he considered it in the presence of his lawyers, having on‑posted it to them after he received it in the mail from the organisation which retained the vehicle after the fire. He referred to the fact that there were other "irrelevant documents" in the white folder, giving it the context of being a warranty.
The plaintiff was asked in evidence‑in‑chief whether he knew if the LP gas system had been serviced previously. Although he did not answer the question directly, I infer and find that he made no inquiry at the time of purchase and therefore had no knowledge of any previous service or inspection of the LP gas system. His response was to refer to the service schedule on the inside of the LPG vehicle instruction handbook which referred to six services at specified kilometres none of which had been completed. There was no evidence of the kilometres done by the vehicle at the time of the fire.
The plaintiff gave evidence that he had no previous knowledge of LP as systems and that the vehicle was the first dual fuelled car he had ever owned. His evidence was that he did not have any knowledge of the consequences of failing to have the LP gas system regularly serviced.
As a chef, the plaintiff said he had no knowledge in his career of his gas stoves ever being serviced.
With respect to his attitude towards safety in general the plaintiff said:
"I would see myself as a safety conscious person that doesn't take unnecessary risks."
In cross‑examination, the plaintiff confirmed he had formed the view that the Exhibit 7.2 certificate was a "warranty" in January 2009 when he looked at it for the first time in his solicitor's office. Prior to this he had not seen the document. He confirmed the Victorian Roads standard information document (part of the white folder – Exhibit 7.1) was in the folder in the vehicle throughout the time that he owned it. As to his knowledge of the alternate fuel system the plaintiff said in cross‑examination that a friend had "mentioned" to him that he had to switch between fuels every couple of days "to stop the motor from drying up, I suppose. It was meant to be good for the motor". The plaintiff accepted that the white folder was given to him at the time of purchase and that he placed it in the glove box of his car without opening it. The plaintiff said in cross‑examination that he did not have any curiosity about the content of the white folder on receiving it back after the fire and before posting it to his solicitors. The plaintiff was unable to tell the court how many kilometres the car had done at the time of the fire.
The plaintiff said that there was no log book in relation to maintenance of the vehicle itself. The plaintiff's evidence in cross‑examination as to maintenance by him of the vehicle was as follows:
"Did you do any of your own maintenance on the car in the period you had it?---The only – only maintenance I did on the car was basically to look under the bonnet, to ensure, as I – as I stated, that the fluid levels were adequate in regard to engine oil, transmission oil, radiator cooler, and that was it; to check the tyres, make sure they had enough rubber on them, enough air in them; things like that, that because I – I'm not mechanically minded.
Did you have any of your friends service the vehicle at any stage?---Absolutely not, no.
Was it a power steering vehicle?---Yes.
Did you check the power steering levels in the vehicle?---No.
Did you ever change the oil in the vehicle from the time you bought it?---No.
Were you aware that there were recommendations for the regular maintenance and servicing of the vehicle?---No, I was not.
Had the spark plugs ever been changed while you had it?---No.
Were you aware of any need to change the spark plugs?---No.
Why did you take the vehicle to Ultra Tune, Mr Thirlway?---Because, I – I knew that I was going to be going on a long trip, and I wanted to ensure that it kept on running smoothly.
So there was no mechanical problem that resulted in you taking the car in for a service?---No.
…
You would have no reason to believe that anything you did when you had the car would have damaged the gas cylinder in the boot of the car?---No. I mean, I – I – I never touched the – gas installation whatsoever for the simple reason being is I had no knowledge of it. That's – that's why I wouldn't play around with something I've got no knowledge of, no more than I would know how to – to change a spark plug. That's for one of those reasons I – I take those sort of things to a professional to do."
The plaintiff in cross‑examination said that 90 per cent of the time he would lower the windows and light his cigarette when driving the vehicle. He said he has emphysema and had been a heavy smoker all his life. He maintained that his medical advice was that the damage caused by emphysema had already been done and was irreversible so, based on this advice, he decided for himself "Well, what's the point in giving up?" The plaintiff's evidence was that he existed on a disability pension and that, although financially he was living borderline, he was still able to maintain his heavy smoking habit. Importantly, concerning a matter of credit, the plaintiff denied in cross‑examination that he had ever "caught a whiff" of LP gas at any time either in the vehicle or when refilling the vehicle at the petrol station. He admitted to knowing the smell of gas from his work as a chef.
The plaintiff was the victim of a tragic incident which must have been a horrific experience. Self-evidentially, it caused him injury and trauma. The extent of the injuries suffered is not in issue, as quantum is agreed. However, in determining liability, the Court is called upon to assess for itself the credibility, reliability and truthfulness of the plaintiff's evidence in respect of a number of issues. The most important issues in this case concern causation and whether the plaintiff would have taken his vehicle to an authorised LP gas service centre for inspection and testing every 12 months if he had been aware of the defendant's warning in this regard.
The plaintiff in the course of his evidence attempted to impress upon the Court that he was particularly safety conscious in respect of his own self‑preservation and others. I accept and find that the plaintiff did not smell gas in the vehicle on 16 June 2005 or at any previous occasion whilst inside the vehicle. However, I find that the plaintiff knew the smell of LP gas from refilling the car from time to time and as part of his general life experience as a chef.
The Court accepts that the plaintiff would not knowingly have lit the cigarette if he had at the time been aware of the presence of LP gas inside the car. There are a number of possible explanations for his failure to smell the presence of the gas on this occasion. These include the possibility, firstly, that the mixture and therefore the amount of gas at the level of his nose when seated in the car was less than that in the area where he had lit the cigarette lighter. This is assuming of course that the ratio of the mixture of gas to air at that point was capable of being detected by smell which is a matter in respect of which there would be human differences. Secondly, the possibility that on getting into the vehicle the plaintiff physically brought with him into the vehicle, a mass of air which in the time did not dissipate but provided a buffer against the gas vapour present in the car.
Having carefully observed the plaintiff when he gave evidence, I do not accept that the plaintiff took the vehicle to Ultra Tune in Melbourne before driving the vehicle to Western Australia. In any event, he did not give evidence that Ultra Tune inspected or gave any consideration to the LP gas system and the stated reason for taking the vehicle there (to ensure that it was running smoothly) does not of itself indicate that the plaintiff was motivated by a concern to ensure the safety of the vehicle to himself and others.
It is beyond doubt that the plaintiff had a limited financial budget and had consciously decided not to have the vehicle serviced and maintained by professional mechanics. Instead he occasionally checked the fluid levels and the tyres himself but, on his own admission, had no knowledge of other critical safety aspects of a vehicle (for example, brake fluid levels or brake lining adequacy).
In the three years that the plaintiff owned the vehicle, it was not mechanically serviced on any occasion, which indicates in my view, a total disregard for his own safety and other users of the road. I find that, even if the plaintiff had been aware of the need to have the LP gas system tested and inspected annually, he would not have done so. Therefore, there was no prospect of him having acted in accordance with the defendant's warning in Exhibit 7.2, even if it had been placed on the fuel cap or in some other place on the vehicle. As to causation generally, see Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell (2007) 34 WAR 109.
I also do not accept that the plaintiff did not open the white folder (Exhibit 7.1) on receiving it back in the post after the fire and before sending it on by post to his lawyers. I find that the plaintiff did consider the contents of the folder and I find also that, in the three years following the purchase of the vehicle by him, he would have looked at and considered the contents of the folder, in particular the LP gas instruction handbook and Exhibit 7.2. I note he had never owned an LP gas fuelled vehicle previously.
The plaintiff did not impress me as a witness of truth. He clearly understood the implications of the questions asked of him and his answers were not always a direct response. He often asked a question in response and, in my view, sometimes sought clarification when none was required. His evidence was generally self‑serving when the need arose and otherwise it was frank when it did not matter. Regretfully, I did not find the plaintiff to be a totally reliable witness in respect of his evidence on some matters. I was left with an overwhelming impression that, even if he had had the funds to service his vehicle in the way and with the regularity contended for, he would not have spent his money doing so even if he had been aware of the warning.
William Jack Apgar
Mr Apgar is a qualified engineer and scientist with over 30 years experience in engineering, industrial research and development, consulting, design, forensic engineering, project management and business management. He holds a number of degrees and is a member and fellow of a number of professional organisations.
Mr Apgar was instructed by the plaintiff's solicitors to advise on various aspects of the plaintiff's claim. For this purpose he was briefed with a file of information which included the pleadings (as they stood at that time), the defendant's installation instructions and procedures, the vehicle instruction handbook, the plaintiff's statement taken by Energy Safety dated 18 August 2005, the Energy Safety gas incident/accident report together with photographs, various other documents of the defendant, a report from Mr Martin Simms dated 1 November 2007 (not in evidence) and a video of news footage of the explosion.
Based on this information, Mr Apgar prepared a report dated 10 December 2007 in which he set out his conclusions. Mr Apgar stated in his report that it was not possible to determine with total certainty how the explosion and fire occurred. However, in Part 5 of his report, he stated "It is highly likely that the fuel source for the explosion and initial fire was in fact LP gas" on the basis that petrol does not vaporise as readily as LP gas and is much less likely to achieve a correct air‑fuel concentration to ignite explosively in an open environment. Mr Apgar relies on other factors to support this conclusion including the intensity of the fire in the rear of the vehicle which in his opinion suggests that the LP gas leak occurred in the boot of the car.
Mr Apgar opined that an explanation for the plaintiff not smelling the LP gas on entering the vehicle and closing the door might be that the entry into the vehicle carried with it an air mass consisting of fresh air, making it more difficult in the short time for the plaintiff to smell the strong odoriser that is added to LP gas to make it detectable.
At the end of the analysis in Part 5 of Mr Apgar's report he states:
"The issue has been raised that an LP Gas system must receive an annual inspection. It is generally understood by most vehicle owners that their vehicles must be periodically serviced. However, there are vehicle owners who adopt the drive and forget service policy because their understanding is that the worst that can happen is that the vehicle will stop or a warning light will tell them that a critical item needs service. Vehicles are remarkably robust and this seems to be a reasonable policy to adopt for some people who are not concerned about the overall operating cost or longevity of their vehicles.
However, in the case of LP Gas systems, the fuel is pressurised and the risk of explosions and fires due to lack of maintenance may be much higher than for a petrol powered vehicle. If this risk is significant then a warning label stating the requirement for period service should be placed in a prominent location. Suitable areas for such a warning label may be in the area adjacent to the LP Gas fuel filler or inside the fuel filler cover or even on the inside of the glove box door. However, it is understood that this is not a requirement of the relevant Australian Standard."
It must be immediately observed that Mr Apgar in his report does not purport to give expert evidence in relation to the degree of risk of an explosion or fire occurring in a motor vehicle with an LP gas system due to lack of maintenance and only says in comparison to a petrol powered vehicle that in such circumstances it "may be much higher". Mr Apgar also does not purport to give expert opinion evidence based on standards or experience as to where any warning label should be located other than to suggest it be placed in "a prominent position" and that this might include a number of different places on and inside the vehicle noting that it is not a requirement of the relevant Australian Standard that there be any warning label referring to the risk.
By letter dated 11 December 2008, Mr Apgar informed the plaintiff's solicitors that he agreed with Dr Chew's report dated 29 June 2008 and that as regards the risk of an explosion and/or fire caused by LP gas he said:
"Secondly, as regards the risk of an explosion and/or LP gas fire, there is always a finite risk that components in an LP gas system can malfunction and a leak can develop. The probability of a malfunction increases over time as components wear, seals and hoses age and contamination and/or corrosion cause moving components to stick. Given enough time, the probability of a malfunction increases until it becomes a certainty. That is, the longer the system goes without inspection and servicing, the greater the risk of there being a leak with a possible subsequent fire and/or explosion.
For these reasons periodic inspection and maintenance of such components is required in order to minimise the risk of a leak developing."
By letter dated 23 January 2009 to the plaintiff's solicitors, Mr Apgar noted that in s 5 of Australian Standard AS 1425‑1989 concerning periodic inspection that the time interval is not specified in the Standard and therefore, in his opinion, it would be logical for a manufacturer to nominate an appropriate time interval in the absence of specific legislation.
In his oral evidence, Mr Apgar explained how LP gas if it escapes will "run away across the ground if it can, eventually diffusing into the air, dropping into a mixture ratio so low it can't be ignited". He said this is because LP gas is heavier than air and in his explanation noted that "LP gas is known to be a hazardous item to have, particularly in boats" because it cannot "run away". Mr Apgar gave evidence that there was a range of mixtures of gas and air where at one level the mixture would ignite and then at another level where it would explode with a bang. Because LP gas is heavier than air it follows that normally, the greater the distance off the ground or from the point of lowest physical restraint, the rarer the mixture of LP gas to air.
In cross-examination Mr Apgar admitted he had no knowledge of world best practice in relation to the systems provided for in the Australian Standard. On his own admission the first occasion that he had to consider thoroughly the Australian Standard was for the purpose of this case after the Standard had been provided to him by the plaintiff's solicitors.
Mr Apgar accepted as a conclusion, because the gas cylinder did not explode, it followed that the venting system must have failed or been blocked in order for the gas to enter the cabin of the vehicle. Mr Apgar confirmed the Australian Standard required a venting system to be installed as a safety measure to vent any potential gas leaks to outside the vehicle.
Mr Apgar was cross‑examined in relation to the likely amount of LP gas in the plaintiff's vehicle and accepted that in this case it must have been "a fairly significant quantity". Mr Apgar's evidence was that in the circumstances it should have been noticeable to the plaintiff by smell "relatively soon after he got in the car". Mr Apgar was surprised, as there was some period of time before the plaintiff lit his cigarette, that the plaintiff did not smell the gas having regard to the quantity of gas which must have been present and also the strong odorant attached to the gas. He expected the plaintiff would have smelt the LP gas "within a few seconds". Having said that, his answer was qualified by reference to his explanations as to why the plaintiff may not have smelt the gas if that was the plaintiff's evidence (which it was).
In re‑examination, Mr Apgar explained how it was possible that the plaintiff carried a "package of air" into the car when he got into the vehicle. However, Mr Apgar again expressed surprise that the plaintiff did not smell the gas because "there would have been a lot of gas. The only explanation I can offer is that either he wasn't paying attention, he was completely lost in thought which I can't – speculation".
Mr Apgar gave his evidence in an independent and professional manner and did not seek to bolster his evidence in areas where he did not have knowledge or experience. He gave his evidence frankly and indicated in answer to questions if matters touched upon amounted to speculation. I accept the evidence he gave, noting in particular that LP gas is known to be hazardous because of its flammability and that in this case, although the cause or origin of the LP gas leak could not be identified, it was likely to have been in the boot of the vehicle. I also note that Mr Apgar did not give any evidence concerning the statistical frequency of fires or explosions in cars using LP gas systems. However, he noted the seriousness of the risk particularly in boats, was evidenced by the number of boats, not being insignificant, that have exploded because of the presence of LP gas.
Karl John Deimel
The plaintiff adduced evidence from Mr Deimel, acting senior gas inspector attached to the gas inspection branch of MG Safety.
In the course of his employment Mr Deimel prepared a gas incident/accident report form dated 27 June 2005 concerning the circumstances of the incident. Mr Deimel has had over 20 years experience in the gas industry and is authorised under relevant legislation to inspect plants and installations in relation to the distribution, supply and use of gas. He was a registered gasfitter for six years and has been a designated gas inspector for 14 years. In the course of his duties he has investigated the cause of various gas explosions.
Mr Deimel was unable to determine the exact cause of the leak that caused the fire. By reference to a diagram (Exhibit 3.2) Mr Deimel explained the operation of the LP gas fuel system. In particular, there are two automatic fuel shut off devices or safety fuel locks which only operate when the engine is switched on by the ignition key. The service line by which the LP gas is transported from the cylinder in the boot of the vehicle to the front of the vehicle is external to the cabin. Mr Deimel pressure tested the service line that runs from the gas container to the front of the vehicle. The result indicated that there was no leak.
Mr Deimel noted in his report that the sub‑compartment or valve and associated ducting had sustained considerable fire damage. The gas storage cylinder itself was not determined to be at fault.
In summary, Mr Deimel's oral evidence was that in his opinion the incident occurred because of a gas leak from the ductwork or sub‑compartment (or valve as it is described on Exhibit 3.2). This is expressed in the conclusion of his report (Exhibit 3.1) as follows:
"From my observations of the actual vehicle and of the video of the incident captured by the Perth City Council closed‑circuit security camera and discussions with the parties involved at the scene, I am unable to determine the exact cause of this incident. It is possible a gas leak occurred within the boot space that permeated into the cabin of the vehicle. This gas was then ignited by the naked flame from the BIC cigarette lighter.
In my opinion:
The fuel container sub-compartment is designed and fitted with flexible ducting to allow the removal of any gas leak to fall harmlessly to outside of the vehicle; and
It would appear that a gas leak developed within the ductwork and/or sub-compartment and the integrity of either has been breached, allowing gas to flow unimpeded into the boot space and henceforth into the cabin interior, only to be ignited by the BIC cigarette lighter."
The effectiveness of the safety venting system is dictated of course by the fact that LP gas is heavier than air and will therefore tend to sit in the lowest possible physical position.
In evidence-in-chief, Mr Deimel confirmed that in the course of his employment he was required, together with other inspectors, to inspect gas systems for leakages. Although Energy Safety has a database called "the gas inspection system" which records statistical complaints, he was unable to give an accurate record of the number of gas leak inspections conducted on vehicles by the Department within a given year.
Mr Deimel said a recent government incentive scheme had resulted in the Department receiving about 1,000 notices per month of the installation of LP gas systems into commercial and domestic vehicles but that, since the downturn particularly within the mining industry, the number had effectively halved to 500.
Mr Deimel said the Western Australian Gas Standard legislation and regulations gave his Department authority over the gasfitter in respect of its duties and obligations, not the owner of the vehicle. He cited reg 36 of the Gas Standards (Gasfitting and Consumer Gas Installations) Regulations 1999 which provides:
"36. Consumers' obligations
(1)The consumer for whom a Type B appliance is installed must ensure that the appliance is not used until an inspector has issued a certificate of compliance in relation to the appliance under regulation 22A.
(1aa)The consumer for whom a Type B appliance is modified must ensure that the appliance is made available for testing and commissioning by a gasfitter before the consumer uses the appliance for production purposes."
The Court was informed that the relevant Victorian regulation which picks up the Australian Standard is reg 801 subsection (3) of the Road Safety (Vehicles) Regulations 1988 (Vic).
In the course of Mr Deimel's evidence, the plaintiff produced CCTV footage from the City of Perth which contained images of the plaintiff approaching his vehicle, the explosion and its aftermath, including the Fire Brigade extinguishing the fire (Exhibit 4).
Dr Steven Chew
The plaintiff called Dr Chew, a chartered professional engineer and certified professional ergonomist. Dr Chew was qualified by questions from counsel for the purpose of giving expert evidence in this case. He produced reports dated 29 June 2008, 31 January 2009 and 2 February 2009. In his first report, Dr Chew expressed the following opinion:
"In my opinion, the risk of a gas leak in the LP gas system of a passenger motor vehicle increases with the length of the period during which the said system is not subjected to inspection and testing. My reasons are as follows:
-The LP gas system of a motor vehicle typically comprises the LP gas container, valves and fittings on the gas container in the boot of the vehicle, valves and fittings on the gas converter and mixer under the bonnet of the vehicle, seals on the same, the fill line and the service line (between the gas container and the converter).
-Valves have moving parts which are subject to service wear and tear, and seals are subjected to deterioration over time due to material degradation, all of which eventually can lead to gas leakage if not detected by service inspection and testing.
-If there is a leak in the system, the LP gas on entering atmosphere will vaporise and mix with air. If the gas/air mixture is within its flammable limits (quoted as 2% to 10% by volume), it will ignite in the presence of a naked flame or a spark. Ignition will be 'explosive' if the gas/air mixture is close to the ideal volumetric ratio of approximately 9%. Hence if there is any gas leak which is not vented to prevent the gas/air mixture from reaching its lower flammable limit, ignition of a fire is almost inevitable in the presence of a naked flame or a spark."
Dr Chew said in evidence‑in‑chief that the placement of a warning sign, from a safety perspective, was usually as close as possible to the locus of the risk. The plaintiff in eliciting this evidence was relying on the background and experience of Dr Chew in safety design.
Dr Chew, by reference to his reports, gave evidence of the vapour density of gas used in a kitchen stove compared to liquefied petroleum gas used in a vehicle. The former (a mixture of methane and ethane) is between .55 and 1.03 times heavier than air, compared to LP gas (a mixture of propane and butane) which is 1.51 to 1.93 times heavier than air.
It emerged in cross‑examination that Dr Chew was not provided with Australian Standard 1425 until after the preparation of his first report. He was unable to say whether he had read it previously.
Dr Chew in cross‑examination was provided with the defendant's certificate of warning (Exhibit 7.2) and said that if he had been provided with that document it would not have changed the opinion he expressed in his first report to the effect that the risk of a gas leak in an LP gas system in a passenger motor vehicle increases with the length of period during which the set systems are not inspected or tested.
Dr Chew was not prepared to express an opinion as to whether, in view of the gas concentration which must have been present at floor level, a person in a seated position would have smelt the gas.
Dr Chew said he could not give evidence of the origin of the leaking gas but opined that it could have leaked from a breach of the seal of the sub‑compartment itself or from a breach of the vent to the external of the vehicle. Dr Chew confirmed that the design of the system was such that any leakage in the sub‑compartment is transferred by the venting to underneath and outside the vehicle.
Australian Standard AS 1425
At the time the defendant installed the LP gas system into the plaintiff's vehicle in 1997 Australian Standard 1425 (as amended) applied. The Standard is entitled "LP gas fuel systems for vehicle engines (known as the SAA Automotive LP Gas Code)". The Standard was first published as Australian Standard 1425‑1973 and cl 5.2 was relevantly amended on 4 March 1991.
The preface notes previous amendments have been consolidated and further alterations made which included:
"(b)Routine reinspection from time to time, and in particular the recertification of the fuel vessels at intervals, is a developing subject and some aspects of Section 5 have been upgraded, in particular to emphasize inspection for damage and deterioration."
The content of the standard concerns, inter alia, the components (the hardware) of the material used in the system and contains specific provisions relating to ducts and conduits (cl 2.2), spillage, leakage control and ventilation (cl 3.6), and compartment and sub‑compartments (cl 3.7).
Section 4 of the Standard concerns testing and commissioning and imposes obligations on the installer concerning certification and notice to the owner of the vehicle. Clause 3.5 deals with various markings which the Standard requires and contains provisions concerning content, size and quality. None of the marking requirements are relevant to the issues in this case.
The obligations and duties of the installer are set out in cl 4.5 which provides:
"4.5 CERTIFICATION
On completion of the installation, the installer shall supply the owner with certification of compliance with this Standard, which will also give an installation date and the fuel container serial number. The certification may be incorporated in a receipt, may be a specific document, or may be in the form of a compliance plate that complies with regulations.
Note: Any Statutory Regulations on certification procedures that differ from this requirement will take preference."
Clause 4.6 of the Standard concerns operating instructions and imposes an obligation on the installer to leave with the vehicle a set of operating instructions. However, it is noteworthy that cl 4.6 does not require the operating instructions to contain information about the need for periodic systems testing, inspection and maintenance. Clause 4.6 provides as follows:
"4.6 OPERATING INSTRUCTIONS
The installer shall leave with the vehicle a set of operating instructions which shall include amongst other things the following:
(a)Refuelling procedures and precautions.
(b)Operation of the fuel system selector controls.
(c)Procedures to follow in the event of various faults."
Section 5 of the Standard is concerned with periodic inspection. Clause 5.1, "Introduction", says:
"An installation must be re‑examined from time to time during its life to ensure that it has not deteriorated to an unacceptable degree."
The section deals with the procedures which are routinely applied to check the whole system and not normal day‑to‑day running adjustments and tuning. The introduction also states:
"Implementation and enforcement is the responsibility of statutory authorities, and because of differences of detail from place to place it is not possible to give a complete description of national procedures. However, this section is based on a fairly common arrangement which uses the open 'roadworthy' system to locate vehicles and place them into a checking procedure. The checking procedures are based on the following presumptions (inter alia):
(b)Discovery of the condition might arise from an owner's observation or from a random check, but a scheduled check at set intervals is considered necessary in case a deteriorating condition goes unnoticed."
On 4 March 1991 cl 5.2 in its introduction was amended to provide:
"5.2 ROUTINE SYSTEM CHECK
The following checks shall be carried out at least annually, and at every roadworthiness examination for the renewal of vehicle registration, or as otherwise specified by the Authority."
Prior to this the introduction provided that the checks should be carried out "at intervals specified by the Authority", as opposed to annually. The first item listed for routine system check is a leakage check and the second is to determine that the fuel container life has not been exceeded.
As can be seen on an examination of the Australian Standard 1425, notwithstanding various amendments, there is presently no obligation on an installer to provide the owner at the time of installation with any details or notice of the need for periodic inspection of the system, although the Standard itself is predicated on the need for and desirability of routine system checks being carried out at least annually and, in any event, on every roadworthiness examination for the renewal of the vehicle registration.
The Court was not referred to any legislative requirement on owners of motor vehicles with LP gas systems to undertake inspection and testing of the LP gas system on any basis, let alone an annual basis. In addition it is not a requirement of the renewal of a motor vehicle registration licence for a vehicle using an LP gas system to provide notice of or to "tick a box" that such inspection and testing has been undertaken.
The defendant submits that the absence of any legislative regime in either regard is indicative of the lack of seriousness or degree of risk associated with any failure to conduct annual inspection or testing of LP gas systems in motor vehicles. It was submitted, in any event, that it is not warranted in fact or as a matter of public policy.
It must be understood that this case is not concerned with any allegation that the defendant failed to comply with its obligations to provide details of operating instructions of the system in accordance with cl 4.6 of the Australian Standard. Instead, the plaintiff's case is based on the proposition that, even though the Standard does not require it, the defendant owed the plaintiff, as a subsequent purchaser of the vehicle, a duty to warn him that the vehicle should be presented to an authorised LP gas service centre for inspection and testing every 12 months.
In this case, the defendant did provide such a notice to the plaintiff by provision of the certificate in the white folder which contained a mandate precisely to this effect. In doing so, the defendant went over and beyond the requirement of the Australian Standard. This of course is not itself necessarily a defence to the plaintiff's claim but it is persuasive and a factor which the court may consider. In this case the burden of proof is on the plaintiff and the standard of proof is on the balance of probabilities.
The difficulty for the plaintiff, given his admission that he did not open the white folder or read its contents when he purchased the vehicle, is that, even if a warning is as a matter of legal duty required to be given by the defendant, then it should have been given in a different form and content than that contended for by the plaintiff. In this regard the defendant submits that the content of the warning pleaded by the plaintiff is potentially misleading because the risk, at least in this case, is twofold. Firstly, the risk of a leak if the system is not inspected and tested annually and, secondly, the risk of an explosion or fire by the presence of a naked flame or spark.
Findings of fact
In addition to the findings already mentioned, the Court makes the following findings of fact:
(a)The plaintiff's Mitsubishi 1997 Altera LS sedan vehicle was manufactured in 1997 and registered in Victoria.
(b)On 3 June 1997 the defendant installed an LP gas fuel system in the vehicle.
(c)At the time of installation of the LP gas system the defendant complied with the Victorian Road Safety (Vehicles) Regulations 1988 and also Australian Standard 1425.
(d)The defendant provided a white folder to the owner of the vehicle at the time of installation of the LP gas system which contained the relevant information required by the Australian Standard.
(e)At the time of installation, the defendant also provided in the white folder a certificate which separately provided that it must be kept with the vehicle whilst it was operating on LP gas and which informed the owner of the vehicle that the vehicle must be presented to an authorised LP gas service centre for inspection and testing every 12 months.
(f)The plaintiff purchased the vehicle in September or October 2002, at which time it was still operating with the alternative LP gas fuel system installed by the defendant.
(g)At the time of purchasing the vehicle, the plaintiff had not previously owned an LP gas vehicle or knowingly driven or been a passenger in an LP gas vehicle.
(h)At the time he purchased the vehicle, the plaintiff did not make any enquiry about the servicing history of the vehicle, including in particular whether it had ever been inspected and tested by an authorised LP gas service provider.
(i)The Court also infers in the absence of any evidence to the contrary, that the plaintiff did not require at the time of purchase any inspection to be made of the safety or condition of the vehicle with respect to its critical operating components, including the LP gas system.
(j)The plaintiff drove the vehicle to Western Australia arriving in mid‑2003 and at all material times before and after he has never had the vehicle serviced or inspected by a qualified mechanic or garage to ensure its roadworthiness, safety and the maintenance of its operating parts.
(k)The plaintiff personally maintained the vehicle by occasionally checking fluids levels and inspecting the condition of the tyres. The plaintiff had no knowledge or necessary skill to service and maintain the usual operating and mechanical parts of the vehicle which concerned the safety of the vehicle to the users of the vehicle and third parties.
(l)At all relevant times, the plaintiff was on a disability pension and consciously decided to operate and maintain the vehicle himself without allocating or prioritising financial funds available to him to service or maintain the vehicle.
(m)By his actions, the plaintiff disregarded his own personal safety as the owner and driver of the motor vehicle and also third parties by failing to have the vehicle inspected, serviced and maintained by a qualified person at any time.
(n)Accepting the plaintiff’s own evidence that he did not read the contents of the documents in the white folder concerning the LP gas system prior to the incident (which is not challenged by the defendant) the Court finds that if the plaintiff had (and even if he had not thought Exhibit 7.2 was a warranty document) the plaintiff would not have taken any steps, consistent with his general approach to the motor vehicle, to have the LP gas system inspected and tested at any time, let alone every 12 months.
(o)The plaintiff did not smell gas in the car on 16 June 2005 immediately before he attempted to light his cigarette.
Parties' submissions
The plaintiff alleges that the defendant was negligent by failing to provide "any or adequate warning of the risk of an explosion in the event that the motor vehicle was not inspected and tested at an authorised LP gas service centre every 12 months" (par 11, statement of claim).
In support of this contention, the plaintiff relies on the general statement by Dr Chew in his report dated 31 January 2009 (which was after provision of Australian Standard 1425 not previously available to him at the time of his first report in June 2008). The general opinion expressed by him at par 52 that because of the risk of ignition of LP gas by a naked flame or spark, leakage of the gas:
"… should be prevented by providing consumers with clear instructions on the need to have equipment checked regularly by qualified persons, and by the consumers following these instructions; and by providing consumers with clear information and warning on the fire and explosion risk presented by gas leakages."
The forensic evidence does not establish the cause of the leak or its location. It was postulated by reason of the seat of the fire that the gas must have leaked in the boot space at the rear of the vehicle. Because LP gas is heavier than air, it came to settle on the floor cabin space of the vehicle at the time of its ignition. This theory carries with it the postulation that the venting system was faulty and did not vent the gas externally to the car. This system was meant to ensure any gas leakage in the sub‑compartment (or valve) was vented to outside the car. It follows that the venting duct itself, or the cover of the sub‑compartment, must have been damaged. However, because of the damage caused by the fire, this could not be proved.
Obviously in the circumstances, although the plaintiff said he used the boot occasionally, there is no way of knowing when the venting duct or sub‑compartment cover was breached, or if the cause of the breach was wear and tear or, in medical terms, caused by an immediate trauma. In these circumstances it is problematical, and not established on the balance of probabilities that, even if the plaintiff had been aware of or had knowledge of the desirability to have the LP gas system inspected and tested every 12 months, that such conduct would have prevented the explosion. This of course assumes that the plaintiff would have presented the vehicle to an authorised LP gas service centre in the first place, which the Court is not so persuaded, even if he had had knowledge of the warning to do so.
The plaintiff submits that the defendant, on the other hand, knew of the technical requirements of Australian Standard 1425 and the underlying philosophy and intention that there be a periodic inspection. The plaintiff says the defendant therefore had a duty to warn users (and future users) of the inherent dangers associated with its product and of the need to take adequate safety precautions and the consequences of failing to do so. The plaintiff says that none of the materials or documents in Exhibit 7, including the defendant's certificate (Exhibit 7.2) satisfies this requirement.
It is true Exhibit 7.2 does not expressly say that there is an increased risk of a leakage of gas if the vehicle is not presented to an authorised LP gas service centre for inspection and testing every 12 months.
The Court accepts the certificate could have, by its express terms, said that this does not relate to any warranty by the defendant of its installation of the system but is a general safety warning. It is also feasible and not unreasonable that the defendant, as the installer, could have put in a prominent position a warning label advising the owner that it was desirable from a safety view point to present the vehicle to an authorised LP gas service centre for inspection and testing every 12 months. However, there is a risk of a vehicle carrying too many warning labels. It is noteworthy that in the report of Mr Apgar which contains photographs of an LP gas system installed in another vehicle, there are already two different warning and caution notices on the inside of the fuel filler cap.
As to the scope of the duty of care, the plaintiff says the starting point is the common law and relies on the judgment of Brereton J at first instance in Morgan v Owners of Strata Plan 13937 [2006] NSWSC 1019 at [32] – [33]:
"The duty of the Owners to Mr Morgan was that general duty of care owed by the occupiers to entrants, to take such care as is reasonable in the circumstances for their safety, and to protect them from risks of injury which can be foreseen and avoided [Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Hackshaw v Shaw (1984) 155 CLR 614, 663]. However, the content of that duty varies according the circumstances of the entrant's presence on the premises, the obviousness of the risk, the probability of the risk occurring, the magnitude of the consequences, and the cost or inconvenience of taking steps to remove, avoid or avert it [Wyong Shire Council v Shirt (1980) 146 CLR 40]. An occupier of premises is required to take only such care as is reasonable in the circumstances, not to make the premises as safe as reasonable care and skill on the part of anyone can make them [Jones v Bartlett (2000) 205 CLR 166, 177, 184‑5 (Gleeson CJ); Wilkinson v Law Courts Limited [2001] NSWCA 196, [21] (Heydon JA)]. One must not slide from determination that a risk of injury exists to a consideration of preventability: a defendant will be liable only if its failure to eliminate the risk shows a want of reasonable care for the safety of the entrant [Tame v State of New South Wales (2002) 211 CLR 317, [99] (McHugh J); Cafest v Tombleson [2003] NSWCA 210 (Meagher JA)]. The content of a duty of care in a particular case cannot therefore adequately or usefully be described simply as one to take reasonable care to avoid a foreseeable risk of injury to a person in the situation of the plaintiff, as that leaves open the content of the term 'reasonable' and thus the content of the duty, without which the issue of breach cannot be determined [Jones v Bartlett (2000) 205 CLR 166, 213 [166]–[167] (Gummow and Hayne JJ)]. So it is essential to identify with precision, by reference to considerations of the nature of those indicated in Wyong Shire Council v Shirt, what was a reasonable response to the risk of harm that existed [Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 611-2 [192] (Gummow and Hayne JJ)], a judgment which is to be made having regard the situation before, not after, the accident [Vairy v Wyong Shire Council [2005] HCA 62, [49], [126]]. It is necessary to consider these questions from the perspective of the defendant, with its state of knowledge, and ask whether the defendant acted as a reasonably prudent person ought to have acted [Woods v Multi‑Sport Holdings Ltd (2002) 208 CLR 460]."
The plaintiff also relies upon the judgment of Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–48:
"A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far‑fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far‑fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
In this case, apart from the general evidence of Dr Chew to the effect that the longer the LP gas system is not tested and inspected the greater the risk of a leak occurring, there is no statistical evidence of the degree of probability of the occurrence of a leak and an explosion by reason of a naked flame or spark after a human failure to detect by smell or otherwise the fact of the leak and the presence of the gas.
In my opinion it is noteworthy that Australian Standard 1425 does not impose any obligation on the installer of an LP gas system to provide any information to the owner concerning the need to inspect and test the system on an annual basis (as distinct from the operating instructions provided by cl 4.6).
It is also noteworthy that the legislature has not seen fit, possibly for practical and cost reasons given the apparent lack of risk of leakage in view of the stringent conditions concerning the materials permitted to be used, the authorised process of installation, the inbuilt safety venting system and the addition of the odorant to the gas, to impose a legislative obligation on owners of LP gas fuelled vehicles to have the systems inspected and tested either annually or indeed every five or 10 years or at any time as a pre‑condition to registration of the vehicle and therefore its roadworthiness.
Section 5B of the Civil Liability Act 2002 (WA) which is concerned with duty of care provides:
"(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless:
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) –
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm."
Every case must be determined on its own facts. In this case the defendant did give the owner of the vehicle a certificate warning that the vehicle should be presented to an authorised LP gas service centre for testing every 12 months. The warning did not carry any reference to the risk of an explosion if the owner failed to have the vehicle inspected. There is, of course, only a risk of explosion in the event of leakage if a naked flame or spark is present and the mixture is of the required percentage to permit an ignition or explosion.
I am not persuaded that there is a significant risk of harm to users of motor vehicles in circumstances where a warning of the nature set out in Exhibit 7.2 does not expressly refer to the possibility of fire or explosion occurring as a result of a leak. There is no evidence of the probability of an explosion occurring in the circumstances of this case.
In my view the defendant discharged its duty of care to the plaintiff as a subsequent purchaser of the vehicle by providing the certificate it did. The certificate categorically stated that the vehicle must be presented to an authorised LP gas service centre for inspection and testing every 12 months. It is self‑evident that there is an increased risk over time of leakage and a consequent risk of an explosion if the LP gas system is not serviced. This would occur only if other safety aspects of the use of LP gas in the vehicle failed. For example, human detection of the odorant included in the LP gas, or the failure of the physical venting duct system to ensure any gas which leaks is taken outside the vehicle.
Further and alternatively, in my view, s 5O of the Civil Liability Act 2002 (WA) absolves the defendant of any duty of care to the plaintiff to warn of an obvious risk to him arising out of his decision to light a cigarette in the vehicle. The plaintiff was aware at all times that the vehicle contained LP gas and used it as an alternative fuel source. It would have been an obvious risk at all times to the plaintiff that, unless the LP gas system was properly serviced and maintained, the lighting of cigarettes in the vehicle carried with it the risk of an explosion.
In my view it is also an obvious risk that, if an LP gas system is not tested and inspected, the longer the period of inaction the greater the risk is of leakage. However, there is no evidence before the Court to enable it to make findings or form a concluded view on the magnitude of the risk of leakage at any particular point in time. It would presumably depend on the quality of the installation and the materials used, the use of the vehicle, the purpose for which the vehicle is used and no doubt many other factors.
The plaintiff raised the issue in its submissions as to which party had the onus of proving the elements of s 5B of the Act. The plaintiff contends that s 5B is drafted in an exculpatory way so that the defendant carries the burden of pleading the defence (which it did) to the existing common law action and also of proving the same. By analogy the plaintiff relied on Halverson v Dobler [2006] NSWSC 1307 affirmed in Dobler v Halverson [2007] NSWCA 335 and also the comments of Ipp JA in Waverley Council v Ferreira [2005] NSWCA 418 at 77 and 78.
The Civil Liability Act 2002 (WA) is not happily drafted from a user's viewpoint. It is pregnant with double negatives and gives rise to a plethora of thorny issues of construction and interpretation. In my opinion the provisions of s 5B of the Civil Liability Act 2002 (WA) involve matters which the plaintiff bears the onus of proof if it is to establish its claim. This does not detract from the defendant pleading reliance on any aspect of s 5B in its defence in order to crystallise the issues as a matter of procedural fairness for the plaintiff, and to enable the Court to know what it must decide. AS 1425 does not deal with the issue of warnings and, even if it did cover the issue directly or indirectly, it did not (and cannot) do so to the exclusion of any common law duty that might exist. See generally Taylor Woodrow Home Buildings Pty Ltd v Chitarra, unreported; FCt SCt of WA; Library No 940739; 30 December 1994.
As to breach of the duty of care, the plaintiff submits that the defendant breached the duty by not placing a warning label in a prominent location. A related issue is the content of the warning label. The plaintiff submits that these matters do not require expert evidence and can often be deduced from commonsense: Ohlstein & Ors v E & T Lloydtrading as Otford Farm Trail Rides [2006] NSWCA 400 per Bryson JA at [159]. Although these matters may in the end be determined by the application of commonsense, that commonsense may in certain circumstances, particularly with respect to the content, be informed by admissible expert evidence based on occupational health and safety training, experience and qualifications. The content of the warning and its location has been relied upon by the plaintiff.
As mentioned, on one view the suggested content of the warning by the plaintiff in this case may be slightly misleading because it is not the failure to have the system checked annually that causes the risk of fire or explosion but, rather, of a leak in the first instance. Absent in the plaintiff's proposed warning is the fact that there needs to be an ignition source.
The plaintiff accepts he has to show that the alleged negligence materially increased the risk of an explosion both in a mechanical sense, as well as in the sense that, had he been adequately warned, he would have taken his vehicle to an authorised LP gas technician annually (par 24 of the plaintiff's closing submissions). Although the plaintiff submits that regular inspections and checks, if conducted, would have reduced the risk of a gas leak this has not been proven in this case. There is no guarantee that, if annual inspections had been undertaken, that a breach of the venting duct or sub‑compartment would not have occurred in the intervening period.
The plaintiff was not permitted to give evidence of what he would have done if the defendant had put Exhibit 7.2 in his hand and made him read it or if it had given him a warning of the type contended for referring to the risk of fire or explosion. Section 5C(3) of the Civil Liability Act 2002 (WA) prevents such evidence being given by a plaintiff if it is relevant to the determination of factual causation. Accordingly, the only evidence adduced by the plaintiff as to factual causation concerned his attitude to safety generally and specifically in relation to the maintenance of his motor vehicle.
The plaintiff submits that, even though he was on a disability pension, "it cannot be said that there were insufficient funds to prioritise an annual gas checkup". Although this was not put to him directly in cross‑examination the Court finds as a fact that the plaintiff would not have expended funds on having the LP gas system of his vehicle inspected and tested annually, even if a warning of the type contended had been given.
The plaintiff has not persuaded the court on the balance of probabilities that any fault on the part of the defendant actually caused the resultant explosion of the plaintiff's vehicle. Even if the defendant had placed a warning label of the content contended for inside the fuel filler cap of the vehicle and the plaintiff had seen it, the plaintiff would not have changed his attitude to his maintenance regime and the expenditure of funds to ensure the safety of his vehicle by reason of notice of the risk.
The defendant pleaded that if its negligence caused the explosion, then the plaintiff's contributory negligence is also an independent cause of the accident. Any assessment of contributory negligence is, in view of the Court's decision, otiose. In such cases the trial Judge sometimes provisionally allocates the issue of responsibility between a plaintiff and defendant. In my opinion, in view of the Court's findings in this case, it is not possible to attempt any meaningful apportionment of liability given the Court's finding that, even with full knowledge of a warning and the attendant risk, the plaintiff would have continued to smoke in the car and he would not at any relevant time have presented the vehicle to an authorised LP gas service centre for inspection and testing, let alone every 12 months.
Conclusion
For these reasons, I am not persuaded that the defendant breached any relevant duty of care to the plaintiff which contributed to the occurrence of the incident.
In addition, even if the warning contended for by the plaintiff had been given to the plaintiff, I am not persuaded on the balance of probabilities that the plaintiff would have presented his vehicle to an authorised LP gas service centre for inspection and testing, at any material time, let alone every 12 months.
The plaintiff's claim is dismissed.
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