Westpac General Insurance v Cooper

Case [2006] ACTSC 91

WESTPAC GENERAL INSURANCE LIMITED v SEAN COOPER AND ORS [2006] ACTSC 91
(22 SEPTEMBER 2006)

TENANCY - liability for damage caused by fire to premises – whether tenant intentionally or negligently damaged the premises or permitted such damage – nature of tenant’s contractual obligation to keep premises in substantially same condition – burden of proof in proving possible exception - nature of onus in relation to possible exceptions of “fair wear and tear” and “accidental damage” – the principle of res ipsa loquitur – whether Jones v Dunkel inference available – joint and several liability.

Residential Tenancies Act 1997 (ACT)
Conveyancing Act 1919 (NSW)

Vines v Djordevitch (1955) 91 CLR 512 at 519-520, followed
Regis Property Co Ltd v Dudley [1959] AC 370, cited
Baird v Campbell [2005] ACTRTT 8, distinguished
Flockhart v GA Properties Ltd [2001] ScotsCS 250, distinguished
Saviane & Ors v Stauffer Chemical Co [1974] 1 NSWLR 665, followed
Sunray Investments Pty Ltd v Cruwys & Ors [1992] NSWRT 95, not followed
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, followed
Anchor Products Ltd v Hedges 26 (1966) 115 CLR 493 at 500, followed
Mummery v Irvings Pty Ltd (1956) 96 CLR 99, distinguished
Jones v Dunkel (1959) 101 CLR 298, followed
Blue & White Barra Pty Ltd v Solley [2001] SASC 194, distinguished

Redfern, M.I and Cassidy, D. I, Australian Tenancy Practice and Precedents, Vol. 1

NO SC 422 OF 2004
Judge:             Tamberlin J
Supreme Court of ACT         

Date:              22 September 2006

IN THE SUPREME COURT OF THE      )

AUSTRALIAN CAPITAL TERRITORY..)

SC 422 OF 2004

BETWEEN:

WESTPAC GENERAL INSURANCE LIMITED
Plaintiff

AND:

SEAN COOPER
First Defendant

MICHAEL MORGAN
Second Defendant

STEPHANIE COOPER (nee HORTON)
Third Defendant

O R D E R

Judge

Justice Tamberlin

Date:

22 September 2006

Place:

Sydney

THE COURT ORDERS THAT:

The Plaintiff hand up to the Court Short Minutes of Order that give effect to these reasons. 

  1. This proceeding concerns liability in relation to damage caused by fire to premises at 2 Threlfall Street, Chifley, in the Australian Capital Territory. The substituted plaintiff, Westpac General Insurance Limited, is the insurer of the premises owned by Mr Wah Sam Wong. The lessor has died since the commencement of this proceeding. On 20 January 2001, the plaintiff and the defendants entered into a Tenancy Agreement (“the Agreement”) for a term of twelve months.

  2. The central issue in this case is whether the defendants have breached cll 63 and 64 of that Agreement. Clause 63 requires that the tenant shall not intentionally or negligently damage the premises or permit such damage, and cl 64 specifies that the tenant shall leave the premises in substantially the same condition as they were in at the commencement date of the Agreement, fair wear and tear excepted.

  3. On 21 November 2001, at about 3.30 pm, a fire occurred in the garage of the premises and caused extensive damage which led to the commencement of the proceeding. The dispute…

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AGLC
Westpac General Insurance v Cooper [2006] ACTSC 91
Case
[2006] ACTSC 91
Decision Date

CaseChat Overview and Summary

The case of Westpac General Insurance v Cooper involved a dispute between Westpac General Insurance, the insurer of a property, and Mr Cooper, the tenant. The issue was whether Mr Cooper was liable for damage caused by a fire that occurred at the property, and whether the insurer should be required to compensate the landlord for the damage. The court had to determine whether Mr Cooper was negligent or intentionally caused the fire, and whether he was in breach of his contractual obligation to maintain the property in substantially the same condition. The court also had to consider the principles of res ipsa loquitur and the availability of the Jones v Dunkel inference in relation to possible exceptions such as "fair wear and tear" and "accidental damage."

The court found that Mr Cooper had used a lighter to heat shrink plastic around wires and threw the overheated lighter onto a lounge chair, which caused the fire. The court held that Mr Cooper had breached his obligation to maintain the property and was liable for the damage caused by the fire. The court rejected the argument that the fire was an accidental damage or fair wear and tear, and found that the principle of res ipsa loquitur applied in this case. The court also found that the Jones v Dunkel inference was available and that Mr Cooper's actions were the cause of the fire. As a result, Mr Cooper was held jointly and severally liable for the damage caused by the fire.

The court ordered that Mr Cooper be held liable for the damage caused by the fire and that Westpac General Insurance be required to compensate the landlord for the damage. The court also ordered that Mr Cooper pay the landlord's legal costs. The court's decision highlights the importance of tenants taking proper care of the property they occupy and the potential consequences of negligence or intentional damage.

Orders

Orders of the court

The Plaintiff hand up to the Court Short Minutes of Order that give effect to the reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I now turn to the evidence before me. the evidence The only evidence provided to the Court from Mr Cooper consists of a set of answers to interrogatories dated 11 October 2004. In this document, Mr Cooper states that he entered the premises at approximately 3.20 pm and then left at 3.30 pm on 21 November 2001. He says that during that time, he ignited a flame once and applied it to heat shrink a cable. He then inspected the cable to ensure that he had sealed it properly. Mr Cooper says that he took precautions to avoid an outbreak of fire, namely, clearing his work bench prior to shrinking, and later inspecting the cable to ensure it was properly sealed. Mr Cooper maintained that the cable was cool to the touch when he placed it back on the work bench. An investigating officer, Mr Covington, furnished a report dated 21 November 2001 (also referred to above). The report states that Mr Covington arrived at the premises at 5.00pm on the day of the fire in response to a call at 3.43 pm to the ACT Fire Brigade. A diagram of the garage area where the fire ignited is attached to Mr Covington’s report and set out below. This report records that the first defendant, Mr Cooper, was using a BIC cigarette lighter to shrink-wrap plastic around a couple of wires and used a lighter to heat the wires continuously for approximately ten to twenty seconds. Mr Cooper admitted to having thrown the lighter across the garage and onto the lounge chairs after the lighter had become hot. The lounge chairs in the garage are represented by the three rectangles in the top right-hand corner of the diagram. The report records that a fire ensued in the vicinity of the lounge chairs some minutes after the lighter was thrown, and that consequently the premises were damaged. The fire travelled from the garage area through a “crawl” space as shown on the diagram, and then rose into the house. The report states that the area of origin of the fire was the garage and that its point of origin was a lounge chair. This is indicated in the diagram. According to the report, the burn patterns on a pinball machine, a motor cycle helmet and plastic chairs indicated the direction of fire travel and suggested that one lounge chair where the lighter landed was the likely point of origin. It also says in the report that cardboard and paper stored near the chairs assisted the intensity of the fire, and that a wooden stack of timber under the house facilitated the spread of the fire along the length of the house. Fire and heat travelled vertically through the northern wall cavity and then into the roof space. It is recorded in the report that the lowest point of the burn was an armrest of a lounge chair, and that the joists closest to the lounge chair suffered “alligator charring.” This charring appeared to decrease proportionately along the joists with distance. Under the heading “Form of the Heat of Ignition,” the report reads:“Form of the heat of ignition (ie flame, spark, radiation, conduction, friction, etc): Overheated lighter. Smouldering away in armrest of chair until combustible material heated up and reached ignition temperature. Thus direct flame ignited more combustibles.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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