Westpac General Insurance v Cooper - [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.

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.
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.
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 concerns liability. There is no dispute as to quantum. Shortly after 3.30 pm, the first defendant Mr Sean Cooper, who was the only person on the premises, was in the house when he noticed a burning smell. Upon heading outdoors to investigate the origin of the smell, Mr Cooper spotted smoke coming from the garage and telephoned the ACT Fire Brigade. The Fire Brigade attended and put out the fire. Mr Cooper was then interviewed by Mr Paul Covington, an investigating officer. The other defendants were not at the premises at any time during the incident.
A fire investigation report dated 21 November 2001 records the cause of the fire as “accidental”. The investigating officer, Mr Covington, stated in this report that shortly before the fire broke out, the resident was using a BIC cigarette lighter in the garage to shrink-wrap a sheet of plastic material around a couple of wires for his car. Mr Cooper admitted that he had thrown the lighter across the garage and onto a lounge chair after he had finished shrink-wrapping the wires. There is no evidence that the lighter was alight when this occurred. A fire broke out in the vicinity of the lounge chairs some minutes after the lighter was thrown. The report states that the fire travelled through a space in the garage in a vertical direction into the house. The report identifies that the point of origin of the fire was a “lounge chair in garage.” It states that the source of the heat that generated the ignition was an overheated lighter that smouldered in an armrest of one of the lounge chairs.
There was no direct evidence as to exactly how the fire originated.
A question arises as to the proper construction and interaction of cll 63 and 64 of the Agreement; the issue of fact as to how the fire originated; and whether there was negligence by Mr Cooper.
Particulars of negligence were furnished on 16 June 2004 in relation to the acts and omissions of Mr Cooper. As previously noted, the other defendants were not at the premises at any relevant time. The particularisation of the alleged negligence was set out as follows:
“Sean Cooper
(a)Negligently damaged the premises or permitted such damage by throwing an overheated lighter onto or in the vicinity of combustible materials in the garage of the subject premises;
(b)Following the acts referred to in (a) above, Mr Cooper left the garage. It was not until approximately half an hour later that Mr Cooper noticed the black smoke, following which he called the fire brigade;
(c)Tossed or threw or discarded an overheated lighter onto or in the vicinity of readily combustible materials and leaving the garage shortly thereafter without any adequate care to ensure that fire did not and would not ensue;
(d)A fire ignited which caused significant damage to the premises. Accordingly, Mr Cooper failed to maintain the premises in substantially the same condition as the premises were in at the commencement date of the Tenancy Agreement, fair wear and tear excepted;
(e)Upon conducting heat shrink wrapping to rubber covering around car battery cable, Mr Cooper negligently and in breach of clauses 63(a) and (c) and 64 of schedule 6 of the Act and sections 63(a) and (c) and 64 of the Tenancy Agreement threw or tossed the overheated lighter without regard to its whereabouts and onto or in the vicinity of combustible materials;
(f)The plaintiff says that the tossing of the cigarette lighter, following its ignition by Mr Cooper continuously for 10-20 seconds, onto a foam chair located in the garage was an act fraught with danger and without reasonable care for the plaintiff’s property nor in accordance with the defendant’s contractual obligations, and was the cause of the subject fire.”
Since the precise manner in which the fire occurred was not observed, the case is based on circumstantial evidence. The plaintiff seems to rely on inference, the principles of res ipsa loquitur, and the fact that Mr Cooper was not called to give evidence although he was available.
Construction of CLAUSES 63 AND 64 OF THE AGREEMENT
The first matter for consideration is the construction and interaction between cll 63 and 64. This issue bears importantly on the onus of proof. Those clauses read as follows:
“Tenant to look after the premises
The tenant shall take reasonable care of the premises and keep the premises reasonably clean.
63. During the tenancy, the tenant shall:
(a) not intentionally or negligently damage the premises or permit such damage;
(b) notify the lessor of any damage as soon as possible; and
(c) take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living.
64. The tenant shall leave the premises:
(a) in substantially the same state of cleanliness, removing all his or her belongings and any other goods brought onto the premises during the duration of the Tenancy Agreement; and
(b) in substantially the same condition as the premises were in at the commencement of the Tenancy Agreement, fair wear and tear excepted.”
The Tenancy Agreement imposes an obligation on the tenant to take reasonable care of the premises. In this case, it is important to decide who bears the onus of proof in relation t the claimed breaches of cll 63 and 64 due to the absence of direct evidence as to the origin of the fire.
BURDEN OF PROOF
Clause 63(a)
In order to establish a breach of cl 63(a), it is necessary for the lessor to establish that the tenant has intentionally or negligently damaged the premises, or permitted such damage. The damage in the present case is obviously the damage caused by the fire. The lessor alleges this breach and bears the onus of establishing it. Often, this can be difficult because the lessor will not be in possession or control of the premises during the term of the tenancy. In this case, there is no allegation of intentional damage to the premises by any one of the tenants.
Clause 64(b)
On its face, the obligation under cl 64(b) is absolute. The wording of this clause suggests that all the lessor must show to prove the tenant’s liability is that the premises were not in the same condition as they were at the commencement of the Agreement.
The defendants submit that the obligation under cl 64(b) is not absolute. It is argued that if cl 64(b) were to be construed as imposing an absolute obligation, without any exceptions other than “fair wear and tear”, then there would be no need for cl 63(a). The defendants submit that this would be an absurd result.
According to the language of cl 64(b), the onus is on the lessor to establish the condition of the premises at the time the tenancy commenced and prove that the premises were not in a similar condition when the tenant left. The clause provides an exception for “fair wear and tear.” The burden of demonstrating that the exception applies generally rests on the tenant: see Vines v Djordevitch (1955) 91 CLR 512 at 519-520. The phrase “fair wear and tear” has been interpreted as the reasonable use of the premises by the tenant and the ordinary operation of natural forces: see Regis Property Co Ltd v Dudley [1959] AC 370. The effect of the clause is that the tenant is bound to keep the house in good repair and condition, but is not liable for minor changes to the premises that constitute reasonable wear and tear. In this case, there is no issue in relation to “fair wear and tear” because it is common ground that the premises were not damaged by fire when the Tenancy Agreement commenced but have since been so damaged.
The defendants submit in relation to cl 64(b) that in order to prove a breach, the lessor carries the onus to establish that the damage was caused by the tenant and must advance some reasonable hypothesis concerning the loss consistent with the tenant’s intentional or negligent conduct in causing the loss. They refer to two cases: Baird v Campbell [2005] ACTRTT 8 and Flockhart v GA Properties Ltd [2001] ScotsCS 250.
The case of Baird v Campbell concerned water stains that caused damage to a curtain. The applicable provisions were identical to cll 63 and 64 in the present matter. In examining the tenant’s responsibility in that case, the ACT Residential Tenancies Tribunal determined that it was not considering a case where there was only one possible explanation for the damage caused to the premises. Therefore, the principle of res ipsa loquitur had no application.
Baird v Campbell does not assist in determining the question of onus in the present circumstances. In rejecting the landlord’s claim, the Tribunal decided the case on three bases. First, the landlord failed to complete an in-going condition report at the commencement of the lease. Therefore, the Tribunal had no contemporaneous evidence of the state of the curtains at the start of the lease. This in itself was fatal to the claim under the provision equivalent to the present cl 64(b). To establish the condition of the premises upon departure, it is generally necessary to establish their condition at the commencement. The second basis for the decision in Baird v Campbell was that there was no evidence that the tenants had deliberately or negligently caused the damage to the curtain. This is clearly a reference to the equivalent provision of cl 63(a), and it is clear under that provision - as distinct from cl 64(b) - that the onus rests on the plaintiff. The third basis for the decision of the Tribunal was that the damage to the curtain was so minor that it did not exceed the limits of the exception for “fair wear and tear.” The landlord was therefore bound to fail because the tenant established that the “fair wear and tear” exception applied. Accordingly, the case does not establish the proposition for which it has been cited by the defendants.
The second case relied on is Flockhart v GA Properties Ltd, a decision of the Scottish Court of Session. This decision turned on technical pleading points, and the wording of the relevant provisions is quite different to the wording of cll 63 and 64 in the present proceedings. In that matter, the Court observed in broad terms that a tenant is not liable for extraordinary repairs, such as the collapse of walls. The Court considered that a tenant could not have an obligation to rebuild, re-instate or replace the whole premises when the premises are part of a tenement, because the tenant could have no rights to interfere with external walls as against the other owners or occupiers of another tenement property. Therefore, even if it could not be established that the movement of the wall was due to an inherent defect at the time the tenant entered into the property, it did not follow that the tenant was liable to replace the wall after some general movement of the external wall.
Flockhart v GA Properties Ltd is distinguishable from the case presently before me. As mentioned above, Flockhart turned on specific pleadings and the clauses in question were quite different to those relevant to the present case. In addition, that case was concerned with the liability of the tenant for extraordinary repairs in circumstances where the tenant would not have the legal capacity to carry out the repairs or re-instatement.
Even if one assumed that, in addition to the express exception of “fair wear and tear”, another exception should be implied so that a tenant should not be liable for extraordinary repairs or damage caused by accident, the onus of establishing that the repairs were extraordinary or caused by accident should fall on the tenant. This principle of interpretation is consistent with the principle that the onus of establishing the “fair wear and tear” exception falls on the tenant. This conclusion in relation to onus is supported by Redfern and Cassidy in their Australian Tenancy Practice and Precedents (Vol 1 at [2650]).
The plaintiff submitted that the decision of Helsham J in Saviane & Ors v Stauffer Chemical Co [1974] 1 NSWLR 665 was also relevant to this issue. In that case, his Honour considered the meaning of the term “accident” in s 84(1)(b) of the Conveyancing Act 1919 (NSW). This section created an exception to the obligation to keep the premises in good repair if the incident that caused the damage was accidental. His Honour held at 671 that the expression “accidents” referred to events causing damage for which the lessee is not responsible. It was held that where a lessee claims that he or she is not responsible for the damage, it is incumbent upon the lessee to establish that a reasonable person in his or her shoes would not have foreseen that the event would probably cause damage to the premises of the kind that occurred, and which he or she could not reasonably have guarded against. Operating in this way, the section would protect a lessee who established that the incident could not reasonably have been anticipated. This decision, in my view, lends support to the plaintiff’s argument even though the wording of the relevant provisions is not identical.
In Sunray Investments Pty Ltd v Cruwys & Ors [1992] NSWRT 95, the New South Wales Residential Tribunal considered a section in very similar terms to cl 64(b). In that case, the Tribunal concluded that because the landlord did not prove on the balance of probabilities that any change in the condition of the premises was due to the fault or negligence of the tenants, there was no breach. In my view, this reasoning is wrong and contrary to authority. If a tenant wishes to take advantage of an exception implied in a provision, the burden of proving an entitlement to invoke the exception rests on that party.
The defendants also seek to support their submissions in relation to the burden of proof by reference to s 31 of the Residential Tenancies Act 1997 (ACT). Section 31 enables a lessor to deduct from a bond the cost of restoring the premises if the tenant has caused damage other than fair wear and tear. The defendants submit that this section gives an indication as to the way in which cl 64(b) should be construed. I do not agree. Section 31 is concerned with one method by which a lessor may recover compensation or damages. It does not alter the meaning of cl 64, nor mandate any approach as to its interpretation.
Finally, the defendants raise the issue of a possible exemption of the tenant under cl 74(c) of the Tenancy Agreement. Clause 74(c) states that the tenant is not personally responsible for the actions or omissions of a person who is on the premises without the consent of the tenant. The defendants argue that this clause indicates the tenant may have another ground for exemption under cl 64(b), namely, that the relevant damage was caused by a person who was present on the premises without the consent of the tenant. In my view, this provision does not assist the defendants.
For the above reasons, the burden of proof in this case is on the defendants to establish that they are not liable under cl 64(b). There is no burden on the plaintiff to establish that the first defendant was negligent in causing the damage to the premises.
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.”
In relation to the electrical systems in the garage, the report states that main supply registered as “normal,” the fuses had been checked and were “OK,” and that the wiring also appeared “OK.” The fuses were taken from the premises and inspected, but no visible damage was reported. Photographs of the area were also taken.
An additional report from Mr Covington dated 16 December 2001 was also handed up to the Court by the plaintiff. The parties disagree whether this statement of Mr Covington was admitted into evidence in the plaintiff’s case or in the defendants’ case. The report was originally tendered by the plaintiff. However, it was not admitted at that point because the report was prepared in contemplation of legal proceedings. It was subsequently admitted as part of the defendants’ case at the insistence of the plaintiff following the evidence of Mr Hancock, the expert for the defendants. Mr Hancock had relied on the report in making his statement and effectively incorporated this material during his evidence (see Transcript 169, 182 and Exhibit N, paras 6-14).
In this second report, Mr Covington notes that he observed that the fuse box appeared normal and that this was confirmed by the first Station Officer who had arrived on the scene. Mr Covington says that the windows to all rooms were intact and that there was a visible smoke/char pattern above the external entrance to the garage. He saw little evidence of external burn patterns.
Mr Covington then writes that he interviewed Mr Cooper, who said that he had been in the garage using a lighter to shrink-wrap some plastic sheeting around a couple of wires for his car. The lighter was used continuously for about ten to twenty seconds as Mr Cooper moved the flame up and down the length of the wire until it began to shrink. Mr Covington also states that Mr Cooper admitted to having thrown the lighter across the garage onto the lounge chairs because “this is where [the lighter] belonged.” According to the report, Mr Cooper said that the lighter was generally used to light a bong or cigarettes while relaxing in the lounge chairs or having a drink.
The report then states that Mr Cooper went upstairs through the doorway on the southern side of the garage and into the kitchen to make a sandwich and a cup of coffee. On sitting down in the lounge room, Mr Cooper smelt smoke. He checked his entertainment unit, computer and electronic equipment in the building. Suspecting a grass or bush fire in the area, Mr Cooper went outside the front door of the house and saw smoke coming from the garage. He then called the Fire Brigade. Mr Cooper stated that he had previously had problems with feral cats and this had led him to block the cavity that went from the garage to under the house with cardboard. A stack of timber was also piled lengthways through the cavity.
Mr Covington says in the report that he observed some damage around the surroundings near the walls in the entrance way. The damage on the walls indicated that the flames had impinged into the house. Some electrical and telephoning cabling was also burned. Mr Covington also observed that the fire had travelled vertically up a wall cavity and into the roof space. He saw significant charring and smoke staining on the timber work. Damage to the electrical junction box caused by heat was also evident.
Upon entering the garage, Mr Covington found numerous indicators that suggested the fire had started in the rear of the garage in the south corner. He found a foot stool positioned in front of the lounge chairs which showed significant charring in the front suggesting the direction of fire travel from the source. Mr Covington considered that distinctive markings on a bike helmet and pinball machine also pointed to the heat source. He also noted in the report that there was cavity above the ledge in the garage that extended the distance of the house, and that it appeared that the rest of the ledge had been blocked off with cardboard in an attempt to restrict the access of feral cats. Mr Covington stated that the cardboard would have made an ideal fuel source and would have increased the intensity of the fire significantly. He also said that the most significant damage was done to the two chairs at the right of the diagram in the top right hand corner.
Mr Covington’s conclusion at the time was that the point of origin was the armrest on the lounge chair second from the wall. He noted that there was no evidence of accelerants used or any other flammable liquids. He expressed the opinion that a ten to twenty second continual usage of the lighter could have heated up the metal rim to extreme proportions, so that when it landed on the armrest of the lounge room it could have heated the fuel source through pyrolysis before igniting the vapours.
Mr Covington considered there was a plentiful fuel load in the garage comprising timber, paper, cardboard and the combustible materials on the armrests and chairs. Moreover, he noted that the burning timber would have encouraged the fire to travel further under the house and underneath the entrance. He found there was a plentiful oxygen source given that once the cardboard had burned away, oxygen and free air could flow throughout the open cavity of the house. In explaining the ignition of the fire, Mr Covington said it was plausible that the overheated cigarette lighter ignited the combustible material on the armrest where it landed. He found no other ignition source. The fire cause determination was described in the report as “accidental.”
The plaintiffs called as an expert witness Mr Gregory Kelly. I accept Mr Kelly’s qualifications and professional experience. Mr Kelly did not consider that the BIC lighter as depicted in the photographs could have been the cause of the fire, either by way of it being lit with an open flame or becoming so hot that it could lead to the ignition of the material on a chair. He considered that involvement of the cigarette lighter in the ignition of the fire was highly improbable. In Mr Kelly’s opinion, this view was supported by the fact that the photographs in evidence do not indicate any substantial damage to the cigarette lighter in question. However, Mr Kelly was unable to express any definitive view as to another ignition source.
Mr Kelly speculated that given the indication that the garage area was regularly used for smoking cigarettes and other substances associated with bongs, it was possible that the fire may have developed as a result of those activities. However, there is no evidence that anyone was engaged in those activities at the relevant time. This hypothesis is merely guesswork. Mr Kelly has also suggested that the cigarette lighter may have been used to light or ignite some other object or substance, and this then led to the ignition of the fire.
In relation to the determination of the point of origin of the fire, Mr Kelly noted that the fire appeared to have been located in the chairs on the right side, where the remains of material resembling polyurethane foam padding were evident after the fire. Mr Kelly arrived at this conclusion without knowing whether any of the items in the garage were moved or altered during the extinguishment of the fire or the subsequent examination of the area. He considered that there was no particular evidence which indicated that the fire had travelled over the fibro or gyprock material on the ledge. Mr Kelly also said that the fact that the legs of the chairs and the underside of the rolling foot stool were not burnt gives support to the hypothesis that the fire developed in one of the armchairs. In substance, his evidence as to the origin and development of the fire is not inconsistent with that of Mr Covington. I found Mr Kelly to be an open and frank witness who was well-qualified. I accept his evidence in relation to the likely point of origin and development of the fire in preference to that of Mr Hancock, who was called for the defendants but could not disclose a source of actual ignition.
Mr Gregory Hancock was called as an expert for the defendants and I accept that he has relevant experience and qualifications. However, I found him not to be a frank and open witness. In particular, I refer to his statement that he had a commitment and was unable to attend Court on the second day of the hearing, and to the fact that in many instances he manifestly saw his role as an advocate and attempted to reinforce his credentials and experience rather than dealing directly with questions posed. Mr Hancock was unable to positively state whether the fire started in the chairs and spread to the stack of timber palings, or whether the fire started around the timber palings in the cavity and spread to the chairs. He agrees that it is quite possible that the fire started in the chairs in the rear right hand corner of the garage. However, he says there is other evidence which demonstrates that the fire could have started in another area.
Mr Hancock conjectured that the fire could have commenced as a result of faulty wiring, a faulty fuse, interference by vermin or some other cause of that nature. The difficulty with these conjectures is that there exists no evidence on which this opinion could be based. Furthermore, the timing of the events suggests that it would be an extremely unlikely coincidence if a fire were to commence due to faulty wiring or vermin in the narrow window of time between the lighting of the BIC lighter and the time Mr Cooper first noticed smoke emerging from the garage. The defendants have sought to rely on the decision of Perry J in Blue & White Barra Pty Ltd v Solley [2001] SASC 194, which concerned a fire caused by a fault in an electrical switchboard. However, this case is distinguishable on the facts from the case before me because in that matter, the time that had elapsed between the allegedly negligent work performed on the switchboard and the eventual fire was considerably greater than in the present circumstances.
Considering the circumstances of this case, I find that the ignition took place in one of the chairs at the rear right hand corner of the garage. There is no evidence as to the exact way in which the fire started. The issue of the point of origin of the fire was made somewhat more complex because the photographs in evidence suggest that the armchairs may have been moved. Therefore, the exact location of the armchairs at the time of ignition is not certain. Nevertheless, I consider that the evidence is in favour of the fire having commenced in one of the chairs at the rear right hand corner of the garage.
I find that at the time when the fire commenced, the premises were in the sole control of Mr Cooper. I accept that he was using a naked flame to shrink-wrap a couple of wires, and that the lighter, the plastic sheeting and the wires were within his control. I find that he threw the lighter towards the armchairs, where the fire ignited a short while after. I find that the occurrence of the fire was unexplained and that its ignition required the application of a direct flame to some kind of material in the area. In this context, the fire probably would not have started but for the action of Mr Cooper in carrying out the shrink-wrap operation.
RES IPSA LOQUITUR
This principle was examined in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121. In that matter, the High Court pointed out that the principle does not vary the onus of proof. It was observed at 133 that the principle is not a distinct, substantive rule of law, but an application of an inferential reasoning process, and that the plaintiff carries the onus of proof of negligence even when the principle is applicable: see also Anchor Products Ltd v Hedges 26 (1966) 115 CLR 493 at 500. As evident from cases such as Anchor, the High Court has made it clear that a plaintiff may rely on the principle even though there is also a plea that particular acts or omissions of negligence on the part of the defendant occurred, so long as three elements are established: (1) there is an “absence of explanation” of the occurrence that caused the injury; (2) the occurrence was of such a kind that it does not ordinarily occur without negligence; and (3) the instrument or agency that caused the injury was under the control of the defendant.
In the case presently before me, the injury is the fire damage. The occurrence which caused the injury is the fire which ignited in the garage almost immediately after the shrink-wrapping process had been carried out by Mr Cooper using a naked flame. The exact way in which the fire began is not known. As noted above, I find that the fire began on one of the chairs as shown in the diagram at the rear right hand section of the garage. I also find that the fire began by the fabric on that seat catching fire. However, the source and manner of the ignition are not known. The evidence indicates that it was not the cigarette lighter, and also indicates that more than a heated lighter would have been necessary to cause ignition. In the context I consider there is an “absence of explanation” of the occurrence that caused the injury.
In relation to the second consideration, the occurrence was of such a kind that it would not ordinarily occur without negligence. Chairs do not ordinarily burst into flames, although, of course, fires can be started by a multitude of causes. It was suggested in this case that the fire could have been caused by an electrical fault or rodent activity. However, in my view, given the location of the point of origin, the limited time frame and the fact that a lighter had been lit in the premises only a few minutes before the commencement of the fire, the occurrence can be properly described as one which does not ordinarily occur in the absence of some negligent act or omission.
In relation to the third consideration, it is evident that the garage premises were under the control of the defendant at the time when he was using a naked flame to perform the shrink-wrapping operation and during the time period immediately following. It is clear that the instrument used for facilitating the sealing of the wires was within his control. Moreover, the fire occurred in a garage in which there was a great deal of readily combustible material.
In light of the fact that Mr Cooper failed to take proper precautions with respect to the use of a naked flame on the premises, the inference of a negligent act or omission is available and is reinforced by the principle of res ipsa loquitur. After considering the evidence, I do not think it is necessary to invoke the principle.
This case is not comparable with the circumstances in the case of Mummery v Irvings Pty Ltd (1956) 96 CLR 99. In that case, there was an explanation as to the cause of the relevant occurrence, namely, that the piece of wood which caused injury to the plaintiff was thrown by a circular saw. The plaintiff then bore the onus, which was not discharged, of establishing that such an incident could not occur without negligence on the part of the defendant. In the present case, the cause of ignition is not known with such precision and there is no other reasonable possibility, such as the act of a stranger, the activities of vermin or rats, or an act of God, that is open on the evidence.
JONES V DUNKEL
It was submitted by the plaintiff that the Court should feel more confident in reaching the conclusion that there was an inference of a negligent act or omission available on the facts in light of the fact that Mr Cooper elected not to give evidence. The principle in Jones v Dunkel (1959) 101 CLR 298 on which this submission is based is one of limited utility and I appreciate that fact. The defendants submit that this principle has no role to play in the present case because the defendants have answered interrogatories and these have been tendered in evidence by the plaintiff.
However, in my view, the tendering of interrogatories - which are not subject to cross-examination - do not have the effect of negating the application of the principle in Jones v Dunkel. If this were the case, it would be comparable to a situation where the defendants simply gave evidence in chief but refused to answer questions on cross-examination. Although the Court would have the benefit of the defendants’ assertions on oath, there would be no opportunity to test those assertions. In this case, Mr Cooper was obviously the best person to give evidence in relation to the events that actually took place and to furnish details as to what transpired in circumstances where the plaintiff cannot be expected to have any direct knowledge as to what occurred.
Again, I do not consider it necessary to invoke this principle in the present case. However, in my view, the principle is available to further confirm the conclusion which I have reached, that is, that Mr Cooper is guilty of a negligent omission or act in failing to take proper precautions when using a naked flame in the garage.
In conclusion, given the narrow time frame of approximately ten to twenty minutes during which the fire was detected, the application of a naked flame for a period of up to twenty seconds shortly beforehand, and the fact that Mr Cooper threw the cigarette lighter across the room towards the chairs apparently without taking any precautions, I consider that it is more probable than not that Mr Cooper negligently permitted the damage to the premises to take place. Looking at the evidence as a whole, it is improbable that any source other than a naked flame could have led directly or indirectly to the fire in the present case. Without invoking any reinforcing principles such as res ipsa loquitur or relying on the principle in Jonesv Dunkel (1959) 101 CLR 298 concerning the defendants’ failure to call Mr Cooper, I am satisfied that Mr Cooper breached cl 63(a) of the Tenancy Agreement. The plaintiff has therefore discharged the onus of proof under cl 63(a).
In relation to cl 64(b), for the reasons given earlier, I consider that the onus of proving an exception lies on the defendants. In this case, no exception has been established, either in the nature of “fair wear and tear” or on any other basis such as accident without fault.
Accordingly, for the above reasons, I consider that Mr Cooper and the other two tenants are jointly liable for the breach of cll 63(a), 63(c) and 64(b). I order that the defendants pay damages to the plaintiff, together with interest and costs.
I note that notices of contribution have been filed by the third defendant against the first and second defendants. I am satisfied that having regard to the findings I have made in relation to Mr Cooper, I should make orders in accordance with the notices of contribution.
I make no orders at this point, but direct the Plaintiff to bring in Short Minutes to give effect to these reasons.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.
Associate:
Date: 22 September 2006

Counsel for the Plaintiff: Mr S McCarthy

Solicitor for the Plaintiff: Henry Davis York

Counsel for the First and Second Defendants: Mr G Walker

Solicitor for the First and Second Defendants: Meyer Vandenberg Lawyers

Counsel for the Third Defendant: Mr G Blank

Solicitor for the Third Defendant: Rod J Barnett & Associates

Date of Hearing: 20, 21 July and 1 August 2006

Date of Judgment: 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

Counsel for the Plaintiff:	Mr S McCarthy
Solicitor for the Plaintiff:	Henry Davis York
Counsel for the First and Second Defendants:	Mr G Walker
Solicitor for the First and Second Defendants:	Meyer Vandenberg Lawyers
Counsel for the Third Defendant:	Mr G Blank
Solicitor for the Third Defendant:	Rod J Barnett & Associates
Date of Hearing:	20, 21 July and 1 August 2006
Date of Judgment:	22 September 2006