Gillanders v Mason
[2013] NZHC 382
•1 March 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV2012-488-000389 [2013] NZHC 382
BETWEEN WILLIAM STEVEN GILLANDERS Appellant
ANDMICHAEL GLEN MASON Respondent
Hearing: 26 February 2013
Appearances: Appellant in Person
G S A Macdonald for the Respondent
Judgment: 1 March 2013
JUDGMENT OF GILBERT J
This judgment was delivered by me on 1 March 2013 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date: ………………….
Counsel: G S A Macdonald, Auckland: [email protected]
Copy to: W S Gillanders, 18 Butler Rd, Kerikeri: [email protected]
GILLANDERS V MASON HC WHA CIV 2012-488-000389 [1 March 2013]
[1] Mr Gillanders’ house, which was a converted cowshed, was destroyed by fire on 23 September 2003. Mr Gillanders’ son was living at the property at the time of the fire with two of his friends, one of whom was Mr Mason. Mr Gillanders claims that the fire was caused by Mr Mason’s negligent installation of stereo equipment at the house.
[2] Judge de Ridder dismissed Mr Gillanders’ claim finding that Mr Mason was not negligent and that, even if he was, Mr Gillanders had not proved on the balance of probabilities that Mr Mason’s negligence caused the fire. Mr Gillanders now appeals from this judgment.
[3] Although in his written submissions Mr Gillanders contended that the judge made a number of errors, during the course of argument the issues narrowed to two:
(a) Was the judge correct in concluding that Mr Mason was not negligent in installing the stereo equipment?
(b)Was the judge correct in concluding that Mr Gillanders had not proved that negligent installation of the stereo equipment caused the fire?
Approach on appeal
[4] The appeal is by way of rehearing. I am required to come to my own view of the merits, both on questions of fact and law. I may, if appropriate, substitute my own decision for the decision of the District Court.
[5] The proper approach was confirmed by the Supreme Court in Austin Nichols
& Co Inc v Stichting Lodestar [2008] 2 NZLR 141 in which Elias CJ said at [16]:
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.
In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
Was the judge correct in concluding that Mr Mason was not negligent in installing the stereo equipment?
[6] Mr Mason accepted that as an occupier of Mr Gillanders’ house, he owed him a “duty to exercise reasonable care to avoid acts or omissions which were reasonably foreseeable as likely to cause a fire and damage Mr Gillanders’ property”. The judge proceeded on the basis that this was an accurate description of the relevant duty and there was no challenge to this on appeal.
[7] In his fifth amended statement of claim, Mr Gillanders alleged that Mr Mason breached this duty by installing and operating stereo equipment, comprising a compact disc player, amplifier, speakers and sub-woofer, in contravention of the manufacturer’s instructions thereby creating a risk of fire. Mr Gillanders pleaded the following particulars of breach:
(a) The stereo equipment was installed in direct sunlight being a heat source.
(b) The compact disc player was placed directly on top of the amplifier, being a heat source, without any ventilation between the compact disc player and the amplifier.
(c) The stereo equipment was installed in direct sunlight in a bedroom that was constructed on a raised a mezzanine floor and in which one external wall was glass and capable of generating high temperatures.
(d) The stereo equipment was installed in a room that was not ventilated.
(e) The stereo equipment was left in standby mode in the circumstances referred to above.
(f) All above matters were safety requirements specifically listed by the manufacturer of the stereo equipment known to and in the possession of [Mr Mason].
[8] Mr Gillanders abandoned his negligence claim in relation to the speakers. He accepted that the evidence showed that these were very unlikely to have caused the fire.
[9] During the course of the hearing of the appeal, Mr Gillanders also abandoned his argument concerning the amplifier. He maintained that this had been installed incorrectly because the CD player was placed on top of it and that this created a fire risk. However, he acknowledged that he had not proved that Mr Mason was negligent in this respect because the owner’s manual Mr Mason had did not specify any requirement for clear space above the amplifier except for models made in China. Mr Mason understood that his amplifier had not been made in China and Mr Gillanders accepts that Mr Mason was therefore entitled to assume that this direction did not apply.
[10] Mr Gillanders initially confined his oral argument at the hearing of the appeal to the allegation that Mr Mason negligently installed the compact disc player on top of the amplifier in contravention of the instructions given by the manufacturer of the compact disc player. However, as the hearing developed, it emerged that Mr Gillanders also continued to place reliance on his allegation that Mr Mason negligently installed the sub-woofer in direct sunlight and he maintained that this was another possible cause of the fire.
[11] The judge found that Mr Mason was not negligent in the way he installed the stereo equipment. He dealt with this issue at [35] of his judgment:
The only evidence in relation to the installation and operation of the stereo equipment is firstly, the guidelines set out in the manuals for the amplifier and the CD player, secondly the manner in which it was set up, and thirdly, the conflicting views of Mr Gillanders and Mr Mason as to the extent to which the stereo equipment was exposed to sunlight. As to the installation, it is not disputed that the CD player was placed on top of the amplifier and that there was a 20 millimetre gap between the two appliances. Mr Mason says that he had operated this equipment in this way prior to living in Mr Gillanders’ house without any difficulties or problems. It appears that the recommendation that there be a 30 centimetre gap between the top of the amplifier and any other equipment placed on top of it, was never drawn to Mr Mason’s attention as his amplifier was manufactured in Indonesia[1] and it appears that the instruction manual with the recommendation for a
[1] The reference to Indonesia was a slip on the judge’s part; he clearly intended to say Malaysia.
30 centimetre gap only applied to units manufactured in China. Furthermore, it appears that the recommendation is in a nature of a guideline
rather than an absolute requirement. In any event, the top of the amplifier was not obstructed, nor did it have anything placed against it as there were
spaces between the top of the amplifier and the bottom of the CD player. Furthermore, there is no evidence that the amplifier was obstructed at the
back or on the sides. I am not satisfied that in installing the equipment the way he did, that Mr Mason had breached the duty of care he owed to Mr Gillanders.
[12] As noted, Mr Gillanders does not now challenge the judge’s conclusion that Mr Mason was not negligent in the way he installed the amplifier given the owner’s manual he was working from.
[13] The owner’s manual for the compact disc player contains a section headed
“IMPORTANT SAFETY INSTRUCTIONS”. These included:
Do not install near any heat sources such as radiators, heat registers, stoves, or other apparatus (including amplifiers) that produce heat.
[14] The identified safety risk in the owner’s manual arises out of proximity to a heat source. The reference to an amplifier in this connection is to an amplifier generating heat, as it would while in use. It cannot sensibly refer to an amplifier that is not generating heat such as when it is not even plugged in.
[15] Neither the amplifier nor the CD player was in use at the time of the fire. Both were in standby mode. The evidence established that these components do not generate any significant heat in that mode.
[16] While I agree with Mr Gillanders that a reasonable person would not disregard the manufacturer’s important safety instructions when installing and operating the equipment, it does not follow that Mr Mason was negligent in leaving the CD player on top of the amplifier while both components were in standby mode and therefore not generating any significant heat. There was nothing in the manufacturer’s instructions warning against the risk of fire if these components were left in standby mode. Mr Mason could not reasonably be expected to have foreseen the risk of fire in such circumstances. I agree with the judge’s conclusion that Mr Gillanders failed to prove that Mr Mason breached his duty of care by leaving the CD player on top of the amplifier with both components in standby mode.
[17] Mr Gillanders originally contended that Mr Mason was negligent in installing the amplifier, CD player and sub-woofer in direct sunlight. However, he now
confines this aspect of his complaint to the sub-woofer. The judge dealt with this issue at [36]:
As to whether or not the amplifier and CD player were left in direct sunlight, the uncontested evidence from Mr Mason is that it was protected by a solid wall behind it. Also, on the other side, the eastern wall there was a curtain halfway up the window which effectively screened the amplifier and CD player from the sunlight. Mr Gillanders maintained however that the sun would have still shone on the sub-woofer. Even if that were the case, the evidence as to the temperature range in the locality of the house on the day of the fire was a temperature of between 10 and 16.3 degrees. As the fire started in the earlier part of the morning the temperature would have been nearer 10 degrees than 16 degrees. That is not a particularly high temperature, and certainly there was no evidence that the sub-woofer should not be exposed to such a moderate temperature. Given the evidence regarding the size and construction of Mr Mason’s room it is simply not tenable to argue that there was insufficient ventilation in the room. Again, under no circumstances could it be said that Mr Mason fell below the standard of care required of him as to where he installed his equipment.
[18] Mr Gillanders did not produce any owner’s manual or other evidence of any warning given to Mr Mason about fire risk if the sub-woofer was in direct sunlight. I agree with the judge that there was no evidence to show that Mr Mason ought to have apprehended the risk of fire being caused by the sub-woofer being left in the sunlight on the day of the fire.
[19] In conclusion, I agree with the judge that Mr Gillanders failed to prove that Mr Mason was negligent in any of the alleged respects. This is sufficient to dispose of the appeal but I will nevertheless consider the second issue which relates to causation.
Was the judge correct in concluding that Mr Gillanders had not proved that negligent installation of the stereo equipment caused the fire?
[20] The judge found that even if he was wrong in his conclusion on negligence, Mr Gillanders had not proved that any negligence on Mr Mason’s part had caused the fire. The judge dealt with this issue at [37] of his judgment:
In the event that I am wrong on the issue of breach, there is a fundamental problem for Mr Gillanders on the issue of causation. Although both assessors agreed that the origin of the fire was in the area where Mr Mason’s stereo equipment was installed, neither could be certain as to the cause of the fire. It appears to be equally possible that one of the items of electrical
equipment malfunctioned or the fire started in the electrical wiring. It is simply not possible to prove on the balance of probabilities that any malfunction in the electrical equipment caused the fire and did so because of the way in which the equipment was installed or where it was installed. Put simply, Mr Gillanders is not able to prove that it is more probable than not that the installation or the location of the stereo system, or both, were more probable than not to have caused the fire. On the fundamental issue of causation, in my view, Mr Gillanders’ claim must clearly fail. Although he is convinced of the cause of the fire, the evidence does not support his view to the extent that I can be satisfied as to causation.
[21] The judge heard evidence from two independent experts, Mr Bain and Mr Fletcher. Mr Bain is a senior station officer for fire safety for the Northern region. He has worked in this role for 15 years. Mr Bain considered that the fire started in the general area where the stereo equipment was located and was likely to have been caused by one of the items of electrical equipment in that location being the CD player, the amplifier, the sub-woofer, a multi-box unit and a phone charger. He could not say which one of these caused the fire. However, he ruled out the house wiring in the wall cavities as a possible cause because the circuit breaker had not tripped, there was no evidence of any electrical short and he considered that the burn patterns were not consistent with this. He concluded that the most likely cause of the fire was “something electrical” in that part of the room where the stereo equipment, the phone charger and a multi-box unit were located. However, he said “that’s as far as I can take it”.
[22] Mr Fletcher was the other independent expert who gave evidence. He is an experienced fire investigator. He agreed with Mr Bain regarding the general area in which the fire started. Mr Fletcher considered that there were at least five possible causes of the fire: the CD player, the amplifier, the sub-woofer, the phone charger and the power point and the conductor that leads from it. He was unable to say which one of these items caused the fire. He was unable to say that any one of them was more likely to have done so than any other.
[23] It is clear from this evidence that the judge had no option but to find that causation was not proved by Mr Gillanders. Neither of the experts was able to say that the fire was more likely than not to have been caused by Mr Mason having installed the CD player on top of the amplifier thereby causing it to ignite despite
both components being left in standby mode. There were other equally possible
causes of the fire that did not involve any negligence on Mr Mason’s part.
Conclusion
[24] Mr Gillanders has not persuaded me that the judge was wrong in finding that Mr Mason was not negligent. Nor has he persuaded me that any negligence on Mr Mason’s part caused the fire; there was simply no proof of this. The judge was correct to dismiss Mr Gillanders’ claim and enter judgment for Mr Mason.
Result
[25] The appeal is dismissed.
[26] Any application for costs should be made by memorandum to be filed and served within 14 days of the date of this judgment. Any memorandum in reply
should be filed and served within 14 days thereafter.
M A Gilbert J
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