N3650 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 785 OF 2001

BETWEEN:

MARSHALL LAGOON INVESTMENT COMPANY PTY LTD
Plaintiff

AND:

DING COMPANY LIMITED
First Defendant

AND:

CHAO JIN DING
Second Defendant

Waigani: Hartshorn J.
2008: 12th, 13th 17th June,
: 24th October

NEGLIGENCE – duty of care - Liability for damage caused by fire to premises - whether tenant negligent - whether tenant strictly liable for damage - rule in Rylands v. Fletcher considered - whether the principle of res ipsa loquitur applicable - three elements required to be established before principle can be invoked - principle unable to be invoked by plaintiff - plaintiff unable to rely upon the principle of res ipsa loquitur – plaintiffs case dismissed

Facts:

In February 1998 a fire destroyed a building owned by the plaintiff. Part of the building was leased by the first defendant company. The second defendant is the owner of the first defendant. The plaintiff pleads that the fire occurred as a result of the negligence of an employee of the defendants in leaving an aluminum pot to heat on a gas stove unattended. As a consequence the pot melted and caused the fire. The plaintiff further pleads that the defendants owed a duty of care to it and are responsible for the negligent actions of its employee. The plaintiff also relies upon the principle of res ipsa loquitur.

Held:

It cannot be determined on the evidence where the fire started or that the defendants committed a particular act or omission that caused the fire. The plaintiff is unable to rely upon the principle of res ipsa loquitur. The plaintiff's case is dismissed.

Cases cited: 

Papua New Guinea Cases:

The Ship "Federal Huron" v. Ok Tedi Mining Ltd [1986] PNGLR 5 

Overseas Cases:

Rylands v. Fletcher (1868) LR 3 HL 330 
Anchor Products Ltd v. Hedges (1966) 115 CLR 493
Burnie Port Authority v. General Jones Pty Ltd [1994] 179 CLR 520 
Schellenberg v. Tunnel Holdings Pty Ltd (2000) CLR 121 

Counsel: 

Mr. C. Narokobi, for the Plaintiff 
Mr. B. Takin Gobu, for the First and Second Defendants

24 October, 2008

1. HARTSHORN J: In February 1998 a fire destroyed a building in Kennedy Road, Gordon, National Capital District owned by the plaintiff. Part of the building was leased by the first defendant company. The second defendant is the owner of the first defendant.

2. The plaintiff pleads that the fire occurred as a result of the negligence of an employee of the defendants in leaving an aluminum pot to heat on a gas stove unattended. As a consequence the pot melted and caused the fire.

3. The plaintiff further pleads that the defendants owed a duty of care to it and are responsible for the negligent actions of its employee. The plaintiff also relies upon the principle of res ipsa loquitur.

4. The defendants pleading denies that the fire started at the gas stove or in the cooking and selling area. They allege that the fire started from an electrical fault in the ceiling of the living area which was located on the top floor of the building.

Issues

5.	

a)	what caused the fire?

b) 	were the defendants negligent?

c) 	are the defendants liable to the plaintiff?

Cause of the fire

6. The evidence given on behalf of the plaintiff concerning the cause of the fire primarily came from Mr. Sam Kera, a Chief Superintendent in the Papua New Guinea Fire Service. He gave evidence which included a letter dated the day after the fire that he had written to the Chief Fire Officer. Mr. Kera reported amongst others, that fire patterns revealed that the area of origin was from the northern end of the building, an aluminum pot was found all melted and part of the gas stand was badly burnt, "which is a result of being burnt for a long time".

7. Mr. Kera concluded his report by reporting that, "On the available information and what we have discovered at the point of origin, has led us to believe that the fire may have started from the Gas stove which melted the aluminum pot. The heat then transmitted to combustible materials nearby".

8. Under examination, he stated that in his view the source of the ignition was gas caused by carelessness. As to whether the fire started because of an electrical fault in the ceiling of the residence, he stated that in his view the fire pattern came from the kitchen. He further stated that although when he arrived at the scene, the building had collapsed, in his view he could still tell if the fire had started in the upstairs of the building.

9. As to what he had to say about persons upstairs being able to use the stairs to descend to the ground floor and that this would not have been possible if the fire had started in the downstairs kitchen as he believed, he said he had no comment on that. Under re-examination, he later said that if the fire had started in the ceiling upstairs, persons would not have been able to use the stairs to descend to the ground floor.

10. Mr. Varo Laulama, the owner of the plaintiff, gave evidence as to what he believed was the cause of the fire. He was not at the scene at the time of the fire and his evidence is based on what he said he was told. It is hearsay.

11. Mr. Emmanuel Koava gave evidence on behalf of the plaintiff concerning electrical work performed but he could not give any direct evidence as to the cause of the fire. 

12. Ms. Ding Yushan, the daughter of the second defendant gave evidence that she was asleep in one of the bedrooms upstairs in the building at the relevant time. She was awoken by her father and told that there was a fire. Ms. Ding said that she saw the fire on the outside of the ceiling in the living room and near her room. She ran down stairs that were used to go to the Kai Bar, to contact the fire service. In so doing she did not see any fire downstairs or in the Kai Bar. She also said that after she had gone downstairs, she was unable to go back up again because of the fire there.

13. The second defendant also gave evidence that the fire started upstairs where his family and an employee were staying. He stated that he saw the fire in the corner of the ceiling close to his daughter's room. After attempting to fight the fire, he broke a window upstairs and he and his wife jumped onto the roof of the Kai Bar to escape the fire.

14. The only evidence of persons who were at the scene when the fire occurred is that of the second defendant and his daughter. As to their demeanour when giving evidence, I found Ms. Ding to be reserved but consistent in her evidence. I have confidence that Ms. Ding believed that her evidence was truthful. The second defendant I found to be somewhat unresponsive and evasive in his cross-examination. Notwithstanding this, I am not satisfied that his evidence was untruthful. 

15. Mr. Kera was initially confident in giving his evidence but became more assertive in his answers. I formed the view that Mr. Kera began to answer questions with more certainty than his report, made soon after the fire, permitted him to do, after he thought his opinion was being questioned and undermined.

16. After considering the evidence concerning the cause of the fire, I cannot be satisfied that the fire did not start as submitted on behalf of the defence. Mr. Kera’s evidence concerning the ability to use the stairs depending on where the fire started and him ruling out the possibility that the fire may have started upstairs, dismissively in my view, was inconsistent and certainly not persuasive.

17. Mr. Dings evidence of having to break a window to escape the fire by jumping onto the Kai Bar roof with his wife, is not challenged. Mr. Kera's report concerning the melted aluminum pot and fire pattern to my mind, is not conclusive. This is reflected in the qualified belief stated in his report.

Were the defendants negligent?

18. The plaintiff pleads amongst others that:

a) 	the defendant's servants, "allowed the aluminum pot to cook unattended for a long time",

b) 	the defendants failed, "to take reasonable precaution or exercise reasonable care in cooking from an open fire fed by combustible gases from a gas bottle". 

19. To my mind, the plaintiff did not produce any credible evidence that the defendants or their employees committed a particular act or omission that was negligent or that any such act or omission caused the fire.

20. This is perhaps reflected in the plaintiff’s submission that the defendants owed a duty of care to the plaintiff pursuant to which the defendants were strictly liable for any loss or were liable pursuant to the principle of res ipsa loquitur.

Duty of care - strict liability

21. It was submitted on behalf of the plaintiff that as the defendants carried on the business of cooking on the premises, they had a duty of care to the plaintiff to ensure that the fire used for cooking did not escape and burn the building. In such circumstances it was not necessary for the plaintiff to prove the specific negligent acts of the defendants.

22. It is not suggested, as I understand it, that the lease or rental agreement between the plaintiff and defendants gives rise to the defendants being strictly liable. If it is so suggested, the plaintiff has not given any evidence of it.

23. Counsel for the plaintiff relied on amongst others, the rule in Rylands v. Fletcher (1868) LR 3 HL 330. Apart from a reference to it in submissions that were made to the Supreme Court in The Ship "Federal Huron" v. Ok Tedi Mining Ltd [1986] PNGLR 5, as far as I am aware the Supreme Court has not considered the rule in Rylands v. Fletcher (supra).

24. In the High Court of Australia decision in Burnie Port Authority v. General Jones Pty Ltd [1994] 179 CLR 520 the question of the rule’s relevance in relation to the law of ordinary negligence was considered. At paragraph 43 the Court said:

There may remain cases in which it is preferable to see a defendant's liability in a Rylands v. Fletcher situation as lying in nuisance (or even trespass) and not in negligence. It follows that the main consideration favouring preservation of the rule in Rylands v. Fletcher, namely, that the rule imposes liability in cases where it would not otherwise exist, lacks practical substance. In these circumstances, and subject only to the above-mentioned possible qualification in relation to liability in nuisance, the rule in Rylands v. Fletcher, with all its difficulties, uncertainties, qualifications and exceptions, should now be seen for the purposes of the common law of this country, as absorbed by the principles of ordinary negligence. Under those principles, a person who takes advantage of his or her control of premises to introduce a dangerous substance, to carry on a dangerous activity, or to allow another to do one of those things, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another. In a case where the person or property of the other person is lawfully in a place outside the premises that duty of care both varies in degree according to the magnitude of the risk involved and extends to ensuring that such care is taken.

25. Given that principles and rules of common law and equity in England were adopted as part of the underlying law, subject to qualifications, and given that Australia is a common law jurisdiction, the decisions of the High Court of Australia are persuasive in this jurisdiction. In the absence of any Supreme Court determination to the contrary, I am satisfied that the passage cited from Burnie’s case (supra) is a correct statement of the law.

26. Consequently, the degree of the duty of care has to be determined after regard is had to the circumstances of the particular case. Once determined, the next question is, has that duty of care been breached? It is not the case that the person in charge of the premises is strictly liable. For him to be liable it must be established that there has been a breach of the particular degree of duty of care required as a result of the negligent or careless performance of that duty by him. Irrespective of what degree of duty of care is owed in this instance, the argument of the plaintiff that the defendants are strictly liable for the loss that occurred, however that loss occurred, cannot be sustained.

Res Ipsa Loquitur

27. It was submitted on behalf of the plaintiff that the defendants are liable pursuant to the principle of res ipsa loquitur (the thing speaks for itself), which it was submitted is; "where Plaintiff suffers damages in consequences of one or more things which were under the exclusive control of the Defendant or his servants getting out of control, reliance may be placed on the maxim res ipsa loquitur in lieu of further evidence of negligence".

28. The principle of res ipsa loquitur may be invoked when 3 elements are established:

a) 	there is an "absence of explanation" of the occurrence that caused the damage;

b) 	the occurrence was of a kind that does not ordinarily occur without negligence; and

c)	whatever caused the occurrence was under the control of the defendant.

29. Res ipsa loquitur is the process of inferential reasoning from which negligence may be inferred rather than being a distinct rule of law. The High Court of Australia in Anchor Products Ltd v. Hedges (1966) 115 CLR 493 and Schellenberg v. Tunnel Holdings Pty Ltd (2000) CLR 121, noted that the burden of proof stays with the plaintiff. It is necessary for the court to determine whether the burden of proof has been discharged even if the 3 elements of the principle are established. In Anchor Products (supra), Windeyer J at p.50 said:

To say that an act speaks for itself does not mean that if no evidence is given for the defendant the plaintiff is entitled in law to a verdict in his favour. The occurrence speaks of negligence, but how clearly and convincingly it speaks depends upon its circumstances. It is evidence from which an inference of negligence may be drawn: it does not mean that this inference must necessarily be drawn, although in some cases it may be evidence so cogent and compelling that any other conclusion would be perverse as Du Parcq L.J. pointed out in Easson v. London and North Eastern Railway Co [1944] 1 KB 421 at 425. But always the question whether the plaintiff has discharged the burden of proving his case depends upon the effect of the whole of the evidence given in the case, including such inference as may be drawn from the happening of the accident, if its cause remains unexplained.

30. It was submitted that the occurrence of an act or omission related to the fire and an absence of accompanying precautions could be inferred from the location and timing of the fire. It was further submitted that the actual cause of the fire was effectively unexplained, that the fire was an occurrence that would not normally occur without negligence and that the defendants had been in charge of the premises where the fire started.

31. There was however no evidence given on behalf of the plaintiff that it had been inherently dangerous for the defendants to cook in the premises. There also was no evidence that the defendants had carried out their cooking activities negligently or without taking due precautions to prevent a fire.

32. The plaintiff is relying on an inference of an act or omission of the defendants causing the fire to start in the cooking area in the Kai Bar.

33. I have already stated that on the evidence before this court I cannot be satisfied as to how the fire started; whether as pleaded by the plaintiff or the defendants.

34. As to the first of the 3 elements to be considered in determining whether the principle of res ipsa loquitur can be invoked - the occurrence in respect of which there is an absence of an explanation; in Schellenberg’s case (supra), it was stated that:

In principle, we think the relevant cause must be the immediate cause of the occurrence, which means the occurrence must be defined with reasonable precision if the principle is to operate effectively. Definition of the occurrence will determine whether the accident is ofa class that does not ordinarily happen if those who have the management use proper care. Definition of the occurrence will also determine whether the cause of the occurrence has been established To a large extent, the definition of the occurrence will depend on how much the tribunal of fact knows about the accident.

35. I have not been able to determine the occurrence; where the fire started or what constituted its immediate cause. On the evidence, I have not been able to satisfactorily determine whether the fire started in the kitchen or in the upstairs ceiling. Essentially, there remains too much in respect of which there is an absence of explanation. In such circumstances the first of the 3 elements cannot be properly established. As all 3 elements are required to be established before the principle can be invoked, the principle is unable to be invoked by the plaintiff in this instance.

Conclusion 

36. I am not satisfied on the evidence where or how the fire started. I am not satisfied on the evidence that the defendants committed a particular act or omission that caused the fire. The defendants are not specifically liable for the damage caused by the fire. The plaintiff is unable to rely upon the principle of res ipsa loquitur on the evidence presented.

37. The plaintiff's case is dismissed. Costs of the proceedings are to be paid by the plaintiff to the defendants.
__________________________________________

Narokobi Lawyers: Lawyers for the Plaintiff 
B.T.Gobu & Associates Lawyers: Lawyers for the First and Second Defendants