White v Towers [2011] FJHC 609; HBC11.2009 (29 September 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION
Civil Action No: HBC 11 OF 2009

BETWEEN:

PHILLIP ANDREW JOHN WHITE & KATHERINE ALEX WHITE
[Plaintiffs]

AND:

TIM TOWERS
[Defendant]

Counsel: Mr. I. Roche for the Plaintiffs.
Mr. P. Knight for the Defendant.

Date of Judgment: 29th September, 2011

JUDGMENT

1. By Writ of summons, the plaintiffs Philip White and Katherine White commenced this action against the defendant.
   
2. According to the statement of claim, the plaintiffs are the registered proprietors as joint tenants of the land described in Certificate of Title 27963 as being Lot 7 in Plan No. 7616 situated at retreat road, Waidroka Bay, Serua, Fiji.
   
3. There was a double storeyed pine wood building with glass frontage on the land. In about 2005-2006, the plaintiffs left Fiji to travel overseas and the defendant came to occupy the plaintiff's house with the plaintiff's consent.
   
4. The terms were that the defendant would not pay any rent or fee but would maintain the house. Also, the defendant was expected on an ad hoc basis from time to time to carry out routine maintenance.
   
5. On 25.01.2007, the plaintiff's house was destroyed by fire. The plaintiff alleges that there was an explosion at the plaintiff's property which caused the fire. It is further alleged that the defendant took delivery of a gas refrigerator and installed it in the plaintiff's property without the knowledge or permission of the plaintiff.
   
6. The plaintiff further states that the fire which destroys the plaintiff's house was caused by an explosion originated from a leak in the gas line to the said refrigerator, and the leak resulted from the defendant's faulty installation of the gas line to the said refrigerator.
   
7. It is further stated that although the defendant assured that he would recompense the plaintiffs for their loss, the defendant ignored it later.
   
8. Therefore, the plaintiffs seek following relief from the court:
   
   1. The sum of FJD 180000.00;
   2. Displacement expenses;
   100. Damage for distress and inconvenience;
   4. Interest;
   5. Costs on a solicitor client basis; and,
   6. Such further or other orders as the Court considers appropriate.
      
9. The defendant in his statement of defence admits that he had occupied the property during the relevant period. It is further admitted that on 25.01.2007, the defendant installed a new gas fridge that he had bought from Fiji Gas Ltd. in the plaintiff's property.
   
10. The defendant further states that he had checked the pipe connecting the refrigerator to the gas bottle and had found no leaks.
    
11. However, the defendant admits that the fire started some hours after the refrigerator was installed.
    
12. The following facts were agreed to by the both parties at the pre-trial conference.
    
    • The plaintiffs are the registered proprietors of the land being lot 7 in DP 7616 situated at Retreat road, Waidroka Bay, Serua.
      
    • Up until 25.01.2007, there was a dwelling house erected upon the land (the premises).
      
    • The defendant sought permission to occupy the premises for a period in January 2007.
      
    • The plaintiffs through their friend Charles Crombie gave the defendant permission to occupy the premises, and gave him the key.
      
    • On 25.01.2007, the defendant installed a gas refrigerator purchased from the Fiji Gas Ltd into the premises.
      
    • The defendant connected the refrigerator to a gas bottle and turned it on.
      
    • At some point after turning on the refrigerator the defendant left the premises.
      
    • The defendant returned some time later to find the house was on fire.
      
    • The premises were totally destroyed.
      
    • The National Fire Authority conducted an investigation into the cause and origin of the fire.
      
    • The premises were not insured against the risk of fire in 2007.
      
13. In view of the above, the following facts are to be determined by this court.
    
    1. What caused the fire in the plaintiff's property?
    2. Was the fire caused due to the negligence of the defendant?
    3. If so, what the damages should be?
       
14. At the trial, evidence of 6 witnesses was lead on behalf of the plaintiff; (1) The Chief Fire Officer Tupou Saubulinayau, (2) the plaintiff, (3) Viksha Prasad, (4) Marika Robanakadavu, (5) Kinivuai Koroi, and (6) Tomasi Rovula.
    
15. The 1st witness for the plaintiff was Tupou Saubulinayau, the Chief Fire Officer of the National Fire Authority. According to him he had arrived at the scene on 26.01.2007 and prepared a report. He was at the scene for about 30 minutes.
    
16. In cross examination the witness stated that when he arrived at the scene, the building had already been collapsed and he could not go inside but worked in the surroundings since it was still burning and hot.
    
17. The witness was accompanied to the scene by an officer named Timoci and when they arrived at the scene another fire officer named Buksh from Navua Fire Station was also there. It was Timoci who provided the information to the witness with regard to the gas fridge and the explosion.
    
18. It must be important to note that the witness prepared his report by using information provided by the above named officers.
    
19. It is interesting to note the way that the witness came into his conclusion as to the cause of the fire. Explaining his findings, the witness stated that he had observed pieces of glass 10 meters away from the building and there were no signs of smoke on it. Therefore, the witness came to a finding that an explosion had taken place before the fire started.
    
20. Furthermore, the witness stated that there were two fridges inside the building and the gas fridge had suffered more damage than the other fridge.
    
21. When it was suggested to the witness that the fire could have been caused by an electric fault he denied it and confirmed that it was gas which caused the fire. Further, he stated that there was an explosion and only the gas would have caused the explosion but not an electrical fault.
    
22. According to the plaintiff, he had purchased the property in Retreat Road, for $ 200,000.00. After that he carried out various improvements on the property. A solar electricity system was installed and it cost $ 17,221.00, since there was no FEA connection.
    
23. When the plaintiff was away the defendant was allowed by the plaintiff to occupy the plaintiff's house. When the plaintiff handed over the house to the defendant an electric refrigerator was in the house. In addition to that there was a gas boiler in the kitchen.
    
24. It was in January 2007, the defendant phoned him and informed the incident.
    
25. The plaintiff further stated that when the defendant phoned him the defendant said that I owed you a house. In cross examination, the plaintiff stated that when the defendant informed him the fire the defendant had promised him to replace the house.
    
26. The plaintiff's 3rd witness was Viksha Prasad. He gave evidence in relation to the installation of the aluminium sliding windows. According to him it cost some $ 24,000.00.
    
27. A carpenter named M. Robanakadavu also gave evidence in support of the plaintiff. He knew both the plaintiff and defendant. According to him, the defendant had phoned him when the fire broke out. Thereafter, the witness had come to the defendant's house and accompanied the defendant to the plaintiff's house which was on fire.
    
28. The plaintiff's final witness was Tomasi Rovula a quantity surveyor. He tendered a quotation for the construction of the plaintiff's residence.
    

The defendant's evidence

29. The defendant worked as a project manager involved in constructing houses. However, he has not had any formal qualifications.
    
30. In evidence in chief, the defendant admitted that the gas refrigerator was installed by him in the plaintiff's house. Having installed it, the defendant had turned on the gas and ignited the refrigerator. The defendant further stated that after he turned on the fridge he remained in the house for another 2 hours and he turned on the water pump also. Thereafter, he went to pick his workers up.
    
31. It was the defendant's wife who phoned him and informed that there was a fire in the house. When the defendant rushed to the scene the house was on fire. The defendant further stated that after he came to the scene he heard an explosion and it was a gas explosion.
    
32. When the defendant was asked whether he said to the plaintiff that "I owe you a house" the defendant said he could not remember as such.
    
33. In an action of this nature the plaintiff must discharge the preliminary task of submitting direct or circumstantial evidence which tends not only to show how the accident happened, but which also permits a reasonable finding that the defendant's conduct had some effect in producing the damage.
    
34. In order to do so the plaintiff must produce sufficient evidence of every fact. A mere scintilla of evidence would not suffice. In the absence of direct evidence the plaintiff must adduce circumstantial evidence from which the court can reasonably infer negligence.
    
35. The following facts have been proved by the evidence adduced by both parties.
    
    • The gas refrigerator was installed by the defendant on 25.01.2007 at the plaintiff's house.
      
    • The defendant had not obtained any expert assistance while installing the gas refrigerator.
      
    • Also, the defendant has not had any formal training as to how a gas refrigerator was installed.
      
    • The defendant turned on the gas and ignited the refrigerator and remained there for one and half hour before he left to pick up his workers.
      
    • The only gas bottle that had been turned on in the house at that time was the gas bottle connected to the fridge.
      
    • Shortly after the defendant left, the fire started.
      
36. Proof of installing a gas refrigerator followed by fire does not show that the installation of the gas refrigerator caused the fire. Further, merely by showing that it was possible that the fire was caused by the defendant's act would not prove the plaintiff's case. What the plaintiff is required to prove on balance of probability is the causal connection between the installation of the gas refrigerator by the defendant and the destruction of the house by fire.
    
37. It is true that the defendant was in charge of the house where the fire started but there was however no evidence given on behalf of the plaintiff that it had been inherently dangerous for the defendant to install the gas refrigerator in the house. There was also no evidence that the defendant negligently installed it.
    
38. The main evidence on which the plaintiff relies is the report made by the Chief Fire Officer.
    
39. To succeed his claim against the defendant, the plaintiffs must prove that the cause of the fire was the defendant's negligence in installing the gas refrigerator resulting in a gas leak which was ignited by the pilot light of the refrigerator.
    
40. The fire officer's report on which the plaintiff relies mostly, has several dates. It could be observed that the fire officer is not conclusive as to the cause of the fire. In the report it is stated that the suspected cause of fire was the escape of the gas from the refrigerator which was ignited by the pilot light.
    
41. However, the fire officer has not explained how he arrived at the above finding. In cross examination, he admitted that he spent only 30 minutes at the scene. Further, it can be seen on the page 7 of the report that he never made any observations internally. It was also admitted in cross examination that the witness had not examined the scene internally since it was still hot and burning. Even on page 6 of the report where he made external observations on the scene, he never stated that he had found pieces of glass about 10 meters away from the scene although he stated so in cross examination.
    
42. He never inspected the inside of the house but made observations only in surroundings. In cross examination, the fire officer was questioned by showing several photographs of the scene which had been taken immediately after the fire.
    
43. The witness admitted that he did not see any of those items shown on the photographs during his investigation since they were all covered by the roofing iron, which again shows that the witness had prepared the fire report without making a proper observation at the scene.
44. Without examining the scene internally, he concluded that the cause of the fire was the gas refrigerator. As admitted by the witness, if the house was still burning and hot when he arrived at the scene it would have been difficult if not impossible for him to observe the remains of the fridge and other electrical appliances such as inverter.
    
45. Hence, it is difficult to understand how he came to the conclusion that the fire was caused by the leak of the gas from the refrigerator without carefully examining the remains of the fridge and the other items at the scene.
    
46. The fire officer was called to express his opinion as to the cause of the fire. In other words he was called as an expert by the plaintiff to establish the cause of the fire.
    
47. When an expert is called to give evidence, the party calling the witness should elicit from him his qualifications and experience in order to establish to the satisfaction of the court that he is a person who is especially skilled in the science in which he is called to give expert testimony.
    
48. Further, Court has to decide on the competency of a witness. It is the duty of the judge to decide whether the skill of any person in the matter on which evidence of his opinion is sufficient to entitled him to be considered an expert, and therefore, competent to give evidence.
    
49. In R. V. Abadon (1983) 1 A.E.R.364, the Court of Appeal stated that when an expert witness is asked to express his opinion on a question, the primary facts on which that opinion is based have to be proved by admissible evidence given either by the expert himself or by some other competent witness.
    
50. In the instant case, not a single question was put to him in the evidence in chief in regard to his expertise. The witness should have been questioned in regard to his experience, the special skill which he claimed to have acquired, the number of instances where he has investigated gas explosions and the number of cases where he has given his opinion as an expert in court.
    
51. Further, the fire officer has not recorded any of the observations upon which he arrived at a conclusion that there was an explosion before the fire started, which in my view weakens the credibility of his investigations and subsequent findings.
    
52. This incident happened in January 2007. The witness admitted that he had attended about 300 fires since 2007. Therefore, when the observations were not recorded in particular as to how he came to the conclusion that there was an explosion, it is my view, that the said report carries little or no weight.
    
53. Hence, it is apparent to the court that the witness although stated that the cause of fire was the explosion from the gas refrigerator, he has come to that conclusion without any proper basis. Therefore, I opine that it is unsafe to rely on the evidence given by the fire officer. Further, the report prepared by him cannot be accepted since it does not contain most important observations that should have been made during the investigation.
    
54. The other significant fact is that the fire officer was not sure as to when he completed the report. He stated that the first fire report had been misplaced and he prepared a second report.
    
55. On the evidence before this court, I cannot determine as to how the fire started or what constituted its immediate cause.
56. More importantly, there is no sufficient evidence to determine whether the fire started in the place where the gas bottle of the fridge was kept or in some other place.
    
57. Therefore, I am not inclined to conclude that the installation of the gas refrigerator by the defendant caused the fire.
    
58. Since the plaintiff has failed to establish the cause of fire, it does not deem necessary to proceed any further to consider the issue of duty of care and the damages.
    
59. On the above premise, I conclude that the plaintiffs have failed to prove their claim against the defendant. Therefore, I dismissed the plaintiff's action.
    
60. Cost is summarily assessed in the sum of $ 400.00
    

Pradeep Hettiarachchi
JUDGE

At Suva

29th September, 2011