Queensland Insurance Co. Ltd v Fiji Builders Ltd [1957] FijiLawRp 7; [1956-1957] 5 FLR 43 (11 April 1957)

[1956-1957] 5 FLR 43

IN THE SUPREME COURT OF FIJI

Civil Jurisdiction

Civil Action No. 54 of 1956

QUEENSLAND INSURANCE CO. LTD.
Plaintiff

AND

FIJI BUILDERS LIMITED
Defendant

Res ipsa loquitur-no explanation of accident-insufficient to discharge onus of disproving negligence.

The defendant company was employed by Messrs. Burns Philp & Co. to erect two refrigerator chambers at the latter's Lautoka premises. A fire occurred in the second chamber in which two of Burns Philp's employees were injured. Burns Philp assigned their right of action to the plaintiff insurance company. The plaintiff company instituted this action for damages alleging that the fire occurred through the negligence of the defendant company or its servants.

Held:-

(1) The accident was such as in the ordinary cause of things does not happen if those who have the management use proper care;

(2) The defendants had not discharged the onus thus thrown upon them of disproving negligence. The most they did was not to explain the accident but to show that it was inexplicable.

(3) That the defendants were negligent in their handling of a dangerous and hazardous substance (bitumen) and this was the cause of the fire.

(4) The defendants had failed to observe the standard of duty of a reasonable prudent employer.

Judgment for the plaintiff company.

Cases referred to:

Rothschild v. Royal Mail Steam Packet Co. [1851] 18 L.T.R.O.S. 334.

Blenkiron v. Great Central Gas Consumers [1860] 2 Foster and Finlason 437.

Hornal v. Neuberger Products Ltd. [1956] 3 All ER 970.

Moore v. R. Fox & Sons [1956]1 All ER 182.

P. Rice for the plaintiff company.

R. Munro for the defendant company.

RAGNAR HYNE, C.J. [11th April, 1957]-

Judgment:

This is an action in which the plaintiff claims from the defendant the sum of £471 13s. 4d.

The plaintiffs are the assignees of Burns Philp (South Sea) Co. Ltd., a company duly incorporated in the Colony of Fiji and carrying on business at Lautoka and elsewhere.

The statement of claim sets out that on or about 12th November, 1954, a fire occurred in the refrigerator chambers of premises at Lautoka owned and occupied by Messrs. Burns Philp (South Sea) Co. Ltd. As a result of such fire Burns Philp (S.S.) Co. Ltd. claim that they suffered damage to the extent of £471 13s. 4d. which sum the plaintiff company, as insurers, duly paid to Burns Philp.

On the 28th October, 1955, by a deed of assignment between Messrs. Burns Philp of the one part and the plaintiff company of the other part, Burns Philp assigned, transferred and set over to the plaintiff all rights, causes of action, claims and demands arising out of and in respect of the fire and or the loss or damage thereby occasioned.

A notice of such assignment was, it was claimed, given on behalf of the plaintiff company on or about the 16th day of January, 1956.

Except that the fire is admitted and that the amount claimed has not been paid, the defence is a denial of the whole statement of claim. At the same time the deed of assignment elated 28th October, 1955, and the notice of assignment dated 16th January, 1956, were put in as exhibits by consent and the defendant is therefore not disputing that there was such an assignment and that he had due notice thereof.

Counsel for the plaintiff, in his opening address, said he relied on the doctrine of res ipsa loquitur and he cited Salmond on Torts 10th edition, page 443:

"The rule that it is for the plaintiff to prove negligence and not for the defendant to disprove it, is in some cases, one of considerable hardship to the plaintiff because it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident but he cannot prove how it happened so as to show its origin was the negligence of the defendant. This hardship is avoided to a considerable extent by the rule of res ipsa loquitur. There are many cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then entitled to have the case submitted to the Jury and it is for the defendant, if he can, to persuade the Jury that the accident arose through no negligence of his."

The facts in this case are that the defendant company were employed by Messrs. Burns Philp and Co. to erect refrigerator chambers at Burns Philp's premises at Lautoka. Two chambers were to be erected, one beside the other near the bulk store. The chambers were of concrete and the method adopted for lining the chambers was to use some cork material dipped in liquid bitumen. The bitumen was boiled outside in a large container, taken by some receptacle out of the boiler, placed in a smaller container and carried into the chamber where it was poured into certain dishes or trays. The cork was then dipped in the bitumen, impaled on a forklike instrument, and placed on the wall. According to the manager of the defendant company, there were six men employed but the employees themselves say that five men were employed, one boiling the bitumen, another carrying bitumen into the chamber and three persons working in the chamber.

On the 12th November, 1954, a fire occurred in the second chamber and two of the employees were injured and taken to hospital. It is alleged by the plaintiff company that the fire occurred through the negligence of the defendants or their servants. If the res ipsa loquitur rule applies, then it is the duty of the defendants to prove there was no negligence. All that the plaintiff company has to establish is the fact that the fire, i.e. the accident, took place. That a fire did take place has been clearly established.

For the plaintiff company evidence was given by Mr. Lawler who gave particulars of the policy under which the property was insured. It was a comprehensive policy issued by the Queensland Insurance Co. of Suva, covering a large number of the plaintiff's buildings in the Lautoka area.

Mr. Lawler said that a claim was received from Messrs. Burns Philp & Co., Lautoka, for £471 13s. 4d. and that the amount was paid on 21st March, 1955.

In cross-examination Mr. Lawler said that it was not, as far as he knew, a good-will payment.

Mr. Smith, a clerk in Burns Philp (South Sea) Co. Ltd., at Lautoka, said his firm carried out the usual formalities in respect of the insurance claim, and that the insurance company gave approval for the carrying out of certain repairs rendered necessary by the fire.

The cost of materials used in repairing amounted to £329 16s. 4d. Labour amounted to £141 17s. 0d. including £12 0s. 0d. for taking out the damaged cork. A sum of £23 2s. 0d. was paid to Burns Philp for two drums of bitumen. This is included in the item £329 16s. 4d. of which £306 14s. 4d. represented the cost of cork.

Mr. Johnson, principal witness for the plaintiff company, gave evidence concerning the method of working. To this, reference has already been made. The heating was done, he says, in a 100 gallon oblong mild steel container. The fire was in a grate under the container. Five or six men were working on the job. One was stoking, one was pouring bitumen into another container, one was carrying it inside and two were putting it on. In the chamber the bitumen was poured into trays 2 feet 6 inches long by 18 inches wide by 2 feet to 3 feet deep. The heat in the chambers was very great and the workmen employed inside had to come out at regular intervals because the fumes from the bitumen made it difficult to breathe.

Mr. Johnson saw bitumen being poured at various times and on at least three or four occasions he saw the bitumen break into flame when poured from a height. To extinguish the flame a dirty piece of bag was slung over the top. The flame, when it did occur, always occurred in the pouring process.

On 12th November Mr. Johnson saw smoke coming from one of the chambers and a man rushing towards him. He thereupon got a foam fire extinguisher which was near his desk and proceeded to the chamber where by this time the flame was several feet wide. He also sent for the fire brigade. He put the flame out in a few minutes. The floor was a mess of soaking cork. The injured workmen were sent to hospital. In cross-examination he said the container in which the bitumen was heated was 25 to 30 feet from the building.

For the defendants, evidence was given by Mr. Keith Alfred Marlow. Mr. Marlow has had previous experience in the building of refrigerator chambers. He said that the method of work at the chambers which he was erecting at Burns Philip & Company's Store at Lautoka was exactly the same as that adopted on previous occasions. It was originally intended that instead of bitumen, some substance called "emastic" was to be used. By agreement, however, the bitumen was substituted for emastic. The bitumen, he said, had to be heated up to 350 degrees F. before being used. He did not, however, know the danger point and he-did not agree with Mr. Johnson that flame would result if the material were poured from a height of 15 inches.

Mr. Marlow was in sole charge of the work and admitted it was done entirely under his supervision and quite independently of, and without instructions from, Burns Philp. He claimed that he took all reasonable precautions in the carrying out of the work and that he did not regard the operation as unduly dangerous or hazardous.

At the same time that he was responsible for the work at Burns Philp's store at Lautoka, he had six other jobs at Ba and Tavua which also required his personal supervision. He said, however, that he inspected the Burns Philp job at least once a day, sometimes 3 or 4 times a day (when the work was at the dangerous stage). He told his men how to manage the work and told them to be well covered and to be very careful in carrying hot materials generally. There was no question of mixing bitumen. He does not agree with Mr. Johnson that the boiler was 25 to 30 feet from the building but says it was about 40 feet from the building.

In cross-examination he admitted that if reasonable precautions had been taken there should not have been a fire. In re-examination, however, he said he could not say what reasonable precautions might have been taken to prevent the fire. He also admitted that there was no thermometer or gauge of any kind on the boiler. The only way in which they could tell that the bitumen was ready to use was when it began to bubble and the only way in which the workmen could ascertain the temperature was by looking at it. He has no facts as to the cause of the fire. He made inquiries but these revealed nothing concrete.

He said Latchi Prasad (or Lakshmi Prasad) was a skilled workman and that Salik Ram was also a skilled workman. Latchi Prasad had had previous experience in the building of a refrigerator chamber.

The next witness, Mr. A. H. Marlow, Managing Director of Fiji Builders, said that there are no specialised workers in so far as refrigerator chambers are concerned as there are not enough chambers built for anyone to specialise. He said, however, that the men employed were reasonable for the job.

The bitumen used was what is known as residual bitumen obtained from the distillation of petroleum products. It can ignite below 350 degrees F. if it contains much oil. He admitted that the use of molten bitumen is a hazardous process and that there is an inherent danger connected with it, in that it is not known how volatile it is. Having left the boiler, it could be ignited by rapid movement through the air by carrying or pouring. Any fires caused however, could easily be put out by sacking or by foam extinguisher. In cross-examination he agreed that there were no fire extinguishers in the chambers as far as he knew. He did not agree with Mr. K. A. Marlow that the fire could have been avoided if reasonable precautions had been taken.

Lakshmi Prasad who was the principal workman, explained the method of work. His duty was to immerse the cork in the bitumen and place it on the wall. Two men, Salik Ram and Ram Kripal were also working in the chamber.

On the 12th November, 1954, these three were in the chamber when the bitumen was brought in by Satraj. Prasad said it was pitch black inside and there was no light except through a small door. There was enough light until the bitumen was dropped when the fumes darkened the room.

In cross-examination he said he did not mean the only light was that coming through the door. There was electric light also, but when this was switched off, then the only light was that which came through the door.

The fire occurred about mid-day. Satraj brought bitumen and tried to pour it into the dish provided, which stood one foot from the door. As he poured, the bitumen suddenly ignited. Satraj left the dish with bitumen in it and ran outside. Prasad said that Satraj's method of pouring was exactly the same as the method adopted on other occasions, except that on this occasion he was pouring from a stooping position.

The witness had had no previous experience of bitumen catching fire and did not know that it could catch fire. No one told him that there was any danger. He said, that there was nothing in the chamber with which to extinguish a fire. He had never experienced fires before although he had been employed in the construction of a refrigerator chamber for one Eddy Hin.

There was no meter or gauge to indicate the temperature of the bitumen. Prasad was subordinate in his work to Mr. Marlow. Mr. Marlow had warned them of the danger of smoking or lighting matches but they were never told of any other danger.

The next witness was Salik Ram who was assistant to Lakshmi Prasad. He confirmed that Satraj brought the bitumen to the chamber and that as he poured it into the dish, the bitumen blazed up. His pouring was just as usual. When the fire occurred he placed a piece of cork on the floor to enable him to get out. As he tried to do this, he tipped the canister left by Satraj near the door, and fell.

Cross-examined, he said there was an electric light bulb in the chamber, but a very poor one, as it was often shorting.

No instruction was given to them as to how bitumen should be poured, either by Mr. Marlow or by their foreman, nor did this witness know there was any danger in over-heating bitumen.

Ram Kripal, the third person working in the chamber, also said that bitumen caught alight when Satraj poured it into the dish. In cross-examination he said this was the first time that he had worked with bitumen, that he had no knowledge of its properties and was not told of the danger in pouring.

The last witness, Satraj, was the man who carried the bitumen and poured it into the canister. He brought it from the boiler outside. When he collected it on this last occasion, he said that it appeared to be slightly thinner than on previous occasions. He poured it in the usual manner but a fire broke out after half the quantity had been poured out. Someone suggested that they should get a wet bag to put the fire out. There was, however, no wet bag in the chamber. There was nothing in the chamber for putting out the fire.

The defence is that there was no negligence and that the fire was the result of pure accident.

Learned counsel for defendants submitted the the question for the court's decision is-could resulting damage have been avoided by reasonable pre-cautions thereafter taken on the part of the defendant? He submitted that matters happened so quickly after the accident, that there was no opportunity to exercise any other precautions than those taken by Mr. Johnson. He submitted further that the company cannot rely on paragraphs A and B of the particulars filed because there was no mixing of bitumen and that therefore the plaintiffs must rely on paragraph C of the particulars. This reads as follows:-

"No proper precautions were taken by the defendant company to prevent ignition of the bitumen and no proper precautions were taken by the defendant company to see that the work upon which they were engaged did not damage the plaintiff company."

I agree there was no mixing of bitumen. The real issue however is whether there was negligence on the part of defendants' servants. The non-mixing of bitumen does not negative negligence.

Learned counsel for the plaintiffs relies on the res ipsa loquitur rule. I think this is a case where the rule should apply. The plaintiff has established that there was an accident, namely the fire, but he is not in a position to prove how it happened. The burden of proving that there was no negligence, therefore, rests on the defendants.

Counsel for defendant in the course of argument quoted extensively from Halsbury, Volume 23, where it deals with the general principles of liability for negligence.

He submitted that Messrs. Burns Philp & Co., must have known there was an element of danger in the work and he emphasized that they supplied materials including the bitumen. That is to say, there was contributory negligence on the part of the company. He also submitted that Burns Philp and Co., consented to the use of dangerous materials. This, he argued was a good defence. He quoted as authority, Halsbury 2nd edition, Volume 23, page 715, paragraph 1006:

"Where the plaintiff relies on the breach of some duty to take care, other than the direct breach of a statutory duty owed by the defendant to him, it is a good defence that the plaintiff consented to that breach of duty, or, knowing of it, voluntarily incurred the whole risk entailed in it."

Neither contributory negligence nor volenti non fit injuria was pleaded in the defence, which was a simple denial of negligence, and Counsel cannot, at this stage therefore raise these as part of his defence.

Counsel also submitted that Burns Philp must have appreciated the danger as they insured against it. The Company did not, however, specifically insure against this danger-learned counsel admitted this. The two chambers were covered by the company's comprehensive policy which covered all its buildings at Lautoka.

Learned counsel also referred to paragraph 829 and note "U" on pages 577 and 578 respectively of the 23rd volume of the 2nd edition of Halsbury. The paragraph in question reads as follows:-

"The practice of a profession, art or calling which, from its nature, demands some special skill, ability and experience, carries with it a representation that the person practising or exercising it, possesses, to a reasonable extent, the amount of skill, ability and experience which it demands. Such a person is liable for injury caused to another to whom he owes a duty to take care, if he fails to possess that amount of skill and experience which is usual in his profession or calling."

The note to which he referred is as follows:-

"It has been said that, where no extraordinary degree of skill is contracted for, the fact that five out of ten skilled and experienced members of a particular profession would have done the same act or have come to the same conclusion as that complained of as negligent on the part of the defendant, entitles the latter to a verdict."

It is contended by counsel that no special skill or care was required, nor were such requirements imposed on the defendant company. He contended that the work was done in the normal manner and that the defendant company cannot be held responsible. He contended that they did what was usually done in similar work, with the standard of care "founded on a consideration of the care which would be observed by a prudent and reasonable man".

It is further submitted that defendants had been engaged in similar work earlier, and that one chamber had been completed, without any mishap. This does not necessarily negative negligence, and conclusively establish, as the defence contends, that what happened was the result of simple, unavoidable accident or that the act complained of could reasonably have happened without negligence on defendant's part.

Counsel cited cases numbered 90, 91 and 97 in Replacement Volume No. 36 of the English and Empire Digest.

I think it only necessary to refer to the second and third cases.

In Rothschild v. Royal Mail Steam Packet Co. [1851] 18 LTROS 334, it was said:

"Where negligence is sought to be imported into such a case it is allowable to defendants to show that they and other carriers have been accustomed to deal with such goods in the same manner and without loss for a great number of years."

In the present case the defendants had only twice before this erected refrigerator chambers. The only other such chamber in respect of which evidence was given was that of Eddie Hin's. In that case, however, the walls were dealt with before the roof was on the chamber.

I do not think therefore Rothschild and Royal Mail Steam Packet Co. helps the defendant to any extent.

In Blenkiron v. Great Central Gas Consumers [1860] 2 Foster and Finlason, page 437, it was said:

"It is not enough that they do what is usual, if the course ordinarily pursued is imprudent and careless; .... on the other hand, in considering what is reasonable, it is important to consider what is usually done by persons acting in a similar business."

We have, however, no evidence of what other persons did, except in the case of Eddie Hin, where the same was not done exactly as in the present case.

Finally, learned counsel for defendants cited the case of Hornal v. Neuberger Products Ltd. [1956] 3 All ER, p. 970, which deals with the standard of proof, and the balance of probabilities.

In the headnote to this case it was said "The standard of proof applicable was the civil standard of a balance of probability, which, however, was not an absolute standard, since within it, the degree of probability required to establish proof might vary according to the gravity of the allegation to be proved".

As I understand counsel this is the standard to be applied to the question of accident in this action, the contention being that on a balance of probabilities the fire on 12th November, 1954, was the result of accident, and not the result of negligence on the part of the defendants.

For reasons hereinafter appearing, I am unable to accept the contention that what happened was the result of simple, unavoidable accident.

Counsel for the plaintiff has submitted that the operation in connection with the refrigerator chambers was wholly under the management and control of the defendant company and the presumption of negligence was raised against them on the proof of fire occurring.

He referred to the case of Moore v. R. Fox & Sons [1956] 1 All England Reports, page 182. In that case a workman employed by the defendant was fatally injured by the explosion of gas apparatus on defendant's premises.

It was held that:-

"(i) the maxim of res ipsa loquitur applied as the plant was under the management of the defendants or their servants and the accident was such as in the ordinary course of things would not have happened if proper care had been taken and

(ii) the defendants had failed so to explain the accident as to discharge the onus which was on them to show either that the explosion was due to a specific cause not connoting their negligence or that they used all reasonable care in and about the management of the plant, it being insufficient for the defendants merely to show that the accident could have happened without negligence on their part."

In the course of his judgment in this case the learned Master of the Rolls said as follows:

"The foundation of all subsequent authority is found in Scott v. London Dock Co. (5) [1865] (3 Hurlstone and Coltman 596). The language of Erle, C.J., which is the basis of all that has since followed, was-

'but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' "

The learned Master of the Rolls then goes on to say-

"In my judgment this passage is directly applicable to the facts of the present case; for the thing, that is the machine, was 'under the management of the defendant or his servants, and the accident was such as in the ordinary course of things does not happen if those who have the management use proper care' ... Furthermore, the sum of the defendants' evidence was not to explain the accident but to show that it was inexplicable."

In the present action, it has, I think, been abundantly established that the work was "under the management of the defendant and his servants" and I think the evidence also clearly shows that" the accident was such as in the ordinary course of things does not happen if those who have the management use proper care".

This is the foundation of the rule of res ipsa loquitur and this being so, I think the rule can properly be applied to this present case.

The onus was therefore on the defendant to negative negligence on their part.

Such negligence was not proved by the plaintiffs. They were under no duty so to do, but it was elicited by them in cross-examination.

In the first place it was admitted by one of the defendants' principal witnesses-all their witnesses, it is only fair to say, gave their evidence in a scrupulously straight-forward and honest manner-that if reasonable precautions had been taken there would have been no fire.

It is clear that no adequate instructions were given to the workmen even though it was acknowledged by the defendants that this was a hazardous operation It was further established that no thermometer or gauge was used on the boiler in which the bitumen was boiled, that there was no adequate light inside the rooms in which the workmen were employed and that there was no fire fighting equipment, neither extinguishers nor sacking, in the refrigerator chamber. Furthermore, it was admitted by Satraj in his evidence, that on the last occasion when he poured bitumen before the fire occurred, the bitumen was thinner, thereby indicating it was hotter than on previous occasions. It was admitted too by one of the witnesses for the defendants that if hot bitumen were carried through the air hurriedly, it might ignite.

Lastly, there is the evidence of plaintiffs' witness, Mr. Johnson, whom I also believe, who testified that on four occasions at least he had seen the bitumen burst into flame when poured from a height of 15 inches. This certainly must have been known to the persons who boiled the bitumen and who poured the bitumen into the container which was taken into the room. There is no evidence that as a result of this any special precautions were taken.

I find as a fact, therefore, that defendants were negligent in their handling of a dangerous and hazardous substance and that this was the cause of the fire.

It has been argued by learned counsel for the defence that the defendants did on this occasion, what was always done before. It is submitted by plaintiffs' counsel that what the defendant company had done before is no answer, because the negligence existed earlier as it existed at the time of the accident. With this I am bound to agree.

I am satisfied, that the defendants have not discharged the onus which was thrown upon them of disproving negligence on their part. All they say is that the fire occurred as the result of an accident and that there is no explanation forthcoming. In other words, the most they did, using the language of Moore v. Fox & Sons, at page 188, was "not to explain the accident but to show that it was inexplicable".

Having carefully considered the evidence and the submissions and argument of counsel, I am impelled to the conclusion that the defendants failed to observe the standard of duty, departure from which amounts to negligence, that is, the standard of a reasonable, prudent employer.

There will, therefore, be judgment for the plaintiffs for the amount claimed.