Wong v Lam [1980] PGNC 16; N268 (2 July 1980)

Unreported National Court Decisions

N268

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
BETWEEN
MICHAEL WONG, JEANETTE WONG, PHILLIP DREW AND ELIZABETH BEALE
PLAINTIFFS
AND: REX AND LORRAINE LAM
DEFENDANTS

Waigani

Narokobi AJ
1-2 July 1980

NAROKOBI AJ:

PRIMARY FACTS

On the 6th of March, 1978, a fire occurred at Boroko and destroyed a set of flats in what is commonly known as The Rex building belonging to the defendants. The fire also caused damage to the property of the plaintiffs who were then the tenants or lawful occupiers of the flats. The total value of property damaged or destroyed, the subject of this case is K14,979.31. The fire started in flat 4 and spread to other flats. Flat 4 was occupied by the defendants.

EVIDENCE NOT IN DISPUTE

The primary facts are not in dispute. In addition, the following facts are not disputed:

Michael Wong was the tenant of flat 3 and Elizabeth Beale and Phillip Drew were the tenants and occupiers of flat No. 2. There existed a relationship of landlord in the defendants and tenants in the plaintiffs. Jeanette Wong was Michael Wong’s fiancee and at the time she too was an occupant of flat No. 2 with Michael Wong. The ground floor consisted of a restaurant and a clothing store while the four flats were on the first floor. The ground floor was of brick construction while the first floor was made of fibro and the roof was of tin or corrugated iron.

The flats were set one behind the other. The length of each flat was the length of the building itself. Okari Street runs between the building and the Police Station. Flat No. 1 fronted Okari Street. Next to it was flat No. 2 and the flat at the rear was flat No. 4.

Flat No. 1 was occupied by Peter Lee, not a party in this case. Peter Lee did not lose a great deal, following the fire. He spoke to Rex Lam on the road and asked him what happened, when the fire was about three-quarters through the building. He also spoke to Elizabeth Beale about the fire later. He heard Rex say “I don’t know, probably the children playing with matches”.

Flat No. 2 was occupied by Phillip Drew and Elizabeth Beale. Both of them lost a total of K6,811.74 worth of property, collectively. Phillip Drew went to the scene of the fire and went in to rescue a few pieces of their property. He did not have any conversation with Rex Lam at the time.

Elizabeth Beale also went to the scene of the fire. She stood the whole duration of the fire and saw the fire progressively move until it destroyed the whole building. She did not ask Rex Lam about how the fire had started at the time. Elizabeth Beale asked Michael Wong how the fire started and she was told that Rex had told him (Michael Wong) that “kids were playing with matches and that was how the fire started”. The words in quote are in dispute.

Ms. Beale had a conversation with Mrs. Lam on the day of the fire, about the losses. She was told the flats were insured and if she produced a list of damaged property, she and the others would recover the losses. She made up a list of damaged property, including the property of Mr. Drew. This list was forwarded to the Lams in a letter dated 31st March, 1978. The letter included a list of goods lost by Drew and Beale during the fire. The letter stated in conclusion “We trust we may be able to recoupe some of our losses through your public liabilities policy”. Copies of this letter were sent to United Insurance and Amatil.

Michael Wong and Jeanette Wong were the occupants and Michael Wong a tenant of Flat No. 3 at the time. As a result of this fire they lost property worth K8,167.57 collectively. Mr. Wong went to the scene and saw black and white smoke in flat 4. It was completely dark but one could see through the smoke in flat 3.

Michael Wong could not get into his flat so he went down the road and saw Rex Lam standing by, watching the fire, and spoke to him. Rex Lam said he was glad the kids got away unhurt.

They spoke in Cantonese. Rex Lam told him words to the effect that “Kids is playing with matches”. This evidence is disputed by defence to the extent that they disclosed no negligence and also that more was said, namely “it could have been electricity fault, I don’t know”.

Michael Wong asked Rex Lam if he was insured and was told to write a list and give it to him (Lam). A list of losses was prepared and given to Mr. Lam who accepted it. In April, 1978, Michael Wong rang Mr. Lam and asked how the claim was going and was told he had to go and see the United Insurance Company.

Later Michael Wong went with Mr. and Mrs. Lam to the United Insurance to get a copy of the policy. He was given a blank copy as the actual policy was of no use to him.

Jeanette Wong was already engaged to Michael Wong as a finance at the time of the fire. She is therefore not a trespasser or a stranger. If she is not a tenant, she would be an invitee. In my view she was a co-tenant with Michael Wong and I so hold.

Her evidence largely corroborates the evidence of Michael Wong and others in facts not in dispute and in facts in dispute.

The defendants had young children who were under their care and control and supervision, generally speaking.

Peter Lee, another tenant and witness gave evidence. He testified to having a conversation with Rex Lam during the fire in which Rex Lam was believed to have said “I don’t know, probably the children playing with matches”. The conversation took place in Cantonese. That was the evidence given in chief.

On cross-examination, he was asked by defendant’s counsel:

“Is it possible what Mr. Lam said to you was - “I don’t know, it could have been electrical, it could have been the children. The children were blaming each other. I don’t remember too well. It’s too late to remember. I don’t remember the exact words. I don’t think I heard him say these things”.

Later on, in re-examination, Mr. Lee said “I don’t know it may have been electrical, it may have been the children, they are blaming each other”.

The defendants dispute allegations that the children were not supervised or controlled. They dispute the allegations that their children played with matches and caused the fire. They finally dispute the allegation that by their conduct in the words Mr. Lam spoke, in accepting the list of damages to property, in Mr. & Mrs. Lam going with Mr. Wong to the insurance company, that they thereby admitted liability.

HEADS OF LIABILITY

The plaintiffs, having suffered losses to their personal property, seek redress before this Court. They rely on several heads of liability. I now set them out.

(i) &##160; T60; That the fire dhatroystroyed the property of the plaintiffs escaped from the premises of the defendand because fire is a dangerous thing, the defendants are liable.

(ii) &< Th0; That the firestas ed rted by the defendant’s children, Fiona and Tania Lam. The children were under the care and control of the defendants and the defendants lackn thentrol and care of their children. They were were neglinegligent gent in permitting or allowing the children to start the fire by permitting them to play with matches. They also failed to supervise them.

(iii) & Thatot knepingeping matchmatches, a dangerous object out of the reach of the children, or by not denying the children access to matches, the defendants maintai privuisanhe maintenance of that nuisance caused used damagdamage to e to the plaintiffs.

(iv) ټ That the loss loss and damage was caused by the negligence of the defendants in that they failed to extinguish or contain the fire so as to stop it spng.(v) That tha damagdamr l os frss from the fire speaks for itor itself and the defendants ought to be liable.

RES IPSA LOQUITUR

This is a maxim of how evidence speaks. This was the view of the House of Lords in Barkway v. South Wales Transport Co., Ltd.N268.html#_edn388" title="">[ccclxxxviii]¹ It is rule of law or a heaa head of liability. In brief it is a statement which says that the evidence is such that it tells of negli, against the defendant.

I take this principle to suggest that once the plaintiff reff relies on this principle, his evidence must be such as to suggest negligence unless the defendant can fight it off with stronger evidence. I know that the Australian High Court was divided on this issue in Fitzpatrick’s CaseN268.html#_edn389" title="">[ccclxxxix]².

This head, as explained by Evatt J. in Davis v. BunnN268.html#_edn390" title="">[cccxc]³ inay shifts the burden of p of proving negligence on the part of the plaintiff to the defendant. Thus, if the plaintiff brings enough evidence to say the thing speaks for itself, and the defendacides to stand silent, I am I am well entitled to draw certain inferences of negligence, against the defendant.

I am entitled to draw this inference first on the basis that he is in a unique if not an exclusive position to explain the cause of the fire. Second, if he in cross-examination, advances a theory about the possible cause of the fire, and he is in a position to substantiate it, but decides not to do so, he in effect seeks to take his chances by remaining silent. I may draw inferences from plaintiff’s evidence and decide against the defendants.

Equally, of course, if the plaintiff pleads res ips loquitur and has no scintila of evidence to substantiate it, or if the evidence is so contradictory as to be incredible, and the defendant chooses to be silent, I may equally hold in the defendant’s favour.

I think, again, the High Court of Australia was right in Mummery v. Irving Pty. Ltd.N268.html#_edn391" title="">[cccxci]⁴ when it acknowledged that the overall effect of res, is that the defendant is subjected to an onus of proof.

What this means is that the plaintiffs have to argue specific acts or omissions of negligence. And once they begin to do this, as they now do, it is a matter of proof of facts and inferences, if any to be drawn from established facts and facts in issue. The thing that once spoke for itself ceases to speak.

NEGLIGENCE

Two key issues in this head are not doubted. First that the fire started in the defendant’s premises and spread to the plaintiffs’. Secondly, the defendants had young children who were directly under their care and control. What is in issue is whether the children started the fire and whether the parents were negligent in any detail in their supervision, care and control of the children in respect of the use of matches.

The particulars of negligence are contained in paragraph 6 of the pleadings. These are (a) permitting children to play with matches; (b) failing to supervise the children adequately or at all when it was possible for the children to start a fire (c) failing to supervise the children adequately or at all in their activities when they knew or ought to have known that the children may play with matches; (d) placing matches in a position where they knew or ought to have known that the children may have access to matches.

The plaintiffs were unable to produce any evidence on any one of these particulars. Their allegations however stand. The defendants were the only ones who could refute these allegations. They chose to stand silent. I am entitled to draw inferences which I shall come to later on.

PRIVATE NUISANCE

This is the head of liability known in the common law world by the name of the case from which it was first articulated in John Rylands and Jehu Horrocks and Thomas FletcherN268.html#_edn392" title="">[cccxcii]⁵.

Under this head, the defendant will be liable if for his own purposes he brings on his land and collects and keeps there anything likely to do mischief if it escapes. The basis of liability is the artificial collection of things not in or on the land by the ordinary course of nature. The two conditions for this doctrine to operate are:

(a) &#160ape crom the land of s of something likely to do mischief, if it escapes; and

(b) &#16e non natural use of thof the land.

Ast thre thtrictthe House of Lords placed on d on this this doctrdoctrine iine in Read v. J. Lyons and Company Limited[ccc>[cccxciiixciii]⁶, according to this case has to be from the place under the defendant’s control to a place not under his control. At least that is what the House of Lords has said. Although as the land lords the defendants have the general control of the entire premises in reality, they do not have the day to day management of the plaintiff’s premises.

For me to apply this rule, I would have to find positively or infer from evidence that the defendants did collect and keep matches and matches were not for ordinary use, and further that they are likely to do mischief if they escape and that the escape did occur and do mischief.

Blackburn J. decided the leading case in 1868. In principle, I don’t see why this rule should not be extended in appropriate cases. It has been extended both in England and in Australia to allow plaintiffs to succeed, even though they had no interest in land.

If someone brings fire into his flat and that fire escapes and causes damage in the adjoining flat, in principle, I cannot see any objection to treating that as an escape. It is not necessary for me to make these findings as I consider it unnecessary to decide this case on the basis of John Rylands and Jehu Horrocks and Thomas Fletcher (supra)N268.html#_edn394" title="">[cccxciv]⁷.

NEGLIGENCE IN FAILURE TO EXTINGUISH THE FIRE

This is another aspect of the same head of liability, under negligence. But it alleges a very specific omission which is said to constitute negligence - namely that once the fire started, the defendants did nothing to contain it. In this, they are said to be negligent.

As far as negligence goes, the law is that the issue can be resolved only by reference to the question of the duty of care the defendants can be said to owe to the plaintiffs and if that duty was breached, resulting in the damages or loss sustained by the plaintiffs.

I do not intend to proceed under this aspect of negligence.

THE QUESTION TO BE SETTLED

However the heads of liability are expressed, the question to be settled is quite simple. The plaintiffs have suffered substantial damages. The damages were caused by a fire which started in the defendants’ flat and spread to the other flats. The plaintiffs and the defendants were at the time, in a landlord and tenant relationship. Should the defendants pay for the loss?

At the outset, I should like to state that in my view, the heads of liability can never be closed. Strictly speaking, the relationship between the landlords and the tenants is a contractual one. No arguments on the contractual relationship were offered by counsel. They did not even produce a lease agreement.

However, Mr. Molloy did refer me to Courts and Laws Adopting (Papua) Act 1975 which was replaced by the Imperial Laws Replacement Act 1975. Section 7 of that Act says:

“(i) &#16bjectuto stisection (iin (ii), an action for damage caused by fire shall not lie against a person in whose building or upon whose land the fire accidentaegins

(160; Subsectioncti)n (i) (illshallshall not operate to defeat or make void a contract or agreement made between a landlord and his tenant”.

It is not correct to suggest that this Act creates a new basis or a new head of liability.

In my view this Act is relevant, not as a separate head of liability, but as a statutory concern and control over liability which over the years had become strict, because of damage caused by fire.

The stringent liability of occupiers resulting from fire is hardly surprising. Fire is one of the earliest tools of mankind. It is also the earliest weapon of mankind.

I have not found a case decided on this Act in P.N.G. which might assist me in deciding this case. Fleming: Law of Torts (5th edition at p. 336) expresses the view that the dispute over the different interpretations of the statute is of little significance now because later developments by the courts had remodelled the law. “The statute is no longer controlling”.

In the early days, escape of fire was a distinct head of liability or tort, which tended to be strict. Nowadays, in Australia (Hazelwood v. WebberN268.html#_edn395" title="">[cccxcv]⁸, it is either an aspect of John Rylands and Jehu Horrocks and Thomas Fletcher (supra)N268.html#_edn396" title="">[cccxcvi]⁹ or the general law of negligence. I should add that the Act depends on two factors, social change that takes place and the facts of each case. Movement in tort liability is something that has been well stated in Lister vford Ice and Cold Storage Cage Co. Ltd.N268.html#_edn397" title="">[cccxcvii]¹⁰.

The landlords themselves have an insurance policy but it, apparently, does not extend to the personal property of the tenants. It seems from the evidence that the landlords had assumed all along that their insurance policy would have covered this type of damage by fire - however it occurred. The tenant plaintiffs were also under this impression. The request by Mrs. Lam for a list of damaged property, the presentation of those lists, the subsequent visit to the insurance company by both parties in my view confirms that expectation.

I ask myself this question. Supposing before tenants signed the tenancy agreement and moved in to occupy the flats, they knew that if a fire occurred, and destroyed their property, they would be left without remedy, would they have become tenants? In the light of general shortage of accommodation in Port Moresby, the tenants may well have accepted that risk. That would go towards the issue of voluntary assumption of risk which is not an issue in this case. On the other hand, they may well have taken out their own policies against fire risks.

The question really turns on whether any of the heads of liability can afford a remedy to the plaintiffs. The defendants argue that there is no tort or a head of liability which can afford the plaintiffs the relief they seek.

I disagree. The plaintiffs should succeed on the basis of negligence.

NEGLIGENCE

There are two aspects of negligence. One aspect relates to the supervision of children and the other relates to the inactions of the defendants in putting out the fire, once it started. I proceed under the first aspect of negligence, the particulars of which are elaborated in paragraph 6 of the pleadings.

The problem here is that certain allegations of negligence have been made by the plaintiffs. These allegations are supported in some degree by the evidence of the plaintiffs and to some extent by Mr. Lee and the actions of the defendants themselves.

The standard of proof of negligence here is a standard on a balance of probabilities. The defendants have not broken the evidence of the plaintiffs. They have chosen to remain silent. I am entitled to draw inference from their silence, based on proven facts.

Impossible burdens are placed on the plaintiffs to prove negligence when the defendants choose not to give credence to their own theories of how the fire might have occurred. It would appear from cross examination by the counsel for the defendants that they say the fire could have started through an electrical fault. No credence has been given to this theory by the defendants, thus, in my view, that theory is as open as the plaintiff’s theory.

The plaintiffs say the defendants have young children. Mr. Lam says probably the children played with matches and the fire started. He also said it may have been electrical. Mr. Lee’s evidence is neither all favourable to the plaintiffs nor to the defendants. He was prepared to say “I don’t know” - no doubt to be fair to both parties. However, his evidence does verify the evidence of Mr. Wong in relation to the conversation and the reference to children using matches by Mr. Lam.

In my view Jones v. Dunkel and AnotherN268.html#_edn398" title="">[cccxcviii]¹¹ and Waddell v. WareN268.html#_edn399" title="">[cccxcix]¹² express tew I would adopt mopt myself.

The cause of the fire known. I think it is a fair principle that where facts are are peculiarly within the defendants’ knowledge or can be reasonablsumed to be within the defe defendants’ peculiar knowledge and he chooses not to assist the court, I may decide in favour of the plaintiffs on slight negligence or on inferences to be drawn on circumstances, including the defendants’ own silence.

This is not, in my view, a case of the court guessing the facts to perfect the plaintiffs’ case, so to speak. The views I express are based on reasoned conclusions or inferences from primary facts and circumstances in facts after the events.

The plaintiffs rely on the High Court decision of Jones v. Dunkel and Another (supra)N268.html#_edn400" title="">[cd]¹³. In that decision the majority of the High Court was of the view that the defendant’s non-appearance suggests that had he gone in the box, his evidence would not assist him, by throwing doubt on the correctness of an inference which was open on the plaintiff’s evidence (Per Kito J. at p. 308).

In that case, the Chief Justice, Dixon C.J. was among the two judges who dissented. The Chief Justice referred to various High Court decisions and reached the conclusion on the facts and circumstances of that case that no inference of negligence could be drawn from the defendant’s failure to call evidence.

His Honour affirmed at p. 305 the principle, however that: “All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendants’ negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree by likelihood”.

This passage, His Honour went on to state, does not authorize the Court to choose between guesses where the possibilities are not unlimited, on the ground that one guess seems more likely than another or others. “The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal may reasonably be satisfied”. (At p. 305).

What then are these facts? First there are the primary facts I have already set out. The fire started in the defendants’ flat and spread to the plaintiffs’ flats. Secondly, the defendants have young children who were in their care and control. Thirdly, the defendant, Mr. Lam, did, at the earliest opportunity, when asked, advanced the thesis that the fire was probably caused by children playing with matches.

Fourthly, and not insignificantly, the request for a list of losses and the act of going with the defendant Michael Wong to the public insurance company suggests negligence.

Peter Lee’s evidence on examination in chief shows that Mr. Lam did say “I don’t know, probably the children playing with matches”. This was said when the fire was three-quarters of the way through the building.

In cross-examination Mr. Avery asked him, if those were the exact words, Mr. Lam used. His immediate response was that Mr. Lam spoke in Cantonese. Later he said the words were “More or less similar”. He was asked - “Is it possible Mr. Lam might have said to you - “I don’t know, it could have been electrical, it could have been the children. The children were blaming each other”. Mr. Lee’s answer to that question was:

“I don’t remember too well. It’s too late to remember. I don’t remember the exact words. I don’t think I heard him say those things”. This answer was repeated later on. In re-examination he repeated this stand, but repeated also what Mr. Lam was believed to have said “probably the children did set fire”.

It is true one cannot expect parents to be everywhere. Parents should not be faulted for every act of the children, see Smith v. Leurs & OthersN268.html#_edn401" title="">[cdi]¹⁴. But it must not be forgotten that when people live in closeness in cities and in flats, much more is expected in the use of natural elements like fire or water.

In Smith v. Leurs (supra)N268.html#_edn402" title="">[cdii]¹⁵ the parents had warne boy. boy. Every child in the locality had a shanghai. The parents in that case warned their 13 year old son not to shoot exceptheir backyard. He shot away from their home and caused the injury.

The Court said thid there that where parental control exists, it must be exercised with due care to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others.

I do not think parents have a vicarious liability for the acts or omissions of their children. But, parents must at least exercise the control that is peculiarly within their ability as parents.

Every city dweller and in particular occupants of flats where these adjoin other premises, has high duty to exercise control on the children’s tendency to play with dangerous objects or objects that have the potential of becoming dangerous.

In Carmarthenshire County Council and LewisN268.html#_edn403" title="">[cdiii]¹⁶, judgment was entered for the plaintiff against the council which was held responsible for it’s servant’s conduct. In that case, a toddler of 4 strayed into a street. The driver of a vehicle swerved and smashed himself into death and his wife sued for damages.

In that case, Lord Tucker, spoke for the House of Lords, upholding the Court of Appeal decision. The House held that persons in charge of tiny children ... owe a duty to persons using the highway to take reasonable care to see that they do not travel unattended onto highways, as it is reasonably foreseeable that accidents involving injury to other road users may well occur.

In the present case, the defendants have young children. I am of the opinion that their parents owe a duty to the tenants. That duty is to see that such children of an age where all or any of them cannot have appreciated the danger of matches, and it being reasonable and foreseeable, that a fire involving children using matches could occur and injure others and their property. If a fire does occur, the parents are in my view liable.

In the present case, there is a prima facie case of negligence on the part of the parents. Since they have not offered a plausible explanation, the case is strong against the defendants. In Lewis’ case (supra)N268.html#_edn404" title="">[cdiv]¹⁷ the House rds actually foun found that Miss Morgan who had the charge of the toddler was in no way negligent herself.

However, the House, concluded that the appellants had failed to rebut the presumption of negligence. In the present case, I am of the view that facts proven suggest parents’ negligence. The defendants having decided to exercise their legal right to remain silent and not call any evidence, I conclude that they are negligent in not supervising their children in the use of matches.

The true principles in relation to proof of negligence have been articulated in several High Court decisions. The unanimous judgment of the High Court of Australia which included Dixon, Williams, Webb, Fullagar and Kitto JJ in Bradshaw v. McEwans Pty. Ltd.N268.html#_edn405" title="">[cdv]¹⁸ was apd by the High Court iurt in Holloway v. McFeetersN268.html#_edn406" title="">[cdvi]19.

In Holloway v. McFeeters (supra)N268.html#_edn407" title="">[cdvii]²⁰ Dixon C.J. h stated that that the true cause of the accident was unknown, continued ... “Hypotheses ... are not inferences. What is required is a basis for some positive inference involving negligence on the part of the driver as the cause of the deceased’s death. The inference may be made only as the most probable deduction which may reasonably be drawn from them. It need not be an inference as to how precisely the accident occurred, but it must be a reasonable conclusion that the accident in one way or another occurred through the lack of due care on the part of the driver and not otherwise”.

In a civil cause “you need only circumstances raising a more probable inference in favour of what is alleged ... Where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture”. Holloway v. McFeeters (supra)N268.html#_edn408" title="">[cdviii]²¹. See Lord Robson in Richard Evans & Co., Limited and AstleyN268.html#_edn409" title="">[cdix]²².

It is necessary for me to consider according to common human experience the more probable inference according to proven facts when no other evidence is available.

In HughesN268.html#_edn410" title="">[cdx]²³ case i held that the power ower to draw inferences from the failure of a defendant to give evidence is not limited to inferences in respect of a defendant’s conarising from his own failure to give evidence but extends tnds to inferences arising from a defendant’s failure to call any witnesses who might be expected to be called by him to give direct evidence on facts the other party seeks to establish by inference.

An inference of this nature was made in the case of Australian Oil Refining Pty. Ltd. v. R.W. Miller Co. Pty. Ltd.N268.html#_edn411" title="">[cdxi]²⁴. This decision was reversed by the High Court, but on another pointN268.html#_edn412" title="">[cdxii]²⁵.

CONDUCT AND STATEMENTS AFTER OR DURING THE FIRE

I am compelled to make these inferences not as a matter of mere conjecture. These inferences are based on two main factors. First, the statement of the defendant, Mr. Lam during the fire to Mr. Wong that “probably the children playing with match”. This thesis was corroborated by the evidence of Mr. Lee only he offered at the suggestion of the defence counsel, another thesis that “it could have been an electrical fault”. But he could not recall properly.

If further corroboration was needed to dispel allegation of recent invention or collusion by the plaintiffs, then Mr. Lee’s own evidence would do it. Mr. Lam chose not to explain what he might have meant.

In Lustre Hosiery Ltd. v. YorkN268.html#_edn413" title="">[cdxiii]²⁶, the High Court of Australia was of the view that “Words or conduct amounting to an admission are receivable in evidence against a party if they disclose an intention to affirm or acknowledge the existence of a fact whatever be the party’s source of information or belief. Although the meaning of his words or conduct may depend upon the state of his knowledge, once that meaning appears and an intention is disclosed to assert or acknowledge the state of facts, its admissibility in evidence as an admission is independent of the party’s actual knowledge to the true facts. When admitted in evidence, however, the probative force must be determined by reference to the circumstances in which it is made and may depend altogether upon the party’s source of knowledge”.

In Smith & Others v. JoyceN268.html#_edn414" title="">[cdxiv]²⁷, the High Court of Australia held that a statement attributable to a defendant employer, saying that his employee was “a fool to attempt sticking it without fiddling it”, (the bullock) during a conversation with the defendant, was capable of constituting an admission. This was because the meaning is clear and it did not matter about the source of this information or knowledge. In that case, the particular co-defendant denied having such a conversation. He was held responsible.

In the present case, the nature of the defence counsel’s cross-examination suggests that the conversation was not denied, nor was it denied that Mr. Lam made a reference to, “children playing with matches”. All that was suggested, by defence was that the conversation went further and alleged that “it could have been an electric fault”.

On this basis, and for other reasons already outlined, I hold that the conversation did take place, that Mr. Lam did say his children probably played with matches and caused the fire. My inference is that the children did play with matches and cause the fire.

The defendants are the only people who could have assisted me in dispelling the possible inference arising from Mr. Lam’s own statement. They chose to remain silent, but through cross-examination, added another thesis to the real and unknown cause of the fire - “probably an electric fault”.

Any offer of settlement, it has been held, is admissible as evidence that the defendants admit their liability, in McWhinnie v. Union Steamships Co. of N.Z.N268.html#_edn415" title="">[cdxv]²⁸.

What was it that the defendants did, that could be taken as admitting liability.

At the scene of the fire, Mr. Lam invited Mr. Wong to prepare for him (Mr. Lam) a list of the things he lost in the fire. Did Mr. Lam ask for the list as a matter of sympathy or charity? I think not. He was admitting to fault. Mr. Wong prepared the list and submitted it to the Lams with an accompanying letter to Mr. Lam’s insurer. Mrs. Lam also asked Jeannette to supply a list!

The letter was not lost. It was in fact received by the Lams. Again at the scene of the fire, Mrs. Lam asked Miss Beale to prepare a list of property she lost in the fire. This list was prepared not only for herself, Miss Beale but for her friend, Mr. Drew. This list was again sent to Mr. and Mrs. Lam’s insurer. These letters were admitted in evidence and marked as exhibits “D” and “E”.

The matter went further than this. Mr. and Mrs. Lam accompanied Mr. Wong to the insurance company to make claim only to be rebuked by the insurer. Mr. Lam actually asked for a copy of the insurance policy, but was told it was useless.

Joss Kinisa’s sworn evidence which was not cross-examined would exclude any suggestion that the fire might have started from the air-conditioner through an electrical fault. He said:

“Klostu long dua, wanpela air kondisina istap”, which I take to mean “Close by the door, near an air-conditioner”. He was asked specifically:

“Did smoke come out of the air-conditioner?” To which his clear answer was -

“No, the air-conditioner was on that side and smoke came out near the air-conditioner”. (Pointing at a distance).

Of course it is possible that an electrical fault could have occurred on any of the electrical wires. But as far as thesis go, the thesis that the children were playing with matches is to me more plausible with human common sense in the light of proven facts and inferences to be drawn from them. See Black v. TungN268.html#_edn416" title="">[cdxvi]²⁹, cited with approval in Waddell v. WareN268.html#_edn417" title="">[cdxvii]³⁰.

Mr. Avery referred to the High Court case of Smith v. Leurs (supra)N268.html#_edn418" title="">[cdxviii]³¹. With respect to the learned counsel, Latham C.J. at p. 259, went further than state the passage the counsel cited. His Honour said immediately after the last sentence that cited passage - “a baby two years old playing with another baby should not be allowed to have a knife or a box of matches. It may be negligent to allow a particular child to have an air gun” and cited Bebee v. SalesN268.html#_edn419" title="">[cdxix]³² in support of that statement. No doubt that was obiter. If parents allow children to have matches, that may be negligent if fire starts and destroys property aesult.

Smith v. Leurs (supra)N268.html#_edn#_edn420" title="">[cdxx]³³ is a case decided upon itsfown facts and cannot be authority, in my view, in support of the present defendants. In that case the boy was 13 years of age. He was warned. More than that he was specifically ordered not to use the shanghai by the parents. Besides shanghais were widely used by the children in the district, that time. Parents were properly exempted from liability in that case.

In Newton v. EdgerleyN268.html#_edn421" title="">[cdxxi]³⁴ Lord Parker C.J. held thendefendant father liable for the release of a shot gun by his 12 year old son on the basis that the father should either have forbidden the use of the gun at all or else have ensured by giving him very careful instructions as to the use of the weapon.

Mr. Avery sought to distinguish that case on the facts. He argues that in the present case, the plaintiff simply has no evidence to show parents’ foreknowledge that children may play with matches.

That of course is a valid distinction on facts. But, I hold on the basis of inferences already referred to that the parents by their words and subsequent conduct were negligent. I need merely to be satisfied on the preponderance of probabilities, consistent with facts proven and facts inferred.

I agree it is unreasonable to expect parents to watch the children’s every little move. But, I think it is not unreasonable to expect parents to ensure that matches or anything fraught with danger is not within the children’s reach.

The case of Ricketts v. Erith Borough CouncilN268.html#_edn422" title="">[cdxxii]³⁵ relied upon by defenunsel, sel, is of course a case based on its own facts. It was a case involving a school teacher in a large school. Of course it was impossible to expect the teacher to keep an eye on every cht every moment.

That>That was a case too in which the defendants gave evidence to show that the degree of supervision was reasonably sufficient and adequate.

I am faced with a situation where the defendants have not given evidence.

The plaintiffs have shown that their property was destroyed, by a fire that started in the defendant’s flat. It is conceded the defendants have young children.

The children were linked with the fire by their father in a statement he volunteered during the fire, at the scene of the fire, to two different people, Mr. Wong and Mr. Lee.

This connection is confirmed by subsequent events or conduct which I have described.

The only issues left were the cause of the fire and whether the parents were negligent in the supervision of their children.

I think the plaintiffs have gone as far as they could have gone in this case. It was up to the defendants to assist the court by dispelling a common sense thesis that by what Mr. Lam said and by what he and his wife did, they admitted liability through their children they had the care and control over.

NON SUIT

In Order XXXIX, Rule 35 of the Court Rules, a judgment of non suit may be entered when the plaintiff fails to establish his evidence. Non suits have been abolished in England by the Judicature Act and I suppose, by our Constitution.

In N.S.W., the procedure is preserved by P34, r. 7, only the order sought nowadays is called an order of dismissal. The time for making an order is at any time after the conclusion of the plaintiff’s case in chief and the basis is that on the evidence, a judgment or verdict could not be given in favour of the plaintiffs.

The order may only be applied for by the defendant. The plaintiff may choose to argue the question whether an order of dismissal should be made, or he may decline to do so.

If the plaintiff does decline to argue the question, or if the defendant’s application is refused, the defendant is permitted to call evidence or further evidence or to move for a verdict by direction.

If the plaintiff argues the question and the order is refused, the defendant would not be allowed to call evidence or further evidence.

Even if non suits have been abolished, I think the principles are still relevant. What it means is this. At the end of the plaintiff’s case, the defendant may move to have the matter struck out on the basis that no prima facie case has been established. This being analogous to a No Case submission in a criminal case.

If the defendant does not take this course, then in my view he concedes to there being a prima facie case against him. He may call evidence. He may not. He himself may go into evidence. He may not.

I am quite at liberty to decide on the primary facts proven and make such inferences as are necessary from facts established. And this is what I have done. I mean that when defence counsel chose not to make a no case submission and decided not to call evidence, he must have knowingly accepted fully the possible consequences. (Jones v. Dunkel and Another) (supra)N268.html#_edn423" title="">[cdxxiii]³⁶.

In the result therefore, each of the plaintiffs succeeds, and there will be judgment with costs for the three plaintiffs.

With respect to the statement of claim in the pleadings, I find as follows:

Paragraph 1. That Michael Wong and Jeanette Wong were both tenants and occupants of Flat No. 3. If Jeanette Wong was not a tenant, she was certainly not a trespasser.

Paragraphs 2 and 3. That Phillip Drew and Elizabeth Beale were the tenants of Flat No. 2 and that the defendants were owners and landlords of the plaintiff’s premises.

Paragraph 4. That the plaintiffs suffered loss and damage resulting from fire on or about 6th March, 1978.

Paragraph 5. That the fire did escape from the defendants’ premises. But it is unnecessary for me to decide on the inherent danger of escaping fire in this case.

Paragraph 6. That the fire started by the defendants’ children Fiona and Tania Lam who were in all material times in the care and control of the defendants and the defendants were by inference negligent in permitting children to play with matches and in failing to supervise the children adequately, when it was possible for children to start a fire with matches, either by not placing the matches out of the children’s reach or that they knew children may play with matches.

Paragraphs 6A and 6B. It is not necessary for me to decide on these paragraphs.

It is unnecessary for me to go to other heads of liability.

Paragraphs 7 and 9. Damages and interest necessarily flow from my findings for plaintiffs.

Solicitor for the Plaintiffs: Beresford Love & Company

Counsel: I. Molloy

Solicitor for the Defendants: Wayne J. McKeague & Associates

Counsel: B. Avery

N268.html#_ednref388" title="">[ccclxxxviii] ^{(1950) 1 All E.R. 392}

N268.html#_ednref389" title="">[ccclxxxix]^{(1936) ALP 29; [1935] HCA 82; 54 C.L.R. 200}

N268.html#_ednref390" title="">[cccxc]^{[1936] HCA 44; (1936) 56 C.L.R. 246 at pp. 267-8}

N268.html#_ednref391" title="">[cccxci]^{[1956] HCA 45; (1956) 96 C.L.R. 99 at p. 121-2}

N268.html#_ednref392" title="">[cccxcii]^{(1868) L.R. 3 H.L. 330}

N268.html#_ednref393" title="">[cccxciii]^{[1946] UKHL 2; (1947) AC 156}

N268.html#_ednref394" title="">[cccxciv]^{(1868) L.R. 3 H.L. 330}

N268.html#_ednref395" title="">[cccxcv]^{[1934] HCA 62; (1934) 52 C.L.R. 268}

N268.html#_ednref396" title="">[cccxcvi]^{(1868) L.R. 3 H.L. 330}

N268.html#_ednref397" title="">[cccxcvii]^{[1956] UKHL 6; (1957) A.C. 555 by Lord Radcliffe at pages 591-592}

N268.html#_ednref398" title="">[cccxcviii]^{[1959] HCA 8; 101 C.L.R. 298}

N268.html#_ednref399" title="">[cccxcix]^{[1957] VicRp 4; 1957 V.R. 43}

N268.html#_ednref400" title="">[cd]^{[1959] HCA 8; 101 C.L.R. 298}

N268.html#_ednref401" title="">[cdi]^{[1945] HCA 27; (1945) 70 C.L.R. 256}

N268.html#_ednref402" title="">[cdii]^{[1945] HCA 27; (1945) 70 C.L.R. 256}

N268.html#_ednref403" title="">[cdiii]^{[1955] UKHL 2; (1955) A.C. 549, (1955) 1 All E.R. 565 (H.L.)}

N268.html#_ednref404" title="">(1955) A.C. 549, (1955) 1 All E.R. 565 (H.L.) N268.html#_ednref405" title="">[cdv]^{Unreported judgment delivered on 27th April 1951}

N268.html#_ednref406" title="">[cdvi]^{[1956] HCA 25; 94 C.L.R. 470}

N268.html#_ednref407" title="">[cdvii]^{[1956] HCA 25; 94 C.L.R. 470}

N268.html#_ednref408" title="">[cdviii]^{[1956] HCA 25; 94 C.L.R. 470}

N268.html#_ednref409" title="">[cdix]^{[1911] UKLawRpAC 47; (1911) A.C. 674 at 687}

N268.html#_ednref410" title="">[cdx] ^{79 W.N. N.S.W. 498, (1962) N.S.W.R. 904, see also 36 A.L.J.R. 139; (1962) 3 W.L.R. 802, (1962) 3 All E.R. 335}

N268.html#_ednref411" title="">[cdxi] ^{86 W.N. (N.S.W.) 117, (1967) 1 N.S.W.R. 301}

N268.html#_ednref412" title="">[cdxii]^{See [1967] HCA 50; (1967) 41 ALJR 280}

N268.html#_ednref413" title="">[cdxiii]^{[1935] HCA 71; (1935) 54 C.L.R. 134; 9 A.L.J. 315}

N268.html#_ednref414" title="">[cdxiv]^{[1954] HCA 15; (1954) 89 C.L.R. 529, 28 ALJ 129}

N268.html#_ednref415" title="">[cdxv]^{[1887] NSWLawRp 88; (1887) 9 L.R. N.S.W. 1 (N.S.W. Sup. Ct. F.C.)}

N268.html#_ednref416" title="">[cdxvi]^{[1952] VicLawRp 69; (1953) V.L.R. 629 at p. 634}

N268.html#_ednref417" title="">[cdxvii]^{[1957] VicRp 4; (1957) V.R. 43, at p. 49}

N268.html#_ednref418" title="">[cdxviii]^{[1945] HCA 27; (1945) 70 C.L.R. 256}

N268.html#_ednref419" title="">[cdxix] ^{1916 32 T.L.R. 413}

N268.html#_ednref420" title="">[cdxx]^{[1945] HCA 27; (1945) 70 C.L.R. 256}

N268.html#_ednref421" title="">[cdxxi] ^{(1959) 1 W.L.R. 1031}

N268.html#_ednref422" title="">[cdxxii] ^{(1943) 2 All E.R. 629}

N268.html#_ednref423" title="">[cdxxiii]^{[1959] HCA 8; 101 C.L.R. 298 at p. 331 per Windeyer J.}