GIRKAID PTY LIMITED & 1 ORS v McDONALD & ORS [2001] NSWSC 1202

New South Wales Supreme Court

CITATION : GIRKAID PTY LIMITED & 1 ORS v McDONALD & ORS [2001] NSWSC 1202 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20335/98 HEARING DATE(S) : 30 January 2001, 31 January 2001, 1 February 2001, 5 February 2001, 7 February 2001, 8 February 2001, 4 December 2001, 14 December 2001 JUDGMENT DATE : 14 December 2001

Girkaid Pty Limited Inghams Enterprises Pty Limited (Plaintiffs) v Barry Edward McDonald t/as B E McDonald Transport (Defendant) PARTIES : Robert Bryce & Company EKA Chemicals (Australia) Pty Limited SLE Industrial Supplies Pty Limited Hudson Resources Ltd formerly Mallina Holdings Ltd (variously cross-claimants and cross-defendants)

JUDGMENT OF : Adams J at 1

Mr I D Faulkner (Girkaid Pty Limited & Inghams Enterprises Pty Limited) Mr S G Finch SC with Mr P Braham (Barry Edward McDonald t/as McDonald Transport) COUNSEL : Mr M A Ashhurst (Robert Bryce & Co Limited) Mr D R Pritchard (SLE Industrial Supplies Pty Ltd) Mr I Wales (Hudson Resources Ltd) Minter Ellison (Plaintiff) A R Conolly & Company (Defendant) SOLICITORS : Michael Samios (Robert Bryce & Company) PricewaterhouseCoopers Legal (SLE Industrial Supplies Pty Ltd) Moray & Agnew (Hudson Resources Ltd) Miles Oakley by their Sydney agents McCabes (EKA Chemicals (Australia) Pty Limited) CATCHWORDS : Negligence - dangerous goods - fire caused by spontaneous combustion - whether occupier should have known - meaning of Dangerous Goods Regulation 1978 - causation - whether Ockham's razor applicable Dangerous Goods Act 1975 LEGISLATION CITED : Dangerous Goods Regulation 1978 Law Reform (Miscellaneous Provisions) Amendment Act 2000 Sale of Goods Act 1923 O'Connor v S P Bray Limited (1937) 56 CLR 464 J D Bell (Caloul) Pty Limited & others v Shortland County Council (1991) Australian Torts Reports [#81-131] Proprietors - Strata Plan No 30232 v Margiz Pty Limited (unreported, NSWSC 30 June 1993) CASES CITED : O'Connor v S P Bray Pty Limited (1937) 56 CLR 464 Lubrano v Proprietors of Strata Plan No 4038 (unreported, NSWSC 13 September 1993) John Pfeiffer Pty Limited v Canny 1981 55 ALJR 683 Hoey v Hardies & Anor (1912) 12 SRNSW 268 DECISION : Judgment for the plaintiffs against McDonald. Judgment for McDonald in cross claim against Bryce and Hudson and judgment for Bryce and Hudson against Mr McDonald in respect of their cross claims against him. Hudson and Bryce are each responsible for the damage 40% and McDonald 20%. In relation to the particular loss of Bryce it is responsible as to two-thirds and Mr McDonald as to one-third. The cross-claim by McDonald against SLE fails. The cross-claims by Hudson and Bryce against SLE also fail.