New South Wales Supreme Court CITATION : Chapman v Owners - Strata Plan 2926 & Anor [2005] NSWSC 434 HEARING DATE(S) : 22 March 2005 JUDGMENT DATE : 6 May 2005 JURISDICTION : Common Law Division JUDGMENT OF : Master Harrison DECISION : (1) The appeal is dismissed; (2) The decision of Magistrate M Price dated 29 June 2004 is affirmed; (3) The summons filed 26 July 2004 is dismissed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed. CATCHWORDS : Appeal decision of Local Court Magistrate - fire - candle Evidence Act 1995 (NSW) - s 3(2), s 76 LEGISLATION CITED : Interpretation Act 1987 )NSW) s 35(2)(c) Local Courts (Civil Claims) Act 1970 (NSW) - s 69(2) Allen v Ker & Anor (1995) Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Carr v Neill [1999] NSWSC 1263 CASES CITED : Devries v Australian National Railways Commission (1993) 177 CLR 472 R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588 Swain v Waverley Municipal Council [2005] HCA 4 Nigel Chapman (Plaintiff) The Owners - Strata Plan 2926 PARTIES : (First Defendant) Raymond Yam (Second Defendant) FILE NUMBER(S) : SC 12337/2004 Mr J Jobson COUNSEL : (Defendants) Mr L Rattenbury Armstrong Legal (Plaintiff) SOLICITORS : McCulloch and Buggy (Defendants) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 7046/2003 LOWER COURT JUDICIAL OFFICER : M Price LCM IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 6 MAY 2005 12337/2004 - NIGEL CHAPMAN v THE OWNERS - STRATA PLAN 2926 & ANOR JUDGMENT (Appeal decision of Local Court Magistrate - fire - candle) 1 MASTER: By summons filed 26 July 2004 the plaintiff seeks to appeal the whole of the judgment of Local Court Magistrate M Price dated 29 June 2004 in proceedings 7046/2003 and that the judgment entered for the first and second defendants be set aside and in lieu thereof judgment be entered for the plaintiff. 2 The plaintiff is Nigel Chapman who was the defendant in the Local Court proceedings. The first defendant is The Owners – Strata Plan 2926 who was the first plaintiff in the Local Court proceedings. The second defendant is Raymond Yam, who was the second plaintiff in the Local Court proceedings. For convenience, in this judgment I will refer to the parties by name. 3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) (the Act) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156 and two more recent cases, namely Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082. It cannot be said that the judicial officer acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. Recently in Swain v Waverley Municipal Council [2005] HCA 4 the Chief Justice at [2] reiterated that in the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. 4 Section 69(4) of the Act provides that the court may determine an appeal by either (a) setting the judgment or order aside or (b) by varying the terms of the judgment or order or (c) by setting the judgment or order aside and remitting the matter for determination in accordance with the court's directions or (d) by dismissing the appeal. Grounds of appeal 5 Mr Chapman appeals from the whole of the decision of the Magistrate. The issue is a narrow one. Chapman submitted that the letter by Jeff Roche, then Research and Incident Information Officer of New South Wales Fire Brigade, dated 29 January 2003 (Annexure "F" to Ex A in this Court) (the document) should not have been admitted into evidence. Chapman submitted that as a consequence of admitting the letter into evidence the plaintiff was denied the opportunity to cross examine the reporting officer in respect to the opinions expressed and in the absence of the letter the first and second defendants failed to establish that the plaintiff was negligent. Chapman says that if the document is relevant, and is considered a business record it is still subject to the opinion rule. Chapman's solicitor further submitted that had this report not been allowed in as evidence, Chapman would not have elected not to give evidence. Local Court proceedings 6 The proceedings in the Local Court arose from a fire that occurred at premises occupied by Chapman and owned by the Owners-Strata Plan 2926 (the owners). The owners sued Chapman for damages in the sum of $22,078.75 and negligence. Chapman denied liability but pleaded that the 4cm tall candle was housed in a cylindrical glass bowl 20-25cm in diameter and 5-6cm in height. Chapman pleaded that believed that he extinguished the candle before leaving the premises. Magistrate's decision 7 The Magistrate's decision is as follows: "It is further agreed that as at 22:31 the alarm was raised on 11 January 2003, fire authorities responded to a fire burning within the unit. The fire was in the bedroom of the unit and was contained to the area of origin. The fire was extinguished and the area ventilated. The defendant on the night offered the view to the fire authorities that the cause of the fire may have been from a candle in his bedroom. The defendant gives a sworn account that he burnt scented votive candles, from the Laundromat, had lit one of these scented candles which he had enclosed in a glass bowl and stood on the top of a bookshelf in his bedroom. The window on the northern side of the room had been opened. At the time of lighting the candle there was nothing higher than the bookshelf upon which the candle and the bowl stood. He had the expectation that the candle would burn for approximately nine hours, something he was entitled to conclude from the markings on the packaging, which he purchased from a neighbouring store. At 6.30pm when he lit the flame, he had an expectation that the candle, which had already burnt down by approximately two-thirds, would extinguish itself in approximately one and a half hours. At 7.30pm he went to a party and was contacted by fire authorities at 11.15pm to return to his unit where the authorities were responding to the fire. He concluded that he did not extinguish the flame before leaving the unit for the night. His examination of the glass bowl showed it to be fractured, as distinct from shattered after the fire. Interestingly, the packaging to the candles, exhibit 3, recommended always using an appropriate holder and placing candles on a heat resistant surface and away from drafts and flammable materials. It is submitted on behalf of the defendant that the incident was unfortunate, however an adverse verdict to the defendant was or is potentially dangerous. The defendant it is submitted to be, and indeed was accepted by this Court to be full and frank, both in his dealings with the fire authorities and in his account to the Court. It is further submitted the plaintiff failed to call the relevant fire officer who attended the scene of the fire and made observations. It is submitted there has been a fire, there was a candle burning, that does not exclude the possibility of an electrical fault occurring within the room. It is submitted the plaintiff has not discharged this evidentiary burden, even on balance so far as the cause of the fire is concerned. It is submitted this fire, the candle, might well have burnt out before the alarm was raised. As to what the defendant did do, he placed the candle in a glass receptacle, it is on a bookshelf above everything else in the room and the clothing on the floor is more than 30 centimetres away, even on his own estimate, from the bottom of the bookcase. It is not reasonably foreseeable in those circumstances that something untoward might occur with regard to the candle, especially escaping. The question is posed "is it foreseeable that a fire would escape." … …On balance this Court determines that it was the negligence of the defendant to purposely or deliberately leave a lighted candle in a bedroom and go out to a party. The warning on the packaging cautioned "please don't leave a burning candle unattended and keep away from children and pets." …accordingly then there will be a verdict in favour of the plaintiff." 8 At t 6 there is a record of the objection made to the tender of this document. (Chapman has abandoned his s 59 submission). The owners submitted that this document was a business record. Chapman submitted that the document was not a business record and the proper evidence could only be adduced from the officer preparing the original incident report. Chapman also submitted that s 76 of the Evidence Act 1995 (NSW) relating to opinion rule was offended by the procedures sought by the owners and did not disclose the facts upon which the officer based his opinion. 9 The Magistrate took the view that the document was a business record and is admissible "for such weight or inference as might attach to such document." The document states: "A summary of the reporting Officer's Fire Incident Report is set out below. Please remember that this information is based on the Reporting Officer's observations at the time of the incident without the benefit of scientific investigation and is provided without prejudice and in good faith on the understanding that it is not to be used in any proceedings against the NSW Fire Brigades. Address: 1/55 The Avenue, HURSTVILLE. Date: 11 January 2003. Alarm Time: 2231 Hours. Incident Description: Fire in bedroom, fire was contained to area of origin. Fire extinguished and area ventilated. Area of Origin: Bedroom. Probable Ignition Factor: Candle falling onto clothing. Attending Brigades: Hurstville and Kogarah." 10 It is convenient to point out that the only statement made in this document that was not controversial was the entry "probable ignition factor – candle falling onto clothing". 11 Section 79 of the Evidence Act reads: "79 Exception: opinions based on specialised knowledge If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge." 12 Mr Roach, at the time of preparing this report, was a Research Incident Information Officer in the Fire Brigade. His evidence was that in preparing the report he had extracted information from the attending fire officer's report (t 2). Subsequent to the tender of the document Mr Roach gave evidence that he had been in the job for 16 years and had attended in excess of 300 fires during that period and for the majority of fires he had been the attending fire officer. He had attended more than 10 fires that he believed had been started by a candle. In his experience as a Research and Incident Information expert, he had been able to provide different inquiries as to the sources of ignition (t 9). 13 It is my view that Mr Roach had specialised knowledge based on his training and experience and gave evidence based on that knowledge. He was present at court and Chapman's solicitor had the opportunity to cross examine him on his findings. As previously stated, the facts referred to in the report other than the fire's probable cause were uncontroversial. Even if the document was not considered as a business record it is my view that it was open to the Magistrate to admit the report into evidence on the basis of s 79. 14 It was further submitted by the solicitor for the plaintiff that the flowchart diagram contained in the "Introductory Notes" preceding Chapter 3 of the Evidence Act compels the Court to treat the various Parts of the Chapter hierarchically. However, s 3(2) of the Evidence Act provides that notes included in the Act are explanatory notes and do not form part of the Act. This is consistent with the rule in s 35(2)(c) of the Interpretation Act 1987 (NSW). This submission fails. 15 There is no error of law. The appeal is dismissed. The decision of Magistrate M Price dated 29 June 2004 is affirmed. The summons filed 26 July 2004 is dismissed. 16 Costs are discretionary. Costs usually follow the events. The plaintiff is to pay the defendants' costs as agreed or assessed. The court orders: (1) The appeal is dismissed. (2) The decision of Magistrate M Price dated 29 June 2004 is affirmed. (3) The summons filed 26 July 2004 is dismissed. (4) The plaintiff is to pay the defendants' costs as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.