Alderson v Gause; Alderson

Introduction

1. The Plaintiffs proceed by Statements of Claim ("SOC") filed 22 March 2021 for damages consequent of personal injury alleged to be suffered by them and resulting from the death of Mr Bradley Heafey (the "Deceased") who died in a residential house fire at 12 Macquarie Street, Barnsley in the State of New South Wales (the "Premises") on 8 April 2019. He was 23 years of age, the partner of Tamara and father to Elijah, who was then four years of age, and Kruz, who was then two years of age. Plaintiffs John and Narelle Heafey are the Deceased's parents.
2. By a separate Statement of Claim ("CTRA SOC"), Tamara claims a provision in accordance with the Compensation to Relatives Act 1897 (NSW) ("CTRA") for herself, Elijah and Kruz. Whilst the relationship between Tamara and the Deceased was not admitted by the Defendant at the start of the trial, in closing submissions the Defendant admitted the fact of their "de-facto" spoused relationship: CTRA SOC at [4]; CTRA Defence at [4]; MFI 33 at [1.2]; CTRA s 5 and definition s 7(4)(b). In closing, the Defendant conceded that he did not dispute the Plaintiffs' relationships with the Deceased for the purposes of their mental harm damages claims: s 32 Civil Liability Act 2002 (NSW) ("CLA").
3. At the close of the hearing, I was informed that the quantum of damages in the claims brought by John, Kruz and Elijah and the quantum of damages (compensation) in the CTRA claim were agreed. This judgment deals with the question of liability in negligence in all claims, and non-economic loss damages in the claims brought by Tamara and Narelle. In the event that I determine the death of Bradley to have been caused by negligence of the Defendant; then the Defendant will be liable also in the CTRA claim: s 3 CTRA.
4. For convenience and without meaning any disrespect, I will continue to refer to the Plaintiffs by their first names. That is how they were identified throughout the hearing.
5. It is common ground that the smoke alarm in the loungeroom of the Premises where the Deceased died had been tampered with and it did not sound.
6. The Premises were owned by the Defendant and rented to Tamara and the Deceased. The Residential Tenancy Agreement (the "Lease"), made 14 February 2019, names the Defendant as landlord and lists the Deceased, Tamara, and their children Kruz and Elijah as tenants. The Lease was signed by the Defendant in his capacity of landlord and by each of the Deceased and Tamara in their capacities of tenant. Narelle witnessed the signatures to the Lease: Exhibit F. The Deceased and Tamara, with Kruz and Elijah, entered into occupation of the Premises on the date of the Lease.
7. The Defendant is employed as a Network Control Manager at Transgrid. He holds an Electronics Trade Certificate and an Associate Diploma in Electrical Engineering. He commenced but did not finish an Electrical Engineering Degree at the University of Newcastle. He is employed at Transgrid working in the control room, operating the high voltage network between Queensland and the Victorian border. Whilst he arranged for a friend of his father who worked as a BHP electrician to install the smoke alarms, the Defendant, himself, purchased the Clipsal Lifesaver 755 smoke alarms which were in the Premises.
8. In the transcript and in this judgment, "alarm", "fire alarm", "smoke alarm" and "smoke detector" are terms interchangeably used for a Clipsal Lifesaver 755 device which is expected to sound an alarm when it detects smoke.
9. The CLA applies to the Plaintiffs' claims for damages.

The Fire - Collapse and Death

1. Expert fire investigation opinion evidence was relied upon by the parties; Mr Munday was retained by the Plaintiffs and Mr Kelly was retained by the Defendant. The Supplementary Report by Mr Munday dated 10 December 2021 (Exhibit A) includes his opinion of how the fire progressed and what is most likely to have occurred in the last moments of the life of the Deceased. Having considered the whole of the evidence in the hearing and particularly the expert opinion evidence of Messrs Munday and Kelly, I find Mr Munday's opinion of the course of the fire to be ultimately persuasive. Consistently with Mr Munday's opinion, during simultaneous oral expert evidence on Day 5, Mr Kelly agreed that hot gas and smoke probably progressed to the lounge area in the stage of the fire preceding it breaching the kitchen ceiling. Also, Fire and Rescue NSW investigator, Mr Schweickle's opinion of the course of the progression of the fire (Exhibit L) is consistent with Mr Munday's opinion.
2. Mr Munday described the event of the noisy breaking of the kitchen window which would, by the emission of air into the Premises from outside through the lower part of the window whilst smoke exited through the upper part, have accelerated the fire: Exhibit A at [14]. He commented that this would have occurred at approximately the same time that an operational smoke detector alarm situated in the hallway would have sounded its alarm. He was briefed that the only smoke detector alarm was fitted to the hallway ceiling just beyond the loungeroom doorway. But his description of smoke passing the hallway door lintel logically means that an operational smoke detector fitted to the loungeroom ceiling would have sounded earlier than that point in the fire's progression because smoke at the loungeroom ceiling would have triggered it before the smoke increased and lowered to pass the lintel at the doorway to the hallway: Exhibit A, Mr Munday at [12] - [15], quoted at [19] of this judgment. Mr Munday stated: "35. There would have been some noises in the kitchen as the fire grew but the first loud sound would likely have been the kitchen window failure … If the deceased awoke at that stage, then it would be similar to being alerted by the alarm… 36. I have no knowledge of the deceased's olfactory sense, possible background odours in the house or other factors which could affect detection of the developing fire by odour. I am unable to comment further on that possibility. 37. At the stage of fire development described at 15 above [Note: I quote [15] below in this judgment], downward radiant heat would be increasing rapidly but the air temperature at lounge seat height would still be close to the pre-fire ambient. Exposed skin may therefore experience enough sensation to awake a drowsy or sleeping person, but clothed skin would not undergo a significant temperature rise at this stage. 38. Whatever the reason for becoming aware of the fire, if the smoke layer was already sufficiently deep to immerse the [Deceased's] head when he stood up then he would become confused and disorientated. The combined effects of heat, toxic gases and smoke particulates would cause rapid incapacitation and collapse. It is improbable that he would then survive until the onset of flashover. 39. In my opinion, the most likely explanation for the deceased being unable to leave the building is that he stood up from the lounge, encountered a smoke and hot gas layer which was already deep enough to affect his eyes and airways, and became disorientated. 40. He may then have closed the internal door thinking that he was opening the front door, or have blundered into the open door and caused it to close, before collapsing to the ground against the door where he was found."
3. Further, as to [37] quoted above, photographs of the Deceased as he was found after the fire show that he was wearing shorts and was unclothed above his waist. Applying Mr Munday's observations, he would mostly likely have felt the heat on his mostly exposed unclothed body: see Exhibit 1 - Mr Kelly Report, Photographs FIRU 132 and 136. Importantly, had the loungeroom ceiling smoke alarm been operational, it would have sounded at the very early stage of smoke at that ceiling, and before the smoke lowered to pass the lintel to the hallway, and before the Deceased would have felt heat to the exposed parts of his body, and before the smoke layer was sufficiently deep from the ceiling to immerse his head when he stood up: see further my extraction from the Report of Mr Munday at [19] following.
4. During closing arguments, I put to the parties that it seemed to be common sense and compelling that because the Deceased collapsed in the location of the loungeroom at the door to the hallway which indirectly led to the back door, when the front door which led immediately to the outside was, in normal circumstances of vision and calm mind, obviously available to him on the other side of the room; it is reasonable to infer that he responded to escape when the smoke and heat layer had lowered to cause an environment which induced confusion and/or disorientation and incapacitation by effects of the fire. Acceptance of this inference is also encouraged by the fact that the location to which the Deceased moved was closer to the kitchen and the fire than to the front door, which was in the direction away from the fire. To take that direction was apparently against the Deceased having clear vision and exercising calm reason.
5. There is no suggestion that the Deceased did not move to the position in which his body was found. Indeed, the photographs and house plans are not suggestive of any reason why he would have been at the door to the hallway other than him making a confused and disorientated attempt to escape. There was not, for instance, a couch in the location of which he was found.
6. During closing submissions, Counsel for the Plaintiffs agreed with the finding of fact that the Deceased must have suffered confusion or disorientation, inferred by the facts stated above. Senior Counsel for the Defendant refuted finding that inference. Other possible hypotheses to which the Defendant pointed included:

• That he was going into the bedroom to try to stop that alarm from going off - the bedroom being at the end of the hallway to which the door opened; or
• He was going to the kitchen to turn off the electricity.

1. I agree with Senior Counsel for the Defendant that other reasonable hypotheses must be considered. But the fire, smoke and fumes had reached a stage which caused him to collapse. I consider it to be unlikely that he was attempting to enter the inferno which must have, by that stage, been raging in the kitchen. There is no evidence that anybody heard the bedroom smoke alarm sound. There is no evidence of whether or not it did sound. I consider it unlikely that, having risen into the environment of the state of the fire as Mr Munday described it, at a stage when the conditions were sufficient to cause him to collapse, he was prioritising turning off the bedroom alarm. Indeed, there is no evidence which would explain to me that a sounding smoke alarm could be turned off during a fire. There is no evidence that the Deceased even knew how to do that, if it was possible to do at all.
2. In my opinion, it is reasonable to find as a fact inferred from the evidence, and I do, that the Deceased responded to escape the fire when confused and/or disorientated and incapacitated because of the environmental effects of the fire in the loungeroom, and, unfortunately, went in the "wrong" direction to exit the Premises and collapsed at the hallway door. The immediately available front door on the other side of the loungeroom would have provided direct escape from the Premises to the outside.
3. It was in the course of the action of the Deceased attempting to escape the fire that he collapsed and expired in that place near the door to the hallway. Common expert evidence is that the smoke was not at floor level when he collapsed. See the Photograph FIRU 132, Exhibit 1 - Kelly Report, the "protection pattern" shows the wall behind the Deceased's body was not stained by smoke when he collapsed.
4. As the case was run, the parties appeared to commonly assume that the Deceased fell asleep on a couch in the loungeroom when the fire started in the kitchen. Whilst on the couch, the fire would have created smells, sensation of heat, and noises which likely aroused him. Mr Munday described that stage of the fire in the following terms, which again, after having considered the whole of the expert opinion evidence concerning the fire, I find to be persuasive (Exhibit A - Mr Munday Supplementary Report): "12. Once ignition of the pan contents occurred [for reasons given at [39] - [46] it is pure speculation to suggest, and I do not find, that there was ignition of pan contents] and flames were produced, there would be a greater volume of smoke produced at a higher temperature, which would cool and disperse more slowly. This smoke would spread farther through the open plan living area at or close to ceiling level, but the layer would be unlikely to be deep enough to pass the lintel depth above the door into the hallway. [Note: Mr Munday here has described smoke at a point when it would have reached the location of the loungeroom ceiling smoke detector; but was considering progress of smoke to a hallway smoke detector because his brief instructed that was the only location of a smoke detector.] 13. Heat and flames would spread to the surrounding combustibles including the cabinetry, kitchen window coverings, and any other readily available fuels such as household contents surrounding the stove. At this stage the fire would grow rapidly, large quantities of thick buoyant smoke would be produced and the depth and temperature of the hot gas layer under the ceiling would increase. 14. At around the same time the kitchen window would have failed, allowing some of the flames, hot gases and smoke to vent to the outside atmosphere through the upper part of the window while allowing fresh air into the room via the lower part. This would increase the intensity of the burning in the kitchen and speed up the growth of the fire. 15. The growing fire would produce increasing quantities of hot smoke and combustion gases, causing the layer depth under the ceiling to increase until smoke could spill under the lintel and through the open hallway door. The smoke would still be buoyant at this stage and would rise again to the hallway ceiling where it could interact with [a hallway smoke alarm at that position]."

• an operational smoke alarm fixed to the ceiling in the loungeroom would have sounded and triggered the Deceased's escape when smoke reached it at the loungeroom ceiling, well before the smoke and fumes were low enough in the loungeroom to disorientate and confuse him when he rose to stand from the couch or otherwise to escape;
• it is likely that the Deceased was confused and disorientated when aroused from sleep, his action to escape the fire having been triggered by the sensations of noise, heat and smoke at a time later than that at which an operational smoke detector alarm would have triggered his escape reaction;
• an operational smoke detector would likely have sounded its alarm and aroused the Deceased before the smoke layer, heat and toxic gases reached the stage of incapacitating environment described by Mr Munday at [38] quoted above; and
• had the smoke alarm in the bedroom been operational, given the expert opinion description of the course of the fire, including penetration of the kitchen ceiling and through the Premises in addition to the massive destruction of the Premises and particularly of the bedroom (as identified by Senior Counsel for the Defendant during closing submissions); it is reasonable to infer that it would have sounded at some stage of the fire but after an operational alarm in the loungeroom (Joint Expert Opinion Report - Exhibit D, Answer 4(a)).

1. It was the lateness of the Deceased's action to escape the fire, in terms of progress of the fire, such that he was in a confusion-inducing smoke layer, which caused his failure to escape and his death.

Pleadings and Issues

1. By Defences filed 25 November 2021, the Defendant admitted that he managed the leasing of the Premises.
2. Whilst it is not contested that the Deceased died in the fire on the evening of 8 April 2019, the circumstances surrounding that incident are in issue. Following his attendance at a friend's party, in the early evening, the Deceased returned home to the Premises. Tamara, Elijah and Kruz were not at home. Sometime later a fire commenced, probably in the kitchen. The Plaintiffs plead (SOC [11]) that the Deceased was asleep in the lounge area of the Premises at the time of the fire. The Defendant did not admit that fact. The undisputed fact is that he was in the loungeroom which was partially divided from the kitchen by a short wall. The Deceased's body was found on the floor of the lounge area near the door to the hallway. His feet were before him and his shoulders and head against the wall between the kitchen and that door. There is no submission, based on evidence, contrary to the Deceased having been asleep in the lounge area when the fire commenced. Indeed, the trial was conducted on that factual basis. It is appropriate to determine the issues on that basis.
3. The real and central issues of primary liability on which the case was run concerned whether or not the Defendant was negligent for failing to have provided operational smoke alarms in the Premises and the related issue of whether or not the Defendant took reasonable care, when inspecting the smoke alarms, to determine whether or not they were operational. The main focus was directed to the smoke alarm in the loungeroom of the Premises because that was the room in which the Deceased died.

Mains Power Connection

1. During her evidence-in-chief, Tamara said that the mains power was connected when the family moved in: T 47. 45. She recalled that on 14 February 2019, she telephoned the electricity retailer after signing the Lease "to have it put into my name". That she telephoned the electricity retailer was corroborated by both the Deceased's father John, and the Defendant.
2. The Defendant said that the power was disconnected on 14 February 2019, as it had been during the vacancy of the Premises preceding the Lease. He recalled that he went to his parents' house the next day, 15 February 2019, to work on his car in their carport, from which place he could see the electricity box of the premises: T 174. 24 - 34. Whilst working on his car, he saw a man in a high visibility shirt walk to the meter box, remain there for about one minute, and then walk away. He assumed that man to be an Ausgrid worker turning the power back on. His conclusion of connection of the mains power on 15 February 2019 is inconsistent with the recollection of Tamara, but not directly inconsistent with the recollections of Narelle and John.
3. The Simply Energy electricity invoice (Exhibit 25) and recording of Tamara's call on 15 February 2019 following up on connection (Exhibit 26), establish that she telephoned on 14 February 2019 to request electrical connection, and that connection was actually made the next day, 15 February 2019. Plainly, Tamara's recollection of connection of mains electricity was inaccurate in that she confused her recollection of calling Simply Energy to connect and of the appliances being moved in on 14 February 2019, with actual power up that occurred the following day.
4. In closing oral submissions, Senior Counsel for the Defendant did not seek to address my observation that Tamara's mistake as to the fact of the date of actual mains power connection would not cause me to not accept her other reliable evidence: T 561. 25.

Issue Best Determined Early - One or Two Smoke Alarms?

1. A discrete issue which, for an orderly presentation of these reasons, deserves early determination, concerns whether one or two smoke alarms were in the Premises and where smoke alarms were located. The Plaintiffs' case is that there was a single smoke alarm situated in the hallway immediately before the door to the loungeroom and approximate to the laundry door. The Defence case is that there were two smoke alarms, one situated in the loungeroom and the other in the master bedroom (referred to in these proceedings as the "bedroom"). The Plaintiffs' case is difficult to accept given that, without objection, the Defendant tendered two smoke alarms which were fire damaged (Exhibits 14 and 16). The Defendant gave evidence that he located those smoke alarms, one in the rubble of the bedroom and the other when at the local rubbish tip amongst rubble removed from the loungeroom. His evidence was that the smoke alarms were respectively situated in the ceiling of the loungeroom and the ceiling of the master bedroom. In the Defence case, photographs showed smoke alarms in each of those two locations. In the Defence case, there was no alarm in the hallway. But, there was a ceiling light at the location of the alarm proposed by the Plaintiffs. During cross-examination of the Defendant, he was never challenged on the basis that Exhibits 14 and 16 were not located from the rubble following the fire, as he stated in his evidence. It follows, before I come to consider the evidence of witnesses in the Plaintiffs' case, that I prefer the physical evidence of Exhibits 14 and 16 to the evidence of recollection of the witnesses in the Plaintiffs' case. I find that there were two smoke alarms, one situated on the ceiling of the master bedroom and the other on the ceiling of the loungeroom.
2. For completeness, I note that there is no evidence that the police or fire investigation authorities conducted an energetic search for smoke alarms in the Premises. Indeed, the fire investigator, Mr Schweickle, engaged in an email exchange with the Defendant enquiring of whether or not there had been smoke alarms within the Premises.
3. On Day 5 of the hearing, Senior Counsel for the Defendant explained that whether or not there was a second operational smoke alarm in the bedroom, "… will be not of causative relevance in this matter. But it's important for issues of credit because we know the plaintiffs all gave evidence that there was one fire alarm in the hallway.": T 289. 40 - 45. That is, that a significance of the witnesses in the Plaintiffs' case being wrong as to this important feature of the case, was that it showed their evidence of recollection, individually given, to be unreliable.
4. I do not find unreliability of their evidence generally to be exposed by their evidence in that specific regard, amongst consideration of the whole of the evidence. Only Tamara was firmly of the view that her recollection of a single smoke alarm in the hallway was correct. The Deceased's parents, John and Narelle, conceded the limits of the attention paid by them to the smoke alarms and that their recollections were unreliable in that regard by making appropriate concessions when cross-examined on objective evidence such as photographs. Plainly, the Defendant as owner of the Premises, having retained a person to install the smoke alarms in the Premises in 2002 and having attended to them during the maintenance of the Premises over the intervening 17 years, was of greater experience and familiarity with the smoke alarms than were any of Tamara, John and Narelle. By comparison, prior to the fire, there was limited cause for Tamara, John and Narelle to have serious regard for observation of the smoke alarms. This is my observation, whilst acknowledging that as foster parents, John and Narelle were aware of the importance of smoke alarms in the Premises.
5. Because the Defendant challenges the credit of Plaintiff witnesses regarding their evidence on the question of assessment of damages and, also, of Tamara on the question of whether the loungeroom smoke alarm was tampered with during the tenancy, I deal with challenges to their credit throughout this judgment.
6. As I noted above, Tamara, when cross-examined, was adamant of the single smoke alarm situated in the hallway: T 91. 35 - T 92. 40. Plainly, her recollection in that regard was unreliable but, on the basis of it, I do not reject the whole of her evidence. I come to further consideration of the credibility of her evidence later in these reasons.
7. John was adamant during cross-examination that he had noticed only a single smoke alarm in the hallway before the fire. He also said that when he attended the Premises at around 3:00pm on the Wednesday following the Monday fire, between the doorway to the lounge area (door removed by NSW Fire & Rescue) where the Deceased's body was found, and the door to a linen press, the bracket which had retained the hallway smoke alarm was still situate in a section of the ceiling which had not yet fallen. He was shown photographs taken at some point after the fire by NSW Fire & Rescue and agreed that the bracket could not be seen in the portion of the hallway ceiling which had not fallen. He answered "… No, it's fallen down now on the photo": T 141. 49; see T 139. 40 - T 142. 5; the photographs became Exhibit 6.
8. But when photographs of the loungeroom ceiling taken preceding the fire (Exhibit 4) were shown to John, typical of his willingness to make concessions against the Plaintiffs' interests, he conceded that, on the basis of his recollection of what he took notice of, on 14 February 2019 when assisting Tamara and the Deceased to move in, he could not say whether or not there was a smoke alarm in the loungeroom: T 146. 5 - 14. When shown a photograph of a smoke alarm on the bedroom ceiling, he conceded that it could have been there but that he did not see it: T 146. 30. Whilst John then disagreed with the cross-examiner that he was mistaken about there being a smoke alarm in the hallway (T 146. 33 - 39), that does not detract from my assessment of him as an honest witness. Having made the appropriate concessions regarding the smoke alarms in the loungeroom and bedroom, he remained truthful as to his recollection of the hallway smoke alarm. That I accept that recollection to be inaccurate because neither party conducted the case on the basis of there being three alarms in the Premises and there is no physical evidence of the existence of a hallway smoke alarm, nevertheless retains John's credibility as a witness of imperfect recollection of the existence of a hallway smoke alarm. Prior to the fire, it would not have been a subject of the same importance that it became following the fire and he was in a highly emotional state, making his "hooray" to his son on that Wednesday after the fire. He had seen the silhouette of his son's body marked on the loungeroom wall by the smoke stains.
9. Narelle said that when she walked through the Premises on 14 February 2019, she saw a smoke alarm in the hallway. She described it as discoloured and noted to herself "oh, that's where it is" and then continued moving furniture and setting up the rest of the Premises, in readiness for the Deceased and Tamara's family to move in: T 104. 10 - 13. But when her recollection of whether there was only one or there were two smoke alarms in the Premises was tested by showing her pre-fire photographs of the Premises during cross-examination, she made frank and appropriate concessions. When shown the photograph of the loungeroom smoke alarm on the ceiling near the fan, she did not deny its existence, but said "No, I did not see that one", and when it was put to her that it was there at the commencement of the Lease, she answered "I just did not see it, no.": T 109. 20 - 34. Likewise, when shown a pre-fire photograph of the main bedroom ceiling, she answered "Yes, no, I didn't see that one either, sorry. But then I didn't…" [her answer was interrupted by the next question]: T 109. 47. The honesty of her evidence was clear to me in the following exchange concerning the existence of the bedroom smoke alarm (T 110. 3 - 10): "Q. And I'm going to put to you, and you're going to deny it, that there, you can see a smoke alarm in the ceiling in that photograph. You say that was not there? A. I didn't go into the main bedroom that much, but I did not see that, no, sorry. Q. Is it possible it could've been there and you've missed it? A. Yes."

Pure Mental Harm - s 31 CLA

1. In answer to each of the Plaintiffs' claims for mental harm damages, the Defendant also denies liability by disputing that the Plaintiffs have established that they suffered a "recognised psychiatric illness" within the meaning of s 31 CLA resulting from the Defendant's negligence: Defence at [28].

Intoxication and Contributory Negligence - ss 50 and 5R - Factual Parameters

1. The Defendant challenged the Plaintiffs' entitlement to damages, relying on s 50 CLA (Defence at [29] - [30]) and, in the alternative, contributory negligence (Defence at [32]) on the basis of the Deceased's intoxication. In closing, the Defence put its argument as follows (MFI 33 at [10.4]): "It was concluded that the fire started as a result of a frypan being left on electric stove (Exhibit 19 at [34]). The deceased fell asleep while the stove was operating, after having taken medication which was known to make him sleepy. To this end, the court ought to apply s50(3) and (4) of the CLA, applying a reduction to any award of damages of at least 25% on account of the plaintiff's contributory negligence due to the combination of prescription medication and alcohol in his system, in addition to the conclusion that food was left unattended on the stove in the kitchen, after which he fell asleep. Alternatively, the court ought to apply a reduction for contributory negligence in accordance with s5R of the CLA, or alternatively, pursuant to the common law principles of contributory negligence." (emphasis added)
2. It is not clear from that submission whether or not the Defendant relied on the intoxication defence (ss 50(3) and (4) CLA) separately on the basis of slowed reaction to the fire, absent the allegation of unattended cooking. The Plaintiffs dispute that it was evidentiarily available to the Defendant to put the issues concerning intoxication and contributory negligence in those factual parameters. The Plaintiffs submitted that the evidence "…does not prove that the [Deceased] left the stove on with food on the stove.": MFI 32 at [26].
3. Before proceeding further in these reasons, I observe that the above-quoted Defence argument is inaccurate or significantly incomplete in its reference to the statement of Officer in Charge, Detective Senior Constable Phillpott, which is Exhibit 19. At [34], Officer Phillpott was referring to an opinion expressed to her by Mr Tocher, of Safearth Consulting. Mr Tocher was described by her as an expert in electrical devices utilised by New South Wales Police Force who had examined the stove in the kitchen of the Premises. In fact, Officer Phillpott reported that Mr "Tocher's opinion would be that he could not rule out an electrical fault as the cause of the fire", because parties had changed the positions of safety switches following the fire and before Mr Tocher's inspection: at [28]. Officer Phillpott reported that both New South Wales Fire and Rescue, and Ausgrid staff had changed the position of the safety switches: at [29] and [30]. In her statement, Officer Phillpott reported Mr Tocher was "… unable to determine if the elements to the stove top were switched on or off when the house fire started.": At [26].
4. Officer Phillpott did not at [34] report the conclusion as stated (incorrectly) by the Defence in its above-quoted submission, "… that the fire started as a result of a frypan being left on electric stove". Officer Phillpott reported that expert evidence by CSO McCann and New South Wales Fire and Rescue, Fire Investigator Mr Schweickle, reported to her, was "that the cause of the fire is unknown/undetermined." Those Officers opined only as to the location of the start of the fire, not the source of the fire. She reported "It is apparent from both their opinions, the fire started on the right side of the stove top in the kitchen where a melted aluminium frypan (or similar) was located."
5. In short, there is no objective evidence in the case, nor is there expert opinion, supporting the Defence Closing Written Submission (MFI 33 at [10.4]) that the fire started in consequence of cooking or, otherwise, the element of the stove top in association with the frypan. The only expert opinion is that the fire started in that location of the stovetop by an unknown cause.
6. From the evidence of the start of the fire, the evidence of the expert investigators from New South Wales Fire and Rescue, and from Police, I note the following references in order to define the factual parameters of the Defences under ss 50 and 5R CLA:

• In his report on his investigations dated 21 May 2019 (Exhibit L), New South Wales Fire and Rescue Fire Investigator Schweickle directly commented that he was "unable to determine if any of the stove top elements were on at the time…" and located the fire to the right side of the stove because of significant damage to the aluminium pan, cabinetry and the kitchen, they being "directional indicators" to that location. His opinion that the Deceased "had some unknown food on the stove which was left unattended" was speculative and not expressed with reference to any evidentiary finding.
• New South Wales Fire and Rescue, Fire Investigation and Research Unit, Fire Scene Examination Field Notes created on the day following the fire, 9 April 2019, concluded under "Possible/Probable Cause" that it was "undetermined" whether food stuffs were left on the stove (page 1) and that it was unable to be determined if the stove was in operation or not (page 8).
• By email dated 2 May 2019, Police CSO McCann informed Police OIC Phillpott that she could not say why the fire started and that the stove had been sent to Mr Tocher, New South Wales Police Electrical Expert, for examination and report.

1. Despite the Defendant Closing Written Submission (MFI 33 at [10.4]) quoted above (and repeated at [6.19]), during oral argument Senior Counsel for the Defendant properly conceded that whether or not oil or foodstuffs were burning on the stove was a question concerning which there was no evidence: T 558. 5 - 19.
2. For these reasons, I find that the cause of the fire is simply left unexplained by the circumstantial evidence. No doubt, the conclusion speculated at one point by New South Wales Fire and Rescue Investigator Schweickle, that foodstuffs in a pan or pot on the stove burned and caught fire, is reasonably open. So is electrical fault whilst the stove top was not in operation. It may also be possible that ignition occurred from some source other than the stove top but in proximity with the back right of the stove. The evidence does not permit more than choices between rival conjectures. The evidence does not support identifying, on the balance of probabilities, the cause of the fire: Jones v Dunkel (1959) 101 CLR 298 per Dixon CJ at 304.
3. I conclude that the factual parameters for consideration of the defences of intoxication under s 50 CLA, and contributory negligence under s 5R CLA, and at common law, are to be confined to the cause of the fire being unknown and not shown to be the consequence of any activity or omission in the operation of the stove top by the Deceased. This means that the Deceased's intoxication is not shown to have contributed to the cause of the fire.

Specific Pleading - Tampering

1. It is common ground that the loungeroom smoke alarm had been tampered with, including by removal of its "siren" (also called a "siren disc" and a "speaker") such that it was disabled from performing its fundamental function of sounding its alarm in the event of a fire. Also, its battery had been removed and the lever which was designed to prevent the smoke detector being placed in its ceiling bracket if a battery was not present had been bent so that it could be installed without a battery. In short, due to human interference, the loungeroom smoke alarm contained no siren and no battery.
2. As the expert witnesses described it, the tampering did not involve a simple mechanical exercise. It involved taking the smoke alarm from the ceiling, unscrewing the shroud to disconnect the wires and open the battery compartment, opening the back of the device so as to access the siren disc and then to mechanically manipulate it out. Finally, the red security lever which projected from the battery compartment had to be bent so that the alarm could be re-placed onto the ceiling bracket when absent a battery.
3. In Closing Written Submissions, the Defendant pressed that the Plaintiffs had failed to establish negligence and causation because the Plaintiffs had not proved who tampered with the loungeroom smoke alarm or that the tampering occurred before the Plaintiffs entered into occupation: T 557. 2 - T 558. 25. The Defence argument necessarily raised the tampering as a specific and alternative cause of the loungeroom smoke detector's failure to sound an alarm at the event of the fire. The argument raised, as a causal fact, a mechanical defect preceding the commencement of the Lease and the Defendant's inspection of the smoke alarms.
4. The Plaintiff protested that this defence was not pleaded: [T 585. 14]. In my opinion, in the circumstances of the Defendant having, by pleading, conceded his obligation to provide operational smoke alarms as a component of his duty to exercise reasonable care to provide premises which were reasonably fit for domestic human habitation; his obligation, in order to make that closing submission, was to plead that allegation of tampering. That is because the Defendant claims that the event of tampering rendered the Plaintiffs' case not maintainable. In effect, the Defendant alleges that illicit conduct by a person unknown is an excuse from liability. Also, the allegation of tampering is an allegation of a foreign cause of the accident by a human activity event, unknown and undiscoverable: Uniform Civil Procedure Rules 2005 (NSW) rr 14.14(2) and (3); Ciprijanovic v Schindler Lifts Australia Pty Ltd [2013] NSWSC 431 at [36] - [39]; Thorby v Goldberg (1964) 112 CLR 597 per Owen J at 617.
5. The Defence does not plead the fact of tampering as having occurred either before or after the Deceased and Tamara entered into occupation pursuant to the Lease on 14 February 2019. The Defendant pleaded a mere denial (Defence at [22]) and denials of failure to "adequately fit the premises with smoke alarm detectors" and "failing to take action to rectify any faults with the fitted smoke detectors" (SOC at [29]). That does not suffice: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 per Heydon JA (as his Honour then was; Mason P and Young CJ in Eq agreeing) at [26]-[30].

Onus of Proof - Tampering - Plaintiff Burden of Proof of Causation

1. Obviously, by the time of the hearing the parties were aware of the fact that the loungeroom smoke alarm had been disabled so that it was not operational prior to the fire, because the expert opinion evidence had identified that fact.
2. The Defence opened its case on the basis that but for the removal of the speaker from the alarm in the loungeroom, it would have worked because the alarm was hardwired to mains electrical power. That is, even though it did not contain a battery for backup power. Common ground is that power was on from the second day of, and then throughout, the occupancy of the Premises by Tamara, the Deceased and their children.
3. The Defendant's case is that, when inspected after the fire, expert witnesses found that the loungeroom smoke detector could not beep to indicate that it was receiving [low] battery power, or sound an alarm in the event of fire because the speaker had been removed: T 18. 33 - 43.
4. Counsel for the Plaintiffs opened by responding that the Plaintiffs understood the Defendant to assert that the tampering was performed by the Deceased or Tamara after the commencement of the Lease on 14 February 2019: T 10. 30. He then said: "That assertion is denied, if it be put to the plaintiffs.": T 10. 41. I note, that is not the argument ultimately made by the Defendant in closing the case.
5. In closing, the Defence argument specifically put that the Plaintiffs failed to prove the causal link between any negligence of the Defendant (if found) and their loss, because the Plaintiffs failed to prove who disabled the loungeroom smoke alarm by tampering with it: T 597. 34 - 42. Senior Counsel for the Defendant put at T 598. 4 - 6: "We simply don't know which side of the commencement of the tenancy the speaker was removed, and without that, in my respectful submission, the plaintiff must fail." He put that, on application of Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 principles (and I add that s 140(2) Evidence Act 1995 (NSW) would apply) to the standard of proof, and in the context of the fact that the prior tenant was disturbed by the alarm going off; the Plaintiffs failed, on the balance of probabilities, to establish that the prior tenant committed the grave act of tampering with the smoke alarm by removal of its speaker/siren. He argued "…that really is perhaps the critical issue in the matter. Was it removed before or after? No one knows. It can't be proved, therefore, sadly, the plaintiffs can't prove a case against the defendant.": T 602. 33 - 36.
6. In Closing Written Submissions, the Defence argument acknowledged that the Defendant had not, at any stage, pushed the "test" button on the smoke alarm to check if it was operational, but relied on the fact that evidence did not establish that the loungeroom smoke alarm could or could not sound its siren at that time, in this way (MFI 33 at [8.9] - [8.10]): "8.9 Even if the court were to find that the button ought to have been pressed, the court cannot be satisfied that had Mr Gause pressed the button, that it would not have simply sounded, thus having no causative relevance to the tragic Incident which occurred. This is because there is no evidence about how, or when the speaker disc was removed. Rather, the evidence is that: (a) The tenant prior to Ms Alderson and the deceased, Ms Proctor, recalled a working smoke alarm in the living room, which had a propensity to be triggered when the dryer was used and the hallway door was not closed; (b) This must mean that a speaker disc was present within the alarm at the time which Ms Proctor leased the property; (c) There could be no logical reason why, in the months following her tenancy, when the power was off and the property was vacant, that it would need to be removed; (d) There is otherwise no evidence to identify when the speaker disc which (sic) was removed from the living room alarm. 8.10 In circumstances where the court cannot identify when the speaker disc was removed, liability for the absence of the speaker disc cannot be visited upon [the Defendant]. The precautions taken by [the Defendant], were otherwise reasonable."
7. In Oral Closing Submissions, the Defence argued, "Has the plaintiff proved that when the tenancy started there was no speaker in the alarm?" (T 557. 3); that it was for the Plaintiffs to prove when the tampering occurred: T 557. 6; and (T 557. 12 - 31): "TURNBULL: … The plaintiff's case is that it's defective. I understand the plaintiff's case to be that the defendant should have reached up and pressed a button that your Honour took us to, or the words around it. I think that's the same button, and his case then has to be and that if Mr Gause did that, the alarm would not have gone off, indicating there was a problem with the smoke alarm. Now, that means that the plaintiff has to prove on the balance of probabilities that the speaker was not there when Mr Gause had the opportunity to press the button …"
8. In Closing Submissions, the Plaintiffs argued their case on the basis that the Defendant failed to satisfy his obligation to take reasonable care by inspection to ensure that the smoke alarms were working: T 565. 3 - 14. The Plaintiffs argued that if, at the commencement of the Lease, when tested, the smoke alarms were operating with mains power or battery power; then, on the balance of probabilities, they would have been operating at the time of the fire. The Plaintiffs pointed to there being no reason, on the evidence, for the Deceased or Tamara to have removed the loungeroom smoke alarm siren or battery: T 584. 35.
9. It was common evidence in the case that the loungeroom smoke alarm did not beep or sound its siren during their occupation of the Premises from the commencement of the Lease, including after connection of mains electrical power. And, therefore, as the Plaintiffs' Counsel argued, there was "no reason" for the occupants to have tampered with it, so as to have silenced it.
10. To my enquiry, Counsel for the Plaintiffs responded that disabling of the loungeroom smoke alarm by the Deceased or Tamara was not pleaded by the Defendant and that "it'd be always evidence called by the defendant that there was sufficient evidence that would break that causal connection.": T 585. 14 -15.
11. As was his evidence, closing arguments for the Defendant conceded that the Defendant chose not to "bother" to push the test button: T 561.45 - T 562. 15.
12. In my opinion, the Defendant mistakes who bore the onus of proof. Also, the Defence argument supposes the fact of disabling the alarm by tampering at the hand of the Deceased or Tamara, which allegation is not pleaded in the Defence, and Tamara gave direct evidence denying that proposition. Even if my conclusion that the Defendant is not permitted to make the argument because he failed to specifically plead the allegation (see [51] - [52] above) be wrong, the Defence submission misstates the Plaintiffs' burden of proof of causation.
13. The law and common sense normally attach great significance to deliberate human acts: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 29 - 31 per Lord Hoffmann (applied in Chappel v Hart (1998) 195 CLR 232 at [7] per Gaudron J, at [24] per McHugh J, at [63] per Gummow J, and at [93] per Kirby J).
14. The Defendant's duty at both parts of the obligation to provide operational smoke detector alarms and to exercise reasonable care by inspecting the alarms was called into existence because of the foreseeability of the very risk that an alarm was not operational. If that duty was not performed, and the risk eventuated; then, the Defendant is liable. That is the beginning and the end of the enquiry of whether or not breach of duty materially caused or contributed to the harm suffered: Chappel v Hart per Gaudron J at [8]. Her Honour, in that paragraph, continued: "As Dixon J pointed out in Betts v Whittingslowe (at 649), albeit in relation to a statutory duty, 'breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach'."
15. S 5D(1)(a) requires that the negligence be a necessary condition of the occurrence of the harm (factual causation). S 5D(1)(b) provides that it must be appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). S 5D(4) provides that, for the purpose of determining the scope of liability, the Court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. In this case, as will be seen in detail under the heading "Responsibility for the Smoke Alarms" below, the Defendant expressed to Tamara his acceptance of that scope of duty. In short, the Defendant's evidence was that, at the making of the Lease, he told Tamara that he would be responsible for certain things like hanging picture hooks and checking that the smoke alarms were operational: T 220. 35 - T 222. 35.
16. The Plaintiffs rely on the common evidence that the loungeroom smoke alarm did not make any sound during the tenancy, which is not just the evidence of Tamara, but also of the Defendant when describing his claimed inspections of the alarm after mains power was connected. There was absolutely no reason for anyone during the tenancy to have tampered with the alarm to silence the speaker.
17. My further factual findings and observations, which, to my understanding, have relevance are:

• As the Plaintiffs in closing submissions put it; logically, had the loungeroom smoke detector alarm sounded when the test button was pressed at the commencement of the Lease (or at any time prior to the fire), then, given Tamara's evidence that neither she nor the Deceased tampered with it, it would have sounded at the time of the fire.
• The Defendant's negligence, if found, in the circumstances, necessarily increased the risk of an occupant being harmed in the event of fire. The Defendant argues (quoted above at [58]) that his failing to press the test button had no causative relevance to the death of the Deceased. But, in my opinion, a failure to prudently inspect the smoke alarm by pressing the test button should not work in his favour by availing the Defence to argue, as it does, so that his negligence works to his advantage: Day v Rogers [2011] NSWCA 124 per Giles JA at [146].
• The Defendant's prior tenant, Ms Proctor, gave evidence of the smoke alarm sounding and indeed causing a nuisance to occupants during her tenancy. That is not evidence that the alarm was still working at the end of her tenancy. Her evidence was not that precise. In any event, I considered her to possess a poor recollection of the smoke alarms, other than of the experience of the loungeroom alarm sounding when her daughter would fail to open enough windows and to close the hallway to loungeroom door, when operating a clothes dryer. Ms Proctor said that, whilst her daughter was troubled by the loungeroom alarm "going off all the time" when she washed, Ms Proctor was not present the majority of the time. She was "up the road" caring for her ill mother and had to go back and forth between her mother's residence and the premises when her daughter set off the alarm: T 283. 35 - 284. 15. When, during the evidence, she was shown the subject smoke alarms, Ms Proctor said that she did not recognise them. She had no recollection of the procedure for replacement of their batteries. Whilst Ms Proctor's early inconsistent evidence was that she did replace the smoke alarm batteries, a screwdriver was required to open the battery compartment in order to replace the battery, but Ms Proctor said that she had no recollection of using a screwdriver.
• A person would only have had cause to remove the siren if the alarm was annoyingly beeping or sounding its alarm.

1. In the absence of direct evidence proving when the tampering did in fact occur, it is enough that the circumstance of silence of the smoke alarm from before commencement of the Lease and up to the fire, combined with Tamara's evidence that no one tampered with the smoke alarm during the tenancy, to raise a reasonable and definite inference that the tampering occurred before the commencement of the Lease. The inference is reasonably drawn and not mere conjecture or surmise: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 at [8] (per Dixon, Fullagar and Kitto JJ).
2. In Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182; [2012] HCA 5, the Court found it was not necessary for the plaintiff to point to evidence permitting an inference as to when the hot chip fell to the floor. It was sufficient for the plaintiff to prove that it was more probable than not that Woolworths' negligence was a necessary condition of her fall. The High Court rejected Woolworths' submission that it was necessary for the plaintiff to point to some evidence permitting an inference to be drawn concerning when the chip was deposited: at [34].
3. In the present case, all that is necessary for the Plaintiffs to discharge the onus of proof is to establish, on the balance of probabilities, in circumstances in which the evidence does not establish when the tampering occurred, that it did occur prior to the tenancy. That is the conclusion at which I have arrived. In my opinion, Briginshaw principles and s 140(2) Evidence Act do not stand in the way of reaching this conclusion because the issue is not whether or not a person committed a grave act. The cause and act of removal of the siren, and by whom, are unknown.
4. During Closing Written Submissions, Senior Counsel for the Defendant correctly put that the Defendant bore no onus to prove who tampered with the loungeroom smoke detector alarm and when: T 616. 20 - 25. He argued that the Plaintiffs alone bear the onus of proof of any fact relevant to the issue of causation: s 5E CLA. By finding on the basis of the evidence it to be established, on the balance of probabilities, that the tampering did occur prior to the tenancy, I have not employed any such reversal of the onus of proof such as to place upon the Defendant proof of when and by whom the tampering in fact did occur. The Plaintiffs seek to prove that the Defendant breached his duty to provide an operational smoke alarm in the loungeroom by the fact that the smoke detector alarm was found to be not operational in combination with his failure to have taken reasonable precautions by adequate inspection of it, at or prior to the commencement of the occupancy by Tamara and the Deceased of the Premises pursuant to the Lease.

Regulatory Code/Building Standard

1. The Defendant properly put in closing that the Defendant's duty did not extend to interconnecting the smoke alarms. The evidence in this case does not establish whether or not the loungeroom smoke alarm and the bedroom smoke alarm were interconnected.
2. It was common ground that there was no legislative obligation on the Defendant to install smoke alarms into the Premises, or that they be interconnected. I directed attention to Mr Munday's reference to the then current Building Code of Australia 2000, but as neither party referred to the Code in argument, I put consideration of it aside.

Operational Features of the Smoke Alarms

1. The expert witnesses Messrs Munday and Kelly agreed on how the smoke detectors indicated receipt of mains power, receipt of battery power and operational state. The experts came to their observations by not identical paths, in that, whereas Mr Kelly reported his observations from a process in which he transferred the power board of the loungeroom smoke alarm into an undamaged comparison unit (Exhibit 1 at [12.7]), Mr Munday observed the operation of the exemplar smoke alarm, Exhibit K. The exemplar smoke alarm was obtained from the Defendant's parents' home because it was undamaged and identical to the smoke alarms recovered from the debris following the fire: Exhibits 14 and 16.
2. Operational detectors displayed a green LED light to show mains electricity connection, a flashing red LED light to show operational state, and what is described in the evidence as a "chirp" or "beep" to indicate weakened strength of an in situ battery.
3. I have determined from consideration of the evidence of Messrs Munday and Kelly:

• on a smoke alarm, with no mains electrical power and when operating properly under battery power only, the green LED light would not be illuminated, and the red LED light would flash at approximately 10 second intervals (Mr Munday Report - Exhibit B at [14]; Mr Kelly did not test or comment);
• on a smoke alarm, with mains power only (battery flat or absent), the green LED light would be constantly illuminated, the red LED light would flash at 10 second intervals, and the alarm would beep at 40 to 60 second intervals (Mr Monday Report - Exhibit B at [15]; Mr Kelly Report - Exhibit 1 at [13.4]);
• on a smoke alarm, with mains power connected and a weak but not flat battery, the green LED light would be constantly illuminated, the red LED light would flash at 35 second intervals progressing in frequency to 10 second intervals as the battery depleted to flat (insufficient power for operation), and beep at 45 second intervals progressing in frequency to 30 second intervals when the battery was flat, which frequency of flashing red LED light and beeping would continue with the flat (just as it would for an absent) battery (Mr Munday did not test or comment; Mr Kelly Report - Exhibit 1 at [13.3] - [13.4]);
• on a smoke alarm, with both mains power electricity and a charged battery, the green LED light would be illuminated constantly, the red LED would flash at 60 second intervals, and the alarm would be silent (Mr Munday Report - Exhibit B at [16]; Mr Kelly Report - Exhibit 1 at [10.3]); Note: Messrs Munday and Kelly both timed the red LED flashing light of the Exhibit K exemplar alarm when receiving both mains and battery power but came to 40 second and 60 second measures of the frequency respectively. The Clipsal product manual states 60 second intervals: Exhibit B, Appendix B. In Exhibit D, Joint Report, the experts agree 60 second intervals.
• on a smoke alarm, without mains power or battery power (battery flat or absent), the smoke alarm would be dormant - there would be no green or red LED light and it would not beep;
• on a smoke alarm, with mains power only, battery power only, or both mains and battery power - when the test button is pressed the smoke detector will activate its siren alarm and the red LED light will flash at an interval of one to two seconds (Mr Munday Report - Exhibit B at [14] - [16]); and
• on a smoke alarm, with the siren speaker removed and whilst powered - pressing the test button will result in the red LED light flashing at one to two second intervals but no sound will be emitted (Mr Munday Report - Exhibit B at [17]).

1. The common expert observation of the smoke alarm from the loungeroom (Exhibit 14) is that post-fire inspection and testing showed that it was in the "active alarm state", with its red LED light flashing at one second frequency but that it could not emit sound because the speaker had been removed.
2. The expert opinion evidence ([78, second dot point] above) when read with the Clipsal Product Manual (Exhibit B, Annexure B) establishes that the smoke alarm situated in the loungeroom whilst receiving mains power, had it contained its siren but no battery or a flat battery prior to the fire; would have emitted an audible warning beep at intervals of approximately 60 seconds and the red LED light would have flashed at 10 second intervals.
3. The red and green LED lights, as they would have appeared prior to damage to the subject smoke alarms, are shown in Mr Kelly's Report: Exhibit 1 - Photo 1, Page 16. The red LED light is the much larger light, and the green LED light is the smaller of them. Constant illumination of the green LED light would indicate only that mains power was connected. Flashing at 60 second intervals of the red LED light would indicate that it also contained a charged battery. But, importantly, red 60 second flashing would indicate that the smoke detector was operational.
4. If operational, the red LED light would flash rapidly when the smoke detector device went into alarm mode, and the rapidly flashing red LED light and pulsating loud alarm from the siren would continue until the air cleared: Mr Kelly Report - Exhibit 1 at [10.3]; Joint Expert Opinion Report - Exhibit D, Answer 7(a); Simultaneous Expert Oral Evidence, T 297. 1 - T 298. 1.
5. Neither in their report evidence, nor during oral evidence, did the expert witnesses comment on the scenario in which either of the alarms they examined, whilst powered, was not displaying the red LED light. The evidence of observation of the alarms during occupation of the Premises by Tamara, the Deceased and their children, including the evidence given by the Defendant and by Tamara, does not mention that the red LED light was at any time seen to be illuminated on either smoke alarm (T 164. 10 - 40; T 177. 6 - T 178. 25; T 96. 15 - T 96. 26).

Evidence of Inspection

1. Common evidence is that, at the commencement of the Lease, on 14 February 2019 the Defendant, in company with Tamara and Narelle, only observed the physical presence of the smoke alarms during a walk through whilst completing the Condition Report and that the alarms were quiescent of lights and sound.
2. Defendant's evidence-in-chief at T 164. 10 - 40: "TURNBULL: Q. As part of the process of doing that, did you, in fact, carry out an inspection of the premises each time you had a new tenant? [note: "that" was a reference to completion of the Condition Report at commencement of a Lease]. GAUSE: A. Yes. Q. When you did that, did you have an inspection of the fire alarms of which you've given evidence? A. Yes. Q. What were you looking for when you looked at the fire alarm, Mr Gause? A. I would look for a green LED to indicate they were powered up. Q. Green LED‑‑ A. Light. On the ceiling‑‑ Q. What did you understand the green LED meant? A. That means that there's AC power connected. Q. Mains power. A. Mains power connected, yes. Q. What else were you looking for when you were inspecting the fire alarms? A. That they were obviously physically present, and there was no audible beep to indicate any issues with batteries because they were battery backed up. Q. Let's just stop there. So you listened for an audible beep. If you'd heard an audible beep, what did you understand that was telling you? A. It indicates that the internal battery could be low, or is low, is low. Q. How often did the beep go off if the internal battery was low, roughly? A. Typically every minute." … At T 177. 6 - T 178. 25: "TURNBULL: Q. When did you next go to the property? GAUSE: A. Approximately a week or so later, approximately. Q. Why did you go there? A. To sign Centrelink paperwork for Tamara. Q. Had she contacted you? A. Yes. … Q. Did you make an observation of the alarm in the living room of which you've given evidence? A. Yes. Q. What was your observation there, Mr Gause? A. That was on the ceiling. It was - I walked over to it. It was powered up, had the green LED light on, and it was making no audible sounds. Q. How long were you in that room for? A. About five minutes. … Q. You told his Honour that you saw the green light. A. Yes. Q. Was it flashing or just on? A. Solid, on. Q. You heard no sound in the time that you were there. A. No. Q. What did that tell you, Mr Gause? A. That told me that the battery within the unit was okay. Fine. Q. What did the green light tell you, if anything? A: The AC mains are applied to the smoke alarm. HIS HONOUR: Sorry, I missed something. What told him the battery was okay? TURNBULL: It wasn't making a noise, your Honour. Q. Did you go and check the alarm in the bedroom? A. No. Q. Why not? A. Because by then they had moved in. They had all their private possessions in there and I didn't want to intrude on their private space."
3. This evidence reveals the focus of the Defendant when he inspected the loungeroom alarm. The red LED light indicator of whether or not the smoke detector alarm was operational, and whether or not the battery was weak, was not noticed. The Defendant's observations occurred before and after mains power was connected.
4. In closing oral submissions, Senior Counsel for the Defendant agreed that neither Tamara nor the Defendant saw the red LED light flashing or illuminated at any time. He said that my above-described consideration did not infer anything of the operational state of the smoke alarm because, firstly, Tamara's recollection is not reliable - Senior Counsel pointed to her being wrong in her evidence about there being a single alarm in the Premises when there were two alarms and, secondly, because the red LED light flashed at approximately 60 second intervals and "So you can stand there and look up at the thing for 30, 40, 50 seconds and not see it flash. That's not what [the Defendant] was interested in. We know from the evidence that if the mains power was connected, and he said it was because of the green light's on, and that's consistent with the expert evidence, that if there was a problem with the battery a sound would occur.": T 611. 32 - 43; T 613. 1 - 10.
5. I do not accept the Defence submission concerning periodicity of the red LED light flash because it is against the Defendant's own evidence (quoted above) that he was inspecting the loungeroom alarm for "About five minutes". Indeed, it is against common sense to propose that the red LED light was flashing at 60 second intervals when on not one, but during two inspections the Defendant said that he made, he did not see it. That is not a likely scenario. A further point is that because there was no battery in the loungeroom alarm; then, the red LED light ought to have been flashing at approximately 10 second intervals.
6. The Defendant said that he was concerned that the batteries may have lost power during the "long time" mains power had been disconnected preceding the tenancy: T 242. 27 - 39; T 254. 45. In fact, in post-fire testing, the experts found that the battery in the bedroom alarm carried almost no charge and they could not determine whether or not its power was sufficient to operate the alarm.
7. However, the Plaintiff ultimately did not put its case on the specific basis that the Defendant failed to observe the red LED light, which ought to have informed him that the loungeroom alarm was not operational, and, as I have noted, the expert witnesses were not asked to make specific comment on. Because the Plaintiffs did not put their case on that basis, I do not take the Defendant's omission to inspect the red LED light as a particular of negligence. Nevertheless, that his description of his inspections plainly shows that he did not look for and take notice of whether or not the red LED light was flashing and, if so, at what frequency, is evidence of the content of his inspection of the alarms.
8. In closing oral submissions, counsel for the Plaintiff did correctly put (T 613. 33 - 43), and it is the Defendant's evidence quoted above at [84] that the Defendant elected only to look for the green LED light.

Responsibility for the Smoke Alarms

1. On 14 February 2019, at the making of the Lease, the Condition Report (Exhibit G) was completed by the Defendant in his handwriting and his entry of ticks. Tamara entered ticks in the column headed "Tenant Agrees".
2. At the section "SECURITY/SAFETY" and specifically for "smoke alarms" there are no ticks. The Defendant did not enter a tick in the column headed "WORKING". The Defendant wrote beside the columns where ticks would have acknowledged satisfactory inspection of smoke detector alarms: "LANDLORD TO ARRANGE". There is no tick entered by Tamara as would communicate her acknowledgement of satisfactory inspection of operational smoke alarms. The Defendant's evidence was that he wrote those words during the inspection with Tamara and Narelle when he informed them that he would return to check the batteries of the smoke alarms after the mains power had been reconnected.
3. Mains electrical power was not connected until the next day, 15 February 2019.
4. As the above analysis of the expert evidence shows, in the absence of mains electrical power, the smoke alarms, if powered by battery and operational, would have shown a red LED light flashing at 10 second intervals. If the battery was weak, operational smoke alarms would have beeped at 30 to 45 second intervals so long as the battery was not flat. It follows that the smoke alarms being dormant (quiescent of lights or sound) indicated that there was no mains and no battery power if the smoke alarms were operational.
5. During evidence-in-chief, the Defendant said that between January 2018 and February 2019, that is, between the prior tenant Ms Proctor vacating the Premises, and the Deceased and Tamara entering into the Lease, he visited the Premises from time-to-time whilst it was vacant. His evidence was that, on those occasions, he knew that mains power was disconnected and observed that there was no green LED light because of that. His evidence was that there was no audible beeping. He concluded that the absence of audible beeping meant that the battery was still fine: T 169. 19. But, (I repeat) in cross-examination, he conceded that on 14 February 2019 he was concerned as to the strength of the batteries: T 242. 28 - 39; T 254. 44 - 50; T 255. 1 - 2. As was his evidence (quoted at [85] above) and conceded by the Defence in closing submissions, the Defendant did not "bother" to look for the red LED light.
6. Tamara's evidence in-chief was that during the inspection and completion of the Exhibit G, Condition Report, the Defendant told her that the Premises had not been tenanted for 12 months and he was unsure whether or not the smoke alarm was operational: T 47. 40. When in cross-examination, Tamara was taken to the Defendant's writing of "LANDLORD TO ARRANGE" in regard to smoke alarms in the Condition Report. It was put to her that at the time of completion of the Condition Report:

• the Deceased's father John was not present - Tamara answered that he was: T 92. 30;
• mains power was not connected to the Premises - Tamara answered (wrongly) that it was: T 92. 35; and
• during the discussion, the Defendant said words to the effect: "I can't check the alarms because the power is not on" - Tamara denied that: T 92. 45.

1. The Defendant did not, having seen the person he understood to be an Ausgrid worker making connection of the electricity on 15 February 2019, then promptly return to the Premises to check the smoke alarms, as he had, on his evidence, informed Tamara and Narelle he would do.
2. When Tamara was asked during evidence-in-chief specifically, Tamara said that her conversation with the electricity company was at about 10:30am (T 48. 10) and the reason that she understood the power was on was because when she telephoned the electricity retailer, she "asked them when they thought it would be on and they informed me it was already on." (T 49. 10). That evidence was admitted as Tamara's recollection of her understanding of what she was informed, but not as truth of the fact of whether or not mains electrical power was connected to the Premises at 10:30am on 14 February 2019. Plainly, Exhibit 25 and Exhibit 26 show she was confused. Tamara's evidence was that she did not attempt to use electricity in the Premises until herself, John, Narelle, and the Deceased had moved all of the refrigerators and the washing machine into the Premises at around noon: T 50. 10 - 18.
3. In my assessment, the most reliable and complete oral evidence of 14 February 2019 was that given by John. I prefer his evidence because his detailed recollection of events related happenings to what he could clearly recall doing at the time, and because he was willing to make sensible concessions of errors of recollection (see [35]-[36] above) and admissions against self-interest.
4. John's evidence was that on 14 February 2019, and as he described it with a clear and confident recollection, he reversed a first trailer load onto the driveway of the Premises and saw, at the stairs leading to the front door, the Deceased and the Defendant. He recalled that the Deceased was standing on the stairs and the Defendant was standing on the pathway. He recalled that there were three stairs and a platform to the front door. That evidence meets with the descriptions of the Premises. His clear recollection of where the Deceased and the Defendant were standing is persuasive of the accuracy of his recollection of the conversation he then heard (T 128. 9 - T 129. 11; T 142. 17 - T 143. 29): Evidence In-Chief at T 128. 9 - T 129. 11: "CAMPBELL: Q. At the front door. J HEAFEY: A. Yes. Q. James is below on the-- A. Down at the bottom, and then Bradley was on either the second stair or - I can't exact - well, apart. Then what happened? [Note: Transcript error - this was a new question]. A. James said to Bradley that there's - no one's been in the house for two years. "I've got to come back and check the smoke alarms." Q. Then what happened? A. I was - went and started unstrapping, or there was a bit more unstrapping and - and started to move the furniture in. Q. Did you see Tamara at that time? A. Yeah. Tamara was on the phone, walking round the front yard and that. And then she walked from the front yard down to the side to the meter box, and then done something in the meter box. And then-- Q. When you saw that, your trailer had been reversed up the driveway. I think you said. A. Yes. Q. Correct? A. Yep. Q. The meter box is at the-- A. Back of the trailer, yeah, down the side of the house. Q. On the driveway side of the house. A. Yes. Q. Just as you get to the house. Just beyond the corner of the house; correct? A. It is, yep. Q. Then what did you do? This is on the day that you were moving in. A. Yep. We unloaded the furniture and put it all inside and that, the first trailer. Then we - me, Bradley, Tyson and Corey hopped in the car. I - we drove up to Thornton to pick up a lounge from Thornton..(not transcribable)..that and then drove, come back. Unloaded the trailer and put that inside the house. And then we went back home to get more furniture. Q. When you're inside the house on that day-- A. Yep. Q. --did you notice anything in particular? A. Yeah. The only - walking the house, as I said we'd done - I'd done probably 10, 12 trips inside the house carting furniture in that afternoon. The only thing I seen that was a smoke alarm was in the hallway. I did not see any other - those - the photos - no. I did not see any of those. Q. So you saw one smoke alarm-- A. In the hallway." … [Note: I have found this evidence of a single alarm in the hallway to be inaccurate.] Evidence in Cross-examination at T 142. 17 - T 143. 29: "TURNBULL: Q. You went inside the house. J HEAFEY: A. Yeah. Q. You say that they were moving in-- A. Yes. Q. -- on that day. A. Yep. Q. Was the electricity connected, do you know? A. Well, I seen - I didn't get to see the power on, but they stayed there that night. They stayed there that night. I didn't see if the - I didn't check the power. I didn't check nothing. Q. Is the answer to my question, you don't know? A. No. Don't know. Q. The fire alarm that you saw, when did you first observe that? A. As I was walking - carrying the furniture into the house. Q. What drew your attention to it, Mr Heafey? A. A bit - as a - being a foster parent, and we get checked out every 12 months by the DOCS, when you hear that smoke alarms weren't working, you had a bit of a glance where - when I - when I heard the - overheard the conversation earlier with James [the Defendant] and Bradley [the Deceased] and that about, the fire alarm wasn't working that afternoon-- Q. Sir, the evidence you gave when my learned friend asked you was that James Gause [the Defendant] said, "No one's been in the house for two years. I have to come back and check the smoke alarm." A. Smoke alarm, yes. Q. He didn't say they weren't working, did he? A. Well, like, didn't say they weren't - I'm sorry..(not transcribable).. Q. I'm sorry? A. I didn't - sorry about the - saying, well, that-- Q. That was wrong when you said-- A. Yeah. Q. --that there was a conversation when he said they were not working. That never happened, did it? HIS HONOUR: I don't remember that being his evidence. TURNBULL: His evidence was - and he's just agreed with it, your Honour - "James said, 'No one has been in the house for two years. I have to come back and check the smoke alarm.'" But nobody said it was not working. HIS HONOUR: I thought you put to him that his evidence earlier was that they weren't working. TURNBULL: No. Sorry, your Honour. We're at cross purposes. Q. You never heard a conversation where Mr Gause [the Defendant] said-- A. They weren't-- Q. --"The smoke alarms are not working." A. Sorry, no. Q. Is that correct? A. Yes, yes, yeah."

The Defendant's Failure to Perform the Usual Test

1. The Defendant's Closing Written Submissions (MFI 33 at [8.4]) do not press that the smoke alarms were interconnected.
2. In an email after the fire, the Defendant informed Fire Inspector Schweickle that the "house had two working ionising type smoke detectors which were 'hard wired' to 240VAC with internal battery backup." On the evidence in the case, that last statement to the Inspector, that the smoke detectors were working, being both hard wired to mains electricity and with backup batteries, can only have been based on his assumption. This is because the evidence in the case shows that at none of the inspections performed by the Defendant of the alarms, after the commencement of the prior tenancy to Ms Proctor in January 2018 up to the event of the fire, had he pressed the test button on either alarm or observed any function of the smoke alarms except the illumination of the green LED light to confirm that mains power was connected.
3. As I observe at several places in these reasons, the Defendant did not ever check for illumination of the red LED light. As his case was put in closing, the Defendant chose not to look for the red LED light. That was the light which indicated whether or not the alarm was operational, according to the expert opinion evidence.
4. No one ever heard a beep. Importantly, smoke detectors showing illuminated green LED lights, but being silent, might be not operational. The illuminated green LED light indicated only that mains power was being received.
5. On each smoke detector, written around the red LED light, which doubled as a test button, were words in small print, "HOLD TO TEST WEEKLY" and "PUSH TO HUSH": see Exhibit K. The Clipsal instruction manual read (Exhibit B, Appendix B): "OPERATION AND TESTING … Test the alarm by pushing the HUSH/TEST button for 5 seconds. The alarm should sound simultaneously. This test should be done at least once a week to ensure that the alarm is operating correctly."
6. The Defendant did not perform that standard test at the commencement of or during the tenancy. He had performed the check of function by pushing the test button on prior occasions at the commencement of other tenancies. That test would have initiated the alarm (the siren to sound), had the device been operational.
7. The smoke alarms in the Premises were 17 years old. The Defendant said that he was not aware that the manufacturer, Clipsal, recommended their replacement every 10 years. The instruction manual included the following warning of the limitations of reliability of the smoke detector alarms: "SMOKE ALARMS HAVE LIMITATIONS The Clipsal Lifesaver Series Smoke Alarm is not fool-proof and is not warranted to protect lives or property from fire. Smoke Alarms are not a substitute for insurance. In addition, it is possible for the Smoke Alarm to fail at any time. FOR THIS REASON YOU MUST TEST THE SMOKE ALARM WEEKLY AND REPLACE EVERY 10 YEARS"
8. Because of tampering, which included the removal of its speaker, at an unknown time, in unknown circumstances and by unknown persons, the loungeroom smoke detector was totally disabled from sounding an alarm in the event of fire. The Defendant failed to perform the regular test of whether or not the fire alarms were working by pushing the test button. He was familiar with that test: see his evidence extracted at [123] below.
9. The Defendant only inspected the loungeroom alarm to observe that its green LED light was illuminated, indicating its receipt of mains power. The Defendant assumed absence of a beep indicated battery presence and battery power in regard to the loungeroom alarm, when absence of a beep could be and, in fact was, a symptom of the alarm being not operational.
10. He only inspected the loungeroom alarm to see that it was receiving mains power (illumination of the green LED light). His inspection of the loungeroom alarm, by his choosing to limit it to looking for the green LED light and listening for a beep, was an inadequate test of its battery power. This is because, even had it been operational, as he assumed it to be, the frequency of the red LED light flashing would have indicated a weak or absent battery power. He did not look for that. In short, the Defendant did not inspect or test at all whether or not either alarm was operational. I repeat, I refer only to his choosing not to look for the red LED light to complete my observation of the evidence of his focus and the content of his inspection.

Defendant Credit - his Test Button Concession

1. For a long time before the Lease under which the Deceased and Tamara commenced the tenancy, the Defendant knew to test that the smoke alarms were operational by pressing the test button and had in fact done that over the years. He knew to press the test button to check that the smoke detector was operational and that if it was, then its siren would sound: T 196. 1 - T 198. 50. He understood that, on pressing the test button, an alarm would sound if it had either battery or mains electrical power or both and was operational: T 197. 39 - 49.
2. During cross-examination, his evidence was that it was his practice to test the smoke alarms were operational by pressing the test button at the commencement of each tenancy and that he had done so since 2002: T 198. 40 - 50. But, before that concession, when he was asked whether or not he had pressed the test button to check that the smoke alarms were operational before the commencement of the subject Lease to the Deceased and Tamara, he at first responded indirectly, with a question as to when, and then responded that he could not recall performing that standard practice of pressing the test button to check if the alarms were operating correctly. His evidence was (T 197. 49 - T 198. 24): "CAMPBELL: Q. Just, I don't want to - I want to be fair to you. I don't want to - when do you say that you've tested any alarms in this property by pressing the button? GAUSE: A. When have I done that? Q. Yes. A. At some point in - during my ownership of the property while alarms are installed. Q. Would it be - did you do that before Ms Alderson and Mr Heafey moved in, in 2019? A. At what time, immediately? Q. Immediately before? A. No, I don't know. I can't recall doing it. HIS HONOUR: No what? What came after no? CAMPBELL: I can't recall doing that. Q. That would have been a way to test the alarms, I want to suggest to you, even if the power was off. Would you accept that? A. If the power had been off, that could be a way to check it. Q. All right. A. But the power was not on, so it made sense to wait till the power come back on." [Note: with mains power off but with battery power, an operational alarm would have sounded]
3. As I listened to this evidence, I was concerned that the first part of the Defendant's response, when faced with the obvious proposition in the question that he had not, in evidence to that point, described pressing the test button at the commencement of the subject tenancy. His response "at what time, immediately?", was stalling or searching for the best answer in his own interest. The question had described the time as "before Ms Alderson and Mr Heafey moved in, in 2019". That was plainly sufficiently specific given his understanding that this case was about whether or not the alarms were functioning properly and his inspection of them for the occupancy of the Deceased and Tamara. Then when it was put to him that he was being asked about "immediately before" the commencement of the tenancy, he appeared to me to realise that he had nowhere to obfuscate in his answer. He was aware that evidence he had given in a deliberate fashion throughout the hearing to that point, before this topic of the test button was put to him in cross-examination, included only looking for the green LED light and listening for the beep and that he had not mentioned pressing the test button. By the time of the hearing, he was aware that the smoke alarm he said he located at the rubbish tip, and was the alarm from the loungeroom, did not have a speaker. From his evidence, he was aware that, had he pressed the test buttons, the loungeroom smoke alarm and the bedroom smoke alarm, if in operational condition, would have remained silent only if both mains power was not connected to them and the batteries were flat. He knew that, otherwise, if either did not sound its siren alarm, that meant it was not operational even with power.
4. At the commencement of the Lease on 14 February 2019, it was his established practice to press the test button "to see whether the alarm is working with a battery and an audible speaker": T197. 49; 198. 2; 199. 2. As I heard his answers (T 198. 20) that pressing the test button "could be a way to check" even if the mains power had been off and (T 198. 23 - 24) that "it made sense to wait till the power came back on", I considered him to deliberately limit and compromise the significance of his omission to press the test button given his evidence (T 196. 1 - 198. 5) because he was aware that pressing the test button was the appropriate test if he wanted "to make sure that [a smoke alarm was] working", whether or not it was receiving mains power. It occurred to me that his answer was both manufactured and obfuscating so as to avoid answering against interest.
5. The latter answer "no, I don't know. I can't recall doing it" (T 198. 12) was given when he knew pressing the test button was the regular test procedure and he had omitted to perform that simple test. During his evidence in-chief, he had not mentioned pressing the test button (see [123] above).
6. If the Defendant was giving truthful and frank evidence in chief of his inspections of the alarms in the Premises at the commencement of the tenancy, his inspection of the loungeroom alarm approximately one week later when he attended to sign Centrelink documents for Tamara and, finally, at the time of his subsequent attendance when he looked at the smoke alarm; then, his evidence does not explain why he did not, during any of those attendances, press the test button or even take notice of whether or not the red LED light was flashing.
7. Tamara said that the Defendant came about two weeks after they moved in to sign the documents but "he did not step foot in the house": T 95. 44.
8. On the whole of his evidence of testing the smoke alarms and his understanding of testing for whether or not they were operational, there was no logical reason on 14 February 2019 to wait for the mains power to be connected before pressing the test button, as he said he did. Indeed, his evidence is that he did not press the test button when he checked the loungeroom alarm after mains power was connected.
9. These observations of the Defendant's answers to questions asking why he did not press the test button gave me the impression that he was unwilling to give answers which might be against his interest and that this was in contrast to his methodical, almost mechanical answers during examination-in-chief concerning his inspections of the smoke alarms.
10. Taking his evidence of his inspections of the smoke alarms at its highest, he in fact only checked whether mains electrical power was being received and only in regard to the loungeroom alarm. He chose not to check that the smoke alarms were operational.
11. As already observed, the parties contested what was said by the Defendant in the presence of Tamara and Narelle during the completion of the Condition Report and subsequently to the Deceased in the presence of John at the steps to the front door. But the underlying common ground is that, at the commencement of the Lease on 14 February 2019, the Defendant did not perform any inspection of the smoke alarms to check whether or not they were operational.
12. In my opinion, the Condition Report (Exhibit G) is significant. The safe course is to place primary emphasis on it as contemporaneous, objective evidence of what was then done and what was communicated at the time. The Condition Report is consistent with the other evidence that the Defendant did not inspect the alarms for their operational condition. The Condition Report entry made by the Defendant does not corroborate his oral evidence, that having written "LANDLORD TO ARRANGE", he told Tamara and Narelle and subsequently the Deceased in the presence of John, that he would return to check the smoke alarm batteries when the mains power was connected. My finding persuasion in the Defendant's entry "LANDLORD TO ARRANGE" in the Condition Report in my assessment of the credit of the Defendant's evidence and in my preference for the credit of the evidence of Tamara, Narelle, and John over the evidence of the Defendant, also meets with that inherent probability.
13. On his own evidence, he was well aware on 14 February 2019 that the smoke alarms could be checked for battery power and for operation even if mains power was not connected. He knew then that all he had to do was press the test button on each smoke alarm.
14. The evidence given by Tamara and John is consistent with the Defendant's notation "LANDLORD TO ARRANGE". They said that he informed them on 14 February 2019 that the Premises had been untenanted for 12 months and he was unsure if the smoke alarm[s] were working or not: Tamara at T 47. 40; T 49. 40 - 50; in cross-examination at T 92. 44; and John at T 128. 15. The Defendant may well have also said in the course of conversation that he would return to put batteries in the smoke alarms. Narelle recalled overhearing him speaking to that effect to Tamara (T 103. 35 - 104. 5) but Narelle was not present for the whole conversation between the Defendant and Tamara concerning his return to attend to the smoke alarm. Her evidence was that she overheard part of their conversation as she passed by whilst moving furniture through the Premises.
15. On the whole of the evidence, however, including that the Defendant in fact did not inspect the smoke alarms except for their physical presence; he wrote "LANDLORD TO ARRANGE" as was his practice in relation to those items in the Condition Report list for which he would provide and maintain.
16. I am satisfied that the Defendant was aware that he had not checked whether or not the smoke alarms were working at the commencement of the Lease.
17. Regardless of what was said, it was never reasonable for the Defendant to ignore such a simple to perform test of pushing the test button to check that the smoke alarms were operational and to assume that, if they received mains power, then they would work.
18. As I have already observed, he did not re-attend to check the alarms on 15 February 2019 when, on his evidence, he saw the man wearing a high visibility shirt attend the meter box and understood that mains electricity had been reconnected. Tamara said that the Defendant was frequently next door at his mother's house prior to the fire but that he did not stop in: T 96. 30. Again, in accordance with the generally credible nature of her evidence, Tamara readily conceded that whilst she was a little worried about whether or not the smoke alarm in the Premises was working because she saw no lights on it and because she had two young children in the Premises, she did not call the Defendant to come and fix it (T 96. 25 - 45) but that she did approach him when he was at his parents' home next door and asked him when it was that he was going to come over and replace the battery, but he never did: T 96. 30 - T 97. 5. When asked in cross-examination whether or not the Deceased knew how to replace the smoke alarm battery, Tamara said that he did not (T 97. 10) and that the Defendant had said that he was going to fix it up (T 97. 13,). Her evidence was that they were relying on the Defendant to ensure that the smoke alarm was working including in regard to if it needed a battery: T 97. 30. Her evidence is readily acceptable, not just because she impressed me as being a credible witness in general, but because it fits with my above-stated understanding of the other evidence of the Defendant having communicated that he would do so. Tamara's references to "alarm" in the singular are consistent with that inaccurate part of her recollection, as I earlier found. That is not, in my assessment of her evidence, good reason to reject other parts of her evidence.
19. It was never put to Tamara that the smoke alarms could in fact not be tested when not connected to mains power, nor could it properly have been. Tamara and the Deceased relied on the Defendant for provision of operational smoke alarms.
20. Exhibit 13 is a collection of text messages, one of which sent by the Defendant to the Deceased on 16 February 2019 informed that the Defendant had not only organised an online account for the bond but that he "… also got a couple of smoke detector batteries". That text message is another contemporaneous record and objective evidence of that landlord/tenant relationship. It is consistent with the Defendant's (conceded in oral evidence) concern that the smoke alarm batteries might have been flat and required replacement. Given my concern as to his credit, I reject his oral evidence regarding that text message so far as it might be inconsistent with my finding of fact that the Defendant's inspection of the smoke alarms did not in any way indicate that they were operational, but rather that they were entirely dormant and might have been not operational.
21. My approach to the evidence in this way is orthodox: Effem Foods Pty Ltd t/as Uncle Ben's of Australia v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 at [15] - [16].
22. My conclusion is that the evidence establishes, on the balance of probabilities, that the Defendant, on 14 February 2019 and during his inspections of the loungeroom smoke alarm subsequently, chose not to inspect the smoke alarms at all other than to observe that they were present in the Premises and that mains electrical power was connected. He did not check whether or not the smoke alarms were operational and in working order. Indeed, at the commencement of the Lease, when he suspected that the backup batteries might have dissipated power over the long period of more than one year since the Premises had been tenanted, he chose not to bother to push the test button, even though he knew it would cause smoke detectors to sound their alarms if they were operational and had battery power. It occurred to me, on his evidence, that he merely assumed that the smoke alarms would work when mains power was reconnected.

Duty of Care and Risk

1. The Defendant did not contest the reasonable foreseeability of the risk to lawful tenants within the premises, including the Deceased, of injury or death from fire. The Defendant conceded the need for "appropriate working smoke detectors": SOC at [23]. In the Defence it was put: "… [the Defendant] was cognisant of the importance of functioning smoke detectors and of the safety requirements relating to smoke detectors within residential properties" and that "he took reasonable precautions prior to the fire on 8 April 2019 to ensure that the premises were safe for those residing there pursuant to the Residential Tenancy Agreement": Defence at 20 and (b).
2. In closing written submissions, the parties agreed that the relevant risk of harm was "a risk of harm from a fire, including severe burns or death": Defendant Closing Written Submission, MFI 33 at [2.6]; Plaintiff Oral Submission, T 565. 15.
3. The Defendant as the landlord letting a domestic premises to the Deceased and Tamara for occupation by their family, owed a duty to the members of their household to take reasonable care to avoid foreseeable risks of harm to those persons, having regard to all the circumstances of the case. The duty extended to dangerous defects but was not limited to them. Reasonable care, in all the circumstances of the case, is the benchmark of negligence law: Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 per McHugh J at [100] with reference to Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. Implicit in the proposition of reasonable care is that, when letting the Premises to the Deceased and Tamara, it was reasonably required, as is usually the case, that the Defendant as landlord would cause an inspection by himself or an agent with the expertise required for performance of the inspection to assess the safety of the Premises: Jones v Bartlett per Gleeson CJ at [19]; per McHugh J at [103].
4. In the present case, the smoke alarms, by design, including the test button, offered an easy to be performed check that they were operational and in working order. In circumstances of mains power not being connected, that simple check, performed by pressing the test button, would also inform whether or not the smoke alarm was without battery power. In circumstances of where the smoke alarm was without mains power and battery power, replacement of the battery before (again) pressing the test button was the simple test to be performed to check that the smoke alarm was in operational and working order and would sound its alarm.
5. The risk of a faulty smoke alarm was discrete or hidden, which made the Defendant's duty to perform the inspection more onerous, warranting a higher level of care than it might have been for a kind of obvious and less dangerous risk: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 per French CJ and Gummow J at [43].
6. In Closing Written Submission (MFI 33 at [2.5]) the Defendant accepted that it owed a duty of care to the Deceased, as owner and landlord of the Premises, extending to foreseeable risks of injury. That duty was owed to all occupants. The Defendant did not, in closing, rely on terms and conditions of the Lease, save that at [6.12] the Defendant conceded that whilst clause 16.4 of the Lease provided that it was the tenants' responsibility to replace batteries for smoke detectors, the Defendant told Tamara that if there were issues, she should let him know. I have found that the Defendant completed the Condition Report writing "LANDLORD TO ARRANGE" because he adopted responsibility for the smoke alarms. In any event, that term of the Lease does not deal with the problem of a smoke alarm which was not in operational and working order, as was the state of the loungeroom alarm; nor does the term of the Lease shift to the tenant the obligation of inspecting the smoke alarms for their operational and working order. It preserves the landlord's obligation to make sure that the Residential Premises were fit to live in and in a reasonable state of repair, considering their age (condition 18 of the Lease - Exhibit F).
7. At the commencement of the Lease, on the completion of the Condition Report, the Defendant expressly entered into a relationship with Tamara and, through her, with the Deceased, that he would check that the smoke alarms were operational and in working order and that if any inspection or maintenance of them was required, such as replacement of the battery, he would perform that. Indeed, in oral evidence the Defendant conceded that he had an obligation as a landlord to make sure the alarms were in proper working order prior to commencement of the Lease (T 219. 45 - 220. 2) and that because he did not check for that on 14 February 2019, he would return to check that they were in operational and working order when mains power was connected: T 219. 45 - 220. 2.

Breach

1. At Statement of Claim [23] - [29], the Plaintiffs included particulars of failing to adequately fit the Premises with smoke alarm detectors, routinely inspect the Premises so as to identify foreseeable risk, failing to take action to rectify any faults with the fitted smoke detectors, failing to change the batteries in the smoke alarms in a timely fashion whilst the Defendant knew or ought to have known the foreseeable risk associated with the need of working smoke detectors, the risk of harm from a fire within the home being not insignificant, and that a reasonable person in the Defendant's position would have taken precautions against that risk of harm. Whilst clumsily pleaded, the Defendant takes no point in criticism of the Statement of Claim and at Defence [20] responded: (a) … he was cognisant of the importance of functioning smoke detectors and of the safety requirements relating to smoke detectors within residential properties; (b) says that he took reasonable precautions prior to 8 April 2019 [the date of the fire] to ensure that the [P]remises were safe for those residing there pursuant to the Residential Tenancy Agreement; (c) denies the balance of the allegations contained in the paragraphs.
2. Section 5B CLA sets out the principles of breach applicable to consideration of the Plaintiffs' cause of action in negligence. Applying the s 5B CLA principles to the question of breach: 1. S 5B(1)(a): The (agreed) risk, in the event of fire alarm failure, of harm from a fire, including death of an occupant, as occurred in this case, was a foreseeable one which not only the Defendant as landlord ought to have known but which he conceded in evidence and in pleading that he did know. The very prevalence of fire detection alarms in the community by early 2019 put the foreseeability of risk out of question. 2. S 5B(1)(b): The parties agreed that the risk included harm in the form of severe burns or death and the prevalence of the risk, again, puts its significance both as to chance of occurrence and seriousness of consequence in the category of very significant but certainly not insignificant; and 3. S 5B(1)(c): In the circumstances of the Defendant as landlord letting the Premises for the purpose of domestic occupation by Tamara, the Deceased and their children, a reasonable person in the Defendant's position would have taken the reasonable precaution of pressing and holding the test button to check that the smoke alarms were in operational order. In my opinion, the scope of the Defendant's duty as landlord included the taking of that reasonable and simple precaution during his inspection immediately prior to the tenancy. On his failure to perform that inspection on 14 February 2019, it was incumbent upon him throughout the occupancy of Tamara and the Deceased to have pressed the test button. He failed to do so. I have found that he failed to perform any test that the smoke alarms were in operational and working order. I reject the Defendant's closing argument (Closing Written Submission MFI 33 at [8.6], [8.8] and [8.10]) that it was reasonable for the Defendant to have merely, after 14 February 2019, checked that the green LED light was illuminated to show that the loungeroom smoke alarm was connected to mains power and that "without any indication that the alarms were not properly functioning" (at [8.6]) to then assume that they were in operational and working order. 4. Not only does that Defendant submission state a duty of care below the standard of reasonableness required, but the Defendant's own evidence, to which I have referred, was that on 14 February 2019 he intended, on his return, after mains power was connected to "check" the smoke alarms. So, the submission does not meet the Defendant's own evidence of appreciation of his responsibility. 5. The argument that he was entitled to assume the working order belies the true scope at law of his duty of care. 6. Similarly, the Defendant's argument (at [8.8]) that because the Defendant was not aware that the loungeroom smoke alarm had been disabled by tampering and therefore, "The court could not be satisfied that a reasonable landlord would have also been required to take additional steps, including to press the [test] button at the time of the inspection to satisfy himself that the speaker worked" not only belies the above-stated scope of duty at common law by understating the obligation to investigate the safety of the Premises; but it is contrary, again, to the Defendant's own admissions in evidence that it was a test which he had performed at earlier inspections, and which he knew was a test which caused the smoke alarm to display whether or not it was in operational order. His evidence effectively conceded that on 14 February 2019 he realised that it was reasonable and appropriate for him to have performed that check, albeit he chose not to do so.
3. Again, the Defendant's duty to exercise reasonable care by pushing the test button was called into existence because of the foreseeability of the very risk that an alarm might not be operational. In order to satisfy his duty of care, the Defendant was not entitled to simply not "bother" to press the test button, as the Defendant submits, because he assumed the smoke alarms were in operational working condition.
4. For the purposes of s 5B(2), in my opinion, the probability that the harm would occur if reasonable care by inspection of the operational order of the smoke alarms was not undertaken, the very serious risk of harm likely, the minimum burden of taking the precaution of pressing the test button to avoid the risk of harm, and given the prevalence of smoke alarms in domestic premises in February 2019, as acknowledged by the Defendant in his oral evidence, means that the social utility of failing to take that simple precaution to avoid that significant risk of harm are each clear indicia of the Defendant's breach of duty.
5. My conclusion is that the Defendant breached his duty of care within the meaning of s 5B CLA.

Causation

1. Findings made to this point in the judgment can be summarised in consideration of the two separate elements in the determination that negligence caused particular harm pursuant to s 5D(1) CLA. I will deal with the determination that the negligence was a necessary condition of the occurrence of the harm (factual causation - s 5D(1)(a)) and then the appropriateness of the scope of the Defendant's liability to extend to the harm so caused (scope of liability - s 5D(1)(b)).
2. It is not contested, nor could it properly be, that it was the failure of the loungeroom smoke alarm to sound and to wake the Deceased which was a necessary condition and primary factual cause of his death. There is no dispute that the loungeroom smoke alarm failed because its siren, having been removed by tampering, was not operational.
3. To this point I have determined as follows:

• The Defendant is not entitled to rely on a defence of failure to prove causation on account of failure to prove when and by whom the tampering with the loungeroom smoke alarm occurred, because the Defendant did not plead that defence; if I am wrong in that,
• I have found as a fact that the tampering which disabled the loungeroom fire alarm from sounding its siren occurred before the Lease; whether or not I am correct in that,
• The Defendant's duty at both parts of the obligation to provide operational smoke detector alarms and to exercise reasonable care by inspecting the alarms was called into existence because of the foreseeability of the very risk that an alarm was not operational - that duty not having been performed by the Defendant and the risk of harm having eventuated; then the Defendant is liable; whether or not I am correct in that,
• It was not necessary for the Plaintiffs to point to evidence permitting an inference as to when the tampering occurred - it was sufficient for the Plaintiffs to prove that it was more probable than not, as I did find, that the Defendant's negligence was a necessary condition of the harm suffered; further,
• In Strong v Woolworths, as in this case, the Defendant's negligent act or omission was necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm in satisfaction of s 5D(1)(a). In this case, the Defendant's conduct of inspections conducted without investigating whether or not the loungeroom smoke alarm (or indeed either smoke alarm) was in operational, working order was a necessary condition which, jointly with the condition of the tampered/defective state of the alarm, was sufficient to account for the occurrence of the harm;
• The Defendant's negligence which I have found necessarily increased the risk of the Plaintiffs, as occupants, being harmed in the event of fire, and the Defendant's argument that his failure to press the test button had no causative relevance, should not work in his favour and to his advantage.

1. For the above reasons, the Defendant's negligence was a necessary condition of the occurrence of the Deceased's death within the meaning of s 5D(1)(a).
2. I have found that the Defendant's duty of care as landlord, owed to the Deceased and the Plaintiffs, being to take reasonable care to avoid foreseeable risks of harm to them, included that, when letting the Premises to the Deceased and Tamara, he was required to inspect the smoke alarms to ensure that they were operational. I have found that the Defendant was negligent because he breached his duty to check that the loungeroom smoke alarm was operational. Indeed, the Defendant does not dispute that scope of duty. Rather, his defence was that he did exercise reasonable care. I have rejected that defence. I am satisfied, for the purposes of s 5D(1)(b), that the Defendant's scope of liability extended to the harm caused.

Intoxication of the Deceased - s 50 CLA; Contributory Negligence - s 5R CLA

1. When opening the case, the Defence said that it would rely on s 50 CLA to establish that the Deceased was at the time of the act or omission that caused his death, intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired.
2. I have already determined that there is no evidence upon which to find that the cause of the fire was the Deceased having fallen asleep or entered a state of sleep whilst food was cooking on the stove top in the kitchen.
3. In Russell v Edwards (2006) 65 NSWLR 373 at [30] and [40] - [41], Ipp JA held that the relevant "act or omission" was that which "caused the death, injury or damage". The enquiry requires determination of the single act or omission that caused the injury. At [40] - [41] his Honour held that it was the "direct" or "approximate" act or omission to which s 50 referred. Whereas the Russell case involved intoxicated swimmers diving into the shallow end of a domestic swimming pool, in this case, the Deceased was at rest on a couch in the loungeroom of his home. That his reaction speed was slowed to some minor degree by the effects of prescribed medication as well as cannabis and alcohol is not contested.
4. The Defendant stated that it did not dispute that, in the event of a fire, operational smoke alarms would be "extremely loud" and that this was a house of relatively modest dimensions and of a single level: T 39. 15 - 44.
5. At autopsy on 11 April 2019, the Deceased's blood analysis detected: 1. Alcohol 0.051 g/100ML; 2. Amitriptyline 0.71 mg/L; 3. Carbon monoxide 47% saturation; 4. Delta-9-THC Acid 0.028 mg/L; 5. Diazepam 0.01 mg/L; 6. Doxylamine 0.06 mg/L; 7. Nortriptyline 0.45 mg/L; 8. Orphenadrine 0.09 mg/L; 9. Oxycodone 0.03 mg/L; 10. Paracetamol <5 mg/L; and 11. Temazepam <0.005 mg/L.
6. According to the Report of the Plaintiffs' expert Dr Robertson, pharmacologist and forensic toxicologist, dated 17 August 22 (Exhibit C), the majority of medications detected in the Deceased's blood were at or below therapeutic concentrations and not likely to have prevented him hearing or waking to a smoke alarm and navigating out of the Premises if alerted: at [1.3]. The presence of alcohol was at a concentration that would have materially affected him, and the presence of delta-9-THC acid would have materially affected him. Amitriptyline was at concentrations higher than would be expected following therapeutic use, but that result was most likely an elevated concentration due to post-mortem redistribution: at [1.4] - [1.5]
7. I make the following observations of Dr Robertson's Report findings:

• Alcohol at 0.051% was not likely to materially alter or affect his capacity to exercise reasonable care and skill, his motor function, and his reaction times: at [7.16].
• His prior ingestion of cannabis would not be expected to materially alter or affect his capacity to exercise reasonable care and skill, his motor function, and his reaction times: at [7.18].
• Diazepam and its metabolite Temazepam would not be expected to materially alter or affect his capacity to exercise reasonable care and skill, his motor function and his reaction times: at [7.19].
• Substances were otherwise in accordance with therapeutic use.
• The combination of alcohol, Diazepam, Doxylamine, Orphenadrine, and Oxycodone may cause drowsiness but, given that they were all present in low concentrations, it is not likely that those drugs, either alone or in combination, would have produced any significant drowsiness, particularly if those drugs had been used regularly by him in the weeks or months prior to his death. It was clinically relevant that the Deceased's mother, in their discussion in the hours prior to his death, observed that he was in good spirits and not drowsy: at [7.24].
• None of the substances in his blood were at concentrations such that Dr Robertson would expect to render an individual unable to wake when it is assumed a smoke alarm would have been prominent: at [7.25].
• Lastly, none of the substances in his blood were at concentrations such that Dr Robertson would expect that they would render the Deceased confused, disorientated, or otherwise unable to successfully navigate out of the Premises if alerted to the fire: at [7.28].

1. I make the following observations from the Report of Dr Dauncey, consultant pharmacologist retained by the Defendant, dated 10 January 22 (Exhibit 2):

• It is clinically relevant that at 7:30pm Narelle dropped off his medication to him and at the time he did not appear to be affected by alcohol and was in good spirits, she left at 8:00pm and the fire was at 11:17pm: at [6.6].
• The combination of blood alcohol concentration and prescriptive medicine only avails the observation that "he would have been more sedated than he would have been had he not had any alcohol or any of these drugs" (at [8.2.1]) and in combination all medications were at levels indicative of therapeutic use, however, the combination of their affect with alcohol "may have affected his level of consciousness prior to death": at [8.3.1].

1. Dr Dauncey concluded (at [11.1]), "he would not have been intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired but a falling BAC at that level would be expected to have caused some sedation." "[His] capacity to wake quickly, assess the situation, respond swiftly and efficiently and to work out the best strategy for getting out of the room, e.g. which door to use, whether to crawl on all fours to get beneath the smoke and heat, or whether to use a blanket as protection as he tried to get out etc would probably have been impaired to some extent by alcohol and Endep irrespective of whether there was a functioning fire alarm.": at [11.2].
2. I note, that without cavilling with Dr Dauncey's opinion within her field of specialist knowledge as to reaction speed and efficient determination of strategy for escape; the scenario for consideration here is that the alarm would have sounded to alert him at a very early state of the fire and before the smoke layer descended to upright head height and before heat would have been sensed by exposed skin. The expert opinion evidence of Messers Munday and Kelly does not describe that he would have been required to crawl on all fours, use a blanket as protection, get below smoke, or to otherwise engage in difficult strategising for escaping the premises. Dr Dauncey's explanation of sedation and capacity to wake quickly therefore conceived reaction demands of a fire environment more critical than the demands of escape for the Deceased had the loungeroom smoke alarm sounded.
3. Dr Dauncey observed from her experience that "Smoke detectors have been found to be equally effective in both intoxicated and sober individuals in reducing the relative risk of injury or of dying in a night time house fire.": at [11.3].
4. For these reasons, my understanding of the separate expert opinion reports of Doctors Robertson and Dauncey concerning the effects of intoxication is that it did not contribute in any way to the cause of death, had the loungeroom smoke alarm sounded.
5. In their Joint Report, not surprisingly, the opinions of Dr Robertson and Dr Dauncey did not vary. Ultimately, the minor differences between their conclusions concerned measures of assessment of slowness of response to the alert of an alarm, and depreciation of the ability to navigate and escape.
6. Dr Robertson pointed to the effect of the alcohol (0.05%), being at the minimum threshold for legal driving range, to be of some effect and, in combination with the other substances in the Deceased's blood, all of which were at low concentrations, to equate to there being a possibility that there was an amount of impairment to exercise reasonable care and skill but Dr Robertson would expect "any impairment to be low". Outside of that science-based opinion, Dr Robertson noted that the anecdotal evidence of Narelle's discussion with the Deceased indicated that he did not appear to his mother to be drowsy.
7. Dr Dauncey observed that the Amitriptyline (a product of a prescribed medication) is prescribed to assist with a good night's sleep. She noted that "the morbid anatomist who did the post-mortem noted that the combined effect of the alcohol and/or the medications may have affected his level of consciousness prior to death" and commented that the reference to level of consciousness is another way of describing sedation. She agreed with that conclusion. Accordingly, Dr Dauncey concluded that in considering the total effect of all prescribed and other substances in the Deceased's blood at the time of the fire, "common sense would say that the substances would have slowed down the rate of waking" but "Whether that was of a sufficient length of time for him to become overcome by smoke is unknown."

Contributory Negligence - s 5R CLA

1. I have found that the fire investigation evidence did not identify the cause of the fire. Importantly, it did not identify that food left in a pan or pot on the stove top by the Deceased caught fire whilst he was in a state of sleep. Indeed, expert fire investigation under supervision of the OIC Police Officer Phillpott was unable to dismiss that the fire may have been caused by an electrical fault. In my opinion, the Defence has not established, on the balance of probabilities, within the meaning of s 5R CLA, that the Deceased was contributorily negligent in the cause of his death by failing to take precautions against the risk of harm.
2. On the whole of the evidence, he was simply a young partner (fiancée) and father who, after drinking alcohol and consuming cannabis (I am not condoning taking illicit substances) at an earlier party, in the evening took his prescribed medication for back pain and to assist with sleep before falling asleep in the living room of his home. He is not, on the evidence, shown to have failed to exercise a standard of care required of a responsible person in his position on the basis of what he knew or ought have known when permitting himself to rest and enter a state of sleep.

The Plaintiffs' Claims for Damages

1. At the time of the fire, Tamara was 21 years of age. The Deceased was 23 years of age. Their son Elijah was born to Tamara from a prior relationship. He was born 7 December 2014 and was 4 years of age. Kruz was their son, born 28 August 2016 from their union and he was two years of age.
2. John had operated his own commercial painting contractor business from long before the fire and the Deceased worked for him.
3. The Plaintiffs each claim damages on account of psychological harm. John has returned to work. Narelle continues as a foster mother but is psychologically struggling.
4. The children Elijah and Kruz, by agreement between the parties, did not give evidence and the Defendant makes no application or submission arising from their not giving evidence.
5. The Defendant disputes whether Narelle or Tamara suffered a recognisable psychiatric illness under s 31 CLA, and, therefore, that they are entitled to damages.

Out-of-Pocket Expenses - Agreed

1. Out-of-pocket expenses are agreed as follows: 1. Tamara: 1. Past out-of-pocket expenses: $751.40. 2. Future out-of-pocket expenses: $2,500.00. 3. Total: $3,251.40. 1. Narelle: 1. Past out-of-pocket expenses: $3,360.85. 2. Future out-of-pocket expenses: $4,000.00. 3. Total: $7,360.85.

Evidence of John Heafey

1. At an early point, these reasons acknowledged the Defendant's challenge to the accuracy and reliability of the evidence of John Heafey in relation to the number and location of smoke alarms within the Premises. I determined that John Heafey was a truthful and reliable witness, whose evidence in chief on that issue was inaccurate but that did not cause me to not accept other parts of his evidence. What follows is my review of the evidence of John Heafey, which included background facts relevant for achieving an understanding of the domestic scenario, including the work of the Deceased and, generally, the environment of the Plaintiffs' lives. His is evidence of the shattered family environment resulting from the Defendant's negligence which must be a relevant circumstance in the lives of Tamara and Narelle.
2. John was the Deceased's father. He is presently 53 years of age. He was 48 years of age at the time of the fire.
3. He has owned and operated his own industrial painting and sandblasting business since 2011. His trade is Painter and Decorator. Prior to 2011, he remained in full-time employment from the obtaining of his trade certification in 1990. His business is called JH Protective Coatings and it is in Northville, only a few minutes' walk from the subject Premises.
4. The business has three workshops on-site and a large shed across the road. John employs four people other than himself. He said that, in big part, the business involves sandblasting and painting of structural steel, but also in the refurbishment of cars and painting of trucks. He said that anything that comes in requiring sandblasting and painting will be done.
5. The Deceased worked in the business on and off. In 2013, the Deceased started his apprenticeship in the trade of Sandblasting and Painting whilst working in the company. In 2017, the Deceased achieved his trade certification. In the business, the Deceased performed sandblasting and painting. John explained that the trade is often called Painter and Decorator.
6. The Deceased had risen to the point of becoming a supervisor and starting to control the business. John explained that he was trying to implement a program permitting him to step back in a few years. He said that he would like to have "normal time off cause I work, as I said, seven days a week most of me life…". That plan involved the Deceased and another employee, Mr Chris Fisher, taking up the work. John described Mr Fisher as like a "son-in-law" but in fact he was only married to one of John and Narelle's daughters for about one year. The couple separated in about 2018. Mr Fisher started working in the business in 2011 and continues to work there.
7. John gave direct evidence of the argument between the Deceased and Tamara which caused Tamara to be staying at her mother's home on the Monday night of the fire. He said that on the immediately preceding Sunday, the Deceased and Tamara were at his workshop where the Deceased was working on his other car and the Deceased's regular car was at the workshop. When they had their "fight" Tamara wanted to leave, and John told her that she could not take the car. The Deceased did not have a driver's licence and John would not let Tamara drive their car: T 126. 44 - T 127. 9.
8. In regard to the events of the day of moving into the Premises, I have already included reference to John's detailed recollection of moving the possessions of Tamara and the Deceased into the Premises, including John's driving a vehicle towing a trailer for the furniture and appliances (see examination-in-chief at T 127). I have already gone to his detailed evidence of his recollection of the discussion between the Deceased and the Defendant on the front stairs of the home and of hearing the Defendant say, "no one's been in the house for two years. I've got to come back and check the smoke alarms." (T 128. 15).
9. His evidence corroborated that of Narelle, that after Narelle received a phone call from the Defendant informing them of the fire, Narelle had started yelling and screaming "The house is on fire" and then they drove to the Premises but could not get right to the Premises. At the Premises, in response to the enquiry of a Police Officer, John responded that it was his son's house. It was then that the male Police Officer told he and Narelle that they had found a person had passed away. They stayed outside the Premises until about 2:00am. The next morning at around 9:00am they drove to the Premises and parked across the road. The Coroner was at the Premises. Services were removing the Deceased's body. There were two female detectives present: T 130. 25. One of those two detectives was the partner of a friend or cousin. She confirmed that the Deceased was Bradley.
10. Moving forward, any contact Narelle and John had was with the other female detective. He suspects that is because of the first detective's relationship with the family. That detective who was known to the family is named Amanda Phillpott. That afternoon, John asked Detective Phillpott whether Police were investigating the smoke alarms: T 131. 40. Detective Phillpott responded that Police were not investigating smoke alarms (T 133. 13), to which John responded that Police should do so. Two days later Detective Phillpott called to say Police had found the Deceased's phones and asked if John knew the passcodes. On that occasion, he again asked whether Police were "still looking into the fire alarms" and Detective Phillpott responded, "that's not part of the investigation.": T 133. 39. On the Wednesday following the fire, John went to the Premises after work. This was the day after his (referred to above) conversation with Detective Phillpott. By that time, Detective Phillpott had informed him that "everything's finished - investigating at the house." (T 134. 10).
11. At the Premises, John sat down and said "Hooray" to the Deceased. He did this on his attendance at the place in the Premises where marks indicated his son had deceased. He referred to these as "his marks": T 134. 40. The reasonable inference is that John was referring to the silhouette impression on the loungeroom wall in the place where his son's body, by being in a semi-seated position against that wall, had left the impression of him unstained (in the photograph, as if white) against the blackened wall. The horror of that observation to John is obvious. He said that he sat there in that mode of saying "Hooray" to his deceased son for about half an hour: T 134. 45. As earlier observed, this is the emotional scenario in which John mistakenly thought he saw a bracket for a hallway smoke alarm on the remains of the mostly collapsed hallway ceiling.
12. He recalled that about a week later Detective Phillpott called to say Police were taking the stove for investigation. On that occasion he again expressed his concern about "the fire alarms". He said that she "brushed me off again ...": T 135. 25.
13. John said that, up to the present, he, every morning, struggles to go to work. At T 136. 10, as he made this statement, he expressed it in the typical colloquial understatement of his evidence giving. When he said that he struggles every morning to go to work, even now, four years post-fire, he spoke with an obvious deep sadness and so quietly that neither Senior Counsel for the Defendant nor myself were able to hear fully what he said: T 136. 15. When we spoke of his answer as describing struggle for only the first 12 months (the transcript shows that we were incorrect in that limitation), he corrected us and indeed commenced the correction with the humility of an apology. He said (T 136. 20 - 31): "WITNESS: And still is - sorry, still is now too as well. So, every morning I drive down the street and I sit in me car for five minutes or more and that's yeah. HIS HONOUR: I missed that part. Say that again? WITNESS: I - every morning I struggle to go to work, every - and I sit in me car before I go in for at least five to 10 minutes before I go in thinking. HIS HONOUR: You sit in the car? WITNESS: Yes, yeah, before I go in."
14. His going to work causes him to think about his son and how they worked together for so long.
15. John has not undergone counselling but does feel emotionally different to as he was before the fire. He described himself as follows (T 136. 45 - T 137. 31): "CAMPBELL: Q. In what way? J HEAFEY: A. Yeah, I've pulled myself away - over away from family a bit more since the fire. I've been working a lot longer hours for me - to, yeah, to - my work is take me mind off things. Q. And is it better today than it was? A. It is starting to ease a bit and that, so, yeah. Q. And do you have any issues with sleeping? A. Yes. Q. What issues do you have? A. I wake up. I might go to bed 9, 10 o'clock at night and every - about half past 11 every night I wake up. That's when we got the phone call and that, so, yeah. Q. And when you wake up do you think about what happened on the night? A. Yes. HIS HONOUR [correction - should read "Turnbull"]: Why don't you let him give the evidence? CAMPBELL: I thought that‑‑ HIS HONOUR: Yes, don't leave [correction - should read "lead"] please. CAMPBELL: I'm sorry, your Honour, I thought that that was a follow-up question in relation to what the evidence was. I'm sorry, your Honour. Q. When you wake up at night‑‑ A. Yeah. Q. ‑‑why do you wake up? A. I'm expecting a phone call and going over what happened that night. Q. And when you say - sorry, do this to you - when you say going over things that happened that night, what things do you think of? A. The fire and finding out he's passed away, yes."
16. John was not challenged as to his description of his own suffering post-fire.
17. In cross-examination, consistent with the manner of his being willing to give evidence against interest, John agreed with the proposition put that the Deceased had said to him that he wanted a new lease just in his name because Tamara would not be there. When pressed that the Deceased said that because soon after the Deceased and Tamara had moved in there were problems in their relationship, John answered "Could have been. Yes. Well, I speak to him about his relationship.": T 139. 9 - 16. Their discussion about the relationship was not investigated but I note that at T 138. 36, John's answer to a question of his understanding of the relationship between the Deceased and Tamara, and the suggestion that it was not going well, was cut off by Senior Counsel for the Defendant. John got so far as to respond: "Well, any 23-year-old goes…": T 138. 36.
18. I do take account of the Deceased having said to John the above-quoted words as something said at a point in time by that young man, with those responsibilities, to his father. That the Deceased and Tamara were so obviously well supported by John, Narelle and Tamara's mother is a factor which would weigh in favour of their relationship working as they continued to take on the responsibilities of their life together. I repeat, on a balance of probabilities basis, on this evidence alone, I am satisfied that the relationship between the Deceased and Tamara was ongoing and that, at the time of the fire, it was not likely to fail. At the close of the trial, as already noted, the Defence conceded that they were partners.
19. Typical of John's credible evidence giving, he freely and against interest stated that over the years of his working for the company, the Deceased would take time off because he wanted to be a young man and be with his friends. He would take a week or two weeks off at a time and was sometimes very casual about working. The effect of John's evidence at T 148. 19 - 29, and then by comparison with the full-time attendance of Mr Fisher from 2011, is that Mr Fisher was a constant full-time employee and the Deceased more like a casual employee. Nevertheless, John clearly explained that the Deceased's problems with his back and suffering depression from time-to-time did not affect his work. In relation to his back, this was particularly because the business uses forklifts "and all that stuff": T 148. 40.

Evidence of Tamara Alderson

1. Earlier in this judgment, at [33], I indicated that I would return to further consideration of the credibility of Tamara as a witness. This part of my judgment includes that further consideration.
2. When Tamara gave her evidence, she appeared anxious and crushed. She seemed, by her demeanour and in the manner in which she answered questions, as somewhat lacking a responsiveness or energy expected for a person of her age. Whilst meaning her no discourtesy, she appeared somewhat dishevelled. That is not to say that in some passages of her evidence she was not energised, but to me, some of her answers, particularly when being required to draw on her long-term memory, appeared to be given in responses which were somewhat loose or tangled of thought. This was particularly so when asked about her long term medical, educational, and personal history in detail.
3. Nevertheless, she answered questions including of her past history, sometimes against self-interest, particularly in regard to topics that were personal to her. At times I wondered how far and deep into her memory she possessed the energy to search in order to give her best response to a question, but at no point did she strike me as obfuscating or as being reluctant to answer. When during cross-examination, for instance, the proposition was being put to her, based on her local medical officer's clinical notes, that she had participated in sexual relations with a male since the passing of her fiancée (the Deceased) in the fire, she was energetic when giving, what I considered to be the appropriate response, that participation in sexual engagement did not mean that she was in a relationship with someone new.
4. Tamara was born in July 1997. She was educated to Year 8 High School. She left school during Year 8 for the birth of her son Elijah in December 2014. The Deceased and Tamara met in 2015 and in June 2015 they started to live in a caravan located in the yard of John and Narelle's (the Deceased's parents) home. In July 2016, Tamara and the Deceased engaged to be married. On 26 August 2016, their son Kruz was born. They had by then moved from the caravan to a small room fitted out in a converted shed at John and Narelle's home property.
5. In 2019, Narelle and John informed Tamara of a "For Rent" sign they saw in the window of the Premises. A few weeks before viewing the Premises, Tamara contacted the Defendant. At the Defendant's instruction, they subsequently emailed to him an application to rent the property and provided bank statements. The Defendant telephoned to inform them of the success of their application, and they organised to sign the Lease and move in. The Lease signed on 14 February 2019 was in the form of a Standard Residential Tenancy Agreement (Exhibit F). On the same day as the Lease was signed, the Condition Report (Exhibit G) was completed during a walkthrough of the Premises which commenced at about 10:00am, attended by Tamara, Narelle, the Deceased, and the Defendant, whilst John was nearby.
6. Tamara said that she had the conversation with the electricity retailer at about 10:30am. When she asked them when the electricity would be "on", her oral evidence was that she was informed that "it was already on": T 48.10; T 49.10 (this evidence was admitted as of her recollection of a conversation only and not as proof of the fact that power was or was not on in the Premises: T 49. 25).
7. Tamara said that after signing of the Lease, she and the Deceased moved their belongings into the Premises with the assistance of Narelle, John and some of the Deceased's work friends. It was during that period that the Defendant wrote on the Condition Report the words "LANDLORD TO ARRANGE": T 50. 5 - 9.
8. Tamara said that they were using electricity when they were moving in the fridges and the washing machine from about noon: T 50. 15 - 20. When it was put to Tamara that the electricity was not on at the Premises at the time of the inspection on 14 February 2019, she answered that it was: T 92. 35. Tamara denied that electricity was connected the next day 15 February 2019. Tamara recalled that AGL sent "them out" on 14 February 2019: T 93. 20. As Simply Energy records show, and I have found, Tamara did telephone to request connection on 14 February 2019, but mains electrical power was connected on 15 February 2019 (Exhibit 26).
9. When challenged in cross-examination that the sequence of events was entering into the tenancy, followed by moving in on a Saturday or Sunday, Tamara's evidence was that she could not recall which day of the week it was and she also conceded that, whilst the Deceased was not at work, she could not recall whether or not it was a working weekday that they moved in: T 85. 25 - 86. 29. It is consistent with giving evidence, truthfully to the best of her recollection, and sometimes against interest, that Tamara answered conceding the inaccuracy of her memory in that regard. Nevertheless, her recollection was consistent with evidence of John and Narelle as to the cars they arrived in, who was present and that they did move in on the same day as entering into the Tenancy Agreement. She was clear in her evidence that the Deceased, John, Narelle, and the Deceased's work mates were present when that process commenced in the morning. On the other hand, I have found that her recollection of there being only a single smoke alarm and that it was in the hallway was inaccurate.
10. During cross-examination, Tamara said that neither she nor the Deceased ever touched the alarm (T 97. 38 - 41) and, typical of her truthful evidence and willingness to make concessions against interest, when then challenged about that answer, which included the Deceased's actions, she agreed "to my knowledge": T 97. 45.

Tamara - Effect of the Fire

1. Tamara said that throughout their relationship, she and the Deceased lived under the same roof but when they argued she would go and stay with her mother for a night or two. She said that occurred not very often, "about maybe once every seven or eight months": T 50. 34. She would take the children.
2. On the weekend prior to the Monday night fire, the Deceased and Tamara argued, and she went with the children to stay with her mother. She was there when police arrived at around 11:30pm at night: T 51. 15. They told her that the Premises was on fire and that they were trying to locate the Deceased.
3. Tamara telephoned Narelle to ask if the Deceased was at Narelle's house. When Narelle said that he was not, Tamara tried his friend Tyson because the Deceased was to have attended Tyson's birthday party. Tyson told her that the Deceased had gone home. Narelle telephoned Tamara and told her that the Deceased was in the Premises, just before Tamara, with her little sister, took her mother's car and drove to the property. On arrival she found a "smouldering house". Tamara described herself as "I couldn't sleep; I was a mess": T 51. 44.
4. During evidence-in-chief, Tamara said that she had not been in a relationship since the Deceased's passing. She was cross-examined on the basis of a GP clinical note that she participated in sexual relations. Senior Counsel for the Defendant acknowledged to the Court that he would not put that Tamara had formed a relationship with another partner after the passing of the Deceased, simply because the GP note recorded some sexual activity: T 432. 49.
5. After the fire, Tamara and her two sons lived in her mother's house for a month or so and then moved into other premises in Windale in May 2019 where she stayed for two years before moving to another premises at Speers Point in April 2022. These are suburbs of greater Newcastle.
6. Initially after the fire, Tamara came under the care of Dr Baker, GP, and was referred to Hunter Primary Care Psychology Services. She did not think the psychological services helped: T 52. 25. The female service provider she saw there, on her first appointment, had left by the time of her second appointment and she did not like the replacement service provider, so she stopped attending that service: T 52. 31.
7. Tamara said she still thinks of what happened to the Deceased every day and it makes her feel "[r]eally upset". His passing was a "big part of my kids' life just got taken from them": T 52. 41. Tamara said that she does not feel that she has been improving in relation to "those matters": T 52. 49. Tamara was weeping as she gave this evidence. She appeared to me to be crushed by the burden of those memories and dominated by her present circumstances. She appeared to be a young woman about whom it is difficult to imagine her displaying sustained happiness or enthusiasm. She identified that:

• "I don't sleep";
• "can hardly stomach a meal";
• socially, she does not feel like leaving the house much but she socialises for Elijah who is now 8 and in year 3 at school, for his benefit;
• she struggles with energy levels required of her in order to cope with mothering her young children and said "I'd much prefer to just lay in bed with my children than do housework or anything": T 53. 27;
• she takes Endep for sleep which is prescribed by her local medical practice, usually Dr Baker, GP;
• she suffers memories which come to her at night as "just the fire, seeing that".

1. Tamara described the Deceased as a very hands-on father who usually attended to their young children for their needs during the night such as baby bottle feeding. He did this even during his working week.
2. Tamara said that if she could afford it, she would pay for counselling. She is presently on Social Security.
3. In his Report of 25 August 2021, Dr Canaris, consultant psychiatrist, briefed by the Plaintiffs' lawyers (Exhibit O), recorded more detailed statements received by him from Tamara of her experience as next of kin seeing the Deceased at the morgue, of attending his funeral, and of her subsequent difficulties with eating, sleeping, self-care, not wanting to cook on a stove because a stove started the fire, and of her every day ruminations associated with the tragedy and of her loss of the Deceased including night thoughts, flashbacks and reliving the trauma over again. She described to Dr Canaris being still able to smell the fire and reliving being outside the Premises and watching the fire because it wasn't fully put out and that whenever she smells smoke, she feels terrified of fire to the point that she tries to cook everything in an air fryer rather than use a stove.
4. That her evidence included a sparsity of such statements compared to the content of Dr Canaris' Report, I attribute that to my described observations of her demeanour and lack of energy in the environment of the courtroom when giving oral evidence, compared to the opportunity of providing responses to a skilled therapist in the clinical setting of their Zoom consultation. When I read the self-descriptions given by Tamara to Dr Canaris, I was of the immediate impression that they fitted the young woman I observed during a not short period of giving evidence-in-chief and then cross-examination.
5. There is a contest between the expert psychiatric opinions of Dr Canaris and Dr Lee, forensic psychiatrist, upon whose Report dated 15 March 2022 (Exhibit 21) the Defendant relies. Dr Lee considered Tamara to be untruthful and to exaggerate because he found the medical records briefed to him to not match her complaints: see the Joint Report (Exhibit P).
6. During cross-examination, Senior Counsel for the Defendant put to Tamara the substance of the history which, according to his report, moved Dr Lee. I make the following observations of the cross-examination: 1. Tamara was challenged as to the truthfulness of what she told Doctors Canaris and Lee during their medico-legal consultations: T 54. 45 - T 55. 23; 2. Tamara said that she was happy before the fire and although she and the Deceased had had an argument and were taking "a break" whilst she was at her mother's home over the weekend preceding the fire, she denied that she had "moved out": T 56. 26; 3. Tamara conceded that in 2012, in circumstances of her being bullied at school and of her parents separating, she was referred to a psychologist and a psychiatrist - which treatment she does not remember - and she was cutting her legs but not for long, had mood swings, emotional outbursts, occasional suicidal thoughts, complained of feeling depressed and she and her father were not getting along (she was about 15 years of age); 4. In 2013, Tamara moved out from her mother's home because her mother had too many children and there wasn't room but denied that she did not get along with her mother. Her mother did not ask her to leave but she thought that by moving out it would help her mother in that situation; 5. In 2013, Tamara went to live with her father, and they did not get along so she moved out to live with a friend; 6. Tamara agreed that during that (mid-teenage) period of parental disruption and her moving in with her father with whom she did not get along, she was having difficulties at school; 7. Tamara denied having reported angry outbursts to a Dr Peterson in 2013 but agreed that she was self-harming at that time by cutting herself with a razor which she ceased at the beginning of 2014 and never did again; 8. Tamara agreed that in 2013 (when aged about 16 years) she did occasionally binge on alcohol and she said "I did have a problem": T 63. 45; 9. It was put to Tamara that she was sexually assaulted in 2013 by a student at Glendale College and Police were involved and she denied that allegation: T 63. 17 - 25; 10. It was put to Tamara that she attended John Hunter Hospital, Newcastle, outpatients in May 2014 because she was self-harming; which allegation she adamantly denied, saying that she was pregnant in April 2014 and was not self-harming: T 64 - 50; 11. Tamara agreed that she attended John Hunter Hospital Accident and Emergency Centre on 20 August 2015 for pelvic pain and maintained her denial that she ever attended there because of self-harming; 12. Tamara agreed that she was taking Pristiq, an anti-depressant, between January 2016 to April 2016 because she was overwhelmed at just having found out she was pregnant with Kruz: T 65. 37; T 67. 30; 13. Tamara agreed that Dr Baker prescribed her setraline in early 2017; but clarified that Dr Baker was at West Wallsend Medical Centre, not Andrew Nash Clinic, as had been put to her; 14. Tamara agreed that in December 2017 she attended Dr McKinnon three times over a three-week period including twice for back pain and once for kidney pain: T 66. 20; 15. Tamara agreed that she "had lots of stress" in about May 2018; 16. On 20 March 2018, she told Dr Dobrolot, GP, that her anxiety was "through the roof" and she was scared to drive because her car had been stolen and that the anxiety led to inability to breathe properly: T 68. 10 - 15; 17. On 14 June 2018, Dr Baker, GP, prescribed Endone for her pelvis and lower abdomen pain which Tamara volunteered was "a lot of pain" and she agreed that she experienced it for some months including up to 17 January 2019: T 68. 20 - 35; 18. Days before the fire, on 8 April 2019, Tamara saw Dr Mollenkopf, complaining of constant left-sided back pain so severe that she was unable to lift her arms above her waist, which lasted only one week: T 68. 48 - T 69; 19. Tamara volunteered that she still gets back pain: T 69. 30.

Tamara - Expert Opinion Evidence - Dr Canaris and Dr Lee

1. Dr Canaris was briefed with clinical notes of Hunter Primary Care and Hunter Primary Care Psychology Services for the period of 31 July 2020 - 1 June 2021 but not other clinical notes. He consulted with Tamara by Zoom. In his opinion, Tamara suffers the following psychiatric injury directly caused by the fire: Post-Traumatic Stress Disorder with Persistent Complex Bereavement Disorder. Dr Canaris recommended fortnightly psychological counselling tapering to monthly counselling over a period of two years. He also recommended prescription antidepressant medication. He estimated the value of medications at between $15 and $100 per month, depending on the prescription. In Dr Canaris' opinion, the mental health injury suffered by Tamara justifies her need for domestic assistance into the future, but he did not estimate the hours or describe the nature of that assistance.
2. Dr Lee concluded that he was unable to make a current diagnosis because "… examination findings are inconsistent with accurate reporting of psychiatric injury". Dr Lee said that Dr Canaris had accepted Tamara "at face value" in "her report of sadness, waves of grief, distress at the smell of smoke which makes her not cook on the stove, flashbacks of the police knocking at the door, that she does not go out and isolates, has fragmented sleep and is tired and irritable with poor concentration, poor appetite and weight loss"; and concluded that he disagreed with Dr Canaris' diagnosis of Post-Traumatic Stress Disorder and Persistent Complex Bereavement Disorder because Tamara had been non-compliant with treatment and there was evidence of invalid reporting on the Structured Inventories of Malingered Symptomatology (SIMS).
3. During oral examination, Dr Lee and Dr Canaris disagreed as to the value of assistance provided by the SIMS score obtained by Dr Lee. It is not necessary that I repeat all of the detail of that oral evidence. It was apparent theirs was a difference of clinical approach. Dr Lee said that he can understand scepticism in relation to the SIMS test utility, psychiatrists are not lie detectors and hence many psychiatrists' employ Symptom Validity Testing such as SIMS. Dr Canaris said that he had reservations as to the validity of the SIMS score and preferred to rely on his expert psychiatrist impression of the patient/client. He acknowledged that Symptom Validity Testing is a valid element in clinical approach but said that it was not the only element. He expanded that System Validity Testing delivers only a set of numbers. He explained: (T 397. 48 - T 398. 8): "So, for example, the patient is reported to be producing symptoms that are not credible. The difficulty I have though is that we're never actually told, at least I haven't ever actually seen someone say well, these are the items that have been endorsed that are not credible. Because sometimes, you know, patients do endorse things which aren't perhaps part of, you know, normal experience; but which, in fact when you consider them in the totality of their presentation, make a lot of sense. Now I'm not saying that's the case with Ms Alderson, okay; because I really haven't seen the raw data of the tests. But I'm just saying that that's just a factor that needs to be considered. What does she actually endorse that's not very credible?".
4. Dr Canaris then posed the question, "What symptoms is she endorsing that are not credible?" (T 399. 48), which Dr Lee was unable to answer with precision. His following answer demonstrated a basis for the concern which Dr Canaris expressed, that the raw scores do not inform the psychiatrist of the symptoms which the patient is endorsing but only of which symptoms the test assesses as not credible. Dr Lee's answer, when the cross-examiner put Dr Canaris' question to him was: "It's convention not to reveal the questions in the tests … [because] People read about them, they know what questions - how the questions are structured and what answering them in the affirmative or negative means. So, it's convention not to reveal them …": T 400. 5 - 11. Dr Canaris then confirmed that without knowing what the questions asked were to which responses valued as non-credible were produced, he is left with "… a sense of scepticism, or a sense of, well, I don't really know what this - what is actually going on here.": T 400. 24 - 30. Dr Canaris stated that he has seen many patients who have given histories that seem very consistent, in regard to whom psychiatrists have reported that the patient provided a fairly consistent history but, after application of Symptom Validity Testing, said that the patients were making invalid responses. In Dr Canaris' opinion, those scenarios create a situation "where things don't make sense": T 400. 38. This was the scepticism of which Dr Lee conceded he could understand: T 400. 47.
5. Exhibit P is the Joint Report of Doctors Canaris and Lee dated 8 March 2023. In it, Dr Canaris maintained his diagnosis of Post-Traumatic Stress Disorder and Complex Bereavement Disorder, he having by then read the history of pre-existing medical attention upon which Dr Lee in his Report (Exhibit 21) based his concern as to the truthfulness of Tamara's self-report. In the Joint Report, both Doctors Lee and Canaris noted that there was uncertainty about the accuracy of Tamara's history both in regard to pre-injury and post-injury conditions which made providing a diagnosis challenging.
6. In the Joint Report, Dr Lee stated that he considered Tamara most likely to suffer borderline personality traits and pain disorder but not Post-Traumatic Stress Disorder, "as she provided an unreliable history and was exaggerating symptoms." Dr Lee considered the subject incident to be unlikely to have caused Tamara a current diagnosable psychiatric condition.
7. From the Joint Report, I note that Dr Lee understood that Tamara by 26 June 2019 (two months post-fire) was spending time with friends on weekends, on 31 July 2019 complained that she was having trouble with her children, on 22 April 2020 had become sexually active, that it was not until 28 July 2020 that Tamara reported nightmares severe enough that she was referred to a psychologist, that Tamara did not keep appointments with psychologists, that by 24 August 2020 she was coping well and that by 16 December 2021, "work was going really well, she was going on holidays and there are no psychological complaints recorded; subsequent entries indicate complaints of knee pain but no psychological complaints."
8. Dr Canaris observed that Tamara's history included having a lot of difficulty with the care of her children and that she needed support in that.
9. Dr Canaris remains of the opinion that the death of her partner in a house fire and her reportedly sitting outside the smouldering home until 5:00am were "very much" triggering events of her Post-Traumatic Stress Disorder and that her pre-incident history is of significance because it is evidence of Tamara's premorbid vulnerability and perhaps disorder.
10. In regard to his prognosis, in the Joint Report, Dr Canaris stated that it is guarded because Tamara has a combination of premorbid vulnerability and/or unwellness followed by a traumatic event and poor engagement in treatment. Dr Lee said that the natural history of Tamara's borderline personality traits is for instability over time, "which might have even occurred had the incident not happened, noting that the plaintiff had left her partner on the night of the fire already."
11. At the outset, I do not accept that, on the evidence, this very young couple had separated. As I have observed in this judgment, the Defendant properly, if, ultimately, conceded that Tamara and the Deceased were in a de facto partnership at the time of the fire. They were in the midst of the challenges of life with two very young children. I do not accept, as Dr Lee put it in the Joint Report, that Tamara had "left her partner" merely because when they had arguments Tamara would spend a few days at her mother's home with the children. Tamara described her mother as her best friend. Her mother had stood by her through the difficulties of the birth of Elijah, when his natural father refused to acknowledge any responsibility for him, and Tamara was only 17 years of age. Her mother had, on all the evidence, remained her rock of support thereafter. Further, as was ultimately conceded by Senior Counsel for the Defendant, Tamara did not, to the date of the hearing, and certainly by the time of Dr Lee's Zoom consultation in March 2022 with her, form a new and intimate relationship with another partner. A sexual engagement by a young woman does not mean that she is in a relationship with the other person.
12. The objective clinical literature, as well as the evidence of Tamara and of Narelle in the hearing, is against Dr Lee's observation that she was not having difficulties with the children. The common sense proposition is that, post-fire, Tamara was a very young mother, who, with the exception of a few days' work, was surviving on Social Security, and who, 3 years after the fire, reported to Dr Lee that her children were only just reaching a state of normality. Tamara remained receiving significant assistance with domestic chores and some relief from caring for her children on weekends.
13. Senior Counsel for the Defendant put the whole of the pre-fire clinical evidence of Tamara's pre-existing behavioural, mental, and physical health to Dr Canaris and put to him that if that history be correct; then it "somewhat undermines" Dr Canaris' opinion that Tamara suffered major depression as a result of the death of the Deceased. Dr Canaris' opinion, I considered to be impressive given his appropriate willingness to include reasonable concessions. He answered (T 405. 35 - 46): "Look, it certainly undermines the notion that her current problems are exclusively the result of the death of her partner. I don't think there's any doubt about that. But, equally, I think if you take a vulnerable individual, you subject them to a very major life stressor, and they subsequently get a lot worse, maybe not immediately a lot worse, but with time a lot worse - look, there's the probability that that event has made a substantial contribution. Not an exclusive contribution, but a substantial one."
14. Then Dr Lee was invited by Senior Counsel for the Defendant to respond. His answer was (T 406. 4 - 12): "The past history suggests that she was - had a tendency towards mood instability even before this incident; there's no doubt about that. And the evidence is that most people would gradually adjust to terrible things happening and get over - get over even very traumatic losses, et cetera, as in this case, but the evidence before me also indicated that she had - at the time of the incident, she was not working. Since the incident, I understand that she is working, and she has been able to go on to have relationships. I can't see the evidence that she's materially worse after the death of her partner then she would have been beforehand. I don't - I don't see any evidence that supports that opinion."
15. I repeat my earlier observations, that to the date of Dr Lee's Report, Tamara had not achieved either being back at work in the sense of "she is working" or joined in a new relationship in the sense of "able to go on to have relationships". She gave frank evidence during cross-examination that she was studying in the hope of achieving a placement as an Assistant in Nursing. She was clear and convincing in her evidence that she had attempted bar work and was too intolerant of the environment, including drunkards, to manage more than a few shifts at each of two establishments.
16. During the expert witnesses' oral evidence, I came to the view that Dr Lee, in his one-hour Zoom consultation with her, may have received a different impression of Tamara than did I during her quite lengthy examination-in-chief, cross-examination and re-examination. Frankly, it sounded to me as if he was describing a person of different presentation and of different history, by degree, than my receipt of the evidence from all sources in the case had caused me to understand the situation to be.
17. With an intended focus upon what was identified at the opening of the hearing as the issue of psychiatric injury, and in order to understand Dr Lee's opinion, I asked a selection of questions of him. This occurred between T 428. 30 - T 430. 5. He agreed that persons who are gainfully employed are not necessarily excluded from the diagnosis of Post-Traumatic Stress Disorder. He agreed that a person with Post-Traumatic Stress Disorder can experience happiness. I asked these questions, because the preliminary impression I gained from the whole of the evidence was that I preferred the balance of consideration of the facts expressed by Dr Canaris, when coming to his diagnosis, to Dr Lee's focus on those facts which may, in a clinical sense, weigh against coming to the diagnosis of Post-Traumatic Stress Disorder and Complex Bereavement Disorder including depression and anxiety. I asked those questions of Dr Lee at that point, being near the conclusion of the medical expert evidence, in order to test my preference I sensed to be forming for Dr Canaris' opinion over that of Dr Lee.
18. I then took the opportunity to put to Dr Canaris and Dr Lee my observation of Tamara during her not short participation as a witness in the hearing in order to gauge the relevance of my observations, if any, and the extent to which they might assist in my assessment of the issues in this case as to damages. My question appears at T 429. 35 - T 430. 4. It was objected to and not answered. Accordingly, I have included those observations in my assessment of Tamara as a witness in the ordinary sense of employing the Court's experience with cases such as this and common sense toward determination of the issues.
19. Strongly in favour of acceptance of preference for the diagnoses at which Dr Canaris arrived is the following passage of evidence during which Counsel for Tamara put to the doctors her evidence given at T 52. It was her evidence that she thought of the Deceased every day and about what happened to him in the fire (T 422. 42 - T 423. 22): "CAMPBELL: Perhaps I might read the relevant evidence that follows, 'Q. How does that make you feel? A. Really upset. A big part of my kids' life just got taken from them.' This is transcript page 52, your Honour. HIS HONOUR: Yes, I remember it. CAMPBELL: And then it was asked, 'Q. It's now been almost three years since that night, correct? A. Almost four. Q. Four years, quite right. Almost four years since that night. Do you think you're improving in relation to those matters? A. No. Q. Could you tell the Court what you experience, what you think about, and how that affects you and how that affects your life? A. I don't sleep. I can hardly stomach a meal. Q. What about socially? Have you been affected by what's happened, and if so, how? A. I don't like to leave my house much.' Now, Dr Lee, if that's accepted, would you agree that that is consistent with a psychiatric injury? WITNESS LEE: Yes, if it's accept - I would. CAMPBELL: Dr Canaris, is that relevant to-- WITNESS CANARIS: Yeah, I think so."
20. As I heard that evidence, when given by Tamara, it sounded to me to be true and accurate. Dr Lee's acceptance that it indicated, if accepted, a psychiatric injury, in my view was appropriate.
21. Ultimately, Dr Canaris observed that the profession of psychiatrists is "actually quite divided" on the utility of tests such as SIMS (T 401. 15); and my observation met with that experience, having listened to these two psychiatrists display that division. It is a division the significance of which, on the evidence available in this case and in relation to Tamara, cannot with adequate precision be resolved. The questions and answers to the SIMS are not known and available for comment. I prefer Dr Canaris' opinion because he was able to explain his clinical approach and his reasons for reaching his diagnosis. My impression of Tamara's crushed, lethargic and dull presentation also causes me to prefer Dr Canaris' clinical assessment of her and to accept his diagnosis.
22. Given that I was primarily directed to clinical notes after the evidence of the expert psychiatrist witness evidence was concluded, I have done my best as a lay person to gain an impression of Tamara's medical history from her early teenage years and for a substantial period after the fire. I informed the parties that this is how I would proceed, because they required and left the clinical note evidence for my review without the opportunity of my having a grasp of it when I heard the expert evidence of psychiatrists. Obviously, as is always the case, the clinical notes record that which was medically relevant for patient care and the doctors could not have known that which they recorded might end up in evidence in these proceedings.
23. I prefer to commence this clinical note review with a summary statement of my conclusive impression. That is that Tamara suffered difficulties during her early disruptive family life which led her to mood swings, cranky outbursts, consumption of alcohol at a very early age, anxiety, and depression. She self-harmed by superficial cutting. In my view, it is significant that the clinical notes record that her mother informed her regular GP that she (mother) was very reluctant for Tamara to go into counselling. This was at age 15 years. Indeed, despite regular GP attendances over the next year, she required no psychological assistance from her doctors preceding her shock at the discovery of her pregnancy with Elijah. She was, then, diagnosed by her GP, Dr McKinnon, to not have a biological depression. She was, however, depressed and struggling.
24. She was very concerned of her mother's reaction. She required medication for her depression. Importantly, the clinical notes are consistent with her evidence that from the commencement of her pregnancy with Elijah she ceased self-harming. Later references to self-harming appeared to be to those earlier events but there are specific references to her being able to defuse that urge by speaking with her mother Kym.
25. Until the death of Bradley, Tamara was stable and coping with her then levels of depression and anxiety being readily managed with GP assistance. After the death of Bradley, her depression and anxiety immediately and severely increased. Four months post-fire, Tamara, in the interim having regularly attended her GP for her extreme grief, inability to eat and sleep, obsessively checking the fire alarms at her accommodation, extreme anxiety of cooking and fear of fire, was assessed by Hunter Primary Care, psychological services to be suffering severe psychological distress, depression in the extremely severe range, anxiety in the extremely severe range and stress in the severe range. Five months after the fire, she was reported as having spent only a few nights at her own accommodation at Windale because she felt unsafe and had fears of the risk of fire. Despite her having that independent housing since about one month after the fire, she and her two children were living predominantly with her mother. Psychologist, Ms Piper, recommended that she try spending more time at her own accommodation and achieve this by asking Narelle to occasionally sleepover at the house with her so that she could build confidence being there at night.
26. Her regular GP medical centre, on 28 July 2020, referred her to Hunter Primary Care Psychological Services for psychological support and management of symptoms of persisting grief, stress, anxiety, and depression following the traumatic loss of the Deceased. The GP note records that she was suffering thoughts of self-harm but with no intent because she sought help from her mother, that she had thoughts of suicide but with no intent or plan because she would never do it because of the children, that she had scattered the Deceased's ashes at Marmon point and when she attended there she felt a connection with the Deceased. Her mother was being supportive. Dr Burrough recorded her impression: symptoms suggestive of anxiety, depression, stress and persisting grief followed by the traumatic loss of her late partner, nightmares and dreams surrounding the Deceased exacerbated by smoke and house fires, that she rarely cooked on a stove because that made her think of the fire. Tamara reported that she would wake to light disturbances, suffered varying appetite between reduced and increased compared to normal and that she was scared of a fire event recurring. Dr Burrough recommended psychological treatment. A reason for her regular GP attendances and a background medical environmental factor was her ongoing chronic pelvic pain which she had experienced from at least during her pregnancy with Kruz. A referral from her GPs to another psychological service dated 5 January 2021, attaching her Mental Health Plan, was in the same terms.
27. The central attack on her credit and the basis for the challenge that Tamara lied to Dr Lee, that being Dr Lee's opinion, is based on her report to him of a happy childhood. During cross-examination, Tamara answered that references to her difficulties from about age 14 is not what she called "childhood". The Defence and Dr Lee's attack on her requires quick dismissal. This is because a happy "childhood" being described as before her parents' separation (about very early high school) is exactly how Tamara reported it to her treating GP after the fire: see Dr Burrough notes 28 July 2020, "Childhood: Lived at home with parents, good childhood".
28. To my lay understanding, the following recordings of events which I extract from the clinical notes are of significance. At 14 years of age, when Tamara was self-harming with superficial cutting, low mood, anger outbursts, mood swings, varying energy levels and some suicidal ideation during year 9 schooling, it was reported by Dr Ulrich, psychiatrist of EDUCARE to be occurring in the environment of the separation of her parents without any decision as to with whom she was to live. She was assessed to be suffering depression but not a major depressive disorder, nor any other form of affected disorder. Some elements of her behaviour were assessed to be consistent with oppositional defiant disorder.
29. Her GP did not report any significant psychological event during her pregnancy with Elijah. That is consistent with Tamara's evidence. In the early part of her pregnancy with Kruz, Tamara spoke with Dr McQualter of her early stress at a relationship split with the Deceased but that she was feeling positive about her pregnancy because their relationship was back on track. She suffered significant pain during her pregnancy with Kruz and what must have been the extraordinarily stressful experience of learning at 11 weeks that she miscarried Kruz's twin, when Tamara was unaware that she was carrying twins. At 18 weeks of the pregnancy, she had ceased taking her antidepressant medication Pristiq. Despite significant difficulties and pain during her pregnancy with Kruz, the GP notes do not record any significant psychological event.
30. Whereas in cross-examination it was put to Tamara that she told her GP Dr Dobrolot in 2018 that she had been self-harming, in fact the clinical note records that in 2018 she was not self-harming and had no thoughts of suicide. Those notes confirm that Tamara was scared to drive but, as in her evidence, she gave her doctor the acceptable reason that her car had been stolen, the thief had threatened her, and he was in jail 18 months. She told Dr Dobrolot that the thought of that event caused her anxiety attacks and feeling that she could not breathe. Tamara reported, at the same time, that she was living with the Deceased, Narelle and John, seven foster children and the Deceased's grandmother. She told the doctor that it was hectic but that she loved it because it felt like home. She was then, one year before the fire, attempting to achieve her Higher School Certificate at TAFE with an ambition of joining the Defence Forces, which she could not do without an HSC. At the time, she drank alcohol only occasionally, did not consume any drugs but smoked 30 cigarettes per day. Thereafter the clinical notes confirm Tamara's ongoing physical pain but no significant change in her psychological state of a background of vulnerability for depression and anxiety.
31. Indeed, following the loss of the Deceased, her partner, fiancée and father to her two children, Tamara regularly sought assistance from her local GP practice for the psychological distress she suffered. This commenced immediately. On 10 April 2019, Dr Mullenkopf recorded that, on her attendance, he did not even initially open a file because of the extent of her displayed distress. He recorded that Tamara complained of feeling unsafe. On 31 July 2019, the GP notes record that Tamara reported that Elijah and Kruz were asking for their father a lot. By 9 January 2020, eight months after the fire, Tamara had attended her regular GP practice 10 times complaining of distress and had received recommendations to seek psychological assistance and referrals for psychological assistance. At one point she asked for referral to a psychiatrist. She received medicinal treatment, but I will not impose my lay understanding and attempt to interpret.
32. In short, my observation is that there is a stark change in Tamara's mental health on a comparison of before and after the fire, apparent from the clinical notes, to my lay understanding. This is further support for preference for acceptance of the opinion of Dr Canaris.

Conclusion - S 31 CLA - Tamara Alderson

1. It follows from the whole of the medical literature to which I was directed and my consideration of the evidence of Doctors Canaris and Lee, in the context of the evidence given by Tamara, that I am satisfied, on the balance of probabilities, that she suffered and continues to suffer mental harm consisting of a recognised psychiatric illness resulting from the Defendant's negligence. At closing written submission MFI 33 [9.7], the Defence properly acknowledged that Dr Canaris did not resile, from his conclusion, that the incident contributed to the recognised psychiatric illness he diagnosed. What the Defendant Closing Written Submissions do not acknowledge is that, in the Joint Report and in oral evidence, Dr Canaris maintained his diagnosis whilst fully appraised of the whole of the medical literature. Also, as apparent from the above-quoted passage (at [257]), ultimately, Dr Lee accepted that Tamara's complaints were consistent with recognised psychiatric illness, if they be accepted. I do accept her complaints. For the reasons given, I do not accept the Defence written submission at [9.9] that Tamara refused to concede matters relevant to her recent social functioning, including that she had some level of sexual activity since the fire.
2. In my opinion, the Defence closing written submission, as did cross-examination of Tamara during the hearing, properly tested her limited engagement with medical treatment after the fire, in the context of her earlier mental health history, particularly in the period of her mid-adolescence. However, my view of the whole of the evidence on those topics is that Tamara suffered particular difficulties in her early life, engaged with the responsibilities and pressures of motherhood at a very young age and, whilst now suffering the consequences of the loss of the Deceased, father of her children, as an independent very young mother of two young children deserves some understanding as to her attention to psychologically based self-care, including her having to relive the circumstances of the loss of the Deceased, that being the predominant contributor to her compromised capacity to maintain life for herself and her family because of that psychiatric illness. In this would understandably, in my opinion, be a less than might be desired attention to pursuing medical treatment. That may not be the case for another person; but my view of her after the opportunity of observation throughout long evidence, leads me to accept that view and, in doing so, I particularly note the clinical records which do support finding the fact of her recognised psychiatric illness diagnosed by Dr Canaris. This includes that, in August 2019, Tamara accessed consultation with psychologist Kathy Barton, she consulted Dr Burrow, GP, on 28 July 2020 for psychological problems surrounding the passing of the Deceased and, in December 2020, her mental health plan transferred her care to another psychologist at Hunter Primary Care, but no contact was established. On 6 January 2021, Tamara discussed with Dr Burrow, GP, further psychological referral.

Evidence of Narelle Heafey

1. Narelle impressed me as an honest witness who gave evidence based on a strong recollection of events. In particular, her evidence, both in-chief and in cross-examination, contained appropriate concessions where her recollection was challenged, and she did not just make concessions against interest but volunteered evidence against interest. Overall, she answered questions cooperatively.
2. Narelle was born on 6 July 1971 and turned 53 years of age during the course of the hearing. She and her husband John live in Edgeworth, the next suburb to Barnsley in which the Premises is situated. She and John have two children of their own and have fostered seven children, all of whom were from neglected backgrounds and six of whom are Aboriginal. At the time of the hearing, three foster children remained living in their home and the others continued to visit Narelle and John there.
3. When Tamara, the Deceased and Elijah commenced living together, John and Narelle provided them with accommodation, firstly in a caravan on their property and subsequently a shed on the property was converted to an apartment for them. When Kruz was born to Tamara and the Deceased, he lived there with them before they moved to the Premises.
4. Narelle had the opportunity, of that living in close quarters, to observe that Tamara was a good mother and that her son, the Deceased, was an attentive father. She said that he was very hands-on with their two children (Kruz and Elijah), that he was always willing to get up for the children, played with them, changed nappies, and so on. Narelle said that the Deceased was "proud as punch" to be making his own life with Tamara in the Premises and, as she put it, "trying to do it on their own".
5. Narelle observed that Tamara and the Deceased did experience some friction in their relationship. She said that they would have their fights, but they would always get back together. On occasions of their fights, Tamara would leave for a day or two to stay with her children at her mother's home, but they would always work it out and get back together. Again, in my view, it is appropriate to remember the relatively young ages of Tamara and the Deceased, caring for their two young children at that time, in order to give appropriate context to that description of their relationship. Narelle's was a very believable description of a young couple making a go of family life.
6. Narelle told of she and John noticing a sign in the window of the Premises. They informed the Deceased and Tamara that it was available for rent. Narelle considered it a perfect location because it was both close to herself and John for whenever the couple required some assistance, and it was only a five-minute walk from John's business at which Bradley worked.
7. An uncontested fact is that Narelle attended her son, the Deceased, at the Premises, shortly before the fire, some time at around 7:30pm or 8:00pm that evening, to deliver his regular medication of Endep. Her recount of their conversation and of the Deceased's engagement with a person named Mark was not challenged during cross-examination. The conversation is persuasive evidence that the Deceased was not at that time noticeably affected by any form of intoxication and it is part of the whole of the circumstances relevant to her suffering a mental shock from his death in the fire (T 104. 41 - T 105. 5): "Q. Was it 8am or 8pm? A. 8pm, sorry. He was in quite good spirits. We talked about the day he'd had at work. He - and spoken that he'd worked hard with dad that day. I had a joke with him and laughed and said, "You work hard". He never worked hard. We used to always joke about that. I remember saying to him, "Oh, you know, what are you doing tomorrow?" And he said, "Going to work". I said, "Oh, okay". I said, "How are you getting there?" He said, "I'm just going to walk. Left car - left me car down at dad's work yesterday," and I said, "Oh, that's right, you did". And he said, "All right". And I had a bit more of a chat. He asked Mark, who was in the car with me, you know, "What did you do at football?" They had a bit of a conversation because he played in a rep team that night. And then we said hurrays. He gave me a cuddle. I gave him a cuddle. He said he loved me. I said, "I love you". I said, "I'll see you tomorrow down at dad's work". And he said, "Yep. See you tomorrow at work," and I left, and he waved. I waved and I left."
8. During examination in-chief, Narelle agreed that the Deceased, before the fire, had been on and off work for a while and she volunteered that he would have days off where his back was "a bit bad" and he could not work. She said that the Deceased did work most days and that he, at the time of leading up to the fire, was working hard. She and John were hoping that the Deceased would take over John's company and that he would be able to run the business with one of the other employees so that they could have time off and start to "back up and be able to go and have some more holidays": T 108. 5 - 14. During cross-examination she gave the following evidence, which would have been obviously against the interests of her son's, the Deceased's, family in these proceedings, and it is but one of several points during evidence which show what a credible witness she was (T 108. 17 - 22): "Q. Your son, I'm sorry, did he have a bad back, ma'am? A. Yes, he did. Q. And do I understand you to say that that kept him off work from time to time? A. Sometimes, yes."
9. She immediately then, and in the same forthright manner, confirmed that she had told Police following the fire, that her son, the Deceased, was taking Endep for back pain, nerve damage, and mild depression. During cross-examination, she agreed, in the following terms, that Endep would make him tired (T 109. 4 - 6): "Q. The Endep would make your son tired, and he would often fall asleep after taking it, is that right? A. Sometimes, but not all the time."
10. Given the contest as to whether or not Narelle suffered a compensable psychiatric illness, I set out Narelle's unchallenged evidence of her experience on the evening of the fire and the death of her son (T 105. 14 - T 106. 21): "Q. And did you know where Tamara was? A. Yes. I knew that Tamara was at her mum's, with the boys, and they'd had a night over there. Q. Following the fire, did you return to the house? A. That night, we left - I left there and went home, and we'd all had a normal night. I was in bed. I was just about to get into bed, in my pyjamas. My phone rang, and I was thinking, 11 o'clock at night, and I remember looking at the phone, thinking, "I don't know this number," because most numbers come up with a name. And I remember looking at the number thinking, "I don't know this number," and I thought, "Oh, answer it. I suppose I better answer it". And I remember answering it, and it was the owner of the house saying, "Is Bradley at your place?" And I said, "No. He's at home". And he went, "No, he can't be at home. He - he can't be here". And I said, "Well, he is there," and he said, "No, he can't be here". And I said, "Well, he is there," and he said, "His car's not here". And I said, "His car's at his father's workshop". And he said, "The house is on fire". And I just remember screaming to my husband, "Get out of bed," as threw my phone done and then tried to get dressed myself, because I was in my pyjamas, and I remember getting dressed and screaming at my husband, "Get out of bed. We have to go. The house is on fire". And my husband is screaming at me, going, "What are you talking about?" And I was saying, "The house. The house. The house is on fire," and he's looking at me, thinking, "What are you talking about?" Because I think he thought I was saying our house was on fire. And then I went, "No, Bradley's house is on fire. We have to go". We got in the car and we drove down - because our house, like - Edgeworth and Barnsley are only one, like, suburb away, and we drove down there, and we drove in the street, and the - the firemen and the police had the street stopped, and I - I jumped out of the car before my husband had even pulled the car up, and I just started running down the street, and I could see the flames, and I remember getting to where the telegraph pole was, which was right near his house, and I could remember just seeing the flames, and I remember just screaming and going, "He's gone". Like, I knew. I knew there was no way he was going to be out of there. And I was just sitting there, screaming, "He's gone. He's gone". And the first thing I kept thinking was, "Oh my God, why didn't I put a battery in that fucking alarm?" Sorry for swearing. But they were my words and then I looked and the owner was standing there and I remember looking at him thinking to myself, "My son's dead over a battery," and then I just collapsed as I sat there, looking and watching the fire knowing. And by that stage, then my husband had got to me and the police and the men come over to my husband and told my husband that they had found the body. But they couldn't retrieve him out because it was too dangerous, and we had to sit there and watch it burn. We sat there for three hours watching this house just burn and burn, while I watched him sit in that house. And we could not do nothing. We couldn't get him out. They couldn't do nothing because they couldn't go in. They couldn't get him out. And I remember just sitting there thinking about overhearing the conversation and thinking how stupid I was for not getting out and putting batteries in the stupid things myself. And I have done nothing but blame myself from the day he has died that I should have done it myself and I've had to go to counselling over that to stop blaming myself for it. Because that's what I've done. As a mum, I did not protect him. I did not go and put batteries in it. I have not done - as a mum, I have not protected him."
11. Narelle was upset at times during the giving of her evidence and, following the above-quoted passage, the Court took a short break in order to permit her to compose herself so that she could continue.
12. Narelle gave, what appeared to me to be, an unexaggerated description of her present mental state consequent of the fire and the loss of her son, the Deceased. She was candid in stating that, after months, she could not sleep during the night because she did not want to go to sleep at night and slept during the day instead, she had suicidal thoughts, but with a lot of counselling she has started to get better. She explained that having foster children, her own children and grandchildren has "probably been my saving grace … because I've had to live for them. And that's what I've had to learn, to try and learn not to live on the past, and think about what he would want me to do.": T 107. 38 - 44.
13. The following answer she gave during examination-in-chief concerning her medication included the volunteered statement that she had been administered antidepressant medication prior to the fire. The prescription was increased to assist her to cope after the fire (T 107. 46 - 49): "Q. What sort of medication are you taking in relation to the issues that you've described? A. I'm on antidepression tablets, which have had to be put up to make sure that I can cope."
14. Dr Lee, psychiatrist, on whose expert opinion evidence the Defendant relies, described Narelle to be not forthcoming about her pre-existing mental state. His description does not meet my assessment of her testimony given in Court. During cross-examination she readily gave the following evidence of her pre-fire psychological and physical health conditions:

• She had taken antidepressant medication for many years relating to her being overweight.
• For over a year she had experienced problems with her back and she had undergone the spinal surgery of discectomy. When, in cross-examination, it was put to her that during the telephone interview with Dr Lee, she reported that she did not suffer any physical problems prior to the accident, she emphatically denied that proposition. She said that she did tell him. She described the telephone interview as not having lasted "long at all actually. It wasn't much".

Narelle - S 31 CLA Assessment of Mental Illness

1. Expert Psychiatrist, Dr Teoh, on whose report dated 20 August 2021 Narelle relied, concluded, principally on the basis of her presentation and history which she gave during telephone consultation assessment, that she did suffer the recognised psychiatric illness of Major Depressive Disorder. He found that Narelle had a pre-existing psychiatric condition of depression, predominantly with chronic pain and somatic symptoms. He reported his opinion that (Exhibit N, Joint Report): "The death of her son has precipitated these significant depressive symptoms. I did not find evidence of exaggeration in my assessment. I thought that she was spontaneous, consistent, and she could directly relate her depressive symptoms to the death of her son."
2. Dr Lee, Psychiatrist, on whose report dated 28 January 2022 the Defendant relied, considered Narelle to have been less than frank in her disclosure of her pre-existing mental health and physical pain. Dr Lee concluded that Narelle did not suffer a diagnosable disorder due to the incident. Dr Lee based his opinion on comparison of her report during consultation assessment of her pre-existing health and on the results of psychometric testing for malingering which he conducted. He found those tests indicated that she markedly exaggerated numerous symptoms. In the Joint Report (Exhibit N) he stated: "I concluded, based on her records, that Ms Heafey had a pre-existing pain disorder or somatic symptom disorder of marked severity, and because she was markedly exaggerating her current systems, I was unable to provide a precise psychiatric diagnosis. However, I did consider that she might have had a bereavement disorder due to the loss of her son."
3. During their simultaneously given oral evidence, extensive questioning identified the different clinical approaches employed by the psychiatrists in their assessments. Whereas Dr Teoh believed that psychometric testing could play a part; he expressed reservations concerning its utility and considered professionally the correct approach was to prioritise the experienced clinician's expert assessment of the patient's consultation, whilst noting the consistency and the relevance of the history and mental state examination. Dr Lee expressed the opinion (for instance, Joint Report, Exhibit N, page 2) that it is frequently difficult to detect exaggeration without having administered psychometric testing, which he considered to be independent and objective.
4. Despite his sometimes use of the expression, in relation to causation, that the death of the Deceased in the fire "precipitated" Narelle's Major Depressive Disorder, in answer to Question 6 in the Joint Report and as confirmed by him during oral evidence, Dr Teoh's conclusion is more accurately stated as that the death of her son aggravated her depression: T 499. 5; T 500. 40.
5. In his report of 20 August 2021 (Exhibit M), Dr Teoh described his impression of Narelle as her feeling depressed, lacking motivation, finding it an effort to do things, socially withdrawn and not communicative, struggling with relationships and stress, experiencing intrusive memories, and having poor concentration. Dr Lee did not suggest that Narelle was not distressed. His opinion was that she did not suffer more than a significant grief or bereavement reaction, and not a recognised psychiatric illness including the Major Depressive Disorder diagnosed by Dr Teoh.
6. After the fire, Narelle was referred to and obtained psychological counselling, particularly because she continued to ruminate about the death of her son and because she sensed helplessness. She underwent cognitive behavioural therapy and Eye Movement Desensitising and Reprocessing Therapy ("EMDR") for traumatic stress. She continued to worry about the welfare of her grandchildren without their father.
7. Significant in the clinical history considered by both Doctors was that Narelle had been prescribed Lexapro by her General Practitioner for 10 years prior to the fire. Lexapro is a medication for depression, and it is common ground that Narelle was medicated for her pre-existing depression. It is also common ground that, subsequent to the fire, Narelle's GP significantly increased her dosage of Lexapro.
8. Dr Lee partially agreed with Dr Teoh by observing that some patients whose mental health condition has stabilised continue to take medications to prevent recurrence: T 501. 10. The point was that continuation of Lexapro pre-fire did not of itself establish ongoing serious symptoms of depression. The parties referred me to clinical notes concerning dosages. Indeed, the notes refer also to prescription of temazepam which the expert psychiatrists explained would have been prescribed for assistance with sleep. The clinical notes were tendered after the expert evidence of the psychiatrists.
9. Ultimately, clinical notes relied on were limited to a selection of those contained in Exhibit Z, which selection includes all clinical notes to which the parties directed attention during closing addresses. Having looked at those clinical notes, save for elevation in the prescription for the anti-depressant medication Lexapro, with which I deal at [299] of these reasons, I am of the view that the expert evidence of Doctors Teoh and Lee covered the field such that there is nothing else of significance in the clinical notes which would assist me in preferring the opinion of either doctor to the other.
10. Dr Lee considered Narelle's history of taking Lexapro to indicate a chronic vulnerability to stressors. Dr Teoh stated that, even if it were possible (and in his opinion, after cross-examination on her prior pre-existing medical history, it is not possible) to assess precisely what her state of depression was immediately preceding the fire; even then, the death of her son had caused her Major Depressive Disorder which persisted at the time he saw her in July 2021, "… either making it worse or precipitating the new symptoms…": T 497. 25 - 49.
11. The Doctors described their impression of the history of change in Narelle's illness of depression prior to and after the fire as follows (T 502. 15 - T 503. 16): "WITNESS TEOH: Yes, I think your Honour, this is precisely why I find it very difficult to answer the questions because when, Ms Heafey told me that she was in remission, I think, prior to the - the son's death, I think she meant she was feeling reasonably well, prior to the son's death and that following the son's death, she became significantly depressed. But whether she was in remission, as you said, we can't be sure of whether she was completely well, happy, or she was chronically unhappy, anxious, which I think the history suggests that she's been chronically anxious over many years. Whether she was completely well, I think it's difficult to determine, because the remission, especially for a lay person, like Ms Heafey, is very difficult. She probably meant that following her son's death, she was significantly more depressed than prior to his death. So, therefore she was in remission according to her, but the other issue is whether she has this extensive history that we discussed but I get impression that she was anxious, depression, family problems with son. She had multiple physical problems. She took Lexapro but she was never admitted for the hospital for severe depression. I'm not sure whether she saw a psychiatrist, so she is vulnerable in terms of her personality or whatever vulnerability she has but the death of her son has led to significant depression so I think it's difficult to tell, as you - as you elaborate, what remission means, particularly in psychiatry and mental health. HIS HONOUR: Dr Lee. WITNESS LEE: Your Honour, I think you very presently put the issues. It's very true that psychiatrists often treat people long-term for chronic conditions, unhappiness, anxiety, depression. It's often hard to say when it becomes a disease and when it becomes a reaction, how much the personality contributes to it and so forth and, just like chronic pain, it's - it's nebulous. I mean, one has pain. It fluctuates. One sometimes says, "Is there an organic condition? Is this something that's manageable with rest, ice, et cetera, et cetera?" It's nebulous and you'll get a variety of opinions so I would agree with your Honour in that sense but, equally, when one is asked about the effects of a stressor on someone, one is usually pressed to say, "Is there a distinct condition? Is there a difference between how they were before compared to how they were afterwards? If so, what is the difference? Can it be measured objectively?" and this is what I tried to do when I assessed someone. I can tell you that, when I saw Mrs Heafey, despite saying that I only saw her for a brief period, I did not consider that she was objectively depressed. She - I've described the mental examination. I could not find any objective evidence of a clinical depression and, equally, the SIMS and the other tests suggested that she was markedly exaggerating the symptoms and that's the reason for my opinion but I accept your Honour's pointing out that that's often nebulous and, in fact, one of the issues behind this is the chronicity of psychiatric disorders because, often, it's vulnerable personalities that we're treating and I think it's often artificially demarcated into "illnesses" like major depressive disorder and, in fact, the boundaries between psychiatric disorders often shade into normality. It's often been said, for example, that the DMS does not precisely instruct us where the boundary between a normal reaction to a stressor is and when a psychiatric disorder starts. It's a judgment that we have to make ourselves, based on our experiences."
12. After the fullness of the questioning during the simultaneously given expert opinion evidence, Dr Teoh remained adamant in his acceptance of Narelle's complaint to him that, following the death of her son, she became significantly more depressed; whereas, Dr Lee remained adamant that, given her pre-existing medical history and her scores on the SIMS testing as well as what he considered to be her lack of frankness when disclosing the extent of her past medical history, he did not accept that complaint.
13. During cross-examination after his above-quoted passage of evidence, Dr Lee conceded that he had not seen the clinical note entry for 2 November 2020 that the Lexapro was increased from Narelle's pre-fire prescription of 20mg per day to 40mg per day (2 x 20mg). Following that, on 17 November 2020, the GP noted that she was slowly improving on Lexapro 40mg daily: T 517. 32 - 47. Dr Lee conceded that it was reasonable to find that increase in medication to have been consistent with Narelle progressing from being able to maintain herself on the lower dosage of Lexapro preceding the fire, but requiring the doubling of her dosage "due to the tragedy of losing her son in the house fire": T 518. 30 - 35. Dr Lee agreed that Narelle remained on "those high level doses" subsequently and at least for the two years for which the clinical notes are available: T 518. 39; T 518. 46.
14. On the whole of the evidence concerning clinical notes, both those preceding and those subsequent to the fire, both Doctors considered the most likely cause of the increase in Narelle's Lexapro to be due to depression caused by the death of her son. Ultimately, Dr Lee explained it as follows (T 522. 24 - 44): "WITNESS LEE: Okay, I guess - so I think so. I think the - the most likely reason for increasing the Lexapro is due to depression was by the - the death of her son, Bradley. Because I think looking at the record, she was on two 20 milligrams for many, many years. So whether she was completely in remission, partial remission, we're not sure, but at least she was stable enough for the doctors not to consider changing the Lexapro. But following the death of her son, the doctor has made several attempts to increase the - the Lexapro and had to reduce it because of side effects, which is not uncommon. So there was some attempt to change the medication or at least increase, suggesting that she could be more depressed. But also, referring to the note that was mentioned earlier on 2 December 2020, I don't know what it says, but I - I've listened to what was presented that she was overwhelmed, no motivation, Christmas was coming, not sleeping, suicidal, needing a lot of care, I think this all suggests symptoms of depression. Now, whether she was doing all the other activities, and whether it's normal activities or unusual activities, I think most activities does not tell us how depression is - she was. I think it's more the clinical note of how she was feeling at the time. So I, I believe that the changes in the antidepressant is a result of the depression getting - which got worse following the death of her son."
15. Both Doctors agreed that, generally, specialist psychiatrists employ an assessment of a six-month period of symptoms in order to arrive at a diagnosis of depression. Dr Lee commented further that the boundaries of depression versus bereavements are constantly being assessed and changed, and that expert psychiatrists have disagreements about when grief becomes an illness. He put it that the patient is expected to have recovered from grief by six months and if it persists after that then it is considered to be an illness. But, the reality is that, often, people with grief suffer for a long time: T 523. 15 - 20.
16. I observe that the clinical notes do show that Narelle suffered long-term back pain and depression prior to the fire but, from very soon after the fire, she attended her GP, sought psychological counselling and complied with her GP's recommendation to increase her Lexapro medication as well as to take Mirtazapine to assist with sleep. My general observation is that she received intensive medical care following the loss of her son and that it continued for the two years of the clinical notes in evidence. That is an escalated medical need identifiably caused specifically by the loss of her son due to the fire. Treatment of that increased medical need is consistent with the opinion of the expert witnesses, particularly Dr Teoh.
17. I am satisfied that Narelle was caused to suffer the recognised psychiatric illness Major Depressive Disorder by the loss of the Deceased, and that her illness continues.
18. Whilst the value of the SIMS testing performed by Dr Lee was hotly contested between Dr Lee and Dr Teoh, that is not a dispute as to best professional approach which I am qualified to resolve. But in this case, there is a known, real, and extreme stress trigger, being Narelle's loss of her son by fire which arrived with the shock of the telephone call from the Defendant and her attending in the street as the Premises burned whilst knowing that her son Bradley was deceased inside.
19. I accept that the investigation by the authorities following the fire and then these Court proceedings have provided stressful reminders of the tragedy of the loss of Bradley, and I have allowed for that in my assessment of the evidence and my ultimate preference for the diagnosis of Dr Teoh. It is to be remembered that Dr Lee, on account of his view that Narelle was not frank with him in regard to her pre-existing and post-fire circumstances, was unable to arrive at a diagnosis and, on that basis, did not agree with Dr Teoh coming to his diagnosis. As seen in the above-quoted passages of his evidence, Dr Lee ultimately accepted that the fire caused Narelle to suffer recognised psychiatric illness in the form of aggravated depression and backed away from his report opinion that she suffered only grief and bereavement.
20. Dr Teoh expressed a prognosis of "poor" because of the persistence of her depressive symptoms over an extended time. Dr Lee's reported prognosis was "guarded" but that is because he did not then accept that the death of the Deceased had significantly worsened her mental illness because he had missed her post-fire increase in Lexapro. I am persuaded to accept Dr Teoh's prognosis.
21. I find that the Defendant's negligence caused Narelle to suffer a recognised psychiatric illness.

Assessment of Non-Economic Loss - Tamara Alderson and Narelle Heafey

1. I have accepted the opinion of Dr Canaris, specialist psychiatrist, and his diagnosis of Post Traumatic Stress Disorder with Persistent Complex Bereavement Disorder for Tamara. He recommended treatment modalities of psychological counselling and medication for a period of two years. His prognosis for her recovery was guarded. As the case was run, the parties presented a choice between acceptance of the opinion of Dr Canaris or the opinion of Dr Lee. Accordingly, my assessment of the extent of illness suffered by Tamara is strongly guided by the opinion of Dr Canaris, and those parts of the oral evidence of Dr Lee to which I have referred and in which he acknowledged that, if her complaints be accepted; then she does suffer a recognised psychiatric illness. I bear in mind the obviously sudden and extreme shock suffered by Tamara, commencing from police contacting her at about 11:30pm enquiring of the whereabouts of her partner, the father of her children, the Deceased, and then her remaining in the street outside the burning and then smouldering house knowing that he was deceased inside. Obviously, I bear in mind Tamara's need for psychological treatment, particularly during her adolescence and, before that, her history of self-harming. She has lived a life of some degree of hardship at home in the form of not getting along with her father from a relatively young age, and the challenges of responsibilities for her young children. Immediately preceding the fire, she was a young person with those complexities in her life environment and making a go of it with her partner and their two children. In my opinion, Tamara is significantly ill. Her evidence of staying at home much of the time, visiting the lake where the Deceased's ashes were spread, and limited social engagement, as I have explored in the evidence, meets with significant ongoing suffering of her illness. Her diagnosis, along with ongoing depression and anxiety, render her life abilities significantly compromised. At the time of the hearing, her symptoms had continued for four years. She has been deprived of a normal level of enjoyment of life in what should be the prime of her life as a mother of two children and she being in her twenties. Fundamentally, she reports abnormally low energy, whilst well directed to achieving a nurse's aide qualification and the raising of her children. She continues to suffer thoughts of the fire and hypersensitivity, such as is exhibited by her fear of the smell of fire and her reluctance to use the stove for cooking.
2. On behalf of Tamara Alderson, it is submitted that she is entitled to 34% of a most extreme case, pursuant to s 16 CLA. The Defendant submits that she is entitled to 22%. In my opinion, Tamara Alderson is entitled to assessment of damages pursuant to s 16 CLA for her non-economic loss assessed as 31% of a most extreme case. The sum is $187,500. This sum is to be discounted in accordance with s 50(4) CLA. Tamara is entitled to non-economic loss damages in the net sum of $140,625.
3. I have accepted the opinion and diagnosis of Dr Teoh, specialist psychiatrist, in preference to that of Dr Lee as to the mental illness and suffering of Narelle Heafey. I have found Narelle to be a credible witness. Narelle also is significantly ill in that the loss of her son, the Deceased, caused by the fire resulted in her suffering Major Depressive Disorder. This was a significant aggravation of her pre-existing vulnerability for depression. Prior to the fire, Narelle was medicated for maintenance and stability of her long-term back pain, depression, and chronic anxiety. Her symptoms were sufficiently controlled such that, in the evidence, they have been described as in "remission". She was plainly managing life successfully as a wife, mother, grandmother, and foster parent to many children with whom she remained in close contact. The extent of the aggravation of her mental health condition, caused by the fire and the loss of the Deceased, is objectively to be found in measure of the increase of her medication. Whereas, prior to the fire, her symptoms were maintained and she was coping successfully with life whilst prescribed the dosage of Lexapro 20mg once per day, after she sought medical care for the fire-caused aggravation to her mental illness, from 2 November 2020 her dosage was doubled to Lexapro 2 × 20mg per day. That was one and a half years after the fire and her suffering the loss. The sudden shock suffered by Narelle is easy for anyone to appreciate. Late at night, she was telephoned by the Defendant asking of the location of her son and, from that phone call, was screaming at her husband, John, to get out of bed because they had to attend the house which was on fire. The level of her stress was such that John was roused thinking she was speaking of fire in their house and was, at first, not able to understand her. Thereafter, she was in the street watching the house burn with her deceased son inside and wrongly blaming herself for not having replaced the fire alarm battery. Narelle's evidence describes her as being well directed toward her depression. She realises that she has to learn not to live in the past but to think about what her son, the Deceased, would want her to do. In terms which most people would find acceptable and reasonable, she said that caring for foster children and her grandchildren is what helps her cope.
4. On behalf of Narelle Heafey, it is submitted that she is entitled to 32% of a most extreme case, pursuant to s 16 CLA. For the Defendant, it is submitted that she is entitled to 25%. In my opinion, Narelle Heafey is entitled, pursuant to s 16 CLA, to assessment of damages for her non-economic loss assessed as 27% of a most extreme case. The sum is $72,000. This sum is to be discounted in accordance with s 50(4) CLA. Narelle is entitled to non-economic loss damages in the net sum of $54,000.

Orders

1. I make the following orders: 1. Judgment for the Plaintiff, Tamara Alderson, against the Defendant in proceedings no. (2021/00080424) in the sum of $143,063.55. 2. Judgment for the Plaintiff, Narelle Heafey, against the Defendant in proceedings no. (2021/00080450) in the sum of $59,520.64. 3. Judgment for the Plaintiff, John Heafey, against the Defendant in proceedings no. (2021/00174019) in the sum of $52,500.00. 4. Standover proceedings brought by Tamara Alderson no. (2021/00309993) on behalf of herself and Elijah Heafey and Kruz Heafey for the purpose of infant approval determination. 5. Standover proceedings for damages brought by Elijah Heafey no. (2021/00080437) for the purpose of infant approval determination. 6. Standover proceedings for damages brought by Kruz Heafey no. (2021/00080442) for the purpose of infant approval determination. 7. The matter is listed for directions in regard to Orders 4, 5 and 6 on 10 May 2024 at 9:45am, with leave for the parties to appear by AVL.

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