Alizadeh v LG Electronics Australia Pty Ltd [2025] NSWDC 271 | Case summary

Alizadeh v LG Electronics Australia Pty Ltd [2025] NSWDC 271 | Case summary | Zoe

Dr Hamid Alizadeh (the first plaintiff) is a general practitioner. Ms Mojgan Aminnejad (the second plaintiff), his wife, is a genetic scientist.
On 18 April 2006, Dr Alizadeh bought a new LG side by side refrigerator, model number GR-P197WVS, from Harvey Norman Electrical Auburn. As well as bearing that model number, the fridge had its own unique serial number.
The fridge had been manufactured by LG Electronics Inc. in Korea (LG Korea) and was imported by LG Electronics Australia Pty Ltd (the defendant).
The defendant is an Australian company. It did not design or manufacture the fridge. It is a sales and marketing subsidiary within the LG group of companies.
On 30 June 2011, the defendant issued a voluntary product safety recall of certain side by side refrigerators. The affected fridges were identified by their model and serial numbers. Not all fridges of a particular model were caught in the recall, only those with particular serial numbers.
The product safety recall notice stated that the defect or hazard was that “The micro-switch in the icemaker of identified models could deteriorate causing the icemaker to malfunction and in certain circumstances may result in a fire hazard”. Twenty-four different models were identified by their model numbers and readers were invited to visit a particular internet webpage “for details of affected serial numbers”. Customers with affected models were requested to contact the defendant “to arrange for a service technician to replace the micro switch”. Ms Soud, the Legal & Compliance Manager of the defendant, informed New South Wales Fair Trading at the time that there were 39,067 fridges affected by the recall.
LG Korea supplied the defendant with the list of models and serial numbers to include in the recall notice. The list was provided in a document the parties referred to as a spreadsheet.
The plaintiffs’ fridge was one of the 24 models listed in the recall notice, but the serial number of their fridge was outside the range of affected numbers. As such, it was not included in the recall.
On 11 March 2019, the plaintiffs’ fridge caught fire in the kitchen of their home. The fire caused damage to their home and its contents. The plaintiffs had insurance for the home itself, but not its contents.
The plaintiffs commenced these proceedings by statement of claim filed on 25 June 2021 alleging that the fire was caused by an internal electrical failure of the icemaker within the fridge. Initially they sought damages for breach of guarantees provided by the Australian Consumer Law, and in the alternative, for negligence. The hearing proceeded only on the basis of the claim for negligence. It was no longer possible to bring a claim under the Australian Consumer Law because more than 10 years had passed since Dr Alizadeh had purchased the fridge.
In essence, the plaintiffs claim that the defendant was negligent in failing to identify and include their fridge in the 2011 recall.
By the end of the hearing, the plaintiffs sought damages in the sum of $336,398.47 broken down as follows:

The plaintiffs sue the defendant in negligence.
In Tame v New South Wales (2002) 211 CLR 317 at 348–349 paragraphs [88]-[90] McHugh J explained that the common law of negligence has 3 elements – a duty of care owed to the plaintiff, a breach of that duty and a causal connection between the damage sustained and the breach of duty. Furthermore, the damage must not be too remote from the breach. Central to the elements of breach of duty and remoteness is the concept of reasonable foreseeability. In the absence of a pre-existing duty of care owed by the defendant to the plaintiff, the concept of reasonable foreseeability also plays a vital role in determining whether the defendant owed a duty of care to the plaintiff. Although it is usually convenient to discuss negligence law in terms of its 3 elements, each element can be defined only in terms of the others.
In Roads and Traffic Authority v Dederer (2007) 234 CLR 330 at 338-339 paragraph [18] Gummow J restated some basic and settled matters of legal principle about the relationship between duty and breach in the law of negligence. His Honour said “First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.”.
More recently, in Electricity Networks Corporation t/as Western Power v Herridge (2022) 276 CLR 271 at 282 paragraph [20] the Court said that in formulating a common law duty, it is important to keep in mind the distinction between the existence and content of the duty (who owes the duty, whom do they owe the duty to, and what kind of risks of harm must they take reasonable care to minimise or avoid?) and questions of breach (what were the reasonable precautions required in the circumstances, and did the person discharge the duty?).
In Swain v Waverley Municipal Council (2005) 220 CLR 517 at 534 paragraph [40] McHugh J said that “To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff”, citing amongst other cases Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319 per Windeyer J. In Vozza Windeyer J said (McTiernan, Kitto, Taylor and Owen JJ agreeing) at 319: “For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”.
Part 1A of the Civil Liability Ac**t 2002 (NSW) applies to the plaintiffs’ claim because it is a claim for damages for damage to property resulting from negligence and it is not excluded by section 3B: s.5A. Part 1A comprises sections 5 to 5T of the Act. Only some of those sections are relevant to the plaintiffs’ claim.
The provisions of Part 1A of the Civil Liability Ac**t 2002 relevant to the plaintiffs’ claim are sections 5B, 5C, 5D and 5E. They provide as follows:

The plaintiffs alleged that the fire was caused by an internal electrical failure of the ice maker within the refrigerator (paragraph 7). The defendant denied this.
The plaintiffs alleged that it was reasonably foreseeable to the defendant that if it failed to accurately identify the serial numbers which contained the defect, there was a real risk, being a risk that was not insignificant, that the plaintiffs would suffer loss and damage (paragraph 19).
In particulars to paragarph 19 it was stated that the risk that if a refrigerator with the defect was not identified as an affected model under the recall, and therefore would not be the subject of the recall, the plaintiff would suffer loss and damage, was reasonably foreseeable (particulars to paragraph 19).
The defendant denied paragraph 19.
The plaintiffs alleged that the defendant owed a duty of care to the plaintiffs, as a purchaser of a refrigerator with the serial number of the fridge they purchased, to exercise reasonable care in its assessment of “an Affected Model” to ensure the plaintiffs were made aware of the fire hazard (paragraph 20).
In response, the defendant admitted that “it owed the plaintiffs a duty of care”; but denied the content or scope of duty contended for by the plaintiffs; denied breach; and did not admit that the plaintiffs’ refrigerator contained the defect or otherwise contained the same micro-switch referred to in the recall notice.
On the premise that the fire was caused by an internal electrical failure of the icemaker within the plaintiffs’ refrigerator (paragraph 7), the defendant should have included the plaintiffs’ refrigerator as an Affected Model and included it in the 2011 recall (paragraph 22). In particulars it was stated that a reasonable person in the position of the defendant would have identified the refrigerator as an Affected Model and included it in the recall (particulars to paragraph 22).
The defendant denied paragraph 22.
The plaintiffs alleged that in breach of that duty of care, at the time of issuing the recall, the defendant failed to exercise reasonable care in its assessment of an Affected Model (paragraph 23). The defendant denied this.
The plaintiffs alleged that had the defendant identified the refrigerator as an Affected Model and included it in the recall, the plaintiffs would have called the customer information line pursuant to the directions in the recall notice to arrange for a service technician to replace the microswitch that caused the fire (paragraph 23A). The defendant denied this. It also asserted that even if the recall notice had identified the plaintiffs’ refrigerator, the incident still would have occurred as the plaintiffs had changed addresses on multiple occasions without advising the retailer, Harvey Norman, or the defendant, and accordingly, it is unlikely that the plaintiffs would have taken notice of the recall and taken action accordingly (Defence paragarph 22).
If the defendant included the refrigerator in its list of Affected Models, the plaintiffs would not have suffered the loss because the fire would not have occurred (paragraph 24). The defendant denied this.
The fire was caused by the defendant’s negligence in failing to identify the refrigerator as an affected model and notify the plaintiffs (paragraph 25). The defendant denied this.
Otherwise, in its defence the defendant:

As I have already said, the defendant is an Australian company. An ASIC Current and Historical Organisation Extract in evidence shows that all of its issued shares are owned by LG Electronics Inc of Seoul, Korea. This is the company I have already referred to as LG Korea. The same ASIC record describes LG Korea as the defendant’s ultimate holding company.
In her evidence, Ms Soud agreed that the defendant is and was in 2011 a wholly owned subsidiary of LG Korea. She also described it as a sales and marketing subsidiary within the LG group of companies.
The defendant imports, distributes and markets electrical goods, including white goods, in Australia. It does not operate any manufacturing facilities in Australia. All appliances are manufactured overseas, either by LG Korea in Korea or by other, mostly subsidiary operated, factories around the world. The defendant orders stock from those manufacturers and imports, sells and distributes the appliances through its own sales channels in Australia.
Before an appliance is imported into Australia, the manufacturing entity engages a safety certifier in Australia who obtains testing and certification documentation from the factory that manufactured the goods and then processes the paperwork in Australia in order to apply for safety certification in Australia.
When an appliance is imported into Australia, the defendant undertakes a visual inspection of a sample unit from an imported shipment to ensure that it meets the regulatory requirements for it to be marketed in Australia, and that the unit matches the technical specifications for that product. The inspection will include ensuring the correct energy label is applied to the appliance and matches the registration on the GEMS website, ensuring other labels are attached as required in Australia and that warranty cards are in accordance with the requirements in Australia. The defendant does not disassemble the product during this inspection, as the inspection relates to marketing requirements in Australia only.
The defendant does not undertake any safety testing and does not have the laboratory facilities to do so. Safety testing is arranged by the manufacturing entity overseas and is undertaken by accredited independent laboratories and the appliances are certified at that point in accordance with local and international standards. The international certification documents are then provided to an independent 3rd party certifier engaged by the manufacturing entity for registration in Australia. That being said, the defendant does have a technical team and it carried out an examination of a fridge that caught fire on 14 September 2010 – I will come to the details in a moment.
Usually, a product recall is undertaken in Australia by the defendant as a result of it being notified of incidents occurring in overseas markets or of incidents occurring in Australia. The defendant never undertakes a product recall without approval and support from LG Korea. Whilst the Managing Director and the CFO of the defendant have the authority to undertake a recall, it is not possible for the defendant to undertake a recall without input and support from LG Korea. Other than a recall undertaken relating to energy labelling which was specific to the Australian market, all recalls undertaken by the defendant have been undertaken as part of recall programs run in other international markets.

After 31 January 2011, in early to mid-2011, LG Korea notified the defendant that it suspected a safety issue in relation to the dispenser micro-switch used in certain models of refrigerators manufactured by it and supplied (amongst others) to the defendant as a result of which there may be a risk of fire in those refrigerators.
Ms Soud was made aware by LG Korea that fire incidents had occurred in overseas markets which had been investigated by it and which resulted in the notification it made to the defendant. Ms Soud was not aware of there being any injuries, illnesses or deaths associated with the products, whether in Australia or overseas. However, the nature of the fire hazard was considered a serious safety risk and action was taken on that basis. Ms Soud was aware that LG Korea had product liability teams and specific parts of the business dedicated to maintaining checks and balances on all of its factories, monitoring failure cases in all of its global markets, and supporting its distributors when issues are identified. She was also aware that LG Korea employed forensic engineers and specialists tasked with investigating failure cases and ascertaining the root causes of those failures, especially when there was a concern that a safety issue was caused by design or manufacture.
After notification by LG Korea it became clear to the defendant that 2 fire incidents in Australia were likely related to the micro-switch issue identified by LG Korea. These were the 2 “confirmed cases” where “the micro-switch (had) deteriorated” and “resulted in a fire in the refrigerator” that Ms Soud referred to in her letter to Mr Kemp at NSW Fair Trading on 28 June 2011. One of those incidents was the fire that occurred on 14 September 2010 that I have already referred to. The details of the other incident are not disclosed in the evidence.
The decision to undertake a recall was made by the defendant’s management in conjunction with the management of LG Korea.
In her affidavit Ms Soud gave evidence that she understood the 2011 recall was undertaken as there was a risk of fire in circumstances where moisture built up on the micro-switch typically due to humidity. In some circumstances this could result in a “tracking fault” thereby giving rise to a fire. She said that she was aware of this as she was in attendance at several meetings held to discuss the recall at the time of the recall where the issue was discussed. Ms Soud’s description of the fault in that way is consistent with a document she produced to the court (exhibited to her affidavit) marked “LGE Internal Use Only” describing the micro-switch fault. Although the document came from the defendant’s case files relating to the recall, Ms Soud was unable to identify the author or the date of the document. As I understand it, the document came from LG Korea.
As the concern related to a component (a micro-switch) used in refrigerators manufactured by LG Korea, the defendant was provided with details by LG Korea as to which model refrigerators, which production numbers and the quantity of refrigerators that contained that component micro-switch. Those details were in a spreadsheet provided to the defendant by LG Korea. This is the spreadsheet that I referred to at the start of these reasons. A copy of the spreadsheet was in evidence (CB1936-1937), as was an English translation (CB2132-2133). The spreadsheet listed 24 different models of refrigerator and a total quantity of 39,067. It had separate columns for the year of production for each model. The years ranged from 2002 to 2006. Some models listed production in multiple years. The spreadsheet showed that for the plaintiffs’ model fridge there were 1,729 fridges from 2005, and no other years, with the production order “2005.1-2005.9”. Those production order numbers translated to serial numbers between 501 and 509, with the “5” indicating the year of production and the latter numbers indicating the month of production. On that basis, the spreadsheet showed fridges of the plaintiffs’ model produced from January to September 2005. This included the fridge that had caught fire on 10 September 2010, it’s serial number starting with the numbers 507.
The defendant relied upon the information provided in the spreadsheet and depended upon the accuracy of the information provided by LG Korea. The defendant was unable to verify for itself which serial numbers were affected by the safety risk concerning the micro-switch as it did not have access to details regarding manufacture, including the supplier of and part number of components used in particular batches of refrigerators. In managing the recall Ms Soud had to rely on information provided by LG Korea as to which serial numbers for which models contained the subject component and would therefore be impacted by the micro-switch issue. That information came in the form of the spreadsheet.
LG Korea supplied the defendant with a different component to replace the micro-switch in affected refrigerators.
The defendant issued a service bulletin to all of its authorised service representatives within Australia demonstrating how to carry out the repair, that is to say how to replace the micro-switch. A copy of that service bulletin was in evidence (CB1938-1942).
On 28 June 2011 Ms Soud wrote to Mr Kemp at New South Wales Fair Trading informing him that the defendant was undertaking a voluntary recall of side by side refrigerators. At about the same time Ms Fitzgerald of the defendant notified the Parliamentary Secretary to the Minister responsible for Competition & Consumer Policy Affairs of the recall. Ms Soud’s letter to Mr Kemp stated:

As I have already mentioned, Dr Alizadeh bought the fridge from Harvey Norman Electrical Auburn on 18 April 2006. A copy of the receipt was in evidence. It recorded Dr Alizadeh’s name (as Mr Alizadeh), address and home phone number. Although they moved house a number of times, the plaintiff’s retained the same home phone number until mid-2018.
When he bought the fridge, Dr Alizadeh and Ms Aminnejad were living in a home unit at Rooty Hill. They did not connect the fridge to the water supply when they were living there.
On 11 October 2006, when they were still living at the same place in Rooty Hill Dr Alizadeh bought a new mattress from Harvey Norman Bedding Auburn. A copy of the receipt was in evidence. It recorded Dr Alizadeh’s full name, address and mobile phone number. Dr Alizadeh still had the same mobile phone number in November 2022. This receipt was issued by different legal entity with a different Australian Business Number and trading under a different business name to the receipt issued for the purchase of the fridge.
In 2008, Dr Alizadeh and Ms Aminnejad moved to a home unit in Kellyville. They did not connect the fridge to the water supply when living there.
In March or April 2012, Dr Alizadeh and Ms Aminnejad moved to a home in Brayden Way in Kellyville. They connected the fridge to the water supply for the first time. This is the property they were living in at the time of the fire on 11 March 2019.
Dr Alizadeh gave evidence (in his affidavit) that in about early 2013, about one year after they had moved into the property, the icemaker stopped making ice and began to make a crunching sound when activated. As such he turned off the ice making feature and he and Ms Aminnejad continued to use the water dispensing function only. Dr Alizadeh said that he and his wife did not engage anyone to look at the icemaker because it was out of warranty. It was put to Dr Alizadeh in cross-examination that his evidence that the icemaker stopped working in 2013 was not true and he was lying.
Ms Aminnejad gave evidence (in her affidavit) that in about early 2013 she recalled that the icemaker stopped making ice and started making a crunching sound when it was used. From then on, she and her husband did not use the ice making function, which Dr Alizadeh switched off, and they only used the water dispensing function. She too said that they did not ask anyone to look at the icemaker as it was out of warranty. According to Dr Hart (the defendant’s expert witness on the cause of the fire), the fridge did have a switch to turn off the ice-maker.
The defendant submitted (written submissions paragraphs 16 to 36) that the court should not accept Dr Alizadeh’s and Ms Aminnejad’s evidence that in or about early 2013 the icemaker stopped making ice, Dr Alizadeh turned off the function and from then on they used the water dispensing function only. The defendant submitted that instead of accepting that evidence the court should find that (a) the ice maker worked until about January 2019 a couple of months before the fire (not 2013); (b) this was the electrical fault told to the police; and the plaintiffs had it repaired; (c) the repairer was not authorised by LG and performed the repair work defectively; (d) the ice maker continued to work after that repair and the water supply was turned on again; and (e) on 11 March 2019, the water leak only occurred because the water had been turned on again. The basis for not accepting their evidence was said to be found in 4 items of contemporaneous evidence: first, police body cam footage taken on the day of the fire; second, a report of Nick Sutarov, Forensic Fire Examiner, of GKA Investigations Group dated 20 March 2019; third, a NSW Police COPS event record; and fourth, a service record of the defendant dated 13 March 2019. The critical finding that the defendant invited the court to make was that there was an electrical fault in the fridge prior to the fire which the plaintiffs had repaired defectively.
It was put to Ms Aminnejad in cross-examination that her evidence about when the icemaker stopped working was inconsistent with what she told the Police on the day of the fire, and that in fact the icemaker was working for the entire time between 2013 and 2019.
Video footage from the body worn video camera of Sgt Fortier who spoke to Ms Aminnejad on the day of the fire was in evidence. It records that Ms Aminnejad said to Sgt Fortier “a couple of months ago, the ice dispenser stopped working but I just said okay, I don’t need ice dispenser just forget about it that the fridge was still working”. Ms Aminnejad denied that what she had said in the video was true when she said that “a couple of months ago the icemaker stopped working” and denied that the evidence she was giving was a lie. Ms Aminnejad said that what she had said to the police was just tongue twisting, or maybe she was in stress and instead of saying “years” she said “months”. That Ms Aminnejad confused years and months is probably unlikely given that, as recorded on the video, she had just told Sgt Fortier that the fridge was about 10 or 11 years old. Nevertheless, it would have been a traumatic experience and no doubt Ms Aminnejad would have been suffering from stress when she spoke to the police officer.
Ms Aminnejad denied that she said to the police that they had recently got the fridge fixed due to an electrical fault. Dr Alizadeh also denied saying this to the police. The question was put to both of them on the basis that the narrative details of the New South Wales Police Force COPS event record which stated “Police gained the details of the father who had arrived home shortly after the fire had started and it was discovered that the residents of the Aminnejad had recently got their fridge fixed due to a electrical fault. Attending Fire Brigade officers state that this is more than likely the cause of the fire.”.
The COPS event on the day of the fire was created by Constable Parsons, and not Sgt Fortier. If Ms Aminnejad had told the police that they “had recently got their fridge fixed due to a electrical fault” one would have expected that to have been recorded in Sgt Fortier’s body worn camera video footage. It was not.
The video shows that after Sgt Fortier spoke to Ms Aminnejad, he spoke to 2 firefighters. The video shows that one of the firefighters was speaking to Dr Alizadeh before that firefighter went into the house with Sgt Fortier and Constable Parsons. The conversation that occurred between the firefighter, Sgt Fortier and Constable Parsons as the firefighter showed them the source of the fire was recorded on the video. The firefighter told Sgt Fortier “I reckon it’s an electro. It’s in here. In the fridge .. which has gone up .. you can see basically how .. the source is here .. we’ll have another look in there but .. he was referring to the ice cooler, I think it’s the ice maker .. which has caught alight”. [I note that when the firefighter said that “he was referring to the ice cooler” it is quite likely that the “he” the firefighter was referring to was Dr Alizadeh, as the video shows that he had just been speaking to him outside before entering the house with the 2 police officers.] The video goes on to record that Sgt Fortier then said to the firefighter “I’ve spoken to the wife. Apparently, it broke down a couple of months ago but she goes I didn’t bother getting it fixed. I just left it as that …”.
The video does not record that Ms Aminnejad told the police that they had recently got the fridge fixed due to an electrical fault. In fact it confirms that Ms Aminnejad told the police, and the police told the firefighter who showed them the source of the fire, that she did not get the icemaker fixed.
The video shows that the firefighter who showed Sgt Fortier and Constable Parsons the scene told them that he thought it was an electrical fire and that the icemaker had caught fire, but the video does not show that the firefighter told Sgt Fortier or Constable Parsons that the plaintiffs had recently got their fridge fixed due to an electrical fault. The source of that information remains distinctly unclear. It is quite possible that Constable Parsons confused matters when creating the COPS entry.
In submissions, the defendant said that Mr Sutarov attended the property and undertook his forensic fire examination acting on instructions from Allianz. His report records that he received instructions on 13 March 2019 and attended the property on 14 March 2019. As I said, the date of his report is 20 March 2019. The instructions given to Mr Sutarov are not in evidence. In the executive summary of his report (page 1) Mr Sutarov stated “The cause of the fire was likely related to a recall issue pertaining to a faulty electrical micro switch in the ice maker. Should you wish to seek recovery from the refrigerator – freezer manufacturer, further examination by an electrical expert is recommended.”. The part of the report relied upon by the defendant appears under the heading “Background Information” on page 3. The first paragraph under that heading states “The insured had been having issues with the ice maker on a side by side LG Refrigerator-Freezer (Model GR-P197WVS)Ice Maker) several months before the fire. The (Ice Maker) was not working for several months. The refrigerator-freezer was purchased from Harvey Norman in 2006. The house was built in March 2012. There is a recall for the refrigerator-freezer (Ice Maker Micro Switch due to a Potential Fire Hazard).”. The defendant emphasises the words I have underlined.
Ms Aminnejad gave evidence that she had no recollection of speaking to Mr Sutarov at all. Dr Alizadeh said that he could not remember speaking to Mr Sutarov specifically, because he spoke to a number of people in the days after the fire, and he could not remember telling him that the icemaker was not working for several months.
The defendant submitted that the court ought to nevertheless infer that either Dr Alizadeh or Ms Aminnejad told Mr Sutarov precisely that.
I would be prepared to infer that it is quite likely that Dr Alizadeh told Mr Sutarov what appears in the 3 paragraphs following the first paragraph under the heading “Background Information” based on how those paragraphs are written, or at least Dr Alizadeh provided that information to someone else at Allianz who passed it on to Mr Sutarov when providing him with instructions. However I would not be prepared to draw the same inference in respect of the first paragraph.
The statement in the first paragraph is, however, consistent with the statement made by Ms Aminnejad to Sgt Fortier recorded in his body cam footage.
The service record of the defendant dated 13 March 2019 records that Dr Alizadeh phoned the defendant on that day. The note records that he told the defendant the fridge had set on fire 2 nights ago and his house was burnt; that the fire started from the icemaker; that the house was not livable; and he “would like LG to check why the fridge started fire. LG is responsible for that. Also I do not want this happen again to someone else”. The same document records that either on the same day or the next day, Paul Rodziewicz, technician, attended the scene of the fire, inspected the fridge, spoke to the customer and took photos. One of the remarks recorded by the technician was “Customer advised me that he turned off water supply to the fridge 2 or 3 months ago but didn’t turn icemaker off”.
The technician could only have been speaking to Dr Alizadeh.
When Dr Alizadeh was cross-examined about the service record it was suggested to him, mistakenly, that he told LG when he phoned that he had turned off the water supply 2 or 3 months ago but did not turn off the icemaker. That is not what the service record shows. It shows that he told the technician this when the technician came to inspect the fridge. Nevertheless, after quite some time of argumentation and excitement, and perhaps obfuscation, by Dr Alizadeh during cross-examination Dr Alizadeh reached the point where he denied saying this. The defendant submitted that the court ought to find that this was a false denial and that the contemporaneous recording of the conversation that Dr Alizadeh had with LG ought to be accepted as to the truth of what was said during the conversation. It seems to me quite likely that the technician made an accurate record of what Dr Alizadeh told him on the day. Nevertheless, it is far removed from the proposition the defendant wishes to establish that there was an electrical fault in the fridge which the plaintiffs had repaired by an unauthorised technician who carried out a defective repair.
I am conscious that Dr Alizadeh did not make a good witness. Even his own counsel in submissions in reply said that it was not in dispute that Dr Alizadeh “was not a model witness and his evidence too often was discursive and non-responsive”. I would agree. I would go so far as to say that he was a very bad witness in that he was extremely argumentative. He was very excitable. He even argued with me when I sought to explain the difference about being asked questions as to whether he remembered that something was said, as opposed to being asked about the truth of what was said. I understand that this can be a difficult concept for some witnesses to grapple with. However my intervention followed parts of Dr Alizadeh’s evidence where he had been very argumentative with counsel for the defendant and non-responsive to questions. However, rather than being dishonest, I formed the view that Dr Alizadeh was adopting the role of being an advocate for what he thought were important points for him to make about his case. He was determined to get his point across. As his counsel submitted, this does not mean that he was lying. It does mean, however, that I should approach his contested evidence with some circumspection.
The same may not be said, however, of Ms Aminnejad’s evidence. She was much calmer than her husband, more measured and responsive to the questioner. There was quite a contrast compared to her husband. I have no reason to doubt Ms Aminnejad’s honesty and forthrightness.
Neither Sgt Fortier, Constable Parsons, the firefighters, Mr Sutarov nor Mr Rodziewicz were called to give evidence. Neither Sgt Fortier’s nor Constable Parsons notebooks were in evidence. Sgt Fortier’s video camera footage shows that Constable Parsons was using a notebook.
Having regard to all of those matters, in my view the COPS entry does not provide a sufficient basis for doubting the emphatic evidence of both Dr Alizadeh and Ms Aminnejad that they did not have the fridge repaired due to an electrical fault before the fire, let alone finding that they were lying in their evidence to the court about that.
I accept their evidence that they did not have the fridge repaired due to an electrical fault in the months leading up to the fire.

Expert evidence about the cause of the fire was given by Dr Peter Hart (called by the defendant) and Mr Gregory Kelly (called by the plaintiffs). Dr Hart holds a PhD in engineering. He describes himself as a forensic engineer. Mr Kelly describes himself as a senior forensic fire examiner, forensic engineer-electrical. They both have considerable training and experience in the investigation and determination of the cause of electrical fires. They both provided detailed written reports to the court and gave concurrent oral evidence.
They both considered 5 possible theories for the fire, which Dr Hart identified and described in his report of 27 July 2023. In his report summary, Dr Hart said that Theory E was “There was a tracking fault at the dispenser microswitch that caused a fire.” (CB 1808). Subsequently, he described Theory E more fully as “There was a tracking fault on the outside polymer surface of the dispenser microswitch. This fault was the same as described in the recall notice and in the LG Investigation report (Appendix 2). The result was that the polymer microswitch case caught fire.” (CB 1879). Dr Hart’s reference to the recall notice was to the 2011 recall notice and his reference to the LG Investigation report (Appendix 2) was to the document he described more fully as a document titled “Micro Switch Fault” LGE Internal Use only. This is the document I referred to earlier exhibited to Ms Soud’s affidavit marked “LGE Internal Use Only” describing the microswitch fault. That is, the fault which led to the 2011 recall.
Of the other for theories, in his report summary Dr Hart said that Theory C was “Another wire contacted the ‘slip terminal’ connection located in a hard-shell connector located near to the display panel and a short-circuit occurred that started the fire. The other wire was from the same connector or from the dispenser lamp bulb holder.” (CB 1808). Subsequently, Dr Hart described Theory C as “A short-circuit occurred on 240 Vac wiring in the vicinity of the display and switch panel. The short-circuit involved the ‘slip-terminal” seen in Figure 44. The other connector of the short-circuit was not identified.” (CB 1879). Figure 44 is a photograph in Dr Hart’s report which he described as showing “A distinct arc melt on a 3.2 mm in-line terminal pair” (1870). He subsequently described Figure 44 as showing a “melt globule” (CB 1886), which he referred to when addressing Theory C (CB 1880).
Mr Kelly addressed each of Dr Hart’s 5 theories in his report of 6 December 2023.
Dr Hart and Mr Kelly then met in conclave and produced a joint report, that they each signed on 18 December 2023.
In their joint report, Dr Hart and Mr Kelly recorded that they agreed that:

The plaintiffs asserted that the defendant owed a duty of care to them as purchaser of a refrigerator model (serial) number 602KRW200337 in its capacity as importer, marketer, distributor and supplier of the fridge (: amended statement of claim paragraph 20, closing written submissions paragraph 35). They also referred to the duty as a duty of care between a supplier and a consumer (: closing written submissions in reply paragraph 9. g.).
The plaintiffs relied upon the decision of Gillard J in Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359 as authority for the establishment of a duty of care.
The defendant admitted in its defence that as a supplier/distributor of refrigerators for re-supply to consumers in Australia it owed “a limited duty of care” to the plaintiff’s (: defence paragraph 9 (c)).
In closing written submissions, however, the defendant submitted that no duty of care arises (paragraph 127) because the “something more” required to give rise to the existence of a duty of care was absent in the circumstances, citing McPherson’s Ltd v Eaton [2005] NSWCA 435, (2005) 65 NSWLR 187.
I am of course bound by the decision of the Court of Appeal in McPherson’s*,* the Court of Appeal decision which it followed (Laundess v Laundess (1994) Aust Torts Reports 81-316) and the one which followed it (J & V Pesl v Ray Smith Tractors [2007] NSWCA 74, (2007) Aust Torts Reports 81-883).
In McPherson’s, Mason P said that Ipp JA’s reasons demonstrated why the non-manufacturing distributor of goods that is ignorant of a dangerous defect does not owe the same duty of care as that of a manufacturer, there must be “something more”. Hodgson JA said that he agreed that a retailer of goods has no duty of care to persons who might ultimately be affected by those goods, unless there is some additional factor, generally a factor associated with the creation of risk or knowledge of risk involved in the goods. Ipp JA described McPherson’s as “solely a retailer, in effect, a conduit,” of the product. After reviewing Laundess and a number of other cases, Ipp JA said that in his opinion “The relationship of vendor and purchaser, or vendor and end-consumer, does not automatically give rise to a duty of care. Such relationships do not fall within the familiar categories of cases where, by the mere existence of these relationships, a duty of care arises”. His Honour said that he agreed with Mahoney JA’s view in Laundess that “something more” must exist before a duty of care arises.
In J & V Pesl, Tobias JA (Beazley and Ipp JJA agreeing) referred to McPherson’s as holding that a non-manufacturing distributor of goods who is ignorant of a dangerous defect in those goods, does not owe the same duty of care as that of a manufacturer. There must be “something more”. Tobias JA said that in McPherson’s Ipp JA referred to a number of authorities in which a duty of care was established “and in each of which it was demonstrated that the vendor knew of the defect in or the cause of the danger relating to the particular product the subject of the sale”.
In J & V Pesl the appellant had purchased an industrial grass slasher from the respondent. The slasher had been manufactured by another company. 11 years after the respondent had sold the machine to the appellant the manufacturer issued a service bulletin to the respondent. The plain terms of the service bulletin and the respondent’s appreciation that it was a warning of danger to human life and limb of using the machine in a certain way constituted actual knowledge on the part of the respondent that the machine contained the defect which gave rise to a foreseeable risk of harm. The Court of Appeal held that the state of actual knowledge on the part of the respondent was, therefore, the “something more” necessary to impose a duty of care on the respondent to past purchasers of the machine. The Court of Appeal held that the scope or content of that duty was governed by the nature and extent of the respondent’s knowledge of the defect and the safety risk it posed. The “duty was one requiring reasonable steps to be taken (by the respondent) to avoid the risk of harm occurring to those customers who had purchased the particular slasher from them and who, in ignorance of the defect in the lifting bracket, might reasonably be foreseen to be using it in the manner now deemed to be unsafe”. In the result, the court dismissed the appeal because there had been no breach of that duty.
In the present case, the defendant knew about the fire that had occurred on 14 September 2010 in the fridge of the same model as the plaintiffs’ fridge and by 31 January 2011 had determined for itself that there were 2 potential causes of the failure, namely (a) the lead wire may have accidentally being damaged during assembly of the product or (b) tracking occurred in the vicinity of the microswitch as a result of excessive moisture. Shortly after, it was notified by LG Korea that it suspected a safety issue in relation to the dispenser micro-switch used in certain models of refrigerators manufactured by it and supplied (amongst others) to the defendant as a result of which there may be a risk of fire in those refrigerators, and Ms Soud was made aware by LG Korea that fire incidents had occurred in overseas markets which had been investigated by it and which resulted in the notification.
In my view, knowledge of these matters provided the “something more” necessary to impose a duty of care on the defendant to purchasers of refrigerators it had supplied to retailers.
For those reasons, I find that the defendant did owe the plaintiffs a duty of care.
In J & V Pesl, Tobias JA said (at [51]) that the scope or content of the duty he had found the respondent owed to past purchasers of the machine “was governed by the nature and extent of (the respondent’s) knowledge of the defect and the safety risk it imposed”. The same must be true in the present case, the scope or content of the duty the defendant owed to past purchasers of refrigerators was governed by the nature and extent of the defendant’s knowledge of the defect and the safety risk it imposed.
In J & V Pesl, Tobias JA said (at [51]) that “the duty was one requiring reasonable steps to be taken by (the respondent) to avoid the risk of harm occurring to those customers who had purchased the particular slasher from them and who, in ignorance of the defect in the lifting bracket, might reasonably be foreseen to be using it in the manner now deemed to be unsafe. Whether there was a breach of that duty with respect to (the appellant) depended on a consideration of the Shirt factors in their application to (the respondents) knowledge with respect to (the appellant).”. His Honour’s reference to “the Shirt factors” is obviously a reference to Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48. I note that these factors are similar to, but not precisely the same as, the general principles stated in s.5B of the Civil Liability Act, 2002.
Once again, the same would be true for the present case. The duty was one requiring reasonable steps to be taken by the defendant to avoid the risk of harm occurring to past purchasers of refrigerators.
Before addressing questions of breach and causation, it is necessary to consider the risk of harm.

The parties were at odds over the proper identification of the relevant risk of harm.
The plaintiffs submitted that the risk of harm was loss or damage caused by a fire related to the defect the subject of the 2011 recall (closing written submissions in reply, paragraphs 14, 18 and 25). The plaintiffs also submitted the risk was of a fire occurring due to the microswitch/tracking fault defect in a defective refrigerator (closing written submissions, paragraph 52 and 74) which I take to amount to the same thing. I also assume that the plaintiffs are referring to a fire in a refrigerator related to the defect the subject of the 2011 recall.
The defendant’s primary submission was that the identification of the risk of harm in this case is an Australian subsidiary not making enquiries with its overseas parent company as to whether it included all affected fridges on a recall (paragraph 131). This was said to be the relevant risk of harm because of the way the plaintiff’s had pleaded their case; the risk of harm was not that the fridge could catch on fire; and that the risk is about the recall because that is what the plaintiffs pleaded.
In the alternative, in oral closing submissions, the defendant submitted that the risk of harm was that the recall did not include fridges that ought to have been included.
I set out earlier in these reasons paragraph 24 a passage from Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103 giving guidance on how the risk of harm is to be identified in any given case.
In my view, both of the defendant’s formulations of the risk of harm focus too narrowly and obscure the true source of potential injury and do not take into account the particular harm that materialised. The true source of potential injury was that a fridge may catch fire.
In my view, the plaintiffs’ formulation of the risk of harm better identifies both the true source of the potential injury (fire) and general causal mechanism or circumstances in which the harm occurred (related to the defect the subject of the 2011 recall).
For those reasons, I accept the plaintiff’s submission that the risk of harm was loss or damage caused by fire in a refrigerator related to the defect the subject of the 2011 recall.

The first conclusion to be established is that the risk of harm was foreseeable (that is, it is a risk of which the defendant knew or ought to have known) (s.5B(1)(a)).
I have already determined that the risk of harm was loss or damage caused by fire in a refrigerator related to the defect the subject of the 2011 recall. The defendant had actual knowledge of the fire that occurred in the fridge of the same model on 14 September 2010 and had received notice from LG Korea that fire incidents had occurred in overseas markets. It was foreseeable that other refrigerators of the same models may catch fire for the same reason. The risk of harm was foreseeable.
The second condition to be established is that the risk of harm was not insignificant (s.5B(1)(b)). Whilst the defendant was only aware of 2 confirmed cases that resulted in a fire in the refrigerator (Ms Soud’s letter to Mr Kemp of 28 June 2011) and the number of fire incidents overseas of which the defendant was aware is not disclosed in the evidence, the defendant has admitted that the plaintiffs’ refrigerator was of a kind ordinarily acquired for personal, domestic or household use. The potential for loss or damage to property and more importantly to people was serious. The defendant recognised as much at the time by undertaking a voluntary recall. The risk of harm was not insignificant.
The question under s.5B then becomes whether a reasonable person in the position of the defendant would have taken the precautions that the plaintiffs allege should have been taken (s.5B(1)(c), s.5B(2)). This question is to be determined prospectively, not with the wisdom of hindsight.
I have already canvassed the precautions the plaintiffs allege should have been taken. In the end, they come down to making the further enquiries suggested by Mr Johnson which in turn came down to making the 2 enquiries or asking the 2 questions stated in paragraph 33 of his report, namely (a) are there any other refrigerators that suffer from the same defect? and (b) why does the serial number range for the recall exclude refrigerators within the same model?
In the circumstances would a reasonable person in the position of the defendant have taken those precautions?
The circumstances and the position of the defendant included the following. The defendant knew that LG Korea had identified the safety problem leading to the 2011 recall, its likely cause and solution. It knew that LG Korea was the designer and manufacturer of the fridges. It knew that LG Korea had identified 24 different models of refrigerators and a total of 39,067 fridges imported into Australia by the defendant as being potentially affected. It knew that the fridge that caught fire on 14 September 2010, being a fridge it had examined, was captured in the recall. It knew that the recall was being undertaken as there was a risk of fire because of a tracking fault concerning a microswitch inside the fridges. It knew that it had no way of identifying from its own records which microswitch was inside which fridge and who had manufactured the microswitch. It knew that LG Korea had product liability teams and that it employed forensic engineers and specialists tasked with investigating failure cases and ascertaining the root cause of those failures, especially when there was a concern that a safety issue was caused by design or manufacture.
It is fair to say in my view, as counsel for the defendant submitted, that asking the first question is the equivalent of asking, “Are you sure?”. Not a very useful or meaningful question for a wholly owned subsidiary to ask its parent company in my view. An answer to the second question may have generated a more meaningful response, but the defendant was not in a position to test its validity given its limited knowledge and resources, particularly in comparison to those of LG Korea.
As for s.5B(2)(a), it is difficult to see how the probability of the harm occurring would have been affected, let alone reduced or eliminated had the enquiries been made or the questions asked.
As for s.5B(2)(b), the likely seriousness of the harm was potentially high, particularly if a fridge caught fire whilst the owners were absent, or worse still if they were in bed asleep.
As for s.5B(2)(c), the plaintiffs submit that it would not have been difficult or burdensome to make enquiries, to ask questions. The defendant submits that it would have been required to make enquiries about all 24 models included in the recall, not just the plaintiffs’ model fridge. It was not explained why this would be particularly burdensome or difficult. I accept the plaintiffs’ submission that it would not have been burdensome or difficult to ask the questions suggested by Mr Johnson, even for all 24 models.
As for s.5B(2)(d), in my view questions of social utility do not enter into the matter.
I accept the submission of counsel for the defendant that the defendant did not act unreasonably in all the circumstances in accepting the advice from its parent company about which models of refrigerators had a safety defect and needed to be recalled.
Having regard to all those matters, I am not satisfied that a reasonable person in the position of the defendant would have taken the precautions that the plaintiffs allege should have been taken.
It follows, and I find, that whilst the defendant did owe the plaintiffs a duty of care, it did not breach its duty in the circumstances.

The finding I have made about breach of duty is sufficient to dispose of the plaintiffs’ claim in favour of the defendant.
However, I would also find against the plaintiffs on the issue of causation for the following reasons.
Causation must be determined in accordance with s.5D and s.5E. I set out the provisions and relevant principles earlier. The element requiring proof under s.5D(1)(a) is that “the negligence was a necessary condition of the occurrence of the harm”. This is a question of fact, turning on proof by the plaintiffs of relevant facts on the balance of probabilities in accordance with s.5E.
I have found that the defendant did not breach its duty of care. There was therefore no “negligence” for the purpose of s.5D(1)(a). However, assuming I had found a breach of duty, the relevant negligence would have been a failure by the defendant to take the precautions that the plaintiffs alleged the defendant should have taken. The relevant particular harm is the damage to the plaintiffs’ home and contents caused by the fire in the refrigerator. It follows that the question under s.5D(1)(a) is whether the failure to take the suggested precautions was a necessary condition of the occurrence of the fire in the plaintiffs’ fridge that damaged their home and contents.
The defendant submitted that there was an evidentiary gap in the plaintiffs’ case because there was no evidence that even if the defendant made “enquiries” it would have altered the serial number range in the 2011 recall for the plaintiffs’ model or any of the other 23 models. The defendant referred to Mr Johnson’s (the plaintiffs’ expert witness’) concession that he did not have any evidence from what he had seen that making enquiries would have altered the serial number range.
The defendant submitted that the plaintiff had failed to establish factual causation because there is nothing to suggest that even if the defendant did make the enquiries as suggested by Mr Johnson, that would have resulted in LG Korea making amendments to the range of serial numbers recorded in the recall to include the plaintiffs’ serial number or otherwise.
The plaintiffs’ response to these submissions was to say that the plaintiffs had led more than the scintilla of evidence they were required to lead to establish that but for the defendant not taking the propounded precautions, the damage would not have occurred. They submitted that to the extent the plaintiffs are required to prove that the defendant had to make proper enquiries of LG Korea, all the knowledge was in the defendant’s camp, so a scintilla of evidence would be sufficient to discharge the burden and transfer the evidentiary burden to the defendant. The plaintiffs submitted that they had demonstrated that a breach of duty had occurred which was closely followed by damage and, therefore, a prima facie causal connection had been established. Counsel cited Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359 at [531] – [540] for the relevant legal principles. Gillard J’s analysis there commences with a quotation from the judgment of Dixon J in Betts v Whittingslowe (1945) 71 CLR 637 at 649. Counsel also cited Lord Mansfield’s statement in Blatch v Archer (1774) 1 Cowp 63; 98 ER 989 that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”. And Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 at [121] for the proposition that where the facts are peculiarly within the knowledge of one party, slight evidence from the other will throw an evidentiary onus on the first. The plaintiffs also submitted that to the extent that the defendant had shown evidence or argument to meet the shift in evidentiary onus, a Jones v Dunkel (1959) 101 CLR 298 inference should nevertheless be drawn against it, based on its failure to call a witness or produce evidence from LG Korea.
In my view there must be real doubt whether the cases relied upon by the plaintiffs about a shifting onus, evidentiary or otherwise, apply in light of the clear terms of section 5E.
Even if they do apply, I am not satisfied that the plaintiffs have led the scintilla of evidence required to shift the onus. The plaintiffs have not led any evidence to establish what would have happened had the suggested enquiries been made or questions asked, let alone that asking the questions would have led to their refrigerator being identified as part of the 2011 recall.
Further, the plaintiff’s reliance on Jones v Dunkel is misplaced. A Jones v Dunkel inference does not enable a court to infer that the absent evidence would have been positively adverse to the party: see for example Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151, Beech-Jones JA (Brereton & Mitchelmore JJA agreeing) at [46]-[48].
For those reasons, in my view, the plaintiffs would not have established factual causation even if I had found breach of duty.
The second element of causation, requiring proof under s5D(1)(b), is that “it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused”. The present case does not fall within an established class - so much was recognised by Ipp JA in McPherson’s at [82]. As such, it is necessary to consider amongst other relevant things whether or not and why responsibility for the harm should be imposed on the negligent party (s.5D(4)).
In my view, assuming breach of duty, relevant considerations as to why responsibility for the harm should be imposed did not rise above general considerations necessary to establish duty and breach.
However, assuming a breach of duty, there are in my view a number of relevant considerations indicating why responsibility for harm should not be imposed on the defendant in the circumstances of this case. First, as submitted by the defendant it was always open to the plaintiffs to sue LG Korea. They chose not to. The plaintiffs would not have been left without a defendant. Second, in circumstances where it was LG Korea that manufactured the refrigerators, identified the problem and provided the relevant information to the defendant, if anyone was likely to be held responsible it was LG Korea. Third, as the defendant also submitted, when the fire occurred (almost 13 years after the fridge had been purchased) the time had passed which the Commonwealth Parliament had chosen as a limit (10 years) for imposing liability on the defendant as a deemed manufacturer under the Australian Consumer Law. The defendant submitted that this was recognition that a supplier’s legal liability cannot continue indefinitely, for sound policy reasons. To those considerations I would add the fact that the plaintiffs have not been critical of the defendant’s conduct in undertaking the actual recall itself, only its alleged failure to identify their particular fridges and include it.
For those reasons, assuming breach, I am not satisfied that it would be appropriate for the scope of the defendant’s liability to extend to the harm caused. It follows that I am not satisfied that the plaintiffs have established the second element of causation under s.5D(1)(b).

The basic principle underlying the assessment of damages for breach of contract and for breach of duty of care is the same. According to the High Court, the settled principle governing the assessment of compensatory damages, whether in actions in tort (which includes negligence) or contract, “is that the injured party should receive compensation in the sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed”: Haines v Bendall (1991) 172 CLR 60 at 63 per Mason CJ, Dawson, Toohey & Gaudron JJ; Brennan J agreeing at 73. Compensation is the cardinal concept and the plaintiff cannot recover more than he or she has lost: Haines at 63.
In the present case, there was damage to both real property (the plaintiffs’ house) and chattels (the contents of their home).
The normal measure of damages is stated in J Edelman, McGregor on D**amages (22nd edition, 2024, Thomson Reuters) at 5-051 (omitting citations): “Where the claimant’s goods have been damaged, the normal loss as the cost of rectifying the wrong is the diminution in their value which is normally measured by the reasonable cost of repair, and generally without making any deduction from the damages on account of the fact that after repair the goods are in better condition than they were before the tort. On the other hand, the normal pecuniary loss is the market value of the goods where they have been destroyed or misappropriated. Where it is land that has been damaged, the basic pecuniary loss is again the diminution in value and this may, if the circumstances warrant, be measured by the cost of replacement or repair.”. As to damage to chattels, this statement of the normal measure is consistent with Arsalan v Rixon (2021) 274 CLR 606 and Talacko v Talacko (2021) 272 CLR 478. And as to damage to property, it is consistent with Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5, (2023) 110 NSWLR 557 at [119] (Kirk JA and Griffiths AJA).
McGregor on Damages (at paragraphs 10–002 to 10–006) explains that mitigation concerns avoiding of the consequences of the wrong, whether tort or breach of contract, and that there are 3 different although closely interrelated rules relating to it. The first and most important rule is that the claimant must take all reasonable steps to mitigate their loss consequent upon the defendant’s wrong and cannot recover damages for any such loss which they failed, through unreasonable action or inaction, to avoid. The second rule is the corollary of the first. It is that where the claimant does take reasonable steps to mitigate the loss to them consequent upon the defendant’s wrong, they can recover for loss incurred in so doing; this is so even though the resulting damage is in the event greater than it would have been had the mitigating steps not been taken. The third rule is that the claimant cannot generally recover for avoided loss. Where the claimant takes steps before or after the wrong, or a third party takes steps, that avoid the loss, then this reduces the recoverable loss. The most common scenario is where the claimant takes ordinary or reasonably necessary steps to mitigate the loss to them and those steps are successful. Then, the defendant is entitled to the benefit accruing from the claimant’s action and is liable only for the loss as lessened.
Whether a loss is avoidable by reasonable action on the part of the claimant is a question of fact, not law: McGregor on Damages at paragraph 10–016.
McGregor on Damages explains that often expenditure is made in order to keep the damage within reasonable bounds. Examples are where money is laid out in acquiring or hiring a substitute where the claimant’s property is damaged, destroyed or misappropriated; or where medical expenses are incurred to ameliorate the claimant’s physical injury caused by the defendant. Incurring of expenses such as these may be considered as examples of steps taken in mitigation of damage. See paragraphs 5–059 and 5–060.
In Arsalan the High Court said at [32] (omitting citations): “Where a plaintiff acts in an attempt to reduce a loss, the onus shifts to the defendant to show that the acts actually taken by the plaintiff were unreasonable acts of mitigation. Unless the plaintiff’s actions are shown to be unreasonable, costs that are incurred in an attempt to mitigate loss caused by wrongdoing become, themselves, a head of damage that can be recovered. Even if the costs incurred by the plaintiff are greater than the loss that was attempted to be mitigated, those costs will be recoverable other than to the extent that they are shown to be unreasonable.”.

The plaintiffs seek to recover the actual costs of building repair and reinstatement works.
The parties called expert witnesses on this issue: Mr Josh Heymann, a chartered quantity surveyor on behalf of the defendant; and Mr Matthew Bartlett, a chartered civil-structural engineer on behalf of the plaintiff.
The plaintiff claimed a total of $152,753.28. The total figure was comprised of 7 separate items. They are set out in a table in Mr Heymann’s and Mr Bartlett’s joint report (CB66).
I will address only those matters which I understand to be in dispute.
A major point of principle raised by the defendant concerns the plaintiffs’ admitted failure to put the work out to competitive tender or obtain comparative quotations. The defendant submits that had the work been put out to tender, particularly the work done by Australia’s Insurance Builders (Item 4 in the table in the joint report), there would have been a median variance of 30% between the tenders, and so the sum claimed (which was the sum paid for the work) should be reduced by 30%. The defendant’s submission is set out in full in its closing written submissions (paragraphs 237-251). The evidence on which the 30% figure is based emerged in the oral evidence of the experts (T292-293).
In their joint report Mr Heymann and Mr Bartlett said that in relation to the Australia’s Insurance Builders (Item 4 in the table in the joint report) they had reviewed the scope of works and agreed with all aspects and items that made up that amount. The fact that the work had been done and that it was reasonable to have done it therefore was not in issue. Nor was it in issue that the sum claimed is what the plaintiffs paid for the work.
In those circumstances, as a matter of principle, contrary to the defendant’s submissions, the matter it was raising went to an allegation of the plaintiffs’ failure to mitigate their loss. Notwithstanding that the defendant did not plead a failure to mitigate, the plaintiffs did not object to the matter being raised. However, the defendant carried the onus of establishing that the plaintiffs’ acts were unreasonable. I am not satisfied on the evidence before me that the defendant has discharged that onus. The evidence the defendant relied upon was too general and unspecific.
In my view it would not be appropriate to reduce Item 4 by 30%.
The same reasoning would apply to the other items the defendant submitted should be reduced by the same percentage for the same reasons (Items 2 and 3, the Oriel Property Services invoices).
The defendant took a further objection to the same Oriel Property Services invoices on the basis that there were no details of the scope of works they had undertaken. In their joint report, Mr Heymann and Mr Bartlett had recorded that Mr Heymann had expressed concern that he was unable to assess the reasonableness of the two invoices lodged by Oriel Property Services because he did not have adequate details of the scope or extent of work which they had carried out.
Counsel for the plaintiffs addressed this concern in his closing written submissions (paragraph 130), by reference to the documents in evidence identifying the scope of works and Mr Heymann’s oral evidence. I accept those submissions. They demonstrate that after seeing the documents Mr Heymann had no reason to believe that the works the subject of the invoices were not required or were unreasonable.
It follows that I would reject the defendant’s objections to the Oriel Property Services invoices.
Mr Heymann and Mr Bartlett appear to have accepted the Silver Wolf Projects invoice (Item 7 in their table). I would do the same based on their acceptance of it.
It follows that I would allow in full the amount of $152,753.28 claimed by the plaintiffs under this head.

Dr Alizadeh and Ms Aminnejad prepared a table (CB177-189) listing 238 separate items with attached photos, receipts and other documents where available. By the close of submissions, they no longer pressed 9 of those items. The total of the items claimed at the close of hearing was $134,163.43.
The defendant called Mr Graham Hosking, who described his occupation as “Executive-Adjuster-Liability”. Mr Hosking took the plaintiffs’ table and prepared his own colour coded table by reference to it. Based on his review he assessed the value of the plaintiffs’ contents to be approximately one-tenth of the total they claimed. He put the figure at approximately $18,000. He disallowed many items entirely (that is to say he allowed $0) on the basis that he considered there was “insufficient proof of loss arising from an absence of photographic evidence, evidence that the item has been tested and required replacement, or other supporting documentation”. He coloured those items green. On my rough count he placed 77 items into that category. He also disallowed a number of items entirely on the basis that they were duplicated. He coloured those items blue. On my count he placed 37 items into that category. He discounted, mostly entirely, a number of items on the basis that there was a “possibility that the claimed items could have been cleaned or restored”. He coloured those mustard in his table. On my count he placed 12 items into that category. Of the remaining items, coloured white, he applied his own, often quite heavy discount.
In closing submissions, the defendant says the plaintiffs should be allowed to claim $40,919. This was based on adopting Mr Hosking’s figures and adding for cleaning as quoted by AFFER Restorers on 18 March 2019.
There is no doubt that the contents of the plaintiffs’ home were severely damaged by smoke and soot. One need only watch and listen to the comments of the fireman who took the 2 policemen into the house immediately after the fire, recorded on the body worn video camera of Sgt Fortier. I accept the evidence both Dr Alizadeh and Ms Aminnejad gave about the extent of the damage.
In his written closing submissions, counsel for the plaintiff addressed how the plaintiffs came to prepare their table and what they based it on. Counsel also addressed the limitations of Mr Hosking’s experience and expertise. I generally accept those submissions.
Overall, the evidence about the quantification of the plaintiffs claim for loss and damage to their contents is not as precise and detailed as one might hope. This is largely explained by the fact that most people do not retain receipts for ordinary everyday items accumulated over years of living. This does not mean that the plaintiffs should receive $0 for all the items Mr Hosking rejected.
Doing the best I can on the evidence before me, I would allow $100,000 as damages for the contents.

The plaintiffs lived in temporary accommodation whilst the repairs were carried out to their house.
The defendant does not dispute the plaintiffs’ entitlement to damages under this head of loss. It disputed the claim on the basis that both the rate and duration claimed by the plaintiffs for their accommodation was not reasonable.
The rate was said to be unreasonable because, so it was submitted, the plaintiffs should have found cheaper longer term accommodation rather than higher cost short stay lodgings. The duration was said to be unreasonable, so it was submitted, because the building work should have been completed within a shorter period of time.
By the end of submissions, the plaintiffs accepted the rate put forward by the defendant, $780 per week. The parties still disagreed over the length of time to allow. The plaintiffs submitted 9 months. The defendant submitted 6 months or 9 months.
The plaintiffs were actually out of their house from 11 March 2019 (the date of the fire) until 29 May 2020 (when the building work was completed), a period of more than 14 months. The timeline of events is summarised in the report of Mr Bartlett, a chartered civil-structural engineer called by the plaintiffs (CB1286).
The plaintiffs’ submitted that 9 months should be allowed because the parties experts (Mr Bartlett for the plaintiffs, and Mr Whittall for the defendant) had agreed in their joint report, prepared after exchanging written reports and holding a conclave, that “based on review of the timeline that delays beyond the insurers control were experienced, and that a reasonable timeframe for repairs would be in the vicinity of 9 months” (CB76).
The defendant submitted that either 6 months should be allowed or 9 months. The shorter period was said to be based on the oral evidence of Mr Whittall at the hearing (defendant’s written closing submissions paragraph 234; T316-317).
In my view it is appropriate to adopt the 9 month period that both experts agreed in their joint report.
Therefore I would allow temporary accommodation in the sum of $30,642.86. The calculation is in the plaintiffs’ written closing submissions in reply at paragraph 112.

The plaintiffs claim damages in the sum of $8,928.90 for “investigation fees”.
The defendant explained (written closing submissions paragraphs 263-266) that the investigation fees were those of GKA Investigations Group.
According to Mr O’Connor, the National Manager, Claims Technical and Business Operations of Allianz Insurance Australia Insurance Limited (the plaintiffs’ home insurer), Allianz contracted GKA Investigations Group to investigate the cause and origin of the fire (affidavit, CB1338). In cross-examination, Mr O’Connor agreed that GKA was appointed just to investigate the circumstances giving rise to the claim, and specifically to provide expert guidance to Allianz on the causation of the loss, so that Allianz could make a determination as to whether the insurance policy would respond to the customer’s loss (T151-152).
Copies of the 6 invoices are exhibited to Mr O’Connor’s affidavit (at CB1359-1364). The invoices show that the charges are for forensic examination and report preparation undertaken by Mr Nick Sutarov and Mr Greg Edwards. They also include charges for “Exhibit Storage Large”. Other evidence shows that GKA Investigations picked up and stored the plaintiffs’ refrigerator after the fire. I infer that was the “Exhibit” being stored.
The plaintiffs submitted that these costs were recoverable based on the decision of Applegarth J in Mitchell Ogilvie Menswear Pty Ltd v Rapid Edge Pty Ltd [2019] QSC 136, particularly at [134]. The question was not put in issue by the defendant in that case, however his Honour accepted that the costs of forensic examination and loss assessment were consequential and linked to the defendant’s negligence.
In the present case, the defendant puts them in issue and submits they are part of Allianz’s business costs and overheads and not compensable.
I agree. The present claim has been brought by the plaintiffs, not by Allianz. The injured parties are the plaintiffs, not Allianz. The general principle is that the injured party should receive compensation in the sum which, so far as money can do, will put that party in the same position as he or she would have been in if the tort had not been committed. This general principle is not affected by the fact of an injured party’s insurer bringing a subrogated claim. The principal effect of the doctrine of subrogation is that the insurer is entitled to exercise in the insured's name any rights of the insured against third parties: Kelly & Ball Principles of Insurance Law (LexisNexis online) at [9.0010].
In this case, the expenses were incurred by Allianz, as Mr O’Connor frankly admitted, so that it could decide whether its policy responded to its customer’s claim. In my view, they are part of the costs of Allianz doing business.
For those reasons I would not allow the claim for investigation fees.

Alizadeh v LG Electronics Australia Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Judgment

OVERVIEW

LIABILITY

A. The legal setting: negligence and the Civil Liability Act

B. How the parties put their cases on liability in a little more detail

The pleadings

Plaintiffs’ opening address

Defendant’s opening address

Plaintiffs’ further opening by way of response

C. THE FACTS: The defendant’s operations in Australia; its relationship with LG Korea; the 2011 recall

The nature of the defendant’s operations in Australia and its relationship to LG Korea

Safety certification of the plaintiffs’ model fridge

Events leading up to the 2011 recall

The 2011 recall

D. THE FACTS: Dr Alizadeh’s purchase and use of the fridge up to the time of the fire

E. THE FACTS: What caused the fire in the plaintiffs’ fridge on 11 March 2019?

F. DUTY OF CARE: Did the defendant owe the plaintiffs a duty of care? If so, what was its scope and content?

G. WHAT IS THE RELEVANT RISK OF HARM?

H. WHAT PRECAUTIONS DO THE PLAINTIFFS ALLEGE THE DEFENDANT SHOULD HAVE TAKEN?

The expert evidence about what the plaintiffs allege the defendant should have done or failed to do

I. BREACH OF DUTY? (s.5B & s.5C)

J. CAUSATION (s.5D and s.5E)

K. MY CONCLUSION ON LIABILITY

QUANTUM

L. Legal principles

M. Building repair and reinstatement works

N. Home contents

O. Loss of income to Dr Alizadeh

P. Temporary accommodation

Q. Investigation fees

COSTS

ORDERS

Amendments

22 July 2025

Parties

Legislation Cited (1)

Cases Cited (23)

Cited By (1)