Cabinets by Webb Pty Ltd v Creasy [2025] VCC 910

(a) Ms Creasy smoked in the bedroom on 8 April 2021;

(b) Ms Creasy discarded a lit or smouldering cigarette into an ashtray in the bedroom;

(c) the lit or smouldering cigarette fell into a pile of clothes and bedding on the floor of the bedroom;

(d) alternatively, Ms Creasy dropped the smouldering end of a cigarette into this cotton material; and

(e) the lit or smouldering cigarette, alternatively the smouldering end of a cigarette, ignited the cotton material which developed into the fire which consumed the property.

1. Webb's claim fails if I accept the evidence of Ms Creasy that she did not smoke a cigarette in the bedroom on the day of the fire.
2. Webb also concedes that unless it can establish the point of origin of the fire was within the pile of clothing located on the floor of the bedroom, as opposed to the location of any of a number of electrical devices located in other parts of the bedroom, its claim must also fail.
3. For the reasons which follow, I find that:

(a) Ms Creasy did not smoke in the bedroom on 8 April 2021;

(b) Webb is unable to establish, on the balance of probabilities, the area or point of origin of the fire within the bedroom,

1. The principal issues for determination are as follows:

(a) The credibility of Ms Creasy, in particular as to her general denial that she smoked inside the property, and her evidence she did not smoke in the bedroom on the day of the fire.

(b) What is the area of origin of the fire within the bedroom?

(c) What is the likely cause of the fire?

(d) What was the reasonable commercial cost to repair and reinstate the property?

1. Dean Webb, a director of Webb, gave oral evidence, as did Ms Creasy. Webb relied upon various reports of fire investigator, John Lording. Ms Creasy relied on the evidence of an electrical engineer and fire investigator, Mark Cousins, and a building consultant, Phillip Naughton, as to quantum. Each expert gave evidence and was cross-examined carefully.
2. A number of other documents were tendered, including:

(a) a report of fire investigator, Phil Glover;

(b) a Fire Investigation Report of Fire Rescue Victoria ("FRV") dated 8 April 2021; and

(c) a FRV Investigation Job Note dated 8-9 April 2021,[3]

parts of which were subject to a restriction in terms of the use that it may be put pursuant to s136 of the Evidence Act 2008.[4] Each of these documents had been provided to the respective parties' fire investigation experts, Mr Lording and Mr Cousins.

1. By agreement between the parties, I have only used the opinions as to the cause of the fire expressed in these reports and the job note to understand the matters taken into account by Mr Lording and Mr Cousins, and not to prove their truth.
2. Each party filed an outline of submissions dated 31 March 2025.

1. In order to succeed on the case advanced at trial, the burden of proof lies on Webb to establish, on the balance of probabilities, that:

(a) the fire was caused by Ms Creasy's negligence (or breach of the clause in the lease of the property requiring her to take reasonable care);

(b) in particular, it is more likely than not the fire was caused by Ms Creasy failing to extinguish a lit cigarette in the bedroom.

1. It is not enough for Webb to show that this hypothesis is plausible on the evidence, or more likely to be true than some other possibility. Rather, it must prove facts which form a reasonable basis for the Court to be reasonably satisfied that a carelessly discarded cigarette probably caused the fire. Put another way, the Court is not authorised to choose between guesses.
2. In Jones v Dunkel, [5] Dixon CJ said (with emphasis added):

"... It is possible of course to say that if you have an empty diesel truck coming down a winding road on the outside at thirty-five miles per hour and an International truck going up the road on the inside at twenty-five miles per hour, the former is more likely than the latter to be over the centre line of the road on its wrong side. But that is only to say that of two guesses one is more probable than another. It may be remarked that these are not the only two guesses open as to the cause of the accident. But in any case we are not concerned with a choice among rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that 'you need only circumstances raising a more probable inference in favour of what is alleged'. But 'they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture'. These phrases are taken from an unreported judgment of this Court in Bradshaw v. McEwans Pty Ltd (Unreported, delivered 27th April 1951) which is referred to in Holloway v. McFeeters [1956] HCA 25; (1956) 94 CLR 470, by Williams, Webb and Taylor JJ. The passage continues: 'All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.' ... at pp 480, 481. But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."

1. Similarly, in Helton v Allen,[6] a plurality of the High Court cited with approval the observation of Dixon J (as his Honour then was) in Briginshaw v Briginshaw that:[7]

"... [W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. ... ."

1. In Seltsam v McGuinness,[8] Spigelman CJ made the following observations as to the distinction between inference and conjecture:

"84. It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists.

1. 85. Lord Macmillan in Jones v Great Western Railway Co (1930) 47 TLR 39, in the context of stating that a possibility that a negligent act caused injury was not enough, said (at 45):

'The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have validity as legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.'

1. 86. After referring to this passage, Sir Frederick Jordan in Carr v Baker [1936] NSWStRp 20; (1936) 36 SR (NSW) 301 said (at 306):

'The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible.'

1. 87. As Lord Wright put it in a frequently cited passage in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170:

'Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty, as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.'

1. 88. The test is whether, on the basis of the primary facts, it is reasonable to draw the inference. (See eg Layton [scil Luxton] v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358)."
2. A conclusion as to the cause of an unexplained accident may be established, on the balance of probabilities, notwithstanding that other possible causes cannot be excluded.[9]
3. Where expert evidence, properly adduced, leaves open two possibilities to explain a particular occurrence, and the objective evidence otherwise establishes that one of those possibilities is more probable than the other, a court is entitled to make a finding by way of inference that the most probable cause is the likely cause.[10]
4. Masters Home Improvement Pty Ltd v North East Solution Pty Ltd[11] provides a useful summary of the principles that apply to drawing an inference in a civil case:

"The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be 'the more probable inference' from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force."

1. On 25 September 2017, Webb was the registered proprietor of the property.[12] At the time of the fire, the house was a single-story brick veneer construction with timber frame and a tile roof.
2. Prior to first leasing the property to Ms Creasy in 2018, Webb completed renovation works at the property, including:

(a) installation of a 2.5-kilowatt Braemar wall-mounted air conditioning split system in the bedroom;[13] and

(b) rewiring the house, including a switchboard upgrade.[14]

1. The initial lease was between Webb and Ms Creasy, together with her then partner. Following a separation in late 2019, the parties executed the relevant residential tenancy agreement on or about 27 March 2020 ("Lease").
2. The Lease included the usual clauses to the effect that Ms Creasy must ensure care is taken to avoid damaging the premises, and special conditions including that smoking is not permitted within the premises, with any smoking to be performed externally to the property. In particular:

(a) clause 6(a) provides Ms Creasy would take reasonable care to avoid damage to the property; and

(b) clause 19.1 purports to indemnify Webb for any direct expense and loss incurred as a result of accidental or deliberately caused damage.[15]

1. On 8 April 2021, a fire occurred at the property. The Metropolitan Fire Brigade recorded the first emergency call to the incident at 13:12 hours. Several units attended and extinguished the fire, but not before extensive damage was sustained to the premises.
2. At the time of the fire, Ms Creasy lived at the property with her three daughters aged five, ten and sixteen. The two older children lived with her permanently, and the youngest on a 50/50 residential basis shared between Ms Creasy and her ex-partner following their separation.
3. Ms Creasy's bedroom was at the rear or southern end of the property. Figure 1 from an expert report tendered as an exhibit in the proceeding is reproduced below showing the general layout of the property, including the approximate location of windows in the bedroom.

Figure 1 - reproduced from report of John Lording dated 20 June 2024[16]

(a) her bed was oriented in an east/west direction, with the bedhead on the western wall of the bedroom;

(b) there was an air conditioning unit located above the bedhead, bedside cabinets on the north and south sides of the bed, each with a lamp and a power board servicing that lamp;

(c) the lamp on the southern side of the bed was not in use;

(d) in addition to a lamp, there were one or two chargers plugged into the power board on the south side of the bed;[17]

(e) facing Ms Creasy's bed on the eastern wall of the bedroom was a tallboy approximately 1.2-metres high, with a television on top of it;

(f) there was an electric fan heater, not plugged in at the time of the fire, somewhere on the floor north of the bed; and

(g) there was a pedestal fan in the south-east corner.

1. Ms Creasy usually smoked in the partially covered alcove between the bedroom and the laundry where she had placed a table with an outdoor setting, using a small terracotta pot as an ashtray. She accessed this area from the back door adjacent to the laundry or through a sliding glass door in the north-east corner of the bedroom.
2. Ms Creasy had a boisterous Great Dane puppy at the time who would jump up on the outdoor setting table, so when not in use she stored the ashtray on the tallboy in the bedroom.
3. She previously used a glass jar with a lid as an ashtray, which she stored inside a drawer of her bedside cabinet to keep it out of sight when her youngest daughter was at home. Ms Creasy's smoking was an issue with her ex-partner. Her older children knew she smoked. Ms Creasy replaced the glass jar with the terracotta pot some time before the fire.
4. To the best of her recollection, once she started using the terracotta pot as an ashtray, Ms Creasy left the glass jar in the bedside cabinet on the south side of the bed and did not give it another thought.
5. An expert retained by Ms Creasy prepared a sketch plan of the bedroom which reflects this evidence, save that it does not depict the sliding glass door at the north-west corner of the bedroom which accessed the alcove area.

Figure 2 - Sketch plan of the bedroom.[18]

1. After smoking, Ms Creasy would ordinarily empty the terracotta pot ashtray into the council supplied landfill bin stored at the rear of her property.
2. Ms Creasy also smoked with visitors on the front porch, where two empty pot plants were used to dispose of cigarette butts.
3. I accept Ms Creasy's evidence that she did not like the smell of cigarette smoke inside the house. Her evidence included that she took pride in the appearance of her home, and never smoked in the bedroom.
4. Consistent with this evidence, a routine inspection report prepared by Webb's managing agent dated 12 January 2021[19] records that the property was presented in a clean and tidy manner with no obvious or visible damage at the time of inspection. The photographs depict a well-maintained home, nice furniture and soft furnishings. The author noted the bedroom was clean and well-presented, no visible damage, no visible marks or stains on carpets, no visible marks on walls, floor clean, with no odours.

1. At the time of the fire, Ms Creasy was employed at a local barber shop in Wangaratta.
2. Ms Creasy left home for work at approximately 7.40am for her 8.00am start. Prior to commencing work on that day, she went to the laundromat to drop off bedding which was too large to be laundered at home. She took a lunch break a little earlier that day, at approximately 11.45am, as her eldest daughter and a friend needed a lift into town to buy some lunch.
3. When she arrived home at around midday, Ms Creasy did not observe any smoke at home before she and her daughter left to go to the bakery. It is not in dispute that there was clothing and bedding on the floor on the north side of the bed.[20]
4. The air conditioning unit in the bedroom was switched off at the remote when Ms Creasy left the house,[21] although the power to the air conditioning unit itself was on. There is no evidence the air conditioner was in operation immediately prior to the fire.[22]
5. There was a power board plugged into the power outlet on both sides of the bed, with a lamp and a charger or two plugged into the power board on the right-hand side of the bed. Ms Creasy was unable to say with certainty if it was switched on or not. The power board on the left-hand side of the bed had a lamp plugged into it, and, again, she was unable to say with certainty if it was switched on or not.[23]
6. A neighbour, David Keane, phoned Ms Creasy when she was at the bakery to alert her to the property being on fire. She returned home directly, and the fire brigade were already there. Ms Creasy heard sirens in the background when speaking to the neighbour, which puts this call at just after 1.12pm, when the alarm was raised to emergency services. The first responders arrived at approximately 1.14pm.[24]
7. After the fire was extinguished, Ms Creasy spoke to fire investigators from FRV, the Metropolitan Fire Brigade and Victoria Police that day; and later fire investigators engaged by Webb's insurer, John Glover (on 13 April 2021), and John Lording (on 21 April 2021). The property was considered a crime scene and was secured by Victoria Police while an investigation into the fire was conducted.
8. The fire destroyed the rear of the property - the bedroom including the windows, a section of hallway, several other windows and a glass sliding door adjacent to the hallway. In addition to fire, thermal and smoke damage throughout, the property sustained some damage from water during fire suppression activities.

1. Following the fire, Mr Webb, a builder by trade, partially reinstated the property before on-selling it to his daughter.
2. Mr Webb kept a careful record of the work he did between 8 April 2021 to 13 May 2022,[25] and maintained a bundle of invoices which are highlighted in Exhibit A.[26] I accept his evidence he then invoiced his daughter, Melissa, and her partner on 1 December 2023 for further works to reinstate the property in the sum of $66,989.59.[27]
3. I accept his evidence that the invoice to Melissa and her partner did not include a builder's margin. Mr Webb did much of the work himself, or at below commercial rates, having regard to his relationship as a local builder with local trades.
4. Mr Webb also obtained an indicative quote from Johns Lyng Regional Builders dated 22 June 2021,[28] said to represent the commercial cost of reinstating the property. It is not in dispute that the commercial cost of reinstatement is the appropriate measure of compensation for property damage where a plaintiff has used his own labour, or otherwise incurred costs below commercial rates.[29]
5. Building consultant, Phillip Naughton, who conducted an assessment of necessary reinstatement works at the request of Ms Creasy's solicitors,[30] did not allow certain claims on the basis that the work was not required or reasonable. During the course of his careful cross-examination by Mr Thomas, Mr Naughton made a number of concessions based on the evidence of Mr Webb.
6. Taking into account those concessions, Mr Webb's costing, particularly when an appropriate builder's margin is applied, is very similar to the Johns Lyng Regional Builders' quote.
7. I accept all of Mr Webb's evidence as to the extent of damage to the property, and the need for particular repairs which were not subsequently allowed by Mr Naughton.
8. Ultimately, Ms Creasy accepted that the amount claimed was the reasonable commercial cost to reinstate the property after the fire.
9. I accept the figure claimed by Webb of $245,281.65 as the reasonable commercial cost of repair and reinstatement of the property, and the other amounts claimed in the final particulars of loss and damage dated 25 February 2024.

1. Ms Creasy's evidence was the subject of a robust challenge.
2. Webb's claim depends upon a finding that Ms Creasy started the fire by smoking a cigarette in the bedroom at lunchtime on 8 April 2021. As a corollary to this finding, in assessing her credibility and reliability, I have considered very carefully the possibility Ms Creasy withheld information and/or misled Victoria Police and the various fire investigators; and then gave false evidence during the course of the trial.
3. I am not satisfied this is the case. It seemed to me that Ms Creasy did her best to give a straightforward account of her recollection of both her smoking around the time of the fire, and her specific activity on 8 April 2021.

The chronology is challenged in cross-examination

1. Ms Creasy agreed in cross-examination that she arrived home from work on the day of the fire at or about 12.05pm, before she left for the bakery to have lunch with her daughter, and had only been at the bakery for a few minutes before she received the call from her neighbour.
2. Ms Creasy was probably incorrect in her evidence she received a telephone call from her neighbour at about 12.15pm alerting her to the fire shortly after she arrived at the bakery. The evidence establishes emergency services were called at about 1.12pm, and Ms Creasy heard sirens in the background during the call.
3. My impression was that, although genuine, she was mistaken about certain elements of the chronology on the day. I accept her evidence she did not recall parts of the day. A mistake in the chronology is no reason to reject her account of whether or not she smoked in the bedroom at lunchtime on 8 April 2021.
4. The timing of the call from the neighbour suggested she may have been home for some time before leaving for the bakery with her daughter. Ms Hassan put to Ms Creasy the period of about one hour she was home provided opportunity for her to smoke a cigarette in the bedroom before leaving for the bakery.
5. Ms Creasy expressed some surprise at this proposition, and proffered the explanation that her timing may be out.
6. To my mind nothing turns on this, as I accept the timing of Ms Creasy's return to the property, her subsequent departure with her daughter and arrival at the bakery permits of the possibility that she had time to smoke a cigarette in the bedroom.

Ms Creasy's evidence as to smoking on the day of the fire is further tested

(a) kept two ashtrays in the bedroom because she smoked in the bedroom; or

(b) took the glass jar from the southern bedside cabinet and used it as an ashtray on the day of the fire.

1. Although Ms Creasy was a smoker at the time, Mr Thomas submitted there was no reason to disbelieve her, because she gave consistent evidence she did not smoke in the house, and certainly not in the bedroom. Further, I should accept her explanation as to why she stored ashtrays in the bedroom.
2. Ms Creasy admitted that she had pleaded guilty to two charges of lodging false reports to police in relation to property damage in 2011. She was fined without conviction. Her evidence - which was not challenged - included that her brother was a drug addict at the time and had broken into her rental property, then returned on a later occasion and kicked a window in. Ms Creasy said:

(a) she did not know her brother had broken into her home at the time of the first report; but

(b) by the time of the second report to police, she was aware it was her brother.

1. Her explanation was that she did not wish to get her brother into any trouble.
2. This occurred more around ten years before the fire, was frankly admitted by Ms Creasy in her oral evidence, and I accept her explanation. While it does not reflect well on her, I find her dishonesty on a previous occasion is not a sufficient basis to make an adverse finding as to her credit generally, or otherwise to reject her evidence at trial some fourteen years later.
3. Nevertheless, such a history invited careful consideration of the other available evidence as to her credibility and whether or not smoking related materials may have caused the fire.
4. Ms Creasy's oral evidence was broadly consistent with the accounts that she gave to the initial investigators. It is generally corroborated by certain contemporaneous notes, including of Senior Station Officer Brown, who records that Ms Creasy was present at the property a short time before the fire. Her evidence is also specifically corroborated in Exhibit U,[31] where the FRV report notes that Ms Creasy left to go to the bakery before 1.00pm.
5. Her account is also corroborated by the fact that no smoking paraphernalia was located in the bedroom by fire investigation officers on the day. There is no evidence any items were removed from the scene before it was investigated.
6. The fact she volunteered information to Mr Lording, on one view against her interests, that she kept an ashtray in the bedroom, supports my finding as to her general credibility.
7. I am satisfied, on the balance of probabilities, that Ms Creasy left the property at approximately 12.20pm, in accordance with her account provided to Mr Lording on 21 April 2021,[32] less than two weeks after the fire, and when it was likely to be fresher in her memory. I allow for both the exigencies of the passing of time and the possibility of some reconstruction of the timing of events on what was, to use Ms Creasy's own words, a traumatic day which she has tried to forget.[33]
8. Her evidence included while she did not like the smell of smoke in the house, she nevertheless kept an ashtray in the bedroom, which sometimes had butts in it. This apparent inconsistency gave me some pause for concern; however, on balance, I did not find this artful, dishonest or a reason to reject her evidence on the critical issue.
9. I accept her evidence that she did not like the smell of smoke in the house, and her explanation as to why she stored an ashtray in the bedroom at the time of the fire: she hid her smoking habit from her youngest daughter by keeping a terracotta pot she used as an ashtray out of sight of a five-year old, 1.2 metres above the ground on top of the tallboy in the bedroom, which could not be observed easily.
10. Webb submitted that one of the objective facts is that Ms Creasy had a motive to lie, being her understanding of the potential implications of her smoking at the property on her own insurance claim for damage to her contents. Ms Creasy denied this motivation or understanding.
11. It was not put to Ms Creasy that the terms of her contents insurance policy would have resulted in a claim being rejected if she had:

(a) smoked inside the house; or

(b) smoked in the bedroom on the day of the fire.

1. I accept Ms Creasy's evidence that she did not have a cigarette in the bedroom on the day of the fire. It follows that I find she did not start the fire as alleged. This finding is sufficient to dismiss Webb's claim.

Investigation of the fire on 8 April 2021 - FRV

1. FRV Senior Station Officer David Brown and Leading Fire Fighter Robert Skase attended the scene at 16:10 on 8 April 2021 to investigate the cause of the fire and recorded their findings in job notes and a report of that date.[34]
2. Neither FRV investigator was called to give oral evidence. By agreement between the parties, pursuant to s136 of the Evidence Act 2008, the FRV report and notes were tendered on the basis that any opinions expressed in the report as to the cause of the fire may be used only to understand the matters taken into account by expert witnesses, Mr Lording and Mr Cousins, and may not be used to prove their truth.
3. The report and job notes contain a number of relevant factual observations concerning damage sustained by the house, and an opinion as to the point of origin of the fire.
4. Prior to entering the house, Mr Skase inspected the meter board located in the driveway area and noted that two circuits had been tripped: the safety switch and one power circuit. He determined that both circuits had been tripped prior to the Fire Brigade arrival.
5. Mr Skase reported that the fire originated from the bedroom where he observed significant damage, increasing towards its southside window. Based on the presence of a "V" burning pattern evident in the remains of the plaster on the wall behind the bed, and the extent and location of fire damage, he determined:

(a) the 'area of origin' to be the left side of the bed; and

(b) the localised 'point of origin' to be in front of the southside bedside table, where he observed the lowest and most significant fire damage in the bedroom.

1. In relation to the area of origin of the fire, Mr Skase recorded his observations and findings as follows:

"Lighter sooting in the front of the house which got worse as you travelled down the hallway towards the rear of the house. Thermal damage was evident as you entered the hallway and into the bathroom and the ensuite.

The doorway had directional indicators showing the fire had spread from the rear bedroom towards the front of the house.

There was significant damage to the entire bedroom, with an increase in damage towards the rear window adjacent to the bed. A 'V' pattern was evident in the remains of the plaster on the wall behind the bed.

The left side of the bed showed more damage than the rest of the room, indicating the Area of Origin.

The bedside table in this area was almost entirely consumed by the fire.

The front of the bedside table had more fire impact and the rear of the bedside table was protected.

The localised Point of Origin (P.O.O) was deemed to be in front of the bedside table adjacent to the bed.

Discussion with the OIC SSO David Brown confirmed this area to be the most fire activity upon the arrival of the first attending crew.

The lowest and most significant fire damage was in this area. The contents in this part of the room were mostly consumed by the intensity of the fire.

Examination and excavation of the fire debris revealed:

Some damaged wiring was located in the vicinity of the P.O.O. however it was badly damaged by the intensity of the fire ...

The tenant said that there was a charging device for a phone or a tablet located in the Area of Origin.

There were no indications of other materials or ignition sources identified in the area."[35]

1. The floor plan appended to the report is reproduced below.

Appendix 1 - Floorplan from the FRV report dated 8 April 2021

1. The ensuing intensity of the fire consumed most of the evidence in the area of origin identified by Mr Skase.
2. The FRV investigators also considered natural, accidental, incendiary (suspicious) and accidental-electrical potential ignition sources. They found there was no evidence of lightning strike, impact from another fire, spontaneous ignition or chemical reaction; no evidence to support an accidental fire from candles, smoking materials or other items located in the area of origin, and no evidence to support an incendiary fire - noting the first responding firefighting crews had to force entry to the house to fight the fire.
3. No evidence of suspicious activity was detected.
4. Mr Skase located some fused wiring in the identified point of origin.[36]
5. The FRV Fire Investigation & Analysis - INVESTIGATION JOB NOTES[37] record the officers:

(a) were on scene from 16:10 to 17:30 on the day of the fire;

(b) spoke with the tenant to ascertain what had been happening in the area of origin prior to the fire;

(c) processed the scene to determine an area of origin; and

(d) found several indicators that led them to an area of origin, and within this area, located a piece of two-strand wire that had been fused together.

1. The notes record that the scene was being guarded by Victoria Police members.

Investigation of the fire on 13 April 2021 - insurance investigator Phil Glover

1. Ms Creasy's home contents insurer instructed Mr Phil Glover, forensic fire scene investigator and licensed private investigator, to conduct an investigation into the cause of the fire. His findings are recorded in a report dated 14 April 2021.[38]
2. On 13 April 2021, Mr Glover examined the scene and interviewed Ms Creasy, who stated:

(a) she had been a tenant in the property for the past three years, where she lived with her three children, aged seventeen, eleven and six years old;

(b) a lamp was positioned on a bedside cabinet to the north of her bed in the bedroom;

(c) she believed the lamp was operating all night and up to the time of the fire;

(d) she and her children left the property earlier on the morning of the fire and her three cats were left indoors;

(e) she received a call at approximately 1:00pm from a neighbour advising the house was on fire;

(f) at 1:00pm, she drove the short distance to her home and found fire brigade crews attending to the fire; and

(g) she confirmed there was a pile of clothing, bedding and pillows on the floor north of the bed.[39]

1. On Mr Glover's examination of the scene on 13 April 2021, he noted:

(a) a lampshade and other fire debris had been removed from the room by firefighters;

(b) the remains of a power board and extension leads near a power outlet on the south side of the bed. He did not identify any evidence of arc strikes on any remaining components or other localised severe heat damage.

(a) the localised severe fire damage and partial collapse of the north side of the bed was the area of greatest fire damage at the lowest point.

(b) bedding, clothes and pillows had been on the floor north of the bed, which indicated a higher localised fuel load in that area.

1. Other than in relation to these factual matters, I place no weight on Mr Glover's report which contains a multitude of errors; a discredited theory as to ignition by a light bulb, and an opinion based on pure speculation that a cat started the fire. Webb abandoned reliance on Mr Glover's opinions, and his report was tendered to give context and to understand matters taken into account by Mr Lording and Mr Cousins, who were each provided with his report for comment.

1. John Lording is a former Victoria Police officer who has worked as a fire investigator since in or about 2000.[40] He could not say he had ever investigated a fire caused by discarded smoking material before this case.
2. When Mr Lording attended the property on 21 April 2021 at the request of Webb's insurer, QBE, Ms Creasy stated to him:

(a) she kept a jar with a lid on it that she used as an ashtray in the bedroom in the top drawer of the left-hand side bedside cabinet;

(b) she had left the property at about 12.20pm on the day of the fire;

(c) there was a rectangular lamp on the right-hand side bedside cabinet, and some clothes, pillows, a laptop and a phone charger on the floor on the right-hand side of the bed.

1. During his examination of the scene, Mr Lording:

(a) observed two pot plants located beside the front door to the property with a number of cigarette butts in them;

(b) noted fire damage including:

(i) the aluminium-framed sliding door from the small passage to the rear porch was extensively damaged with the glass panels having failed during the fire, with significant melting to the aluminium frames;

(ii) the timber base frame on the northern side of the bed had significantly greater damage, with part of the bottom rail having burned through completely on this side;

(iii) a six-outlet power board connected to a power outlet to the south of the bed was significantly damaged. All that remained of the power board were the bus bars and overload switch. He was unable to determine if any appliances were connected to it; and

(iv) burn patterns in the room consistent with the fire originating at or near floor level on the north (right) side of the bed.

1. There is no other reasoning which supports his finding as to the area of origin of the fire, so I give it limited weight.
2. Mr Lording did not locate either of the receptacles used as ashtrays.[41]
3. His preliminary report dated 27 April 2021 states his opinion as to the cause of the fire as follows:

"28. While the insured has advised that she does not smoke inside the property, I am unable to completely eliminate carelessly discarded smoking related materials as a source of ignition in the bedroom given that she advised she keeps a jar as an ashtray in the bedside table on the left hand side of the bed. The time from when the occupant left the property to when the fire was discovered could also be consistent with a fire developing as a result of smoking related materials coming in contact with combustible material on the floor in the bedroom.

1. 29. There were also unidentified electrical components that were located on the floor of the room which could also be potential ignition factors.
2. 30. In the circumstances the cause of the fire is undetermined."

1. In his opinion, smoking materials or unidentified electrical components on the floor of the bedroom were both "just a possibility that ... [he couldn't] completely exclude at this stage"[42] as potential ignition factors.
2. Three years later, Mr Lording was instructed by Webb's solicitors to prepare a supplementary report on the proximate cause of the fire, based on additional material[43] provided to him. The author of the letter dated 5 June 2024 states:

"We understand from the April 2021 Report that you consider the most probable cause of the Fire to be that a lit cigarette ignited flammable material, which caused the Fire."

1. Those instructions are incorrect.[44] His report states the cause of the fire is undetermined. It is unclear the extent to which, if at all, this may have unconsciously influenced Mr Lording to revise his opinion as to the cause of the fire, as set out below.
2. None of the additional materials provided to him refer to carelessly discarded smoking materials being a potential cause of the fire.[45]

1. Mr Lording's subsequent report dated 20 June 2024 reproduced nearly all of his preliminary report,[46] and stated he still considered the cause of the fire to be undetermined. He recorded additional observations and opinions as follows:

(a) he could not identify the remains of any appliances or a laptop north of the bed;

(b) damage patterns in the bedroom indicated the fire did not originate around the television on the east wall or in the area of the power board on the left-hand side of the bed;

(c) there was significant deep charring to the frame of the bed and the timber bedside cabinet on the south side of the bed;

(d) while in general, greater damage is a result of fire burning in an area for longer and therefore may be the area of origin, intensity and duration (time of fire burning) is influenced by fuel load, manner of ignition, ventilation and fire suppression activities;

(e) the extent of the damage south of the bed was likely to have been a result of the effects of ventilation once the floor-to-ceiling window on this side of the room had failed, allowing greater inflow of air into the room and assisting with combustion of fuel on this side of the room; and

(f) "there is a large amount of material that suggests, on the balance of probabilities, that smoking related materials cannot be eliminated as a plausible [or possible[47]] fire cause."[48]

1. Mr Lording maintained his opinion the area of origin was at or near floor level on the north side of the bed,[49] and that the cause of the fire is undetermined,[50] based on the methodology in the 2021 edition of the National Fire Protection Association's NFPA 921 - Guide for Fire and Explosion Investigations ("NFPA 921") and other texts, including Kirk's Fire Investigation (eighth edition) ("Kirk's").[51]
2. NFPA 921 is the accepted methodology used for fire investigation in Australia.[52]
3. Kirk's provides:

(a) if only one hypothesis fits the available data and other hypotheses are conclusively eliminated, an opinion can be expressed to a reasonable degree of scientific certainty;

(b) this reflects the scientific method prescribed by NFPA 921 as the proper approach for fire investigation;

(c) if two or more hypotheses about the origin or cause of a fire or explosion exist and neither can be eliminated, the degree of certainty or confidence is reduced to possible or suspected and the conclusion should be undetermined.[53]

1. Of the potential electrical causes of fire considered by Mr Lording, only the phone charger or other appliances connected to a multi outlet power board and the air conditioning unit were in issue: the experts were agreed that neither bedside lamp nor the flat screen television on the tall boy unit were viable potential causes.
2. Mr Lording examined the bus bars and overload switch, all which remained of the power board. No appliances connected to the multi outlet power board could be located or identified. While he found no evidence of failure of the bus bars of the power board or any appliances connected to it, without any physical evidence remaining of these appliances, they could not be confirmed or eliminated as a potential cause of fire.
3. While, in his opinion, the damage patterns in the room indicated the fire did not originate in the area of the power board on the left-hand side of the bed, this was unsupported by any reasoning.
4. Mr Lording inferred from the location of the jar with a lid on it in the drawer of the cabinet to the south side of the bed container Ms Creasy "used as an ashtray", that Ms Creasey did smoke in the bedroom. He did not believe Ms Creasy's statement that she did not smoke inside.[54]
5. There are two problems with this assumption: firstly, the evidence was that this ashtray was not in use as at the time of the fire; secondly, and more importantly, my finding that Ms Creasy did not smoke in the bedroom on the day of the fire.
6. The experts agreed that the temperature at the tip of a lit cigarette can reach approximately 700 degrees Celsius when smoked and around 400 degrees Celsius when smouldering, which are both well above the ignition temperatures of cotton.
7. Mr Lording's evidence included "a smouldering cigarette knocked over from an ashtray could initiate combustion".[55] There is no doubt in theory that a discarded lit cigarette might possibly ignite cotton material.
8. His opinion that carelessly discarded smoking materials might be a cause of the fire, however, was not based on any new information he had been given since his April 2021 report.[56]
9. While he did not accept he was engaging in speculation, he said his "theory" a smouldering cigarette in the bedroom may have been a potential cause of the fire was based on a jar with cigarette butts in it being located in the south bedside cabinet.[57] That jar was never recovered.
10. He went on to state in his June 2024 report:

"65. ... The ignition of the material is dependent upon an adequate supply of oxygen, such as air pockets in bedding or clothing to support the combustion process and the cigarette is in contact with the cotton or clothing for long enough for the heat from the cigarette to transfer to the material. A fully extinguished cigarette is unlikely to ignite the material.

1. 67. According to studies by the National Fire Protection Association and the National Institute of Standards and Technology (US) a lit cigarette can ignite cotton or similar materials with within minutes to over an hour, depending upon the conditions outlined previously.
2. 68. In this instance, a cigarette would have to have sufficient heat energy remaining, sufficient oxygen available and in contact with the cotton material to allow heat transfer to take place so that the temperatures of the cotton increase to the point where the material goes from a smouldering state to flaming combustion."
3. His evidence included that in order for a smouldering cigarette to ignite cotton material, the cigarette end must be in contact with the combustible material over time, which depends on how it is positioned, into the material or on top of the material. It would need to be insulated - that is, at least partially covered or buried in the material - in order to raise the material it is in contact with to its ignition temperature.[58]

Supplementary report of Mr Lording dated 30 September 2024

1. Mr Lording was then asked by further letter of instruction dated 26 September 2024 to clarify the opinion in his June 2024 report, because "as expressed [it] does not clearly indicate the sense in which you use the term 'balance of probabilities' and your opinion as to the relative likelihood of each plausible cause of the fire".
2. In terms, Mr Lording was instructed to:

"... clarify ... paragraph [[70](a) and (b)] by explaining:

(iii) What do you mean when you use the term 'balance of probabilities'?

(iv) What other causes of the fire (if any) do you consider plausible?

(v) Using a probability scale of 0 to 100, with zero being impossible and 100 being certain beyond reasonable doubt, what is the probability that smoking related materials caused the fire?"

1. The defendant's solicitors also supplied Mr Lording with the report of Mr Mark Cousins dated 26 July 2024[59] for comment, and material subpoenaed from FRV.[60]
2. And so, as requested, Mr Lording develops his opinion regarding whether smoking-related materials caused the fire.
3. Mr Lording considers for the first time the air-conditioner in the bedroom as a possible cause. In his opinion, there were "no identifiable damage patterns ... that indicated the air conditioner was the origin of the fire and that the fire damage spread out from burning material on the bed that had dropped down from the head unit". He considered it highly unlikely to be the cause of the fire.
4. As to the likely area of origin, he discounts the opinions of others that it is an area south of the bed. This, he said, is because the greater fire damage on this side of the bed is explained by ventilation through the failed southern window in the bedroom. He stated:

"The FRV documentation and Fire investigation Report indicate that the area of origin to have been on the south side of the bedroom and it is likely that these opinions are based on the significant damage on this side of the room. I consider that the extent of the damage on the south side of the room is a result of the effects of ventilation once the window on the south wall and the window on the east wall. When window openings in a compartment fail during a fire this significantly affects the damage patterns on fuel packages (furniture and contents) close to these openings. Ventilation through failed openings increases the entrainment of oxygen through the openings and increases the flow of oxygen over combustible material resulting in higher heat release rates, enhanced combustion and greater damage to fuel packages near these openings. This greater damage can be mistaken for an area of origin of a fire. I consider in this case the damage on the south side of the bedroom is a result of the effects of ventilation."

1. In his reliance on the greater fire damage sustained on the northern rail of the bed, however, Mr Lording does not address the ventilation source of the hallway, or the failed sliding door and window to the north-east of the bed, or the presence of the adjacent significant fuel load - a pile of clothing, bedding and pillows -on the northern side of the bed.
2. Based upon no new information, Mr Lording then changes his opinion as to the cause of the fire being undetermined, to carelessly discarded smoking-related materials:

"If no precise ignition source or cause can be established from physical evidence alone I am still able to offer an opinion based on the balance of probability after considering other factors such as witness and documentary evidence. In this case I have considered information from the FRV Reports, the information I obtained from Creasey regarding a jar used as an ashtray, the cigarette butts found in pot plants at the front of the building, the timing of occupants being at the property in comparison to when the fire was discovered, the identification and examination of the area of origin and the elimination of other potential ignition mechanisms within the room. The damage pattern on the north side of the room particular the significant charring to the rail on the north side compared to the south side could not be attributed to ventilation or significant fuel load and therefore I considered that this damage was due to being involved in the fire in its early stages. Therefore, while my Full Report of 20 June 2024 listed the cause of the fire as undetermined I consider that carelessly discarded smoking related materials as a cause of the fire to be more likely to be true than not."

1. The explanation for his change of opinion he provided in cross-examination was to the effect that the "newer" information Ms Creasy's daughter and a friend were present in the house on the day of the fire contradicted what Ms Creasy had told him in April 2021. This information had been provided to him prior to the preparation of his June 2024 report. Based on this "newer" information, smoking-related materials was a "higher" possible ignition mechanism for the fire than other causes in the area of origin of the fire he identified north of the bed.[61]
2. Mr Lording agreed he would defer to Mr Cousins as to the question of whether an electrical fault has occurred and the mechanism by which it has occurred, but not as to whether that fault caused a fire.[62]

1. Mr Mark Cousins provided a report dated 26 July 2024, based on his review of available information and certain factual assumptions, as to the cause and origin of the fire. A former electrical fitter (1988), Mr Cousins has electrical and electronic engineering qualifications (Bachelor of Engineering (Honours), 1997) and practised as a forensic electrical engineer since 2002. He is a certified fire investigator (2018).
2. Mr Cousins did not inspect the site of the fire. The fact that a fire investigator relies upon data, photographs and scene documentation obtained from others is not an inherent limitation on an expert's ability to investigate the incident.[63]
3. He relied on three photographs of the fire scene taken by FRV, 32 photographs taken by a loss adjuster, 33 photographs taken by Mr Glover and 67 photographs taken by Mr Lording.
4. Mr Cousins states Mr Glover's photographs:

"... show views of the room from different angles and the extent of damage throughout bedroom 1. They show that virtually all the plasterboard or similar wall covering had been destroyed, and I note such linings would generally be expected to withstand a fire for around 20 to 30 minutes and not completely fail for a while longer when subjected to a fully developed fire in the room. It is, therefore, clear from the photographs that the fire in the bedroom underwent flashover and that it probably continued to burn well beyond that stage ... ."

"Flashover is defined by 'NFPA 921 - Guide for Fire and Explosion Investigations, 2024 edition' as: '[A] transition phase in the development of a compartment fire in which surfaces exposed to thermal radiation reach ignition temperature more or less simultaneously and, given sufficient availability of oxygen, fire spreads rapidly throughout the space, resulting in full room involvement or total involvement of the compartment or enclosed space'."

(a) the fire in the bedroom underwent flashover and it probably continued to burn well beyond that stage;

(b) the damage throughout the room was relatively uniform;

(c) patterns of burning can be unreliable once a fire progresses beyond flashover;

(d) the patterns sustained in this incident must be treated with some caution. On his review of the available evidence, there are no conclusive patterns to show the precise area of origin of this fire;[64] and

(e) all of the potential ignition sources - discarded cigarette or one of a number of electrical devices - are equally likely from a scientific perspective.

1. I also accept Mr Cousins' evidence that a smouldering cigarette that lands on a pile of clothing and bedding would probably need to be disturbed and buried deeply in that material in order to create the conditions of insulation sufficient for it to smoulder and catch fire.[65]
2. While Mr Glover noted he found no evidence of arc strikes (more often referred to as electrical arcing activity) on remnant wiring in the bedroom, I accept Mr Cousins' evidence as an electrical engineer that:

(a) the power circuits were all protected by residual current circuit breakers with a 30mA residual current rating;

(b) due to the sensitivity of such devices (which are there to protect against the effects of an electric shock), if arcing occurs on cable conductors, it is often only identifiable by a microscopic examination of the wiring, and even then, it may not necessarily be identifiable.

1. FRV also retained some wiring that may have contained such evidence, which was removed from the scene before Mr Glover attended.
2. In addition to the various electrical components to the south of the bed, Mr Cousins considered an air conditioning system head unit above the head of the bed - with the highest electrical rating of any of the energised items reportedly located in the bedroom - may have developed a defect while operating or on standby.

1. I accept Ms Creasy's submission Webb has not proved its case.
2. Webb alleges the fire was caused by carelessly discarded cigarette ash or butts igniting combustible material on the floor of the bedroom, on the north side of the bed. It relies upon the opinion of its expert witness, Mr Lording, and upon inferences to be drawn from the evidence.
3. The difficulty Webb must overcome is that there is no direct evidence of the following:

(a) Ms Creasy smoking inside the property;

(b) Ms Creasy smoking in the bedroom;

(c) smouldering cigarettes left unattended on the day of the fire - no cigarette remnants were recovered from the bedroom;

(d) a cigarette was left unattended in an ashtray in the bedroom, in either of their usual locations on the tallboy or in the southern bedside cabinet or otherwise - no ashtrays were recovered from the bedroom;

(e) Ms Creasy discarded her cigarette or the burning end of her cigarette into clothing and bedding on the floor in the bedroom;

(f) clothes and/or bedding were ignited by a cigarette.

1. The case proceeded on a theoretical available inference based upon known or agreed facts that Ms Creasy is a smoker and was present at the property around 50 minutes before the fire was called in to triple zero. It requires Webb to establish, on the balance of probabilities, the fire started to the north of the bed (origin of the fire). Webb's case also fails if it cannot establish the probable mechanism of ignition in that area (cause of the fire).

(a) the fire commenced at the property between approximately 12.20pm and 1.12pm on 8 April 2021;

(b) the fire initiated in the bedroom;

(c) firefighters attended the property and extinguished the fire; and

(d) Victoria Police deemed the fire not suspicious.[66]

1. I make the following findings based on the evidence adduced at trial:

(a) Ms Creasy usually smoked at the property in the alcove directly outside the bedroom or on the front porch;

(b) empty pot plants were used as ashtrays on the front porch;

(c) as at the time of the fire:

(i) Ms Creasy used a terracotta ashtray when smoking in the alcove area directly outside the bedroom;

(ii) Ms Creasy stored this ashtray on the tallboy cabinet located at the foot of her bed in the bedroom;

(iii) there was clothing, pillows and bedding on the floor of the bedroom, to the north of the bed, in the area of origin identified by Mr Lording;[67]

(iv) the air conditioning unit in the bedroom was switched off at the remote but connected to mains power;

(d) no cigarette remains or ashtray were located in the bedroom by fire investigators.

1. It is also not in dispute as between the experts that the burn patterns and/or fire damage in the bedroom indicate the fire did not spread from:

(a) the southern bedside cabinet where the glass jar with a lid previously used as an ashtray was stored; or

(b) the TV cabinet/tallboy where Ms Creasy stored the ceramic bowl she used as an ashtray.

1. I infer Ms Creasy removed the glass jar she used as an ashtray from the southern bedside cabinet before the fire on 8 April 2021. It was never recovered from the bedroom.
2. I infer the terracotta ashtray was not in the bedroom at the time of the fire because it was never recovered either.
3. The following competing inferences are available:

(a) Ms Creasy used the terracotta ashtray to smoke inside, including in the bedroom;

(b) equally likely is the inference she did not, based on her evidence as to her practice of smoking outside, the presence of ashtrays on the front porch, the designated location for smoking in the alcove to the east of the bedroom, and her evidence that she did not use any ashtray stored in the bedroom to smoke in the bedroom.

1. Even if I could infer from the evidence Ms Creasy smoked from time to time in the bedroom, the submission that she smoked in the bedroom when she returned home at lunchtime on 8 April 2021 is pure conjecture. This inference does not arise on the basis of the location of the ashtrays because neither was recovered. It was never put to Ms Creasy that she removed the ashtrays after the fire, which is unlikely because the scene was secured by Victoria Police until the investigation by FRV had concluded.
2. The inference Ms Creasy started the fire by leaving smouldering cigarettes unattended in the bedroom on the day of the fire around lunchtime is not available unless the area of origin of the fire is north of the bed at the location of clothing and bedding. There is no evidence of any fuel which might have been ignited by an unattended cigarette on the south side of the bed or anywhere else in the bedroom, or expert evidence that this was even a possibility.
3. The inference that Ms Creasy discarded a smouldering cigarette:

(a) into an ashtray and which was then somehow lodged deep within clothing and bedding on the floor within the potential area of origin on the north side of the bed; or

(b) directly into the clothing and bedding on the floor,

might arise if the cause of the fire is determined to be discarded smoking material, but this is a circular proposition.

1. Unless Webb establishes the fire ignited in clothing and bedding on the floor to the north of the bed, the claim fails at the first hurdle.

1. Webb relies on the evidence of Mr Lording that the area of origin is to the north side of the bed, and an inference that Ms Creasy smoked in the bedroom, then discarded a cigarette, or part of it, in this area.
2. I am not satisfied that the area of origin was to the north of the bed, having regard to the equivocal evidence.
3. Webb placed much reliance on preferential burning on the north side of the bed, usually said to indicate the length of time a fire has burned. Yet there was also preferential burning on the south side of the bed.
4. It is not in dispute there was significant available fuel in the nature of clothes, bedding and pillows on the floor to the north of the bed. Webb relies on the presence of this fuel to support its case as to a cigarette igniting the fire in this area. But that is conjecture, it being only one of a number of possible inferences available on the evidence.
5. The preferential burning to the north of the bed might be explained by it being the area of origin; but I accept Mr Cousins' evidence that the presence of this fuel in the area and/or late extinguishment by fire fighters also provide a likely explanation for this preferential burning.
6. Mr Cousins observed preferential damage to the southern side of the bed's headboard; and a 'V' shaped pattern coming across the bed towards its south-western corner[68] and on the wall and headboard centred on that location.[69] In the absence of compelling patterns of burning on the north side of the bed to support the opinions of Messrs Glover and Lording, the burn patterns on the south side of the bed led Mr Cousins to the view that the area of origin was more likely to have been to the south of the bed.[70] This is the area of origin identified by the first responder investigators from FRV, and where the remains of the power board were located.[71]
7. I accept the evidence of Mr Cousins that any preferential burning to the northern rail of the bed - relied upon by Webb to indicate the area of origin in this location - may also be explained by the higher fuel load at that location, or late extinguishment.[72]
8. I do not accept Mr Lording's evidence that the preferential burning to the south of the bed is explained only by the southern window being destroyed at some advanced point of the fire, after flashover had occurred.
9. I accept Mr Cousins' evidence as inherently probable that:

(a) it is difficult to interpret burn patterns conclusively once flashover occurs in a structural fire given the temperatures involved;

(b) ventilation from the rear window of the bedroom following its failure - at an unknown time - does not necessarily explain the preferential burning on the south side of the bed, because otherwise the southern bedside cabinet would have been a lot more severely damaged by the fire like the tallboy adjacent to the ventilation source of the other failed window;[73]

(c) depending upon which window failed first, the preferential damage to the north side of the bed might be explained by ventilation from the failed window and sliding door to the north-east of the bed, and the door to the the hallway.[74]

1. There are also firefighting effects which may have affected the extent of burning in different parts of the bedroom. These further unknown factors do not assist Webb's case.
2. The presence of two areas of preferential burning - one in the area in which electrical items and a power board were located and the other in an area adjacent to clothing, pillow and bedding located on the floor to the north of the bed - are inconclusive.
3. The scientific method in NFPA 921 requires identification, first, of an area of origin, then a point of origin of a fire, in order to determine its cause.[75] While an area of origin north of the bed is one possibility, an area of origin to the south of the bed is another. On the evidence available to me, neither is more probable than the other.
4. Having regard to my findings as to the uncertainty of the area of origin, Webb's claim fails at this juncture. Absent a finding, on the balance of probabilities, that the fire initiated in the clothing and bedding on the north side of the bed, the claim must be dismissed. So much was conceded by counsel for the plaintiff, Ms Hassan.

1. It is not in dispute fires resulting from carelessly discarded smokers' material are typically discovered within an hour or two of the material being carelessly discarded; and that the timing of Ms Creasy's departure from the property relative to when the fire was discovered is consistent with a cause associated with carelessly discarded smokers' material.
2. Webb submits the following facts are established on the evidence:

(a) Ms Creasy was a smoker at the time of the fire;

(b) a glass jar with a lid was stored on the south side of the bed in a cabinet, which Ms Creasy admits she had used in the past as an ashtray. Mr Lording relied upon this evidence to establish in his mind that Ms Creasy smoked in the bedroom;

(c) a terracotta ashtray was stored from time to time on a tallboy in the bedroom; and

(d) Ms Creasy, her daughter and a friend were at the property shortly before the fire was called in to triple zero at approximately 1.12pm.

1. Mr Lording's evidence included a lit or discarded cigarette can ignite cellulose materials, such as cotton bedding or clothes, if dropped on them. In his opinion:

"... The ignition of the material is dependent upon an adequate supply of oxygen, such as air pockets in bedding or clothing to support the combustion process and the cigarette is in contact with the cotton or clothing for long enough for the heat from the cigarette to transfer to the material. A fully extinguished cigarette is unlikely to ignite the material."[76]

1. The temperature of the cotton or clothing must increase to the point where the material goes from a smouldering state to flaming combustion.
2. Mr Lording's opinion, based on studies of the National Fire Protection Association and the National Institute of Standards and Technology (US), is that a cigarette can ignite cotton or similar materials within minutes to over an hour.
3. His opinion was qualified by his observations that the cigarette would have to have sufficient heat energy remaining, sufficient oxygen available and be both in contact with cotton material, and sufficiently insulated within that material so as not to permit heat to be dissipated to the environment, in order to allow the necessary heat transfer to take place in order for ignition to occur.
4. I accept this evidence, which was consistent with Mr Cousins' evidence.
5. I infer that the prospect of a smouldering ash-end of a cigarette (as opposed to the cigarette itself) igniting cotton material is significantly less likely than an entire lit cigarette igniting the same material, because less heat energy is available to transfer into the cotton material.
6. Mr Thomas submitted that Ms Creasy's evidence of the locations she stored ashtrays in the bedroom - within a drawer of the southern bedside cabinet and on the tallboy - does not support the inference of a discarded smouldering cigarette knocked from an ashtray causing the fire. I accept that submission. Neither location was within a potential area of origin of the fire. No ashtray was ever located near the area of origin north of the bed relied upon by Webb, in the areas where Ms Creasy said they were usually stored, or in any other potential area of origin.
7. Messrs Lording and Cousins agree that:

(a) lamps plugged into electrical power boards on either side of Ms Creasy's bed did not cause the fire;[77]

(b) the fire did not start at or inside the cabinet on the south side of the bed;

(c) as the tallboy used as a TV cabinet was not located within a potential area of origin, the fire was not caused by an electrical fault at the TV; and

(d) other electrical components in the bedroom were potential causes of the fire.

1. There remains the possibility of the air conditioning unit initiating the fire. The electrical and plumbing conduit pipes were located towards the northern side of the bed. It is likely that a fire initiating at the air conditioning unit would have resulted in it becoming dislodged from its fixings on the wall. The heat of the fire in the bedroom was sufficient to destroy the air conditioning head unit entirely, save the remnants of a motor found on the north side of the bed.
2. On the evidence before me, I am not able to make any finding as to whether the air conditioning unit was anything other than a possible source of ignition.
3. There is no evidence of any fuel present on the south side of the bed which could have been ignited by a discarded cigarette or part of a cigarette.
4. I assess the probability of Ms Creasy discarding an entire lit cigarette directly into her own clothing and bedding in the bedroom as very low. This finding is consistent with fire investigators not finding cigarette remains or an ashtray on the floor to the north of the bed, Ms Creasy's evidence about the pride she took in her family's home, and common sense. I do not feel the requisite actual persuasion of its occurrence, or belief in the reality of this possibility.
5. Based on the expert evidence, the probability of ash alone from a cigarette starting the fire is very low because it would not have sufficient heat to transfer into and ignite available fuel. I discount this possibility.
6. I am left with the theory that Ms Creasy must have left a discarded smouldering cigarette into an ashtray unattended, which then fell into clothing and bedding lying on the floor on the north side of the bed.
7. On the assumption the area of origin was to the north of the bed, I must be satisfied that a smouldering cigarette fell with sufficient heat energy on fuel in a particular arrangement which permitted smouldering over a significant period of time - up to an hour - followed by ignition of cotton material on the northern side of the bed. Without any other evidence, in my view it is conjecture that:

(a) a smouldering cigarette landed on clothing and bedding; and

(b) the cotton material was then disturbed so as to create the necessary insulative conditions to permit smouldering and then ignition.

1. As opposed to other potential causes, the evidence does not persuade me it is more probable Ms Creasy smoked a cigarette in her bedroom at lunchtime on 8 April 2021, deliberately or accidentally discarded her lit cigarette into her own clothing and bedding, knocked over an ashtray containing a smouldering cigarette, or discarded a burning cigarette end into her own clothing and bedding on the floor, which ignited the available fuel.
2. I accept the opinion of Mr Cousins, which accords with the evidence as a whole, that the cause of the fire is undetermined.
3. I find Mr Lording's reasoning unpersuasive. He obfuscates the clear opinion of FRV that the area of origin is to the south of the bed, and does not acknowledge the unreliability of burn patterns once flashover occurs in a structural fire. His opinion as to the significance of evidence of preferential burning on the south side of the bed relies on the effects of ventilation without adequate consideration of all sources of ventilation or the unknown timing of failures of the glass doors and windows in the bedroom, and does not consider the presence of fuel load or the unknown extent and sequence of fire suppression activities.
4. There is evidence that a circuit tripped at the property on the day of the fire.[78] The available inferences from this evidence include an electrical fault ignited the fire which then caused a safety switch or a power circuit to trip; alternatively, that the fire resulted in an electrical fault which caused one or other of those circuits to trip. Neither is more probable.
5. Other electrical devices, including the air conditioning unit in the bedroom or chargers attached to power boards, may also have caused the fire. Investigators located damaged and fused wiring to the south of the bed, where FRV officers identified the area of origin.
6. Although never recovered, there was evidence of a laptop charging on the floor to the north of the bed.[79] If it was there, and not removed after the fire, this potential ignition source may have been destroyed in the fire, together with other evidence. This arises to no more than speculation because, as the first responder fire investigators recorded, the evidence which might enable an investigator to make a finding as to the cause of the fire was destroyed.
7. Once other potential causes have been eliminated, the Court is left with potential electrical causes or discarded smoking materials. As neither is more probable than the other, the evidence does not satisfy the test in Dahl v Grice or Jones v Dunkel; or Masters Improvements or Seltsam v McGuiness in terms of available inferences.
8. The authorities refer to the difference between permissible inference and conjecture. Such a distinction exists, and the case advanced by Webb never moves beyond conjecture, which "may range from the barely possible to the quite possible".[80]
9. This case may distinguish from others, such as Weber v Greater Hume Shire Council,[81] where the plurality considered the circumstances of a fire which commenced at an unmanned tip in southern regional New South Wales. After considering the expert evidence in the case, the New South Wales Court of Appeal found each of the three potential or possible causes of the fire involved negligence of the council. In those circumstances, it was unnecessary to determine which of those was the more probable. That is not this case.
10. I find any available inference that a cigarette caused the fire is no more probable than the inference an electrical device caused it. The claim fails on this basis.

1. I accept Ms Creasy's evidence she did not smoke in the bedroom on 8 April 2021. That finding alone is sufficient to dispose of the case.
2. Even if I was uncertain about this, the fire was investigated by FRV and no ashtray was recovered in the bedroom in the area north of the bed. Further, Webb is unable to establish the area of origin is on the north side of the bed, where the only fuel was located capable (in theory) of being ignited by a burning cigarette.
3. At the end of the day I had the benefit of opinions of a number of experienced fire investigators in relation to a fire scene room with inconclusive signs, which indicated at least two possible areas of origin, only one of which was consistent with a discarded cigarette starting the fire. No investigator found any physical evidence to show the cause of this fire.
4. On the available evidence, I am unable to draw the inference that Ms Creasy started the fire by smoking in the bedroom at lunchtime on 8 April 2021.
5. The claim is dismissed.
6. I will hear the parties as to the form of final orders, and costs.

[1] Ms Creasy has since reverted to her maiden name, Whatman

[5] [1959] HCA 8; (1959) 101 CLR 298 at 305

[6] [1940] HCA 20; (1940) 63 CLR 691 at 712

[7] [1938] HCA 34; (1938) 60 CLR 336 at 361

[9] Fuller-Lyons v New South Wales [2015] HCA 31; (2015) 89 ALJR 824, at paragraph [47]

[10] Dahl v Grice [1981] VicRp 50; [1981] VR 513 at 515; EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238

[11] [2017] VSCA 88; (2017) 372 ALR 440, at paragraph [101]

[17] Transcript ("T") 101, Line/s ("L") 27-8; Exhibit V

[18] Part of Exhibit 1, report of Mark Cousins dated 26 July 2024, Joint Court Book ("JCB") 122

[20] See for example the history provided to John Glover on 13 April 2021, Exhibit AA at page 3 - "Confirmation that bedding, clothes and pillows had been on the floor [on the north side of the bed], indicated a high localised fuel load"

[21] Exhibit U, extract of CFA Fire Investigation Management System Structural Fire Investigation Report dated 8 April 2021

[23] Exhibit V, Ms Creasy's Answer to Interrogatory 17 sworn 20 June 2024

[24] Exhibit Y and Z, extract of records from FRV

[26] See Exhibit O for copies of relevant invoices

[29] Powercor Australia Ltd v Thomas [2012] VSCA 87; (2012) 43 VR 220

[32] Exhibit 8, at paragraph [22], JCB 76

[36] This evidence was not inspected by either of the parties' expert witnesses

[43] Victoria Police LEAP report and copies of police electronic mobile duty returns; FRV fire investigation report (exhibit AB); and MFB AIRS report (exhibit 5)

[46] Exhibit C, at paragraphs [15] to [37]

[48] Exhibit C, at paragraph [70](a)(i)

[50] Exhibit C, at paragraphs [70](a)(i), [70](b) and [75]

[53] T175 and T191-192: evidence of Mr Lording

[63] Exhibit 7, NFPA 921, at paragraph 4.4.3.3; T166: evidence of Mr Lording

[68] Exhibit 1, paragraph 3.21, photograph JL4 at JCB 173; and T206, T212-213

[75] At 4.4.3.4, 4.4.5 Exhibit 7; See also Kirk's, Exhibit 6, which is derived from NFPA 921 - see note to Figure 1.1 in Exhibit 6

[80] Carr v Baker (1936) SR (NSW) 301 at 306

[81] [2019] NSWCA 74