FEDERAL COURT OF AUSTRALIA

Peck v Australian Automotive Group Pty Ltd [2023] FCA 1413

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 13 July 2021 be dismissed.

2.    Subject to Order 3, the applicants pay the respondents’ costs as agreed or failing agreement as assessed by a Registrar in a lump sum.

3.    The parties be granted leave to apply to vary Order 2 by filing and serving submissions (of no more than 3 pages) and any affidavit in support of the variation for which they contend by 4pm, 21 November 2023.

4.    In the event that a party exercises the leave granted in accordance with Order 3 by filing and serving written submissions under Order 3 then:

(a)    any party opposing the application to vary Order 2 is to file and serve submissions in response (of no more than 3 page) and any affidavit in support by 4pm, 23 November 2023; and

(b)    any submissions in reply (of no more than 1 page) are to be filed and served by 4pm, 24 November 2023.

5.    Any submissions filed and served under Orders 3 and 4 are to be emailed to the Associate to Cheeseman J at the same time as the submissions are served and the parties are to advise whether they consent to any application to vary Order 2 being heard on the papers.

6.    By 4pm, 22 November 2023, the parties to the cross-claims are to submit to the Associate to Cheeseman J proposed consent orders disposing of the cross-claims.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    Mr and Mrs Peck claim in respect of fire damage to their home that they allege was caused by a fire that ignited in Mrs Peck’s Fiat 500 C two door soft top convertible car when the car was parked in the garage attached to the home as a result of a defect in the Fiat. These reasons relate to the hearing in relation to liability.

2    The fire occurred in the early hours of 24 January 2018. The Pecks and their adult son were at home and were awoken by one of their dogs barking. Upon investigation, Mr Peck discovered a fire in the garage. Mr Peck was an experienced firefighter but he was not able to extinguish the blaze. The Peck family escaped uninjured.

3    The respondents to the claim are Australian Automotive Group Pty Ltd (AAG) and Ateco Automotive Pty Ltd. AAG sold the Fiat to Mrs Peck in August 2010. Ateco imported the Fiat. Under Sch 2 to the Competition and Consumer Act 2010 (Cth) (ACL), Ateco is deemed to be the manufacturer of the Fiat.

4    Cross-claims brought by each of the respondents against, relevantly, the Italian company, Fiat Group Automobiles S.p.A (now known as Fiat Chrysler Automobiles FCA Italy S.p.A) have resolved. The respondents were jointly represented at the hearing. The Court was informed that Fiat Group had advised the applicants that it had taken over conduct of the proceedings on behalf of the respondents.

5    The applicants’ claim is for damages pursuant to Part 3-5 Division 1 and Part 5-4 Divisions 1 and 2 of the ACL and for damages for negligence. The applicants allege that the respondents are liable in damages as a result of their breach of the consumer guarantees provided by s 54(2) of the ACL (the Acceptable Quality Guarantee) and s 55(2) (the Fitness for Purpose Guarantee) and also in negligence. It is further alleged against Ateco, as manufacturer of the Fiat, that the vehicle had a safety defect within the meaning of s 9 of the ACL for which Ateco is liable to pay damages pursuant to ss 140 and 141 of the ACL.

6    Shortly after the fire, the Pecks lodged insurance claims in respect of the damage caused as a result of the fire to the house and its contents and to their two cars, one of which was the Fiat. The claim is being pursued by the Pecks’ insurer under its rights of subrogation. The Pecks sold the house that was the site of the fire in March 2019. The insurer acquired the Fiat under its rights of subrogation.

7    The contest between the parties centred on whether there was a defect in the Fiat and if so, whether it caused the fire. By the time of the fire, the Fiat had been owned and operated by Mrs Peck for over seven years without incident. It had been regularly serviced every six to nine months. During the first year she owned the vehicle, Mrs Peck recalls that the Fiat was subject to a product recall in relation to the airbags in the vehicle. Mrs Peck’s Fiat was not the subject of a 2014 Fiat product recall in relation to a wiring issue on the steering column. The opposing parties called witnesses as experts with differing areas of expertise. No party called evidence from an electrician or electrical engineer.

8    The applicants’ experts had access to the scene of the fire and to the Fiat shortly after the fire. The respondents’ expert did not. The key witness relied on by the applicants in relation to their contention that the fire originated in the Fiat due to a defect in the Fiat’s wiring did not inspect the Fiat until after the scene had been made safe, the Fiat had been excavated from the remains of the garage and relocated to the area in front of the house

9    It was common ground that during the course of the fire, the mezzanine level which was situated over the garage was severely damaged and collapsed, impacting the garage below and the Fiat housed within. Even allowing for this, the Fiat was not preserved as a, if not the, critical piece of evidence, in the applicants’ case. By the time the respondents’ expert had access to the Fiat it was in a severely degraded and contaminated state. In addition, critical photographs taken by the applicants’ experts in the early period after the fire were out of focus. This is relevant because it is primarily on the basis of, inter alia, these photographs that the applicants’ expert opined that electrical arcing in a particular section of the wiring found near the steering column of the Fiat, evidences a defect which the applicants allege to be the cause of the initial ignition responsible for the fire.

10    Against this evidentiary canvas, the applicants contend that the Court should draw the inference that the fire started as a result of a wiring defect in the Fiat. They contend that the evidence establishes on the balance of probabilities that the Fiat was afflicted by the alleged defect and that the defect caused the fire. They submit that the competing hypotheses advanced by the respondents as to other possible causes of the fire are based on inferences that are not equally available. The applicants urge the Court to conclude that although the evidence may fall short of permitting the Court to be certain, the evidence is sufficient to establish to the requisite civil standard that the Fiat was affected by the defect as alleged and that the fire was caused by that defect.

11    By way of contrast, the respondents contend that the evidence does not establish, on the balance of probabilities, that there was a defect in the Fiat as alleged, and even if such a defect is proven, that the applicants have not discharged their onus in demonstrating that it caused the fire. The respondents submit that the applicants’ reliance on inferential reasoning is flawed in two critical respects. First, the applicants’ posited cause of the fire does not rise above being only one, of a number of possibilities. Importantly, the respondents contend that this is so regardless of whether it is established that the fire originated in the garage, and more particularly, in and or around the Fiat. Secondly, the applicants’ case on causation ignores key evidence as to the sequence of events which is critical, and which undermines the applicants’ reliance on inferential reasoning in relation to causation.

12    For the reasons that follow, and largely as a result of the applicants’ failure to establish on the civil standard that the Fiat was affected by the defect as alleged and that the fire was caused by such a defect, the application must be dismissed.

ISSUES TO BE DETERMINED

13    The parties agreed on the following joint list of issues to be determined:

Section 54 of the ACL – First and Second Respondents

1.    Whether the Fiat Vehicle (Fiat) had the defect alleged, namely that the Fiat experienced an electrical and/or other malfunction within the electrical system of the Fiat Vehicle causing the ignition (the Defect).

2.    If so, was the Defect present at the time of manufacture or supply?

3.    If yes to 1 and 2 above, whether the Defect was such that the Fiat was not of acceptable quality at the time of manufacture or supply within the meaning of s 54(2) of the ACL.

4.    If the answers to 1-3 above are yes, whether the Defect in the Fiat was the cause of the fire, involving the following sub-issues:

a.    Whether the point of origin of the fire was within the Fiat.

b.    Whether the Defect in the Fiat caused the fire including whether the fault identified by Renzo Alessi identified at paragraph 17, page 6 of his report dated 31 May 2018 caused the fire.

c.    The possibility of some other cause of the fire.

d.    How damage patterns assist in determining the origin of the fire.

e.    Whether the Fiat’s wiring assists in determining the origin of the fire.

f.    How Mr and Mrs Peck’s evidence assists in determining the cause of the fire.

Section 55 of the ACL – First Respondents

5.    Was there a disclosed purpose for which the Fiat was acquired? If so, what was it?

6.    Did the First Respondent represent that the Fiat was reasonably fit for any particular purpose? If so, what was that representation?

7.    Do the circumstances demonstrate that the Applicants relied upon the skill or judgment of the First or Second Respondent?

8.    If the answer to issue 7 is yes, whether it was unreasonable for the Applicants to rely upon the skill or judgment of the First or Second Respondent.

9.    If yes to 5 or 6 and 7 and 8 above, whether the Fiat was reasonably fit for that purpose?

10.    If the Fiat was not reasonably fit for any disclosed purpose, or for any particular purpose that the First Respondent represented that the Fiat was reasonably fit for, and section 55(3) of the ACL does not apply, whether there was any breach of a guarantee that caused the fire, involving the sub-issues at paragraph 4 above.

Section 9 of the ACL – Second Respondent

11.    Whether the Fiat had a safety defect within the meaning of section 9 of the ACL, involving consideration of whether the Fiat had the Defect.

12.    If yes to 11 above, was the safety defect present at the time of manufacture?

13.    If the answers to 11 and 12 above are yes, whether the Defect in the vehicle was the cause of the fire, involving the sub-issues at paragraph 4 above.

General Law – First Respondent

14.    What was the scope of the duty of care owed by the First Respondent to the Applicants?

15.    What was the risk of harm for the purpose of 5B of the Civil Liability Act 2002 (NSW) (CLA)?

16.    What precautions under section 5B CLA should the First Respondent have taken to address the risk of harm?

17.    Whether the First Respondent took those precautions.

18.    Whether any failure by the First Respondent to take the precautions was a necessary condition of the occurrence of the harm for the purpose of section 5D CLA.

19.    Whether it is appropriate for the liability to extend to the harm so caused pursuant to section 5D(1)(b) CLA.

General Law – Second Respondent

20.    The same issues identified in paragraphs 14-19 above

14    As is clear from this distillation of the issues, the focal point, variously framed for each of the causes pursued by the applicants, was whether the Fiat had a defect at the time of manufacture or supply, and if so, whether that defect caused the fire. These two issues were at the heart of the claim. The way in which the case was conducted concentrated on these issues almost exclusively. The submissions on all other issues were cast in general terms and were not developed in any detail. This may have been problematic if the two critical issues were determined in favour of the applicants. However, in the result it did not matter, because the remaining issues only arose if the applicants succeeded in discharging their onus on these two issues, which they did not.

EVIDENCE

15    The applicants’ lay evidence comprised affidavits of Mr Peck and Mrs Peck. Both affidavits were read without objection. Mr and Mrs Peck were not required for cross-examination. Both parties relied on the unchallenged evidence of the Pecks, particularly the evidence of Mr Peck addressed to his observations on the night of the fire.

16    AAG relied on the affidavit of Michael Clements, Director of Operations at Automotive Group Pty Ltd, affirmed 12 July 2021. Mr Clements’ affidavit, inter alia, annexed copies of documents relating to the sale of the Fiat to Mrs Peck. The respondents also relied on the affidavit of Stefano Marchesani, EMEA – Integration Engineer at Fiat Chrysler Automobiles Italy S.p.A, affirmed 31 January 2022. Mr Marchesani’s affidavit, inter alia, annexed technical diagrams and documentation in respect of Mrs Peck’s Fiat vehicle.

17    The expert evidence comprised the following:

For the applicants:

(1)    Ms Jones’ expertise is detailed below. In summary, she is a qualified fire investigator. Ms Jones completed an initial report on 18 March 2018, which was not tendered by the applicants. A heavily redacted version was tendered by the respondents following her cross-examination. Only those parts of the report on which Ms Jones was cross-examined were admitted into evidence. Ms Jones prepared a second report on 1 April 2021, which was tendered by the applicants following rulings on objections, including as to limitation on use. The applicants then tendered a corrected version of her 1 April 2021 report during the hearing, which corrected mistakes in the expression of the orientation of the house and garage — the corrected version of the report is dated 28 April 2022. The revised version of the report should have been marked in accordance with the rulings given on objections but was not. In its revised form, the report is subject to the same rulings given in respect of corresponding passages of the earlier iteration of the report. Ms Jones gave oral evidence and was cross-examined during the hearing.

(2)    Mr Alessi’s expertise is addressed below. In summary, he is a motor vehicle mechanic and a qualified fire investigator. Mr Alessi completed an initial report on 31 May 2018, which was not tendered by the applicants. A heavily redacted version was tendered by the respondents following Mr Alessi’s cross-examination. Mr Alessi prepared a further report on 1 April 2021, which was tendered by the applicants. Mr Alessi gave concurrent oral evidence with Dr Casey during the hearing. They were each cross-examined.

For the respondents:

(3)    Dr Casey is a mechanical engineer and academic. Dr Casey produced two reports, dated 19 July 2021 and 14 January 2022. Both reports were tendered by the respondents.

Joint report following conclave:

(4)    A joint expert report between Mr Alessi and Dr Casey finalised on 17 March 2022 was in evidence. The report followed an expert conclave between Mr Alessi and Dr Casey facilitated by a Registrar of the Court. Ms Jones was released from participating in the expert conclave because the three experts agreed that there was insufficient overlap in her area of expertise with that of Mr Alessi and Dr Casey so as to make her participation useful.

18    Objection was taken to parts of the joint expert report on the basis that Mr Alessi introduced information and opinions based on new information that was not addressed in his earlier reports which had been served. I deferred ruling on that objection at the hearing. I am satisfied that that part of the joint report to which objection was taken should be admitted on the basis that it is relevant, and as the evidence unfolded, the respondents were not prejudiced by it. The particular issue had been alluded to in Ms Jones’ report in any event.

FACTUAL FINDINGS — UNCHALLENGED LAY EVIDENCE

19    As mentioned, the evidence of Mr and Mrs Peck was not challenged. Both parties relied on this evidence but contended that different inferences should be drawn from it. The Pecks’ son, who was also at home on the night of the fire did not provide an affidavit and was not called. The affidavits of Mr Clements and Mr Marchesani were read without objection and neither were required for cross-examination. The parties also relied on a short statement of agreed facts.

20    The following represents my findings of fact, based on the evidence of the lay witnesses and the documentary record.

Prior to the Fire

The House and the Cars

21    In January 2018, Mr and Mrs Peck lived in a house at Caringbah South with their adult son and two dogs. They had owned the house since August 1990. The house was a 1970s era fibro house that had its original wiring. The property was North-rear facing with the street frontage being on the South side of the property.

22    Mr Peck owned and primarily drove a Nissan Murano TI Z51 four door wagon.

23    In around August 2010, Mr and Mrs Peck attended a car dealership owned and operated by AAG. Mrs Peck purchased the Fiat, a relatively small two door convertible car with a soft top roof, which was then new. She was the primary driver of the Fiat. The Fiat was regularly serviced. During the first year she owned the vehicle, Mrs Peck recalls that the Fiat was subject to a product recall to which she responded. She believed the recall had something to do with the airbags in the vehicle. Mrs Peck had not experienced any issues when driving the vehicle. She described it as being in “perfect” condition having never being involved in a collision and that she had never experienced any issues whilst driving it. From the date the Fiat was purchased to the date of the fire, Mrs Peck believes the Fiat had not been modified and had not been in any accidents or otherwise damaged.

24    The house was a three-bedroom, split level house with an annexed garage on the Western side. Directly above the garage was a mezzanine living area, which was approximately three by eight metres, in which was housed a pool table, a desk, a chair, some computers and computer accessories and the usual assortment of treasures and artefacts generally stored in a room of that kind (the Pool Room). There were also two pet bearded dragons in the Pool Room, which Mr Peck valued. The ground level of the house comprised a living/dining room, kitchen and laundry. Three bedrooms and a bathroom were located above the living/dining room, accessible by a small staircase. There was a door at the bottom of the stairs which separated the stairs from the living/dining room.

25    A view of the house from the street before and after the fire is included in Annexure A. The “before” photograph was tendered in evidence through Mr Peck and is sourced from Google Maps Street View. The “after” photograph was taken by Ms Jones. The collapsed area on the left of the photograph is where the garage and mezzanine were located.

The garage

26    A rough diagram of the garage, which is not to scale, but which was tendered in evidence at the hearing, is included as Annexure B. The diagram was made by Ms Jones and has markings and annotations made by her in the course of giving evidence. I stress that Ms Jones’ diagram is not to scale and the positional size and distance relationship between the objects depicted is not consistent. At best, this diagram serves only as a rough indication of Ms Jones’ understanding of the general location of the labelled objects within the garage.

27    The evidence does not reveal the dimensions of the garage (the garage was located directly below the mezzanine area in which the Pool Room was located). The size of the mezzanine area above the garage was estimated by Mr Peck to be approximately three by eight metres but it was not clear if the garage was wholly aligned with the perimeter of the mezzanine area. The garage is described by Mr Peck as being a single car width (that is from East to West). The length (that is North to South) had been extended on the Northern side in the form of a concrete pad, an equal distance from the Western wall and the exterior door in the Northeast corner (the Northeastern Door), by an additional floor area of around two metres by two metres. The Eastern wall of the garage was a common wall with the house.

28    The Fiat and Nissan were both ordinarily housed in the garage. The Pecks, when using their cars, accessed the garage via a standard sized, remote-controlled roller door situated in the Southern wall of the garage which could be seen from the street front. The remote-controlled system which controlled the electric roller door was plugged into a powerpoint on the Southern side of the garage. The motor for the garage door was located at height on the Eastern side of the Southern wall of the garage.

29    As mentioned, the garage had been extended so that it could accommodate the two cars parked lengthwise, nose to rear, notwithstanding the enclosed space in the garage was too small to do so without modification. The single car width of garage was such that to fit both cars in, the cars had to be parked with one car directly in front of the other car. The combined length of the two cars when parked nose to rear was such that in order to fit both cars in the garage, a hole had been cut into the Northern wall of the garage, and the floor had been extended as described above. This allowed a car, typically the Nissan, to be parked with its nose protruding beyond the line of the Northern wall. The extra room created by this hole in the Northern wall meant that the second car, typically the Fiat, could be parked behind the Nissan, with sufficient clearance to close the roller door.

30    When parked in the garage together, the vehicles always faced the Northern wall of the garage, and the Fiat was typically parked directly behind the Nissan, with the rear of the Fiat being closest to the roller door, and the front of the Nissan protruding through the hole cut in the Northern Wall.

31    Mrs Peck started work early each day. It was Mr Peck’s practice when he returned home after Mrs Peck, to move the Fiat out of the garage if it was parked in the garage first, then park the Nissan in the garage, and then park the Fiat behind the Nissan in the garage. When in the garage together, the cars were parked with their noses facing to the North of the garage and with the Fiat’s nose facing the rear of the Nissan.

32    Mr Peck explains that he always preferred for the Nissan to be parked at the rear of the garage, that is to the North with the Fiat parked closest to the roller door, at the Southern end of the garage closest to the street, because it would allow Mrs Peck to leave for work in the morning without him needing to get up and move the Nissan out of the way for her.

33    In the Northeastern corner of the Northern wall of garage there was a standard exterior door. This was to the East of the hole made in the Northern wall of the garage to accommodate the length of both cars. This door was accessible by a pathway leading from a sliding door on the Northern side of the living/dining room.

34    On the Western wall of the garage, approximately one metre from the roller door, was an electrical switchboard that controlled the power to the property. This was the only switchboard in the house.

35    On the Eastern wall of the garage there were two power outlets, one close to the Northeastern Door, the other on the Southern side of the garage. The Southern powerpoint on the Eastern wall powered the remote-control roller door. The roller door was plugged into this outlet on the night of the fire. Mr Peck’s evidence was that the other power point was used intermittently for power tools or vacuum cleaners. He believed that nothing was plugged into this second power point on the night of the fire and the outlet was switched off. There was a small crawl space on the Eastern wall of the garage, from which the underneath the house could be accessed.

36    There was a window on the Western side of the garage, centrally located between the Northern and Southern sides of the garage, around 1.5 or 2 metres from each end. From within the garage, through this window one could see a Colorbond fence which separated the Pecks’ property and the neighbouring property.

37    To get to the garage from the house, Mr Peck would normally exit the house through the sliding door at the rear of the house, walk along the pathway leading towards the garage and then enter the garage through the Northeastern Door. Alternatively, Mr Peck would walk out the front door of the house, onto the porch, across the front lawn, and through the roller door.

38    When the Fiat and the Nissan were both parked in the garage in the usual configuration, Mr Peck’s evidence was that:

(1)    from the open roller door, a person would see the rear of the Fiat, and the rear of the Nissan behind it; and

(2)    from the open Northeastern Door, a person would see the front of the Nissan, and the front of the Fiat behind it.

39    The garage was narrow. The gap between the sides of the vehicles and each of the Western and Eastern walls was about approximately 50cm.

40    To the best of Mr Peck’s recollection, the following items were usually kept inside the garage:

(1)    On the Eastern wall (which as noted was a common wall between the house and the garage):

(a)    two five litre fuel drums, one containing petrol and one containing two stroke fuel;

(b)    shelving holding various items such as gym equipment, a small air compressor, car cleaning products and a small battery charger; and

(c)    various tools such as two whipper snippers, a hedge trimmer, a bolt cutter, a sledgehammer and a crowbar.

(2)    On the Western wall (which was an exterior wall of the garage) there were:

(a)    two large ladders, leaning against the wall;

(b)    two fishing rods and other fishing equipment such as a basket, nets and reels; and

(c)    a golf buggy and two golf bags, with several golf clubs and various golfing accessories.

41    Mr Peck did not recall how much fuel was in the fuel drums at the time of the fire.

Mr Peck’s prior experience as a firefighter

42    Mr Peck was a retired firefighter. He worked for 27 years with the NSW Rural Fire Services — from 1980 to 2007. Mr Peck’s work as a firefighter typically included identifying the source of residential and commercial fires and acting as part of a firefighting team to identify and extinguish fires, suppress fires and rescue people caught in fires. In his affidavit, he said that given his:

experience as a firefighter, [he had] knowledge, training and experience in:

(a)    identifying fires;

(b)    fire suppression including the use of equipment such as extinguishers and fire blankets;

(c)    fire prevention;

(d)    rescues including from residential and commercial fires, motor vehicles that have been in a collision and other emergencies; and

(e)    emergency medical treatment.

43    Mr Peck retired in 2007 at the age of 57 years due to a range of heart and hearing problems. When he retired, he held the rank of Senior Firefighter. By the time of the fire, Mr Peck had been working for about four years as a cleaner.

The night of the fire

44    As mentioned, the fire occurred in the early hours of 24 January 2018. It was summer. It was a very hot evening. Bushfires had been burning in Sydney. The Australian Open Tennis Tournament was underway in Melbourne and was being broadcast in the evenings in other states, including New South Wales. The Peck family were at home.

Configuration of the vehicles on the night of the fire

45    At approximately 10.30 pm on 23 January 2018, Mr Peck returned home from work. He was driving the Nissan. The Fiat was already parked in the garage. Mrs Peck had parked it at around 7pm. Mr Peck moved the Fiat out of the garage and parked the Nissan in the garage. The front of the Nissan was protruding through the hole in the Northern wall of the garage. He then parked the Fiat directly behind the Nissan. The front of the Fiat was directly behind the rear of the Nissan. The rear of the Fiat was facing the roller door. This was the last time the Fiat’s engine was turned on prior to the fire. After Mr Peck parked the vehicles, he made sure that the car windows of both cars were closed to prevent spiders, particularly Huntsman spiders, getting into the vehicles. Mr Peck does not suggest that there was any issue that he observed in relation to the operation of the Fiat at this time. Mrs Peck does not suggest that when she parked the Fiat earlier that night that she noticed any issue with the way in which it was operating. As mentioned, she described the Fiat as being in perfect condition and that she did not have any issues while driving it.

46    I find that the last time the Fiat’s engine was turned on was very shortly after approximately 10.30pm on 23 January 2018 when Mr Peck parked it in the garage behind the Nissan. That was approximately three hours and 45 minutes before the Peck family first became aware of the fire.

Events alerting the Pecks to the fire

47    Mr Peck watched the Australian Open on TV with his son, before retiring to bed. He says he went to bed at about 1.30am on 24 January 2018. The power in the house was operating normally at this point in time. Mrs Peck was already asleep in their shared bed.

48    At around 2.15 am on 24 January 2018, Mr and Mrs Peck were awoken by one of their dogs barking.

49    Mrs Peck woke up first. She could hear popping noises through the open windows in the bedroom. She thought kids were throwing “throw downs”, a small fire cracker that makes popping noises, on the road.

50    Mrs Peck walked out of the bedroom and went to the bathroom down the hall. The light in the bathroom would not turn on. Mrs Peck heard her son say the power was out. Mrs Peck and her son headed downstairs. When the door to the living/dining room, situated at the foot of the stairs between the upper and lower levels of the house, was opened, Mrs Peck could smell smoke. She wondered if it was from recent bushfires in the area. She heard her son say words to the effect that the garage was on fire. Mrs Peck called the fire brigade. Mrs Peck left the house and held the family’s two dogs in the far Southeastern part of the property, at a point which is furthest away from the garage. She was standing behind a boat and did not have a good view of the fire.

51    Mr Peck awoke slightly after Mrs Peck. When he awoke, Mrs Peck was not in bed. He heard his son shouting at the dog and then saying that the power was out. Mr Peck noticed that the house was particularly dark. He thought there was a power outage. Mr Peck looked out the window and saw that other houses in his street had their lights on. He thought there was an issue with a fuse or the switchboard. He saw his wife in the hallway. He could smell smoke and hear “crackling noises”. Mr and Mrs Peck were heading downstairs. Their son was coming up the stairs. He said to them that something was on fire, and it was coming from the garage.

52    Pausing at this point, I find that the occupants of the house noticed that the power in the house was out before they noticed any sign of fire. I find that the evidence establishes that the power in the house was out at the time, or shortly before, smoke was detected in the house and that the power outage was confined to the Pecks’ house — it did not affect neighbouring properties. I further find that shortly before or when smoke was first detected in the house, “popping” or “crackling” noises could be heard from the upstairs bedroom.

53    Mr Peck immediately went to the garage to inspect the fire.

Mr Peck’s observations of the fire

54    Mr Peck entered the garage from the Northeastern Door. He gave the following account of what he saw (as written):

68.    Once at the end of the path, I opened the NE Door and looked into the Garage.

69.    I saw an orange flame over the rear of the Fiat.

70.    The orange glow looked like it was both internal and external to the rear of the Fiat.

71.    The glow looked particularly bright just above the rear tyre on the side of the Fiat closest to the eastern wall of the Garage, which was the side of the Garage directly in my eyeline at the NE Door. This was very close to the items stored against the eastern wall.

72.    I estimate that the flames in the rear of the Fiat were approximately halfway from the bottom of the Fiat, to the roof of the Fiat and I did not see any flames in any other part of the Garage.

73.    On seeing the flames, I grabbed a hose, which was located around 1 metre from the NE door, turned the hose on, and walked down towards the Fiat along the eastern wall. I stopped towards the rear of the Nissan, which was the safest position I could stand without getting too close to the flames.

74.    I directed the hose towards the rear of the Fiat because that is where the flames were the most intense.

75.    As soon as I started hosing water onto the flame, the Garage became thick with smoke and it became difficult to see.

76.    Various items in the Garage started exploding, causing sparks to fly, further impairing my vision which I expect were the fuel cylinders stored along the eastern wall which were partially filled with fuel. I could not identify which items were exploding but I recall that it was a number of the items on the eastern wall, in the shelving unit. This is not unusual in my experience as a fire spreads to other materials.

77.    In the time that I had been hosing the Fiat, which was only around 15 or 20 seconds, the flame in the Fiat had grown quickly:

(a)    internally towards the roof of the Fiat so that the flames were almost touching the roof; and

(b)    externally at the rear of the Fiat, so that I could now see larger flames outside the rear of the Fiat.

78.    As a firefighter, I have seen many vehicles on fire and in my experience, once a fire has started in a vehicle it spreads rapidly. I expected that the flames in the Fiat would spread even more rapidly because the Fiat was a convertible, meaning most of the roof was made of fabric. I knew that it wouldn’t be long before the whole Fiat caught fire, and potentially caused the Nissan to ignite, which would be rapidly engulfed in flames too.

79.    I had been hosing the Fiat standing at the rear of the Nissan for around 30 seconds when the smoke, the flames and the Garage items exploding around me became too much and I had to move backwards out of the Garage.

55    Mr Peck went back into the house to tell his wife and son to get out of the house. He says they were running around the house grabbing items. He told them to get out of the house now. Mr Peck then returned to the Northeastern door at the rear of the garage where he made the following observations (as written):

86.     I estimate that there was only around 90 seconds between me first seeing the orange glow in the rear of the Fiat, running back into the House, and back out to the Garage, but in this short time, the flames had spread significantly.

87.     The flames were no longer localised around the Fiat. The Nissan was engulfed in flames too. The flames were almost to the height of the ceiling of the Garage.

88.     I picked up the hose and directed it towards the flames, causing more smoke to fill the Garage. I was not able to see exactly where the hose was reaching but given I was standing right outside the NE Door, the water was likely impacting the Nissan the most.

89.     By this time, the Fiat and the Nissan’s ignition was the stage of a vehicle fire that I was most familiar with in my experience as a firefighter. They were at the point of ignition where the whole vehicle is ablaze and there is no prospect of saving the vehicle from being completely destroyed by flames.

90.     I knew that the Fiat, the Nissan and the Garage would need more than a hose to be extinguished, and that every second I stood near the Garage, I was putting myself in more and more danger of being burnt.

91.     I ran back up the stairs from the Garage and into the House.

92.     The living/dining room was very smoky and hot. Given the heat I was feeling, I knew from my experience that it would catch completely alight soon.

93.     I saw Austen running back up to his bedroom. We exchanged words to the following effect:

Me: What are you getting?

Austen: My laptop.

Me: That’s the last thing. Close the door on your way back through.

94.     The door I was referring to was the door at the bottom of the stairs to the bedrooms. By telling Austen to close the door, I was trying to prevent the fire spreading to the bedrooms. Attempting to contain a house fire in a smaller area by closing doors is basic fire training. It was instinctive for me to tell Austen to close the door.

95.     At around this time, the fire alarm in the House started going off.

96.     I watched Austen run out of the House with his laptop.

56    When Mr Peck went to the mezzanine level, he grabbed his wallet and sunglasses from a cabinet in the corner of the Pool Room which he could access without walking across the section of the mezzanine above the garage. As he did this he observed that there were now flames inside the house in the living/dining room. He says he wanted to grab the two pet bearded dragons from the Pool Room but realised it was too dangerous, because the Pool Room was directly above the garage, and the garage was by then engulfed in flames. Mr Peck ran out the front door to the front lawn, where his wife and son were standing.

57    Mr Peck made further observations of the fire while waiting for the fire brigade to arrive. He took a hose from a neighbour and trained it on the roller door from outside the garage (as written):

102.     …I was aiming the hose at a gap at the top of the Rolling Door, but I knew that the hose was not doing much.

103.     It had only been a few minutes since I had first seen the glow in the rear of the Fiat, but the whole Garage was on fire, as was much of the Mezzanine and parts of the House. Whilst I could be wrong about the time, it is not unusual in my experience for a fire to spread that quickly.

104.     I was hosing the Rolling Door for around 2 minutes when the fire brigade arrived.

105.     When the fire brigade arrived, I stood back and let them take over.

58    The fire was extinguished at approximately 4.00 am.

59    In the police report of the fire, Mr Peck is recorded as having “entered the garage from the rear of the property and saw the external wall of the garage and one of the two vehicles parked in the garage alight and there was thick smoke”. In his affidavit, Mr Peck does not refer to what is attributed to him the police report. There is no evidence to suggest that he adopted the account attributed to him either by signing the police officer’s notebook or otherwise. The only relevant reference Mr Peck makes to his interaction with the police on the night of the fire is to the effect that he recalled answering some questions from the police together with Mrs Peck but that the police did not stay for very long. Mr Peck is unable to recall the specifics of the conversation he had with the police. I prefer the account given directly by him in his affidavit, which he has affirmed and on which all the parties relied.

60    The police report refers to Ausgrid attending and disconnecting the power from the home “as it began arcing and sparking while the fire burnt”. There was no other evidence in relation to the Ausgrid attendance at the property.

61    The conclusion in the police report is that the fire “is not suspicious and it is unclear if the fire ignition point was in the vehicle or at the fuse/electrical box on the garage wall”. The site was held as a crime scene until fire investigators and detectives attended later on 24 January 2018.

62    As mentioned, Mr Peck’s observations on the night of the fire were relied upon by both parties. As the homeowner, familiar with the house, the garage, and their contents, and as an experienced fire fighter of 27 years’ experience, Mr Peck was uniquely placed to make detailed observations about what he saw when he went to inspect the fire. That said, Mr Peck’s affidavit was made about three years after the fire and is based on his opportunity to make observations of the fire in the garage over a very short period of time in circumstances where his access was obstructed. His affidavit is detailed and dispassionate. Mr Peck’s evidence comprises evidence of matters of which he has personal knowledge — the layout and contents of his home and garage and matters going to the patterns of his daily living, for example, the routine in relation to shuffling the Nissan and the Fiat in and out of the garage. His evidence on these matters is largely consistent with, and confirmed by, that of Mrs Peck. Mr Peck’s evidence also goes to the particular chronology of events on the night of 23 January 2018 and the early hours of 24 January 2018. Finally, and critically, Mr Peck gives a detailed account of the observations he made of the fire during those brief occasions on which he went into the garage and observed the fire. There is an overlap between the evidence of Mr and Mrs Peck in terms of what they each observed and did after being woken at about 2.15am on 24 January 2018. Their evidence in this respect, while not identical, is broadly consistent. Their affidavits are factual and frank in what they recount. Mr Peck’s evidence of his personal observations of the fire are expressed in simple and direct language. The content and the tone of his affidavit do not suggest that he is embellishing his recount of what he saw. The parties did not submit that to be the case. As mentioned, they all relied on his evidence.

63    I make the following findings in relation to Mr Peck’s observations of the fire from his vantage point in the garage on the occasions on which he entered the garage prior to leaving the house for the final time.

64    Mr Peck’s first vantage point was looking into the garage from the Northeastern Door. He made his initial observation while “at the NE Door”. He had a clear view along the Eastern wall of the garage between the drivers’ side of the Nissan and the Fiat. The noses of each car were pointing North. The Nissan, the larger of the two cars, was parked to the North of the Fiat and was the car to which Mr Peck was closest.

65    His first visual observation of the fire was that there was “an orange flame over the rear of the Fiat”. Mr Peck uses the word “flame” and he situates the flame as being “over” the rear of the Fiat. From that I take that he saw a flame above, and external to, the Fiat. He elaborates by saying that the “orange glow looked like it was both internal and external to the rear of the Fiat”. He further adds that “the glow” was “particularly bright just above the rear tyre” on the driver’s side closest to the Eastern wall of the garage and that this was “very close to the items stored against the eastern wall”. The items stored against the Eastern wall included items that were highly flammable, liable to explode and which Mr Peck subsequently observed exploding.

66    Mr Peck in his choice of language in his affidavit distinguishes between his observation of “flames” and his observation of the “glow” which I take to be the area of illumination given off by a flame. Having regard to the fact that he is an experienced fire fighter and the purposes for which he provided his affidavit I take his choice of language to be both deliberate and precise. I find that Mr Peck could see an illumination or glow both inside and outside the Fiat. Further, that the glow was visible “to the rear of the Fiat”. The glow was brightest above the rear tyre on the driver’s side of the Fiat and was “very close to the items stored against the eastern wall of the garage.” While it is possible that the glow that Mr Peck describes as external to the Fiat emanated from flames within the Fiat which could be seen by the light passing through the windows of the Fiat, it is equally possible that the external glow emanated from flames outside and to the rear of the Fiat. Mr Peck’s description of the area where the glow was particularly bright as being above the rear tyre on the driver’s side is suggestive of there being flames inside and or under the Fiat in this area. The first flame that Mr Peck saw was a flame that was external to, and towards the rear of the Fiat. It was not touching the ceiling of the garage and the power was already out.

67    Mr Peck then moves to provide a description of the “flames” that he saw “in” the rear of the Fiat. It is useful to again extract this passage of Mr Peck’s affidavit out in full:

72.     I estimate that the flames in the rear of the Fiat were approximately halfway from the bottom of the Fiat, to the roof of the Fiat and I did not see any flames in any other part of the Garage.

68    Noting the position in which Mr Peck was standing at the Northeastern Door when he made this observation, the description is perhaps a bit ambiguous. It may on the one hand, be understood as an account of seeing flames inside the rear passenger compartment of the Fiat. It may on the other hand be understood to convey that the flames were “in the rear of the Fiat” in the sense that the flames were “to the rear of the Fiat”, noting that Mr Peck recounts seeing a flame over the rear of the Fiat. To understand the description to the rear of the Fiat in that way makes sense of the final phrase of the sentence — “and I did not see any flames in any other part of the garage” — in a way that is consistent with Mr Peck’s earlier observation of “an orange flame over the rear of the Fiat”. Mr Peck was not called and so it was not possible to clarify precisely what Mr Peck meant.

69    Doing the best I can, reading Mr Peck’s observations in context and taking into account that Mr Peck had a limited opportunity to make observations and did not make a formal record of his recollections until some years later, I find that Mr Peck in his first visit to the garage saw flames both outside the Fiat and inside the Fiat. Further, that the presence of the flames was towards the rear of the Fiat, which was positioned against the roller door. I also find that Mr Peck could see a glow generated by the fire that was internal and external to the Fiat and which was brightest above the rear driver’s side wheel. The Southeastern corner of the garage was closely proximate to the area where Mr Peck observed the flames and the brightest glow generated by the fire from his initial vantage point. The Southeastern corner housed a power outlet, with two powerpoints, one of which powered the roller door motor. The roller door motor was located in an elevated spot on the Eastern side of the Southern wall. The flame that Mr Peck first recounted seeing was a flame over the rear of the Fiat. This is likely to have been in close proximity to the roller door motor which was affixed at height on the Eastern side of the Southern wall of the garage. The glow that Mr Peck saw was “very close” to the items stored against the Eastern wall.

70    Based on what Mr Peck could see from his position at the Northeastern Door, I find that he was able to see into the interior of the Fiat through the windows of the vehicle and to describe what he saw inside the Fiat.

71    The observations made by Mr Peck from his first vantage point described at paragraphs 68 to 72 of his affidavit (extracted above) were made quickly.

72    Mr Peck on seeing the flames, briefly exited the garage and quickly grabbed a hose, turned it on and re-entered the garage. He walked along the Eastern wall of the garage and stopped towards the rear of the Nissan. This was his second vantage point. He was considerably closer to the Fiat when he was in this position. He says that this was the safest position where he could stand without getting too close to the flames. He observed that the flames were most intense “towards the rear of the Fiat.” I find that at this point in time the flames were both internal and external to the Fiat and most intense towards the rear of the Fiat.

73    Mr Peck trained the hose on the flames causing the garage to fill with smoke “and it became difficult to see”. He makes no reference to any difficulty in seeing inside the garage or the Fiat prior to hosing the flames. The fire grew very quickly. In the 15 or 20 seconds in which he was hosing the flames he saw the fire grow internally within the Fiat so that the flames were almost touching the roof of the Fiat and externally at the rear of the Fiat he could see “larger flames outside the rear of the Fiat”. From this evidence, together with his observations from his first vantage point, I infer that Mr Peck had earlier seen smaller flames outside the rear of the Fiat. I infer that Mr Peck did not at this point see flames touching the ceiling of the garage. Had he done so he would have said so, given his subsequent reference to the flames being almost to the ceiling.

74    On his last visit to the garage via the Northeastern Door, he observed that the flames had spread significantly and were no longer localised around the Fiat. The Nissan was by then also engulfed in flames and the flames were almost to the height of the ceiling of the garage.

75    At about 8.30am, 24 January 2018, detectives and fire investigators from the Fire and Rescue Investigation Unit (FRIU) attended and examined the scene. The police report includes the following account of the conclusions drawn by the FRIU (as written):

About 12.45pm FRIU David O’Brien spoke to the Police and confirmed the fire as accidental. The cause has been determined a electrical fault in the wiring that caused the compromise and distribution for the mains power to the house. 2 of the ceramic fuses had blown out backwards (inside out) which indicates electrical fault also. One of the two vehicles parked in the garage was a “soft-top” which accelerates the fire as the make up of the vehicle fuels the fire without containment.

76    Mrs Peck lodged an insurance claim with the home and contents insurer on the morning after the fire. Sometime thereafter she lodged claims with the vehicle insurer of the Fiat and the Nissan.

Damage as a result of the fire

77    The fire caused substantial damage to house, especially to the garage and the mezzanine, and destroyed both cars. The mezzanine level above the garage collapsed into the garage and onto the two cars. Reproduced in Annexure C are a series of photographs taken by Ms Jones that depict the damage to the garage and mezzanine end of the house. The photographs taken by Ms Jones shows the collapsed mezzanine floor and Fiat before and after excavation of the debris occasioned by the fire and structural collapse.

Fiat documentation – service and product recall history

78    The logbook and service records for the Fiat were kept inside the glove compartment of the Fiat. They were destroyed in the fire.

79    As mentioned above, during the first year she owned the vehicle, Mrs Peck remembers responding to a product recall which she believed was to do with the airbags in the vehicle.

80    The wiring diagrams for the relevant Fiat model were produced by Fiat Group on discovery. Fiat’s records show that the Fiat had the chassis number 00523884 and instrument panel (IP) wiring harness identifier as 51853360. The IP wiring harness is the wiring behind the dashboard, instruments and steering column in the Fiat.

81    On 30 June 2014, Fiat issued a product recall, “CAMPAIGN 5839 – Recall Campaign Fiat 500 model, right-hand drive version – wiring under the dashboard”. The recall notice was in the following terms:

On 113,253 Fiat 500 vehicles with right-hand drive, whose chassis numbers range in the interval from 757836 to 997473 and from J000001 to J201532, due to a potential interference of the wiring under the dashboard with the steering column, the wiring might wear out in time.

Therefore, it is compulsory to make a pre-delivery intervention on vehicles still in stock. For vehicles which have already been delivered, customers must be contacted by registered letter (Annex 1) and the operating cycle described in the attachment (Annex 2) must be implemented to upgrade all vehicles.

82    The fault identified in the recall notice was in relation to wiring located “under the dashboard with the steering column”. This was in a “[d]ifferent area” to the area on the dash where the applicants’ expert, Mr Alessi, alleged the fault in Mrs Peck’s Fiat was situated.

83    The chassis number of the Fiat was not included in the list of vehicles that were subject to this recall.

84    The chassis number of the Fiat was not identified as being subject to any other relevant recall.

85    As mentioned, Mrs Peck’s evidence was that apart from airbag recall in the first year in which she owned the Fiat, there was no product recall of which she was aware in relation to her Fiat.

EXPERT EVIDENCE

86    Before moving to the detail of the experts’ opinions, it is useful to briefly address two topics. First, the debate between the experts in relation to what constitutes arc damage and whether the cause of arc damage can be determined by physical inspection. Secondly, the chronology of inspections undertaken by and photographs taken by the expert witnesses retained by the parties.

Detection of arc damage

87    The process of arcing in electrical wires assumes some significance in this matter because the applicants seek to establish by inferential reasoning that the fire was caused by the ignition of car wires in the Fiat that then spread to the garage, and from the garage to the house. The underlying premise of the applicants’ case being that the alleged arcing occurred as a result of a defect in the Fiat that was present at the time it was manufactured and or supplied. Notwithstanding that arcing in the Fiat’s wiring is the crux of the applicants’ case, the applicants did not call an expert electrician or electrical engineer. Given no expert evidence of this type was led against them, the respondents similarly did not call an electrician or electrical engineer. The evidence given on the topic of arc damage was given by Ms Jones, certified fire investigator, Mr Alessi, an automotive mechanic and certified fire investigator and Dr Casey, a mechanical engineer and academic.

88    The experts agreed that there was a distinction between a wire short circuiting as opposed to a wire arcing. The experts agreed that electrical wires that touch each other may short circuit but that a short circuit will not generate a spark. The experts also agreed that energised (“live”) electrical wires may arc and that arcing will generate a spark. Arcing will only occur where a wire is energised. The focus on arcing was because the experts agreed that arcing in electrical wires may ignite a fire whereas a short circuit would not.

89    The experts agreed that when arcing, the wire itself may fuse, and molten metal from the wire may be shed and form small beads — arc beads. These beads typically copper which has a lower melting temperature. The experts agreed that arc beads tend to form at the end of the wire that has shed the molten material. The molten metal shed from the wire may then cause “arc damage”, either directly or indirectly upon contact with surrounding materials.

90    The experts used the terms “cause arc beads” and “victim arc beads” to distinguish between arc beads which form before a fire occurs and which may be implicated as the cause of a fire (“cause arc beads”) and arc beads which form during a fire as a result of the fire damaging the insulation surrounding the energised wires and causing them to arc (“victim arc beads”).

91    The experts disagreed as to whether on examination it was possible to distinguish between cause arc beads and victim arc beads. By way of presage, Mr Alessi opined that it was possible to, and he could, identify by visual examination whether an arc bead is a cause arc bead or a victim arc bead. Dr Casey said that the differentiation between the two types of arc bead is simply temporal — when in time the arcing occurs relative to the fire and that there is no way to reliably differentiate between a cause arc bead and victim arc bead by inspection or examination. Ms Jones’ evidence was consistent with Dr Casey’s. The experts’ views on this issue are addressed in greater detail below.

Chronology of expert inspections and photographs

92    The experts’ observations are based on their respective inspections of the Fiat and their review of the collections of photographs taken of the Fiat. The chronology of the inspections and the time at which the photographs were taken forms part of the agreed facts, the relevant paragraphs of which are extracted below. It will be recalled that the fire occurred on 24 January 2018.

8.     Ms Jones inspected the property on 31 January 2018 and 1 March 2018: CB 1484. Ms Jones conducted a limited inspection of the garage during her first inspection on 31 January 2018 due to safety concerns as the mezzanine level had severe fire damage and had collapsed directly down onto the garage, with the roof above also having partially collapsed down: Jones2 [2.1], [2.7] CB 1547-1548, 1551. The photos taken by Ms Jones during her first inspection on 31 January 2018 are at CB 190. When Ms Jones conducted her second inspection on 1 March 2018, builders were present and completed a staged excavation where the garage, mezzanine and roof structure was removed from on top of the garage and off the vehicles: Jones2 [2.12]-[2.13] CB 1564-1565. The photos taken by Ms Jones during her second inspection on 1 March 2018 are at CB 299.

9.     Mr Alessi inspected the Fiat at the property on 9 March 2018: CB 1505. Prior to Mr Alessi’s first inspection on 9 March 2018, the Fiat had been moved from the garage and was parked on the eastern side of the property covered with a tarp: Alessi2 [11], [16] CB 1522-1523. The photos Mr Alessi took on 9 March 2018 are at CB 388. Ms Jones was an observer during Mr Alessi’s inspection on 9 March 2018. The photos taken by Ms Jones on 9 March 2018 are at CB 381.

…

11.    Mr Alessi conducted a second inspection of the Fiat on 15 March 2021: CB 1531. Dr Casey conducted an inspection of the Fiat on 16 June 2021: CB 1622. Prior to Mr Alessi’s second inspection on 15 March 2021 and Dr Casey’s first inspection on 16 June 2021, the Fiat had been removed from the property and was stored in an open air holding yard: Casey1 [27] CB 1603. At the time of Dr Casey’s inspection, he found a number of items in the rear of the Fiat that did not belong to the Fiat: Casey1 [28] CB 1603.

Ms Jones – certified fire investigator

93    Ms Jones holds an international qualification as a “Certified Fire Investigator’ conferred by the International Association of Arson Investigations. She says that there is no equivalent Australian certification at present and that she is one of only seven fire investigators in Australia who hold this qualification. Ms Jones also has a graduate diploma of Fire Investigation from Charles Sturt University and has a Bachelor of Science in Applied Chemistry with a Honours in Forensic Science on the topic of the development and validation of the canine accelerant detection program. Since 2007, Ms Jones has worked in various roles as a fire investigator and since 2018 as an adjunct lecturer in courses related to fire investigations and on the structure and effects of fire.

94    Ms Jones attended the scene on 30 or 31 January 2018, the references in her reports are inconsistent as the date of her first inspection, and 1 March 2018, on instructions from the insurer to investigate the origin and cause of the fire. She took photographs at each inspection. Nothing turns on whether her first inspection was on 30 or 31 January 2018, for consistency I will refer to the date of her first inspection as being on 31 January 2018, but it could have been the day before. At the time of her first attendance the scene was unsafe and Ms Jones was not able to inspect the area inside the garage. During her initial visit, she did not identify the Fiat as the likely point of origin in her view. At that time, she said that it was “not certain as a potential area or point of origin in the garage until the make safe was done. I examined the house and determined that the general area of origin was the garage.”

95    Her second attendance was on 1 March 2018. She was present during the make safe works. Ms Jones said that she “controlled the make safe to a point”. She was not asked to, and did not, do an “excavation-type forensic examination of all of the contents of the Fiat”.

96    On the basis of her cumulative observations on her first two attendances at the scene, Ms Jones opined that the “Probable ignition mechanism(s)” for the fire was “An electrical fault in the wiring around the steering column created a smouldering or slow burning fire in the dashboard of the Fiat 500C. This has then spread to the passenger compartment and, from this point, to the garage and house”. Mr Alessi was then instructed on behalf of the insurer to examine the Fiat for a potential fault. Ms Jones attended the property again with Mr Alessi on 9 March 2018 during which she took some further photographs.

97    In respect of her attendance on 9 March 2018, Ms Jones says:

The reason is because I was there to basically identify the vehicle for Mr Alessi, which was removed outside of the actual garage and covered in a tarpaulin and, basically, I left it to him. At that point it was outside my area. I was just there to be an observer and that’s why there are only seven photos and it was mainly just to show that the vehicle had been removed and covered in a tarp and that was the circumstances and context with which Mr Alessi saw the vehicle.

When asked whether her attendance on 9 March 2018 added to her observations about the Fiat and the house, she answered “No. That was outside my expertise.”

98    Ms Jones’ second report was first published on 1 April 2021. The stated purpose of the second report was that it had been amended “due to receipt of additional information requested in instructions received 10 March 2021 and NSW Police Report, received 23 March 2021”. Ms Jones’ second report was re-issued on 28 April 2022. It was re-issued to correct the orientation references throughout the report which misstated the directional orientation of the scene by inverting the points of the compass in the references that she gave. For example, Ms Jones identified the rear wall of the garage as being the Southern wall when in fact it was the Northern wall.

99    During her second examination and inspection of the Fiat on 1 March 2018, Ms Jones identified what she describes as three areas of beaded/arced wiring in the passenger compartment of the Fiat. She says that these were located on the passenger side (near side) of the dashboard, the driver’s side (off side) of the dashboard and around the steering column. In her second report, as revised, she included photographs of the beaded wire she identified in the area of the steering column. These photographs are included as Annexure D. She did not include photographs of the other areas of beading in the photographs embedded in her second report (revised).

100    Ms Jones opined that beading and arcing can result from either a fault whereby two energised wires contact each other, or where a fire in an area consumes the sheathing of the wires and energised wires touch and arc. She regarded the beaded wires as potential ignition sources. This was the impetus for her arranging for Mr Alessi to be retained.

101    In cross-examination, Ms Jones suggested that she had moved or may have moved the arced/beaded wires near the steering column in the course of inspecting them. Her evidence on this point was unclear. She did not appear to have a recollection on which she could draw and was attempting to speculate based on looking at the photographs she had taken. I find that it is possible that the relevant wires were moved by Ms Jones during the course of her examination on 1 March 2018. It is not necessary to resolve that issue because having regard to the scale of the excavation required to remove the debris generated by the collapse of the mezzanine from the Fiat, I find that it is likely that the wires as photographed by Ms Jones were disturbed from their original position by the impact of the fire, the collapse of mezzanine, the process of the make safe works and or the excavation of the Fiat. In addition, it is at the least possible that by the time of Mr Alessi’s inspection on 8 March 2018, the wires had been moved by Ms Jones in the course of examining and photographing them.

102    In her second report, Ms Jones summarised her views as follows:

Area of origin of fire: attached garage with mezzanine over the garage.

Point of origin of fire: the interior of the Fiat, the passenger compartment.

Most likely fuel source first ignited: wiring and electrical components in the dashboard area.

Potential ignition source(s) excluded: Murano, socket outlet, roller door motor, electrical service panel, cigarette ignition, deliberate ignition.

Potential ignition sources not excluded: NIL in garage.

Most likely ignition source: unspecified electrical fault.

Probable cause of fire: an unspecified fault.

Probable sequence of events and timings: that an unspecified electrical fault in the dashboard area has caused the surrounding wiring, plastic components and dashboard to ignite, causing a fire in the interior of the Fiat. The fire has then spread out of the vehicle to affect the garage and house.

Criminal activity indicators: none.

Any other relevant features: NIL.

103    Remarkably, the additional information supplied to Ms Jones for the purpose of her providing her second report on behalf of the applicants, did not include a copy of Mr and Mrs Pecks’ affidavits. This resulted in the unusual situation where the expert called on behalf of the applicants was not given the applicants’ lay evidence, or even a set of assumptions modelled on it, on which to inform their expert opinion.

104    No satisfactory explanation was given as to why the applicants did not attempt to integrate the lay evidence on which they relied with the expert evidence on which they relied, whether by way of providing accurate assumptions or by briefing the experts with copies of the Pecks’ affidavits. Counsel appearing for the applicants suggested that this was not possible because of the timetabling orders made by the previous docket judge. That suggestion is rejected. Given the elapse of time between the proceeding being commenced and the deadline for the filing and service of evidence there was more than ample opportunity to stage the preparation and finalisation of lay evidence prior to briefing expert witnesses. Instead of being instructed on the basis of the Pecks’ evidence, Ms Jones recites instructions she was given, by way of additional information, about what Mr Peck observed, as follows:

Additional information:

I have been instructed as follows:

1.5    Mr Peck had been up with his son in the early hours of the morning of the fire. He had parked the Murano in the garage, then moved the Fiat in behind it around 11pm. He watched tennis till around 1:30am with his son before going to bed. His son also went to his bedroom but was watching television.

1.6    Around 2.15am the dog barked waking his wife. His son called that the power had gone off. Mr Peck looked through his blinds to see his neighbour’s lights were on. He went to open the door closing off the bedrooms from the living area and smelt smoke. He also heard popping noises. He then went down to the garage from the back of the house and opened a door in the south-east north-west corner of the garage, adjacent to the front of the driver’s side/front of the Murano vehicle.

1.7    Mr Peck saw that the Fiat was on fire at the rear of the passenger compartment, not in the engine. He got a hose but was unsuccessful in fighting the fire, so he returned to the house and got his family out of the house. He attempted to use the hose again unsuccessfully and went back through the house to await the fire brigade. They arrived a few minutes later.

105    The letter of instruction which Ms Jones attached to her report does not include this additional information and it is not clear how it came to be supplied to Ms Jones. In cross-examination, Ms Jones said that she had conversations with Mr and Mrs Peck that she “recorded in my first report – like, notes, but not an official affidavit or transcript.” As already noted, Ms Jones’ first report was not tendered. The redacted version tendered by the respondents does not include an account of any conversations between Ms Jones and Mr or Mrs Peck.

106    As will be immediately apparent the instructions that Ms Jones refers to having received significantly conflate the details given in Mr Peck’s affidavit.

107    In her evidence-in-chief, Ms Jones was asked to read paragraphs 69 to 74 of Mr Peck’s affidavit, extracted at paragraph 54 above. She then said:

Okay. So in terms of the fire that was observed by Mr Peck, I would say it was small but growing. It was a room fire. It was – Mr Peck did not observe any issues with, like, glowing on the ceiling or any of the wiring or appliances in the room. So the glow that he saw was isolated or discrete around the actual Fiat and that the Fiat would provide, at that stage, enough heat generation just from the heat release rate of the tyres, which he notes was actually – as one of the items that he saw specifically on fire or around that area. So the heat given off would just, in terms of fire dynamics, create a room fire which would create a heat layer at the ceiling and could affect the wiring. I won’t say how but it could affect the wiring to cause – I won’t go any further. But it could affect the wiring just on based on room and fire growth and dynamics. In terms of the molten metal thrown off, I can comment in terms of ignition fuel load in the vehicle, because fuel load of vehicles, as well as household equipment, and so forth, is in my area. And as a fire investigator, I am required to actually understand the interaction of an ignition source with any fuel load and the form that takes. So I can comment on that. But I would then possibly – there are different timings around, and I don’t know if you want me to go that far. So in terms of what was observed by me being there, I identified through my fire investigation experience the area of origin being the garage. The point of origin I identified through burn patterns and so forth as the actual Fiat. And within the Fiat, I identified a specific piece of wiring which was outside my expertise to identify this specific cause. In terms of the garage itself as part of what I do, the methodology and process is that I have to have a working knowledge of all the wiring in the house and all of the appliances to then look at what was in the garage and either include or exclude them. Now, if I had thought the electrical service panel was at fault, like I identified something going on in the Fiat, that’s when I would step outside my expertise and get an electrical engineer in. It’s not practical to get an electrical engineer or an electrician to look at every fire. They just don’t have the expertise to, sort of, look at it in context. So my job is to look at all of this in context as part of the structure and have an understanding of how the wiring in house works. How short circuits work. I do understand that you don’t want me to comment about that in this case. But that is within my expertise. So I examine – well, I didn’t examine the wiring in the ceiling, but understanding how it works, I know how a fault would occur. I’m not going to comment on that. I understand the timings around such a molten metal causing a fire in the Fiat. And I can talk to that, but I won’t. And I do understand how and why, which I have alluded to, but I didn’t detail in specifics why I eliminated the wiring around the power point and the actual motor and the actual electrical service panel. … So in my conclusions, I eliminated them, but … I didn’t specifically state why.

108    Ms Jones did not resile from the view she had formed in her report as to the likely ignition source of the fire being inside the Fiat. She suspected that the point of ignition was a wire near the dashboard of the Fiat but recognised it was outside her expertise to test this hypothesis.

109    In reaching her conclusion that the ignition source was most likely in the wiring around the dashboard of the Fiat, Ms Jones relied on the fact that she had identified what she believed to be a potential ignition source in three areas of beaded wires she identified in the Fiat. Once Ms Jones had identified these wires, she did not proceed to undertake a comprehensive review of the contents of the Fiat to ascertain whether there were any other artefacts present that may have indicated other potential sources of ignition. Given the way in which the make safe and excavation of debris from the Fiat was managed, it may have been difficult to ascertain in any event how and when such artefacts, if present, came to be in the Fiat. Ms Jones also relied on her analysis of the directional spread of the fire and her satisfaction that she had excluded the electrical service panel (ESP) and the roller door motor as the other potential origins of the ignition.

Directional spread of fire

110    The pattern, location and extent of the damage to the house, led Ms Jones to the conclusion that the fire spread from the garage in an Easterly direction through the house. The fire damage to the garage was most severe. Burn patterns to the mezzanine structure indicated in Ms Jones’ view that the fire had burned up into the house from below to affect the floor. Further, that the fire had also moved into the study via the common wall between the garage and the study and the floor of the mezzanine junction point.

111    Within the garage, Ms Jones considered that the pattern, location and extent of the damage to the Nissan and the Fiat indicated the initial ignition was in wires in the area of the steering column and the dashboard of the Fiat.

112    As already mentioned, Ms Jones’ inspection of the garage with the cars in situ was limited on the first occasion on which she attended the scene due to safety concerns. On her second inspection, she took photographs of the garage, with the cars in situ, as well as of the house.

113    In her second report, as revised, she included a photograph, taken on her first inspection before the garage was excavated, which she has annotated to illustrate her conclusions about the direction of the fire spread emanating from the front of the Fiat to the rear of the Nissan. This photo is reproduced in Annexure E.

114    Ms Jones also included a further two photographs taken on 1 March 2018, after the garage had been excavated, but when the Fiat was still in situ, which she annotated to illustrate her conclusion as to the direction of fire spread to the house (reproduced in Annexure F). In cross-examination, Ms Jones agreed that this was not an investigation where she was asked to, or did, conduct a thorough excavation-type audit of everything that she could locate within the Fiat itself. Mr Alessi also eventually agreed in cross-examination that he did not, and was not asked to, conduct a forensic dig or excavation of the material situated in the Fiat or to keep a list or log of photographs of its contents.

115    Ms Jones opined that:

The Murano was examined and showed directional fire damage to the rear of the vehicle, around the boot area, with less fire damage to the house structure of the mezzanine on the right/ offside of the vehicle. Indicating that the fire had not spread/burnt as much on the side of the vehicle towards the house.

I understand Ms Jones to refer to the driver’s side of the vehicle when she says the “right / offside” of the vehicle.

116    Mr Peck’s affidavit, to which Ms Jones did not have access, confirms that various flammable and explosive materials were stored on the Eastern wall of the garage which was a common wall with the house. Based on Mr Peck’s account of those materials exploding I find that those materials were against the Eastern wall proximate to the Fiat. Ms Jones does not address this fact and whether it bears on her conclusions of fire spread direction informed by her observations as to burn patterns, although she makes a reference to there being “petrol cans and some WD40 stored on the eastern wall”.

117    One basis on which Ms Jones’ concluded that the initial point of ignition of the fire was in the vicinity of the dashboard of the Fiat was her observation of the directional spread of the fire. She summarises her views as follows (as written):

The first fuel ignited was in my opinion, components in the dashboard, around the steering column such as foam, wiring insulation etc. The basis of this conclusion was the fire damage in the passenger compartment of the vehicle and the directional fire damage from the Fiat upwards to affect the mezzanine floor above the vehicle. Also the fire damage to structure of the mezzanine and house adjacent to the front driver’s side area of the Fiat. The fire spread from the passenger compartment of the Fiat upwards and outwards.

Exclusion of the ESP as cause of ignition

118    The next strand of Ms Jones’ reasoning was directed to excluding the ESP as a potential source of ignition.

119    Ms Jones began by noting that the Fire Investigation Research Unit (FIRU) investigators who attended the scene on the day of the fire concluded that the fire was the result of an “electrical fault in the wiring that caused the compromise and distribution for the mains power to the house. She disagreed with the conclusion drawn by the FIRU investigators based on her physical examination of the ESP. She examined the ESP after finding it in a pile of debris outside and in front of the garage. Her conclusion based on her physical examination of the ESP was that the damage to and condition of the ESP and its contents were not consistent with a fire having been ignited within the fuse area and spread outwards and that there was no specific internal damage consistent with a fuse having blown out inside the fuse housing. Ms Jones found no metal beads or arc splatter inside the fuse housing which would indicate that a fuse had blown or arced. She considered that there was no specific identifiable fire damage which would highlight a specific fault or failure which could firstly cause a fire, and secondly, no specific fire damage indicating that the fire had spread outwards from within the box to affect the area around it.

120    In Ms Jones’ view, if the wiring above the ESP had caused the fire, “it would not have been able to cause the fuses to ‘blow out’ as the ESP which was fed by the wiring would effectively be dead.”. Ms Jones was cross-examined as to whether she remembered what she had observed when she came to write her April 2021 report. Her answer was to the effect that she had “photographs to jog my memory but in terms of eliminating [the ESP] as a potential ignition source, [she] did that at the time of my initial examination” and so when she wrote her April 2021 report she based it on the fact that at the time she had eliminated the ESP from her consideration as a potential ignition source.

121    Although she discovered that the wiring that was still attached to the top of the ESP showed some beading, she could not say whether this was as the result of arcing or fire attack. As already noted, Ms Jones’ view was that the physical evidence of beading was effectively the same, regardless of the cause. That is to say that the physical attributes of wires that had arced, whether internally or due to fire attack, was the same — beaded, arced and melted wires. Having regard to the single directional loop of electricity into and from the house via the ESP, and the extent of the damage to the wires at the top of the ESP, it was impossible in Ms Jones’ opinion to identify whether the forward or return electrical supply was affected by the beading/arcing. In her opinion it likely affected both. In this regard, she noted that the police report recorded that Ausgrid had attended to turn off the upstream supply of electricity. In Ms Jones’ view, if the wiring above the service panel had caused the fire, “it would not have been able to cause the fuses to ‘blow out’ as the ESP which was fed by the wiring would effectively be dead.” In light of Ms Jones’ appropriate concessions as to the limits of her expertise, I do not regard Ms Jones’ hypothesising on this issue to rise beyond speculation.

Exclusion of roller door motor

122    Ms Jones excluded the roller door motor as a possible ignition source on the basis of her examination of the area around where she understood the motor to have been located based on a conversation, she says she had with Mr Peck during her inspection of the garage in 2018. There is no note or record of that conversation. Ms Jones accepted that she was not able to examine the motor itself. The roller door motor was not at the scene when she first attended. She also said that her understanding of where the motor was located was an approximation – she understood it to be broadly in the area to the East of the roller door on the Southern wall of the garage at ceiling level. Her conclusion in relation to the motor is expressed as follows:

4.10    The socket outlets, roller door motor area and light switches opposite the rear offside area of the Fiat, at the front of the garage showed no signs of fault. See figure 23 above. Additionally, the fire damage in this area, around the outlets was not consistent with a fire having spread from this area outwards to affect either the house or the Fiat.

123    Ms Jones agreed in cross-examination agreed that she had deliberately referred to the “roller door motor area” because she had not examined the roller door motor itself. Her reference to figure 23 is to a photograph of the Eastern wall of the garage adjacent to the Southern wall where she understands the motor to have been situated. The photo does not include the area on the Southern wall where Ms Jones says she understood the motor to have been located. The analysis which accompanies the photo concentrates on the Eastern wall, not the adjacent Southern wall at ceiling height where Ms Jones understood the motor to be located. That is likely to be because the Southern wall of the garage was destroyed by the fire and or the make safe. No direct evidence was given on this point but it is consistent with the photographs taken by Ms Jones which are in evidence.

Ms Jones’ conclusion

124    On the critical issue of whether the fire was caused by a defect in the Fiat, Ms Jones said that:

3.9    As noted in paragraphs 2.16 to 2.18, the arced wiring and beading in the dashboard was of interest to me as a possible source of ignition in the passenger compartment which corresponded to the burn patterns coming out from the area, and as an area of origin of the fire. However opinion as to the specific fault/possible failure mechanism involved was outside my expertise. Hence I arranged for Mr Alessi to attend and inspect the vehicle. As such, whilst I consider a possible fault in the wiring the likely ignition source, I was unable to confirm this as it was outside my area of expertise.

(iii)    Are there any other possible ignition mechanisms? If so, why is the fuel ignition point above to be preferred?

3.10    There were no other ignition mechanisms within the Fiat which could account for the fire starting in the vehicle. There were no smoking materials inside, and a deliberate ignition was considered unlikely due to the vehicle being in a locked garage at the time of the fire. Additionally, there were no indications of forced entry into the garage. The vehicle had only recently been moved into the garage, and as such, had recently been energised. As such if a fault had occurred at that time, then it could have had the time to ignite and spread between being parked and the fire being first identified. As such, a possible fault was the preferred ignition mechanism. However, I am unable to comment on whether this was identified or not. I identified some evidence which could be explained in two ways, as fire attacking an energised wire or a fault in the wires. I considered the first hypothesis less likely as there were no other identified ignition sources within the vehicle to cause a fire, and attack the energised wiring. As such, I considered that the second hypothesis was more likely. Hence I recommended that a vehicle expert explore for a potential fault in the wiring of the vehicle.

- What are your final conclusions and/ or conclusions?

3.11    My final conclusion would be that the fire originated in the Fiat. That having been driven and energised in a short time frame prior to the fire (a few hours), that a potential fault in the wiring around the steering column could have time to ignite surrounding material and create a smouldering fire in the dashboard which eventually turned into a flaming fire in the passenger compartment.

(h)     Please include any other factors you believe relevant.

3.12    I consider nothing else relevant at this time.

Limit on Ms Jones’ expertise — retention of Mr Alessi

125    Ms Jones qualifies her opinion as to the ignition source in a way that is both appropriate having regard to her obligations under the Expert Code of Conduct and true to the limits of her expertise:

4.16     However, whilst I believe an electrical fault in the wiring around the dashboard of the Fiat is the ignition source, I am unable to state what has caused the fault. This is outside my area of expertise and as such Mr Alessi was contracted to examine the vehicle and complete this determination.

4.17     Based on this additional expertise required, I concluded that the fire was most likely an unspecified electrical fault around the steering column and dashboard of the Fiat, which caused the fire.

4.18     Based on part 4.10 (c) above, the classification of the fire as ‘accidental’ in my Full Report dated March 18, 2019, has been removed. As it is not appropriate in defining the origin and cause of the fire. Instead it is a classification of the fire outside the scope of the investigation.

126    The reference to “part 4.10(c) above” appears to be a reference to paragraph “4.1(c)” — there is no “4.10(c)”. In paragraph 4.1(c), Ms Jones quoted from the police report where it is recorded that the “fire is not suspicious and it is unclear if the fire ignition point was in the vehicle or at the fuse/ electrical box on the garage wall.”

127    Ms Jones described Mr Alessi as a “vehicle examination specialist” and acknowledged that she is “not a vehicle electrical wiring specialist”. She said she “will defer all analysis results to” Mr Alessi. As noted, the applicants did not lead any evidence from anyone with expertise in relation to electrical wiring, whether in automobiles or in houses.

128    In her oral evidence, Ms Jones described what she understood her role to be and in doing so elaborated on the limits of her expertise. She regarded herself as a “sort of, screening person”, who understood “things up to a point” but “then if it needs further expertise” she would arrange for that to occur. If she thought that the “household wiring was in play” she would arrange for an electrical engineer to be retained. If she had thought the ESP was at fault, then that would be the limit of her expertise and she get an electrical engineer in. She was clear that her expertise did not extend to opining on whether the household wiring was the likely origin of the fire. Here, Ms Jones’ view was based on matters she observed when she inspected the scene and what she understood to be Mr Peck’s observations of the fire, divorced from an awareness of what Mr Peck described in his affidavit. Her view was that she had excluded the household wiring as a potential origin of the fire. Her view was that there was “something going on in the Fiat”. She noted that it is not practical to get an electrical engineer or an electrician to look at every fire. She regarded her job as being to make observations in context as part of the structure and have an understanding of how the wiring in a house works. She said that she understood how short circuits work. Here, given the view she had reached, she frankly acknowledged that she did not examine the wiring in the ceiling. Had she thought it necessary to do that she would have arranged for an appropriately qualified expert to undertake that task. She did not do so. The applicants did not lead any evidence from an expert appropriately qualified to address the possibility that the ignition source was the household wiring, including the ESP, or the roller door motor.

Mr Alessi — automotive vehicle mechanic and certified fire investigator

129    Ms Jones on behalf of the applicants’ insurer then retained Mr Alessi, a certified fire investigator and mechanic. Mr Alessi’s first report is addressed to Ms Jones. It does not annex any letter of instruction. The heading included on the first page simply states “INSTRUCTIONS: MOTOR VEHICLE INSPECTION”. As noted above, Mr Alessi undertook his inspection on 9 March 2023 in the company of Ms Jones. The version of Mr Alessi’s report that is in evidence is redacted, it was tendered by the respondents after Mr Alessi was cross-examined.

130    Mr Alessi describes himself as “a qualified automotive vehicle mechanic” with “specialised knowledge based upon [his] training, study and experience as an Automotive Mechanic for the past 36 years”, “a licensed Factual and Fire Investigator” and says that he has “inspected, repaired and investigated incidents having features in common with this case”. Mr Alessi says that he has studied and completed numerous courses in automotive, mechanical investigations and fire investigations which relevantly included a Graduate Certificate in Fire Investigation from Charles Sturt University, Certificate III in Investigative Services, Rural Fire Service Training and a Certificate IV in Light Automotive Mechanical from Padstow TAFE. Mr Alessi holds a Motor Mechanic Licence, is an authorised RMS heavy and light motor vehicle examiner and a deputy captain in the NSW Rural Fire Service as a volunteer fire fighter. Mr Alessi also describes having “instructed and practiced all facets” of the automotive industry (for 33 years) and the investigations industry (for 9 years) including “fire investigations” and “mechanical, electrical, panel and structural evaluation of damaged; stolen and recovered vehicles”.

131    Mr Alessi did not have expertise based on training or qualifications with respect to electrical wiring, in automobiles, or otherwise. He was not experienced in electrical wiring. Rather, he contended that he has through his experience of repairing damaged vehicles as a motor mechanic and in inspecting fire damaged vehicles gained an understanding and expertise in recognising the effects of electrical faults on car wiring which is fire affected.

132    As noted above, Mr Alessi inspected the Fiat on two occasions, three years apart.

133    Mr Alessi’s first inspection was some six weeks after the fire. At that point in time the remains of the Fiat had been excavated from under the debris of the fire and the collapse of the mezzanine and moved outside to the front of the house. The Fiat was under a tarpaulin, but otherwise in the open air. The remains of the Fiat were contaminated by building debris. The retardant used in extinguishing the fire had caused extensive oxidisation of the wiring in the Fiat. It was common ground that fire retardant causes oxidation and also accelerates the corrosion of metal. Mr Alessi’s photographs taken on 9 March 2018 record the state of the Fiat at this time. The oxidisation of the wires in the Fiat is clearly visible.

134    Mr Alessi recorded the results of his inspection of the Fiat on 9 March 2018 in his report dated 31 May 2018. As noted, the applicants did not tender that report but a redacted version of the report is in evidence, having been tendered by the respondents following Mr Alessi’s cross-examination. Mr Alessi’s observations based on his inspection of the Fiat on this first occasion are recorded in nine short paragraphs, interspersed with photographs that he took on 9 March 2018. One of the nine paragraphs included what Mr Alessi acknowledged to be a serious error. He included a paragraph which referred to the presence of an Anderson plug in the Fiat, and an assertion that the Anderson plug was depicted in two of the photographs which were in his report. There was no such plug present in the Fiat nor shown in the photographs. Mr Alessi accepted that the commentary he included in his report about the Anderson plug had nothing to do with this case. Mr Alessi disclosed in his second report, and agreed in his cross-examination, that he suffered from a serious medical condition at the time of preparing his first report. He attributed his error in the first report to his condition at the time. Mr Alessi agreed in cross-examination that he could not now say whether the condition he was experiencing at the time he prepared his report, had not also affected the other eight paragraphs where he had recorded his observations based on his inspection of the vehicle.

135    Mr Alessi next prepared a second report dated 1 April 2021, after his second inspection of the Fiat on 15 March 2021. By this time, the remains of the Fiat had been removed from the Pecks’ property and were stored in an open-air yard in Moorebank, New South Wales. The evidence does not permit any conclusion to be drawn about what was done with the Fiat after it was removed from the Pecks’ house, save that by 15 March 2021, when Mr Alessi undertook his second inspection, it was in the open-air holding yard. The Fiat was in a severely degraded state.

136    The instructions given to Mr Alessi, this time by the solicitors retained by the insurer, are recounted in his second report as follows:

This report is prepared under the instructions of … of Mills Oakley; to review the details of my initial report of 31 May 2018, … and provide a report in accordance with the Federal Court Harmonised Expert Witness Code of conduct.

a.    Details of any site inspections that I have carried out at the property including photographs and my observations of the flight layout;

b.    Details of any information I was provided when attending the Property;

c.    In respect to my inspection, please outline the specific damage to the Fiat Vehicle, including and not limited to, layout of damage layout of damaged areas and what items appear to have been damaged and damage patterns. In my response; please provide

i.    A detailed description of any observations, including the ignition point and the Fiat vehicle’s wiring, and

ii.    Any conclusions

d.    Based on my observations at the property and my own knowledge, training and experience, please confirm if I am able to conclude whether the Fiat had a fault(s) and what is the basis of that conclusion?

e.    What are my final conclusions?

f.    Please include any other factors I believe are relevant.

137    Mr Alessi included a list of material/information that he relied upon for the purpose of his second report. As with Ms Jones, Mr Alessi was not given the affidavits of Mr and Mrs Peck. Thus, the applicants prosecuted this case up until the point of the expert conclave, by denying both their experts access to the lay evidence of the applicants themselves. This is a very odd approach to a case such as this where the observations of eyewitnesses of the early stages of the inception of the fire are centrally relevant. When one of the eyewitnesses is both the homeowner and a retired, experienced, senior fire fighter, to take such an approach beggars belief. In listing the materials on which he relied to produce his second report, Mr Alessi did not include reference to any notes that he had taken during his first inspection of the Fiat on 9 March 2018.

138    In his second report, he included a brief statement setting out his understanding of the background (as written):

11.    On 9 March 2018; whilst attending the property, Ms B J Jones (Fire Forensic Investigator) informed me the Fiat motor vehicle was parked, on the eastern side of the Insured Property and shortly after it was moved and reparked behind another one of the vehicles on site, it caught fire and caused damage to other vehicles and the property.

12.    At the time of attending the scene, I was verbally advised by Ms Jones that the Insured Owner noted the first evidence of fire was identified within the cabin of the Fiat, but it was unable to be extinguished.

13.    At the time of the fire; the rear section of the eastern side of the premises collapsed onto the Fiat that was allegedly the cause of the fire.

14.    Please note, I was instructed by Ms Jones to attend the scene and conduct examinations of the Insured Vehicle, a Fiat 500 to ascertain if there was a point of origin of fire within the vehicle, and if evidence of same was obtainable.

15.    I was not instructed to conduct any scene examinations in relation to the property. Fire Forensics were assigned to the examination of the structural component of the scene.

139    As will be immediately apparent, the instructions given to Mr Alessi by Ms Jones do not accurately reflect Mr Peck’s evidence given in his affidavit in relation to his observations of the fire. Significantly, Mr Alessi’s assumption that Mr Peck had “noted the first evidence of fire was identified within the cabin of the Fiat” is not correct. Mr Alessi’s opinions as to the likely cause of the fire in his second report are predicated on this false assumption. He includes reference to this assumption as part of his conclusion — that “the fire was from inside the cabin of the vehicle”.

Inspection on 9 March 2018

140    The section of the second report which describes Mr Alessi’s inspection of the Fiat on 9 March 2018 is an elaboration of what he described in his first report and he has substituted some of the photographs that were originally embedded in his first report. As mentioned above, he explains that it was an error on his part to refer to the presence of an Anderson plug and he explains that he believes that he copied these paragraphs from another unrelated report.

141    Mr Alessi opined based on his examination of the burnt components within the Fiat that the origin of the fire was on the driver’s side of the cabin in close proximity to the steering wheel. Mr Alessi’s observations which he relies on as supporting this conclusion include: the lack of paint, insulation, carpet and dash material on the firewall and steering column indicating that the fire was intense within that area; the molten state of the engine mounting on the driver’s side “front area” of the Fiat; the melted alloy engine timing cover; and the greater damage to the wheel rim on the driver’s side at the front of the Fiat.

142    Mr Alessi noted at the time of his inspection on 9 March 2018, that due to “the collapse of the structure onto the Fiat, there was evidence of some foreign matter within the vehicle, but it was minimal in regards to the areas of potential ignition.” He did not refer in his report to the fact that the Fiat had been excavated removing a large quantity of debris by the time he first inspected it. He does not include any photographs taken by Ms Jones of the Fiat pre-excavation when it was still in situ in the burnt garage. It does not appear that Mr Alessi was briefed with the photographs taken by Ms Jones depicting the Fiat in situ in the garage pre-excavation. It is unclear but it appears that the photographs taken by Ms Jones are neither referred to at paragraph 10 of Mr Alessi’s report dated 1 April 2021 which is under the heading “Material / Information Relied upon” nor do they appear to form part of the documents included in Mr Alessi’s brief as set out in the letter of instruction from Mills Oakley dated 10 March 2021.

143    Mr Alessi observes the “wiring short circuit / fusion” appears to have occurred at an area where there is a “definite pinch point and edges that abrasion and failure of wiring insulation can occur if the wiring was incorrectly routed by the manufacturer”. Mr Alessi notes that a short circuit causes extreme heat. During the hearing, it transpired what Mr Alessi described in his report as a pinch point was in fact intended to refer to a corner not a pinch point in the technical sense. Further, Mr Alessi accepted that his conclusion that the area he had nominated as a “pinch point” was based on reasoning back from the existence of features that he identifies as being arc beads. Mr Alessi opined that it was “implausible to think that a large amount of timber could impact that insignificant corner of a dash brace and the steering column in that particular point where it’s primarily right under the actual brace” despite conceding that timber beams of a significant weight has pressed down on the Fiat in the area where the steering column and dash brace would have been located. He would not agree that it was possible and that this would impact the possibility that timber members (that is, rafters and or beams) and other timber fragments could supply the explanation for the features Mr Alessi identified as the relevant corner or corners. In this regard, I note that Mr Alessi did not have the opportunity to conduct an inspection of the Fiat before it was excavated and he does not appear to have access at the time of drafting his report to the relevant photographs taken by Ms Jones.

Inspection on 15 March 2021

144    As already mentioned, Mr Alessi conducted his second inspection of the Fiat on 15 March 2021 in open-air holding area at an auction yard. Mr Alessi observed that “the consistency and effectiveness of the continuity of evidence was also not adhered to as the Insured Vehicle was polluted with foreign matter from other vehicles”. Mr Alessi includes a photograph of unburnt materials including a tyre and bumper in the passenger cabin of the Fiat. Copies of two photographs taken by Mr Alessi of the Fiat in the open air yard are included in Annexure G.

145    Mr Alessi received wiring diagrams with his new instructions for the purpose of the using the second inspection to trace the wiring from the point of fusion and identify which circuit was at fault for the fusion. Mr Alessi found the wiring diagram to be very unhelpful. They appeared to be for a 2013 left-hand drive version of the Fiat.

Mr Alessi’s conclusion

146    By reference to the photographs he had taken on 9 March 2018, Mr Alessi arrived at the following conclusion in his second report:

49.    As instructed; I attended the home of the Insured at South Caringbah NSW, to inspect the Insured Vehicle and determine the cause of fire damage to the vehicle.

50.    I was advised that the Insured Vehicle was moved a prior to the inception of the fire, and the fire was from inside the cabin of the vehicle.

51.    Examination of the Insured Vehicle and the extent of fire damage indicate that the origin of the fire was the offside front cabin area, within close proximity of the steering wheel. Photographs at paragraph 19 depict such level of damage.

52.    Further examination of the Insured Vehicle wiring within the area of the steering wheel revealed wiring affected by a short circuit / fusion. The wiring fusion was within an area that appeared to be within a pinch of the dash frame that was supporting the weight of the main wiring loom and insulation failure has occurred.

53.    The wiring diagram provided within my instructions was very unhelpful in deciphering fuse capacities and the routing of wiring to the fuse boxes and the power distribution box of the Insured Vehicle. However, if the information at the bottom of page 2 of 3 of the Operation of the PDC is correct, the fiat may have been subjected to incorrect fuse placement, unprotected electrical circuitry and the risk of fire in the event of a short circuit within the wiring.

54.    Extensive experience within the automotive industry, previous testing of electrical circuity and components and the investigation of numerous similar motor vehicle fires would indicate the Insured Vehicle suffered extensive damage due to a short-circuited wire near the steering column due to insulation failure of the wiring. This caused damage to the Fiat and subsequent damage to the residential property.

147    Copies of the key photographs on which Mr Alessi relied in reaching his conclusions are included in Annexure H.

Forensic advantage enjoyed by Mr Alessi

148    At the forefront of the applicants’ closing submissions was the contention that Mr Alessi’s evidence should be preferred to that of Dr Casey because he had inspected the Fiat on 9 March 2018 whereas Dr Casey had not inspected it until 16 June 2021. The applicants sought to leverage off the “great forensic disadvantage” under which Dr Casey was operating when he inspected the vehicle. The applicants submitted (as written, footnotes omitted):

The fire occurred on 24 January 2018. Ms Jones attended the Property six days later on 30 January 2018; and then again on 1 March 2018 and 9 March 2018. Mr Alessi attended on 9 March 2018 and on 15 March 2021.

Proceedings were commended on 15 January 2021. Dr Casey viewed the burnt out Fiat on 16 June 2021 at an open-air holding area at Manheim Fowles’s auction yard, almost 3½ years after the fire. The severely degraded and deteriorated condition of the Fiat is evident from Figure 1 of his first report.

When Mr Alessi inspected the vehicle a second time three years later on 15 March 2021, he said that the vehicle had deteriorated significantly since the first inspection due to the corrosive nature of the retardants used in the process of extinguishing the fire. Further, the vehicle was polluted with foreign matter from other vehicles. Its deplorable condition is apparent from the photos on page 13 of Mr Alessi’s report.

Dr Casey reports: “I found a number of items in the rear of the Fiat that did not belong to the Fiat. They were the wrong shape to fit in the Fiat, they were not burned or they were parts that were not missing from the Fiat. I removed these parts and I did not consider them in my inspection.” Clearly, there was much foreign matter in the car.

The effluxion of 3½ years coupled with the poor state in which the Fiat was kept necessarily means that Dr Casey was at a great forensic disadvantage when viewing the vehicle compared to that of Mr Jones and Mr Alessi. Concomitantly, the Court would treat with caution items found in the Fiat by Dr Casey in the open-air yard 3½ years later that were not found by Mr Jones and Mr Alessi; and would be unsurprised if items found by Ms Jones and Mr Alessi were no longer present when Dr Casey inspected 3½ years later when by his own concession there was foreign matter in the vehicle.

149    The photograph referred to as Figure 1 of Dr Casey’s first report is reproduced in Annexure I. The photographs referred to from page 13 of Mr Alessi’s report are reproduced in Annexure G.

150    The submission as to the relative forensic advantage enjoyed by Mr Alessi must be assessed in context. Mr Alessi was cross-examined on his second report, it was put to him that the observations he makes in his second report with respect to the Fiat were “entirely based upon a review of [his] photographs, not based on [his] memory of the inspection”. He answered by saying that “It’s with notes and photographs, yes”. He said he took other handwritten notes which he thought he should have in the file at home but had not attached to his report. In answering a question from senior counsel for the applicants he said he also prepared his second report by reference to his first report as well as his notes and photographs. In relation to his first report, although one of his answers was a bit ambiguous, the effect of his evidence was that it was prepared from a combination of looking at his first report, possibly some notes from his first Inspection, and his photographs, rather than from memory.

151    Mr Alessi was also cross-examined on his first report. Mr Alessi conceded that he prepared his first report whilst he was suffering from a serious medical condition and that he had included in error a paragraph which was incorrect in respect of the Fiat. Mr Alessi accepted that he was unable to state that the mistake he made with respect to the erroneous paragraph can be excluded from the other paragraphs in his first report recording his inspection of the Fiat.

152    In these circumstances, the forensic advantage enjoyed by Mr Alessi is significantly diluted. In any event, the forensic disadvantage experienced by Dr Casey lies entirely at the feet of the applicants, whose insurer acquired the Fiat pursuant to its right of subrogation presumably with a view to pursuing the present claim, and yet took no steps to secure or maintain the integrity of the Fiat as a critical piece of evidence. While it may be the case that the rate of corrosion may not have slowed even if the Fiat had been stored inside given the use of the fire fighting agents that does not detract from the fact that the manner in which the Fiat was excavated at the time, the absence of a log of the artefacts found in the Fiat and the contamination of the wreckage of the Fiat by extraneous debris has significantly impacted the quality of the evidence relied on in this case. Those difficulties in relation to proof lay at the feet of the applicants’ camp. In these circumstances, it is appropriate to take a robust view to fact finding: see by way of analogy, albeit in the context of the assessment of compensation, the observations of Basten JA, (with whom Allsop P and Handley AJA agreed) in State of New South Wales v Burton [2008] NSWCA 319 at [107] to [108].

153    Mr Alessi gave additional evidence in the joint report following the conclave with Dr Casey. The additional evidence given by Mr Alessi was relevantly directed to countering Dr Casey’s opinion. It is convenient before turning to the joint report to address Dr Casey’s reports.

Dr Casey — mechanical engineer and academic

154    After this proceeding was commenced on 15 January 2021, Dr Casey was retained by the respondents. Dr Casey is a mechanical engineer and academic who has a doctorate degree in mechanical engineering with a focus on combustion, which has been “a prime area” of his research activities whilst working in academia. Dr Casey asserts a very strong working knowledge of the properties of material used in automotive vehicles because he has studied them, inter alia, in respect of their combustion properties.

155    The applicants attempted to attack Dr Casey’s relevant expertise by pointing to a list of cases which counsel for the plaintiffs asserted included the cases in which Dr Casey had given evidence that had gone to hearing. Counsel for the plaintiffs noted that only one of the cases on the list involved a fire and that case had in fact settled. Counsel for the plaintiffs then suggested to Dr Casey that based on this list, Dr Casey’s true area of expertise in relation to fires was in relation to engine combustion. Dr Casey rejected this suggestion noting that list of matters which was put to him was not an accurate depiction of his experience as it did not include matters where his opinion did not support a claim being pursued. Although the case list was marked for identification, it was not tendered and no attempt was made to substantiate the basis on which the list had been compiled. I reject the attack on Dr Casey’s expertise based on this line of questioning.

156    The Fiat was in the open-air yard when Dr Casey inspected it on 16 June 2021. Dr Casey took photographs of the Fiat during his inspection. At the time of Dr Casey’s inspection, the Fiat had various debris or garbage in it. Dr Casey noted, as Mr Alessi had, that inside the carcass of the car were items that did not belong to or originate from the Fiat — Dr Casey noted the presence of a tyre, a partial piece of bumper bar and cardboard rubbish, which had collected in the Fiat in the intervening years. Dr Casey also found inside the ruins of the Fiat a house wire with signs of arc damage.

157    I pause to note that in her cross-examination, Ms Jones agreed that it was possible that the house wires which Dr Casey found on 16 June 2021 were in the car on 1 March 2018 when she inspected it but that she did not see them. She said that it is “entirely possible and quite plausible that electrical wiring has collapsed onto the vehicle from the actual collapse of the mezzanine above it”. She also agreed that photographs taken of the Fiat in the open yard which showed wires running from the rear window down along the boot also looked like household wires.

158    Dr Casey provided two reports respectively dated 19 July 2021 and 14 January 2022. Unlike the applicants’ experts, Dr Casey was provided with the affidavits of Mr and Mrs Peck before he provided his first report. This gave rise to the unusual circumstance where the respondents’ expert relied on the applicants’ lay evidence whereas the applicants did not, or at least not until it came time to respond to Dr Casey’s reports. Based on his assessment of the fire damaged remains of the Fiat and of the circumstances, he concluded:

1.    It is far more likely than not, that some issue with the household electrical system occurred before the fire broke out in the Fiat. This is supported by the fact that when Mr. Peck first observed the fire in the Fiat, it had not yet spread to the house and so the progression of the fire in the Fiat could not have led to the household power going out. Moreover, I believe the popping noise that Mrs. Peck heard, may have been electrical arcing within the household wiring. This is supported by the fact that I found arc damaged household wires, inside the Fiat and the popping noises were heard by Mrs. Peck as one of the earliest signs of the fire.

2.    The fire in the Fiat, started in and around the rear driver’s corner. This is supported by Mr. Peck’s description of the fire, when he first observed it. This is also supported by the damage to the Fiat’s body panels, which exhibit the greatest extent of paint damage, to the rear of the Fiat. Other indicators of fire progression (such as in polymeric materials and aluminium / alloy items) provide inconclusive indications as to where the fire is likely to have broken out.

3.    In the rear driver’s side of the Fiat, I found an arc damaged electrical wire, that has the characteristics of household wiring. To me, this stands as a strong candidate to explain how the fire started in the Fiat. That is, temperatures in the order of 1,000°C or so, are needed to melt copper. These temperatures are sufficient to ignite polymeric materials (in the order of 300°C or so) and I believe an arc damaged household wire falling onto / into the Fiat would have the potential to set fire to materials that it may land upon.

4.    I did not find any indications of arc damaged automotive wiring, in the rear of the Fiat. This means that the fire did not start due to some issue with the Fiat’s wiring.

5.    Overall, I conclude that the fire in the Fiat is more likely than not, a result of an issue developing in the household wiring.

(Emphasis in original)

159    Dr Casey’s ultimate conclusion was that that it is more likely than not, that the fire broke out due to some issue with the household electrical wiring which resulted in arc damaged household electrical wires falling onto or into the soft topped convertible Fiat and causing a fire in and around the Fiat, which then spread and set fire to the house and the Nissan which was parked in front of the Fiat.

160    Dr Casey adhered to his conclusion in his second report. For the purpose of his second report, Dr Casey was provided with additional materials, which included the pleadings, Mr Clements’ affidavit, vehicle construction / wiring / schematic documents, the Fiat 500 Owners Handbook, recall/ service documents and electronic copies of images taken by Mr Alessi and Ms Jones. In his second report, Dr Casey confirmed that based on his review of the additional material, he had reached the view with a high degree of certainty that the wire he found in the Fiat came from the house and that some issue occurred within the house’s wiring that caused the power to go out and resulted in arc damage within the house wiring that ignited the fire. As to what specifically occurred in the house, Dr Casey said that this question had not been answered by those that investigated the house fire. In a critical passage of his second report, Dr Casey says:

The damage to the house in and around the garage (in the photographs that were recently provided to me) appears extensive to me. Moreover, this appears to have significantly impacted onto and into the Fiat which hampers attempts to determine the evolution of damage to the house and the Fiat, in my opinion. In my opinion, the strongest information that I can see within the available information, relating to the evolution of the fire, comes from the account of Mr. Peck ... Accordingly, I conclude that it is more likely than not that the fire in the Fiat started in response to events in the house, but I cannot say beyond that what precipitated the overall events...

161    Dr Casey reasoned as follows:

(1)    The arc damaged wire that he found in the Fiat had a cross sectional area of 6 mm2. By the time of his second report, Dr Casey had a list of all the wires that are within the Fiat’s cabin, none of which a cross sectional area of 6 mm2. Most of the Fiat’s wires had a standard gauge of 0.35 mm2 (which is commonly adopted for signal wires) and the largest wires had a gauge of 2.5 mm2 (which is typical of a moderate current power wire). Accordingly, he concluded that the arc damaged wire that he found on his inspection must have come from the house. On the basis that household wires should not be arc damaged, he concluded that aberrant electrical behaviour was occurring in the house’s wiring.

(2)    Based on obtaining and reviewing the photographs taken by Mr Alessi and Ms Jones in electronic format, Dr Casey identified that wires hanging from the rear window of the Fiat appeared to have come from the house. He relies on this as another indication that house wires ended up in the Fiat.

(3)    He believes that the possibility of the house setting fire to the Fiat is a more likely scenario than Mr Alessi’s theory that a bundle of fine wires arced in and around the steering wheel and started the fire.

(4)    Dr Casey says that both scenarios involve arcing which can generate temperatures well above 1,000°C which is more than sufficient to set fire to any polymeric materials used in the Fiat (which typically have ignition temperatures below 300°C or so). He acknowledged that on a combustion basis, both scenarios are capable of starting a fire in a car. However, he regarded the following factors as counting against the scenario put forward by Mr Alessi and making it far less likely than a scenario in which the house set fire to the Fiat:

(a)    the additional materials provided to Dr Casey indicated that wires within the Fiat were taped or routed through conduits to prevent those wires from shorting out. Dr Casey notes that he did not locate such tapes or conduits due to them being made of polymeric materials and expects that they also burnt away in the fire as did other polymeric materials;

(b)    a modern vehicle which is switched off may nonetheless have some electrical circuits which remain active, including the main starter cables, vehicle security systems etc and that a fire burning away the insulation of these wires would allow those wires to short out (or arc) against the body of the vehicle and other wires;

(c)    when a vehicle is ordinarily switched off, the power is terminated at a ‘control box’ but the power still remains active up to that control box. That control box is called by a myriad of different terms (such as a Power Control Module -PCM or Body Control Module -BCM). Fires can destroy those control boxes and allow the main supply (which is still active) to contact otherwise inactive electrical circuits, thereby energising those circuits;

(d)    as a result of the fire, aberrant electrical activity can occur in what ought to be inactive electrical circuits. The BCM in the Fiat was extensively destroyed and the nearby electrical wires and circuits had collapsed onto themselves which can energise those otherwise inactive electrical circuits. Dr Casey therefore was unsurprised that some electrical arcing would be present in the Fiat’s electrical wires, even though the Fiat was switched off at the time of the fire although he noted that, this of itself cannot be used to say that the fire must have started in the areas where electrical arcing is present in the Fiat’s wiring since this can occur in consequence to the fire.

(e)    Arc damage to the Fiat’s wires does not mean of itself that the fire started due to that arc damage. A fire can cause arc damage in which case the arc damage would be a consequence of the fire (victim) and not causative of the fire. Other artefacts and information must be used to determine if the arc damaged wires caused the fire or were a victim of the fire.

162    Dr Casey opined that the wires which Mr Alessi identifies as exhibiting arc beads are IPC wires. He says IPC wires do not carry electrical current when the vehicle is switched off. If they did the car’s instruments would remain illuminated / active even when the ignition is turned off. The Fiat was switched off at the time of the fire. Mr Peck makes no mention of aberrant behaviour of the instruments when he parked the Fiat before the fire. In Dr Casey’s view this runs counter to an assertion that there was some issue with that IPC wire circuit at that time. Dr Casey opined that it was implausible that an inactive vehicle (that was switched off) would subsequently cause a fault (pinch an electrical cable and cause it to short circuit) on an electrical circuit that was inactive, and cause arc damage, as required by Mr. Alessi’s theory.

163    As to Mr Alessi’s reasoning based on a pinch point or a corner, Dr Casey makes the obvious point that a considerable amount of house debris was in the area where Mr Alessi asserts the wires were pinched (or as clarified by Mr Alessi, subject to a corner). Dr Casey makes the commonsense observation that it is likely that the wires observed by Mr Alessi were squashed down by that debris. Dr Casey opined that the orientation and positioning of the wires observed by Mr Alessi is not a reliable artefact of the affected wires being pinched, but, rather, an artefact of the house debris which compressed them into that position.

Joint report following conclave

164    For the purposes of producing the joint report, Mr Alessi and Dr Casey identified the following common questions (as written):

Question 1: Please identify the specific damage to the Fiat Vehicle, including but not limited to, layout of the damage area and what items appear to have been damaged and the damage patterns,

Question 2: A detailed description of any observations concerning the ignition point and the wiring of the Fiat Vehicle,

Question 3: Based on the documents provided together with your physical inspection of the Fiat Vehicle, please confirm if you are able to conclude, based on your training knowledge and experience, whether the Fiat Vehicle had any fault (s) or defect (s) and what is the basis for that conclusion.

165    The experts’ evidence in relation to each of the common questions was as follows.

Question 1: Specific damage to the Fiat

166    The experts agreed that the Fiat suffered extensive fire damage and deformation as a result of both fire activity and structural collapse. They agreed that there was evidence of varying fire activity as a result of the presence of different fuel sources within the Fiat, including polymeric materials, oils and petrol. The greatest extent of damage to the aluminium and alloys of the Fiat’s engine and wheels was in the front, driver’s side corner of the engine bay and around the front driver’s side wheel. Relevantly, the experts agreed that most of the copper wiring within the interior of the Fiat was extensively affected by heat, and that most of the plastic insulation on the wires had been consumed in the fire. There were some electrical wires in the Fiat without any insulation at all.

167    As mentioned, during his inspection on 9 March 2021, Mr Alessi identified what in his opinion is an arc bead on a wire resting near the steering column. He considered this to coincide with the position of the short-circuiting of the wiring that he separately infers to have occurred because of the absence of insulation on the wires in that location.

168    During his inspection on 16 June 2021, some three years later, and following movement of the Fiat and extended storage in an open air unsecured environment, which had resulted in degradation and contamination of the condition of the Fiat, Dr Casey was unable to locate the particular wiring identified by, and relied on by, Mr Alessi but he did find arc damaged wires which he believes must have come from the house.

169    Mr Alessi contended that Dr Casey was at a disadvantage because he examined the Fiat three years after the fire occurred whereas Mr Alessi examined the Fiat on 9 March 2018, around six weeks after the fire. Mr Alessi effectively submits that the elapse of time between the two examinations provides an explanation as to why Dr Casey could not locate the arced wire on the steering column.

170    Mr Alessi opined that most of the damage to the Fiat was to the front, driver’s side of the vehicle, to the right of the steering column. Dr Casey, on the other hand, considered that the damage patterns to the Fiat were inconclusive — some patterns indicated the worst damage was to the rear of the Fiat and others indicated that the worst area of damage was to the front, driver’s side corner of the vehicle. In Dr Casey’s opinion, the relative severity of the damage inside the Fiat’s cabin did not permit a conclusion that the fire was worst in and around the steering column.

Question 2: Ignition point and wiring

171    There were no points of agreement between the experts on the second of the questions addressed in the joint report. The evidence given by Mr Alessi and Dr Casey on this question was informed by their competing views on whether arc beads could reliably be identified as cause arc beads and distinguished from victim arc beads.

172    As mentioned earlier, Mr Alessi’s view was that it was possible to distinguish through physical inspection and some testing whether an arc bead was a cause arc bead or a victim arc bead. Mr Alessi did not claim to be a scientist but he said he had done testing, not laboratory testing, dealing with “vehicles of real-life situation” at “ground level”. He described it as something that is done at ground level every day. He said there is a very significant difference between being at ground level and repairing vehicles and being an academic and trying to replicate these factors. He said he based his conclusions “not just the arc damage itself” but “all the surroundings and the effects of the arcing and the solidification of the wires.”

173    He said that cause arc beads are generated by a concentration of energy being emitted from inside the wires, whereas victim arc beads are created by a concentration of energy being visited on the outside of the wires. He says that when arcing is produced during the course of a fire, there would be less impact or involvement of the insulation, whereas when arcing is the cause of a fire, there is more impact on the insulation. He says that for this reason he can identify by visual examination whether an arc bead is a cause arc bead or a victim arc bead. He said that he could differentiate visually by reference to the relative “dullness” of the host wire — he said that victim arc beads appear duller than cause arc beads. He said that this was due to cause arc beads experiencing less damage to their insulation. He said that the wire for cause arc beads is cleaner in appearance because as the concentration of energy is emitted from within the wire, the wire is much cleaner in its appearance due to the insulation being burnt away. Mr Alessi says that a reliable indication that arc damage is a victim arc bead is that it is generally duller in appearance due to smoke and that the disintegration of the insulation is not as comprehensive. In simplified terms he described the victim arc bead and its host wire as being duller in appearance whereas the cause arc bead and its host wire as being “a lot more prominent in its colour and its cleanliness”, “in some instances it may have a reddish tinge” and there is “more splutter where the arc has occurred”.

174    Dr Casey disagreed with Mr Alessi’s explanation and theory about the visual difference between cause arc beads and victim arc beads. As already mentioned, Dr Casey said that the differentiation between cause and victim is simply temporal — when the arcing occurs relative to the fire. Dr Casey’s opinion was that there was no way to reliably differentiate between a cause arc bead and victim arc bead. Dr Casey noted that there are scientific studies which demonstrated that there were no method for reliably distinguishing between cause arc beads and victim arc beads. Dr Casey identified two peer reviewed articles that he says are regularly cited as measured by the Science Citation Index — V Babrauskas, Arc Beads from Fires: Can ‘Cause’ Beads be Distinguished from ‘Victim’ Beads by Physical or Chemical Testing? J. Fire Prot. Eng 2004 14(2) 125-127; and M Benefer and D Gottuk, Distinguishing Between Arcing and Melting Damage in Electrical Receptacles ISFI 2014 87-96.

175    The Babrauskas study is based on a comprehensive review of published studies. Babrauskas concludes that although a wide variety of physical or chemical testing methods have been proposed for differentiating between an electric arc bead that causes a fire, versus one that was caused by the fire itself, and despite the obvious utility for fire investigations in identifying a reliable method of distinguishing between the two, none of the proposed methods are promising. Simple visual observation is not sufficient to discriminate between “cause” and “victim” arc beads as the following features do not discriminate between the two (at 129):

    glossiness of the bead;

    colour of the bead;

    shape of the bead;

    surface smoothness or roughness; and

    size of the bead (although the very smallest beads of less than 1 mm tended to be ‘cause’ beads, while the largest ones of over 3mm tended to be ‘victim’ beads).

176    Further, instrumental analysis of arc beads, including by microscopy, Raman Spectroscopy and X-ray microanalysis and Auger electron spectroscopy and secondary ion mass spectrometry, does not provide a reliable basis for distinguishing between victim and cause arc beads.

177    Babrauskas notes that the proposed methods he reviewed all implicitly assumed that there is some categorical difference between these two types of arc beads whereas a consideration of the room fire process leads to the conclusion that the thermal or chemical histories of the two types of beads cannot be claimed to be categorically different. Furthermore, most of the proposed methods only entail “subjective, qualitative criteria for distinguishing between beads that did or did not start a fire”. Finally, all of the methods he examined were based on studies where only a small number of specimens were tested; none of the methods have been successfully reproduced in laboratories other than the proponent's, while several have been shown explicitly not to be reproducible.

178    Based on his review of the published literature on the topic, Babrauskas concluded as follows:

After a comprehensive examination of the published studies, the author cannot find much promise with any of the methods that have been proposed for ‘distinguishing between ‘cause’ and ‘victim’ beads. The reasons are the following:

(1)     Many methods have been offered without any supporting theory. But the few theories that have been offered are inconsistent with the knowledge of the variety of behaviors that are found in room fires.

(2)     With a few exceptions, all of the methods have been put forth as qualitative and subjective, without means of quantification.

(3)     The methods typically have been based on studies using an extremely small number of experiments. In the few studies where sufficient samples were used to enable statistical conclusions to be drawn, the ‘cause’ and ‘victim’ bead populations showed sufficient overlap that only trends, not categorical distinctions, could be drawn. In the only study where comparison was made to a fairly large number of real-fire beads of known identity, the results were unacceptable (39% success).

(4)     Almost all of the fire exposures in the laboratory-created beads have been very different from real room fires.

(5)     None of the methods has been independently validated, although several validation attempts have been made and led to conclusions of irreproducibility.

(6)     Most researchers proposing the various methods have suggested them in the spirit of ideas meriting further research, but Anderson has argued that his method is robust enough that it already should be accepted for forensic purposes. However, his method does not appear to be more promising than any of the other methods.

In addition, it is not evident that any method could be developed in the future which is robust and reliable. This could only be possible if chemical or thermal exposure conditions were invariably different during the formation of’ ‘cause’ versus ‘victim’ arc beads. But distinctions of this kind have not yet been discovered.

[citations omitted]

179    In their 2014 study, Benefer and Gottuk cite the Babrakuskas’ study and note that there has not been the development of a successful method which allows for the determination of whether arc beads are “fire cause” or “fire effect” arc beads.

180    Neither Dr Casey nor Mr Alessi question the academic rigour of the studies nor the opinions expressed by the authors. Both agreed that the conclusions drawn in the relation to arc damage in these articles would apply equally to motor vehicles. In any event, neither Mr Alessi nor Dr Casey purport to have conducted instrumental analysis of the arc beads that they have identified. Dr Casey notes that both papers have been cited in a positive manner within the academic community.

181    In her corrected, re-issued report, Ms Jones gives evidence that is consistent with Dr Casey’s on this issue:

…As mentioned above, beading and arcing in wiring found after a fire could be a result of two possible mechanisms. Firstly, a fault which caused the fire as a result of two wires which are energised and contacting each other arcing and causing beading and melting. The second possible cause is an external fire attack which has affected energised wires, burns away the sheaths and then causes the wires to contact, arc and bead. The physical evidence is effectively the same. Beaded, arced and melted wires.

182    In cross-examination, Ms Jones said:

it can be an arc bead, it can be a heat bead, but it is – visually, they’re very similar, and that’s where, in terms of the wiring and what was energised, it could have been energised at the time to cause the beading if it was arcing, but that was outside my expertise to say what – if it was energised or – which could cause an arc bead or if it was heat effect.

She acknowledged that she could not be definitive about whether the three areas of beaded/arced wiring that she says she had identified were arc damage or melting damage because she did not know the electrical systems of cars.

Opinions as to signs of arc damage

183    Mr Alessi identifies in his 2021 report, based on a photograph taken in March 2018, an arc bead on a wire in the burnt remains of the Fiat near what he described as a “pinch-point” on the steering column. Mr Alessi opined that the arc bead / fusion of wires occurred following a short circuit event where the copper wiring core has contacted the body of the Fiat causing a short circuit. I understand Mr Alessi’s reference to “short circuit” as being an intended reference to electrical arcing. Mr Alessi also opined that the “sound smooth shape of the artefact, the corresponding area of damage on the opposing conduct and re-solidication waves are all indicators of the arc to be electrical activity independent of the wire”. That is the arc bead was not a “victim” of the fire. Due to the degradation of the Fiat, Dr Casey notes that during his inspection of the Fiat in 2021 he was unable to inspect or observe the arc bead photographed at paragraph [26] of Mr Alessi’s 2021 report.

184    Mr Alessi considered that the arc damaged wires found in and around the dashboard, in front of the steering wheel, were consistent with the fire starting in that area of the Fiat. Mr Alessi states in the joint report that he considered it plausible for a “fire to smoulder (insipient fire stage)” within the Fiat until it was “provided with oxygen and becomes fully involved in accordance with Mr Peck’s evidence”. Ms Jones in her first report mentioned the possibilities of a smouldering or slow burning fire in the dashboard of the Fiat 500C which spread to the passenger compartment.

185    Mr Alessi acknowledged that his observations are at odds with Mr Peck’s firsthand account, as a witness who observed the fire in the initial stages toward the rear of the Fiat and who was experienced in observing fire from his previous occupation as a senior firefighter.

186    As noted above, Dr Casey did not find the wire described by Mr Alessi but found two arc damaged sets of wires. In Dr Casey’s view and based on his review of the list of wires used in the Fiat, one set of wires did not have the cross-section area or other technical characteristics of an automotive wire from the Fiat. Dr Casey notes that the other set of arc damaged wires he identified as signal wires from the Fiat. Dr Casey believes that he did not locate the wires that Mr Alessi identified as being arc damaged. If Dr Casey is correct, that gives rise to a possibility that there were at least two examples of signal wires with arc damage present in the Fiat. Dr Casey opined that if this is correct that would tend to suggest that the arc damage on the signal wires is more likely to be as a result of the fire rather than one being causative. I interpolate to note that Dr Casey’s reasoning on this issue is predicated on the arced signal wires identified on the two occasions being different. The relevant wires are not in evidence. They have been photographed but I am unable to reach a positive finding on the basis of the photographs only, taken years apart, whether the arc damaged signal wires are in truth two distinct and different wires. I would be guessing.

187    Dr Casey was unable on the basis of his inspection of the Fiat, some three years later, and in circumstances where it had not been preserved to protect the integrity of the evidence based upon it, to provide a conclusion as to the location of the ignition point of the fire, or where the fire was likely to have burnt the longest.

Question 3: Conclusions arising from physical inspection of the vehicle

188    There were also no points of agreement between the experts on the third question addressed in the joint report.

189    Dr Casey did not consider the mere presence of arc damage, in the absence of other factors, to establish that there was a fault or defect in the wiring before the fire occurred. Dr Casey considered that multiple faults would need to be present for a signal wire, such as that found by Mr Alessi, to arc-out and cause a fire while the Fiat was turned off. Dr Casey observed that signal wires do not generally carry enough electrical current to cause arcing, and the presence of excessive currents would indicate a fault. Those wires would ordinarily be turned off when the Fiat was turned off, and so a second fault would need to occur for the wires to be active when the vehicle was not running. Dr Casey noted that it was possible that any arcing could be a result of fire damage rather than being an indication of being the cause of the fire. Moreover, the wires that Mr Alessi describes as being “pinched” are typically tied back against structures to prevent them from rubbing or becoming pinched. Dr Casey also notes that with the ties being consumed by the fire, the wire identified by Mr Alessi may have dropped down to their final resting place. By contrast, Mr Alessi asserts that the routing of wiring by manufacturers can be “far from perfect” and considered it more probable than not that the wires in question were not correctly positioned prior to the fire. Mr Alessi does not expose the basis upon which he has reached this conclusion, nor does he attempt to connect his highly generalised view to the Fiat model in question. Dr Casey notes that there is no information available that indicates any consistent faults present in the Fiat prior to the fire starting.

190    Mr Alessi concluded that there was a defect or fault at the time of the fire. Mr Alessi maintained that many auxiliary devices in modern motor vehicles can remain active after the vehicle is switched off. In Mr Alessi’s view, the significant size of the arc bead identified from his inspection of the Fiat was indicative of the arc being independent of the fire, rather than as a result of the fire. Dr Casey disagreed, stating that the large size of the melted copper identified by Mr Alessi is at odds with the melted copper having come from nearby wires, as the nearby wiring did not show indicators of copper loss. In Dr Casey’s view, liquid copper that drips down under gravity could also give the appearance of the features identified by Mr Alessi as splatter deposits. Ultimately, Dr Casey was unable to conclude based on the photographs whether the features were caused by liquid copper or arc splatter copper due to the blurriness of the photograph.

191    Before leaving the topic of the expert evidence, it is relevant to record my impressions of the two key expert witnesses. The first observation I will make relates to both Mr Alessi and Dr Casey. It was clear that notwithstanding Mr Alessi had the opportunity to inspect the Fiat in March 2018 and Dr Casey did not, by the time they each came to give their evidence in this case, they were both relying on photographs that had been taken of the Fiat at various points in time. It was fairly plain that Mr Alessi was not able to draw on his memory when he was giving evidence. That would not be surprising given the effluxion of time but here that was compounded by the significant stressors that Mr Alessi was suffering at the earlier time. For this reason, notwithstanding the applicants’ submissions to the contrary, I do not regard Mr Alessi as being at a significant forensic advantage compared to Dr Casey. My strong impression was that both of them were relying primarily on photographs to supply them with relevant information in respect of the condition of the Fiat post the fire rather than their actual recollections from their inspection of the remains of the vehicle itself.

192    Turning to my impressions of Mr Alessi, I regarded Mr Alessi as being doggedly committed to prosecuting the evolving case theory being advanced by the applicants. He was slow to make appropriate concessions and was prone to freewheeling speculation, repeatedly introducing new opinions or ideas not previously addressed in his reports or in the joint report. For example, in response to a question as to whether Mr Peck would have been in an “excellent position” to make observations of fire in or around the Fiat from the Northeastern Door, Mr Alessi qualifies his agreement with that proposition by introducing the possibility that the windows of the Fiat may have been “blackened from smoke, etcetera, in the vehicle”. This was the first occasion on which Mr Alessi suggested that “blackened windows” may have hindered Mr Peck’s vision into the Fiat. Mr Alessi introduced the suggestion to advance the smouldering theory that he introduced into the Joint Report. He ultimately, reluctantly, agreed that if the windows were not blackened then Mr Peck would have a “direct and clear view of the dashboard and the front of the Fiat”.

193    Dr Casey was prone to express his views in emphatic terms, he was also prepared in his evidence to make appropriate concessions, to delineate the areas in which he did not have relevant expertise, and to entertain as possible, potential explanations that did not advance the respondents’ case. The paramount example of this was that he accepted that he had no way of knowing where the household wire he found in the Fiat in 2021 came from. Even if it originated from the Peck’s residence, Dr Casey agreed that it was possible that the wire was from the mezzanine area above where the Fiat was ordinarily housed, and was in fact a victim of the fire, not a cause of the fire.

CONSIDERATION

The applicants’ case

194    The applicants’ claim against AAG was summarised in their written submissions to the following effect:

Alleged breach of s 54 of the ACL

(1)    AAG supplied Mrs Peck the Fiat in trade or commerce. By doing so, AAG guaranteed that the Fiat would be of acceptable quality;

(2)    Because the Fiat suffered a malfunction, it was not of acceptable quality, in that it was:

(a)    not fit for all the purposes for which goods of that kind were commonly supplied;

(b)    not free from defects;

(c)    not safe; and

(d)    was not durable.

Alleged breach of s 55 of the ACL (in the alternative)

(1)    AAG supplied Mrs Peck the Fiat in trade or commerce. By doing so, AAG guaranteed that the Fiat would be reasonably fit for any disclosed purpose and for any purpose for which AAG represented that they were reasonably fit;

(2)    Mrs Peck disclosed, expressly or by implication, to AAG that she wished to purchase the Fiat to be used as a motor vehicle;

(3)    Likewise, AAG represented to Mrs Peck that the Fiat may be used as a motor vehicle;

(4)    Because the Fiat suffered a malfunction, it was not of fit for purpose.

Entitlement to damages

(5)    The applicants are thereby entitled to recover loss and damage from AAG pursuant to s 259(4) of the ACL provided that such loss or damage was reasonably foreseeable as a result of the breach.

Negligence (in the alternative)

(6)    AAG owed the applicants a duty of care to take all reasonable and proper care in the supply of the Fiat;

(7)    Because the Fiat suffered a malfunction, AAG breached that duty;

(8)    The damage was reasonably foreseeable.

195    The applicants’ claim against Ateco for breach of s 54 of the ACL, being a breach that the Fiat was of acceptable quality, is made on the same basis as their claim against AAG. The claim for damages is sourced in s 271(1) of the ACL. The applicants’ negligence claim against Ateco is made on the same basis as their claim for negligence against AAG. Further or in the alternative, the applicants’ claim against Ateco for breach of s 9 of the ACL, in relation to an alleged safety defect. Again, the claim is based on the allegation that because the Fiat suffered a malfunction, the vehicle’s safety was not such as persons generally are entitled to expect. The claim for damages appears to be based on ss 140 and 141 of the ACL.

196    The various elements of the applicants’ case were not developed in detail. For example, in relation to the negligence claim, the applicants made no submissions in their closing submissions as to how the claim was to be made out. The claim in negligence and the pleading of it is governed by ss 5B and 5D Civil Liability Act 2002 (NSW) (CLA). The applicants contend that AAG (the dealer who sold the Fiat in August 2010) and Ateco (the importer of the Fiat into Australia) owed a duty to “take all reasonable and proper care” in respectively, the supply, or the manufacture and/or importation, of the Fiat. Breach is pleaded by simply alleging that the respondents “failed to take all reasonable and proper care”. The particulars provided simply repeat the “matters pleaded in respect of the Defect above”. The pleading of the Defect as defined in the Amended Statement of Claim (ASOC) is as follows:

CAUSE OF THE FIRE

14.    The Fire originated in the Fiat Vehicle parked in the garage of the Property.

Particulars

a.    The First Applicant witnessed the Fire in the passenger compartment of the Fiat Vehicle.

b.    Damage in the passenger compartment displayed evidence of beading/arced wiring.

c.    There was fused wiring in close proximity to the steering wheel column.

d.    There was an electrical fault in the Fiat Vehicle.

15.    The Fire and resulting Emergency Response occurred as a result of a defect in the Fiat Vehicle in that the Fiat Vehicle experienced an electrical and/or other malfunction within the electrical system of the Fiat Vehicle causing the ignition which was the cause of the Fire (the Defect).

Particulars

a.    New South Wales Fire & Rescue eAIRS Report Incident No. 017349.

b.    All Motor Vehicle Investigations report dated 31 May 2018.

c.    Fire Forensics Pty Ltd report dated 18 March 2019

d.    Further particulars will be provided with the service of evidence.

197    The applicants did not identify what reasonable precautions either of the respondents should have taken in or around August 2010, when the car was purchased by Mrs Peck, to address a risk of harm arising from a defect in the Fiat of the kind alleged by the applicants. In their opening submissions, the applicants identified the risk of harm as being that “defective wiring in the Fiat will give rise to the risk of fire” and that “all that is required is that the technician responsible for installation take care to ensure proper wiring practices are followed.”

198    Because of the way the case was conducted it is not necessary to address in any detail the elements of the respective claims. The applicants’ claims were each predicated on the Fiat having a defect as at the date it was acquired by Mrs Peck in 2007 and that the alleged defect was the cause of the fire in 2018. The applicants submitted that the principal issue is one of causation. The factual contest as to the existence of a defect and that the fire was caused by that defect were the focus of the parties’ submissions. I will similarly focus on those issues, which are determinative of the applicants’ claims.