'Secondary' tortfeasors found liable for storeroom gas explosion

13 November 2019

The Supreme Court of New South Wales has awarded over $3 million in damages to a school caretaker injured in a gas explosion. Unable to sue the entity responsible for the negligent work, the plaintiff pursued 5 parties whose responsibility for the incident was described by the trial judge as 'secondary'. The plaintiff was successful at trial, with the court finding all parties liable and apportioning liability equally.

In Issue

Whether any of the parties to the litigation were legally responsible for the plaintiff’s injuries.

The Background

The plaintiff, Mr Hossain, sustained severe burns to 30% of his body in a gas explosion on 10 February 2010 at Unity Grammar College (the College), where he was employed as a caretaker. The explosion was caused by a leak of LPG from a second stage gas regulator that had been negligently installed in the building’s ceiling. The trial judge accepted that the explosion was initiated when the plaintiff turned on a light in the storeroom.

The plaintiff commenced proceedings against the College in the Supreme Court of New South Wales. He also sued the principal contractor for the construction of the College (Binah) and later its insurer, Insurance Australia Limited (IAL), as well as a gas fitting contractor that performed work at the College (but did not perform the defective work that caused the explosion) (FiveStar), and the supplier and installer of the LPG gas tank and supplier of LPG at the College (Elgas). The private building certifier for the construction of the College (Cohen) was joined as a cross-defendant.

It was uncontroversial that the placement of the gas regulator in the ceiling was contrary to the manufacturer’s instructions, the provisions of Australian Standard 5601-2004 and the provisions of the Dangerous Goods (Gas Installations) Regulation 1998 (NSW) (Repealed) (the DGR). In further contravention of the DGR, the gas system was not fitted with a compliance plate and no certificate of inspection had been issued at the time of installation.

The entity engaged by Binah to install the LPG gas system (Enma) was deregistered, uninsured and not a party to the proceedings. The trial judge noted that had Enma been a good common law defendant, either in its own right or through adequate insurance, none of the responding parties might have been an essential party to the proceedings.

The Decision at Trial

The College was found negligent for failing to provide a safe place of work. The trial judge rejected the College’s argument that the positioning of the second stage regulator constituted a latent defect, finding that the defect was discoverable upon reasonable inspection even if only by a qualified gasfitter. His Honour found that the absence of a compliance plate should have raised questions about the compliance of the gas installation, leading to testing and inspection of the whole installation.

IAL was found liable for the negligence of Binah. The trial judge found that a reasonable principal contractor in the position of Binah ought to have had a familiarity with the compliance requirements of the DGR, including the obligation of the gasfitter to provide the certificate of inspection. His Honour found that Binah ought to have been aware that the omission of Enma to provide the certificate of inspection and attach the compliance plate raised a red flag about whether the installation was free from patent defects. Binah ought to have engaged an independent contractor to test and inspect the installation to ascertain whether it was compliant and, if not, to rectify any patent defects.

Five Star was found liable for failing to inspect the connected regulators, appliances and containers after it completed its aspect of the works, as required by the DGR. Had Five Star inspected the existing installation, the trial judge found that the second stage regulator responsible for the discharge of gas which led to the explosion would have been detected.

The trial judge found that the absence of a compliance plate ought also to have raised red flags for Elgas. His Honour found that a reasonable gas supplier would have refused to supply gas until it received a certificate of inspection from a qualified gasfitter certifying that the installation was free from defect and satisfied itself that a compliance plate had been attached to the installation confirming these matters.

Finally, the trial judge found Cohen negligent for failing to obtain evidence of compliance of the LPG installation before issuing the final occupation certificate.

Implications for you

Although liability was apportioned equally between the 5 defendants, perhaps the most interesting finding was that the principal contractor, Binah, did not discharge its duty of care by engaging a seemingly competent contractor (Enma). Each case must be assessed on its own facts, and here a reasonable principal contractor ought to have taken further steps to ensure the installation of the gas system was compliant.

Hossain v Unity Grammar College Ltd and Ors [2019] NSWSC 1313

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