Jonathan Smyth v St andrew's Insurance Plc
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE |
| Judgment Date | 17 September 2012 |
| Neutral Citation | [2012] EWHC 2511 (QB) |
| Court | Queen's Bench Division |
| Date | 17 September 2012 |
[2012] EWHC 2511 (QB)
IN THE HIGH COURT OF JUSTICE Case No HQ11X03016
QUEEN'S BENCH DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Mr John Randall QC
(Sitting as a Deputy High Court Judge)
Mr Timothy Evans (instructed by Collyer Bristow LLP Solicitors, 4 Bedford Row, London WC1R 4DF) appeared on behalf of the Claimant
Miss Sonia Nolten (instructed by Kennedys Solicitors, 5 th floor, 36 Newhall Street, Birmingham B3 3PU) appeared on behalf of the Defendant
Hearing Dates 9–13 July and 3 August 2012
This is a damages claim by a home owner against his insurers for (in effect) indemnity in respect of fire damage. The defendant insurers deny liability on the grounds that the fire, they allege, was deliberately started by a member of the home owner's family (his partner), and that the resultant damage therefore falls within an exception to the cover under the policy. The Claimant disputes this on the facts, and suggests, subject always to the burden of proof resting on the insurers, that the more likely cause of this fire was accident. The matter has come on for trial, pursuant to a direction of Master Leslie, as to liability only.
The property and its occupants
23 Margaret Street, Brighton is a four storey, three-bedroomed terraced house, located in a residential part of central Brighton described by one of the witnesses as 'the gay village'. The Claimant, Mr Jonathan Smyth, bought it in March 2007, and took out a home insurance policy with the Defendant, through Halifax General Insurance Services Ltd.
The ground floor, a few steps above street level, comprises a front sitting room, with an informally created hallway to the side leading to a staircase to the upper floors, and past that to a room (known by the occupants as 'no man's land') which was unused save for the presence of a computer and it leading to the open style staircase to the basement.
The basement comprises a bedroom, accessed through a concertina-style 4 panel folding door, with a window onto the street, a bathroom, and a kitchen area, with a door from the kitchen area affording access to a small back courtyard. The seat of the fire was in the basement bedroom, more specifically at or very close to the foot of the bed.
The first floor comprises a bedroom, together with a toilet adjacent to the staircase, and the second floor another bedroom, with an en-suite shower room.
From purchase until after the fire, which occurred on Tuesday 22 January 2008, the Claimant occupied the second floor bedroom, together with his partner, a Mr Tony Howe. Within a few months of purchasing the property, the Claimant had informally rented out the other bedrooms: that on the first floor to a Mr Grant Eydmann, and that in the basement to a Ms Rebecca Alexander.
The terms of the policy and the issues for decision
The cover afforded by the policy was subject to exceptions in the usual way. So far as both buildings and contents (as defined) were concerned, the only material exception to simple fire cover was the amount of the excess [C/29/225 & 228], whereas cover in respect of vandalism was subject (so far as is material) to an exception in respect of loss or damage "caused by any of your family" [C/29/226 & 228]. The policy definition of "your family" included the policy holder and "… your spouse, your civil partner … or the person (whether or not of the same sex) with whom you are permanently cohabiting in a marriage-like relationship …" [C/29/220].
The Claimant realistically accepts that Mr Tony Howe falls within the policy definition of his family, and further that "if it is proved by the Insurer that Mr Howe deliberately started the fire, the 'vandalism' exclusion would apply" (opening skeleton paragraph 44; see also closing skeleton paragraph 1).
Having heard the evidence, I am quite satisfied, and I find:
9.1. that there is no evidential support for any cause of the fire which does not involve human agency (in particular, the experts are agreed that there is nothing to suggest that some electrical fault might have been the cause);
9.2. that there was no sign of forced entry to the house, and no realistic way in which, in the minutes after Ms Alexander left, an intruder entering the house through the front door can have gained access to the basement bedroom without being seen by Mr Howe, who throughout this period was either in the kitchen area or in the sitting room, through which anyone so entering the house would have to pass to get to the basement;
9.3. that Ms Alexander and Mr Howe were the only 2 people awake in the house in the time leading up to when the fire started (Mr Eydmann having fallen asleep in his bedroom);
9.4. that there is no realistic evidential basis for suggesting either that Ms Alexander started the fire deliberately (ultimately neither counsel has so contended; as the Claimant's case was put in closing, whilst she "could and might" have done so, "there is no cogent evidence to support [it]") or that Mr Howe started it accidentally;
9.5. that nor is there any realistic evidential basis for suggesting that Mr Howe started the fire recklessly (as opposed to deliberately). Although Miss Nolten at one stage touched on the legal implications of this theoretical possibility, Mr Howe had no proper reason to be in Ms Alexander's room at all after she had left (prior to smelling smoke and detecting a fire which was already ablaze), let alone with a naked flame, and denied being so.
In these circumstances, the Defendant in turn has realistically accepted that nothing is added to its case by the other, more recherché lines of defence pleaded, such as fraudulent device and public policy.
Accordingly, the minimum question left for me to decide is whether Mr Howe started the fire. I now turn to the questions of whether that is all I should decide, and what is the correct approach to the evidence in such a case.
The burden and standard of proof
It is common ground that the burden of proof lies on the defendant insurers. This is because, absent proof of an excepted cause, the Claimant is entitled to recover: his policy was in force, his premium paid, and fire was an insured peril. Hence to avoid liability, the insurer has to prove that the damage resulted from an excepted cause (here, vandalism by Mr Howe).
As in any civil case, the standard of proof is on the balance of probabilities. The apparent simplicity of that statement, however, does not tell the whole story, for one of the two possible causes of the fire which has to be considered would involve the commission of a serious criminal offence by Mr Howe. Fortunately, the conundrum posed by the combination of on the one hand the familiar civil standard of proof, but on the other the principle that the more serious the allegation, the clearer the evidence required to support such a finding (see e.g. Hornal v Neuberger Products [1957] 1 QB 247 (CA)) has been addressed comparatively recently by the House of Lords in Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11. Lord Hoffmann dealt with the point in his speech at [14]–[15]:
14 Finally, I should say something about the notion of inherent probabilities. Lord Nicholls said, in the passage I have already quoted [from In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586] that—
"the court will have in mind as a factor, to whatever extent is appropriate in the particular case , that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."
15 I wish to lay some stress upon the words [shown in bold]. Lord Nicholls was not laying down any rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one's reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator.
Mr Timothy Evans of counsel, appearing for the Claimant, emphasised that the burden of proof is on the defendant insurers, and that it is not about guessing. Accordingly, he submitted, if a number of theoretical possibilities are suggested, but there is no convincing support for any of them, the court should hold that the party carrying the burden of proving one of them has not discharged it: Rhesa Shipping Co. SA v Edmunds (The Popi M) [1985] 1 WLR 948 (HL), in which the decision of the trial judge (Bingham J, [1983] 2 Lloyds Rep 235) was overturned. Another, perhaps more surprising, example is afforded by Ashraf v Akram 22 January 1999 (CA), unreported (cited by Miss Nolten, and considered in Stephens v Cannoninfra). In the present case too, Mr Evans submitted "it is not necessary to decide on any cause as the probable cause".
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