Weightmans successfully defends an electrical contractor at the trial of a claim concerning the cause of a house fire

Weightmans LLP successfully defended a claim brought by Hiscox

Hiscox Insurance Company Ltd v (1) Quendon Interiors (2) Mr Ismail Oral (T/A Precious Marble) (3) T P & N Electrical Contractors Ltd [2018] EWHC 3585 (TCC)

Summary

Weightmans LLP successfully defended a claim brought by Hiscox as an assignee of a cause of action for the recovery of sums paid under a policy of insurance to the owners of a residential property in London, following a fire on 20 November 2010.

Facts

It was Hiscox’s case that the fire was the result of a “tracking fault” caused by water penetration into an electrical panel, housed in the utility room, for the supply and control of lighting at the property. Liability for the said tracking fault was alleged to rest with a flooring contractor, Precious Marble (“PM”) - following the cleaning and resealing works which had taken place during the week leading up to the fire - and/or an electrical contractor, T P & N Electrical Contractors Ltd (“TPN”), who attended the property prior to the fire, including on 19 November 2010, following the replacement by a third party of an electrical component known as a power supply unit (“PSU”).

In particular, it was alleged that TPN was negligent for failing to carry out a proper investigation of the electrical components and wiring; and for leaving the lighting panel energised on the evening of 19 November 2010 in circumstances where it was alleged that TPN was on notice that there might have been a faulty circuit, or an issue with the lighting at the property which was indicative of an electrical problem.

There are two important evidential features of this case which require particular consideration. Firstly, Hiscox’s witnesses had provided various inconsistent written accounts as to the amount of water which PM had been seen to use during its cleaning operation. Hiscox’s initial witness statements referred to the pouring of water by PM. However, those allegations were then abandoned in subsequent witness statements proffered by Hiscox which referred only to the application of water by hand using a sponge. At the trial of this action, some eight years after the incident, one of Hiscox’s witnesses referred for the first time to an alleged conversation with PM about PM’s use of excessive water.

Secondly, the written accounts prepared by and on behalf of Hiscox’s witnesses in the years leading up to the trial were not specific in terms of which lights and areas of the property were said to be suffering an electrical fault. As a result, Hiscox’s forensic experts erroneously assumed that references by the owner of the property to a light in the property that was allegedly not working were a reference to a large light fitting consisting of multiple bulbs. Crucially, clarity on this issue was seemingly not sought until one month prior to the trial following a question raised by PM’s forensic expert. This question prompted a further written statement by one of Hiscox’s witnesses which was inconsistent with her earlier accounts and the assumptions made by Hiscox’s forensic experts. At the trial of this action, the witness in question provided a further inconsistent account as to the lights which were or were not working and, following cross-examination by counsel for PM and counsel for TPN, it became apparent that she had no recollection of a light not working; rather, she only recalled seeing TPN’s electrician in darkness.

Judgment

The court found that the oral evidence presented on behalf of Hiscox, which in combination with the numerous written accounts which had been prepared many years earlier, was “totally contradictory”. In particular, it was held that Hiscox failed to discharge its burden of proof that the source of the water was PM’s cleaning operation (see paragraphs 90 to 96), which was fatal to the claim against PM, even though PM had not established some other cause of the loss and/or damage, per Rhesa Shipping SA v Edmunds (“The Popi M”) [1985] 1 WLR 948.

The court also observed that there was a “distinct lack of clarity” in the presentation of the factual basis of Hiscox’s case against TPN; and Hiscox’s main witness “had paid no particular attention to which lights were working or not and that her real recollection was of what she had been told rather than seen”. The claim against TPN was accordingly dismissed on the basis that Hiscox had failed to establish that TPN was on notice that there might have been a faulty circuit, or an issue with the lighting at the property which was indicative of an electrical problem.

Finally, it was held that in the absence of any evidence of water ingress or water damage to the lighting panel, the cause of the fire could not be determined and the contention that it emanated from a tracking fault within the PSU was based on assumptions of water ingress which the tracking fault hypothesis would then prove. On that point the judge opined: “that is circular and the temptation to engage in that circular reasoning should be resisted when it does not, in fact, fit with the evidence that can be tested”.

Conclusion

The judgment provides a useful reminder to practitioners of the importance of obtaining cogent, clear and timely evidence to support any claim, not least because in its absence a court may conclude that the proximate cause of the alleged loss remains in doubt, with the consequence that the burden of proof will not be deemed to have been discharged, on the basis that “he who asserts must prove”.

Commentary

Commenting on the judgment, Barry Diamond, Senior Claims Technician for Zurich, stated: “at Zurich, we work hard to help our customers understand and protect themselves from risk. This case demonstrates that we support and protect our customers, including during any litigation and through to trial, if appropriate”.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Simon Durkin, Partner on 020 7822 1946 or simon.durkin@weightmans.com, or Amy Nesbitt, Employed Barrister on 0207 842 0835 or amy.nesbitt@weightmans.com, who both acted for T P & N Electrical Contractors Ltd.

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