Scottish Court of Session Decisions

In this action the pursuer sues the defenders in respect of losses incurred by him as a result of fire damage on the ground that they are bound to indemnify him by virtue of an insurance policy issued by them.

The pursuer formerly carried on business as a tyre service retailer from premises at Clyde Workshops, Tollcross, Glasgow. The premises which he occupied included Unit K14 which formed part of a rectangular building. The building had a steel frame, and its walls and roof consisted of corrugated metal cladding. Unit K14 had a gable wall on its right hand side (as seen from the front) and it was separated from adjoining units to the left and to the rear by internal walls made of breeze blocks. At the front it had two doors. One was of the roller type and was for vehicles. It could be closed and secured from inside. The other door was for personnel. The unit

was used for the storage of tyres stocked by the pursuer. Tyres were stored on a number of racks: a single rack on the left hand side and on the right hand side of the unit; and two single racks running down the middle.

On the afternoon of 6 June 1992, which was a Saturday, Unit K14 and the remaining parts of the premises occupied by the pursuer were locked up by him and his nephew Alexander Sodden, who worked with him, at about 5.00pm or 5.30pm. At about 12.02am on the following morning the local fire brigade at Cambuslang received a 999 call. They arrived at the premises at 12.11am. Unit K14 was effectively destroyed by fire. Stock and other moveables were destroyed or damaged beyond repair.

The defenders aver that the fire was started deliberately by the pursuer; or that at any rate he connived in the premises being deliberately set on fire by someone else. After a proof the Lord Ordinary sustained this defence and assoilzied the defenders. It was not in dispute that it was for the defenders, who led at the proof, to prove that the pursuer's claim was fraudulent. It was also common ground that, while the standard of proof which was required of the defenders was that of the balance of probabilities (Mullan v Anderson 1993 S.L.T. 835), the nature of the allegation was such that it required to be supported by evidence of good quality.

At the hearing of the reclaiming motion it was clear that the issues between the parties had been narrowed to a significant extent. There were a number of matters about which there was no dispute.

Firstly, it was not disputed that the Lord Ordinary was correct in concluding that the fire resulted from a deliberate act of arson. This was the conclusion of the fire officers who attended and investigated the fire, and of Dr K. Borer and Dr D. D. Drysdale who gave expert evidence in the defenders' and the pursuer's case respectively. The Lord Ordinary noted that, while the fire officers were of the view that the fire must have taken a grip a fairly long time before midnight, perhaps around 11.00pm according to one of them, there was no way in which this could be reconciled with an accidental origin, such as the effect of the dropping of a lighted cigarette at 5.30pm.

Secondly, the evidence showed that whoever had set fire to the unit had not forced his way into it. Sub-Officer Stephen McCaffrey, who was in charge at the fire station, gave evidence that when he arrived the building was red hot and glowing. The metal sheeting had buckled, and the fire appeared to be trying to vent itself through the walls or roof. The sheeting was distorted but intact. It took the fire brigade about half an hour to effect an entry to the unit by which time the fire was apparently abating. The delay in effecting an entry was due to the building being lockfast, the door for personnel being laminated and resistant to the use of a sledgehammer, and the roller door having its guide rails distorted by the fire. The Lord Ordinary observed that the difficulty experienced by the fire brigade in effecting an entry, and the absence of any true vents, was accepted by other witnesses, in his view rightly, as indicating that the fire was unlikely to have been started by any unauthorised intruder having found or created some way into Unit K14 through any gap made in the sheeting of either the walls or the roof. It was clear that the rivets would be hard to shift, and there was no indication of this having been done, far less of any sheet or sheets having been bent and then restored to their original state.

Thirdly, in these circumstances the only way in which a person could have set fire to materials in Unit K14 was if he had use of a key by means of which he could enter the unit or, as suggested by Dr Drysdale, if he had some means of setting fire to the unit from the outside. During the course of the evidence the possibility that the fire had been started by means of persons using the letter box in the personnel door was ruled out. In the event the only possible alternative was the suggestion that someone had introduced fire through a hole at the foot of the sheeting which covered the gable wall on the right hand side of the unit.

Fourthly, the only persons who had a key to Unit K14, along with the other parts of the premises used by the pursuer, were the pursuer himself and his nephew. There was no evidence that either of them had relinquished possession of his key at any time on the Saturday. No suggestion was made at any stage of the proceedings that any suspicion attached to the nephew.

The evidence given by the pursuer was that he had returned to the premises in the evening and left between about 8.30pm and 9.00pm. He was there for about an hour doing paper work in the adjoining Unit K16 where there was an office. He had not gone into Unit K14 or specifically checked it, but the padlock had been in place on its door and all seemed well. He did not return to the premises until his daughter informed him of the fire in the early hours of Sunday morning, following a telephone call from the police. In the meantime he had gone to a club and met friends and had not got home until 1.30-2.00am. Mr Mackie pointed out that the accused had not been cross-examined in detail on his account. It had merely been put to him that, despite what he said, he had set fire to Unit K14. Although his alibi was not corroborated by anyone else, there was no contradictory evidence as to his specific movements. There was no evidence that he had arranged with anyone else to have the premises set on fire.

In connection with the pursuer's evidence Mr Mackie pointed out that the defenders had not led evidence in support of their averments that after the fire the pursuer had made inconsistent statements about his movements and had claimed that the fire had been started by someone who had forced entry to the premises by way of the roof. Further, while the defenders had sought to establish that the state of the pursuer's business had given him a particular motive for wilfully setting fire to his own premises, it was clear that, in the light of evidence given by his accountant, the Lord Ordinary did not accept this. In addition the Lord Ordinary had come to the conclusion that the evidence relating to the alarms fitted to the premises was too uncertain to lead to the conclusion that the fire was due to the involvement of someone who knew how to switch them off. At the same time Mr. Mackie accepted that, standing that the pursuer stood to gain by the fire, the question of his motive had not been completely excluded.

Mr Mackie made it clear that he found little if anything wrong with the facts found by the Lord Ordinary. His concern was with the conclusions which he had drawn from them and the way in which he reached them. The core of the Lord Ordinary's reasoning can be seen in the following passage:

Mr Mackie submitted that, standing that the defenders had failed to make good their attack on the pursuer in a number of respects and the fact that there was uncertainty as to the seat of the fire, and that there was the possibility of vandalism, the Lord Ordinary had gone too far in reaching the conclusion that the pursuer committed arson. The state of the evidence highlighted the importance of the evidence which the pursuer had given as to his whereabouts. The absence of specific challenge to his account reduced the weight which should be given to the evidence relied upon by the defenders.

The passage from the Lord Ordinary's opinion which we have quoted above refers to evidence as to the "seat" of the fire and as to the possibility of a vandal introducing fire through the gable wall. The practical significance of the seat of the fire, and in particular in the sense of the place where it started, lay in its distance from the gable wall. In broad terms, the further it was from the gable wall the more likely it was the case that the fire was set by someone who had gained access to the unit by means of using a key; whereas, if it was nearer to the gable wall, this might go some way to reducing the difficulties inherent in the idea that a vandal had introduced fire through that wall. We turn then to consider the evidence and submissions relating to the seat of the fire, and to the evidence relating to the possibility of vandalism.

Sub-officer Stephen McCaffrey gave evidence that at the back left hand corner of the unit the tyres had been destroyed and the racks had been buckled and distorted. It could be seen that, as one moved towards the front of the unit, the damage became less. In his opinion the fire had burnt from the back of the unit towards the front. The rear left hand side of the unit was the seat of the fire, by which he meant that this was where the fire had burnt most intensely. However, he also stated that the team who investigated the fire were agreed that this was where the fire had originated. The fire had got a grip "somewhere in the close proximity". It was not possible that that kind of intense fire was over to the right because, as you moved from left to right, objects became more recognisable. As far as he was concerned everything pointed to the fire originating in the left rear corner. His colleague Gerald Pentleton spoke to a point at the rear of the unit and between the left and centre racks as being the "seat" of the fire. That normally referred to where the greatest damage had been caused or was evident. There was, he said, much less damage on the right hand wall. That was the least damaged area in the unit. Dr Borer supported the view that the fire had started on the left hand side of the unit. From the appearance of unburned paint at ground level on the outside of the gable wall he interpreted that the fire had not started anywhere along that wall. He explained that one of the frequently used approaches for locating where a fire started was to look for a low area where there had been the greatest burning. A dip in the apex of the roof might indicate that the right hand side of the unit was where it was hot for the longest time, but that did not necessarily indicate where the fire started. A patch of blackening at ground level on the gable - which could be seen on two photographs taken after the fire - pointed to flames or at least smoke escaping at that point through a gap or hole. The most likely explanation was that the sheeting at that point was slightly irregular.

Mr Mackie observed that the Lord Ordinary appeared to have accepted the evidence given by the fire officers that the "seat" of the fire was at the left rear of the unit. However, if what mattered was where the intensity of the fire had been greatest, there was evidence which suggested that this had occurred on the right hand side of the unit. This affected the weight and quality of the evidence given by the fire officers. Mr Mackie pointed to evidence that after the fire the rear wall of the unit was of a lighter colour at the right hand side than on the left. This suggested that soot had been burnt off by a higher intensity of fire. Further, Dr Drysdale had given evidence about the dip in the apex of the roof above the right hand side of the unit. The conclusion that there had been a greater fire on the right hand side than on the left was suggested by the angle which the roof took to the horizontal. Mr Mackie stressed that it was important to remember that there had been some evidence that a large number of tyres had been stacked on the floor between the right hand and the centre racks in an inter-laced fashion. This could have created a bridge between two racks. Even Dr Borer had not disagreed that there were some signs that the fire on the right hand side had been more intense. In the state of the evidence the Lord Ordinary had not been justified in holding that the fire had started in the rear left hand side of the unit. The evidence was at least in a state of equilibrium.

One immediate difficulty with this submission is that it is not clear whether the Lord Ordinary arrived at any such conclusion. He stated merely that despite the degree of uncertainty as to the seat of the fire he was satisfied that it was to the rear of the unit "and quite some way in from the gable wall". It appears likely that he considered that this was as far as he needed to go. Having read the relevant parts of the evidence we are inclined to the view that the Lord Ordinary under-stated the effect of the evidence. He plainly accepted the evidence given by the fire officers as both responsible and reliable. They were supported by Dr Borer on the basis of his own expertise. As regards the dip in the apex of the roof, this was not a matter which was raised in the cross-examination of the fire officers. Dr Borer said that it did not affect his conclusion as to the seat of the fire, and Dr Drysdale accepted that, in order to draw a conclusion from the dip, it was really necessary for him to know the structure of the roof. In our view the Lord Ordinary would not only have been entitled to hold, but should have held, that on balance the weight of the evidence favoured the rear left hand side of the unit as the area in which the fire started.

So far as vandalism is concerned, the Lord Ordinary pointed out that, although there had been past incidents in the area, there was nothing prior to the fire to suggest an identifiable threat to the premises from malicious outsiders, or anything about the premises to tempt one or afford the apparent opportunity for such a person to start a fire by gaining entry or starting an internal fire from outside. However, in the course of his evidence Dr Drysdale said that he believed that there might well have been a hole at the foot of the gable at the point where the paint work was blackened. He maintained that this could not be explained in terms of fire coming out at that level. On the contrary air would have been drawn in. There was a large area of unaffected paint work so there could not have been a significant fire on the inside at that point. The blackening was consistent with an external fire which had deposited a small amount of smoke on the outside surface of the wall. It had either been extinguished or perhaps it had been pushed into the building. There was a possibility that something which had been introduced had caused the fire inside the unit. But, what was not consistent with that was the fact that there was a large area of unaffected paint work. One would have to propose that the burning item was pushed well inside the building clear of the wall; and that the fire developed from this area, assisted by the fact that air would be pushed in. It could be that a burning rag or piece of newspaper had been pushed in with a stick or rod.

Mr Mackie accepted that this evidence presented only a possibility. He claimed that the Lord Ordinary had indicated that the pursuer had to show that the fire was due to vandalism. There was no onus on him.

For the defenders Mr. Campbell pointed out that, alone among the witnesses, Dr Drysdale had attracted criticism from the Lord Ordinary who pointed out that he had acknowledged that elsewhere in the photographs there were indications that smoke had come out at the bottom of the gable wall. The Lord Ordinary observed:

It was all very well for Dr Drysdale to introduce a hypothesis of this kind, but he had not been present to inspect the building after the fire in order to see whether the state of the building was compatible with what he had envisaged. Mr Campbell pointed out that the hypothesis assumed the existence of a hole which was large enough to enable the burning object to be pushed through it. Yet Mr McCaffrey had been unable to find a place through which to direct a fire hose. There was no suggestion in the evidence that at the foot of the gable wall there were holes of any significant size. In any event it had not been put to the fire officers that there were gaps of that kind. This required, of course, to be distinguished from distortion of the panels which was due to the effect of the fire itself. Next, the hypothesis required that someone pushed an already lighted object by means of a stick or rod for some distance inside the unit. It would require to have come into contact with combustible materials and in such a way as to set them alight. Further, since there had not been a fire at a low level behind the gable wall, the hypothetical burning object required to have been pushed further inside the unit. It might be questioned why someone would go to the trouble of pushing a burning object for that distance. Furthermore if it was correct that there was a pile of tyres between the centre and the right hand racks it was difficult to see how tyres in the right hand rack could not have been affected. Finally, it had to be noted that a further difficulty with the hypothesis was that despite a search none of the fire officers was able to find anything in the form of a residue of burnt materials which might have been used as a means of setting fire to the interior of the unit. There was no sign of any liquid accelerant. If someone wished to set fire to tyres in the unit, why would they not seek to set fire to those which were situated in the rack which was next to the gable wall?

These seem to us to be very cogent criticisms of the possibility which was ventilated by Dr Drysdale, a possibility which, it should be noted, was never put to the fire officers who were the only witnesses who had direct knowledge of the state of the unit and its contents after the fire. We consider that the Lord Ordinary was amply justified in taking the view that vandalism was hard to envisage as the cause of the fire. We do not consider that the Lord Ordinary imposed any onus on the pursuer to prove vandalism. In the absence of any alternative explanation the natural, and indeed the necessary, inference was that the fire had been set by someone who had a key to the premises. No doubt, when faced with the possibility raised by Dr Drysdale it was for the defenders to satisfy the Court that this alternative explanation should be excluded, and in our opinion they succeeded in doing so.

In the circumstances we consider that the Lord Ordinary was justified in arriving at the conclusion that arson by the pursuer had to be seen on the balance of probabilities as the explanation of the fire. Accordingly we will refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.