Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 78
A2759/02	OPINION OF LORD BRODIE in the cause MRS KATHLEEN MARY SELENA McLEAN or TOREMAR Pursuer; against CGU BONUS LIMITED Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Party

Defender: Angus Stewart QC, Iain Armstrong QC, Peter Milligan; The Reid Cooper Partnership, Solicitors

2 June 2009

Introduction

[1] The pursuer is Kathleen Mary Selena McLean or Toremar. She was born on 20 August 1956. She and her husband, the late Christer Arne Toremar were joint proprietors of the Bunrannoch Hotel, Kinloch Rannoch, Perthshire (the "Hotel") in terms of disposition by Clifford Kenneth George, recorded GRS, Perth, on 20 August 1993. The spelling of the names of the pursuer and the late Mr Toremar that I have adopted in this opinion are taken from that disposition, a copy of which is 6/11of process. These are also the spellings in a statement revised and signed by the pursuer which is 7/7. Nothing turns on this but I observe that these spellings are not consistently adopted in the pleadings and in other productions. Christer Toremar died on 13 October 1996. The pursuer continued to run the hotel business. Between 22 March 1997 and 22 May 1998 she was married to one Michael Urquhart and on 4 July 1998 she married Gordon McLean.

[2] The defenders are CGU Bonus Limited. The defenders entered into a contract of insurance (policy number 41 HTL 504134) with the pursuer for the period from 16 August 1999 to 15 August 2000 in respect of risks including loss or destruction of or damage to the Hotel buildings, contents and current money. It is accepted by the defenders that the risks insured under the policy at the relevant time included loss of or damage to the heritage of the Hotel, its stock, business contents and money, by fire.

[3] Early in the morning of Saturday 27 May 2000 (not 28 May 2000 as is averred and admitted on record) a fire was seen to have broken out in the Hotel. In consequence the Hotel was very extensively damaged. At the time there were no residents or anyone else in the Hotel. It was not trading as a hotel, simply as a public house.

[4] The pursuer intimated a claim on the policy in respect of the damage caused by the fire. By letter dated 15 September 2000 the defenders' solicitors voided the policy with effect from 27 May 2000. The basis upon which the defenders claim to be entitled to void the policy is that the fire and consequent damage were the result of a deliberate act of setting fire to the premises either by or on behalf of or with the knowledge and concurrence of the pursuer. The pursuer denies that the fire was set by her or on her behalf or with her knowledge. It is her position that the fire was accidental.

[5] In the action the pursuer, suing as an individual and as executor-dative of her late husband, Christer Arne Toremar, seeks declarator, in terms of conclusion 1, that the defenders are under an obligation to indemnify the pursuer for the losses sustained by her as a result of the fire in terms of contract comprised in a renewal Schedule issued on 3 August 2001 and relative Policy Booklet. The date in conclusion 1 may be a typographical error. The matter was not explored. Nothing turns on it. There are also conclusions for payment to the pursuer as an individual (conclusion 2. (a) and conclusion 3.), and as executrix-dative of Christian Arne Toremar (conclusion 2. (b)) of sums of money by way of damages. No issue arises as to the pursuer's title to sue in respect of her interest as an individual or in respect of her interest as executrix-dative. There is no dispute but that both interests were insured by the policy. The issues between the parties are whether the defenders were entitled to void the policy (which, in turn, depends upon whether the defenders can establish that the pursuer set the fire) and, if not, what sum or sums should be paid to the pursuer as damages for breach of the contract to indemnify.

[6] I heard proof on 1 to 4 July and 18 to 21 November 2008. I heard submissions on the evidence on 17 and 18 December 2008. The pursuer represented herself (she had been represented by solicitors and counsel at earlier stages in the litigation). On 1 to 4 July 2008 the defenders were represented by Mr Angus Stewart QC and Mr Peter Milligan, Advocate. On 18 November 2008 the defenders were represented by Mr Iain Armstrong QC and, again, Mr Milligan. No order had been made prior to 1 July 2008 for the defenders to lead at the proof or for the proof to be split in the sense of different issues being allocated to different diets. At the beginning of the proof diet I canvassed with parties whether it might nevertheless be convenient for the defenders to lead their evidence first in that the fact that the pursuer had suffered loss by reason of an insured casualty did not appear to be disputed and that the defenders had the onus of establishing entitlement to avoid the policy. The pursuer was agreeable to this course, and at my suggestion so moved, but Mr Stewart, on behalf of the defenders, was not. Arrangements had been made on the assumption that the usual order of leading evidence would be followed. Given the position adopted on behalf of the defenders and the fact that the question was raised for the first time, by me, just before the beginning of the proof, I did not order the defenders to lead. The following witnesses were led for the pursuer: Mr Roger Smith, fire investigator and Managing Director and Principal Fire Consultant for BFRS Limited; Mr Gordon Morris, consulting mechanical and electrical engineer; and the pursuer. The following witnesses were led for the defenders: Mr James Smyth; Mrs Marion McNeil; Station Manager Colin Hannigan of Tayside Fire Brigade; Mr Douglas Grant, fire investigator of International Fire Investigators and Consultants ("IFIC"); Mr John Logie, electrical and fire risk engineer; and Dr James Lygate, fire investigator and Principal Consultant of IFIC.

[7] I have encountered different levels of difficulty in determining what has been proved by this evidence. Certain matters were essentially uncontroversial. They comprehend, at least in large part, what is narrated below under the headings: Background, Layout of the Hotel, The Events of 26 to 27 May 2000, Investigation of fire damage to the Hotel, Spread of fire and The Sauna heater. Similarly, I did not understand the factual basis for the assessment of damages, on the assumption that damages fell to be paid, to be controversial. As to the disputed and connected issues as to whether the source of ignition of the fire was a sauna heater and where was the area of origin of the fire, I have felt able to come to firm conclusions on the balance of probabilities by reference to the direct evidence of the findings of the fire investigation and the examination of the heater and the opinions of the expert witnesses. These issues and my conclusions on them are addressed separately under the relevant headings. The more difficult question has been whether it has been proved that the fire was set by or on behalf of the pursuer or with her knowledge and concurrence. That is addressed on the basis of the totality of the evidence, direct and indirect, looked at in the round with a view to determining where the balance of probabilities lies.

Background

[8] The pursuer has five children, four by her first husband, Christer Toremar: Thomas Olaf (18 years old at the time of the fire), Hannah (16), Magnus (11), and Stephen (9); and one child by her third husband, Gordon McLean: Struan (10 months).

[9] The pursuer and her late husband acquired the Hotel in 1993 when they moved to Kinloch Rannoch. Among her other activities the pursuer was a volunteer fire-fighter.

[10] A fire occurred in a Bedroom 10 of the Hotel around about midnight on 31 January 1999. Bed linen caught fire. No cause was identified. There were no guests in the Hotel at the time. Any members of staff and the pursuer's family were elsewhere participating in the celebration of the New Year. The pursuer made a claim against the insurers which was paid.

[11] In evidence the pursuer described her original profession as being that of foreign exchange treasurer specialising in Islamic investment in the third world. She spoke of having been a treasurer and vice-president of an Arab bank and a Scandinavian bank, working with her late husband. In the statement revised and signed by the pursuer, 7/7 of process, she is described as a "Self Employed Economist Specialising in Islamic Investments, Hotelier and Part Time Fire-fighter". In evidence she accepted that she did not have any academic qualifications as an economist but she explained that she was "just extremely clever." She claimed that as at May 2000 she had secured a binding contract of employment in the capacity of foreign exchange treasurer with an Arab-Russian bank in Bahrain and Barbados at an annual salary of $135,000 with associated benefits.

[12] In terms of letter of 10 January 2000 solicitors acting for Barry McNeill and his wife, Mrs Marion McNeill approached the pursuer's solicitors with proposal to purchase the Hotel at a price of £175,000 with entry on 6 June 2000. These terms were repeated in a missive of offer dated 10 April 2000. There had been a previous approach which the pursuer had declined in 1998. An offer to purchase had been made by a Mr and Mrs Edwards in December 1999 but that deal had fallen through. While there may not have been a binding contract, Mrs McNeill, who was at the time employed in hotel industry, confirmed in evidence that she very much wanted to acquire the Hotel and that there was an apparent agreement with the pursuer on the terms proposed. There was, however, the difficulty that the title in favour of the pursuer and her late husband had not included a survivorship provision and as at 28 May 2000 (and indeed thereafter) the pursuer had not taken steps to obtain confirmation as her late husband's executor. As at that date she therefore was not in a position to grant a purchaser title to the Hotel.

[13] In May 2000 Gordon McLean was understood by the pursuer to be seriously ill with cancer and unlikely to live long. This subsequently proved not to be the case.

Layout of the Hotel

[14] The pursuer's productions included a Tayside Fire Brigade Fire Investigation Report, 6/17 of process. This has the appearance of being prepared by more than one officer and to contain information drawn from a number of sources. It includes what bear to be statements by fire officers, plans and photographs. Within it is a section entitled Fire Investigation Officer's Report dated 6 July 2000, prepared by and spoken to in evidence by Station Manager Colin Hannigan, who, at the date of his report held the rank of Station Officer, Fire Safety. The Fire Brigade Report describes the Hotel as a traditionally built hotel, some 45 metres by 30 metres in dimensions and approximately 100 years old. External and internal load-bearing walls were of stone. Partition walls were of timber stud and plaster with either sawdust or fibre glass deafening. There were no cavity barriers. Roof voids were not divided.

[15] Included with the Fire Brigade Report are nineteen numbered photographs. Photograph 1 is a view of the front elevations of the Hotel taken prior to the fire. Also included with the Fire Brigade Report are plans of the Hotel to which have been added circled numbers with attached directional arrows. The numbers correspond to the positions from which photographs 1 to 16 were taken. The arrows indicate the direction of shot.

[16] As can be seen from photograph 1 in the Fire Brigade Report, the Hotel included two wings with pitched slated roofs meeting at a right angle. Within the right angle formed by the two wings there was a single storey flat roof extension which, to judge from the plan, contained a tea room and foyer/lounge. The extension ran along the full length of what the pleadings describe as the main southwest wing of the Hotel. The other wing is described as the main bedroom wing. Although the roof ridges of the two wings were at the same height, as is confirmed by the plans, there were two storeys in the south west wing but three (ground, first and second) in the bedroom wing. As appears from photograph 1, the second floor rooms in the bedroom wing were fitted with dormer windows. Two large chimney stacks protrude through the roof of the bedroom wing. Between the chimney stacks there is a dormer window. This was the window of what was described as the sauna room. Immediately below the sauna room, at first storey level, was a bedroom designated Bedroom 9. The windows of Bedroom 9 can be seen in photograph 1 with the foliage of a climbing plant on either side. The external appearance of the sauna room and Bedroom 9 after the fire is shown in photograph 3 of the Fire Brigade Report and in photograph A/2 of number 7/18 of process, the Draft Preliminary Report dated 30 May 2000 and written and approved by Dr Lygate of IFIC (the "IFIC Preliminary Report").

[17] The bed in Bedroom 9 was positioned in what was described as the rear corner of the room. That part of Bedroom 9 is illustrated in photographs A/50 and A/55 of the IFIC Preliminary Report.

[18] At the end of the bedroom wing adjoining the southwest wing was a stairwell. Immediately adjacent to the stairwell and within a part of the Hotel built out beyond the rear elevation of the bedroom wing, was, at first storey level, a linen cupboard and laundry room. The laundry room, identified by a marker, is shown in photographs A/4 and A/5 of the IFIC Preliminary Report. Corridors ran along the rear elevation of the bedroom wing at ground, first and second storey levels, giving access to the rooms at these levels. The door of Bedroom 9 gave onto the same first storey corridor as did that of Bedroom 10.

[19] The sauna room on the second storey above Bedroom 9 was not purpose-built. Rather, a sauna cabin, approximately 2.5 metres by 2.5 metres in plan and about 2 metres in height, had been erected within what originally had been a bedroom. The sauna cabin had inner and outer walls of wood with insulating material between the two walls. In the sauna room was a shower, WC and changing area. Inside the cabin was a wall-mounted sauna heater of a type similar to the heater which is described and illustrated in diagrammatic form in Appendix 1 to Mr Smith's report of 10 February 2006, number 6/18 of process.

[20] Adjacent to the sauna room was a bedroom occupied by Hannah.

[21] On the rear elevation of the bedroom wing there was a fire escape allowing egress from the first and second storey corridors. It is shown in photograph A/4 of the IFIC Preliminary Report.

The events of 26 to 27 May 2000

[22] Late on the evening of 26 May the pursuer left the Hotel by car together with all her children other than Thomas, and her dog, Millie, to visit her parents in England. The pursuer's time of departure was after 11.30 pm.

[23] Thomas was working that evening as a barman in the neighbouring Loch Rannoch Hotel. He was accommodated in a cottage adjacent to the Hotel which was referred to as the "Shack".

[24] The pursuer accepted that, as far as she was aware, she was the last person in the bedroom wing prior to the fire, possibly a little before 11.30 pm on 26 May 2000. It was she who locked up the Hotel. No one could have left the Hotel after she did. The pursuer accepted that prior to leaving the Hotel for the last time she had been in the bedroom wing, having climbed up the stairwell to the second storey and stepped beyond the fire door there in order to call Hannah from her bedroom. She did not smell burning. The pursuer did not accept having been in Bedroom 9 or on the first storey on that occasion but, on her own account, she must have passed the door from the stairwell leading on to the second storey corridor on which Bedroom 9 was situated, both on the way up and on the way down.

[25] There were two sets of keys to the Hotel. I understood from the pursuer's evidence that these were not complete sets in the sense of each set having keys to all locks. Having locked up the Hotel, the pursuer took one set to the Loch Rannoch Hotel and gave it to Thomas. She left the other set for him in the Shack.

[26] It was put to the pursuer that she had plenty of time to set a fire in Bedroom 9 before leaving the Hotel late on 26 May. She denied this and she described bringing Hannah down from the second storey with her as she moved out of the Hotel locking doors. It would seem unlikely, if she did set the fire, that the pursuer would do so when Hannah or anyone else was with her, but on the pursuer's account she was alone as she climbed the stairwell and there is the possibility that she could have gone into Bedroom 9 while still alone and before fetching Hannah from the second storey. It is also a possibility that having called Hannah from her bedroom she sent her on ahead of her down the stairwell or otherwise left her in order to go into Bedroom 9. A further possibility is that having locked up the Hotel she re-entered the main bedroom wing shortly thereafter. Accordingly, having regard to what is possible on the basis of the pursuer's own evidence, she had an opportunity to go into Bedroom 9 at about 11.30 pm and therefore to set the fire. She denied on oath having done so.

[27] Neither the burglar alarm nor the CCTV system at the Hotel was operational on the night of 26 to 27 May 2000. Burglar alarms are equipped with tamper circuits which when burned through when operational sound the alarm.

[28] In the early hours of 27 May Thomas was entertaining some friends in the Shack when there was an electrical power failure. On investigation Thomas noticed smoke coming from the roof of the Hotel. He called Tayside Fire Brigade. The call was timed at 0138 on 27 May 2000. The arrival of the first fire appliance was timed at 0147.

[29] It would appear that Thomas was not aware or at least not certain that Hannah had left the Hotel with the pursuer in that he attempted to get access to her bedroom by way of the fire escape in order to find out if she were there. He was unable to do so because of heavy smoke.

[30] I heard no evidence to suggest that anyone had forced or obtained entry into the Hotel, either from the fire escape or otherwise, subsequent to the pursuer locking up on 26 May 2000 and prior to discovery of the fire. According to Mr Smith the police and Fire Brigade ruled out the possibility of there having been a break-in. The IFIC Preliminary Report includes the information that the spirits and alcohol in the public and cocktail bars were undisturbed and the cigarette and gaming machines in the public bar were untouched.

Area of origin of the fire: the issue

[31] It is averred and admitted that the fire caused damage "throughout most of the main south west wing and the adjacent area of the main bedroom wing" of the Hotel. On the pleadings two alternative sites are suggested as the area of origin of the fire. The pursuer avers, at page 16A of the Closed Record: "It most probably started in the sauna room on the second floor, which was directly above Room 9. An electrical switch for the sauna's heater may have been left on inadvertently, possibly by the pursuer's daughter Hannah. An electrical wiring fault is a slight possibility of a cause." The defenders aver, at page 17E: "The fire had a single seat to the right of the bed in bedroom 9."

[32] Before going further it is convenient to clarify the terminology used in relation to the location of a fire. I adopt the definitions provided by Mr Grant and Dr Lygate which Mr Grant explained were taken from the glossary in Kirk's Fire Investigation by John De Haan. The source of ignition is the mechanism that causes a fire to ignite. A burning match, for example, might be a source of ignition. The point of origin is the place where the fire first ignites. If the burning match were to be applied to a bed and the bed was set on fire as a result and the fire thereafter spread, the bed would be the point of origin of the fire. An area of origin is the space within which a fire has ignited. A seat of fire is an area from which a fire develops and spreads. In any fire there may be a number of seats of fire.

[33] The pursuer therefore implicated the sauna heater as the source of ignition and the sauna room as the area of origin. That is the position which was supported by Mr Smith in his reports 6/1 and 6/18 of process and was maintained by him in evidence. A mechanism explaining how the sauna heater could reach a sufficiently high temperature to act as a source of ignition was spoken to by Mr Morris. It is set out in his report 6/19 of process. The defenders' position on Record, that the area of origin of the fire was Bedroom 9 and that the sauna heater played no part in ignition, was that adopted by Mr Grant and Dr Lygate, following on an examination of the sauna heater by Mr Logie, as appears from the IFIC Report of Outcome of Further Investigations, 7/19 of process (the "IFIC Further Report").

Investigation of fire damage to the Hotel

[34] Roger Smith was instructed on behalf of the pursuer through her loss assessors, Balcombes. He attended the Hotel on 29 May 2000. He inspected both Bedroom 9 and the sauna room. IFIC were instructed by Crawford & Co, loss adjusters. Dr James Lygate went to the Hotel on 28 May and remained there on 29 May. Douglas Grant of IFIC attended on 1 and, again, on 7 and 8 June 2000 when a chimneystack which had been identified as being in a dangerous condition was dismantled. He examined the second floor area including the sauna room in the company of Mr Smith and Station Officer Hannigan.

[35] Both the sauna room and Bedroom 9 were found to have sustained extensive fire damage.

[36] The window double glazing and frames of Bedroom 9 were destroyed, as appears from photograph 3 of the Fire Brigade Report which shows part of the front elevation of the bedroom wing. Above the space in which the window frames would have fitted there were soot patterns whereas elsewhere external windows were relatively clean and the eaves undamaged. This is consistent with a fire developing in Bedroom 9, the double glazed windows failing as a result (whether due to a pressure or temperature differential as between the inside and the outside) and the products of combustion venting outwards and upwards in the form of smoke.

[37] Soot staining above the first floor corridor window in the rear elevation of the bedroom wing, illustrated in photograph A/5 of the IFIC Preliminary Report, is consistent with products of combustion from Bedroom 9 venting from that window, having escaped by way of the partially open door to the bedroom.

[38] There was fire damage to the floor of Bedroom 9 and charring to the underside of the bed frame suggestive of the development of the fire at floor level. There were significant soot deposits which were consistent with there having been a slow burning fire in Bedroom 9. Dr Lygate spoke to a "V" burn pattern in the rear corner of Bedroom 9, as illustrated in photographs A/50, A55 and A/57 of the IFIC Preliminary Report which is consistent with a fire with a low point of origin burning upwards.

[39] There would have been a high fire load, that is a significant quantity of combustible material available to fuel a fire in Bedroom 9 prior to the outbreak. This included bedding, carpeting, and furniture. The walls of Bedroom 9 were timber lined. The bed and other furniture which had been in Bedroom 9 were extensively damaged but parts remained intact after the fire. The headboard of the bed survived. It was charred. The timber lining of the walls was charred.

[40] There were signs of fire having vented out of what was understood to have been the open door of Bedroom 9 and into the second storey corridor. There was only limited damage to the en suite bathroom of Bedroom 9.

[41] Photographs A/40 and A/41 of the IFIC Preliminary Report show what remained of the sauna cabin after the fire. The sauna heater can be seen in foreground of A/41 protruding into a hole, indicated by a marker, which extended through the floor of the sauna room and the ceiling of Bedroom 9. Photograph 4/48 of the IFIC Preliminary Report is taken within Bedroom 9 and shows the same hole from below with the heater protruding. This is one of two holes which were found in the ceiling of Bedroom 9 and the floor of the sauna room. I shall refer to it as the "larger hole" and the other hole which was above the position of the bed in Bedroom 9 as the "smaller hole". Photographs 17 and 25 in Mr Smith's report, number 6/18 of process, are rather closer views of the heater in the position where it was found. The position of the sauna heater within the hole is at least suggestive of the heater having in some way caused the hole to develop. That was what was suggested by Mr Smith and by the pursuer when cross-examining the defenders' witnesses: that the heater had become very hot, that it became detached from its mounting on the wall, fell forward and then burned the larger hole through the floor of the sauna room.

[42] Bedroom 9 and the sauna room were divided by timber joists, approximately 10 inches deep. The underside of the joists was lined with timber. Above that was another layer of timber supporting sawdust deafening. On top of that there were the floor boards of the sauna room. Within the sauna cabin there was a further layer of decking. The larger hole was therefore through four layers timber and a layer of sawdust. Compacted sawdust does not burn quickly.

[43] Some areas of the sauna room showed signs of significant charring while others remained relatively intact. Whereas the larger and the smaller holes had been burned through what was the floor of the sauna room, there were areas of decking in what had been the sauna cabin that were relatively intact. There was charring outside the area which had been occupied by the sauna cabin. The roof of the sauna cabin had been destroyed but not the ceiling of the sauna room. This suggested to Station Officer Hannigan that there had been a jet of flame venting from below through a limited opening such as that provided by the larger hole, a view shared by Mr Grant and Dr Lygate.

[44] The underside of the floorboards in the sauna room was charred as were the joists on which they were supported. The joists demonstrated an "arching" pattern of fire damage on the underside, as Station Officer Hannigan put it, or "curved char" as Mr Grant put, that is that the greatest degree of fire damage was at the midpoint. This can be seen in photograph 10 of the Tayside Fire Brigade Fire Investigation Report. This is consistent with the source of heat being beneath the joists and therefore in Bedroom 9.

[45] The thick supporting timbers of the dormer window of the sauna room were substantially burned through causing the dormer to collapse.

[46] Included in the Fire Brigade Report is photograph 18. It was not established who took this photograph but it bears the photographically recorded date "27 May 2000" and it was accepted that it appeared to show the front elevation of the bedroom wing early in the course of the fire fighting operation. There are figures that can be identified as fire fighters. Fire can be seen at what Mr Hannigan identified as the window of Bedroom 9. There is no sign of fire from the window of the sauna room. It was Dr Lygate's understanding, based on what he was told, that the fire fighters first attacked, and suppressed, the fire in Bedroom 9. When they first arrived the products of combustion were not venting from the window but shortly thereafter they did so. What is suggested by the photograph and the reported action of the fire fighters in concentrating first on Bedroom 9 is consistent with the fire being better developed there than in the sauna room at the time of the arrival of the Fire Brigade.

[47] No evidence was found either in Bedroom 9 or the sauna room indicating the presence of an accelerant such as petrol or an introduced fuel such as paper.

[48] The fire would have generated a very high temperature within Bedroom 9 and the sauna room. An indication of that is that the aluminium tray which was positioned under the sauna heater melted during the fire. The melting point of aluminium is about 600 degrees centigrade.

Spread of fire

[49] Dr Lygate explained the development of a fire in a room as the burning of combustible gases given off by the materials in the room as they degrade under the effects of heat producing flames and smoke. Flames and hot gases radiate heat to the unburned surfaces of flammable materials, heating them up, causing them to degrade and give off their combustible gases and so allowing the fire to spread. Flames and hot gases rise. The gases need the oxygen in air to burn. They effectively seek air. When a fire has started in a room flames will rise towards the ceiling and once there spread out across it.

The sauna heater

[50] As previously noted the pursuer implicates the sauna heater as the source of ignition of the fire. The parties were at issue as to whether this was possible.

[51] The wall socket supplying the sauna heater was found to be live when tested on site by Dr Lygate. The electric socket plug was intact as was its fuse. However, the control switches on the heater had been destroyed in the fire and it was not possible to determine if they had been in the "on" or "off" position immediately prior to the fire.

[52] The sauna heater was removed from Hotel by Mr Grant on 8 June 2000. It was examined by Mr Logie whose report, dated 20 June 2000, is attached to the IFIC Further Report. Mr Logie's examination involved dismantling the heater. The parts were later made available to Mr Morris who made his examination in February 2006. Mr Morris's report, dated 22 February 2006, is 6/19 of process. Having read Mr Morris's report Mr Logie re-examined the by now dismantled heater on 31 October 2008.

[53] Mr Logie found that the heater took the form of a double-skinned box of sheet steel enclosing three mineral insulated tubular heating elements. The heating elements were positioned within the inner casing. The outer casing of the box had a bronze decorative finish. The rear panel was galvanised, as was the inner casing. At the top was a basket of plated steel mesh designed to hold stones which would be heated by a convective air flow from the elements. The design allowed water to be poured onto the heated stones to create steam.

[54] The controls for the heater were enclosed in a control box, located at the bottom of the front panel, which also served as an electrical terminal box for the supply cable. The outgoing supply from the control box to the heating elements was by way of solid copper wire insulated by a woven glass fibre sleeve designed to withstand high temperature. Mr Logie found the electrical connections to be secure and tight.

[55] The front panel of the control box contained two rotary control switches. The two control knobs had been consumed by the fire and only the metal shaft or spindle of one of the controls remained. One control was initially described by Mr Logie as a multi-way rotary switch but, when he re-examined the heater, he identified a small motor associated with the control that indicated it to be a timer. The timer control would have allowed a maximum period for the operation of the sauna to be selected, probably no more than 60 minutes, after which the heater would shut off. The other control was a thermostat, in other words a device to control temperature, the purpose of which was to switch the heating on and off in order to maintain the sauna at a particular temperature. The desired temperature could be selected by adjustment of the appropriate knob. Operation of the thermostat would prevent the temperature rising above the selected level. The mechanism of the thermostat included two fine capillary tubes. Each tube was connected at one end to one of two temperature sensing bulbs located in the gap between the inner and outer casings at the front of the heater. The other end of each tube was connected to a chamber, part of which was a diaphragm. When in operation each of the two closed systems of sensing bulb, tube and chamber was filled with a fluid (possibly a heavy alcohol or glycerine) which would expand and contract as the temperature of the air in the space between the inner and outer casings, and therefore the temperature of the sensing bulbs, increased and decreased. As it expanded the fluid in the system would be displaced along the capillary tube, fill the chamber and exert pressure on the diaphragm which in turn operated an electrical switch and turned off the electrical supply to the heater elements. The two closed systems had different functions. One, which incorporated the longer and thinner sensing bulb (otherwise "sensor"), was to permit a user of the sauna to set the level of heat generated by the heater and therefore the level of heat in the sauna cabin by turning the control knob to an indicated temperature or point on a scale of temperature. Turning the knob determined the amount of displacement of the diaphragm which was required to switch the heater off by adjusting the position of electrical contacts. That system allowed the switch to turn the supply on again when the temperature began to drop and the fluid contracted, so relieving the pressure on the diaphragm. This temperature control process accordingly would operate in a cyclical manner without further human interference. The other system which included the shorter and fatter bulb acted as a high temperature shut-off device. Information obtained from the manufacturer (Cotherm) by Mr Morris indicated that the high temperature shut-off was designed to cut the electrical supply once the temperature reached 120 degrees centigrade. In that event the high temperature shut-off would have had to have been manually reset before the sauna heater could again operate.

[56] Photograph A/13 of the IFIC Further Report shows the heater lying on its side with its front facing left. Mr Logie's gloved hand can be seen in the photograph in contact with the bottom surface of the control box. In photograph A/14 the control box has been unscrewed from the securing plate and withdrawn, pulling with it the heating elements which are indicated by a marker. The two copper capillary tubes are visible. An end of each leads into the control box. The other end of each tube leads into the space between the two casings of the heater. The heater is lying on its back. Photograph A/16 shows a view of the heater standing vertically, taken from the rear and therefore displaying its galvanised rear panel. Lying on the ground is the mounting plate which would have been used to attach the heater casing to the wall.

[57] The temperature sensing bulbs are illustrated in photograph A/15 of the IFIC Further Report, indicated by markers (erroneously) entitled "thermocouple". They were found by Mr Logie to be ruptured due, in his opinion, to excessive internal pressure. That indicated to Mr Logie that the bulbs had been subjected to a temperature much higher than that for which the heater was designed. The appearance of the points of rupture of the two bulbs is different. The longer thinner bulb exhibited a longitudinal split. The shorter fatter bulb had burst open "like a flower".

[58] Mr Logie explained that a purpose of the double-skinned construction of the heater was to avoid its outer surface becoming so hot that it would present a risk of serious injury to anyone in the sauna cabin who inadvertently touched it while it was in operation. The double skin would permit a circulation of air between the inner and outer casings. Mr Logie estimated that the temperature of the outer casing would not exceed 60 degrees centigrade notwithstanding that the temperature of the heater elements could be expected to reach several hundred degrees centigrade.

[59] According to Mr Logie, he found no evidence of electrical arcing in his examination of the sauna heater. He concluded that insulation would have been intact and serviceable. As I have already indicated, electrical connections appeared to be secure and tight. There was nothing to suggest a short circuit. The circuit through the heating elements was found to be continuous and to have a satisfactory insulation level. The elements were undamaged. There was no sign of the remnants of combustible material adhering to the casing or components of the heater such as might indicate that something had been left on top of the heater and had ignited. On the internal surface of the inner casing there were no signs of the zinc coating of the steel having melted or oxidised, notwithstanding the exposure of the heater to the effects of the fire. Mr Logie explained this absence of degradation of the zinc notwithstanding its exposure to the fire as being by reason of the convection of hot gases past the internal surfaces of the inner casing and the protective effect of the double skin of the heater.

The sauna heater as a source of ignition

[60] It was Mr Logie's opinion that nothing in his inspection of the sauna heater in June 2000 indicated that it had acted as a source of ignition. Mr Morris's report, to which he spoke in evidence, challenged that opinion. On the basis of his examination Mr Morris agreed that the sensing bulbs had ruptured by reason of excessive internal pressure. However, whereas Mr Logie attributed this to a rise in the ambient temperature of the sauna room consequent on the fire (which Mr Morris accepted would have been sufficient to result in bursting of the bulbs), Mr Morris argued that the ruptures had occurred prior to the fire, so disabling the thermostatic controls and allowing the temperature of the external surfaces of the heater to rise unchecked in the event of the power supply to the heating elements being left on for a prolonged period. Mr Morris supported his argument by information obtained from the manufacturer of the thermostat (Cotherm) and by what he reported as having found on examination. Cotherm had advised that the bulb would rupture at about 400 degrees centigrade but that the capillary tube would rupture at about 260 degrees centigrade and the diaphragm would rupture at a temperature below that. In that a failure of any of these components would have the result that the fluid contained by the system would escape, assuming the accuracy of these figures, correspondence of the bulbs to their design specification and a sufficiently gradual rise in temperature affecting the system in a relatively uniform manner, logic would suggest, as Mr Morris pointed out, that the bulbs would never rupture by reason of excessive internal pressure affecting the whole system. Mr Morris's explanation as to why the bulbs had in fact ruptured, at a temperature of perhaps 200 degrees centigrade rather than the temperature of 400 degrees advised by Cotherm, was that their walls were, at least locally, thinner than what he took to be the full wall thickness of 0.85mm. He had measured wall thickness around the rupture line on the high temperature shut-off sensor (the shorter fatter bulb which had blown open "like a flower") at between 0.38 and 0.52mm. He had not measured the wall thickness of the temperature control sensor (the longer thinner bulb) because he was unable to do so. At paragraph 4.2.3 of his report Mr Morris postulates that "It is entirely possible, because of stress concentration effects around the area where the wall thickness of the sensor has been reduced, that the temperature required to rupture the sensor would be substantially less than 200 degrees centigrade." On cross-examination Mr Morris explained that his best estimate of the temperature at which the bulbs would burst would be about 200 degrees centigrade. That estimate was derived from his assumption that the bulb's design wall thickness was of the order of 0.85mm whereas he had measured the wall thickness of the shorter and fatter bulb down to 0.38mm. If a 0.85mm wall would burst at 400 degrees centigrade, so went his argument, a 0.38 wall might be expected to burst at 200 degrees centigrade.

[61] Mr Morris accepted that the wall of the shorter fatter bulb would thin as it expanded under pressure before bursting but he attributed the thinning which he thought that he had found to degradation of the bulb by reason of the effects of corrosion.

[62] Mr Morris further accepted that, in addition to the adjustable temperature sensor and the high level shut-off sensor, there was probably a timer designed to shut off power to the heater elements after a pre-determined period. Such a timer is described in the material included in the appendix to Mr Smith's report, 6/18 of process and had been found by Mr Logie on his re-examination of the heater. I accept that there was such a timer fitted to the sauna heater with a probable maximum time before shut-off of 60 minutes.

[63] For the sauna heater to be the source of ignition of the wood within the sauna cabin electrical power would, in Mr Morris's opinion, have to have been on for a period of at least between 85 and 100 minutes. I did not understand that estimate to be disputed.

[63] Having regard to the evidence of both Mr Morris and Mr Logie I conclude that it is highly improbable that the sauna heater was the source of origin of the fire.

[64] Mr Logie presented as a careful witness. He explained that his instructions from IFIC were to carry out a straightforward inspection and to provide an opinion: an exercise in objective observation and the drawing of any conclusions that might arise from that. His observations and conclusions exclude the possibility of the sauna heater being the source of ignition. I accept that to be the case. Insofar as that has required me to prefer Mr Logie to Mr Morris that is what I have done, although I see the issue as being determined more on the basis of undisputed observations and logical deduction than a simple preference for one opinion over another. I do not see that as implying any criticism of Mr Morris. He is well qualified. I accept him as an honest witness but, although he said in cross-examination "I don't make cases", my impression was of someone advancing an argument, an honest argument no doubt, but an argument nevertheless. To an extent, Mr Morris conceded as much when he accepted in cross-examination that he had not approached the issue as to whether the heater could have been a source of ignition as a fully open question. It seemed to me that he had in fact sought to make a particular case.

[65] I do not accept that it was established that either bulb was degraded by corrosion. They were constructed from copper tubing. Copper is a relatively inactive metal which is often used for water pipes and roofing. When it oxidises it develops a stable patina. It does not flake. Mr Morris did not claim to see signs of corrosion. Mr Logie looked for such signs, in particular pitting, and did not find them. Mr Morris's supposition that there had been degradation in the bulb wall thickness was based on his measurements of one of the bulbs (the shorter and fatter bulb). He was unable to measure the other. Mr Logie did not dispute the accuracy of the measurements which Mr Morris had made but he advanced an explanation that I found persuasive. The bulbs were manufactured from 5mm nominal diameter tube with a wall thickness of 0.5mm. If that does not comply with a British Standard, as the pursuer maintained in her cross-examination of Mr Logie, that may be due to the French manufacture of the thermostat but whether or not that is the explanation (and the British Standard was not proved by reference to any document or otherwise) I accept Mr Logie's explanation of Mr Morris's measurements. Mr Logie described the technique of swaging, the purpose of which is to reduce the diameter of a tube but which has the effect of increasing the thickness of the wall. This would explain the measurement of wall thickness at 0.85mm. The thickness of 0.38mm was explained by the expansion or ballooning of an increasingly ductile copper tube at a temperature in excess of 200 degrees centigrade with consequent thinning of the wall, as Mr Morris accepted could occur as an effect of increasing internal pressure. Accordingly I do not consider Mr Morris's suggestion that there had been thinning of the bulb walls by corrosion to have been established.

[66] It follows, on the information before me, that the undoubted fact that the bulbs had burst would indicate that they had been exposed to a temperature of at least 400 degrees centigrade, as would have occurred in the fire. I noted the evidence of Mr Morris, based on what he had been told by Cotherm, that one would not expect the bulbs to burst by reason of excessive internal pressure in that the temperatures at which other parts of the closed system (the capillary tube and the diaphragm) would fail were significantly lower than that. For his part, Mr Logie was sceptical as to whether it was possible to calculate the points at which various components of the system would fail. That the bulbs had ruptured meant that the respective capillary tubes and diaphragms had not failed. The salient fact would appear to be that rupture of the bulbs could be explained by exposure to the levels of temperature that would be generated in the fire. This is what I find to have occurred. The only alternative explanation was that heat generated by the heater (prior to the fire) had sufficiently raised the temperature between its walls to cause both bulbs to fracture notwithstanding two thermostatic and one timed shut-off mechanisms. I consider that unlikely. The theory depends upon the proposition that the walls of the bulbs were degraded by corrosion. I do not accept that that occurred. There was no disagreement as to the facts that the heater was designed to operate in such a way that the temperature of the external surfaces did not exceed 60 degrees centigrade and the temperature in the space between the outer and inner walls (where the sensing bulbs were located) did not exceed 120 degrees centigrade. The heating elements would be hotter than these temperatures but they were shielded from contact with the outside. As Mr Morris confirmed, temperatures of 60 or 120 degrees are not such as to ignite wood. There were three independent mechanisms to control the temperature of the external surfaces of the heater: the temperature control operated by the user which maintained the desired temperature by cyclically switching the elements on and off, the high temperature cut-off operating at 120 degrees which once off required to be re-set, and the timer control which might be set by the user but which would shut off the heaters after a maximum of 60 minutes. Accordingly, even if the bulbs were capable of rupturing at a temperature below the 400 degrees suggested by Cotherm, let us say at the 200 degrees postulated by Mr Morris, the thermostat would have shut off electrical power before that happened by operation of the user operated control or, if that did not operate for any reason, by the high temperature shut-off. Even if it were to be assumed that the thermostat did not operate, and the only explanation for that happening which was put forward in evidence is a low temperature rupture of the bulbs at a point before the thermostatic controls have switched off power as postulated by Mr Morris and which I have rejected as improbable, the timer would have cut off power after no more than 60 minutes. That period, according to Mr Morris, would have been insufficient to lead to the ignition of the wood in the sauna cabin, even taking the temperature of the outside of the heater to be what he was prepared to assume it might reach.

Inferences drawn by the expert witnesses as to area of origin

[67] All the expert witnesses agreed that there were only two candidates for the area of origin of the fire: the sauna room and Bedroom 9. The other possibilities had been ruled out. There was a divergence of view as to the likely area of origin and therefore point of origin of the fire.

[68] Mr Smith considered, but excluded, Bedroom 9 because he considered that there was no source of ignition which could explain a fire originating there. He accepted that there was, on the basis of the appearance of the fire scene, a case for Bedroom 9 as the area of origin but only if there was an identified source of ignition. He accepted that the most important factor for him in choosing sauna room as the area of origin was the availability within the sauna of the sauna heater as a source of ignition. He also accepted that the key to his opinion that the area of origin was the sauna room was that the sauna heater was found lying on the floor of what had been the sauna cabin and that the timber joist directly below it was severely charred. He accepted "fully" that if the fire originated in Bedroom 9, human agency must have been involved deliberately to introduce a source of ignition but the explanation he put forward for what had been found during the fire investigation was that Bedroom 9 had become involved by reason of the dropping of burning embers from a fire which had originated in the sauna room with a consequential slow burn and accumulation of soot within the bedroom. On this view the fire would have initially burned downwards creating a hole in the floor of the sauna room and the ceiling of Bedroom 9 (the larger hole) but then burned back up once it had taken hold in the lower room. This would serve to obscure directional indicators suggestive of burning down by reason of directional indicators of burning up being superimposed. However, Mr Smith accepted that there were directional indicators of burning up whereas he could not point to directional indicators of burning down.

[69] Station Officer Hannigan accepted that it was possible that the fire had started in the sauna room and smouldered through the floor and into Bedroom 9 below. However, he regarded it as probable that the area of origin was Bedroom 9. His reasons for preferring Bedroom 9 were, first, that destruction of the window of Bedroom 9 and the venting of the products of combustion were to be explained by a build up of pressure in that room (and the corridor, in that it was accepted that the bedroom door was open), pointing to this having occurred before the larger hole had burned through. Bedroom 9 was the only room where there was evidence of fire venting in this way. Second, as already noted, his interpretation of the pattern of fire damage in the sauna room was that it was consistent with a jet of flame venting through the larger hole. Third, it would have required a substantial fire to burn down through the sauna room floor but the sauna cabin had not been entirely destroyed. Thus the extent to which the sauna room had been spared from further damage pointed in his opinion to the fire having initially burned up from Bedroom 9. Station Officer Hannigan offered the view the view in examination-in-chief that it was probably a case of malicious ignition but he gave no reasons for that view and in cross-examination by the pursuer departed from it. He accepted in cross-examination by the pursuer that in cases of wilful fire-raising there are typically a number of areas of ignition.

[70] Dr Lygate did not support one of the premises of Mr Hannigan's reasoning: a build-up of pressure being required for windows to fail. Dr Lygate explained the failure of the (double glazed) window in terms of a temperature differential as between inside and outside rather than a pressure differential. I prefer Dr Lygate on this point for the reasons given below. Dr Lygate also challenged Mr Hannigan's supposition that the air supply to any fire in the sauna cabin might have been limited. He pointed out that the cabin had ventilation holes at floor level.

[71] Mr Grant and Dr Lygate collaborated. The IFIC Further Report is a joint work. However, the author of the IFIC Preliminary Report is Dr Lygate alone and the report to Crawford & Company, dated 13 June 2000 is by Mr Grant. In their opinion the appearance of the fire scene suggested a rising fire with an area of origin at or about the bed and bedside unit that had been placed by the wall in Bedroom 9. This rising fire penetrated the ceiling of Bedroom 9 and created at least two holes. The larger hole was situated under the sauna cabin. Mr Grant pointed to the degree of damage to the ceiling of Bedroom 9, the severe damage to the timber joists supporting the floor above, the rising burn patterns going up the wall, and destruction of the bed and headboard as all being indicative of Bedroom 9 being the area of origin of the fire. However, Mr Grant could not identify a source of ignition.

[72] As I have indicated, in Dr Lygate's opinion the area of origin was Bedroom 9. The point of origin was at the side of the bed close to the corner of the room. He considered that the fire had burned for something of the order of two hours before being effectively attacked and, in the case of Bedroom 9, extinguished. He could not determine a source of ignition. He excluded the bedside light and its plug and socket and the pendant light as sources of ignition. He was driven to the view that fire must have been started by some means involving human agency. The fire might have been caused by a dropped light, whether dropped deliberately or accidentally. He could not exclude the possibility that the fire was the result of the deliberate act of the pursuer.

[73] Dr Lygate posited the fire creating holes in the ceiling of Bedroom 9 and floor of the sauna room and then venting through. He could not suggest any mechanism whereby the larger hole could have been created by a fire starting in the sauna room. On the basis of it being easier for fire to burn through timber than break glass and his understanding that the Fire Brigade first attacked Bedroom 9 he supposed the window of Bedroom 9 to have cracked after the holes were burned up into the sauna room. In Dr Lygate's opinion it would take at least an hour for the fire to penetrate the ceiling of Bedroom 9 and floor of the sauna room. He expressed the view that photograph 18 in the Tayside Fire Brigade Fire Investigation Report which showed fire venting from Bedroom 9 must have been taken a little time after the Fire Brigade arrived at the scene given the information with which he had been provided that initially fire-fighters had not seen fire venting from that window but later did.

[74] Dr Lygate pointed to the dent in the outer casing of the sauna heater as being consistent with the heater having fallen from the wall at a time when the fire, having originated in Bedroom 9, had burned through the joists under the floor of the sauna cabin. He saw the explanation of the dent being the heater falling into a pre-existing hole and coming into violent contact with the jagged end of an already burned through joist. Had the sauna heater been the source of ignition, as suggested by the pursuer, he would have expected to have seen what he described as a large "saddle burn" in the timber joists, that is a pattern where the charring would be greater on the top surface than the bottom. There was no such pattern to be seen.

[75] The further reasons given by Dr Lygate for preferring Bedroom 9 as the area of origin over the sauna room were as follows. Agreeing with Station Officer Hannigan he regarded the penetration of the ceiling of Bedroom 9 and floor of the sauna room as being consistent with a rising fire from Bedroom 9. A fire originating in the sauna room would have had to burn down through a number of layers including sawdust deafening which smoulders slowly. By the time such a fire had penetrated floor and ceiling he would have anticipated that it would have breached the roof of the sauna cabin and spread out under the ceiling of the sauna room. However, he had not found the degree of damage to the sauna room and the dormer window that he would have expected had that been the case. Had the fire started in the sauna cabin Dr Lygate would have expected it to have developed in the sauna room and penetrated the peak of the roof above. That is what the fire fighters would have seen when they arrived. He could not explain the development of the fire in the roof voids had the area of origin been the sauna room. Nor would he have anticipated the development of a second hole in the ceiling of Bedroom 9 if it were assumed that the fire started in the sauna room and then spread to Bedroom 9 by reason of embers dropping from the larger hole. There would be a chimney available for fire to vent upwards from Bedroom 9 without the fire having to create a second hole. In Dr Lygate's opinion the existence of a second hole was incompatible with the fire starting in the sauna room. Moreover, had the fire started in the sauna room he would have expected it to have vented from the dormer window to that room before it vented from the window of Bedroom 9. The information from the fire fighters and what is shown in photograph 18 of the Fire Brigade report would indicate that that did not happen. The more extensive charring to the undersides of the joists supporting the floor of the sauna room (otherwise referred to as "arching") was indicative of a fire burning from below. Charring of the floorboards beside where the bed had been in Bedroom 9, evidence of burning on the underside of the bed frame and the V pattern of burn damage to the timber-lined walls suggested to Dr Lygate that the fire had started at a low level in that bedroom in the corner where the bed had been and had spread upwards. In his opinion this was the area of origin. Once the fire penetrated the ceiling of Bedroom 9 it was able to spread in the void of the floor which inter-connected with the roof. The fire then developed in the triangular roof voids that ran laterally at the front and back of the bedroom wing. It was able to spread in the space between the rafters and reach the apex. This would explain why when the fire fighters arrived they saw flames in the valley of the roof.

Assessment of the expert witnesses

[76] It appeared to me that all those who had investigated the fire and who gave evidence, Mr Smith, Mr Grant, Station Officer Hannigan and Dr Lygate, were qualified by reason of relevant study and experience and an informed investigation of the scene to provide an opinion as to the area of origin of the fire and its source of ignition, and therefore might be described as expert witnesses. The guidance provided in Davie v The Magistrates of Edinburgh 1953 SC 34 at 40, Dingley v Chief Constable of Strathclyde Police 1998 SC 548 at 555 and Loveday v Renton and Wellcome Foundation Limited [1989] 1 Med LR 117 is accordingly apposite.

[77] I found all these expert witnesses to be credible in the sense of being worthy of belief. I took them all to be competent within their respective fields of activity. These fields of activity are slightly different. Mr Hannigan is a serving fire-fighter. He did not give the impression of being very experienced as a witness, at least in the context of contentious civil litigation. Neither did he give the impression of someone who had taken time to prepare for giving evidence. That is not a criticism of a witness who may have been cited with only limited explanation of why he was being asked to give evidence, but it points to what I considered to be at the same time a strength and a weakness. Mr Hannigan is a professional fire fighter and, as such, independent of the parties to this action. I would see that as being his strength. He did not appear to me to be arguing for any particular position. At one stage he very fairly emphasised that his evidence as to the cause of the fire was not necessarily truth, only his opinion. He is not a professional witness in the way that Mr Smith, Mr Grant and Dr Lygate are professional witnesses and therefore he may not be accustomed as they are to putting forward clear explanation and cogent argument both in written reports and oral testimony. That might be seen as a weakness. The converse is that while Mr Smith, Mr Grant and Dr Lygate are professional communicators they are not independent in the sense of being entirely disinterested. Again, I intend no criticism of and mean no disrespect towards any of the witnesses. I merely consider it relevant to bear in mind that Mr Smith was instructed by the loss assessors (the Balcombe Group own his company, although he was not aware of that fact at the time he undertook his initial investigation) and that Mr Grant and Dr Lygate were instructed by the loss adjustors. As among those that I have described as the professional witnesses, Mr Smith and Mr Grant have spent much of their careers in the Fire Service, attaining senior rank. I took them to be essentially practical men drawing on experience, although both have undergone theoretical study in addition. While I have described Mr Smith as a professional witness and professional communicator he did not always answer the question he was asked and his ready movement, near the beginning of his cross-examination, from saying that it was not a possibility that the fire had originated in Bedroom 9 to saying that it was a possibility but not his preferred possibility, indicated, on the one hand, a frank approach, but on the other, a less than precise use of language. Listening to Mr Smith I was not always certain that he had both understood the question and had fully reflected on it before answering. He did not appear to appreciate the implications of his answers. He did not consistently maintain or at least coherently explain his position in the face of cross-examination. An example of that was his suggestion that there was significance in the distance from the area around the bed in Bedroom 9 to the roof void when compared with the distance between the floor of the sauna room and the roof void which he seemed to depart from or, perhaps, alter into a rather different point which was that he did not believe that a fire which originated in Bedroom 9 could develop the intensity to penetrate the ceiling. In a passage shortly thereafter Mr Smith appeared to contradict himself as he himself accepted.

[78] Dr Lygate is more the scientist or engineer. He is academically and professionally well qualified. He was a particularly careful witness. He was precise in the way he answered questions. He provided detailed reasons for his opinions under reference to the findings of the fire investigation. To the extent that it is necessary for me to form a view, I prefer the evidence of Dr Lygate over that which is to contrary effect. He was supported in his identification of Bedroom 9 as the area of ignition by Mr Grant and Station Officer Hannigan and, if it be accepted, as I have accepted, that the sauna heater was not the source of ignition then the principal reason put forward by Mr Smith for concluding that the sauna room, rather than Bedroom 9, was the area of ignition is displaced. Mr Smith did not dispute Dr Lygate's interpretation of the directional indicators that pointed to the fire having burned up from Bedroom 9, only adding that an up-burning fire may have obliterated signs made earlier by a down-burning fire.

Conclusion on area of origin

[79] Looking to all the evidence but particularly that of Dr Lygate, which for the reasons given above I accept in its entirety, I conclude that the area of origin was Bedroom 9 and the point of origin was in or about the corner by the bed.

Conclusion on source of ignition

[80] None of the experts identified a specific source of ignition other than the sauna heater, a suggestion which I reject. There was no direct evidence of deliberate fire setting such as might be provided by signs that accelerants had been used or additional fuel introduced or multiple points of origin. However other than the sauna heater no other source of ignition was suggested that did not involve human agency. An electrical source was excluded. Therefore, in the absence of any alternative, like Dr Lygate I conclude that the fire must have been started by some means involving human agency. That is consistent with the evidence of Mr Smith once the fire is taken as having originated in Bedroom 9. He appeared to accept that if the fire originated in Bedroom 9, human agency must have been involved. I acknowledge, as the pursuer pointed out in submissions, that she secured a retraction by Station Officer Hannigan of his suggestion that this was a case of malicious ignition.

[81] The form of human agency that is relevant for the purposes of this action is deliberate fire setting such as the application of a naked flame to flammable material by or with the concurrence of the pursuer. It is not of course sufficient for the defenders' purposes simply to establish that the outbreak of fire involved human agency, it is necessary to establish that the fire was set deliberately and that this was done deliberately by or with the concurrence of the pursuer. On the facts and on the defenders' approach "by or with the concurrence of the pursuer" comes to be a contention that the fire was set by the pursuer in person. I now turn to consider whether that has been established.

Setting the fire: burden of proof

[82] Mr Armstrong accepted that the burden of proof was on the defenders to satisfy the court that their averment at page 17C of the Record that the fire had been set either by or with the concurrence of the pursuer had been established. That no order had been made requiring the defenders to lead did not alter this. The decision as to which party should lead at proof was made essentially on the basis of what was practicable and convenient; it did not necessarily require or import a determination as to where the ultimate onus lay: Johnstone's Exec v Harris 1977 SLT (Notes) 10; McFarlane v McFarlane 1947 SLT (Notes) 34.

Setting the fire: standard of proof

[83] The standard of proof was, Mr Armstrong submitted, proof on the balance of probabilities notwithstanding that the critical averments for defenders involved the allegation of a criminal act on the part of the pursuer: Mullan v Anderson 1993 SLT 835, Sodden v The Prudential Assurance Co Ltd (Inner House) 15 January 1999, unreported. However, Mr Armstrong acknowledged that the seriousness of the allegation that he asked me to find proved had an impact upon what the court had to require from the evidence before being satisfied on a balance of probabilities. The evidence had to be "more pointed" than would be the case where what was in issue was a less serious matter. Given the nature of the allegation, it had to be supported by "evidence of good quality": Sodden supra, the Lord Justice-Clerk, noting what was common ground as between the submissions of the respective parties. In applying this principle, Mr Armstrong commended the theoretical discussion by Lord Prosser, sitting as a member of the Court of Five Judges in Mullan v Anderson supra at 846K to 847B and the practical approach, again by Lord Prosser, as Lord Ordinary, in Sodden, as set out in that portion of his Opinion quoted by the Lord Justice-Clerk when delivering the Opinion of the Court in the reclaiming motion.

Setting the fire: have the defenders satisfied the onus of proof?

The approach to balancing probabilities

[84] The critical averments for the defenders are to be found at 17C:

"...the fire and the consequent damage was the result of a deliberate act of setting fire to the premises. The fire was set either by or on behalf of or with the knowledge and concurrence of the pursuer ..."

In coming to a view on the difficult question as to whether the defenders have satisfied the onus of establishing these averments, I have seen it as appropriate to bear in mind the approach signposted by Lord Glennie in Morton v West Lothian Council 2006 Rep LR 7 at para [77]. Lord Glennie referred to what had been said by Sedley LJ in Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449 at 477, where it is pointed out:

"a civil judge will not make a discrete assessment of the probable veracity of each item in the evidence; he or she will reach a conclusion on the probable factuality of an alleged event by evaluating all the evidence about it for what it is worth. Some will be so unreliable as to be worthless; some will amount to no more than straws in the wind; some will be indicative but not, by itself, probative; some may be compelling but contra-indicated by other evidence. It is only at the end-point that, for want of a better yardstick, a probabilistic test is applied."

In other words, when determining whether something happened in the past a civil court is not concerned with absolute or scientific proof. Indeed, in a sense, the court is not concerned whether the thing happened at all. Conscious of the difficulty of knowing something for certain, the court's objective is more modest. It is to determine whether it is more probable that the thing happened than not. If the more probable than not standard is not met in the eyes of the court then the thing did not happen. On the other hand, for the purposes of civil litigation, anything that is more probable than not is treated as if it did happen: Mallett v McMonagle [1970] AC 166, Lord Diplock at 176. However, and this is what I see as having been emphasised by Sedley LJ in Karanakaran, that does not mean that every piece of evidence requires to be established on the balance of probabilities before it can contribute to the final decision. Rather, every piece of evidence, including reasonable inferences from facts or suggested facts, whether tending to support what is averred or tending to controvert what is averred, must be considered and, unless it is entirely rejected as incredible or unreliable, given its appropriate weight and put on the relevant side of the balance. Only then is what Sedley LJ described as the probabilistic test applied, regard being had to the approach of the parties and the issues that they have concentrated on. I see this as consistent with what Lord Prosser said in Sodden about taking all possibilities together, rather than in isolation from one another.

[85] In coming to a conclusion as to whether the defenders have satisfied the onus of proof I shall endeavour to follow the approaches of Sedley LJ and Lord Prosser by looking at all the evidence together. However, in discussing it I shall follow the distinctions as between its various aspects that was adopted by Mr Armstrong in his submissions and thereafter by the pursuer in hers.

Credibility and reliability of the pursuer

[86] This case puts the credibility of the pursuer sharply in issue. The defenders assert that she set the fire. She denied that on oath. Mr Armstrong squarely faced up to that, submitting, under reference to a number of aspects of her evidence that the pursuer was simply not worthy of credence.

[87] With a view to persuading me to that conclusion, Mr Armstrong drew my attention to a number of features of the pursuer's evidence that he suggested reflected adversely on her credibility. He began with the pursuer's description of herself as being a foreign exchange treasurer specialising in Islamic investment who had opened four offshore banking units in Bahrain and her account of the job offer that she had in December 1999 to begin in July or October 2000. He did not go the distance of submitting that the pursuer should necessarily be disbelieved about what she had said about her previous career and of a job being available to her in 2000 but he was sceptical as to its veracity and accuracy. I took him to emphasise the features of the pursuer's evidence that appeared at once grandiose and vague. She described herself as an economist, setting up banks, or branches of banks (the distinction was not clear). She apparently enjoyed generous remuneration which was paid into bank accounts abroad. This did not entirely square, suggested Mr Armstrong, with the sort of person who runs a hotel in the Scottish highlands. The pursuer had explained that the job offer had come from a friend, Mr Edward Nimmo-Smith, the managing director of Louis d'Or Talent Management. The pursuer did not however know whether Louis d'Or was itself a bank or a recruitment agency. Mr Nimmo-Smith had previously offered her a job, working in Luxembourg, on 4 July 1998, the day of her marriage to Mr McLean. Mr Armstrong suggested that this was odd. The sort of person who would be involved in international banking was not the sort of person who would run a hotel in Kinloch Rannoch, but if the hotel business was not profitable why did the pursuer not take up the job offer which had been made in 1998? As to taking up the job offer in 2000, as the pursuer said she had intended to do had it not been for the fire, this would appear to sit strangely with the pursuer's domestic arrangements. It would have meant leaving her children, including Struan who she had been breast-feeding, with Mr McLean who, as at the date of the fire, had been understood by the pursuer to be suffering from cancer and to be terminally ill, albeit that that was thereafter found to be a misdiagnosis.

[88] According to Mr Armstrong, the pursuer's account of having had little to do with the running of the Hotel when her first husband was alive because it "was his dream", did not square with what she had said about working with him as a team when they were working in banking, although Mr Armstrong accepted that it was not clear why the pursuer should wish to minimise her involvement.

[89] Mr Armstrong drew attention to the apparent inconsistencies in the pursuer's evidence as it related to ill health. Mr McLean had been thought to be terminally ill and yet he was well enough to be away sailing at the time of the fire. It later turned out that the diagnosis of cancer had been wrong and what he was suffering from was Crohn's disease. Marion McNeill, whom Mr Armstrong commended as a credible and reliable witness, had understood that it was the pursuer who was the one who was terminally ill rather than her husband, Mr McLean. The pursuer had said that the reason for her withdrawal from negotiations with the McNeills in 1998 was because Mr McNeill was ill and they were in financial difficulties. Mrs McNeill had denied that, explaining that her husband had not been diagnosed as being ill until 1999.

[90] Mr Armstrong reminded me of the pursuer's evidence of her having had a dream in which she had seen her late husband holding an invoice with the name of the supplier of the sauna. He suggested that this and her account of her career pointed to someone who over-dramatised events.

[91] Mr Armstrong was to return to the pursuer's decision to leave the Hotel by car, late on the evening of 26 May together with younger children to visit her parents in London as one of the circumstances that he relied on as pointing to the conclusion that it was the pursuer who set the fire, but he also drew attention to the various explanations that the pursuer had given in evidence for this journey. The pursuer's mother had been ill. There had been difficulties between the pursuer's mother and the pursuer's sister. The pursuer's father had agreed to take the pursuer's pet dog, Millie. The visit was to be a surprise for her parents. This was the last opportunity to see her mother. Mr McLean was away sailing.

[92] Mr Armstrong pointed to the curious way in which the pursuer provided information for official documents: using an amalgam of two persons' names as her mother's name and recording her place of birth as Sweden when it was in fact London.

[93] Mr Armstrong suggested that the pursuer's evidence about Edward Nimmo-Smith, who she claimed to have been instrumental in obtaining the offer of a job in December 1999 and who was lending her the deposit for the house at Victoria Lodge, Inellan, which she was purchasing, was inconsistent. She denied that he was the godfather of any of her children and yet he appeared to refer to Struan in the faxed letter dated 20 May 2000, number 6/23 of process, as his godson. That letter and the letter of 14 December 1999, number 6/24 of process, were worthy of scrutiny. They did not include identifiable fax headers. The letter of 14 December 1999 was not in proper commercial form. Might its purpose be simply for exhibition to a bank by way of comfort?

[94] The pursuer's evidence about taking her dog with her on occasions when she left the Hotel had been contradicted by Marion McNeill, as had her evidence about clearing Hannah's bedroom in order to vacate for Mrs McNeill's daughter. The pursuer had contradicted herself over the prices that first Mr and Mrs Edwards and then Mr and Mrs McNeill had offered for the Hotel. She had given conflicting accounts about going to the Loch Rannoch Hotel to give a set of keys to Thomas. Her evidence about the availability of overseas assets sat oddly with her subsequent sequestration. It was Mr Armstrong's submission that when viewed as a whole, the pursuer's evidence was such that the court was entitled to be cautious before accepting anything of significance as true.

[95] There was considerable force in Mr Armstrong's criticisms but I cannot claim to have identified one touchstone to determine the pursuer's truthfulness one way or the other. On the central issue, she strenuously denied that she had set the fire. One must suppose that the pursuer knows whether she did or did not do so, although I see that with the passage of time someone might convince themselves of a version of events that is not in fact true. I cannot say that I detected signs of the pursuer dissembling in the course of her evidence, although on incidental matters she contradicted herself and she was contradicted by Mrs McNeill, who presented as a careful witness. I found the pursuer less than impressive in her shifting reasons for making the trip to visit her parents. On the other hand, as the pursuer herself said, her persistence in pursuing this claim would seem to speak to a conviction that she is in the right as opposed to the stark alternative which is that she is both a fire-raiser and fraudster whose actions had put at risk her eldest son's safety if not life. Her manner in court was one of dignified resignation and patient and diligent participation in the litigation process. Allowing for the fact that the pursuer's history has been eventful and may be taken to have been very stressful and accepting her particular point in response to Mr Armstrong's allusion to her dream about her late husband holding an invoice that dreams may reflect information retained by the unconscious, I consider there to be some truth in Mr Armstrong's observation that the pursuer is someone who rather over-dramatises events. Her evidence about offshore banking units and the ready availability of lucrative employment in this area of activity to someone such as the pursuer who had not been so employed recently did seem surprising. Moreover, there was a vagueness about the pursuer's evidence that did not suggest a very profound understanding of whatever it was precisely that she did. This in someone who described herself as extremely clever. However, as I observed to Mr Armstrong, there is much that the layman has learned about banking in the last few months that has surprised him and I cannot say that my surprise at some aspects of the pursuer's evidence about her career indicates more than ignorance on my part about this area of activity. What one regards as common sense is very much the product of ones own particular experience. It must also be borne in mind that, on her evidence, the pursuer has not been involved in this sphere for some fifteen years. The fire occurred more than eight years before she gave evidence at the proof. That said, assuming the pursuer to have had a job offer available to her as at May 2000 of the sort she described in her evidence, she did seem to gloss over the difficulties of taking it up given the age of her younger children and the ill health of her husband. She disclosed none of the doubts which might be expected from someone returning to a technically demanding job after an absence of seven years in circumstances where her previous experience had always been of working together with her late husband. Although Mr Armstrong did not press this when he came to his submissions, the pursuer had been challenged by Mr Stewart in the course of her evidence as to whether there ever had been such a job offer and, to my mind, what I have described as vagueness in what the pursuer had to say about the details, albeit that she was talking about events more than eight years in the past, and the terms of the letter, number 6/24 of process do give grounds for scepticism. I therefore consider it proper to record that at the stage of submissions the pursuer offered to lodge documents responding to what she described as a character assassination on the part of those instructing Mr Stewart and Mr Armstrong. I took what the pursuer described as a "character assassination" to be a reference to a legitimate exercise in investigation and precognition on behalf of the defenders aimed at uncovering evidence that the pursuer had lied or otherwise misled the court. I refused to admit additional material at such a late stage but it is appropriate to note that, on the one hand, there was no evidence of deception on the part of the pursuer led by the defenders and, on the other, the pursuer was prepared to challenge what she had perceived as an attack on the honesty of her evidence by reference to documentation, albeit that she was denied that opportunity by my decision.

Circumstantial evidence

[96] Mr Armstrong turned to point to the circumstantial evidence he relied on as indicating that the pursuer had, on a balance of probabilities, set the fire.

[97] As at 26 May 2000, the pursuer was in financial difficulty in the sense that she had indebtedness to the Royal Bank of Scotland in respect of a mortgage over her property at Rothesay Terrace, Edinburgh, as well as the overdraft lending secured over the Hotel. The Hotel was not trading profitably. Only the bar was open. It is admitted that the bank had agreed to take the amount realised by the sale of the Hotel in settlement of all the pursuer's outstanding debts. Although Mr and Mrs McNeill wished to buy the Hotel (and this was a point emphasised by the pursuer in her cross-examination of Mrs McNeill and then in her submissions), the pursuer could not give a good title as she had not been confirmed as her late husband's executor. While this may not have been an insuperable problem the pursuer would not necessarily appreciate that. The pursuer had already made a successful claim on the insurance policy in respect of a fire only months before (which was in itself suggestive of a pattern of behaviour). In the circumstances she had a motive to make a further claim with a view to resolving her financial difficulties.

[98] The pursuer was a part-time fire fighter. On a number of occasions it had been apparent that in framing her questions she was drawing on her experience. She may be taken to have had some understanding of the spread of fire.

[99] Mr Armstrong pointed to the fact that at least some family possessions had been removed from the Hotel prior to the fire (others appear not to have been). He instanced the clearing of Hannah's room. The pursuer's wedding dress survived the fire, albeit, as the pursuer stressed, she did nothing to hide the fact.

[100] As she accepted (and was to confirm in her submissions) the pursuer was the last person in the Hotel prior to the fire. It was she who had secured the building. No one had been left in the Hotel after the pursuer had exited. There was no evidence of a subsequent break-in. She had said that she was not aware of any smell of burning when she was locking up. The CCTV system had not been recording. The burglar alarm was not energised. Although she had of course denied doing so, the pursuer had had the opportunity in a period of about 10 minutes to set a fire in Bedroom 9, either while locking up or immediately afterwards when, under cover of the suggestion that she was going to the Loch Rannoch Hotel, she might have used the keys which she had in her possession to re-enter the Hotel and go to Bedroom 9. According to Dr Lygate, the extent of the fire at the time of the arrival of the Fire Brigade and the observed damage following its extinction were not inconsistent with the fire having started around 11.30pm on 26 May 2000. The Fire Brigade was alerted at 0138 on 27 May. Dr Lygate put the start of the fire at about two hours or perhaps longer before that.

[101] The manufactured trip to London provided an alibi. There had been evidence (from a statement given by Hannah to Mr Smyth) that Hannah had received a text message sent by Thomas at 0231 or 0235 on the morning of 27 May (although not necessarily read at that time) but it was only at about 2pm that the pursuer returned to the Hotel.

Exclusion of alternative possibilities

[102] As already discussed, although no source of ignition was identified and there was no trace of accelerants having been used or an additional fire load having been introduced, the evidence excludes possibilities not involving human agency. The only possible candidate as human agent suggested by the evidence is the pursuer. It is true that Hannah would appear to have been alone in the main bedroom wing prior to her leaving with the pursuer and the Hotel being locked up. In her statement Hannah refers to her friend Emma leaving to go home at about 10.15pm on 26 May. Where Hannah was immediately after that is uncertain but on the pursuer's evidence she had to fetch Hannah from her room before locking up and leaving the Hotel. Hannah's statement, as amended, includes the information that she and her friends had smoked in the Hotel. During the fire investigation a packet of cigarettes and a lighter were found in a chest of drawers in Hannah's bedroom. As the pursuer reminded me during her final submissions, the IFIC Preliminary Report states that "we cannot exclude the possibility that this fire was the result of inadvertent ignition by discarded smoker's materials". In cross-examination Dr Lygate agreed that it was a possibility that Hannah had lit a cigarette and dropped it. That answer was not followed up further. That being the state of the evidence I recognise that among the possibilities left open by the evidence is that the source of ignition was a lit cigarette or match inadvertently dropped by Hannah in Bedroom 9. I therefore consider it appropriate to take that possibility into account but, equally, I have had regard to a number of matters bearing upon it. These include the evidence that I heard that a lit cigarette is not a particularly effective source of ignition of carpeting or bedding, that Hannah was not led as a witness by either party (the pursuer described her as disabled with difficulty with her memory), that no evidence was led that Hannah had been smoking on the evening of 26 May 2000, that no evidence had been led that Hannah had been in Bedroom 9 that evening and that no reason suggested itself as to why she should have been in that bedroom. More important, there were no pleadings suggesting the inadvertent dropping of lit smoking materials, either by Hannah or anyone else, as a possible source of ignition. I consider it appropriate to make allowance for the fact that the pursuer is not a professional advocate but the case was not conducted on either side on the basis that this possibility was being put forward. In her final address to the court the pursuer referred to what appears in the IFIC Preliminary Report but, as I understood her, did not develop a submission to the effect that the possibility of Hannah having been inadvertently responsible for the fire should play any part in my decision making.

Conclusion on whether proved that pursuer set the fire

[103] As I have already indicated, the issue is whether the defenders have established on a balance of probabilities that the fire was set by the pursuer in person. The standard is balance of probabilities, in other words "more likely than not". The defenders do not have to prove as a matter of certainty that the pursuer set the fire or to prove beyond reasonable doubt that she did so. Having regard to the grave nature of the allegation against the pursuer, the evidence relied on by the defenders must be of "good quality" but that does not mean that every piece of evidence requires to be established on the balance of probabilities before it can contribute to the final decision.

[104] Looking to the totality of the evidence and the possibilities that it gives rise to, I have been satisfied that the defenders have discharged the onus that the fire was probably set by the pursuer. There was a lack of precision in the pursuer's evidence and a degree of internal contradiction that would lead me to have reservations about her reliability as a witness, particularly if one was concerned with matters of detail. However, although Mr Armstrong framed his attack on the pursuer as comprehending her unreliability, as far as her evidence is concerned what is of importance is credibility as opposed to reliability. The stark issue is whether she set the fire, something I must take to be within the pursuer's knowledge. That is not a matter of detail. The pursuer gave evidence on oath that she had not set the fire. Having regard to Mr Armstrong's criticisms I regard the pursuer's credibility as being questionable but I cannot claim to have detected anything in the pursuer's demeanour or way of answering questions that I could point to as definitely indicating that she was being untruthful when she denied setting the fire. In a number of ways I was favourably impressed by the pursuer, particularly in her discharge of the difficult role of party litigant in which she presented as moderate, courteous and intelligent. Therefore I have not rejected the pursuer as unworthy of all credence. Her denial of responsibility has accordingly to be placed in the balance. I must, however, have regard to the rest of the evidence and the inferences to be drawn from it. That evidence excludes the sauna heater as a possible source of ignition and implicates Bedroom 9, a location with plenty of combustible material, as the area of ignition. In the absence of any evidence pointing to an electrical or mechanical source of ignition the only remaining possibility is human agency, either deliberate or inadvertent. The fire broke out in the main bedroom wing when the Hotel was locked and no one was inside. There was no sign of a break-in or other interference by intruders. The pursuer had locked up the Hotel. Hannah had left the Hotel with her, but the pursuer had been the last person in the main bedroom wing prior to her locking up the Hotel and therefore the last person in the main bedroom wing prior to the outbreak of fire. The pursuer had the opportunity to set the fire at or about 11.30pm on 26 May, either while in the bedroom wing before locking up or after re-entering for that purpose immediately after having locked up. The state of development of the fire when the Fire Brigade arrived was not inconsistent with it having started at or about 11.30pm. The pursuer had a motive to destroy the Hotel and thereby secure indemnity under the insurance policy. The fire broke out when neither the burglar alarm nor CCTV were operational and was only discovered at an early hour of the morning after the pursuer had absented herself from the Hotel together with all of her children other than Thomas, and her pet dog in order to embark on a long journey the precise purpose of which was variously explained by the pursuer.

Damages

The conclusions

[105] I take article 6 of condescendence to contain the averments which support conclusion 2 and article 7 those which support conclusion 3. Conclusion 2 relates to the claim to be indemnified under the policy for damage to the Hotel. As conventionally analysed, that is a claim for damages for breach of contract; as it is put in MacGillivray on Insurance Law (10^th edit) para 19-70, "breach of a promise to hold the assured harmless against loss caused by an insured peril from the time of its occurrence." Conclusion 3 is also a claim for damages, these being of the nature of consequential damages arising as a result of the defenders' refusal to indemnify when the claim was made.

[106] It is necessary that I make a finding on how I would have assessed damages, notwithstanding my conclusion on liability.

Indemnity for damage to the Hotel

[107] Conclusion 2 (a), is for payment to the pursuer as an individual of £150,000. Conclusion 2 (b), is for payment to the pursuer as executrix of £80,000. The averments in article 6 of condescendence would suggest that the discrepancy between these two sums is to be explained by the claim on behalf of the pursuer as an individual being in respect of one half of the heritage, valued at £80,000, together with lost stock, business contents and money, whereas the claim by the pursuer as executrix is limited to £80,000 as half of the damage to the heritage. As at the date of the fire Mr and Mrs McNeil had offered to purchase the Hotel at a price of £175,000. According to the pursuer, the Royal Bank of Scotland, as standard security holder in possession, sold the site after the fire for £36,000. These figures would suggest a loss due to damage to heritable property of the order of £139,000. Mr Armstrong was content that this sum be taken as the loss which the defenders were obliged to indemnify, assuming that they were not entitled to void the policy. In the absence of apparent reason to do otherwise he saw that sum being divided equally between the pursuer's interest as an individual, as sued for in conclusion 2 (a) and that as executrix-dative of the late Mr Toremar, as sued for in conclusion 2 (b). The pursuer accepted this approach to valuation of the heritage. She further accepted that there had been no evidence that would allow me to ascribe a value to such stock, business contents and money that may have been lost or damaged. I would accordingly assess damages in respect of failure to indemnify for damage to the heritage at £139,000 and damages in respect of failure to indemnify for losses of stock, business contents and money at nil. Of the sum of £139,000, £69,500 would be payable to the pursuer as an individual and £69,500 as executrix of Christen Arne Torremar. Interest is exigible on these sums at the rate of 8 per cent. I was not addressed on the date from which interest should run. The latest date must be the date of intimation of repudiation of liability by voiding the contract. That occurred on 15 September 2000. The earliest possible date is when the loss occurred, in other words the date of the fire, but I would take an insurer to be entitled to require proof of loss and then a reasonable time within which to make his own enquiries and then to indemnify. In the absence of any suggestion that the defenders acted unreasonably prior to intimation that they were voiding the policy it would appear to be appropriate to allow interest from 15 September 2000.

Consequential loss

[108] The pursuer avers, at page 21D of the Closed Record, that she: "as a result of the defenders' refusal to indemnify her lost her means of livelihood. She has suffered and continues to suffer considerable hardship, distress, anxiety and inconvenience." In her evidence the pursuer spoke of the reduced financial circumstances in which she and her family had required to live over the period since the fire, her worry over the insurance claim and the toll it had taken on health and wellbeing. One pressure she spoke of was the insistence of the loss adjustors acting on behalf of the defenders that she had to be domiciled in Scotland if she was to insist in her claim (something I do not find proved). This was all in rather broad terms and, were it necessary to do so, I could not find any patrimonial loss established beyond the different head of damages sued for in terms of conclusion 2. A relatively modest sum in respect of injury to feelings, say £5000, might be another matter. In so saying I recognise that such a sum might seem paltry when set against the inconvenience and distress which may follow from refusal to meet a claim on an insurance policy. However, I having raised the question with him, it was Mr Armstrong's submission that the claim for consequential loss was not relevant. On the authority cited to me, I would have to accept that submission. For the general rule that solatium for mental suffering is not recoverable as damages for breach of a commercial contract but that there is an exception where the contract is not primarily commercial but intended to provide entertainment or enjoyment or peace of mind or freedom from distress, Mr Armstrong referred me to Addis v Gramophone Company [1909] AC 488, Bliss v South East Thames Regional Health Authority [1985] IRLR 308, Jarvis v Swan Tours Ltd [1973] 1QB 233 and Stair Memorial Encyclopaedia vol 15, Obligations, paragraph 913. Now, one can see that there might be scope for arguing that among the benefits intended to be conferred by a contract of insurance are peace of mind and freedom from distress in the event of a casualty occurring. However, I can see that there is difficulty in too readily going down that route. Put shortly, to do so would be immediately to collide with the authorities collected in the footnotes to paragraph 19-70 of MacGillivray supra and the rules stated in the paragraph itself: that English law (and Mr Armstrong advised that there was no Scottish authority to the contrary) does not allow an action by an assured against an insurer to recover damages for consequential loss caused by unjustified refusal to pay a valid claim and that there is no cause of action (following MacGillivray) for damages for late payment of damages. The remedy is interest on damages at the (intended as penal) judicial rate. Accordingly, no damages fall, in any event, to be awarded in terms of conclusion 3.

Conclusion

[109] Having regard to my findings the defenders have established that they were entitled to void the policy of insurance with effect from 27 May 2000 as they intimated they were doing by letter of 15 September 2000. I uphold the second and third pleas-in-law for the defenders and assoilzie them from the conclusions of the summons. I shall reserve all questions of expenses.