The Judicial Committee of the Privy Council Decisions

Colonial Fire and General Insurance Company Limited Appellant

v.

John Chung Respondent

FROM

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 13th December 2000

------------------

Lord Bingham of Cornhill

[Delivered by Lord Hutton]

------------------

1. A building owned by the respondent, Mr. John Chung, at 17 Eastern Main Road, San Juan, in Trinidad was destroyed by fire some time between 6.00 p.m. on 29th April and 5.00 a.m. on 30th April 1985. Three policies of insurance had been issued to the respondent by the appellant, the Colonial Fire and General Insurance Company Limited, in respect of the building and the business carried on in it. One policy insured against loss or damage by fire to the building, its stock, furniture and fittings. A second policy insured against loss or damage by fire to machines and equipment in the building. A third policy insured against loss or damage by fire arising from business interruption.

 

2. The respondent brought an action against the appellant in the High Court of Justice of Trinidad and Tobago claiming payment under the three policies. By its defence the appellant denied liability on two grounds. The first ground was that the respondent, or servants or agents on his behalf, had deliberately set fire to the building. The second ground was that the respondent was in breach of a condition precedent contained in each policy providing, in effect, that the respondent would give to the appellant all such detailed particulars in respect of a claim as might be reasonably required.

 

3. The action came on for hearing before Permanand J. The respondent conceded that the building had been deliberately set on fire but denied that he had had anything to do with starting the fire.

 

4. The learned judge delivered a judgment in which, after a careful review of the authorities and the evidence, she concluded that the fire was started deliberately by the respondent, or with his knowledge and consent by his servants or agents, on or about 30th April 1985. She also held that the conditions in the policies requiring the giving of particulars were conditions precedent with which the respondent had failed to comply. Accordingly she dismissed the respondent’s claim on those two grounds.

 

5. On appeal to the Court of Appeal the respondent’s appeal succeeded in part. The majority of the Court, Ibrahim and Hosein JJ.A., held on the issue of arson that the appellant had failed to discharge the onus resting on it of establishing that it was the respondent or someone on his behalf who set fire to the building. Hamel-Smith J.A. dissented and held that Permanand J. had been right to conclude that the respondent had been instrumental in setting fire to the building.

 

6. On the second issue the Court of Appeal held unanimously that the respondent had complied with all the appellant’s requests for information regarding his claims in respect of the building, furniture, fittings, machinery and equipment, but not as regards his claims in respect of stock and consequential loss. The Court held in consequence that the respondent was entitled to recover on the former claims but not on the latter.

7. The building was a two-storey one with an extension on the ground floor at the rear. The entire building, with the exception of the extension at the rear, was surrounded by a metal cage. When the building was locked up in the normal way at the end of business hours there were only two ways of entering the ground floor. One way was by unlocking the padlock on the gate in the front of the cage and then by unlocking the padlock on the grillwork attached to the front door of the building. The other way was by gaining access to the first floor by way of an external staircase at the side of the building and then unlocking the padlocks on the top and bottom gates of an internal spiral staircase which descended from the first floor of the building to the ground floor. The external staircase was outside the cage which surrounded the building but was itself surrounded by a separate metal cage with a padlocked gate at ground level.

 

8. The respondent himself was not called to give evidence at the trial but a statement given by him to the loss adjuster engaged by the appellant, Mr. David Jamison, was admitted in evidence at the trial. In this statement he said that he locked up the building about 6.00 p.m. on the evening of 29th April 1985. There was a burglar alarm in the building but he could not remember if he checked the alarm when he locked up.

 

9. It was accepted by the respondent that the learned trial judge had correctly directed herself that the onus lay on the appellant to establish to a high degree of probability that it was the respondent who was responsible for starting the fire. On an appeal from a judge sitting alone in a civil case the burden of showing that the judge was wrong lies on the appellant. In deciding whether Mr. Chung discharged this burden before the Court of Appeal their Lordships consider that two sections of the evidence were of particular importance. One section related to the issue whether a fire had been deliberately started on the ground floor in addition to a fire or fires being started deliberately on the first floor. On this issue the appellant called Dr. Alan Robinson, a highly qualified forensic scientist who had specialised for almost 30 years in the investigation of fires and explosions. He went to investigate the cause of the fire on 3rd and 4th May 1985. In her judgment Permanand J. summarised parts of Dr. Robinson’s evidence as follows:-

"Dr. Robinson’s examination of the first floor revealed that the most severe damage was in the south eastern part away from the Eastern Main Road and this led Dr. Robinson to identify the south eastern areas as an origin or seat of the fire and which was not a precise area but extended over much of the south eastern part of the first floor. Dr. Robinson cleared some of the debris and while doing so became aware of the smell of flammable liquid and took a sample of cardboard and some remains of a toilet roll, which he placed in a nylon bag and sealed same. …

 

With regard to the ground floor – Dr. Robinson made observations and expressed the opinion that there was an independent fire, that is, independent from the upper floor and therefore was another seat of fire towards the north eastern part of the ground floor where he observed charring to the wooden shelving extending to the floor and on clearing the debris Dr. Robinson detected the smell of a flammable liquid of which he took a sample comprising once again, cardboard.

 

The rear of the ground floor has been affected by smoke and heat associated with combustible gases but restricted to high level and not extending to the floor."

 

10. The judge also stated that the evidence of Dr. Robinson as to the origin of the fire and the substances found on the premises was supported by the evidence of Miss Arlette Lewis, a scientific officer employed by the Ministry of Justice and Security, whose duties included investigation into the causes of fire. She visited the premises on 2nd May 1985 when she examined the remains of the premises in an attempt to determine whether the fire was accidental in origin. The judge summarised Miss Lewis’ evidence as follows:-

"She commenced her examination on the top floor and observed from the pattern of burning that the fire commenced on the south eastern end of the building and spread to the rest of the building and detected the odor of a petroleum type product in several areas on the top floor …

 

Although this witness observed damage by fire on the ground floor at the north eastern corner and suspected that it originated from a room there, she expressed the opinion under cross-examination that it could have started on the first floor and fell to the ground floor and therefore did not come to any conclusion whether flammable substances were used on the ground floor. Dr. Robinson had however found that the fire on the north eastern corner of the ground floor was another seat of fire but that the rear of the ground floor, which was affected by heat and smoke, was restricted to a high level not extending to the floor."

 

11. Later in her judgment the judge found that there was an independent seat of fire on the ground floor and stated:-

"… I accepted the evidence of Dr. Robinson who found that there were three independent seats of fire – two on the first floor, that is, at the south eastern part of the building and near the internal staircase and one towards the north eastern part on the ground floor. [Arlette] Lewis had identified the aforementioned two areas on the first floor but did not come to any conclusion as to whether any flammable substances were used on the ground floor. What then is in issue is whom was/were the perpetrator or perpetrators. There are no eye witnesses."

 

12. The second important section of the evidence related to the issue whether the ground floor of the building was still locked after the fire, because if it was the person who started the independent seat of fire on the ground floor must have had the keys to obtain access. On this issue the evidence of Mr. David Jamison, a law adjuster engaged by the appellant, was very material:-

"My first visit to the premises was on 30th April 1985. The second visit was on the morning of 1st May, I did not have access to the premises, nor to the ground floor. The ground floor was locked with a padlock. There was some wrought iron grilled work to the front burglar proof and the door in that grilled work was locked with a padlock. It was also not possible to get into the ground floor from the first floor via the spiral staircase as this was also padlocked. I returned to the premises on the afternoon and on that occasion I was finally able to get access to the ground floor, thanks to Mr. Chung’s employee-Frankie he had a key for the padlock. Frankie went into the premises with me that day. I made certain observations about the ground floor that day …"

 

13. When Mr. Jamison examined the ground floor he found that the burglar alarm was not plugged in, and when Dr. Robinson examined the premises on 4th May he also found that the burglar alarm was not plugged in and that there were no batteries in the box. Mr. Jamison said that from 30th April he made repeated requests to the respondent to meet him at the building, but Mr. Chung did not meet him until they had a meeting at other premises of the respondent on Henry Street and he eventually met the respondent at the damaged premises on 8th May. Mr Jamison said that he was extremely concerned that by 6th May he had not had the opportunity to meet the respondent at the damaged property because it was not normal, not to meet the insured at the damaged property for that length of time.

 

14. It was accepted at the trial that firemen and police officers were at the scene of the fire by 5.30 a.m. on 30th April and that on that morning the padlock on the gate to the external staircase leading to the first floor had been cut so that access to that floor was open. The appellant called no firemen or police officers at the trial to give evidence as to whether the building was securely locked when they arrived at the fire after they had been alerted.

 

15. In her judgment the trial judge said:-

"The Plaintiff in his statement [said] quite explicitly that he secured the premises on April 29, 1985, however, he made no mention that on his arrival on April 30, 1985 whether he found the premises as he left them and therefore whether it was the police or fire officers who cut the locks or whether the locks were cut subsequently. It is therefore not unreasonable to conclude that the Plaintiff found the premises secured as he had left them and that any disturbance of the locks at the front could have been either by the police or fire officers at the time of the fire or some later stage ..."

 

16. The majority of the Court of Appeal held that the trial judge had erred in finding that the appellant had discharged the onus of establishing to a high degree of probability that the respondent, or a servant or agent acting in his behalf, had started the fire, because the appellant had failed to call any firemen or police officers to prove that the locks had not been cut before they arrived. The majority stated:-

"On [Mr, Chung’s] arrival at the scene the firemen as well as the police were already on the premises. It is also not in dispute that the external locks were found cut and that would have provided access to the upper floor of the building."

 

17. Later in their judgment they stated:-

"It is quite clear that she did not address her mind to the vital question as to whether the locks were cut before the arrival of the appellant at 5.30 a.m. Further, the conclusion that the plaintiff found the premises secured at 5:30 a.m. on the 30th April as he had left them [the night before] does not warrant the inference that ‘any disturbance of the locks at this point could have been either by the police or fire officers at the time of the fire’ since that would have been before the appellant’s arrival on the scene on the 30th, and would be contradictory of her earlier conclusion that he had found the premises secured as he had left them."

 

18. In his dissenting judgment upholding the decision of the trial judge Hamel-Smith J.A. stated :-

"Left with the undisputed evidence of an independent seat of fire downstairs, it follows that the trial judge was entitled to find that the person who set the fire upstairs had access to the ground floor. It seems that whoever entered the building to set the fire entered by way of the upper floor and proceeded down to the ground floor. This is so because when the adjuster arrived on the scene on the morning of the fire he found the main front entrance locked. He observed that the side entrance or western gate entrance (which led to the upper floor) was open and the padlock cut. Dr. Robinson who visited the scene some three or four days later also observed the cut padlock on the ground. The adjuster testified that he was able to enter the premises by way of this western gate, thereby gaining access to the upper floor only. It was later that evening or on the following morning that he said he gained access to the ground floor when Frankie opened the main gate leading to the floor.

 

No one was able to say who had cut the lock to that gate and it was the appellant’s submission that the respondent had failed to prove that the fire officers had done so when they arrived on the scene early that morning. It followed, he submitted, that in the absence of evidence to suggest that they had done it then it must have been some intruder who had cut it to gain entry to the building in order to set the fire.

 

That may be a plausible explanation but it fails to explain how that person gained access to the ground floor to set the fire there. The only reasonable inference would be that that person was in possession of a key not only to the lock on the spiral staircase but to the lock on the western entrance. On leaving the premises it would be a reasonable inference also that he secured both locks and the fire officers had indeed cut the lock on the western entrance to gain access to the upper floor. Since the ground floor was well secured when the adjuster arrived it is hardly possible that the fire officers had access to that floor at all. Similarly, if it were an intruder who had cut the lock on the western gate he, like the fire officers, would not have had access to the lower floor."

 

19. Their Lordships are in agreement with the reasoning of Hamel-Smith J.A. They consider, with respect, that the majority of the Court of Appeal erred in their view that the fire could have been started by an intruder unconnected with the respondent who, before the arrival of the fire men and police officers, cut the padlock on the gate to the external staircase giving access to the first floor. This view does not take account of the consideration that Mr. Jamison said in evidence that when he inspected the premises on the morning of 30th April the gate to the interior spiral staircase leading from the first floor to the ground floor was still locked. Therefore, even if an intruder had gained access to the first floor he could not have gained access to the ground floor to start the independent seat of fire on that floor. That seat of fire could only have been started by someone in possession of keys to the locks.

 

20. Dr. Ramsahoye Q.C., for the respondent, submitted to the Board that the judge should not have accepted Dr. Robinson’s evidence as establishing to a high degree of probability that a separate fire had been started on the ground floor because of the evidence of Miss Lewis that the fire on the ground floor could have started on the upper floor and fallen to the ground floor. In cross-examination what Miss Lewis said was:-

"On the ground floor I suspected that the fire ‘originated’ in the room at the north eastern corner of the ground floor. I did not detect any odour. It is possible that the fire started from the first floor being burnt and fell to the ground floor. I did not come to any conclusion that flammable substances were also used on the ground floor."

 

21. Their Lordships are unable to accept Dr. Ramsahoye’s submission. Having regard to the experience and qualifications of Dr. Robinson, to the positive nature of his evidence as to whether or not there was an independent seat of fire on the ground floor (Dr. Robinson’s evidence on this point not being challenged in cross-examination), and bearing in mind also that Permanand J. had the advantage of seeing Dr. Robinson and Miss Lewis in the witness box, their Lordships are satisfied that there is no substance in the submission that the judge was not entitled to find that there was an independent seat of fire on the ground floor. Their Lordships further observe that the fire on the ground floor was in the north eastern corner, whereas the main seat of the fire on the first floor was in the south eastern end of the building so that it appears unlikely that the fire would have fallen through from the north eastern end of the upper floor.

 

22. Accordingly their Lordships consider that the majority of the Court of Appeal were in error in reversing the decision of the trial judge that it had been proved that the fire had been started by the respondent or by a person or persons acting on his behalf. Therefore the respondent’s claim against the appellant fails and it is unnecessary to decide the second issue relating to the conditions precedent considered by the Court of Appeal. However their Lordships propose to make some brief observations on this issue for the guidance of the courts in Trinidad & Tobago if the point should arise in future cases.

 

23. In the High Court and the Court of Appeal the judgments referred primarily to the wording of Clause 11 in the policy which insured the building, its stock, furniture and fittings against fire. That clause required the respondent in the event of a fire to deliver to the appellant:-

"a claim in writing for the loss and damage containing as particular an account as may be reasonably practicable of all the several articles or items of property damaged or destroyed, and of the amount of the loss or damage thereto respectively, having regard to their value at the time of the loss or damage, not including profit of any kind."

 

24. The clause further required the respondent to give to the appellant all documents and proofs such as vouchers and invoices with respect to the claim as might be reasonably required by the appellant, and the clause concluded with the sentence:-

"No claim under this Policy shall be payable unless the terms of this Condition have been complied with."

 

25. In the opinion of their Lordships as a matter of construction the clause is referring to a single claim and therefore a failure to provide documents and proofs in respect of any head of the claim constitutes a breach of the condition precedent contained in the final sentence of the clause and disentitles the insured from recovering any part of his loss from the insurance company. There is, moreover, a sound commercial reason supporting this construction, in that if part of a claim is unjustified and cannot be supported by appropriate particulars and documentation, this failure may alert the insurance company to the need to investigate more closely other parts of the claim.

 

26. Dr. Ramsahoye submitted that the appellant was acting unreasonably in not accepting liability for those heads of the claim in respect of which particulars had been supplied. Their Lordships are unable to accept that submission and consider that the appellant was entitled to require that the condition precedent contained in Clause 11 should be complied with before liability arose to make any payment under that policy or under the other policies which contained similar conditions.

 

27. Accordingly their Lordships considered that Permanand J. was right to hold that the respondent was required to make complete performance in accordance with Clause 11 and that accordingly his claim could not be entertained.

 

28. Therefore their Lordships will humbly advise Her Majesty that the appeal should be allowed and the Order of Permanand J. restored, and that the respondent should pay the cost of the appeals before the Court of Appeal and before the Board.