Brown v Elders Insurance Ltd ABN 62 081 106 505

Plaintiff's Evidence

1. The plaintiff has been a farmer and grazier for his entire life. On 22 February 2010, he lived at "Brownleigh" , Neville which is approximately 63 km from Orange. He had resided there since 1994. His parents lived nearby on one of two homes on that acreage, which is about 300 ha. The property has three titles: the plaintiff's house was subject to one title; his parents' home another title and the land comprising the farm was on a separate title. The plaintiff owned the land on which his house was located but not the other two pieces of land.
2. The plaintiff's property was a gift from his parents on condition that he looked after them in their old age.
3. The plaintiff became aware of the fire at his home at about 1:15 am on 22 February 2010. He denied lighting the fire or having anything to do with the fire being started.
4. In February 2010, the plaintiff had been a member of the Rural Fire Service for 25 years and was the Captain of the Neville Rural Fire Service [RFS]. Joanne and Russell Anderson were also members of the Neville RFS.
5. The plaintiff called 000 on becoming aware of the fire. His knowledge of the process by which emergency services would respond following a 000 call was that the call went to a central point near Katoomba; they would contact the relevant emergency services - in this case, the Fire Control Officer at Orange - that person would page the relevant members, relevantly the Neville and other local fire brigades.
6. Contact to the members of the fire brigade would be by pager and the plaintiff was aware that the majority of the Neville Brigade had pagers, including the Andersons. The plaintiff described the process by which members of his Brigade would respond to such a call. It was his expectation that the Andersons would receive the message and would respond to it. The distance between where the Andersons lived and the plaintiff's house was about 4 km. In order to respond, they would have to go to the Rural Fire service shed to get access to a fire truck. The distance between their premises and that location was about 1 km.
7. The Andersons attended at the plaintiff's house fire. The plaintiff thought that it was about 10 minutes between when he first became aware of the fire in his house and the time that the Rural Fire Service arrived.
8. The plaintiff was extensively cross-examined. He said that he had been married and divorced; he had two children from that marriage aged 9 years and 14 years. His former wife lived about 7 km away. The arrangement was that the children would spend time with him alternately, the effect being that he had a child every day of the week and every second weekend he had no children with him. On the weekend of the fire, neither of his children was staying with the plaintiff.
9. The plaintiff stated that he was in a relationship with Ms Bridget Tracy and had been so for about 16 months. It was her intention to sell her own property and move in the plaintiff. The plaintiff was asked the following questions: Q: You had mentioned to Ms Tracey in the days or a week or two before the fire what would happen if your house had burnt down, hadn't you? A: With her house I've had the - Q: No, your house? A: I, I don't recall having had any of that conversation. Q: You're not telling the truth there, are you? A: I, I don't recall that conversation. Q: You'd specifically told her that you'd had a dream about your house burning down? A: Right. Q: Is that right? A: Yes. Q: Had you not remembered that dream when I put the question to you about a minute ago? A: No.
10. The initial question by Mr Cavanagh, senior counsel for the defendant, did not make reference to a dream. It was couched in terms of a conversation about "what would happen if your house had burnt down". It is clear that the question did not seek the plaintiff's evidence about what had precipitated any such conversation. However, in the context of this litigation, where the defendant's case asserts that the plaintiff was complicit in lighting the fire and burning his house, the plaintiff's lack of memory about this subject matter is somewhat puzzling.
11. This is especially so given that in subsequent questioning, the plaintiff agreed that he awoke one morning after having the dream within weeks of the fire happening and discussed the dream with Ms Tracy. The plaintiff was unable to recall the conversation with Ms Tracy, but he did not disagree with the proposition that he may have said "What will we do if the house burns down?"
12. Furthermore he accepted that he told her that he had some bad memories of his ex-wife and wanted to renovate the house before Miss Tracy moved in. In response to the proposition that he could not afford to renovate, the plaintiff stated: "I had enough money to put new carpet in, which is what we were looking at doing." It was put to him that he was unable to afford any substantial renovation of his property and stated: "You're more than happy to talk about something until you can properly finance it." In response to the proposition that he could not afford to undertake any substantial renovation of his property at the time of the fire, the plaintiff stated: "I had no intentions of renovating the house at that time."
13. The plaintiff confirmed that he had been with the Rural Fire Service for 25 years and had completed various courses leading to his promotion to captain of the brigade, but he had not undertaken the village fire fighting course, relating to house fires. However he had attended at about four house fires.
14. The plaintiff gave the following version of events on the evening before the fire: to his knowledge, no other person was present at his house when the fire occurred. The two side doors of his house were locked but the front double doors were unlocked. That evening, the plaintiff had been at Ms Tracy's house and on the way home called in to see Greg Mitchell, on whose property the plaintiff had a bull.
15. The plaintiff arrived at his home at 7:30 pm and went to bed about 10 pm. That evening, he made his tea, had four beers and watched television. He turned the lights off when he went to bed. He was awakened by hearing the fire or smoke alarms "chiming". He got out of bed and went to the doorway of his bedroom and heard "a crackle of noise" and could see "a red glow down the hall". He saw "a plume of smoke" heading towards his direction of the house and heard the crackling of the fire. The plaintiff then "grabbed my passport and some stamp albums that were just there in my cupboard …in the bedroom."
16. The plaintiff "hopped up on the bed and I kicked the flyscreen … out and hopped out of with my - and I, I slid out over the bed head, grabbed the …". In describing how he managed those actions, he stated that he went through window "just headfirst - no, sideways. I just …". He continued: "no, with my feet and gripped a hold of the bed head with my right - well, with my left arm, swung around…". The stamp albums and passports were on his pillow and he reached in and grabbed them. The passport was contained in a plastic zip lock bag similar to a little travel bag. Those items were usually kept "on top of my gun cabinet".
17. The plaintiff then quickly came around the side of the house and went to the double doors. He looked inside and realised he had "an established fire" and put on his boots. He then got into his Holden Commodore motor vehicle, which was in the carport, and reversed it about 30 metres down the driveway. The plaintiff continued: "After that I - trying to remember when I called the fire brigade but it was very close to this point 'cause my phone was in the ute being charged". The plaintiff thought that it was "probably at that stage I called the fire brigade".
18. The plaintiff then drove his utility to his parents' house some few hundred metres away (they were elderly persons in their 70's and 80's). He told his father that he had a house fire and needed assistance. He did not expect his father to actually provide assistance but because he was starting to panic, he needed some moral support or fatherly assistance. The plaintiff's father subsequently drove his vehicle to the plaintiff's house and turned off a gas bottle near the premises.
19. The plaintiff left his parents' house, re-entered his utility and "went to one of the sheds, dropped off my passport and my maps - my, my stamp albums." The plaintiff put those items on a bench in the shed which was between his house and his parents' house and approximately 200 m from his house. He then returned to his vehicle and drove back to the house.
20. When he returned to his house, the plaintiff "was preparing to get the hose and enter the house and start trying to put the fire out." The plaintiff said that he was near the tap to which the hose was attached when the Neville Brigade arrived. The plaintiff then "kicked the back door in" or "the western door" which was locked and "we proceeded to start fighting the fire that was in the hallway". He thought that he had the hose in his hand and it was on. The plaintiff made the observation that "the worst part was the hose was too short" and he only had "about 6 feet of hose inside the house." That was the first occasion which he attempted to put water on the fire.
21. The plaintiff agreed that he could have left his house upon discovering the fire through the eastern door, but volunteered that "this door's stuck". He agreed that he did not mention this fact to the police at any time. The plaintiff was unable to recall whether he told the insurance investigator about the stuck door. He explained the difficulty in leaving via that door in the following terms: "It took a fair bit of effort to open the door." He accepted that he had opened the door "plenty of times", but did not "bother opening the door that night".
22. The plaintiff was shown photographs of what was described as "pour patterns" in the hallway and near his bedroom. He stated that as he walked down the hall way to go to bed, he did not notice those patterns: "Yes, sir, I'm saying that I didn't notice anything untoward." By way of explanation, the plaintiff believed that someone had entered his house on the evening before the fire and poured accelerant throughout it without his knowing. He acknowledged that some of the patterns were "very close" to his bedroom door.
23. The plaintiff agreed that he had a guard dog which was a working kelpie/collie dog. He agreed that he said to police that the dog barked when people came, but he did not hear any barking that night. After the plaintiff had climbed out of his bedroom window, he went and untied the dog which was tethered to the dog kennel about 15 metres from the house, in the general area near the front double doors.
24. The plaintiff denied that climbing out of the window was very difficult. He stated that it was not difficult at all and in response to the proposition that it must have been a very tight fit, the plaintiff stated: "I've been doing it for years". He stated that having been a small boy and playing hide and seek and having been a shearer for many years, it was not difficult for him. In addition, the plaintiff said that about 6 months previously he had undertaken a course called Fire Wise with the Rural Fire Brigade which advised people "to get out of their bedroom in any way, shape or form. I just followed what I preached."
25. The plaintiff agreed that he told the insurance investigator that he "traditionally stated to my daughters that if, for some reason, there is a fire they should jump out the window." He did not tell the investigator about the jammed door. Furthermore he agreed that his daughters were not present on the night of the fire and accordingly it was not necessary to practice what he preached. However the plaintiff said: "It was the quickest way for me to hop out of the house."
26. The plaintiff then said that he went to the corner of the house, had a look through the window and satisfied himself that there was a fire in the house. He then went and let his dog off the leash and thereafter reversed the car away from the house. After that occurred, the plaintiff retrieved his mobile phone which was being charged in his utility, which was parked beside the Holden Commodore vehicle. The plaintiff then rang 000. He stated that he had his passport and albums in the utility.
27. The plaintiff was taken to his police interview, in which he stated that when he arrived at his parents' house, he had not at that stage, called the fire brigade. The plaintiff drew attention to the fact that in the following page of the interview he corrected that statement - however he said that his initial mistake was due to "probably panicking quite considerably".
28. He agreed that he made no attempt to put out the fire until the fire brigade arrived but stated that the hose was "not long enough to do anything" and he had "a fair idea that it was too short". The plaintiff agreed with the proposition that after turning the power off, he obtained his hose, turned it on and went into the house. This occurred when the fire brigade initially arrived. The plaintiff explained that he made no earlier attempt to put any water on the fire because "it would have been totally fruitless of me to do that" but he did so later because "'cause at least I was trying."
29. It was put to the plaintiff that one of the first things he said to Ms Joanne Anderson when she arrived was: "Do you have to put it out?" The plaintiff did not deny that this was said but stated that he did not recall it.
30. The plaintiff agreed that first thing he thought of when he saw the fire at 1 am, was to approach his elderly parents and tell them about it, before he made any attempt to put the fire out.
31. The plaintiff could not explain why he placed his passport and albums in a shed some hundreds of metres away, when he could have placed them in the glove box of the car, on the back seat, or in his pocket. The plaintiff detoured from returning to the burning house to go to the shed where he placed his albums and passport because he was panicking and thought that he was doing the right thing.
32. The plaintiff agreed that he did not tell the police that the door closest to his bedroom was jammed or stuck. Furthermore he accepted that he described his guard dog as one which barked when people came to his property, but he heard no barking that night because he was asleep.
33. The plaintiff agreed that in his interview, he did not suggest to police officers that there was any reason to prevent him leaving by the door rather than the window. Indeed, his answer to the officers was that he thought "it was a bit hasty 'cause then I probably thought it … well, I could have taken the door but anyway. I'm out."
34. When the plaintiff was tested about his statements to police as to when he first called the fire brigade, he volunteered that it was as he drove back from his parents' house to the fire. However, he reasserted that he made the 000 call before he left his house to go to his parents' house. He explained the inconsistency of these versions by saying that he was in a panic. However, he reiterated his statement to police that three minutes elapsed between leaving his house and ringing the fire brigade.
35. The plaintiff explained his answer to police that by the time he had got back "I grabbed hold of the hose and was in the back door" was incorrect but given honestly because "the whole sequence of events of that time are very hazy". The correct position was that he did not enter his house with a hose until after the fire brigade had arrived.
36. The plaintiff was asked about his statement in the police interview concerning putting his passport and stamp albums into the shed on the way back from his parents' house. He told police that he did not really understand why he put them in the shed and described it as "weird". Nevertheless, he denied that the items were placed in the shed before the fire started.
37. The plaintiff was taken to his statement to police that at the time he left his house upon discovering the fire, he had not called the fire brigade and to his subsequent answer: "I really can't remember" whether he rang them at the house or at his parent' house.
38. The plaintiff stated, upon being shown photos of "pour patterns/marks", that he did not notice those marks when he walked through the house on the morning after the fire. He then indicated that Ms Joanne Anderson pointed them out and "we were wondering what they were." Those marks were not present on the night before the fire. Nor could the plaintiff smell any accelerant such as petrol or kerosene. He did not recall any damp patches in the hallway on the preceding night when he went to bed.
39. The plaintiff was taken to his statement to police that at an earlier time his 14-year-old daughter had spilled kerosene in the lounge room and for a period thereafter it left an odour. In that context he told police: "Yes, I could smell it the last couple of days." He agreed that that statement was probably incorrect.
40. The plaintiff was insured against fire and knew that if his house was destroyed he could recover insurance monies. He agreed that the insurer would rely upon him to be honest and accurate in his account of the event and he subsequently provided a statement to the insurance investigator. The plaintiff accepted that he did not mention in his statement to that investigator any problem concerning opening the door closest to his bedroom. He made his exit by the window because it was "instilled" in him; however he accepted that could have left by the door.
41. The plaintiff also agreed that he did not tell the investigator that returning from his parents' house, he stopped off at a shed to store his passport and albums. The plaintiff disagreed with the proposition that he deliberately made a number of false statements to the investigator for the purposes of gaining an insurance payout.
42. The plaintiff also accepted that his statements to the effect that on his return, he tried to extinguish "the now raging inferno" in his house and that he tried to use his garden hose "but to no avail" were incorrect, given that he only took such steps after the fire brigade had arrived. However, the plaintiff denied that he lied, stating that it was only a matter of moments after his return that the fire brigade came upon the scene.
43. The plaintiff claimed that his statement to the investigator that he "had no experience in structural fires" was not incorrect "if you talk about the ins and outs of structural fires and knowing exactly what to do with structural fires, no, I had no experience." The fact that he had attended at four structural fires was qualified by the fact that he was not on his own. The plaintiff accepted in the light of that fact that he had "some experience with structural fires, yes. I have been in attendance to some fires, some house fires."
44. The plaintiff denied that he had made a false statement to Mr Ward, the fire investigator, to the effect that when he returned home after visiting his parents, he kicked open the side door and used the garden hose, and started to hose the hallway. He agreed that he claimed to have commenced fighting the fire after the fire brigade arrived, but that was a true statement.
45. The plaintiff denied that the statement that he was only bushfire trained and not structure fire trained was false. He also denied that the statement that "after about 30 seconds" the Fire Brigade commenced to arrive was false.
46. In re-examination, the plaintiff gave the following evidence about his financial position at the time of the fire: he was receiving a payment of $300 per week from Omegan Pty Ltd, which was a company owned and controlled by him. In about May or June 2012, he sold that portion of the property that he farmed and grazed and which was on a separate title, for $1.8 million. At the time, the plaintiff was grazing about 230 cows as well as 320 lambs, and ended up selling the cattle stock for up to $1500 for a cow and calf and about $120 each for the lambs. In addition, the plaintiff was owed approximately $200,000 by his brother, a debt owing for a large amount of grain that he had delivered to his brother for export. That debt was due and payable as at 22 February 2010 and was subsequently repaid about three months later.
47. In addition, his partner Ms Tracy owned a property west of Lithgow with her three sisters, which she was in the process of selling and consequently realising a profit from that sale.

Defence Case

1. Ms Joanne Anderson was a member of the Neville Fire Brigade in 2010 and has been a part of that brigade for about 18 years. In the early hours of 22 February 2010, the designated fire phone rang and she became aware that the call was for her local brigade area. She indicated that she would respond, although she was not the duty officer. She and her husband Russell Anderson went to a fire truck approximately two blocks down the road from their residence. Another brigade member Denis Woodford arrived some two minutes later.
2. They donned their protective equipment, entered the truck and notified radio control that they were responding to the fire. The plaintiff's house was about a kilometre or so away, just outside the village. Ms Anderson was not aware before arriving that it concerned the plaintiff's house, because the rural property numbering had not long been in existence. They drove down the Barry Road and turned off to the left to the plaintiff's house. Before getting to the plaintiff's driveway, Ms Anderson noticed as she looked up the hill that there was a lot of light in the area.
3. As the vehicle proceeded along the driveway, Ms Anderson observed that the fire was actually in the plaintiff's house. She also observed that there were two vehicles parked with their headlights facing towards the house to light up the area. When she got out of the truck, she walked to the back of the truck and commenced to start the pump. At that point she saw the plaintiff standing next to her at the back of the truck.
4. Ms Anderson did not remember the entire conversation but did recall one statement in particular where the plaintiff asked her: "Do you have to put it out?" Ms Anderson answered: "Of course" and the plaintiff replied: "If it's gone, it's gone." She characterised the latter statement as a warning for the fire crews' safety.
5. After starting the pump, Ms Anderson and the other brigade members proceeded to the house with a hose line. Russell Anderson walked around the house consistent with standard procedure, to check for any other burning areas and for hazards. As she and the plaintiff came to the verandah, Ms Anderson asked the plaintiff where the power box was and upon checking the power box, she noted that it was off.
6. Ms Anderson made observations as to whether there was breathable air inside the house, whether it was completely full of smoke and she looked for signs of fire to see whether it was safe for the crew to enter. She looked through the big glass doors on the veranda and observed an area of burning in the corner of the dining room. She described it as the area between the fireplace and the entry to the hallway i.e. in the left hand corner of the room.
7. It was determined that the crew could safely go into the building, so Denis Woodford charged the hose line in readiness to deliver water. They entered the house by opening the door and whilst Ms Anderson noted the heat, she observed that there were no problems breathing. As a result they determined to continue with suppressing the fire. Ms Anderson and Russell Anderson then undertook a search of the building to ensure that there were no other occupants. Whilst doing so, Ms Anderson noted that the plaintiff had entered the house again and had a hose - he was near the bathroom door. There was a discussion about his personal protective equipment and both the plaintiff and Ms Anderson left the house.
8. As Ms Anderson walked along the hall way, she noticed burn marks on the carpet and also in other parts of the house. She pointed out those burn marks to the other fire fighters who were there. In her police statement which became an exhibit, Ms Anderson stated that she pointed out a series of burn marks in the hall way to the plaintiff who explained that perhaps, they were caused by a burning light fitting.
9. In the day or days following the fire, Ms Anderson received a phone call from the plaintiff in which she asked the plaintiff: "Do you remember what you said to me last night?" The plaintiff replied in the affirmative and said that Ms Anderson should not mention that.
10. In cross-examination, Ms Anderson disagreed that the plaintiff had said to her words to the effect: "You have to put it out" and excluded the possibility that she had misheard the plaintiff. She also rejected the proposition that her reply was: "Of course" rather than "Of course we do".
11. Ms Anderson was tested about her recollection of the plaintiff's state at the time of the fire, she having given a description to an investigator that the plaintiff "appeared to be in shock". In her evidence, Ms Anderson described his condition as being in emotional shock rather than being in shock in a medical sense i.e. that he was distressed.
12. A police officer, Detective Senior Constable Cullen attended the plaintiff's premises on the morning after the fire. He walked into the premises and observed "a number of patterns on the floor in the hallway". He formed the opinion that a flammable liquid had been poured on the carpet and he confirmed that by kneeling down and smelling kerosene. The officer asked the plaintiff about those patterns and he offered no explanation for the marks.
13. The officer then took two samples: one sample from the area of the burn marks or pour patterns outside bedroom 1 (the bedroom occupied by the plaintiff) and the second sample from the area of origin near the book case and subsequently sent them off for analysis. Detective Cullen stated that from his experience, a pour pattern is where a flammable liquid has been poured on a carpet and then ignited. The flammable liquid burns and it then burns a pattern into the carpet. He identified such patterns in a number of the photographs taken at the plaintiff's house, making the observation that the black marks on the carpet indicated where the flammable liquid had burnt.
14. Based on his experience, Detective Cullen explained the mechanism by which a trail such as was observed in the plaintiff's house, causes marks to a carpet. A liquid is poured along the carpet usually towards some other combustible material and then it is ignited so that it allows the flammable liquid to ignite the more combustible material. The officer determined that the origin of the fire was in the area of the book case in the dining room, that being the location where most damage was. He excluded other causes apart from deliberate lighting as part of his investigation. He found no evidence of a lightning strike, a power failure in the area or fire having commenced from an electrical socket.
15. As a result of those observations, Detective Cullen formed the opinion that the fire was deliberately lit and that a trail of flammable liquid was lit from the eastern end of the hallway to the book case in the lounge room. He determined that the fire spread into the roof cavity and out into the lounge and dining rooms. He also concluded that a further flammable liquid trail was detected in the western hallway and that due to an apparent lack of oxygen, the fire did not progress throughout the house, causing only moderate damage.
16. A NSW Police Force, Forensic Services Group sketch compiled by Detective Cullen on 22 February 2010 was received into evidence. The sketch notes that almost throughout the length of the hallway in the plaintiff's home were patterns noted by the officer as "pour patterns". Of particular significance is the notation immediately outside the plaintiff's bedroom: "smell of kero".
17. In cross-examination, Detective Cullen agreed that burn patterns can be caused on different surfaces due to some combustible material falling onto the surface in the course of the fire. He expressed some hesitation in agreeing that something such as a burning piece of paper landing on the carpet could cause similar marks, reasoning that the heat from such a source tended to rise rather than burning down in towards the carpet. The officer was taken to a burn pattern which was shaped similar to a bowling pin (in photograph 14 of Exhibit 2), and agreed that there appeared to be a large quantity of combustible material settled on the burn pattern.
18. In any event, Detective Cullen considered it unlikely that the burn mark could be accounted for by burning material becoming airborne and settling on the carpet surface, because the main fire was burning around the corner from that location. In addition, he did not agree that what is shown in that photograph is combusting material which has settled on the area saying that he did not know what it was.
19. Detective Cullen was asked about finding a power board near the origin of the fire and collecting it for the purposes of analysis. He did not agree with the proposition that he collected the power board because of any suspicion that it was a cause of the fire but more for the purpose of being thorough. Detective Cullen stated that he took the power board because he suspected that it could have accounted for the commencement of the fire, but once other things were found and further investigations conducted, that cause was ruled out.
20. Detective Cullen confirmed that in the area of the origin of the fire, he could not detect a smell of accelerant but accounted for that because the fire brigade had put a lot of water onto that area. He observed that despite the water being placed on that area, it was reigniting which indicated to him that there may have been an accelerant present. However when the officer took a sample, he found no presence of an accelerant.
21. The officer made no investigation of the wiring in the house because he did not believe the fire began from an electrical device. Even though the plaintiff raised the possibility that an electrical fault might be the cause of the fire, Detective Cullen substantially excluded the power board as the source because the fire had not developed from there, but had progressed towards the power board and it was in any event, on the other side of the wall.
22. Detective Cullen was unaware whether there was any electrical wiring in the house that went below the floor. If there were wires underneath the carpet, he considered that there would have been some evidence of the wire having burnt through the carpet. He reiterated that in the location that he smelt the kerosene, the fire had travelled from the top surface of the carpet downwards not from underneath the carpet in an upward direction. In terms of the marks along the side of the hallway near bedroom 2, the officer considered that it might be consistent with the combustion of the cotton outer covering of sub-carpet wiring, but he did not see any wiring and did not believe it to be the case.
23. Detective Cullen considered that the mechanism of the fire was that the fire was ignited probably by a trail from the eastern end of the hallway leading towards the book case to the area of origin which he described as the area in which the fire had burnt the longest.
24. Detective Cullen stated that when he first entered the house he smelt nothing, but as he walked down the hallway and got close to the pour patterns, he was able to smell kerosene. He could only detect the smell by placing himself close to the ground. He agreed that he did not put that observation in his statement and was unsure why he did not do so, given that it was standard practice for such matters to be recorded. Nevertheless, the officer remained certain that he did smell kerosene.
25. Detective Senior Constable MacLean was involved in the investigation of the fire and attended at the premises on 22 February 2010. He spoke to the plaintiff at the scene and conducted a formal interview at the police station later on that day. Detective MacLean confirmed that the distance between the plaintiff's house and his parents' house was approximately 300 or 400 metres.
26. Detective MacLean also made contact with Ms Tracy (the plaintiff's partner) in January 2011 and she disclosed that the plaintiff had spoken to her about a dream concerning a fire at his premises and what would happen if the house burnt down. Subsequently, the plaintiff admitted having such a conversation. It is pertinent to note that the fact of this conversation only became known by reason of Ms Tracy's disclosure of it. The plaintiff had not disclosed it earlier to the police or the other investigators but subsequently admitted to it when later confronted with this material.
27. Mr Glen Ward, a self-employed fire investigator, undertook a cause and origin investigation of the fire at the plaintiff's house. He subsequently prepared a report, part of which was admitted into evidence. The report confirmed that Mr Ward commenced his enquiries on 25 February 2010, about three days after the fire. He acquired information from a NSW Police Crime Scene examiner and an RFS investigator, who thought the fire to be suspicious. Mr Ward noted that the RFS investigator "agreed there were pour patterns on the carpet but that they didn't relate to where the fire originated."
28. In his report, Mr Ward recorded that he also spoke to the plaintiff about the "apparent" pour patterns and the latter stated that the first he had heard about them was on the morning of 22 February 2010 when the police examiner pointed them out to him. I note that this is not consistent with Ms Anderson's police statement in which she said that she raised the burn marks with the plaintiff shortly after the fire was extinguished.
29. The plaintiff also informed Mr Ward that the electrical system in the home was problematical and that recently two fridges had blown as had a number of lights all within a fortnight of each other. Apparently they had not been on the same power point but were probably on the same phase or circuit. The plaintiff indicated to Mr Ward that a power point in the living room might have started the fire because it accommodated a large number of plugs which were connected to various appliances. The plaintiff stated that after the fire, his elder daughter told him that previously, when she had been cleaning an appliance in that area, she noticed the power board into which it was plugged was hot.
30. Mr Ward reported that he spoke with Detective Senior Constable Maclean who disclosed that he could smell "an odour similar to kerosene when he attended the home on 22 February 2010". The Police Crime Scene examiner, Detective Cullen also informed Mr Ward that he believed the fire was deliberately lit using an accelerant. He spoke to Ms Anderson who informed him that on the evening, she noticed marks on the carpet in the hall outside the plaintiff's bedroom and outside the bathroom. She stated that during firefighting activities, a considerable amount of water had been poured into the dining room soaking the carpet. Ms Anderson also said that there were two patches among the burning pile of books that were difficult to extinguish - one area was on the pile near the wall behind where a book case had stood and the other was at the opposite end of the pile near the fireplace.
31. Mr Ward examined the house and noted localised fire damage in the corner of the dining room, which contained the timber framed book case. The floor of that room consisted of timber floor board covered by rubber underlay and carpet. Mr Ward examined the fire damage in that vicinity and observed that the fire had created a V type burn pattern on the slate on the front wall of the fireplace, the lowest point of that pattern was at floor level in the bottom corner opposite the book case and the pattern then rose diagonally upwards on the front of the fireplace away from the book case.
32. During his examination, Mr Ward observed that the double power point above the skirting in the corner between an entertainment cabinet and the book case was intact. In front of the entertainment unit, he observed the presence of "several small apparent burn spots". He removed the burnt books and papers from near the book case and observed that the underlay between the book case and the side of the fireplace was intact, the timber around the base of the wall behind the book case was intact, and the carpet and underlay had been destroyed.
33. Mr Ward observed that in the area of the dining room where the doorways to the third bedroom and apparent pour patterns were located, the carpet had been destroyed and "followed a slightly curved path approximately 5 cm wide." That loss of carpeting continued from the dining room into the hall way and Mr Ward concluded that it appeared "as an apparent liquid accelerant burn pattern measuring some 1.2 m in length by approximately 40 cm at its widest point." He also noted a similar apparent liquid accelerant pattern measuring some 2.4 m long by 5 cm wide located along the southern wall of the hall.
34. Mr Ward observed similar burn patterns on the southern side of the dining room in the doorway to the third bedroom, consisting of a round central area measuring 35 cm in diameter and narrow curved burn marks. He provided measurements for those burn marks. He noted two further apparent liquid accelerant burn marks in the other wall between the bathroom and the kitchen, the largest of which measured 90 cm x 20 cm. He collected sample carpet from various locations and forwarded them for analysis. The results of that analysis were not admitted into evidence.
35. In evidence, Mr Ward confirmed that when he met with the plaintiff on the morning of 25 February 2010, the plaintiff told him that he had driven to his parents' home to tell them he was okay but that his house was on fire. The plaintiff also said that when he returned to his home, he kicked open the side door near the carport and using the garden hose, started hosing the hallway. He only went in as far as the beginning of the hall.
36. The plaintiff told Mr Ward that after about 30 seconds, the local fire brigade started arriving and he removed himself from his home. Mr Ward asked the plaintiff about the apparent pour patterns on the carpet and the plaintiff said that he had no idea. The plaintiff stated that the first time he heard about the pour patterns was on the morning of 22 February 2010, when he was escorted through the home by the police crime scene examiner. In relation to those patterns, the plaintiff stated that he thought they may have resulted from the failure of the ceiling lights or something similar.
37. Mr Ward conducted an examination to ascertain the area of origin of the fire which he determined as in the vicinity of the book case in the south east corner of the dining room. He initially took photographs and then removed debris to enable a closer look at the floor and area surrounding the book case, hall and living room. He looked at some of the burn patterns and concluded that the area of origin was near the book case. He identified the burn patterns from a number of photographs. The witness identified the term "burn pattern" as a burnt area.
38. He described the circumstances in which a "pour pattern" could occur: where there is carpet on the floor, a liquid accelerant is poured onto that surface. The accelerant soaks into the carpet and would be protected under the carpeting. The process of ignition on top of the carpet is that the volatile fumes from the accelerant actually burn. Once they are ignited, the fumes burn in the area where the accelerant was located so that the ignition basically follows the outline or the shape of the pool or pattern. At the edges of the pattern or the pool, the flames come into contact with the carpet and the carpet fibres melt. As the pool of accelerant boils off, the edges of the pattern or the pool recede on the surface of the carpet and that area becomes blackened and burnt.
39. Mr Ward disagreed that the patterns could have been caused by some wiring or electrical problem running under the carpet. He came to this conclusion because when he removed the debris from the living room and book case area, he found no evidence of any burning to the timber floor underneath, nor any traces of wire.
40. In cross-examination, Mr Ward agreed that he arranged to have the samples analysed because he wished to confirm that the pour patterns were in fact due to a liquid accelerant. In relation to the suggestion that he appreciated that there could be some other explanation for them, he indicated that he had very little doubt that an accelerant was the cause; and he sought to have confirmation by positive proof. However, Mr Ward disagreed with the proposition that if there were no other possible explanation, he would not need confirmation of that. Nevertheless he said: "I can't come and state that these are burn patterns without proving it. If I didn't get … a positive lab result, well, then I couldn't call them burn patterns."

Principles

1. The case for the defendant involves the assertion that the plaintiff either ignited the fire to his house or was complicit in that act. In addition, the defendant contends that the claim made by the plaintiff upon his contract of insurance was made fraudulently contrary to section 56 of the Insurance Contracts Act 1984. In either event, the claim involves an allegation of criminality or impropriety by way of fraudulent claim.
2. Section 56 (1) provides that where a claim under a contract of insurance is made fraudulently, the insurer may not avoid the contract but may refuse payment of the claim.
3. Section 140 (1) of the Evidence Act 1995 provides that in civil proceedings, the court must find the case of a party proved if it is satisfied on the balance of probabilities. Subsection (2) provides that a court may take into account as to whether it is so satisfied the nature and cause of action or defence; the nature of the subject matter of the proceedings and the gravity of the matters alleged - section 140 (2) (a) - (c).
4. Two broad issues of principle arise in the present case: firstly, what is the content of the onus of proof in circumstances where there is an assertion of fraud or other impropriety; and secondly, which party bears the onus of establishing that fraud or impropriety.
5. As to the first issue, in Asim v Penrose [2010] NSWCA 366, Tobias JA in giving the principal judgment with which the other justices agreed, reviewed the principles relevant to the appropriate standard of proof in a circumstantial case where there were serious implications involving a culpable driver's conduct if the finding were to be made. At paragraph [41], his Honour summarised the position as follows: Certain principles have become well-established in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud. The following are presently pertinent: (a) The jury must consider "the weight which is to be given to the united force of all the circumstances put together" …; (b) The onus of proof is only to be applied at the final stage of the reasoning process: "(i)t is erroneous to divide the process into stages and, at each stage apply some particular standard of proof. To do so destroys the integrity of (a) circumstantial case" …; (c) The inference drawn from the proved facts must be weighed against a realistic possibility as distinct from possibilities that might be regarded as fanciful. (d) Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw v McEwan's Proprietary Ltd (1951) 217 ALR 1 at p.5
6. I note that in Bradshaw, the High Court stated that in civil cases involving circumstantial evidence, it is enough that the circumstances give rise to "a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture …". The Court emphasised that even though proof may fall short of certainty, accepting that it has risen to the level of balance of probabilities, it is not to be regarded as mere conjecture or surmise.
7. Tobias JA also drew attention to the seminal statement by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.361-2, in which Dixon J pointed out that in a civil case, it sufficed that a party has made out an allegation to "the reasonable satisfaction of the Tribunal". However the issue of what constitutes a reasonable satisfaction is not to be determined independently of the nature and consequences of the fact to be proved. His Honour continued: The seriousness of an allegation made, given the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to that question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
8. In Curtis v Harden Shire Council [2014] NSWCA 314, the Court of Appeal considered whether the trial judge had applied the correct standard of proof on the question of causation. Their Honours considered a number of the applicable authorities and concluded that to satisfy the onus of proof, "a judge must have an 'actual persuasion' of the existence of an event or occurrence … on the balance of probabilities, including by the drawing of such available inferences as … (are) considered appropriate" - paragraph [176].
9. The Court disapproved of McDougall J's statement of the relevant test, in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 that the question of "actual persuasion" was to be determined by consideration of the probabilities of the fact's existence being greater than the possibilities of its non-existence. The Court referred to the statement of the members of the High Court in Malec v JC Hutton Proprietary Ltd (1990) 169 CLR 638, where Deane, Gaudron and McHugh JJ wrote that: "A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred."
10. In other words, the appropriate test was a comparison of probabilities, not of a probability with a possibility, and the second of the principles below should be read in that sense. Nevertheless, McDougall J in Nguyen conveniently set out the principles to be applied at paragraph [55]: (1) A finding that a fact exists (or existed) requires that the evidence induce in the mind of the fact finder, and actual persuasion that the fact that does (or did at the relevant time) exist; (2) Where on the whole of the evidence such feeling of actual persuasion is induced, so that the fact finder finds that the probability of the facts existence, are greater than the possibilities (i.e. probabilities) of its nonexistence, the burden of proof on the balance of probabilities may be satisfied; (3) Whether circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact or inconsistent with its existence, be excluded before the fact can be found; and (4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities as to the existence of the fact in issue.
11. As to the second issue - who bears the onus of proving fraud or impropriety, a useful starting point is to consider the decision of the Court of Appeal in Hammoud Brothers Proprietary Ltd [2004] NSWCA 1. In that case, the applicant company sued the insurer under a policy of insurance for an agreed value of a motor vehicle which had allegedly been stolen. The exclusion clause in the policy stated that it did not cover "loss or damage intentionally caused by you or a person acting with your express or implied consent". Meagher JA confirmed that it was for the plaintiff to establish theft and for the insurer to negative that assertion by their allegation of fraud - paragraphs [7] and [13].
12. In Vidal v NRMA Insurance Ltd [2005] NSWCA 390, Handley JA confirmed that the onus was upon the plaintiff in similar circumstances, to prove on the balance of probabilities that her car was stolen otherwise than with her involvement or consent and that it was upon the insurer to prove that the claim was fraudulent - paragraph [3]. At paragraph [15], his Honour observed that on occasions an insurer may simply put the insured to proof without having a positive case. At other times it may well have a positive case. However an insurer is entitled to run a positive case, without undertaking anything more than an evidentiary burden of displacing the plaintiff's prime facie case. In the event, even if an insurer suggests or runs a case indicating an alternative cause of loss, a court may conclude that the proximate cause of loss remains in doubt, notwithstanding the suggested alternative cause not having been made out.
13. Perhaps the most recent authoritative statement on the general subject matter of the onus of proof in a contract of insurance with the exception clauses, is to be found in McLennan v Insurance Australia Ltd [2014] NSWCA 300. The Court confirmed the well accepted principle that the insurer must prove that loss falls within an exception to the policy - paragraph [6]. The distinction drawn in the authorities and emphasised by the Court of Appeal is between an obligation qualified by a general exception which is applicable to all cases (in which case the plaintiff must negative the exception) and a general obligation qualified only by particular exceptions (in which case the person seeking to rely on the exception must prove himself/itself within it) - paragraph [9]. The Court noted that much turns on how the insurer's promise is formulated.
14. The principles which appear to apply were stated by the Court at paragraphs [27] and [28]: [27] In a policy of marine insurance, the peril "fire" is ordinarily construed as not confined to an accidental or fortuitous fire and as including one that has been started deliberately (at least, other than by the insured or the insured's connivance): …. The position is the same under a non-marine policy of insurance: … That the word "fire" as used in the NRMA policy extends to fires started deliberately is confirmed by the description of what is not covered. The qualification in relation to fires started with the intention of causing damage does not extend to all fires that have been deliberately started. [28] It is not controversial that even in the absence of an express provision excluding cover for a fire deliberately started by or with the connivance of the insured, the insurer is not liable for the loss or damage so caused … (Citations omitted)
15. It appears to be common ground between the parties that the onus is upon the plaintiff to prove that the fire was accidental, in the sense that he was not involved in its ignition. Even if that be wrong and the onus is upon the insurer/defendant to establish that the plaintiff did connive in the ignition of the fire, as will be evident at the end of these reasons, I consider that either the plaintiff has failed to discharge its onus or in the alternative, that the defendant has proved that the fire was not accidental, in the sense discussed above.

Consideration

1. The evidence gives rise to two broad possibilities as to the cause of the fire: firstly, that the fire was ignited deliberately either by the plaintiff or by somebody with his knowledge and consent or that the fire was ignited deliberately by an intruder.
2. The second possibility is that the ignition was caused accidentally for example, by electrical fault or in some way associated with the spilling of kerosene by the plaintiff's daughter some days previously.

Deliberate Ignition?

1. Counsel for the plaintiff, Mr Toomey, argued that the evidence of the defendant's expert witnesses as to the cause of the fire, was not supported by any chemical analysis as to the presence of an accelerant. He relied upon Mr Ward's reticence to characterise the burn patterns as "liquid accelerant" patterns, by his use of the qualifier "apparent" and referred to Detective Cullen's lesser experience than Mr Ward. In addition, counsel contended that it was difficult to account for Detective Cullen's omission to record in his written statement, that he smelt an accelerant on the carpet.
2. In summary, Mr Toomey submitted that the court could not be satisfied on the balance of probabilities that the fire was deliberately lit because there was a lack of any chemical analytical support for the presence of an accelerant; Mr Ward could only describe the burn patterns as "apparent" liquid accelerant burn patterns; and Mr Ward, it was contended, implicitly acknowledged that the burn patterns could be due to some other cause. Mr Toomey also contended that the omission by Detective Cullen to explain the presence of other combustible material overlaying at least one of the burn patterns was significant; he contended that the officer acknowledged that another of the burn patterns could have been consistent with faulty subfloor wiring and there was a strong suggestion of electrical faults in the house.
3. As to the contention that the marks might have been caused by the settling of burning material, on my viewing of the photographs, the combustible or burnt material appears to cover only part of the burn pattern i.e. to the right-hand side of it and not the entirety of it. The uncovered part of the burn pattern appears to show a relatively clean carpet with a clear and definite burn pattern shown. Had there been combustible material strewn around the entirety of the burn pattern, the proposition that the burn pattern was caused by some burning material landing on the carpet can be more readily accepted. Accepting that fire fighters most probably accessed the hall way, it is certainly possible that some combustible material might have been moved from on top of the burn pattern and hence the pattern became partially exposed. Absent some possible explanation as to how one part of a burn pattern caused by the settling of combustible material remained covered by that material and another part is relatively free of burnt debris and exposed, I consider that the proposition that the entire so-called burn pattern was caused by such combustible material is less likely.
4. A critical issue as to whether the fire was deliberately lit, is whether the burn marks observed in the hallway and outside the bedrooms are pour patterns in the sense that they were caused by the ignition of an accelerant which had been applied to the carpet. Counsel for the plaintiff suggested during cross-examination that the burn marks were equally consistent with burning material coming to rest on the sections of the carpet and hence causing the burn marks.
5. The evidence supporting the contention that the marks were pour patterns, is that of Detective Cullen and the investigator Mr Ward. In my view, Mr Ward's evidence is relevant in that his conclusion that the marks were apparent pour patterns, was in part due to the shape and dimensions of the marks. He did not agree that the patterns could have been caused by some electrical problem under the carpet, especially as he found no evidence of any burning to the timber floor underneath nor any traces of wire. Despite the lack of any chemical analysis, the expert witness was left in little doubt that liquid accelerant caused the apparent pour patterns and was also the cause of the ignition.
6. I am not persuaded that the asserted lack of experience of Detective Cullen makes his evidence less reliable. The fact that he could discern the smell of kerosene proximate to the burn marks, reinforces the conclusion of pour patterns.
7. Nor am I convinced by the proposition that Detective Cullen's omission in recording that fact in the statement causes his evidence in this regard to be unreliable, either due to the possibility of his being mistaken or otherwise. Carpet samples were taken and analysed. Because there was a missing link in the chain of continuity in relation to those samples, the results of that analysis was not admitted. However, Detective Cullen would have expected at the time he was conducting his examinations that the samples and the results, would confirm the presence of accelerant. In those circumstances, the fact that he omitted to mention smelling of the accelerant in his statement, has in my view, much less weight.
8. This conclusion is in my view, inevitable because any possibility of mistake and/or recent invention is effectively removed have regard to the contemporaneous sketch plan drawn by Detective Cullen on 22 February 2010 and the reference in it, to the smell of kerosene.
9. There is of course no expert evidence confirming the presence of kerosene, but in my view, given Detective Cullen's contemporaneous note and the experience of both witnesses, including the observations of Mr Ward, I am satisfied on the balance of probabilities that kerosene was present in the proximity of the burn marks and that a cause of the fire involved the application of that accelerant.
10. Consequently, I discount as a reasonable probability the proposition that the burn marks were caused by burning material settling on the areas of carpet. In my mind, that probability can be discounted by reason of the shape and extent of the burn marks, which appear to approximate the markings similar to that which one might expect by inflammable liquid being poured onto the surface and ignited. It is harder to conceive what kind of burning material of that shape, could have caused the marks absent the presence of for example, burning plastic or other molten material. The evidence does not suggest the presence of that kind of material around the burn marks.
11. Accordingly I conclude on the balance of probabilities that the burn marks are pour patterns, caused as a result of the application of an accelerant. My conclusion is fortified having regard to the plaintiff's inconsistent evidence as to when he first became aware of the pour patterns (as to which see the evidence of Ms Anderson and Mr Ward).
12. In determining whether there remains a reasonable possibility that an intruder caused the fire, the intruder must have entered and left the house without being heard or detected. The evidence disclosed that the plaintiff had a guard dog (a description adopted by him in his police interview), and he described by the dog as being "very good" in barking when people came. For an undetected entry to have occurred, the intruder must have entered the house, in some proximity to where the guard dog was tethered (according to the evidence of the plaintiff, approximately 15 metres from the house).
13. The possibility that the intruder approached and entered the plaintiff's home otherwise than through the double doors at the front, seems unlikely if one accepts the plaintiff's evidence that both side doors were unlocked. There seems to be no evidence of forced entry otherwise. The probability therefore is that the intruder gained entry through the front double doors i.e. the doors closest to where the guard dog was kennelled.
14. Nevertheless, it matters little in my view, where the intruder may have entered the house because whatever alternative is considered, it is difficult to accept that the person was not heard by the guard dog and that the guard dog did not react by barking. Alternatively, if the guard dog did bark, there is no plausible reason why the plaintiff did not hear that sound. Especially so, when he was awakened by the sound of the multiple smoke alarms, which must have been activated some short time after the intruder came upon the scene. In this context, the plaintiff's explanation that he was in a deep sleep is difficult to accept, and I am unable to do so.
15. It is relevant in considering the probability of this version of events, to note that after igniting the fire, the intruder must have left by one of the three exits to the house (and most probably by the front double doors, they being the only door which was unlocked). If the intruder left (presumably, with some expedition given that he/she had just ignited the accelerant in the house), one would expect the guard dog to have been barking at that time. The plaintiff gave no evidence of hearing any barking at that or at any other time.
16. The entry by the intruder into the plaintiff's premises and the dispersing of the liquid accelerant, must have occurred in the three hour interval between 10pm and 1am. It would have occurred (putting aside any reaction by the dog) in close proximity to where the plaintiff was sleeping and without apparently alerting him to the intruder's presence. The pour patterns are reasonably extensive and some are quite near to the plaintiff's bedroom. In my opinion, it is improbable that these events occurred without the plaintiff being woken either by the sound of the intruder or the smell of kerosene or both.

Accidental Ignition?

1. The only possibility suggested in the evidence for the fire to have been caused accidentally, is based upon the possibility of faulty wiring. That version was said to be supported by the plaintiff's experience of wiring problems in the house, the observation by the plaintiff's daughter of an overheated power board near the book case as well as the possibility of overheated under carpet wiring. I have referred to the improbability of the under carpet wiring scenario.
2. If it was possible that an electrical fault was the cause, that scenario does not explain the burn patterns found extensively in the hallway. Those patterns appear to be random and not necessarily following the path of underfloor or under carpet wiring (as was suggested in cross-examination).
3. The only evidence suggests that there was no under carpet wiring in the area of the burn marks and also that there were no burn marks to the timber floor. Furthermore, the expert evidence does not support the proximity of any power board close to the area of origin but the only power point on the wall, which did not show signs of being the point of ignition. In my opinion, the cause of an electrical fault, the wiring or overloaded power points, can be excluded.
4. In relation to the suggestion that the kerosene spilled by the plaintiff's daughter in some way contributed to the fire, I do not consider that that is a probable cause given the fact that the spilling of kerosene occurred approximately twelve days before the house fire and the spillage had been cleaned up, according to the plaintiff's version of events. In any event, that scenario does not explain the pour patterns, which occurred in the hallway proximate to the bedrooms and not in the living area where the spilling was said to have occurred. A further reason for discounting this version is that no likely cause of the ignition of the accelerant, has been suggested.

Other Relevant Circumstances

1. I accept the defendant's contention that many aspects of the plaintiff's evidence are unlikely or improbable, against the background that the fire occurred at a time when only the plaintiff and not his children were present. The plaintiff's explanation for leaving by the window is not convincing, given the proximity of the side entrance and his concession to the police that he could have taken the door. Indeed, the variable versions provided by the plaintiff in evidence (at paragraph above) that he went headfirst, then sideways and then with his feet first through the window, does not suggest a reliable account at all.
2. The plaintiff's account (amongst others) that the door was stuck, does not carry significant weight when he was able to re-enter the house on his own evidence, to fight the fire at the time of or shortly after the arrival of the fire brigade. Nor does the plaintiff's explanation about practising what he preached to his daughters in the event of a house fire, appear to my mind, to be convincing.
3. The plaintiff's evidence that there was no great difficulty in leaving by the window is also not convincing, especially when he drew in aid the fact that he had been doing so since he was a small boy and a shearer. Whatever might have been the case on those occasions, there would appear to be no legitimate comparison between the ability of a small boy leaving by a window and the ability of a middle-aged man as the plaintiff was in February 2010. The photographs of the window showing the proximity of the bed head to it and the gap between the open window and the top of the bed head, indicate in my opinion, that whilst exiting for an average adult might be possible, I do not accept that it would have been easy, as the plaintiff characterised it.
4. The plaintiff stated that he reached in standing on the ground and removed his passport and albums from the pillow on the bed, without any apparent difficulty. Once again, I do not discount the possibility that such an act could have been physically achieved by the plaintiff. However, given that the house is not on ground level and is built on footings which appear to be one or two steps above ground level and given that a person's access to the bed is impeded by the bed head which occupies at least half if not more of the open window, I consider that successfully reaching inside and removing items from the bed would be difficult.
5. Given that one or other of the plaintiff's daughters was usually present with him at his house, it is also somewhat coincidental that on the evening that a fire occurred, neither was present at the house.
6. The plaintiff's evidence was that when he was aware of the fire in his house, he grabbed his passport and albums from a cupboard in his bedroom and then left the premises with those items. He gave evidence that before leaving by the bedroom window, he placed those items on the bed and after jumping out, reached in and retrieved them. He then unleashed his dog and then proceeded to enter his Holden Commodore and reverse it down the driveway. He gave no evidence as to what he did with a passport and albums during these actions. He next said that he placed those items into the utility, in which vehicle he drove to his parents' house.
7. The alternatives as to what he did with his passport and other items was to leave them somewhere before getting into his utility or to carry them with him during these subsequent actions. If he left them somewhere unattended (even for a short time), this action appears inconsistent with his later acts of securing them in the shed. On the other hand, it would have been a cumbersome process for him to have done all he said he had done, all the while apparently, carrying around those items and then move them from one vehicle to another. In my view, this seems unlikely.
8. The plaintiff's evidence to the effect that he did not hear his dog barking before he was aware of the fire, is also unlikely. I am not convinced that in the comparative silence of a country setting and if the dog did in fact bark, that a person in the plaintiff's position, would have slept through that occurrence. That leaves the possibility that the dog did not bark, which seems to be contradicted by the plaintiff's evidence that it was a good guard dog.
9. The evidence of the plaintiff's dream about his house burning down was related to Ms Tracy before the fire. I made some observations earlier about the plaintiff's apparent reticence in giving this evidence when cross-examined by counsel for the defence - and following. Mr Toomey argues that this is a neutral factor, because it was not suggested that Ms Tracy was party to a conspiracy to burn the plaintiff's house. The plaintiff did not deny that he had such a conversation. The question is what significance to attach to it.
10. If the plaintiff had a concrete plan to burn his house at the time of the dream, there would be no logic in his canvassing this with Ms Tracy in the way he did. If on the other hand, he had no such plan, a likely explanation is that the dream prompted the idea of burning the house for insurance purposes. It is not to the point to contend that a person with such a plan would not have disclosed it. That is because the plaintiff was entitled to regard the conversation as a private one and the disclosure as one made to an intimate partner whose discretion could be trusted. In fact, the plaintiff only disclosed that dream when he was confronted by Detective MacLean in early 2011.
11. It is somewhat curious that the plaintiff had no memory of the statement to Ms Anderson to the effect: "Do you have to put it out?" Furthermore he said he had no memory of whether he rang Ms Anderson in the days after the fire and asked her not to mention what he had said to anyone.
12. I accept the proposition that the plaintiff may well have been panicking and flustered when he realised his house was on fire. It is a common human response, even for those trained to fight fires, to react emotionally and perhaps illogically, when the fire threat is to themselves or to their property. However, by the time the fire brigade arrived, the reality of the fire must have been obvious to the plaintiff. He had taken steps to remove himself from his property, release his cattle dog, move his motor vehicle, inform his parents and secure valuable property items in a shed. These are all considered and logical acts in the face of the threat to his house. Thereafter, Ms Anderson and the fire brigade arrived and by that stage, it is harder to accept that the plaintiff was acting out of panic and making illogical statements, which he later did not recall.
13. I accept that Ms Joanne Anderson was an honest and reliable witness. She was confident that she had made no mistake about having heard the words from the plaintiff. In my opinion, she was not shaken in her denial that she was mistaken about those words (even given the proximity of the diesel pump). The remark was recorded in her police statement, made in January 2011. It is also clear that Ms Anderson's recall of those words coincided with her reaction that the comment was a strange one and she was unsure if the plaintiff was joking. I am satisfied that the plaintiff did ask that question. The evidence appears to be that the plaintiff was either distressed, shocked or in medical shock. It is not likely that the plaintiff made the comment as a humorous aside.
14. I also consider that Ms Anderson who was not a partisan witness, provided an accurate account of that conversation. The question then arises: why did the plaintiff say those things to her and then seek to resile from them in the following day or days? Taken literally, the statement and subsequent acts of the plaintiff support the proposition that he did not want the fire extinguished and did not want others to know about that sentiment - in the circumstances, it is difficult to avoid the conclusion that the plaintiff did not have a genuine interest in having the fire extinguished, and this gives support to the proposition that he was involved in its ignition.
15. The plaintiff had been an experienced fire service volunteer over many years. According to his version, he discovered that his house was on fire and then went to his parents' house to inform them of what was happening and to seek moral support. The plaintiff's mobile phone was in the utility outside the house and he could have used it to call them. They were elderly folk. He had no expectation that they would assist in suppressing the fire. Even accepting that he was panicked and not clearheaded, it is difficult to comprehend why he went to his parents instead of attempting to fight the fire. If indeed the fire was deliberately lit by him or with his knowledge, leaving the house and going to his parents provided a greater opportunity for the fire to take hold and destroy his house.
16. The plaintiff's explanation for diverting from directly returning to his house after seeing his parents and leaving his passport and albums in a shed, is also not convincing. He gave no explanation for doing so. It seems patently clear that the plaintiff's house was on a secluded rural property. Even if he had concerns about the security of his passport and other items, he could have readily secured them in one of the vehicles which could be locked. Again, this deviation from returning to fight the fire, served to provide a plausible reason as to why the plaintiff did not attempt to suppress the fire with due dispatch.
17. Mr Toomey argued that the evidence concerning the plaintiff's 000 call to the fire brigade was inexplicable on any other basis than that the plaintiff wanted to extinguish the fire quickly. The submission appeared to be that if the plaintiff's true intent was to burn his house, what reason could there be for making the 000 call? In my view, that argument is not persuasive - the plaintiff was the only person present when the fire ignited. If he did not make a 000 call, he would have needed to explain that omission when speaking with the authorities or making any insurance claim. The best scenario for the plaintiff if he did light the fire was to delay the attendance of the fire brigade, to ensure that the fire took hold and the house was destroyed. In my opinion, similar considerations apply to the plaintiff attending at his parents' house, that action serving to provide a plausible explanation for why he may not have called for assistance earlier.
18. The plaintiff provided inconsistent versions about when he called fire brigade. In my opinion, the issue of any delay in calling the fire brigade, should be measured by common experience - I would expect that the first reaction of most reasonable persons would be to escape the fire; a simultaneous reaction would be to help any other persons present and/or any animals; a reasonable person might also seek to gather up any valuables if he or she had time and then he or she might call for assistance or fight the fire. I appreciate that reasonable persons may not act precisely as described, or perhaps not in the same sequence. However, to actually leave the premises to visit family (albeit who live nearby) and then to deviate to store valuables in a rural shed, in my opinion, are not the actions of most reasonable persons. In my opinion, the plaintiff's latter actions are implausible.
19. As has been noted above, his initial disclosure to police was that the call was delayed until he returned to his home, having seen his parents. That version changed in the course of the interview, to the plaintiff asserting that he made the call prior to leaving his house. There is little doubt that the significance of the issue of what timely steps the plaintiff took to suppress the fire, would have been uppermost in his mind in circumstances where the issue of a suspicious ignition had been raised by investigators. In my opinion, such confusion also adversely reflects on the plaintiff's credibility.
20. The plaintiff initially stated that he was unable to deploy his own hose to fight the fire because it was too short to reach the flames. That assessment was made in the early stages of the fire on any version of events. However, the plaintiff's belated attempt to fight the fire upon his return from his parents and near the time when the fire brigade came on the scene, also seems implausible.
21. There is no necessity if the defendant is to succeed, for it to prove that the plaintiff had a motive for igniting his house. However, in my opinion, the evidence does disclose such a motive.
22. It was argued by his counsel, Mr Toomey, that a reasonable view of the plaintiff's finances in February 2010, indicated that he had sufficient funds to undertake any renovations if he chose to do so. The argument was advanced to contradict the assertion by counsel for the defendant, that a motive for the plaintiff causing the fire was his lack of funds to undertake renovations to his home. In that context, the plaintiff's answer that he had no intention of renovating the house at the time, does not appear to support the submission by his counsel that in the plaintiff's view at least, he had sufficient funds to undertake any renovations. Had it been otherwise, he would not need to have said that he was happy to talk about it "until you can properly finance it".
23. The plaintiff's partner was in the process of selling her property with the intention of moving in with him and the plaintiff intended to renovate his home. The plaintiff conceded that he was not in a financial position to carry out those renovations. In my view, this is a plausible motive for him to have ignited the fire. The plaintiff's financial circumstances comprising an overdraft of $100,000 of which $87,000 had been drawn down and a mortgage of $500,000 over his property, put him in constrained financial circumstances, certainly at least in terms of having liquid assets. Even though there was evidence that he had debts due and his expected income would provide adequate resources for renovation, it is clear from his own evidence, that the plaintiff did not think so at the time.
24. Principle requires that in a circumstantial case, the fact finder must consider "the united force of all the circumstances put together". Applying that principle, I conclude that the plaintiff ignited the fire at his home or was a party to that event. I am satisfied of that fact on the balance of probabilities, acknowledging that the finding involves a conclusion of serious impropriety on behalf of the plaintiff.

Fraud on the Claim

1. Mr Cavanagh SC for the defendant, argued that in pursuing a claim under the insurance policy, the plaintiff made a number of false statements to the insurer. In this regard, I note the observations of Hammerschlag J in Brescia v QBE [2007] NSWSC 598 at paragraph [356] that what must be proved is: "a claim made extra-curially by an insured on an insurer with a dishonest intent to induce a false belief in the insurer for the purpose of obtaining payment or other benefit under the policy". The insurer's remedy under section 56 of the Act is to refuse to pay the claim.
2. The specific statements are contained in the plaintiff's statement on 10 March 2010 and also in the history he provided to Mr Ward.
3. I have already concluded that the plaintiff was involved in the ignition of the fire. A consequential finding in relation to this aspect of the defendant's claim is that the claim report submitted by the plaintiff on 17 March 2010, on the basis of accidental damage, was a false claim. I am satisfied that that is so on the balance of probabilities.
4. Similarly, the plaintiff's account of the fire and its aftermath as provided in paragraphs [9] and [10] of his March 2010 statement, are not truthful accounts and constitute false statements in pursuit of his claim.
5. I do not propose to determine each of the claims made by the defendant under this head but I am satisfied that the plaintiff's claim of leaving his house by the window and not the door was a false statement - paragraph [11]. I am satisfied that the plaintiff did not ring 000 until he returned from his parents' house and accordingly, his statement to the contrary at paragraph [12], was also false.
6. In his statement at paragraph [15], the plaintiff stated that "in analysing what caused the fire", he thought the power board near the fish tanks was reported by his daughter as "very hot to touch". His statement that "I consider that this is where ignition took place that resulted in the fire", is also in my view a false statement in pursuit of the claim.
7. I consider that the defendant has established fraud by the plaintiff in pursuit of the claim and I so conclude on the balance of probabilities, having regard to the serious allegations of impropriety which are involved.

Conclusion and Orders

1. For the reasons given above, I conclude that the plaintiff has not given honest and credible evidence about the cause and origin of the fire. I consider that the other hypotheses examined in the evidence: an electrical fault or that an intruder broke in and ignited the fire, are not reasonable hypotheses given all of the evidence, and I exclude them (acknowledging that principle does not require that level of satisfaction).
2. I make that finding on the balance of probabilities, taking into account the serious nature of the allegations which have been advanced by the defendant against the plaintiff. Put another way, I consider that the only rational choice between competing hypotheses, is that the plaintiff either ignited the fire or was knowingly involved in its ignition, and a consideration of the whole of the evidence leads me to an actual persuasion as to that conclusion.
3. I am satisfied on the balance of probabilities that the plaintiff has not established that the damage caused by the fire was accidental. If on a proper construction of the insurance policy, the onus of proving that the plaintiff caused or was involved in the non-accidental fire lies on the defendant, I am satisfied on the balance of probabilities that the defendant has established that exception.
4. In addition, for the reasons expressed above, I conclude on the balance of probabilities that the plaintiff made the statements to further his insurance claim which were false and accordingly there should be an order in favour of the defendant on that basis.
5. Accordingly I order that there be judgment and verdict for the defendant. I will hear the parties as to the question of costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2015