Chung v Colonial Fire and General Insurance Company Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Permanand, J.
• Judgment Date: 23 July 1991
• Neutral Citation: TT 1991 HC 167
• Docket Number: 1597 of 1986
• Court: High Court (Trinidad and Tobago)
• Date: 23 July 1991

High Court

Permanand, J.

1597 of 1986

Chung

and

Colonial Fire and General Insurance Company Limited

Appearances:

Mr. L. Sanguinette for plaintiff (instructed by Mr. C. Sanguinette).

Mr. E. Prescott for defendant (instructed by Miss W. Hoyte from Messrs. Pollonais & Blanc).

Insurance - Fire insurance — Property destroyed by fire — Defendant insurers claiming that plaintiff deliberately set premises on fire — Defendant insurers established the high degree of probability required that fire was started deliberately by plaintiff or with his knowledge and consent by his servant or agent — Plaintiff's claim dismissed.

Permanand, J.

1 On April 30, 1985 when a claim was made by the plaintiff with regard to the building situate at 17 Eastern Main Road, San Juan which was destroyed by fire sometime between 6:00 p.m. On April 29, 1985 and 5:00 a.m. on April 30, 1985 there were in existence three policies of insurance with the defendant Company and issued to the plaintiff as follows:–

• (i) Policy of insurance No. F/ 54494 dated November 7, 1984 and endorsement No. 9 dated March 11, 1985 attached to the aforementioned policy insured against loss or damage by fire in the sum of one million dollars ($1m) on the building and three hundred thousand dollars ($300,000.00) for stock and materials and trade and one hundred thousand dollars ($100,000.00) on furniture, fixtures and fittings;

• (ii) Policy of insurance No. NAR/1829 against loss or damage by fire in the sum of four hundred thousand dollars ($400,000.00) on machinery at the said building;

• (iii) Policy of insurance No. F/ 54808 dated March 8, 1985 against loss or damage by fire in the sum of eight hundred and thirty two thousand dollars ($832,000.00) for business interruption.

2 In his Statement of Claim the plaintiff pleaded that he duly notified the defendant of the loss occasioned by the fire, namely that the building, fixtures, furniture and machinery were destroyed and that the defendant has failed to pay to the plaintiff the sum of two million six hundred and thirty two thousand dollars ($2,632,000.00) or any part thereof.

3 The plaintiff also in his Statement of Claim referred to the express term in the policy F/ 54494 that the defendant would pay the extent of the mortgage's interest, which shall not be invalidated, by any act or neglect of the plaintiff.

4 The plaintiff avers that at April 30, 1985 the mortgagee — Republic Finance Corporation Limited's interest was eight hundred and seventy six thousand seven hundred and sixteen dollars and sixty one cents ($876,716.61) with interest continuing to accrue at three hundred and sixteen dollars and twenty nine cents ($316.29) daily, and the plaintiff alleged that in brief of the aforementioned express term which required payment to the mortgagee to be immediate or within a reasonable time the defendant paid on or about March 28, 1988 the sum of nine hundred and seven thousand two hundred and ninety six dollars ($907,296) but that the accrued interest was then three hundred and fifty nine thousand three hundred and twenty four dollars and ten cents ($359,324.10), so that the total liability of the defendant was one million two hundred and twenty seven thousand and ninety nine dollars and fifty six cents ($1,227,099.56), as a result the plaintiff claimed the sum of three hundred and nineteen thousand eight hundred and three dollars and fifty six cents ($319,803.56) with interest at the rate of fourteen and a half percent (14 ¹/₂%) from March 28, 1988 and payment of the sum of one million seven hundred and twenty four thousand seven hundred and four dollars ($1,724,704.00) for loss on the building, stock, furniture, fixtures and fittings, machinery and profits.

5 The defendant in its defence admitted that the policies were in existence and on which it will rely for their full terms, true meaning and effect but averred that a fire which occurred was expedited and/or assisted and/or brought about by the plaintiff, his servant and/or agent when he deliberately set fire to the premises and gave the following particulars:–

• “(1) The fire involved the application of flammable liquids which were brought onto the premises by the perpetrator and/or perpetrators of the said fire.

• (2) The perpetrator and/or perpetrators had access to the keys of the building and also knew and/or had some knowledge of the security arrangements in respect of the said premises.

• (3) The alarm system failed to go off and/or warn others of the presence of intruders on the premises.”

6 and also pleaded that it was a condition precedent to any liability on the part of the defendant that the plaintiff

“Shall also at all times at his own expense produce procure and give to the company all such further particulars, plans, specification, books, vouchers, invoices, duplicates or copies thereof, documents, proofs and information with respect to the claim and the origin and cause of the fire and the circumstances under which the loss or damage occurred, and any matter touching the reasonably required by or on behalf of the company together with a declaration or oath or in other legal form of the truth of the claim and of any matters connected therewith. No claim under this policy shall be payable unless the terms of this condition has been complied with.”

7 and accordingly the defendant pleaded that it has not become liable under the policies of insurance as the plaintiff failed and/or refused or neglected to provide or give sufficient particulars, plans, specifications, books and other documents.

8 In his reply the plaintiff joined issue with the defendant as he stated that he had over fifty three meetings with one David Jamison — Adjuster — and thirty three meetings with one Stephan Fong — the defendant's claims manager — and supplied both oral and written information, and also, that the following persons were interviewed by Jamison, namely Messrs. Bosland, Skinner, Attong, Dookiesingh and employees of the plaintiff and that documents, namely:

“a. Valuation reports by Raymond & Pierre	14/6/85
b. Engineer's report by the Careng Group	14/6/85
c. Quantity Surveyor's report by Skinner & Harper Co.	25/10/86
d. Furniture, fixtures & fittings report	3/9/85
e. Detail stock report	3/9/85
f. Detail machinery report	3/9/85
g. Consequential loss of business	14/5/85 & 3/9/85
h. Finance statement by Homer & Co. for the years 1981-1982-1984 also 1984 cash flow projection	14/6/85
i. Financial statement form Dookiesingh & Company For 1983 and 1984	3/9/85
j. Further particulars from C. J. Sanguinette
a. (Summary and financial statement from 1981–1984; cancelled cheques, custom Receipts, invoices, &c, &c)	3/12/86
b. (Gross profit difference basis, standard Turnover &c, &c)	6/4/87
k. Republic and Canadian Bank of Commerce Statements	21/7/87
l. Further information and documents requested by Adjusters of Dookiesingh & Co.	2/5/87
m. Photographs of machinery &c.	18/3/87”

9 were supplied to the adjusters. These were admitted into evidence as Exhibits “D.J.22 a-m.”

10 On the first day of the trial attorney for the plaintiff referred to Slaterry v. Mance [1962] 1 Lloyd's Law Reports 60 at P. 62 and Digsby on the Insurance of Commercial Risks, Law and Practise 1986 at pages 195, 196 and submitted that since the defendant alleged that arson was committed the defendant should begin the trial.

11 In Slattery v. Mance (supra) at p. 62 Salmon, J. stated: –

“In my judgment, once it is shown that the loss has been caused by fire, the plaintiff has made out a prima facie case and the onus is upon the defendant to show on a balance of probabilities that the fire was caused or connived at by the plaintiff. Accordingly, if at the end of the day the jury came to the conclusion that the loss is equally consistent with arson as it is with an accidental fire, the onus being on the defendant, the plaintiff would win on that issue.”

12 Attorney for the defendant accepted the aforementioned principle and submitted that no issues arise as to whether the aforementioned policies exist or that the fire occurred on April 30, 1985 and accordingly will call evidence with regard to the allegation of arson, and with regard to the non compliance with the terms of policy, if the court finds that the defendant is liable, then with regard to the sums claimed by consent assessment will be before the master.

13 Dr. Alan Joseph Robinson, B.Sc., M.Sc., Ph.D., Forensic scientist attached to the well known firm of Dr. J.H. Burgoyne and partners of 39A Bartholomew Close, London, EC1A 7JN, England carried out an investigation at the premises situate 17 Eastern Main Road, San Juan known as Chung's Studio's on May 3 and 4, 1985. His observations were that the premises, which face north on the Eastern main road, comprise a two-storey building with a single storey extension along the eastern sidewall at ground floor level and to the rear. The ground floor comprised a shop and behind the shop the wall was partitioned into a number of rooms associated with photography and film processing. On the single story extension there was a restaurant on the eastern side and on the western side from the front of the building there was an entrance, which gave access to a series of rooms used for film processing.

14 The flooring in the shop area was tiled with a Terrazzo finish and the walls were clad with hard board. The ceiling comprised timber boarding and approximately ten inches below there was a suspended ceiling of timber construction. The access form the ground floor to the first floor was by a spiral staircase with timber treads on the stepping path and the staircase was enclosed in a metal cage with metal doors at the foot and the top of the stairs.

15 The building itself was encased in a metal cage (burglar proof) which extended to the...