Details matter; don’t set the proverbial hare running

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Details matter; don’t set the proverbial hare running

Published 15 January 2019

This case provides a reminder to insurers, lawyers and experts that, as the Judge said ‘detail matters’ and care needs to be taken when gathering evidence, transposing particular words into witness statements and relying on these to develop the case against a third party.

Background

In November 2010 there was a fire in a residential property.  Precious Marble was engaged to carry out cleaning of the limestone flooring and during the course of these works, water was found in the electrical cupboards. Electricians, TP&N were instructed to dry the electrical cables and recommended the replacement of the power supply unit. A few days later however, another electrician replaced the power supply unit.  He then left the electrical supply to the property energised. TP&N attended shortly afterwards. What was discussed between the homeowner and TP&N was a matter of dispute with the homeowner asserting that she brought outstanding faults to TP&N’s attention and the electrician asserting that they only discussed future work. The fire occurred that night and it was agreed by the experts to be an electrical fault.

It was claimed that Precious Marble had spread excessive water on the floor and that this had penetrated through gaps in the skirting down to the electrical cupboards.  It was also claimed that TP&N failed to recognise there were still electrical faults within one or more circuits. 

The Decision

The Judge did not find any evidence that ‘excessive’ water was used or that water was poured onto the floor. She noted that the Claimant’s representatives did not speak to Precious Marble to ascertain how they carried out their cleaning activities. Instead the expert’s notes of an interview with the homeowner were used as the basis for the first witness statement and this contained the description of ‘pouring water’. In the Judge’s view “the proverbial hare had been set running”. 

The Judge did not find any evidence that Precious Marble carried out the cleaning activities negligently. The case of Rhesa Shipping SA v Edmunds (“the Popi M”) was applied in ruling that the burden of proof is on the claimant and this is not discharged even if the defendant cannot show what was the actual cause of the loss.

The case against TP&N also failed as the Judge held that inaccuracies regarding what was discussed the night before the fire developed into the case against TP&N. There was also insufficient evidence to prompt a reasonably competent electrician to isolate the electrical supply to the property. 

Commentary

Denise Eastlake, DAC Beachcroft’s Senior Associate, who acted for Precious Marble (and its public liability insurer, Allianz), commented: “This case reminds us that care needs to be taken at every stage of the investigation and recovery actions should only be pursued where there is physical evidence to support the allegations.

Bob Dawson, Claims Major Loss Manager for Allianz added “At Allianz, supporting our Customers in their times of need is our primary focus. The Court’s decision reflects the hard work investigating and preparing this claim for trial and the collaborative team effort involving Allianz, our Customer and our lawyers at DAC Beachcroft”.

Hiscox Insurance Company Ltd v Quendon Interiors Ltd (1) Mr Ismail Oral (T/A Precious Marble) (2) T P & N Electrical Contractors Ltd (3) [2018] EWHC 3585 (TCC).

Denise Eastlake, Senior Associate and Jenni Walton-Gould, Associate, acted for Precious Marble

Authors

Denise Eastlake

Denise Eastlake

London - Walbrook

+44 (0)20 7894 6840

Jennifer Walton-Gould

Jennifer Walton-Gould

London - Walbrook

+44 (0)207 894 6204

Key Contacts

Denise Eastlake

Denise Eastlake

London - Walbrook

+44 (0)20 7894 6840