CHARLES EDWARDS v UNION INSURANCE COMPANY LIMITED [1990] NSWCA 58

CHARLES EDWARDS v UNION INSURANCE COMPANY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and HANDLEY JJA 13 June 1990, 14 June 1990 [1990] NSWCA 58

KEY WORDS: FIRE INSURANCE CLAIM — business premises insured against fire by tenant — damaged by fire shortly after closing time — owner by leave brings proceedings direct against insurer — owner alleges tenant negligently caused fire — trial judge holds allegation not made out — on appeal, owner submits that on facts before judge only reasonable conclusion was that more probably than not tenant responsible for fire — appeal upheld.

ORDERS

1. Appeal upheld, judgment set aside.

2. Judgment for plaintiffs, as at 15 September 1988, for $59,437. 3. Defendant to pay plaintiffs' costs of proceedings at first instance. 4. Respondent to pay appellants' costs of appeal.

Priestley JA This is an appeal from Judge Herron of the District Court. The four appellants claimed, in the proceedings before him, that the respondent insurance company was liable to them in respect of fire damage to a property they owned at Nambucca Heads, but he dismissed their claim.

The appellants' case before Judge Herron was put on two different bases. As it seems clear to me that the appellants should have succeeded on the first of these and I have some doubts about the other, I will confine what I am going to say to the first basis of the appellants' claim.

The appellants' property was tenanted by a company which ran a business in it. The company had a contract of insurance with the respondent. By Extension 6 to s8 of this contract the respondent promised to indemnify the insured against all sums which the insured became legally liable to pay in respect of damage by fire to premises occupied by the insured in connection with its business.

There was a fire in the premises on 7 February 1985. The appellants claimed that the insured company was liable to them for the damage caused by the fire because it was caused by an act or omission of Mrs Priest, a servant of the insured company.