Maritsave Ltd v National Farmers Union Mutual Insurance Society Ltd.

The Claimant is the owner of the property at 26-28 Garden Street, Darlington in County Durham (“the Property”). By a Policy of Insurance No. BC N80B40788 (“the Policy”) taken out by the Claimant with the Defendant, the Defendant insured the Property against risks including damage by fire. On 24 February 2009, during the period of insurance under the Policy, the Property, which at the material time was unoccupied, was extensively damaged by fire, as a result of which the Claimant has suffered loss and damage. The Claimant alleges that in breach of the Policy the Defendant has failed and refused to indemnify the Claimant in respect of the loss and damage sustained. The Claimant seeks a declaration that it is entitled to be indemnified by the Defendant in respect of this loss and damage, and claims damages for breach of the Policy.

The Defendant denies liability on the grounds of alleged breach of warranty in relation to the securing of a door (known in the proceedings as D4) or a window (known in the proceedings as W2).

The Claimant warranted at Endorsement 639D (Unoccupied Property Warranty) of the Policy that, in respect of unoccupied/void premises:

“1a. All electricity (unless necessary to maintain security), gas and water mains supplies be turned off at the point of entry to the building

b.

All outside doors to be kept securely locked to prevent unauthorised entry

c.

The buildings to be maintained in a good state of repair and all windows be firmly secured at all times

d.

Weekly visits be carried out by the Insured, or any adult person authorised by the Insured, in order to check the premises physically and to carry out any work necessary to maintain the security arrangements.”

Within the fire section of the Policy (Fire – General, Section 1E), under the heading “Warranties”, it is provided that:

“Under a warranty the Insured is asserting that certain statements or facts are and will remain accurate or that certain actions are and will be performed.

Failure to comply with a warranty, which contributes to damage, may result in any claim not being paid.”

It is common ground that the Policy incorporated the warranties set out in paragraph 3 above. There are two issues to be determined. The first is whether the Claimant was in breach of warranty. The second is whether any failure to comply with the warranty contributed to the damage.

The Experts’ Joint Statement dated 8 April 2011 (prepared by Dr C.L. Gardner, appointed by solicitors acting on behalf of the Defendant and Eur Ing M Jones, appointed by solicitors acting on behalf of the Claimant) seeks to summarise the points of agreement/disagreement between the Experts. The material evidence that is agreed between the experts is as follows:

“2.

ORIGIN/DEVELOPMENT OF THE FIRE

2.1

The fire was started deliberately; it involved multiple points of origin and the use of an accelerant.

2.2

Fires were started on the ground floor of Sections A and B, the first floor of Section B and on the front stairs leading up to the first floor in Section C/D (for ease of reference, Figures 1, 2 and 3 from Dr Gardner’s report of 25 March 2011 are appended to this Statement). The possibility that a fire was started in other areas, where damage was particularly severe, cannot be discounted. It was not possible to confirm how long the fire had been burning before the Fire Service attended or precisely how it developed.

2.5

The fire could have been started by either a key holder or an intruder.

2.6

There was no positive evidence to indicate that a key holder was responsible for the fire.

3.

POTENTIAL POINTS OF ENTRY BY AN INTRUDER

3.1

DOOR D4

3.1.1

There was no evidence to indicate that Door D4 had been forced open. The door and the internal bolts were intact.

3.1.2

Based on the available evidence, nobody went into the building to open Door D4 from inside from between when the Fire Service arrived and when Watch Manager Bankhead opened the door after the fire had been brought under control.

3.1.3

Both of the bolts on Door D4 were unlocked i.e. in the withdrawn position, when the fire occurred.

3.1.4

It is not possible to confirm for how long the top bolt on Door D4 had been unbolted prior to the fire, based on the physical evidence alone.

3.1.5

There were two rust marks on the lower bolt, one of which corresponded to the bolt being inserted (‘bolted’) in the keep and the other corresponded to the bolt being withdrawn (‘unbolted’) from the keep. As such, the bolt had been secured in the keep in the past.

3.1.6

The presence of cobwebs in the keep for the lower bolt has no bearing on whether the lower bolt was ‘bolted’ or not prior to the fire.

3.3

THE GLASS OF WINDOW W2

3.3.1

There was no evidence of damage consistent with attempted forced entry to the frame of Window W2. The upper fixed section of Window W2 was intact during the fire.

3.3.2

To discuss the possibility that someone had broken the glass to climb in or reach in to overcome the catch, it is necessary to assess how much clean broken glass was underneath the debris (spalled ceiling finish) on the floor adjacent to Window W2.

3.3.3

An intruder did not break the glass of the opening section of Window W2 to create a hole in the pane that was big enough to climb through into the building.

3.4

CATCH OF WINDOW W2

3.4.1

It was evident from the pattern of soot staining on the frame of the pivoting section of window W2 that the window was not fully closed into the rebate, and therefore was not secured by the catch, when the fire occurred.

3.4.2

Based on the account of Mark Lee, the pull handle was missing from the catch before the fire. However, it is not possible to determine how long the pull handle had been missing, based solely on the physical evidence.

3.4.3

The catch mechanism had been mechanically damaged, whereby the internal mechanism had been distorted and the bolt had become stuck in a partly depressed position in the catch. The damage rendered the catch inoperable so it could not be used to secure the window.

3.4.4

The catch keep was damaged, in the form of an indentation in its front face, due to impact of the catch bolt on the keep, i.e. by the window ‘closing’ after the catch mechanism had been damaged and made inoperable. It is not possible from the physical evidence to determine when this occurred other than before Eur Ing Jones’s inspection on 3 June 2009.

3.4.5

The possibilities to be considered are that:

1.

An intruder broke a hole in the window pane and reached in with a tool to release it. The catch was in working order but was damaged by the tool and made inoperable. The window was later closed, thus creating the indentation in the keep.

2.

The window W2 was not broken by the intruder but the latch was broken during the incident.

3.

The catch had been damaged and made inoperable as a result of misuse by someone inside the building prior to the fire and this was unrelated to the incident. The indentation was made in the keep when the window was closed after being damaged. As such the window had not been secured by the catch when the incident occurred.

3.5

TILED ROOF (SECTIONS A, B AND C)

3.5.1

The Fire Service could not see all of the roof of Sections A and B when they first arrived and part of the roof of Sections A and B collapsed at an early stage of the incident.

3.5.2

It is unlikely that access was made through roof C.

3.5.3

There is no physical evidence which excludes the possibility of entry having been made through roofs A or B.

3.5.4

If an intruder had managed to reach the tiled roof, then in order to gain access through it, several tiles, say at least four, would have to be broken or removed to create a hole big enough for someone to climb through, once the exposed tile battens and any under-drawing had been broken through. An intruder would then have to break through the ceiling and drop down into the building. This would not have been an easy proposition for an intruder.

3.6

ROOF LIGHT (SECTION D)

3.6.3

The hole in the roof of section D seen by Fire Fighter Kingdom was a damaged roof light, either W15 or W16. The mechanism by which the roof light came to be damaged, either mechanically by an intruder or due to exposure to fire, cannot be confirmed with certainty, based solely on the physical evidence.

3.6.4

The possibility that a roof light was broken prior to the fire and was used as a point of entry by an intruder cannot be ruled out, based solely on the physical evidence.

3.6.7

Two sections of roof light were found lying on top of burnt debris in the locker room (first floor of Section D), adjacent to the stud wall that aligned with the base (lowest edge) of roof light W15.

3.6.10

A fibreglass roof light will lose its structural integrity if exposed to fire temperatures for a sufficient period and will fail and collapse.

3.6.11

W15 and W16 were located in the area of Section D that was most severely damaged by fire and were close to Section B and the top of the front staircase. The fire could have spread into the locker room (between roof lights W15 and W16) from Section B and/or from the top of the front staircase. Alternatively, the possibility that a separate fire was started in the locker room cannot be discounted.

3.1.12

The precise mechanism by which a roof light would fall due to fire attack would depend on the condition of the roof light prior to the fire, its orientation relative to the fire and the pattern of fire development.

4.

SUMMARY

4.1

If the fire was started by an intruder, then the potential points of entry to consider are door D4, window W2, a roof light in Section D or the tiled roof of Sections A and B. It is agreed that there is no physical evidence available to demonstrate whether or not D4 was secured by a bolt. If door D4 was secure then it was most likely opened by the intruders and used only for escaping the premises. If door D4 had been insecure and thus could have been used by an intruder to gain entry without force, then this would mean that Mark Lee was mistaken in his recollection that door D4 was secure when he last inspected the building. The interpretation that Mark Lee was mistaken i.e. that the entry route was through insecure door D4, would require reasonable certainty that;

(i)

There was no entry gained through window W2 and,

(ii)

There was no entry gained through roof lights W15 and/or W16 and,

(iii)

There was no entry gained via roofs A and/or B.”

Mr Mark Lee is the sole Director of the Claimant and also the Company Secretary. He and his sister are the two equal shareholders of the Company. The principal business activities of the Claimant are property investment and management and financial consultancy. Mr Lee manages the company’s properties and deals with all insurance issues. The Claimant purchased the Property in November 1999. It was leased back to the previous owners who continued to use it as a gym until 2001 when it was vacated due to the gym owner’s financial difficulties. Mrs Christine Bateman then took a lease of the premises and operated a gym and martial arts centre from the Property until she vacated the premises at the beginning of 2004. Since that date the Property has been unoccupied.

Mr Lee said that his full time occupation is to manage the properties owned by the Claimant, his family and family related trusts and pension schemes. These properties provide financial security and potential income for himself and all of his family. He said he was fully aware of his responsibilities to ensure that the properties are properly insured and looked after. It had never previously been suggested to him that he had failed to comply with an insurer’s requirements. When Mrs Bateman vacated the Property he immediately notified the Defendant. The Defendant sent a policy amendment dated 12 January 2004 to him on 21 January 2004. The policy amendment introduced an unoccupied property warranty (see para 3 above). At the time the Defendant’s agent was Mr Watts. Mr Watts spoke to him about the unoccupied property warranty and stressed that it was essential that the warranty was complied with. Mr Watts told Mr Lee that insurers would be able to use the warranty as a reason not to pay out under the policy if it was not complied with. Following this discussion with Mr Watts Mr Lee said that he immediately implemented an inspection routine for the Property which was strictly followed from that time until the fire.

Mr Lee described the security arrangements at the Property. He said that the door that is referred to as D4 at the rear of the premises could only be opened from the inside and was secured with deadbolts at the top and bottom. The plaster round the keep of the lower bolt was crumbling. However he said that he was positive that the bolt was engaged at all times. The door was reinforced with steel on the outside and was completely inflexible and secure. Inside the building beyond D4 was another door (D5). This was an internal “push bar to open” fire door, which could only be opened from the inside. The door was very hard to open and close.

Mr Lee said in his evidence-in-chief that he visited the Property every week. On weeks when he was unable to visit the Property his father would visit the Property instead. Under cross-examination he said that he would check the Property nearly every week because obviously some of the times he was on holiday. His visits normally took place on the early afternoon of a Thursday. They normally lasted for about ten minutes.

Mr Lee said that on every occasion he physically tested all four external doors by pushing on the doors to check that they were secure as he walked around the outside of the premises. He would look carefully at all of the windows to ensure that there was no breakages and that the windows were closed. He also paid attention to the security of the padlock and chain on the front grille. He was asked by Mr Mark Cannon QC, for the Defendant, how hard he would push on the external doors. He said, “I would push with my weight”. (Transcript Day 1/20/line 13). He was asked whether he would lean against the doors. He said he would. He said that the inspection of the first floor windows was only visual.

Mr Lee said that the internal inspection was about once a month. He described his routine as to how he went round the building. He said “I cannot recall ever opening D4 during any of these internal inspections. There would be no need for me to open D4 since I would not have any need to exit the building from that point. The door opens onto the car park at the rear of the premises” (2/8/para 34). Mr Lee said that he would check the condition of the bolts on D4 and make sure that they were in position every time he was in the building.

Mr Cannon asked Mr Lee about evidence that suggested that the bottom bolt of D4 had not been shut for some time before the fire. Mr Lee said that he “saw both bolts done up on D4” (Transcript Day 1/26/line 12). He was asked whether it was possible that what he actually looked at was D5 which was shut, and did not see D4. He responded “No, most certainly not. There were no bolts on D5. That had a panic bar arrangement that didn’t work properly, which was another reason why that door was left open” (Transcript Day 1/26/lines 15-18). He said he would not get confused with the two doors. Mr Lee was asked whether it was possible that before the fire D4 had already warped to an extent, so that it was jammed in its frame but not bolted. He said “No, because I saw that the bolts were in the keeps.” (Transcript Day 1/27/line 12).

Mr Lee said that his recollection of W2 is that the round finger catch on W2 had been missing for some time but the latch itself was engaged. He said it would not have been possible to open W2 without using some sort of tool, such as a screw driver. He said there was no need for him ever to open W2. Mr Cannon asked Mr Lee whether it was possible that W2 was in fact jammed in pretty much shut but not actually shut and not actually, if you pushed it, resisting force to open. Mr Lee said that was not possible because on his internal inspections he would check the security of the windows to make sure that they could not be pushed. Also on his external inspections, he said, it would be immediately obvious to anyone who knew the building if those windows were open or even ever so slightly ajar because the outside paint colour of the windows was dark blue and the interior frame colour of the opening part of the windows was brilliant white. He said that W2 was most certainly locked.

Mr Lee said that the last inspection which he carried out prior to the fire was on Thursday 19 February 2009. The inspection took place at approximately 12pm and took about ten minutes. Mr Lee said that on that occasion he carried out his normal external examination. He confirmed that he was sure that all the external doors were secure. He saw no broken or open windows. Mr Lee said that he was absolutely positive that he pushed D4 on this occasion to check whether it was secure and that the door did not move and was secure. (2/9/para 39). He said he had a specific recollection of testing the door because he remembered noticing what looked like scuff marks on the bottom of the door which had not been there on the previous visit. He said that on the morning of the fire he told Frances Aynsley, the Defendant’s loss adjuster, about the scuff marks, but she did not seem to be interested. (2/9/para 39).

On the morning of the fire, having picked up a message that was left on his mobile telephone, he went to the site. He described what he did and who he spoke to. He said that at about 11.30am he met Ms Aynsley. He noticed that D4 looked to be insecure and was slightly ajar. He said he pointed this out to Ms Aynsley. She then spoke with one of the fire fighters who walked up to the door with a policeman and was able to push it open easily. Cross-examined by Mr Cannon about Ms Aynsley’s recollection that she first said “I think D4 is open”, Mr Lee disagreed and said he was clear that it was he who first noticed it.

Mr Lee attended a meeting at the property on Thursday 19 March 2009 at which a number of representatives of the Defendant and Dr Gardner were present. Mr Lee said that during the course of the meeting Dr Gardner questioned him about compliance with the unoccupied property warranty and alleged that the door at the rear (D4) had been locked when the fire brigade arrived and was only unlocked later on that morning. Mr Lee said Dr Gardner made it clear that he therefore suspected that the fire had been started by someone who had a key to the premises since all of the external doors were secure. Mr Lee said that Mr Gardner was “very, very aggressive in his questioning with regard to that, and we found it quite upsetting” (Transcript Day 1/43/lines 5-6). Mr Lee said that he and his father pointed out to Dr Gardner that it was incorrect that the door was locked at the time Dr Gardner alleged. Mr Lee referred to the attendance note that he made on 24 March 2009 of the meeting on 19 March 2009. At page 5, letter L he wrote in capitals: “It is quite clear that CG [Dr Gardner] was trying to lay blame at Maritsave Ltd for the rear door either being opened prior to the fire or that the building was secured when the fire started”.

Mr Brian Lee, Mr Mark Lee’s father, said he was a retired tax and financial adviser. During the course of his career he earned the necessary money to build up a significant portfolio of investment properties mainly purchased by his self-administered pension scheme. He said the Claimant was formed in 1999 to effectively manage the family properties and to look at other possible property investment.

Mr Brian Lee said that his son had taken his responsibilities as Director of the Claimant very seriously. Both he and Mark knew that when properties were unoccupied insurers would impose non-occupancy warranties and that it was very important that those warranties should be respected and complied with. Mr Lee said that he spent much of his retirement living abroad, but that whenever Mark was away on holiday he would return to the UK and would look after the properties and in particular check the unoccupied properties. He said that he checked the Property during the period between 31 January 2009 and 7 February 2009, shortly before the fire, when Mark was on holiday in Majorca.

Mr Lee said that he cannot remember the exact day when he carried out the check but it was probably the middle of the week. He drove to the premises, parked his car at the front of the building and got out of the car. He then walked right round the outside of the building and physically checked all four doors. He also looked at the windows to see if they were secure. He said that all of the doors were secure and that he did not see any damaged or open windows. He said he did not check inside the building. Mr Cannon asked Mr Lee what he did to test the doors. Mr Lee said:

“Well, the front doors was guarded by like a grille arrangements with a padlock on it, and that one I used to push my hand through—there was a square gap in the grille—push my hand through the gap and push that door, and then I walked around the building and pushed the other doors. When I say ‘doors’, one was completely covered by a steel plate, so I just checked the plate. I looked at the windows, and that was the extent of the inspection. I never went inside.” (Transcript, Day 1/46/lines 5-13).

Mr Lee said that he attended the meeting with his son and representatives of the Defendant and Dr Gardner. He accepted that Station Master Bruce may have said to Dr Gardner that all the doors were locked when the Fire Service arrived, but he was shocked by the implication of what Dr Gardner said very forcefully, namely that somebody connected with the Claimant must have started the fire themselves. Mr Lee considered it to be a completely unwarranted allegation.

Watch Manager Walkden was the Officer in Charge of the incident when the first pump reached the Property at 01.41 on 24 February 2009 and was joined shortly afterwards by a second pump. It was his job to make the first assessment of the fire and the building in order to determine the initial fire fighting tactics. He conducted a risk assessment which involved a “360 degree” walk around the perimeter of the building on fire to get the best possible view of the building from all angles. He said that when he arrived at the building smoke was coming from the eves all around sections A, B and C and from the tiles on the roof. He could not see the central area of the roof. He believed roof D was intact when he first arrived.

Mr Walkden said that he saw smoke coming out fairly evenly from the whole of the roof space of roofs A and B and he thinks roof C at the front. There was some smoke coming from roof D, but not nearly as much. He believed that most smoke was coming from roof A. He concluded that there was probably a fire in the first floor or roof space of section A. Mr Walkden said that had there been a man-size hole in any of the roofs he would have expected to have seen smoke rising clearly from it. He saw smoke passing out from under the eves and the gaps between the slates in the roofs. He said the way the smoke was passing out from any available gap indicated to him that it was under pressure and had no ready means of escape. In answer to questions from Mr Geoffrey Brown, for the Claimant, Mr Walkden said that he remembered looking at roof D, but not at the individual roof lights.

Mr Walkden said that he considered windows W2 and W3 were intact because there was no smoke coming out of them. He said the light and visibility were good enough for him to see the glass in the windows. He said he believed that he saw streetlights shining in the windows. Asked about this by Mr Brown, he said he had “No clear recollection of actually seeing glass but a reflection of the light in the street but I couldn’t be absolutely certain whether it was W2 or W3, the window I saw the reflection of the light in” (Transcript Day 2/39/lines 4-7). He added he “could not differentiate between W2 and 3”, but he did “recall seeing some light reflected in a window at that level in that part of the building” (Transcript Day 2/41/lines 8-11). Mr Brown then asked Mr Walkden:

“You would not be in a position to say would you, that there could not have been a hole within part of the glass at W2?”

Mr Walkden replied:

“I believe from the initial appraisal that I carried out of the building as part of my risk assessment that because there was no smoke coming out of that building then that would be an assumption you make, yes.” (Transcript Day 3/41/lines 12-18).

Watch Manager Walkden’s initial assessment was that an additional pump and an aerial ladder platform (“ALP”) were needed. He told this to Watch Manager Innis, who was in charge of the second pump to arrive, and who in turn radioed the request back to the Fire Service control room. The ALP arrived at 01.57 and the third pump at about the same time.

Mr Innis said that whilst he was standing in the car park of Allied Carpets at the rear of the Property discussing the composition of the roof whilst the ALP was being set up he had a view of roof D and thought it was intact. He said he could see the corrugations in the roof. However, he could not distinguish the roof lights. Mr Innis said that there was no smoke issuing from the roof which would indicate to him that the roof was intact. The smoke was issuing from the eaves and around the soffit which indicated to him that there was no hole in the roof of section D at that point (2/49-50).

Mr Innis was appointed Sector 1 Commander for the operation at the front of the building shortly before 02.37. He described how the fire fighters opened window W2 on its hinges by the application of a jet. He said he was certain that the glass in window W2 was intact. He said he was supervising the operation and a fire fighter was using the jet and directing water in through window W2. As water caught the window it would flip back again i.e. it would open and close. Mr Brown asked him, “But if there had been glass in the window but a hole within the glass, firing the jet of water at the window could still have made it rotate, couldn’t it?” Mr Innis replied: “I would have said that was possible, yes. But I would like to add to that that the way the water was bouncing off the window would say to me that there was no hole and that window was intact”. (Transcript Day 2/23/lines14-20).

Fire Fighter Strover said that he was one of the first two crews to arrive at the fire. In his first statement made on 30 September 2010 Mr Strover said: “I am sure all the windows were intact when we got there because if Watch Manager Walkden had found an opening, such as an open or broken window to put water through, we would have gone for that first. … However, I don’t recall from my own inspection being sure the windows were shut, I am just assuming that because of the actions of Watch Manager Walkden. I do not recall seeing any broken or open windows when we first arrived at the scene” (para 22). He said that he would have noticed if any of the windows at the front had been broken because the glow of the street light would have reflected in the window. In answer to questions from Mr Brown, Mr Strover said that he would not necessarily have noticed a small hole, but if there had been a hole of any substance he would have noticed it (Transcript Day 2/60/lines1-3). In answer to Mr Cannon’s question as to what would have been “a hole of any substance”, he said “I suppose a hole larger than, say, a saucer” (Transcript Day 2/62/lines 8-10).

Fire Fighter Kingdom arrived at the scene on the ALP with Fire Fighter Hobson. Watch Manager Walkden told them to pitch up at the back of the building. Mr Hobson was in the pulpit and he went up on his own in the basket. He said that he had his breathing apparatus on and he agreed with Mr Brown that that would signify that he was acting in offensive mode at the time. (Transcript Day 1/50/lines 19-21). That was at really quite an early stage in his involvement in fighting the fire. In the first witness statement that he made on 17 October 2010 Mr Kingdom said:

“There were no flames coming out of roof D but there was smoke coming out of the joint between C and D. I am certain there was a hole near the top of the roof D near the joint with roof B as I could see some fire through it, in the approximate area of W15 and W16 on the attached sketch. I tried to open it up a bit and it was flapping. I could see smoke and flames inside the building. I was near the joint of roofs A and B and looking west. The hole was about 3ft by 2ft but I don’t know whether it was the steel part of the roof or just the roof light flapping. It was just an opening and although I could see smoke and flames inside, I would not see anything specific.” (Para 16)

In the second statement that Mr Kingdom made on 9 March 2011 he said:

“I believe that I noticed the hole in the top of roof D towards the end of my first session in the ALP or at the start of my second session, when I went up with Mark Strover. I cannot be precise about the timing. However I believe it would have been shortly before or after 03:00. This is because, having seen the Incident Report, I note that at 03:01:41 the ALP was recorded as being in offensive mode. When I went up for the first time, we were in defensive mode, meaning that the ALP basket was high up over the building, out of the zone of risk. We went into offensive mode when we were ordered by Station Manager Bruce to get in close to roof D to make holes in it in order to vent the smoke and release the pressure of hot gasses. I recall that this was the purpose of my second session in the ALP. Therefore, I believe that my second session in the ALP began at around 03:00.” (Para 13).

Mr Brown asked Mr Kingdom about the accuracy of this timing:

“Q. It’s all well to say for your second statement: ‘I can see at 3 o’clock in the morning there is a reference to offensive mode fire fighting’, but it would seem, wouldn’t it, that you were involved in offensive mode fire fighting in the early stages as well?

A. It would seem that way, yes.

…

Q. And whether, given what you said in your first statement, it’s likely you saw that hole [i.e. the one referred to at para 16 of his first statement] at a relatively early stage in the fire.

A. Yes” (Transcript Day 1/56/lines 19-24 and D1/59/lines 10-13).

Re-examined by Mr Cannon, Mr Kingdom said it was the first time he was up in the ALP in a real fire and he has a very clear memory that the ALP basket was high up the first time he went up in it. Asked whether what he said in his second statement is correct or not, he said “I think it’s correct, to the best of my memory” (Transcript Day 1/63/lines 21-22).

Fire Fighter Hobson said that on the night of the fire he was in charge of the ALP. When he arrived at the scene he was told to pitch the ALP at the rear of the building. He was sitting in the pulpit which is approximately two metres above the ground. He said he had a very good view of the roofs at the rear. His line of sight was probably level with roof D. In his first statement made on 16 October 2010 Mr Hobson said that “there was very little damage to the roof sections C or D…, most of the damage was in sections A and B” (para 3). In his second statement made on 10 March 2011 Mr Hobson said: “I have been asked whether I recall seeing a hole in roof D at this early stage. I recall that roof D appeared to be intact and that there were no holes.” (para 14). Cross-examined by Mr Brown, Mr Hobson said “There was no obvious signs of any holes” in roof D (Transcript Day 2/3/line 19). He was not looking for holes, but for smoke exiting from the building. He said: “There was no smoke pluming from that section of the roof so therefore it suggested to me that there was no opening in the roof.” (Transcript Day 2/6/lines 5-6).

Station Master Bruce arrived at the scene at about 02:15. He did a “360-degree” risk assessment and took overall charge of the incident at 02:39. In the first statement that Mr Bruce made on 28 July 2009 he said: “The crew that went up in the ALP have confirmed that all the roof lights were initially intact before the fire spread to involve the west side of the roof.” (para 11). In his second statement dated 10 March 2011 Mr Bruce said: “I am confident that this was information that I obtained as part of my initial briefing before I took over command of the incident. I believe the information would either have come via Watch Manager John Walkden or possibly direct from the ALP crew over the radio. It was not information that I obtained after the event.” (Para 17). Cross-examined by Mr Brown, Mr Bruce said that he was confident this was information he received, but he cannot recall who gave him the information. Mr Brown asked Mr Bruce about this:

“Q. One possibility might be that Watch Manager Walkden believed that the Section D roof was intact and that’s what he conveyed to you?

A. If that’s the case, then—

Q. Maybe if you have spoken to him, that may or may not be what he had told you. Perhaps if you have spoken with Fire Fighter Kingdom, he would have told you something different?

A. Possibly.

Q. But you don’t actually remember speaking with Fire Fighter Kingdom, do you?

A. No.” (Transcript Day 1/71/line 20 – 72/line 6).

In his first statement Mr Bruce did not say that he personally looked at roof D. When his second statement was taken he was asked whether he obtained a good view of the state of roof D and, if so, whether he could recall if the roof was intact when he first attended. He said “I had a good view of roof D and I am very confident that there were no holes in it” (para 20). Mr Brown asked him:

“Q. How carefully did you look at roof section D at that point?

A. I can’t actually recall the incident that well now, with it being two years ago. I just know how I act at fires that I go to and I’m going to them on a weekly basis, and I know that when I do go around looking at fires and when I’ve got a building fire, I would be looking at sort of access, egress, where there is signs of heat damage, smoke damage, where there might be hidden fires.

Q. Yes, of course, and to be fair, much of your information in your witness statement is what you would have done?

A. Yes.” (Transcript Day 1/72/line 21 - 73/line 7).

Mr Bruce said that he does not think that he would have missed a hole in roof D, but he was not concerned about roof D until smoke started coming out of an area that was near the junction of the four roofs, and that is when he made the decision that the ALP crew should vent the rest of the roof (Transcript Day 1/89/lines 9-23). However he could not actually say that the roof lights in the roof D area were intact at an earlier stage. He agreed with Watch Manager Innis that although there was enough light to see the basic layout of the roof there wasn’t enough to be able to distinguish roof lights (Transcript Day 1/79/lines 18 - 80/line 21). Mr Bruce was confident that the roof lights in section D of the roof were intact at the time of his walk around because he could not remember seeing smoke coming out of the roof or any of the roof lights (Transcript Day 1/84/line 21 - 85/line 3).

Ms Frances Aynsley, a chartered insurance practitioner working as a loss adjuster for Crawford & Co attended the fire on the morning of 24 February 2009 on behalf of one of their clients, the Defendant. She arrived at around 11.30 a.m. and met Mr Mark Lee. One of the tasks that she undertook was to carry out a security survey. She walked with Mr Lee round to the rear of the building. She said that between 12.30 p.m. and 1.30 p.m. whilst the fire brigade were away from the premises for a lunch break she noticed that door D4 on the left of the rear of the premises appeared to be slightly ajar. She said that she mentioned this to the police constable who was with her at the time and when the fire brigade returned from their break the constable mentioned it to one of the fire fighters. The fire fighter approached the door and gave the door a gentle push and it opened freely. Ms Aynsley said that she asked Mr Lee whether he checked on the property regularly. He told her that he was aware of the policy warranty requiring him to do this. He said that he checked the property once a week, the last time being on Thursday 19 February 2009. He said that he walked round the outside of the building to check it was secure and found that it was.

Ms Aynsley denied that when Mr Lee told her about scuff marks on door D4 she did not seem to be interested. She did not recall that Mr Lee pointed this out to her. She said that it is simply not true that Mr Lee pointed out to her that door D4 looked to be insecure. She says this was an observation that she pointed out to him. Ms Aynsley said that if Mr Lee saw that D4 was open first he did not tell her. Asked by Mr Brown as to whether it was a point of any great significance to her at the time as to who noticed it first, she replied “Not really, but I’m positive it was me who vocalised it” (Transcript Day 3/51/line 13-14).

Watch Manager Bankhead said that a female Loss Adjuster, who knew that he was the Officer in Charge, pointed to door D4 and asked him whether the door was open. He replied that he did not know but would have a quick look. He approached door D4 and could see that whilst it looked like it was in a closed position, it was not fully shut into the rebate of the door frame. He knew instinctively that the door would open. He gently pushed the door open with his hand and arm and the door swung open into the building. It took minimal force to open the door. He said he could not recall the name of the Loss Adjuster. She was accompanied by a tall man who he believed represented the NFU. He did not meet anyone introduced as the owner of the premises.

The critical issue is whether an intruder had to force entry into a secure building. In summary the evidence of the expert witnesses is as follows:

Door D4

The evidence of Dr Gardner is that the bottom bolt keep for door D4 was partially obstructed by plaster/render that formed part of the “skim” that had been applied to the wall adjacent to door D4 and thus the keep hole had been partially obstructed when the wall was skimmed. As such the bolt had not been in the hole i.e. had been unbolted, since the wall was skimmed prior to the fire.

The evidence of Mr Jones was that the keep hole was obstructed by loose plaster/render that had fallen onto a “ledge” of plaster skim below the hole and built up to partially block it and which could easily be removed by a finger. These “obstructions” referred to by Dr Gardner could have arisen at any time since the fire on 24 February 2009 and Dr Gardner’s inspection on 19 March 2009. It is Mr Jones’ view that the bottom bolt was most likely capable of being used at the time of the fire.

Mr Jones in his Report referred to and commented on various photographs that were taken on site visits after the fire. Photograph 27 shows the keep hole for the lower bolt fitted to door D4. Mr Jones said that the plaster on the lower part of the wall was in poor condition and had been replaced with what appeared to be concrete but he noticed that the obstruction within the hole was not fixed concrete but instead, crumbled plaster that had come from above. He said, “It took very little effort to remove that plaster and showed that there was a clear hole to accept the bolt as shown in Photograph 28. Shortly after uncovering that hole, more crumbled plaster fell and partly obscured the hole again.” (Mr Jones’ Report, para 3.2.2). Photograph 29CG shows, Mr Jones says, that at the time of Dr Gardner’s inspection, the condition of the hole was very similar to that at the time of his inspection (see F Photograph 27). Mr Jones said that the lower hole had the same appearance when he went back and inspected on 23 September 2009 as when he visited the premises on 3 June 2009. He said, “I put my little finger in and pulled dust out” (Transcript Day 2/91/lines 4-5).

In his first report dated 10 August 2009 Dr Gardner concluded that “Door D4 represented the only plausible access point for an intruder” (page 22). Mr Brown asked Dr Gardner when he had reached this conclusion:

“Q. Is it right that you had effectively come to a conclusion that there was no other means of entry by 9 July 2009?

A. Based on what I have seen and been told, I saw D4 on the basis that the rest of the building was secure then door D4 was the logical explanation.

Q. You had effectively committed yourself to that conclusion, by 9 July 2009, that there was no other means of entry, had you not?

A. I had.” (Transcript Day 3/117/lines 8-17).

In his report dated 25 March 2011 Dr Gardner said, “I would deduce that door D4 was either not secured by either of the internal bolts, or at best was secured by only one of them”. (para 5.54, and see “Conclusions” at para 6.5). Dr Gardner accepted there was no evidence of forced entry and that if the top bolt had been in its keep there would have been evidence of it being forced (Transcript Day 3/71/lines 8-13). Dr Gardner appeared to suggest that the previous tenants had chosen to leave door D4 with bolts in the withdrawn position because door D5 was a fire exit door with a push bar (Transcript Day 3/72/lines 3-16); however, he said he was not suggesting this and it may be that “they just inadvertently left it that way” (Transcript Day 3/73/lines 1-2). Mr Brown asked him if he was saying that Mr Lee either failed to notice that on countless visits to the premises (on the evidence 160 or 180 or something like that) or chosen to leave it like that. Dr Gardner said, “I am not sure why he should choose to leave it like that” (Transcript Day 3/73/line 6).

In his first report Dr Gardner said, “The observation that the keep hole for the lower bolt was partially obstructed by plaster indicated that the bolt had not been engaged in the keep when the fire occurred”. In his report dated 25 March 2011 Dr Gardner said,

“At the time of my inspection [on 19-20 March 2009], the keep hole for the lower bolt was partially obstructed by plaster that formed part of the rendering on the wall (Photograph 38). Although I was unable to fully close the door to align the bolt with the keep, and thus test whether it could pass unobstructed in the keep, it was my distinct impression that the bolt could not have been located into the keep without dislodging the plaster that I saw obstructing the hole. As such, it can be deduced that the lower bolt was not engaged in the corresponding keep with the fire occurred.”

Mr Brown asked Dr Gardner in relation to this lower keep hole whether he took issue with Mr Jones’ description that when he put his finger into the hole, what he found was dust. Dr Gardner replied:

“The difference between what I have done and he has done, it seems that he is basing his views on pushing his finger through a hole rather than a closer visual inspection. Unfortunately, in the process of putting your finger through it, you effectively destroy what was there beforehand. I have no problem with—I think it is quite foreseeable—that if you put your finger through there you would dislodge what was there.” (Transcript Day 3/98/lines 12-19. Also see Day 3/99 and 132/lines 11-17).

Dr Gardner accepted that he did put to Mr Lee that door D4 had been found secure on the basis of what Mr Bruce had told him.

“A. I would only put to him what I understood from the information I have been provided. What I was a bit surprised about was when it came at a fairly late stage the suggestion that I had been at all aggressive with him or tried to insinuate that he himself is responsible for the fire which I would dispute strongly.

Q. Well, if you put it to him that D4 had been found secure and if D4 was secure, the fire must have been started by a key holder…

A. No

Q. … That was a clear indication it was started by a key holder, was it not?

A. Yes, but not necessarily himself. The logic is I have to be kind of a distance from this. I am looking at this as an independent expert that is trying to work out what’s happened. If it is shown that a building is secure with no evidence of entry, of forced entry, then if it was secure at the time of the fire, then it can only be that the perpetrator was able to get in with a key.” (Transcript Day 3/101/lines 1-20).

Window W2

The evidence of Dr Gardner was that the debris (spalled ceiling finish) was spread liberally on the floor area adjacent to window W2. The vast majority of the glass from the opening section of W2 was lying on top of debris (spalled ceiling finish) on the floor. If the window glass had been broken by an intruder in order to reach in to get to the catch, this would require a hole in the pane of a sufficient size to allow an arm to reach in to the shoulder and bend back to reach the catch with a hand or tool, without causing injury by the broken edges of the hole in the glass. If such an attempt had been made prior to the fire, Dr Gardner would have expected to have seen a sufficient amount of glass lying on the carpet and beneath debris that had collapsed from the ceiling during the fire. He did not see this. If a fragment of glass was found on clean carpet, it would simply have fallen onto the carpet during the fire, before debris had collapsed from the ceiling onto this area. As such, the finding of a small amount of clean glass on the carpet would not be conclusive evidence that the window was broken prior to the fire. On the other hand, glass found lying on top of debris that had been spalled from the ceiling as a result of the fire, must have collapsed from the window after the fire started.

Mr Jones considers that the findings of protection of the carpet and broken glass with a clean under-surface gives rise to the possibility of the glass having been broken before the fire. If the glass was not broken in the early stages of fire fighting then it must have been broken before fire fighting. Whilst Dr Gardner found ceiling debris had stuck to the underside of glass during his inspection, that was not what Mr Jones found during his inspections. It is the view of Mr Jones that there is no physical evidence to exclude the possibility of window W2 having been broken before the fire.

As to the catch of window W2 and the possibilities that need to be considered (see para 5 above and para 3.4.5 of the Experts’ Joint Statement) it is the view of Dr Gardner that with regard to Possibility 1, it would not have been possible for someone to reach in with a tool through a relatively small hole in the window pane and distort the catch mechanism to the extent observed, from a position outside the building. With regard to Possibility 2, if the catch was not broken by an intruder, then Dr Gardner cannot conceive how it would have been broken during the incident. Possibility 3, is a far more likely explanation, whereby the catch was damaged as a result of misuse by someone with legitimate access inside the premises, and this was not related to the fire, but left the window permanently insecure. It is the view of Mr Jones that Dr Gardner has not examined the glass from W2 in such detail that he can determine the size of any hole that might have existed before the fire and therefore whether it would have permitted access to open the catch. Mr Jones considers that Possibility 3 is the least likely because it would be obvious from inspection that the window was insecure owing to the underside of the inner frame horizontal cross-member being white and the outer frame being dark blue.

Mr Jones said that Photograph 56 showed that the glass which was removed was clean apart from where some soot had settled on it after the fire. In Mr Jones’ view the glass must therefore have fallen and protected the floor before the ceiling material spalled, which most likely happened when fire fighting water struck it. This means either that the window was broken (from the outside as the glass fell on the inside) before fire fighting began or it was broken as the window flipped around under the pressure of water from the fire fighters’ hose and fell inside the building (Report, para 3.3.2). Photograph 63 shows the latch of window W2: the pull loop is missing and the latch is in a subdued position. Photograph 64 shows this in closer detail: the slight protrusion of the catch prevents the window closing properly. Photograph 65 shows a distinct line of demarcation in the soot staining of the window where the differential degree of soot staining demonstrates that the window was not fully closed at the time of the fire. Mr Jones said that he removed the catch from window W2 for it to be examined internally. Photographs 66 and 67 show how the mechanism of the catch inside has been damaged. (Report, para 3.3.4). Photograph 72 shows the window catch of window W2 at the time of Mr Jones’ inspection on 3 June 2009 and before he took it apart to examine it internally. In his view the latch cannot have been distorted by the impact but must have been distorted beforehand. (Report, para 3.3.7). Mr Jones said that he found evidence that W2 was not fully closed at the time of the fire but was stuck partially open as a consequence of its latch being stuck in the up position. The latch was stuck because it had been damaged. In Mr Jones’ opinion this evidence is consistent with window W2 having been forced open before the fire. He said, “The evidence of clean broken glass on the floor could also be evidence of the window not, as Dr Gardner has concluded, being intact before the fire” (Report, para 5.16). Mr Jones commented, “It is disappointing that Dr Gardner did not make a detailed inspection of the debris on the floor below window W2. By the time of my inspection, there had been further intrusion into the building and the likelihood is that the debris had been disturbed. Nevertheless, I found clean broken glass on the carpet and the carpet was clean beneath, showing that clean broken glass was the first material to fall on the floor. The glass therefore was probably broken before the fire or, as I point out at paragraph 3.3.2 the glass might have been broken during early fire fighting operations…” (Report, para 5.18).

In his Supplementary Report at para 4.4 Mr Jones says that “While discussing the possibility of access through W2 Dr Gardner deduces on page 30 that the window was broken during fire fighting operation and not by an intruder. His reasoning is based on the amount of glass found on the floor amongst the debris but he has failed to consider that only a small amount of glass needed to have been broken in order for the intruder to reach through and break the catch. After that, the window could have been tilted and entry gained very easily without having to break any more glass. Hence, the amount of glass that might have been broken during the course of fire fighting does not provide a reason for excluding the possibility that the window was broken before the fire” (Supplementary Expert Report, para 4.4).

Mr Brown asked Mr Jones about the significance of finding the piece of glass at Photograph 56 and other fragments of glass that he found that were not in the same condition. He said:

“It signifies that the pieces that have protected the carpet were the pieces that fell first and that at that time nothing else was falling on the carpet. We then see later on that ceiling material has fallen down.

Some of that was underneath some other pieces of glass, which suggest that more glass has fallen down after the remnants of the ceiling. And then we have the blinds that have fallen down on top of all that.

So we have a strange progression of material falling on to the carpet, but clearly some pieces of glass were on the carpet before anything fell.

Q. What is to be inferred from that?

A. This is an important finding from the point of view of the forensic investigation because it gives rise to the possibility that there might have been entry through that window, the window might have been broken first and used as a means of entry, and thereby the glass on the floor has fallen before any of the fire damage occurred.

It could also mean, however, that the glass simply fell at a very early stage in the fire fighting and therefore before any of the ceiling material was brought down by the fire fighting hoses.” (Transcript Day 2/75/line16 - 76/line 13).

Mr Cannon cross-examined Mr Jones on his evidence that the glass that was removed which is seen in Photograph 56 “matched identically the shape of the clear patch underneath” (Transcript Day 2/76/lines19-24). Mr Cannon suggested to Mr Jones that the piece of glass is some considerable bit larger than the hole (see photograph 55). Mr Jones said “… There has been some encroachment around the edges, which you get from the water moving around and so on.” (Transcript Day 2/121/lines 3-6). He said underneath that piece of glass is clear, protected carpet. Mr Jones said: “It matches it in shape and form”. (Transcript Day 2/122/lines 10-13).

Mr Jones said that whilst Mr Innis was talking about the window as being intact when he had finished, he did explain that he had squirted water into that area and encountered no resistance from the blinds, which would mean that the glass, if broken afterwards, would be on top of the blinds and on top of the ceiling debris. But, Mr Jones said, that he had clearly recovered glass that was underneath the blinds and underneath the ceiling debris, and so testing that part of his evidence against the forensic evidence, in his view Mr Innis must be wrong (Transcript Day 2/106/lines 2-11).

Mr Cannon suggested to Mr Jones that the damage to the latch happened at the same time as the trauma or the blow which broke the pull-catch. Mr Jones said that was not possible. He referred to Photograph 67 in his Report and said: “That shows the condition of the latch when I inspected it just after I had removed the back panel, and we can see how the bottom cam has been moved to the left on the pivot bar. The position from which it had moved was brighter than the rest of the bar and brighter than the surface of the broken ring-pull. That means it is much fresher.” (Transcript Day 2/99/lines 17-23). He added: “You can also see, if you look very carefully, and I have the item with me in my bag, that there is some paint where the ring-pull came away from. So it has been painted since that was broken.” (Transcript Day 2/100/lines 13-16). Mr Jones said that the damage to the latch was fresher than the damage to where the ring pull came from, which is far more corroded than that and has paint over it (Transcript Day 2/101/lines 17-19).

In his first report Dr Gardner said that “The pattern of smoke staining to the frame and the absence of soot deposition on the external wall above the window indicated that [W2] was closed and intact at the time of the fire” (page 14). In fact, as he accepted, on his initial investigation in March 2009 he did not discover that W2 had not been fully shut at the time of the fire. He did not see that the bolt was not as it should have been. (Transcript Day 3/76/line 20 – 77/line 25). He said that if he had seen the reveal in W2 was not entirely closed at the time of the fire he “would have thought that the window was insecure at the time of the fire, in that it was not fully closed” and “because it is not secure so potentially somebody could get in there without forcing an entry” (Transcript Day 3/91/lines10-21). In his report dated 25 March 2011 Dr Gardner said, “My interpretation of the overall pattern of damage to window W2 is that the catch had been damaged as a result of misuse and the window was insecure for some time prior to the fire” (para 5.36).

Dr Gardner accepted that the evidence that window W2 rotated around its horizontal axis when the fire fighters’ water jet was applied did not exclude the possibility that there could have been a hole within the glass of the window. (Transcript Day 3/61/line16 - 62/line 3).

Dr Gardner accepted that he did not find the piece of relatively clean glass that Mr Jones found on his investigation. He was asked about it.

“Q. … It was explored with [Mr Jones] whether there was some encroachment around the edges, but do you accept and agree it is of a similar shape [to the carpet underneath the glass fragment]?

A. I accept and agree that the piece of glass is about twice the size of that clear area of glass.

Q. Do you accept it is of a similar shape?

A. Well, part of it, yeah.

Q. And it is noticeable, is it not, that you have that clean area of carpet underneath that piece of glass?

A. Yes.” (Transcript Day 3/81/line13 - 82/line 6).

Dr Gardner said that his whole appreciation of the area gave him no indication that there had been a forced entry. There was glass everywhere in this area. His whole visual inspection was that there was glass on top of debris. He has not seen any evidence that changes that. (Transcript Day 3/82/line 24 - 83/line 2).

Tiled roof (sections A, B and C)

Whilst the statistics do not eliminate the possibility that intruders had gained access through roofs, Dr Gardner’s view is that the data provided by the Police supports the premise that breaking/removing concrete tiles on a roof is not a common mode of entry by intruders. Further the amount of smoke that would vent from such a hole would be considerably greater than that seen pulsing from relatively small gaps between tiles and under the eves. On the basis that smoke was seen issuing from the eves, if a man-sized hole had been present in the roof, above eaves level, then it is reasonable to expect smoke to have been seen venting from such a hole. It is the view of Mr Jones that great care should be exercised in the interpretation of statistics, especially when using it to justify eliminating likelihoods. The possibility of entry through the roof must be considered by a fire investigator as part of an objective assessment of access for intruders. Mr Jones considers that entry by removing slates is a highly realistic proposition. Mr Jones is of the view that the matter at issue is how much smoke was seen by the Fire Service coming from the eaves and slates compared to the amount generally rising from the building, especially as the Fire Service’s view of the bases of roofs A and B was obscured by the building and, likely, by smoke issuing from the eaves.

Roof light (section D): W15 and W16

As for the two sections of roof light found lying on top of burnt debris in the locker room (see paragraph 5 above and section 3.6.7 of the Experts’ Joint Statement), it is the view of Dr Gardner that based on the location of the two sections directly beneath the base of roof light W15, both sections originated from roof light W15. The sections both exhibited a similar degree of soot staining and maintained their “corrugated” construction. There was no significant difference in the degree of heat damage to each section. The finding that burnt debris was beneath both sections of roof light strongly indicates to Dr Gardner that roof light W15 collapsed during or after the fire. Mr Jones’ evidence is that the sections of roof light found in the locker room could have originated from either or both roof lights W15 and W16 and the two sections exhibited significantly different degrees of heat damage.

It is the view of Dr Gardner that with regard to this fire, these aspects are not known with confidence and part of a roof light could have failed and collapsed before another part of the same roof light. The opening seen by Fire Fighter Kingdom was a roof light, which most likely failed during the incident as a result of exposure to the fire. Fire Fighter Kingdom could have seen the remaining section of a roof light “flapping” after the other section of the roof light had failed and collapsed. Alternatively, Fire Fighter Kingdom could have seen a “whole” roof light that had failed along two or more of its edges, such that it would “flap”. The roof light could have failed before he first went up in the ALP, during the time he first went up in the ALP, or alternatively between his first and second ascents in the ALP.

It is the view of Mr Jones that when a roof light is exposed to heat, the whole of the section of roof light that would fail as a consequence of heat would fail at the same time and collapse because the resin would have been burnt away. The parts that were not so affected by heat as to fail would remain in place. Mr Jones therefore considers that the observation of Fire Fighter Kingdom of a roof light “flapping” demonstrates that either W15 or W16 must have been mechanically broken before he saw it from the ALP.

Commenting on Fire Fighter Kingdom’s description of a rectangular hole in roof D and that part of the roof that flapped when he directed water through the hole, Mr Jones said:

“From inspection after the fire it was found that the steel parts of the roof were still intact so it must have been a roof light that was flapping. If it was flapping that meant that it had the structural ability to attempt to return to its original position after the water jet had moved away. It can be seen in Photographs 84 and 85 that a roof light that has failed through the heat of the fire will lose all its structural integrity and will not flap when hit by a jet of water but instead will simply collapse or just move to one side. I am therefore of the view that for a roof light to be flapping it must still have retained mechanical integrity and therefore must have been broken rather than destroyed by the fire.

From the damage shown in Photographs 83, 84 and 85 it is, in my view, more than reasonable to conclude that roof light W16 had burned through the heat of the fire and that roof light W15 was broken before the fire. … I am surprised that Dr Gardner, having heard the same evidence, has reached a different view at the bottom of page 34 of his second Report despite stating at the start of the last paragraph on page 34 that ‘A glass fibre roof light will lose its structural integrity if exposed to fire temperatures for a sufficient period and will fail and collapse.’ That being the case, it could not have flapped as reported by Fire Fighter Kingdom.” (Mr Jones’ Report at paras 3.4.9 and 3.4.10. See also the Supplemental Report of Mr Jones at para 3.6).

Summarising the condition of the two remnants of roof lights which he examined, Mr Jones said that “The one nearest to section B was very flimsy, whereas the one further away from section B was so rigid that when I moved it it retained its shape when moved” (Transcript Day 2/66/line 24 - 67/line 2). Photograph 85 shows the flimsier one that has suffered much more heat damage than the other. The difference in the condition of the two remnants signified to Mr Jones that “They have been subjected to different degrees of heat attack and, in particular, the less damaged piece still had substantial structural stability”. Mr Brown asked Mr Jones if the two partial remains were from differing roof lights, what did that imply to him.

“A. It implies the roof lights were subjected to different degrees of heat before they failed or it might imply that one roof light was broken and the other had been destroyed by heat. I inclined more towards the latter view given the rigidity of the more substantial piece.

Q. And if, on the other hand, both remnants were from the same roof light, as Dr Gardner is inclined to posit, what would that imply?

A. It would then be far more likely that the roof light had been partly broken so that some of it fell at an earlier stage out of the zone of heat, and the other section of roof light eventually failed simply from heat.

Q. Now, there was evidence from Fire Fighter Kingdom … I don’t want to ask you to say whether it is good evidence or not good evidence, but I want to ask you about two possibilities.

If the court were to take the view that at an early stage in the fire fighting Fire Fighter Kingdom saw a hole and some flapping…

A. Yes.

Q. … In the general area of W15, W16?

A. Yes.

Q. What would that imply?

A. It would imply to me that a roof light had been broken rather than having failed through heat.

Q. If, on the other hand, the court were to take the view… there may be other possibilities too, but if the court were to take the view that Fire Fighter Kingdom saw a hole in that area and saw some flapping, but at a later stage in the fire fighting operation, what would that imply?

A. That is a difficult issue because if the hole was seen and the flapping was seen later rather than earlier, I don’t know how the more substantial piece… or shall we say the flapping… could have occurred, because it would imply that the failure should have been through heat. But if that were the case, then the piece would just fall out; it would not have the structural integrity to keep flapping.” (Transcript Day 2/67/line 16 - 69/line 7).

Mr Cannon put to Mr Jones the alternative possibility which is that W15 and/or W16 failed for the first time at about the time that Fire Fighter Kingdom saw it flapping and that there had not been an earlier failure or disruption of part of either W15 or W16. Mr Jones responded:

“It might explain the smoke developments etc. but it still doesn’t explain to me the rigid condition of the piece shown in Photograph 86 of my Report.” (Transcript Day 3/13/lines 21-23).

Asked about the evidence of the fire fighters of the venting of smoke from the eves level or thereabouts on section D, Mr Jones said that “It would simply imply that smoke was able to vent from those areas. It has no relation to what was happening under W15 or 16 unless it can be shown that there was a direct connection between those two areas” (Transcript Day 2/70/lines11-14). Mr Jones said that, “These matters are not simple, not straightforward, and what to a layman might seem an obvious answer is a dangerous answer because to reach that answer, you have to know exactly where the fire is developing, exactly where the smoke is moving, what the differential pressures are, what the openings are and so on.” (Transcript Day 3/31/line 18 - 32/line 4).

There was no consideration of roof lights W15 and W16 in Dr Gardner’s first report. Fire Fighter Kingdom was not interviewed by Dr Gardner until 26 July 2010. In his second report dated 12 November 2010 Dr Gardner considered the observations of FF Kingdom at pages 33-34. In his third report he concluded that “The opening that was observed by FF Kingdom in the roof of section D can be readily attributed to a roof light (W16) that had failed as a result of the fire, rather than evidence of a forced entry” (para 6.3). At paragraph 5.53 Dr Gardner said:

“In my view, roof light W16 was largely destroyed by the fire, leaving only the remnants of loose fibreglass matting seen amongst the debris on the floor of the partitioned room. On the basis that roof lights W15 and W16 were located nearest to Section B and a severe fire was burning in Section B, where the roof had partly collapsed, it is plausible that one or more of the roof lights failed as a result of exposure to fire that had spread from Section B to involve the partitioned room. If roof light W16 failed in this manner some time between when FF Kingdom initially went up in the ALP and when he went up again with FF Strover, then this can explain his observations and SM Bruce’s assertion that he was initially advised on the fire ground that the roof of Section D was intact. In addition, this would also be consistent with the observations of WM Walkden and WM Innis that the roof of Section D was intact when they had a view of it at a relatively early stage of the fire. Thus, I would conclude that the roof lights in Section D were most probably intact when the fire started and a roof light had not been used as a point of entry by an intruder.”

Dr Gardner did not agree that if Mr Jones’ evidence that he found one piece of roof light to be flimsy and another piece to be rigid, that would be significant evidence. Dr Gardner did not lift up these roof light remnants. Mr Brown asked him what his inspection involved.

“A. My inspection involved going through that loft space, looking at the roof lights that were still … or sections of them that were still attached, looking for other areas, seeing roof lights that had collapsed, seeing remnants inside the locker room of different sizes and seeing that this material of anything of considerable size was protruding from amongst the debris and on top of it.

Q. How can you tell from that kind of inspection whether one piece of roof light remnant is flimsier than the other?

A. Well I can tell that overall there is not a lot of difference between them.

Q. Please answer the question?

A.

Well, by sight you can look at them. When you say flimsy, as I said before there are degrees of this and I have accepted that certain areas of the same roof lights could be flimsier than another because they have received more heat damage but unless I see positive evidence that says … I can explain that perfectly easily, it is completely conceivable that could happen in a fire while it is in a roof but if I had seen an undamaged section underneath debris or protruding from underneath debris, then I might think differently.” (Transcript Day 3/125/line 16 - 126/line 14).

Mr Cannon accepted that the Defendant had the burden of proving a causative breach of warranty to the civil standard of proof.

Mr Cannon said that the Defendant’s case is that Mr Mark Lee is “mistaken” about having checked the door D4 and that D4 was securely locked (Transcript Day 4/35/lines 16-25).

Mr Cannon submitted that Mr Mark Lee’s recollection should not be accepted as accurate for a number of reasons:

Mr Cannon submits that the fact that D4 was not bolted at the lower bolt raises the strong possibility that it was not bolted at the top bolt either. It is possible that D4 had warped so that it was jammed in place, not bolted. Mr Cannon suggested that in that way, broadly, Mr Lee’s evidence could be reconciled with the finding that Dr Gardner is right about D4.

Mr Cannon invited the court to find that the pull loop of the window catch had been missing for some time before the fire, that the catch itself was also broken for some time before the fire and that W2 was therefore not firmly secured. He also invites the court to find that the glass to W2 was intact and, if W2 was the point of entry, entry was effected by opening the unlocked window, not by breaking part of the glass and forcing the lock. (See para 5(c) of Amended Defence).

Three broad categories of reasons to reject the Claimant’s case about W2 were put forward. First, it is inconsistent with the evidence of the fire fighters. WM Innis, FF Strover and WM Walkden all looked at this window and thought it was intact. Mr Cannon submitted it had to be a fair size hole for the intruder to get his arm and elbow in in order to reach the lock. Second, it is not supported by the forensic evidence. Mr Jones was wrong to say that he found a piece of glass that “matched identically the shape of the clear patch underneath”. His suggestion that the encroachment of debris occurred when he turned the piece of glass over was shown to be incorrect. Fire debris was underneath part of it before he turned it over (Transcript Day 2/121/line 22 - 122/line 9). (Mr Jones’ explanation was that there had been disturbance by June 2009: Transcript Day 2/122/lines 5-9). Third, it is inherently improbable and implausible. It requires the intruder to attempt a difficult forced entry, without leaving any obvious marks or scratches, at first floor level at the front of a well-lit building on a street with other properties in it.

Mr Cannon submits that the suggestion that W15/W16 were the “most likely” or seriously possible means of entry should be rejected. First, roof D was inspected a number of times (see the evidence of WM Walkden on his initial 360 degree assessment; when WM Walkden and WM Innis discussed whether roof D was covered in asbestos tiles; when CM Hobson was deciding where to station the ALP; when SM Bruce carried out his 360 degree assessment; when CM Hobson was in the pulpit of the ALP). The Claimant’s case involves all four of these fire fighters missing a fairly large hole.

On the evidence it is not certain what FF Kingdom saw and how long for; accordingly it is hard to attach weight to it (Transcript Day 4/108/lines 16-17). Fire Fighter Kingdom “could have seen that bit of roof light that was dangling down because it was failing through heat. The flimsy bit that was found by Mr Jones was a piece of roof light which kept its corrugated shape which didn’t fall apart when you picked it up, although it was flimsy, it was flappable, and it was bendable, it could flap. … He sees a hole, he sees some fire through it. In the approximate area of W15/16… He had seen something, he had gone down there and tried to make it bigger and something is flapping.” (Transcript Day 4/106/line 16 - 107/line 9; and see 112/lines 1-16).

Second, there is nothing in Mr Jones’ theory about differential damage to the pieces of roof light he found in the locker room. Given where he found the pieces of roof light it is far more likely that both were from W15. Dr Gardner’s evidence was that what was left was a number of pieces of roof light which had been damaged by the fire. He was able to explain any difference in the extent of damage by different exposure to the fire by reason of relative height. Mr Jones’ theory involves the fire starting and then dying down again. However the evidence of the fire fighters was that there was smoke emerging across roof D when the fire fighters arrived.

Third, it is inherently improbable that an intruder would force entry by way of W15 or W16. D4 and W2 are much more attractive ways of getting in. If you have to break a roof light, why W15 or W16, which are high up on the roof, when you have W14 or W13 which are at a lower level. Further an intruder entering this way would risk being locked in the building.

Finally, Mr Cannon submits there is no physical evidence to support any suggestion that entry was gained by lifting roof tiles in roof A or B. There is no evidence of fire fighters seeing signs of smoke emerging from a man-sized hole in roofs A or B. D4, W2 and the roof lights are all more attractive and obvious points of entry. Intruders would have to remove tiles and break through supporting battens and any material underneath the tiles.

Mr Brown submits that the Defendant has failed to establish that door D4 or window W2 was insecure, and it has failed to establish that the intruders gained entry as a result of that door or that window having been in an insecure state. The Defendant needs to satisfy the court on both points.

As far as D4 is concerned, Mr Brown submits that the court should find that both bolts were engaged; alternatively the top was engaged. In either event on the evidence the door was secure and D4 was not the means of entry. It follows there was no breach of warranty.

As for window W2, Mr Brown invites the court to hold that W2 was secured by the latch. If that were to be the case then there is no breach of warranty. If the court were to find that damage to the latch occurred before the intruders arrived, Mr Brown submits that on the balance of probability the damage to the latch did not contribute to the intruders making their way into the building. On the evidence it is more likely that entry was gained by breaking a hole in the glass.

Mr Mark Lee gave clear evidence in relation to both D4 and W2 and that both were secure. He carried out a system of regular inspections and he has a specific recollection of checking D4 on his last visit to the premises. He was well aware of his responsibilities under the warranty. He would have had no need or cause to open either D4 or W2.

The evidence of Mr Mark Lee was supported by the evidence of his father. He said that his son took his responsibilities in relation to the warranty very seriously. In early February 2009 Mr Brian Lee inspected the premises. He did not go inside but he says that the external doors were secured and could not be opened and there was no sign of any windows being broken or insecure. He said he walked round the building and pushed the other doors. (Transcript Day 1/46/lines 9-10).

Mr Jones’ evidence is that both bolts on D4 could have been engaged. Ultimately Dr Gardner’s evidence that the lower bolt could not go in was a matter of impression. He did not measure the bolt and he could not physically try it. Mr Brown submits there is no reason to suppose that the lower hole would not accept the bolt.

Mr Brown submits that no credible explanation has been given as to why anyone would have or would have left the two bolts to D4 withdrawn.

In relation to W2, and in particular Mr Jones’ finding in relation to the fragment of glass, Mr Brown submits that Mr Jones was right to say that it matched identically the shape of the clear patch on the carpet underneath. What one can deduce is that this piece of glass fell at an earlier stage than most of the glass and that is consistent with the possibility that a hole was broken before the fire started, but not necessarily indicative of that. The fact that there is one such fragment with this matching shape makes it entirely plausible that there would have been others. Whether or not they could have been found had there been an investigation at the time, we cannot say.

Mr Brown submits that on the face of it the damage to the latch was caused by somebody forcing it. That is consistent with an intruder making entry to the premises breaking a hole in the glass in W2 which is big enough to enable him to reach in to force the catch. Mr Brown observes that if an intruder did enter through D4 it is difficult to see why the intruder should then force the latch on W2 when there is a known means of egress through D4.

Mr Brown invites the court to accept Mr Jones’ findings in relation to the two roof light fragments. He submits that what Mr Jones found is consistent with and suggestive of entry through roof lights, because it suggests that one of the roof light remnants failed in a different way and under different heat conditions to the other. Mr Jones is inclined to think that they are from different roof lights, W15 and W16, but he accepts that one cannot tell and his conclusions in this regard do not depend on whether they are from the same roof light or different roof lights; the essential point is that they failed under different heat conditions.

Mr Jones accepted that smoke would have escaped through W15. What is not clear on the evidence is the point in time that the smoke did emerge from W15 to such an extent that the fire brigade observers saw it. What is clear from Mr Kingdom’s evidence is that he saw a hole in the W15/W16 area, but at that time smoke was not emanating from that hole. Mr Brown submits that FF Kingdom probably saw the hole at an early stage in his involvement, but whenever it was, obvious plumes of smoke were not emerging from it at the time he was viewing it.

Mr Brown submits that the proper conclusion to be drawn from a careful analysis of the evidence of the fire service witnesses is that none of them has any clear or reliable recollection of seeing that W2 and the roof lights W15 and W16 were intact. As far as the roof lights in particular are concerned the evidence of the four witnesses on whom the Defendant relies had a view from ground level, possibly raised ground level and/or from the pulpit of the ALP, but not, as did Fire Fighter Kingdom, from the roof. Mr Brown submits that the evidence of all these witnesses in relation to W2 and W15/W16 is in the nature of impression or inference, rather than recollection of what any of them remembers specifically seeing. Impressions may not be reliable, in particular when witnesses are engaged in fighting a fire. Mr Brown submits that the fact that no plume of smoke was noticed by any of the relevant fire service officers does not establish that the roof light was intact. As Mr Jones said, all depends on how the fire spread.

Mr Brown submitted that there is also the possibility that there could have been access through the tiles in the roof, but he accepted that this was the least likely of the three points of entry put forward on behalf of the Claimant.

It was Mr Brown’s submission that Dr Gardner made an inadequate initial investigation and then committed himself to an unequivocal conclusion that the only means of entry for the intruders was through door D4. The problem with doing that, Mr Brown suggested, is that it can then influence how one views further evidence that comes to light.

Having considered all the evidence I make the following findings:

I accept that Mr Mark Lee and Ms Aynsley both honestly believed they first noticed and pointed out that D4 might be open. It matters not which of them is correct. Even if Mr Lee was wrong about this it does not assist me to determine whether he was right or wrong in his evidence as to what he saw on his numerous inspections.

The Defendant has failed to establish that there was no plausible alternative means of entry for the intruders who caused the fire to the property.

On the evidence there was an alternative means of entry through roof lights W15 and/or W16. The evidence of Fire Fighter Kingdom, which I accept, is that he is certain there was a hole near the top of roof D near the joint with roof B in the approximate area of W15 and W16. He tried to open it up a bit and it was flapping. The hole was about 3ft by 2ft. He did not know whether it was in the steel part of the roof or just a roof light flapping. It appears from his first witness statement that he saw this at an early stage in his involvement, shortly after the time he went up in the basket. In his second witness statement he put the time later, shortly before or after 03.00 for the reasons he gave in his evidence (see para 28 above). In re-examination he said he thought what he said in his second statement was correct. However in answer to Mr Brown he said it was likely that he saw the hole at a relatively early stage in the fire. (Transcript Day 1/59/lines 10-13). In my view it is likely that that is when Fire Fighter Kingdom saw W15 or W16 flapping (see para 96 below). It was his first ALP job and as he said he was somewhat anxious (Transcript Day 1/56/lines 10-11). It is not surprising therefore that he is not clear about some of the detail.

In my view the fact that none of the other fire service officers saw what Fire Fighter Kingdom saw does not undermine his evidence. It was not suggested that he did not see what he described. He was above the hole looking down into it from his position in the basket of the ALP. The other fire service officers who were able to give relevant evidence on this matter were either at ground level or just above ground level or in Fire Fighter Hobson’s case in the pulpit of the ALP. None of them had the view that Fire Fighter Kingdom had. Further I do not consider the fact that smoke was not billowing out the hole, but was seen emanating from the eves of the roof, undermines Fire Fighter Kingdom’s evidence. I accept the evidence of Mr Jones that whether or not smoke would emerge through the hole at any particular time depended on how the fire spread (see para 64 above).

In my view the evidence of Mr Jones as to his findings in relation to the two roof light fragments is consistent with entry through the roof lights. His findings suggest that one of the roof light remnants failed in a different way and under different heat conditions to the other (see para 62 above). It matters not whether they are from the same roof light or different roof lights. I accept Mr Jones’ evidence which suggests that Fire Fighter Kingdom is more likely to have seen a hole and the flapping at an early stage in the fire fighting (paras 62 and 63). In my view the limited nature of Dr Gardner’s investigation was such that he was not able to provide a satisfactory response to these findings of Mr Jones (see para 65 for Dr Gardner’s evidence on this matter).

Further in my view a plausible alternative means of entry was through window W2. I do not consider the evidence of entry through W2 to be as strong as the evidence of entry through the roof lights W15 and/or W16, but in my view there is no reasonable certainty that entry was not gained through W2.

There is no evidence that the latch to W2 was broken before the fire on 24 February 2009. The evidence of Mr Mark Lee, which I accept, is that on his internal inspections he would check the windows and his recollection of W2 is that the round finger pull on W2 had been missing for some time but the latch itself was engaged. Mr Cannon invited me to find that the catch was broken for some time before the fire and that W2 was therefore not firmly secured. I do not make that finding. In my view the likelihood is that the lock was forced when the intruders entered or attempted to enter the building through W2.

In my view the finding of Mr Jones in relation to the piece of glass which covered the clear patch on the carpet does provide some support for W2 being the means of entry. I accept Mr Jones’ evidence that the findings of protection of the carpet and broken glass with a clean under-surface give rise to the possibility of the glass having been broken before the fire but does not prove the point. Mr Jones accepts that the glass might have been broken in the early stages of the fire fighting. However if the glass was not broken in the early stages of fire fighting then it must have been broken before fire fighting.

None of the fire services witnesses saw a hole in the glass of W2. However as Fire Fighter Strover accepted he would not necessarily have seen a hole in the glass unless it was a saucer-sized hole (see para 27 above). The fact is whether or not Mr Innis, Mr Strover or Mr Walkden actually saw a hole in the glass in W2, if, on Mr Jones analysis, the glass was not broken in the early stage of fire fighting then it must have been broken before fire fighting began.

I accept that even if the glass in window W2 was broken by the intruders it may not have been easy for them to obtain effective entry to the building through W2 (see para 45 above). However that does not lead me to conclude that W2 did not provide a plausible means of access.

There is no evidence that access was obtained through the tiles in the roof. Accordingly I reject the possibility of entry through the tiles as a plausible alternative means of entry.

In summary, in my view the Defendant has failed to establish that the intruders could not have obtained entry to the building either by the roof lights W15 and/or W16, or by breaking the glass and forcing the latch and gaining entry through W2.

I find that both locks on D4 were engaged, that D4 was secure and that entry to the property on 24 February 2009 by the intruders was not gained through D4.

The Defendant has not established the alleged breach of warranty in relation to the securing of a door (D4) or a window (W2).

In my judgment the Claimant succeeds on liability and is entitled to a declaration that it be indemnified by the Defendant in respect of loss and damage and to damages for breach of the Policy.