Friendly Home Insurance Co Pty Ltd

AUSTRALIAN ADVOCACY INSTITUTE

Case Study:

RODERICK SUN

FRIENDLY HOME INSURANCE CO PTY LTD

CIVIL TRIAL

These materialsare copyright. Subject to the Copyright Act 1968, they and any part of them may not be reproduced in any material form, performed in public, broadcast, transmitted by subscription, cable service, or adapted without the prior written permission of the Australian Advocacy Institute.

Based on a case study prepared for Melbourne University Law School and used with their permission.

Revised by Professor the Hon. George Hampel AM QC & Elizabeth Brimer on 5 August 2010 100810

Roderick Sun v Friendly Home Insurance Co Pty Ltd

Participant Instructions

You are required to:

analyse and prepare to present this case from both the Plaintiff’s and Defendant’s perspective;
consider the case theory on each side;
consider how each witness may be examined and cross examined;
be prepared to present the opening and closing addresses;
consider whether and if so why the Plaintiff’s case should be split; and
prepare to argue that question on each side. See Protean Holdings Ltd v American Home Assurance Co [1985] VR 187

STATEMENT OF RODERICK SUN

I am a computer programmer and am the registered proprietor of the land at 12 Tilbush Avenue, Waverley. On 1st June last year the family house on that land was destroyed by fire. I was there at the time that the fire broke out. The fire took hold really quickly and although the fire brigade arrived promptly they were unable to save the house.

There is a bit of a history that I should tell you. I had owned the house for 30 years, and had lived in it all of that time together with my wife Mary-Lou. Our two children had grown up there and lived there until they left some three years ago. Mary-Lou and I had had our difficulties, and although you could say that by the time the children left the relationship was over, she would not leave the house. We started living separate lives in the house and eventually, in February last year, the Family Court made an order restraining me from going near her and she put a door in the passageway in the centre of the house, thus dividing the house in two. The door could be locked or unlocked only from her side. Then she served me with papers for a divorce, and the Family Court divorced us in April 2years ago. She also brought proceedings for property division. I didn't see why she should get a cent but the Family Court thought differently and ordered me to pay her $300,000 and her to move out of the house. They said I had to pay her and she had to move out by 30th June last year.

On the day of the fire I was at home. In fact I was packing my car and preparing to go away interstate on a holiday. I didn't know if I would be back by 30th June so I decided to take all the things in the house that were mine. I was supposed to give her all the furniture and all I was allowed to keep were a few personal items. I was carrying the last box of my personal papers out to the car, I had already put a suitcase with my clothes in there, when I smelt smoke and saw flames coming from the front part of the house where Mary-Lou had been living. I knew she was not home: I'd had an argument with her and her new boyfriend a couple of hours earlier and they had stormed off and not returned. I went up to the front part of the house to investigate the smoke and flames. They all seemed to be coming from the front comer of the house which is Mary-Lou's bedroom. It used to be ours. I ran next door and told my neighbour to call the fire brigade, then I went to my car which was in the driveway and backed it out into the street. I smashed in the lounge room window, intending to go in and investigate, but as I did that there was a large whoosh of air and flames seemed to burst out everywhere. The force of the whoosh threw me back into the garden. I then got the garden hose and started hosing the front of the house but the flames were far too strong and the heat was so fierce it forced me back.

The fire brigade arrived shortly after but by the time they had put out the whole fire, the house was ruined.

Mary-Lou arrived home shortly after and had hysterics. She immediately blamed me for the fire and said that I had done it to spite her. I said to her "Well there you go, the house has gone up in flames, see what you can do about putting me in gaol now for not paying you by 30 June. You’re going to have to wait for the insurance to come through".

I left soon after that because I couldn't stand her screaming and carrying on and went to the house of my friend, Stephen Bachelor who lives around the corner. He agreed to put me up for the night -in fact he put me up for a few weeks until I found a place of my own.

The house was insured with the Friendly Insurance Co. Pty. Ltd. I had taken out the policy three months before the fire and it was for $300,000. Before that I had not had the house insured for a few years. Times were tough, money was a bit tight and I had just let the old policy lapse.

The only time I went back to Tilbush Avenue was the day after the fire and I had a look through the wreck of the house. It was sickening. Not only was everything destroyed, but it looked as though looters had been through and tried to scavenge things.

The house had been on the market since February, but I had been unable to sell it. It was passed in at auction -there was not a single genuine bid. I was asking $500,000 for it, but I would have taken $450,000. I suppose what with Mary-Lou and me leading our own lives, the place had started to get a bit run down. When she boarded up the hall I stopped work on the renovations and she had let the place go to ruin.

When Mary Lou visited me at the office after the fire, she saw the photograph of our children. I became embarrassed because I did get into her side of the house when I was packing and I took the photograph as I knew she would never let me have any photographs or souvenirs. I did take her key one night some time ago and had a copy made.

I made up a story that she gave the photo when I spoke to the insurance investigator because I knew I was not allowed to enter her side of the house or take the key and I did not want any problems with the Family Court or with her.

My insurance company won’t pay out the claim I made 2 June last year. I deny that I started the fire. I still believed that I could sell the house as I still had a month to go I could get an extension from the Family Court.

I got a stay from the Family Court pending the resolution of my insurance claim.

Statement to Roderick Sun’s Solicitor

3 January this year

STATEMENT OF CONSTANTA SULTAN

I am a freelance fire and safety consultant, having previously worked for the Metropolitan Fire Brigade for 20 years, and rising to the rank of Officer in Charge of region 3in Victoria. I have had extensive experience both in domestic and industrial fires and for three years ran the Fire Investigation Training School for the Metropolitan Fire Brigade. In my time with the Metropolitan Fire Brigade I fought hundreds of fires and investigated thousands. When I left the Metropolitan Fire Brigade I commenced employment as a Claims Investigator with the Union Insurance Co., and I worked there for three years. For the last 3 years I have had my own consultancy business.

© COPYRIGHT - Australian Advocacy Institute

I have been shown a copy of the report of Mr Xavier Pert, and the report of Oscar Officer of the Metropolitan Fire Brigade, both relating to a fire at 12 Tilbush Avenue, Waverley. I remember young Xavier Pert as a trainee in the MFB. He had potential but was somewhat sloppy and did not follow through the recommended instruction procedures.

In my view the conclusions that the fire was deliberately lit cannot stand for the following reasons:

1It is not suspicious in itself to have three separate seats of fire. Aseat of fire is nothing more than an area of more intense burning or charring than the surrounding area.

2A seat of fire can be, but is not necessarily, the source or commencement of the fire. It can be, and quite often is, simply an area where the fire was more intense than any other area because of the presence of a more flammable material than in the surrounding area.

Unfortunately there don’t appear to be any photographs of the scene after the fire. I have not been to the site of 12Tilbush Avenue. It would be of no use my going there now in any event because one can only properly investigate and draw conclusions from an examination of the scenes of a fire, when the fire is of recent origin. The house was demolished by the time I was consulted.

© COPYRIGHT - Australian Advocacy Institute

It is not unusual for fires that occur in bedrooms to have an intense area of burning in and around the area of the bed. That is because the bed and bedding are more flammable materials than many other objects in a bedroom. The bedding can catch alight very quickly and cause deep and intense burning in the bed itself and, if the bed is low on the floor, the floor underneath the bed.

It is not uncommon where an electric blanket has caused a fire for very intense heat to be generated before the fire breaks out thus consuming bed and bedding within a very short period of the breaking out of the fire.

1Although it is unusual, it is not unknown for the whole of the bed and bedding, including the electric blanket and all its wiring and housing to be consumed in an intense fire. Where, as happened here, the fire was fanned on by the presence of unlined eaves that would, in my view, make it more likely that the whole of the bed, bedding and electric blanket paraphernalia could be consumed.

2The other seats of fire described in the reports are smaller. They are both consistent with the storage of domestic solvents or other products which are highly flammable. Unfortunately many such flammable liquids are sold and stored in thin plastic which ignites and burns very quickly leaving very little residue. It is not uncommon for the residue not to be detected by fire investigators.

3I have spoken to Mrs Sun who confirmed that there was an electric blanket on the double bed in the front bedroom. She also told me that the blanket was usually left on at the wall switch, and just turned on and off from the bedside control. She told me that the blanket had been faulty for some time. She thought that sometimes it did not warm up the bed as much as it should have.

4I asked her whether she stored anything in the hallway area near the kitchen. She said that she used the hallway cupboard and some cupboards in the kitchen as storage. She was a painter and kept a number of containers of mineral turpentine, paints, oils and brushes there, in various states of use. She said she kept some of the containers in the hallway. This is where the second seat of fire occurred. She also said that she used the back part of the kitchen as her painting studio.

5The splash or spread marks between the seat of fire in the bedroom down to the one in the hallway, and from the hallway down to the family room, whilst consistent with the deliberate spreading around of flammable material, are not necessarily indicative of a deliberate act. They are just as consistent with several explosions causing the splashing of inflammable materials and more intense areas of burning. Much of the interpretation of these would depend on the timing and number of explosions caused by the flammable material, and would also depend on when and to what extent the door and the kitchen wall were burnt. It is not uncommon in intense house fires for flammable liquids to explode and spray around the floor. Such an explosion, caused by the already raging fire can also cause splash or spread marks of the type described by Mr Pert and Mr. Officer.

I should also add that I asked Mr R. Sun about the seat of fire in the family room at the rear of the house. He denied that he kept any flammable liquids in the rear of the house but when I asked him agreed that he kept a waste paper bin in the family room in the rear of the house and that bin was full on the day of the fire as he had thrown a large quantity of papers and other rubbish into it. He told me that he was cleaning up preparatory to moving out and that accounted for the large number of papers in the bin in that area. That could have caused an area of more intense burning.

13 December last year

STATEMENT OF MARY LOU SUN

I was formerly married to Roderick Sun, and was divorced in April last year.

For most of our married lives we had lived in 12 Tilbush Avenue, although for the last couple of years we had not lived there as man and wife. In fact as a result of an order of the Family Court in February last year restraining Roderick from coming anywhere near me, I had boarded up the passageway between the front part of the house where I had been living and the rear of the house where he had been living. We could not resolve the split of property between the two of us, and the Family Court ordered that Roderick pay me $300,000 and give me all the furniture by the end of June last year. I had to move out of the house by then too.

He was not happy, but as he kept the house and the whole of the business (in which I had been a partner for tax sharing purposes) I thought it was a fair split. He kept on complaining and saying that the Family Court was biased towards women and that if I thought I was going to get his money and possessions and enjoy them I had another thing coming. He kept saying I wouldn't get any money, and then I think he got nervous because the Family Court gaoled a man for contempt for not paying his wife money, and the tax office chased him and bankrupted him. Roderick changed his tune and said he would pay me after all, but I might have to give him some more time. I told him I wanted my share of the money by 30th June and I would not wait. It was after that he put the house on the market, but he couldn't sell it.

After the Family Court had ordered him to pay me and when I knew that I was moving out shortly, I started going out with a man I had known for some time, but had been too frightened to see whilst Roderick was around and making his threats. Roderick found out that I had been seeing John and became very jealous. On the morning of the fire John had arrived to take me to lunch, and Roderick took the opportunity to come and abuse the two of us. He accused John of being a money-grabbing gold digger who was only interested in me because I was about to get $300,000 and accused me of terrible things. He again repeated his threat that if I thought I was going to get my money and enjoy it I had another thing coming. I told him if I didn't have my money on 30th June I would see him in gaol for contempt. I was very upset when John and I left.

We came home some hours later to find that the house had been destroyed by fire. Roderick was standing there and he walked straight up to me and said, with a sneer on this face: "Well there you go, the house has gone up in flames, see what you can do about putting me in gaol now for not paying you".

Everything I had was destroyed in the fire. I discovered that Roderick had his car piled up with suitcases and personal items and papers. He told me that he was loading the car preparatory to going away for a time when he discovered the fire. I was surprised by that because I did not know that he was planning on going anywhere. In fact he had been tense about leaving the phone for five minutes in case the agent rang to say they had a buyer for the house. He later told me that he was so jealous of seeing me with John that he decided that he couldn't stay around any more so he would go away till I had left the house. He told me he felt very remorseful for having abused me with John because we were divorced now and I could lead my own life. He told me that he was so ashamed of himself for having abused us that he decided to move out.