Last week, the New South Wales Supreme Court handed down a
decision in the matter of Anderson v Ausgrid  NSWSC
1308 which is likely to be extremely helpful to insurers
seeking recovery as a result of fire damage.
The claim arose after Mr and Mrs Anderson's home was damaged
by a fire a month after Ausgrid had replaced one of their
Given the extent of damage to the property, it was impossible to
determine exactly where the fire started. The burn patterns around
the meter box however, indicated it was most likely the origin of
the fire. In addition, a neighbour provided evidence that she had
heard popping noises and seen sparks flying from the meter box just
shortly before the fire started.
Under their contract for service, Ausgrid is only responsible
for the meters housed within the meter box and the point of power
supply. All other components of the meter box are the
Ausgrid argued that Mr and Mrs Anderson's case should fail
on the basis that they could not prove conclusively where the fire
began. Furthermore, they argued the fire could have originated in
any component of the meter box and that Mr and Mrs Anderson could
not disprove this.
The plaintiffs' expert evidence indicated that the most
likely cause of the fire was the incorrect installation of the
meter after it was replaced. The expert's hypothesis was that
the time between the replacement of the meter and the fire was
consistent with the time it would take a loose connection in the
meter to manifest itself.
Whilst the plaintiffs' expert could not conclusively state
the fire was not caused by any other component of the meter box, he
found the probability of this was extremely low.
Ausgrid's expert disagreed the most probable cause of the
fire was faulty installation of the meter. He was of the view that
such a fault would have manifested itself much sooner. He did
however concede that it was a possible cause of the fire.
Her Honour, Justice Adamson, ultimately found that an inability
to show precisely how the fire started was not fatal to the
plaintiffs' case. She also found that, in order for the
plaintiffs to succeed, it was unnecessary for them to exclude all
other possible explanations for the known facts. All that was
required was for the plaintiffs to be able to satisfy the Court as
to the most likely cause of the fire.
Judgement was entered in favour of the plaintiffs together with
costs and interest.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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