MMI General Insurance v Hammond
[2000] NSWSC 828
•23 August 2000
CITATION: MMI General Insurance v Hammond & Anor [2000] NSWSC 828 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 10455/00 HEARING DATE(S): 15 August 2000 JUDGMENT DATE: 23 August 2000 PARTIES :
MMI General Insurance Limited (Plaintiff)
Raymond Henry Hammond (1st Defendant)
Gay Christina Anne Hammond (2nd Defendant)JUDGMENT OF: Studdert J
LOWER COURT
JURISDICTION :Local Court LOWER COURT
FILE NUMBER(S) :219/98 LOWER COURT
JUDICIAL OFFICER :S. McCosker
COUNSEL : R.F. Sutherland (Plaintiff)
T.J. Morahan (Defendant)SOLICITORS: McMahon & Broadhurst (Plaintiff)
Michael Dennis (Defendant)LEGISLATION CITED: Local Courts Act
Justices ActCASES CITED: Australian Gas Light Co. v The Valuer General [1940] 40 SR 126
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Jones v Dunkel (1958-59) 101 CLR 298
Van de Ven v State Insurance General Manager (1990) 6 ANZ Ins. Cases 61-016DECISION: See para 46
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONSTUDDERT J
Wednesday 23 August 2000
10455/00 MMI GENERAL INSURANCE LIMITED v RAYMOND HENRY HAMMOND & ANOR
JUDGMENT
1 HIS HONOUR: By its amended summons, the plaintiff, MMI General Insurance Limited (to which I shall refer for present purposes as “the insurer”) appeals to this Court in relation to proceedings that had been brought against it in the Local Court by Raymond Henry Hammond and Gaye Christina Anne Hammond (to which I shall refer for present purposes as “the insured”). The insurer seeks the following orders:
“1. An order that the decision of the learned Magistrate that there be a verdict for the Defendants (Plaintiff in the Court below) be set aside.
2. An order that in lieu thereof there be a verdict for the Plaintiff (Defendant in the Court below) and that the Defendants (Plaintiffs in the Court below) pay the Plaintiff’s costs as taxed or agreed.
3. An order that the Defendants to the appeal pay the Plaintiff’s costs.
4. Such further or other order as the Court sees fit.”
2 The insured took proceedings against the insurer in the Local Court at Armidale claiming relief under a policy of insurance issued to them by the insurer in respect of storm damage which the insured claimed to have suffered to commercial premises owned by them at 67 Ollera Street, Guyra.
3 The insurer denied liability under the policy and the critical issue was whether or not damage was occasioned to the roof of the insureds’ premises in the hailstorm which the magistrate found affected Guyra on 29 September 1996. That central issue was determined in favour of the insured and the insured recovered judgment against the insurer in the sum of $9497. The quantum involved in the judgment is not under challenge on this appeal but the finding on liability is.
4 Under s 69 of the Local Courts Act an appeal lies to this Court only in respect of error of law. That much is common ground on this appeal. The principles defining what constitutes a question of law were expressed by Jordan CJ in Australian Gas Light Co. v The Valuer General [1940] 40 SR 126 at 137-138. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and in particular the judgment of Mason CJ at 356-357.
5 In the amended Statement of Grounds of Appeal the insurer has identified what it contends to be nine errors of law in the decision reached by the learned magistrate. I propose to deal with these grounds of appeal in the order in which they have been expressed, save for grounds 1 and 4 which I propose to address together and after considering the remainder of the grounds. Accordingly I will deal firstly with Ground 2.
Ground 2: The learned Magistrate erred at law in failing wholly to make any determination about the damage to, and claimed replacement cost of, a skylight on the Defendants’ roof
6 The damages awarded as stated above comprised the aggregate of the content of a tender for the installation of a new roof (Exhibit 3 before the magistrate) and the content of an invoice (Exhibit 4 before the magistrate). The tender sum in the document Exhibit 3 was $9189 and the invoice amount in Exhibit 4 was $308. These two figures aggregate the judgment sum of $9497 and the more modest of the two figures is an invoice for reglazing the broken skylight. Clearly the magistrate allowed the replacement cost of the skylight.
7 Mr Sutherland, who appeared for the insurer on the summons in this Court and who appeared for the insurer in the Local Court as well, submitted that the magistrate was in error in allowing the sum of $308. It was submitted that the person responsible for the invoice had not been called and the evidence about the work on the skylight was very unsatisfactory. Mr Sutherland submitted that in cross examination the insured, Raymond Hammond, acknowledged that at least as at the time when Mr Crow and Mr Simpson made their inspection in 1997 the crack in the glass was apparent. The report from Mr Crow and Mr Simpson, building consultants, became Exhibit 20 and from the report it appears that the site inspection which preceded the report was not made until June 1997. So it is, Mr Sutherland submitted, the crack in the skylight had not been attended to at that time, yet the invoice relating to repair is dated May 1997. That invoice is in a book which became Exhibit 26 and the copy invoice in the book, which also bears the date May 1997, comes after other invoices which bear December 1997 dates. This, Mr Sutherland argued, cast doubt upon the authenticity of Exhibit 4 and the authenticity of the claim for the work allegedly done on the skylight, yet the magistrate in his reasons did not address this problem.
8 The transcript of the evidence of Mr Hammond discloses that it was put to the witness that Messrs Simpson and Crow were at his premises “in early 1997” (T36) and in this context it was put to the insured that the crack in the glass was apparent at that time. Mr Sutherland acknowledged that at the time of that cross examination he did not have the invoice book, Exhibit 26, but it was not suggested that at any time it was put to the insured in as many words that the invoice was false or that the work could not have been done at the time the invoice was issued.
9 I accept Mr Morahan’s submission, contrary to that of Mr Sutherland, that this alleged error under consideration has not been established. The magistrate plainly made provision for the cost of the work and there was evidence given by the insured that the damage had been sustained. The evidence of the insured in chief was effectively given in statement form and what the first insured said in his statement in paras 26-27 was as follows:10 There was evidence then upon which the claim was supportable and whilst the reasons for judgment do not canvass the submissions advanced on behalf of the insurer as to why this item ought not to have been allowed, I accept the submission that no error of law has been demonstrated in the decision of the magistrate to allow this item.
“26. When it next rained after the hail storm I also noticed that the rain was coming through the skylights in my building. There are two skylights which are located in the centre of the front building. The skylights had wire glass in them. They were cracked and as a consequence when it rained water dripped through.
27. I spoke to Jim McDonald the MMI Insurance Agent and I said to him words to the effect of:
‘The skylights are broken. Can I get them fixed?’
And he said:
‘Yes. Just get them fixed.”
11 This ground overlaps with Ground 2. Mr Sutherland did not seek to argue that the failure of the magistrate to specifically address all submissions and all the evidence in his reasons amounted to a failure to give proper reasons. This being so, it seems to me that this ground has not been established. In the light of the concession made by Mr Sutherland, I do not treat the failure to specifically address the significance of the invoice as amounting to an error of law. The invoice was not, of course, the invoice of the insured. The date upon the invoice might have been wrong for reasons that were entirely innocent. Since it was acknowledged that the insured were not cross examined about this invoice and the date which it bore, it seems to me that this may well account for the failure of the magistrate to address the date of the invoice and the significance of such date.
Ground 3: The learned Magistrate erred at law in failing to consider at all the proved falsity of the Defendants’ claim regarding an invoice for the allegedly replaced skylight
Ground 5: The learned Magistrate erred at law in drawing an inference from primary facts that the credit of Mr Hammond was enhanced by the fact that he was not claiming for water damage.
12 Each insured gave evidence that rainwater entered the premises in a storm that took place after 29 September 1996 and according to the first insured he had repairs effected by his employees. There was some inconsistency between the evidence of the two insured as to when this rainwater first entered, but be that as it may, the insured made no claim for water damage which was observed by agents of the insurer who visited the premises for the purposes of the consideration of the claim of the insured. According to these various witnesses, the first insured said that such interior damage was not part of the claim because it had occurred before the relevant storm. In the light of this concession it would have been difficult, Mr Sutherland argued, for the insured to have pursued a claim in relation to internal water damage. There was no justification therefore for the magistrate to have drawn an inference that the first insured’s credit was enhanced by reason of the fact that no claim was being made for the water damage because such a claim would have been untenable.
13 What the magistrate said, which presumably prompted this ground under consideration, was this:14 I see no error of law in the above passage. All that the learned magistrate was doing was reflecting upon a submission advanced by Mr Sutherland and upon what might have been regarded as a competing submission. It does not follow from the reasons expressed in the judgment that the magistrate acted upon the reflection favourable to the insured but, in any event, as I say, I see no error of law in the passage from the judgment set out above and in my opinion this ground has not been made good.
“There is evidence of some flashing being replaced around the flue on the roof and earlier minor repairs to the roof which could conceivably explain the absence of any claim under this head and a concession by Mr Hammond to Mr Crow and Mr Strudwick that some water damage had existed prior to the September ’96 storm. I am asked that this feature of the case must tarnish the credit of Mr Hammond, but it might also be fairly said that his credit is enhanced by the very same evidence, in that he is only claiming for damage which occurred to the roof on 29 September 1996.”
Ground 6: The learned Magistrate erred at law in failing to consider the evidence of Mr Williamson
15 There was evidence introduced through Mr Williamson of an invitation which the first insured extended to him to quote for extensions to the premises the subject of the claim. He said that he saw the roof before 29 September 1996 and he said that there were indentations to that roof at that time. Mr Williamson was called by the insurer as a witness and he was cross examined. By the time the witness gave evidence the first insured had a judgment against this witness following upon another business dealing between the two men and the witness was cross examined on the relationship between the two. Whilst the witness asserted that he was a good friend of the first insured’s son, he acknowledged that “Blind Freddy” could see that the relationship with the first insured had deteriorated “over the years with business dealings”. The witness was cross examined about the extent of any inspection of the relevant roof that he made and it was put to him that the inspection made up on the roof simply did not happen. The witness maintained that it did.
16 The evidence of Mr Williams could have had significance and certainly it favoured the case of the insurer if it was accepted. It is correct that the magistrate has made no reference to this evidence in his judgment but again, having regard to the concession which was made by Mr Sutherland to which I referred earlier, I am not persuaded that Ground 6 has been made out. It could not be contended, nor has Mr Sutherland sought to contend, that the magistrate had to accept the evidence of Mr Williamson and that such acceptance compelled the conclusion of the litigation contrary to the insured.
Ground 7: The learned Magistrate erred at law in rejecting the expert evidence called on behalf of the plaintiff
17 This ground, as Mr Sutherland argued it, related to the evidence of the witnesses Messrs Crow and Simpson. I have already made reference to their report, Exhibit 20. What these building consultants said in their report was that the hail impact damage which they observed may well have been in place before September 1996 and that in any event it was of such a minor nature as “to present no technical or building deterioration factor”. The magistrate also had a report from an engineer, Mr Dossetor, in which he stated “There is slight denting to the corrugated galvanised steel sheeting, some of which may have been existing prior to the September 1996 hailstorm…”
18 The passage of the judgment attracting criticism by Mr Sutherland and prompting Ground 7 was the following:
“The defendant produced evidence from three expert witnesses in the form of Messrs Crow, Simpson and Dossitor. Mr Crow and Mr Simpson carried out a joint inspection on the premises on 3 June 1997 and a joint report was prepared and attached as annexure A to exhibit number 20. The conclusions and comments referred to in the report are based on the extensive experience of each person in examining damaged roofs and more particularly in relation to roof damage.
The report concludes that while damage was located, it was of sufficient age as not to be the result of the hail storm on 29 September 1996. This conclusion is based on the physical inspection of the subject building, adjoining buildings and experience gained in the case of Mr Strudwick of 14 years and in the case of Mr Crow, of approximately 8.5 years in insurance inspection work. While each of these persons has extensive experience in assessing damage, they are not possessed of any tertiary qualifications to assist them with their assessments unlike Mr Dossitor. Mr Dossitor indicates that he had a Master of Engineering Science and an Associate Diploma of Applied Physics. Mr Dossitor’s report is exhibit number 17 in these proceedings and it was prepared on 6 February 1997. His report at paragraph 5 on page 2 conclude ‘scuff marks and black surface deposits are difficult to associate with the extent of the September 1996 damage due to the time between the event, our inspection and recent heavy rains’. The import of this comment is that because of the criteria referred to, it is difficult to draw a firm conclusion as to the vintage of the damage he observed to the roof.
He goes on at .6 at the bottom of page 2, and continues onto page 3 under the heading ‘conclusions’, ‘It is recommended that there is slight denting to the corrugated galvanised sheeting some of which may have been existing prior to the September ’96 hailstorm’. The only inference to be drawn from his statement is that he cannot positively determine the age of the damage he observed. He would not put it any higher than it may have pre existed and cannot discount the sum what percentage is enabled to be identified could have occurred during the September 1996 hailstorm.
His report should be considered in the light of the fact that he suggested that the delay of approximately five months between the event and his comments, has contributed significantly to his inability to draw a precise conclusion as to the age of the damage he saw. Mr Dossitor’s difficulty in being able to accurately date the damage was directly as a result of the delay between the event and the inspection of some five months. Given his qualifications, then what effect must a further delay of an additional four months before the inspection of Crow and Strudwick have had on the accuracy of the conclusions they drew.”
(The references in the above extract to “Strudwick” are intended, presumably, to identify “Simpson”.)
19 I fail to see that there is any error of law in the above analysis of the stated opinions of the experts. Mr Dossetor acknowledged in his assessment on inspection on 29 January 1997 the possibility that the denting of the roofing pre-existed but that it could have been caused by the September 1996 storm. The assessment made by Mr Simpson and Mr Crow was not made until June 1997 and the learned magistrate thought that the engineer with the earlier opportunity of inspection was better placed than the building consultants in determining when the damage had occurred. That conclusion seems to me to have been one which was open to the magistrate as the tribunal of fact.
20 Ground 7 fails.21 It appears that there was no reference in the local newspaper, “The Guyra Argus”, to any reports of relevant hail damage. The magistrate did not overlook this but indeed referred to the two copies of the Guyra Argus which were tendered for the purpose of illustrating the absence of any relevant comment. The magistrate considered that there may have been a number of explanations for the failure to report upon the Guyra hailstorm, not the least of which was the level of damage and destruction that occurred in a hailstorm at Armidale, coincidentally on the same day. The magistrate was entitled to attach no weight to the absence of reporting on the Guyra hailstorm and certainly the failure to draw any such inference as the insurer submitted ought to have been drawn did not constitute an error of law.
Ground 8: The learned Magistrate erred at law in forming an opinion, not based on evidence, about the absence of reports of hail damage in the Guyra Argus.
Ground 9: The learned Magistrate erred at law in reaching a conclusion that could not be supported having regard to the evidence
22 Mr Sutherland did not seek to argue this ground and in my opinion he was both responsible and realistic in deciding not to do so. Clearly there was evidence upon which the conclusion reached on liability could be based. The magistrate found as a fact that there was a hailstorm in Guyra on 29 September 1996 and the report from the Bureau of Meteorology, which was Exhibit 19, supported this finding and that report was supported by the evidence of a number of witnesses including the evidence of the insured themselves. There can be no challenge to the finding which the magistrate made as to the occurrence of the hailstorm.
23 There was evidence of the existence of the policy of insurance upon which the claim was based and again the magistrate was entitled to find the existence of a current relevant policy of insurance. The evidence of the insured, and in particular the evidence of the first insured, if accepted, established that there was no hail damage to the roof when the insured purchased the property and that there was hail damage following the hailstorm on 29 September 1996. Coupled with the evidence of the first insured on this point, there was the evidence from the Bureau of Meteorology excluding the occurrence of any hailstorm in Guyra between the date of purchase of the property by the insured and 29 September 1996. Then there was the evidence of the first insured that the roof was found to be damaged after 29 September 1996 and there are a number of photos, and in particular a number of photos in Exhibit 2, which show damage which the magistrate was entitled to find was consistent with having been due to the impact of hail. I referred earlier to the evidence as to the cost of replacing the roof sheeting and the damaged skylight.
24 Having regard to the evidence before the Local Court, the conclusion which the magistrate reached was an available conclusion.
25 This leaves Grounds 1 and 4, which I turn to consider.
Ground 4: The learned Magistrate erred at law in drawing an inference that the failure to call Mr McDonald positively supported the Defendant’s case
Ground 1: The learned Magistrate erred at law in holding: ‘It is the Defendant who contends that the damage was pre-existing and would fall outside the terms of the policy and the onus shifts to the Defendant to demonstrate that the claim falls within an exception to the policy.
26 Mr Sutherland submitted that the learned Magistrate misdirected himself as to the onus of proof in this case and that this is disclosed in a passage in his judgment in which he was considering the failure to call Mr McDonald. Hence it is convenient to consider these two grounds together.
27 The evidence of the first named insured was that when the subject property was purchased in March 1995 arrangements were made for the insurer’s agent, Mr McDonald, to inspect the premises for the purpose of having the building and its contents insured. Mr McDonald was not called to give evidence as to the outcome of his inspection. His absence from the witness box was considered by the magistrate in the following passage, which is relevant to both these grounds:
“There is no evidence from the defence that at the time of the inspection prior to the insurance being effected on the premises, Mr McDonald noticed any existing damage. It is submitted that the plaintiffs who bear the burden of proof should have called Mr McDonald to support this fact. I do not agree with this submission because the plaintiffs say that there was no hail damage on 29 September 1996 and that is supported by the absence of anything to the contrary anywhere from Mr McDonald. The plaintiffs have demonstrated and the defence has agreed that by the time the inspections have been undertaken by Messrs Crow and Strudwick, there was hail damage to the roof and that a current policy of insurance existed between the plaintiffs and the defendant. It is the defendant who contends that the damage was pre existing and would fall outside the terms of the policy and the onus shifts to the defendant to demonstrate that the claim falls within an exception contained in the policy . It would not have been a difficult task for the defence to have requested Mr McDonald an agent of the defendant, to provide evidence which supports this contention, if such evidence in fact existed. At the very least, it would be reasonable to expect that had hail damage existed at the time of the original inspection for insurance purposes he would have made some notation to that effect and reported it to the defendant to incorporate it in the decision to issue an insurance policy for the premises.
Exhibit 19 also indicates that the Bureau of Meteorology has no record of any hail storm in Guyra between October 1994 some five months prior to the purchase of the subject premises by the Hammonds and the date of the hail storm in 1996. If there was damage before 29 September 1996, one would expect that Mr McDonald who was charged with the task of inspecting the premises, would have made some reference to it in a report to a potential insurer. His silence on this point in my view is deafening.”
28 The failure to call a witness is a matter which may properly attract an inference adverse to the party who the court might have expected to call such witness. Here I observe that no explanation was advanced to explain the absence of the witness from the witness box. I consider it was proper for the magistrate to conclude, in the absence of any explanation for the failure of the insurer to call its agent to give an account of his inspection of the premises, that any evidence which Mr McDonald would have given would not have advanced the insurer’s case as to the condition of the roof before the storm: see Jones v Dunkel (1958-59) 101 CLR 298.
29 However it is submitted that the magistrate went further by concluding that the absence of Mr McDonald positively supported the insureds’ case. Mr Sutherland points to the observation of the magistrate that the insured said that there was no hail damage before 29 September 1996 and that he went on to say “that is supported by the absence of anything to the contrary anywhere from Mr McDonald.”
30 It is to be remembered that the learned magistrate was delivering a judgment in the course of presiding over what was no doubt a busy list and his reasons for judgment had not been reduced to writing before he delivered those reasons. The learned magistrate would have been correct to observe that, since it had not been contradicted by Mr McDonald, the evidence given by the first insured that the roof was undamaged by hail when he acquired the property could the more readily be accepted, but that is not strictly the same as treating the absence of evidence as affording positive support, and the remarks of the learned magistrate in point seem to indicate he was regarding the absence of evidence as amounting to such. If so, they reflect error.
31 The passage from the judgment above set out refers to a shift in the onus of proof in the second of the passages underlined.
32 Mr Morahan submitted on behalf of the insured that in the first of the passages underlined the magistrate correctly directed himself on the legal onus of proof, and he argued that in the second of the passages the magistrate was only referring to the evidentiary onus. Mr Morahan submitted, in my opinion correctly, that once the first insured had given evidence that he made an inspection at about the time of purchase in 1995 and saw that there was no hail damage to the roof, the evidentiary burden passed to the insurer to refute the absence of hail damage before the hailstorm in question and in this context the absence of Mr McDonald assumed significance. As the tribunal of fact, it was open to the magistrate to accept prima facie what the first insured had said and to regard the evidentiary burden on this central issue to have shifted.
33 There would be merit in Mr Morahan’s submission if the magistrate was doing no more than refer to the evidentiary burden; in that event the passage under consideration could be regarded as reflecting no error. However, the language employed in the passage cannot be disregarded and it refers specifically to the enlivening of an onus upon the insured to prove that “the claim falls within an exception contained in the policy”.
34 It is correct, as a matter of law, that if an insurer seeks to avoid liability for a claim by relying upon an exception clause it has the burden of proving that such clause is applicable. However, the insured who makes a claim has the burden of first proving that a loss has been suffered by reason of the occurrence of an event attracting an obligation on the insurer under the policy and the insured must prove the measure of the loss: see Sutton: Insurance Law, 3rd ed., at 1055-1056, and Van de Ven v State Insurance General Manager (1990) 6 ANZ Ins. Cases 61-016 at 76,802.
35 The insurer was not relying upon an exception to avoid liability to the insured. The issue in this case was simply whether the damage to the roof which the insured claimed was caused by hail on 29 September 1996 had been so caused. This was an issue upon which the insured bore the legal onus of proof from beginning to end. Consideration of the burden of proof being on the insurer in relation to the application of an exception was irrelevant and the magistrate was in error in directing himself that because the insurer contended that the damage to the roof predated the hail storm of 29 September 1996 it had the onus of proving this by demonstrating “that the claim falls within an exception contained in the policy”.
36 Accordingly Ground 1 has been established and so has Ground 4.
37 What are the consequences that flow from these grounds being established?
38 This Court has not had the opportunity of assessing the witnesses and it would be altogether inappropriate to consider making either order 1 or order 2 as sought in the summons. Under s 109 of the Justices Act I may remit the matter to the magistrate and direct that the case be reconsidered according to law, that is to say heeding the decision of this Court on Grounds 1 and 4. I am mindful that the consequences of so doing would increase the costs of the litigation, which I suspect are altogether disproportionate to the amount involved.
39 I have closely considered the judgment of the learned magistrate.
40 So far as the error identified in Ground 4 is concerned, I consider it unlikely that this influenced the outcome of the case. Whilst strictly the magistrate overstated the effect of the principle in Jones v Dunkel, he was nevertheless entitled, absent contradictory evidence from Mr McDonald, to more readily accept the evidence given by the first insured that the roof was undamaged when inspected by him.
41 I turn to the practical significance of the error identified in Ground 1.
42 The contentious issue was correctly identified early in the judgment, that is to say whether any damage to the roof was occasioned by the storm on 26 September 1996. The magistrate then found that there was a hailstorm that passed through Guyra on 29 September 1996 and went on to find that there was a valid policy of insurance in existence as between the parties at the relevant time. The magistrate proceeded to consider the evidence that bore upon the damage claimed, reviewing the evidence of the first insured to the effect that he inspected the roof prior to the purchase and noticed no hail damage. He referred to the absence of contrary evidence from Mr McDonald and the meteorological evidence that there was no hailstorm in Guyra between the date of the first insured’s inspection and 29 September 1996. The magistrate then went on to consider the evidence of Mr Crow and Mr Simpson and the evidence of Mr Dossitor and, of course, I referred to this evidence earlier when considering Ground 7. The magistrate concluded that such evidence could not exclude the possibility that the roof damage predated the hailstorm in question. Referring specifically to Mr Dossitor’s evidence, which he preferred to that of Messrs Crow and Simpson, the magistrate said:43 The magistrate then went on to express the following findings of fact:
“The only inference to be drawn from his statement is that he cannot positively determine the age of the damage he observed. He would not put it any higher than it may have pre existed and cannot discount the sum what percentage is enable to be identified could have occurred during the September 1996 hailstorm.”
“I believe that on the evidence before me and for the reasons I have set out, I can properly come to the following findings of fact. One, that on 29 September 1996, the plaintiffs were the owners of premises at 67 Ollera Street Guyra. Two, there existed between the plaintiffs and the defendant company a policy of insurance as at 29 September 1996 over premises at 67 Ollera Street Guyra. Three, the policy of insurance was one of reinstatement and not indemnification. Four, at approximately 10.30 pm on 29 September 1996, a damaging hailstorm passed through the township of Guyra. Five, the roof of premises at 67 Ollera Street Guyra sustained hail strike damage as a result of the event of 29 September 1996. On these findings and more particularly points 3 and 5, I am of the view that the plaintiffs’ claim must succeed…”
44 Whilst there is obviously an error in the above extract from the transcript as to precisely what the magistrate said, it is plain that he perceived the thrust of Mr Dossitor’s evidence to be that hail damage to the roof could have been caused by the September 1996 hailstorm.
45 All those findings were, in my opinion, open to the learned magistrate applying the correct onus of proof and, indeed, I have already addressed this when considering Ground 9. As I read the judgment, it is clear that the magistrate accepted the first insured’s evidence that he inspected the roof at time of purchase and that it was not then hail damaged. The magistrate was not distracted in making that finding by the later reference to the onus of proof being on the insured to prove an exception. The magistrate evaluated the evidence of inspection to which I have referred above and earlier in considering Ground 7, and he reached his conclusion as to the effect of that evidence. In evaluating the evidence of inspections, again it does not seem to me that the magistrate was diverted by reference to the irrelevant onus of proof. I consider it to be probable that if this matter is remitted to the Local Court such remission will not alter the decision previously made in the Local Court because the critical findings of fact upon which the magistrate based his judgment seem to me to be findings upon which the insured, in the judgment of the magistrate, had discharged the onus of proof which the law placed upon them. One certain consequence of an order remitting the matter would be to increase the costs of the litigation, and I remind myself that the amount at issue is only $9497.
46 For the above reasons, I do not consider that I should remit the matter to the magistrate under s 109 of the Justices Act. Accordingly, the amended summons is dismissed, and I order the plaintiff on the summons to pay the defendants’ costs.
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