Defence & Indemnity - February 2017: IV. PRACTICE ISSUES B.

by Field Law
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In an action by homeowners against a chimney sweep, it was held that deficiencies in the plaintiffs’ expert Investigation and reports deprived the court and the other trial experts from being able to determine what actually happened such that the plaintiffs were unable to prove their case.

Taylor v. West, 2016 BCSC 1821, per Fitzpatrick, J. [4217]

I. FACTS AND ISSUES
 
The Plaintiffs’ home was substantially damaged by a fire in November 2011. Three months prior to the fire the Plaintiffs had engaged the services of the Defendant West to sweep the chimney. The Defendant had been cleaning chimneys for 13 years prior to cleaning the chimney for the Plaintiffs. The Plaintiffs were alerted to the fact that her home was on fire when her partner saw smoke outside the home and then eventually noticed fire coming out of the siding on the chimney chase below the roof line. The emergency services were notified at that point. As a result of the fire there was significant damage to both the interior and exterior of the home and its contents.   
 
The Plaintiffs alleged that the fire was caused by the actions of the Defendant West – that in the course of cleaning he had damaged a joint in the chimney (the Joint) which, in turn, caused the fire. Alternatively, the Plaintiffs alleged that the Defendant was negligent or in breach of his agreement with them by cleaning the chimney such that the fire occurred. The trial considered only liability as the parties had agreed on the Plaintiffs’ damages arising from the fire.
 
The Plaintiffs relied on the evidence of the expert retained by their insurer, deRosenroll, to prove their theories. He did not rely on or follow the National Fire Protection Association NFPA 921, the Guide for Fire and Explosion Investigations. He inspected the chimney. Mr. deRosenroll took some photographs and measurements, generating cursory notes which did not record the specific measurements. He concluded that the chimney was the source of the fire. He instructed that the chimney be dismantled so that he could continue his investigation but was not present during the dismantling process. No photographs or measurements were taken during that process. After the dismantling deRosenroll inspected again, preparing a sketch and making one page of notes. He concluded that the Joint was the source of the fire. He directed that only two portions of the chimney be preserved – those portions that he had concluded were the source of the fire. He issued a report to the insurer opining that damage to the Joint was the cause of the fire and that this damage was likely of recent origin. The Defendant was put on notice of a potential claim against him. The insurer and deRosenroll made no effort to preserve the other physical evidence. When the Defendant’s expert asked to see the physical evidence, it was not provided. Even the two sections of the chimney deRosenroll had directed construction workers to preserve could not be located. 
 
II. HELD: Action dismissed with costs in favour of the Defendant

1. The Quality of the Investigation - The quality of the investigation by the Plaintiffs’ expert deRosenroll led the Court to conclude that the report arising from that investigation and the evidence given by the expert were “highly unreliable” and that little weight should be afforded to them. As a consequence, the quality of the investigation negatively affected the ability of all the other experts to opine on the issue under consideration.
  1. There were a number of criticisms of the “significantly flawed fire investigation” namely:
    1. The report was full of errors and inaccuracies including the identification of incorrect materials, inaccurate measurements and a failure to document the presence of “heat shields” in his sketches
    2. The Rebuttal Reports also contained errors and inaccuracies including the incorrect position of the “heat shields” and details that the expert had no personal knowledge of. The expert was also criticized for the lack of care in the preparation of these reports
    3. The expert’s failure to comply with NFPA 921 in documenting the results of his investigation for the purposes of not only his investigation, but the review of his investigation by others.
2. Origin and Cause of the Fire – The Court held that the Plaintiffs had failed to prove on the balance of probabilities that the fire was caused by the escape of combustion gases through a compromised Joint or that the actions of the Defendant contributed to the joint being compromised.
  1. It was accepted that the Defendant’s contract with the Plaintiffs and the law of negligence required that the Defendant properly clean or sweep the chimney with care and that he not damage the chimney. It was also conceded that, if there was any breach of this duty, it was reasonably foreseeable that a fire could result and cause damage to lives and/or property
  2. The Plaintiffs’ case was largely based upon the evidence of their experts which was in turn based upon the flawed fire investigation. As a consequence the Plaintiffs could not prove on the balance of probabilities that the Defendant had in any way caused damage to the chimney whilst providing sweeping services to the Plaintiff
  3. The Plaintiffs also tried to argue that, in the absence of any evidence supporting any other theory (i.e. arson or electrical, etc) the logical conclusion was that the recent cleaning work by West was a contributing factor. The Court determined that the Plaintiffs failed to prove, on a balance of probabilities, that the Joint was compromised as alleged so as to cause the fire, let alone that the Defendant’s actions caused the Joint to separate. “Accordingly, there is no basis for the plaintiffs’ contention that “but for” the actions of Mr. West in dislodging the Joint, the fire would not have occurred” (para. 183)
3. Adequacy of the Chimney Sweep - In the alternative, the Plaintiffs argued that that if the fire was caused by the ignition of creosote inside the chimney (i.e. a chimney fire), this arose from the Defendant failing to properly remove the creosote during his chimney sweep. They alleged that the Defendant was negligent or in breach of his contract with the Plaintiff in failing to do so. Again this argument was not accepted by the Court in the absence of evidence to support the claim.

III. COMMENTARY: This decision highlights the importance of a thorough and accurate investigation of fire damage from the outset. Deficiencies and inaccuracies in the investigation will be held against the litigant in question can lead to a finding that the litigant is unable to prove his/her case.

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