Two Percenters & the Intransigent Opponent

About 98% of civil cases commenced in the Supreme Court of Western Australia are resolved without going to trial. So it makes sense as a party to work to achieve your objective without joining the luckless 2%.  But what do you do if you have an intransigent opponent?  The best thing you can do? Win.

Insurance Litigation Success

A Solomon Brothers Disputes team led by Mark Blundell recently concluded our clients’ case in the Supreme Court, recovering damages, interest and costs from insurers who fought for years not to indemnify the insured clients for the loss of their expensive family home in a fire.

The hundreds of pages of published Reasons in the trial judgment and the appeals belie the fact that this wasn’t the usual sterile material seen in commercial cases.  At its heart, the issue was what caused the fire, prompting questions such as:

• Did the fire just start by spontaneous combustion?
• Was the shadowy figure seen in the CCTV footage walking along the path outside the house in the middle of the night responsible?
• Was it possible that despite all the cameras positioned high on the neighbouring house, an intruder could work his way around the perimeter of the house and pool, behind the tennis court wall, and through the laundry door without being seen?
• Was the figure-S piece of metal found on the ground outside the laundry, dismissed by some of Australia’s leading fire experts as building waste, in fact, a lock-picking tool?
• So, was the fire lit by a malicious intruder who picked the lock, found to his disappointment that nothing was inside to steal, and, out of frustration and to cover his tracks, lit a match to the house?
• Could each of the five insurers point the finger at others and avoid paying anything at all?

Multiple Insurers & Parties

This wasn’t simply a dispute between the plaintiff’s family and their house insurer.  There were multiple defendants, third parties, and fourth parties. There were insurers for the house, the builder responsible for recent renovations, the painter, and two sets of insurance brokers.

Numerous Fights Along the Way

It seemed every point of insurance law was disputed against Solomon Brothers’ plaintiff clients.

Interlocutory fights ensued, including whether the house insurer could rely belatedly on an expert report from a forensic chemist and whether the clients’ insurance broker could reinvent its defence and a counterclaim to force the plaintiffs to claim against their painters.  There was a trial of a preliminary issue (Were the plaintiffs and painters also insured under the builder’s policy?), which then went on appeal.  All of these disputes taken before one or more judges of the Supreme Court General Division and the Court of Appeal were won by our clients.

Experts & Rulings on Evidence

It became necessary to address and master disparate expert evidence and reports from fire cause investigators, quantity surveyors, forensic chemists, structural engineers, insurance broker experts, and psychiatrists.

The Reasons for Judgment in the trial McMurray v AIG Insurance Australia Ltd [No 5] [2021] WASC 300 and the appeal AIG Insurance Australia Ltd v McMurray [2023] WASCA 148 addressed matters such as construction of insurance policies and rights of subrogation, the limitations on use of CCTV and photographic evidence, the implications if any of parties not calling evidence from uncooperative witnesses, hearsay on hearsay, and adequacy of cross-examination of witnesses.

Success at Trial – Increased Award on Cross-Appeal

Our clients won at trial, and special costs were awarded.  The insurer’s appeal against them failed in the Court of Appeal; the award to our clients was then increased via their cross-appeal.

What to do When in a Commercial Dispute?

If you are in a commercial litigation dispute of any nature, whether litigation in insurance claims or otherwise, you will be statistically unlucky if it has to go to trial.  Whether it does or doesn’t, it’s imperative you obtain excellent legal advice – and ideally before matters become too entrenched. Remember that the degree of control you and your legal team have over the ability to negotiate a resolution of the dispute reduces the closer you get to a trial.  And if it does go to trial, have Solomon Brothers on your side. Contact our partner, Mark Blundell, or any Solomon Brothers’ Dispute Team member for must-have advice.