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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wingrave v CGU Insurance Plc [2002] EWCA Civ 557 (27 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/557.html Cite as: [2002] EWCA Civ 557 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
(MR RECORDER STEAD)
Strand London WC2 Wednesday, 27th March 2002 |
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B e f o r e :
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ALBERTA PAMELA WINGRAVE | Applicant | |
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CGU INSURANCE PLC | Defendant |
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Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Defendant did not attend and was unrepresented
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Crown Copyright ©
Wednesday, 27th March 2002
"42. The burden lies upon the Claimant to prove that there has been pollution/contamination of her property and/or the contents of her property. She must prove that, on the balance of probabilities, and insured risk has materialised. The Claimant has not satisfied me on the balance of probabilities that there was at any time during 1999 such pollution or contamination as is suggested by her. Whilst she may have genuinely believed there to be a smell, the fact that no other person smelt such smells or saw or smelt any pollution or contamination is of overwhelming probative value. Similarly, the absence of any hydrocarbons in the atmosphere when tested by independent technicians on 1st September 1999, despite the fact that the Claimant was still professing to experience pollution in October 1999, is indicative of the fact that there was in fact no pollution at times when the Claimant believed there to be such pollution. I do not accept that the evidence of Councillor Russell as to a 10-minute period when she smelt the fumes of an oil-fired boiler starting up whilst located in Mr Atkin's garden is probative of a long-standing period of pollution of the Claimant's property. Similarly, I am unable to accept that the report of Tickle & Reynolds, for the reasons given, provides me with any substantive proof of there having been pollution or contamination at the Claimant's property. The fact that there is a significantly blackened chimney at 8 Barnsley Drive might well lead one to suspect that at some time the chimney had emitted noxious fumes. However, there was no evidence of any kind placed before me to link the chimney with any pollution or contamination of the Claimant's property."
"On the evidence of the Claimant the pollution/contamination cannot have been caused by a sudden accident. The essence of the Claimant's case is that there was a gradual and continual emission of fumes from the chimney of 8 Barnsley Drive from at least February 1999 to October 1999. If the Claimant is right in such a contention then I find that it would not constitute a 'sudden' accident. Similarly, I must find that the alleged pollution/contamination was not unforeseen as is demonstrated by the Claimant's complaints to TDC during 1999. Furthermore, it follows from the findings I have made above that there has been no 'identifiable' accident. The nature and the source of the alleged pollution/contamination has not been adequately identified. I am, therefore, satisfied that any loss or damage suffered by the Claimant as a result of any alleged pollution or contamination comes within the General Exception to the insurance cover provided by the policy and, accordingly, gives rise to no liability on the part of the Defendant to the claimant."
"Thank you for your letter dated 15th March 2002 concerning the appeal of Ms Wingrave. I will confine my observations to the contention that there is a 'Serious procedural irregularity, principle or practice, Mr R Stead having conflicts of interests in that he is a Panel Barrister for CGU Insurance Plc.'
As a barrister I do, and have, acted for CGU and CGNU.
At the start of the hearing of Ms Wingrave's case I informed her that I had worked for the Defendant in the past, and that I hoped to work for them again. I sought to reassure her that, despite my contacts with the Defendant, I would approach her claim as impartially as a judge who did not have such connections. I offered Ms Wingrave the opportunity to make any submissions which she wished to make in the light of the disclosure of my contact with the Defendant. She elected to proceed with the hearing in the knowledge that I was to be the judge, and in the knowledge of my disclosed interest.
The oral exchange which I have described occurred right at the commencement of the hearing and will be apparent from the recording of the hearing.
If I can be of further assistance please do not hesitate to contact me."