B2/2002/0155
Neutral Citation Number: [2002] EWCA Civ 557
IN THE SUPREME COURT OF JUDICATURE                                  
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
(MR RECORDER STEAD)
                                   Royal Courts of Justice
                                  Strand
                                  London WC2
 
                             Wednesday, 27th March 2002
B e f o r e :

SIR DENIS HENRY

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ALBERTA PAMELA WINGRAVE
Applicant

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CGU INSURANCE PLC
Defendant
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(Computer Aided Transcript of the Stenograph Notes of
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)

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The Applicant did not attend and was unrepresented
The Defendant did not attend and was unrepresented

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J U D G M E N T
Wednesday, 27th March 2002
1.	SIR DENIS HENRY: This is an application for permission to appeal made by Mrs Wingrave, who does not appear here today to make that application. She sought leave from the court for the hearing to be held without her attendance, and the reasons are set out. She lists the appeal material on which she relies and concludes “I have no further expansion of case to make.” She was not given leave to be absent but has not appeared here today and in those circumstances I give judgment in her absence.
2.	The matters arise out of a complaint of airborne pollution that Mrs Wingrave makes. She was insured with CGU for buildings and contents with an additional premium for legal expenses insurance. She makes two claims. First, she claims against the insurance company the damage that she says she had suffered as a result of airborne pollution. To that claim the defence on behalf of the insurance company, is that there was no such pollution in the first place, and in the second place any such pollution was not caused by the sudden and unforeseen and identifiable accident and so was not covered by the policy.
3.	Second, she claims also against CGU (and it is conceded on the defendant's behalf that if anyone is liable they are liable) a claim on her legal expenses policy which she made but to which there was no response from the insurance company. The defence there is she suffered no damage as a result of that. Her basic complaint was that there was a layer of black dust in her house. The difficulty with this is that there was no photographic evidence showing it, there was no sample of it, there was no sample of contaminated clothing, nor was there any independent third party evidence substantiating it.
4.	She complained of smells. There was one independent witness only who dealt with that, namely Councillor Russell, who noticed it for some ten minutes. A fence in the neighbourhood had been creosoted. A report was prepared by Tickle & Reynolds, but that report was unsatisfactory for various reasons and the report does not tell us what concentration is detectable or what concentration is capable of causing damage.
5.	In October 1999 she complained of the oil chimney of a neighbouring house, 8 Barnsley Close. She believed in the oily smell even after the District Council of Teignmouth had done tests which show that there were no hydrocarbons, which is what the tests were looking for. Additionally, the claimant was not helped by the medical evidence she produced. The doctor's report said that any hydrocarbons in the atmosphere “should not be doing her any real harm”. Additionally, the subsequent purchasers of her house lived there without evidence of any such complaints coming from them.
6.	Finally, if she had suffered any damage from pollution the claimant failed to show that the insured risks had materialised. I will come to that in a moment, but first I should read the conclusion of the recorder's judgment:
“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.” 
7.	On that basis the trial judge found that the claimant had failed to establish that there had been any pollution or contamination of her property or its contents. There was ample evidence that would justify the trial judge reaching the conclusions that he there reached. That was his first ground for finding against the claimant.
8.	His second was that the alleged loss or damage was not within the general exception of the policy. Had there been any pollution or contamination the onus would have been on the claimant to show that it had been caused by “a sudden and unforeseen and identifiable accident”. The judge dismissed this. He said:
“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.” 
9.	So the loss or damage was not caused by anything within the general exception. There was no objective evidence to show that the house was damaged or rendered uninhabitable because of pollution, as the judge found.
10.	We then come to the matter of the legal expenses insurance policy. When the claimant initially got in touch with this body a Mrs Preston for the insurers said to her that she should telephone Eastgate Assistance, who were dealing with this matter on behalf of the CGU. She did not telephone, but she faxed. There was no response apart from an acknowledged receipt of the documents. She was entitled to expect a response. Accordingly the judge found her to be in breach of contract. But she failed to prove any loss caused by that breach. She should have followed the offer of insurance through, and have requested advice as to the wisdom of proceeding against the occupier of 8 Barnsley Drive or the Teignmouth District Council. But there is no adequate evidence that there was sufficient contamination or pollution to complain of. Perhaps she would have been advised by Eastgate that there was no reasonable prospects of success against the defendant, but the judge was not satisfied that she would have followed any such advice even if given. So he awarded merely nominal damages of £10 on that head.
11.	Taking all that evidence in the round it is clear that the claimant simply failed to prove her case. The trial judge was entitled to make the findings of fact which I have summarised and which he made in relation to it. The trial judge is better placed than the appeal court to decide on these matters and the credit of witnesses and there is nothing in his judgment to make me think that he in any way did not make proper use of the advantages that one who has seen and heard the evidence takes.
12.	There is a second ground of complaint which should be dealt with. The defendant was the CGU, as we have seen. At the beginning of the trial the judge, Mr Recorder Stead, made a statement (I take it from the letter that he wrote in answer to a requirement by the court). In that letter he says:
“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.” 
13.	One sees there that Mrs Wingrave had the opportunity to object to the judge. She chose to proceed with the hearing and in those circumstances she cannot complain about a course of conduct which she herself agreed to. Mrs Wingrave is, for practical purpose, asking for a retrial. She, for the reasons I have given, is not entitled to a retrial. Even were she, there is no evidence that has been turned out that would enable her to prove her case.
14.	In those circumstances there is no case for giving Mrs Wingrave permission to appeal and her application is therefore refused.
(Application refused; no order for costs).