June 2018


Experts: Collect fire evidence early

by Kate Tilley, Resolve Editor

Arson is a notoriously hard crime to prove.

That was the conclusion after two speakers presented on fire claims to AILA Queensland. Murray Nystrom, director of Australian Forensic Pty Ltd, spoke about his extensive experience in fire investigations and barrister Michael Liddy discussed the complexities of liability and multiple parties potentially being responsible for causation.

Mr Nystrom said the Qld Criminal Act defined arson as "wilfully and unlawfully" setting a fire. Investigators need to prove the act was deliberate, then identify "who done it".  Human intervention was not the same as a deliberate act. The difficulties meant there was "a bad record" for criminal prosecutions and he suggested police were often reluctant to  prosecute cases without CCTV footage.

He recommended storing images in cloud servers so they were not destroyed in a fire.

Mr Nystrom detailed a case where a beauty parlour had caught fire. The seat of the fire was at the front of the shop. Negative corpus, the process of determining what caused a fire by eliminating each possible cause, until only one remained, could be used to determine the cause of a fire, regardless of no physical evidence to support the conclusion. But that was insufficient for forensic scientists.

Mr Nystrom said glass was sprayed over the street, which showed the windows were force fractured by an inside force blowing them out with a pressure wave. "It was deflagration, not an explosion. There's a subtle difference," he said.

Petrol was identified in the chemical analysis, so those facts were sufficient for some to say it was deliberate. However, Mr Nystrom took a walk nearby and found a shop owner with CCTV footage that showed an unknown man arrive at 2am, take a plastic container from his vehicle and walk towards the beauty parlour. There was then a short flash and an orange glow and the man ran back to his vehicle and left.

A neighbour photographed the blaze on his phone. That showed how quickly the building caught alight, which identified that accelerant was used. "I reckon that's enough for a jury to say it was deliberate," Mr Nystrom said.

He detailed a NSW case which had police nervous about the findings of his investigation.

A home burned down just after a mother had taken her children to school. The father was found dead in the bath. Police assumed the blaze was accidental and the man had died from smoke inhalation.

Mr Nystrom, however, concluded it was suicide. The man had made no attempt to escape from the ground-floor bathroom. Clothing in a wicker laundry hamper was very badly burnt, matches were found, and the burnt clothing remnants contained mineral turpentine.

The wife said matches and turpentine were not normally found in the home.

"The police were concerned about my finding. If it was an accidental fire, the wife would get the insurance money," Mr Nystrom said.

However, in those circumstances, it was likely the insurer would still pay because the deceased's intent was to kill himself, not deliberately destroy the house.

He had filled the bathtub to be under water while he breathed in the fire's poisonous gases.

Mr Liddy warned lawyers and potential litigants to conduct investigations early and preserve evidence.

"Not many fires are deliberate, but usually insurers will get property damage fixed and then pursue any negligent person."

Brisbane's heritage-listed Norman Hotel caught fire in June 2009 during renovations.

Architects had decided to use polystyrene (PS) foam blocks instead of additional concrete to raise a floor. An engineer had designed the project. A concreter, hired by the head contractor, was cutting reinforcing with an angle grinder when the sparks ignited the PS foam stored nearby.

The pub caught fire and guests were evacuated.

The property insurer had to get the popular pub "back up and running quickly to avoid massive business interruption costs". Mr Liddy said the property damage claim was about $3 million and the BI $2 million.

There was then a multi-party dispute on who caused the fire. The concreter's insurer said fire retardant PS foam should have been used, so it was not the concreter's fault. The water had been turned off by another contractor on the building site, the architect had not specified fire-retardant PS.

The land, the building and the licence were owned by different companies. "Then the pub was sold and the new owners were not motivated to help the insurer unscramble the eggs."

Mr Liddy said many insurers were involved. The claim was settled years later "on terms everyone thought were unfair to them".

"Unless lawyers get everything written down and get information on all parties' insurers at the time, it can be very difficult trying to join other parties later," Mr Liddy said.

Mr Nystrom said it was important to get a good factual investigator involved early to identify all parties.

Mr Liddy said lawyers had to consider who owned property given to fire investigators to test. "You can get into a cul de sac about admissibility of evidence," he said. "Get advice early. It will stick in your craw if you know who did it, but you can't prove it."

Increased forensic capacity meant more options to pursue litigation against, for example, manufacturers of electrical goods.

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