Daycare owner Kim Worth wins Tweed Heads South business fire appeal case

A childcare business owner has appealed a court decision which found she had started a fire in her home to receive a payout from her insurer.

Kim Worth has appealed a decision that found she’d committed insurance fraud by burning her own home.

A childcare business owner previously found to have committed insurance fraud by lighting a fire has successfully appealed the Supreme Court decision and been awarded $575,000 plus interest to be paid by her insurer.

Kim Michelle Worth, 55, appealed the 2020 findings in the NSW Court of Appeal after the Supreme Court ordered her to pay back insurance money and damages to International Insurance Company of Hannover SE.

A decision for the appeal was handed down by Judge Robert Macfarlan, Judge Anthony Meagher and Judge Lucy McCallum on August 26.

According to court papers, Ms Worth’s house and childcare business on Seaview Street in Tweed Heads South was destroyed by fire on September 1, 2015.

Ms Worth had spent the previous evening caring for her elderly parents at their home.

Kim Worth successfully appealed an insurance fraud claim.

Documents state she switched on an electric screen displaying pictures of Tahiti before she left her home that evening.

She returned to the house at 9am on the day of the fire and remained until 9.28am, during which time she did not switch off the Tahiti screen but did turn on a cooktop element on the kitchen stove to boil an egg.

At 9.36am a passing driver called the police and reported smoke and flames could be seen coming from the windows on the first floor balcony of the house.

At the time Ms Worth had left the house to attend to her sick father who had been taken to hospital.

Ms Worth made a claim through her insurer which covered her home for $500,000, contents for $80,000 and 12 months of business up to $132,000 on a policy taken out on August 20, 2015.

A fire engulfs a Tweed Heads South home-based family daycare centre in 2015.

She was awarded a $98,000 preliminary payment on the provision if police found the fire was deliberately lit she would pay the money back.

On September 23, 2016, the claim was denied after an investigation which found the fire had been deliberately lit.

The matter was brought before the Supreme Court but was dismissed when the primary judge deemed Ms Worth had deliberately lit the fire.

Key issues considered in the subsequent appeal were whether or not the primary judge had made error in deciding Ms Worth had deliberately lit the fires and if so, what she was entitled to.

Evidence presented to the court showed a game guide book was found missing the first 100 pages and they were found partially covering the hotplate.

Ms Worth’s defence hypothesised that the book had fallen into that place due to turbulence from the fire in the lounge room.

Fire damage where the game guide was found on the kitchen stovetop.

Judges Macfarlan and McCallum said the primary judge had failed to exclude Ms Worth's expert’s ideas on how the kitchen fire may have started without human intervention as a reasonable possibility.

The insurer’s hypothesis, that the game guide was purposefully placed based on burn marks rested on “impermissible speculation”, the judges said.

Judge Meagher agreed with the primary judge, that there was no plausible way for the book to end up there without human intervention.

Regarding the second fire in the lounge the appellant suggested it could have started from the digital Tahiti photo frame which had been left on overnight, the longest it had ever been on, causing electrical fault.

However the primary judge suggested this was “fanciful” which was accepted by Judge Meagher.

Judges Macfarlan and McCallum said the primary judge had made an error as the evidence did not allow any reliable inference to be drawn about what the screen was made from, how it would have responded to electrical malfunction and what caused it to fall to where it was found.

Firefighters at Kim Worth’s home in September 2015.

Regarding the amount payable to Ms Worth by her insurer, the three judges agreed it should be calculated on indemnity basis rather than reinstatement.

The court allowed the appeal and ordered HDI Global Specialty SE (formerly International Insurance Company of Hannover SE) pay the sums of $495,000 and $80,000, together with interest from January 1, 2016, to be calculated, and for HDI Global Specialty SE to pay court costs on first and appeal instances.