PROVING THINGS 47: FIRE IN THE LOFT: IT WASN'T THE MOUSE MAN AT ALL

Mediatelegal

The judgment of Mr Justice Coulson in Palmer -v- Nightingale [2016] EWHC 2800 (TCC) is another example of a claimant failing to prove their case. More curiously, in some respects, the claimant’s own evidence contradicted their case.

In circumstances where there are a number of potential causes of a fire, it is not appropriate for the Court to work through each potential cause, identify the least improbable, and then fix that as the cause of the accident or fire.”

(There are echoes in this case of  judgment of Mrs Justice Carr DBE in Cooper -v-Thameside Company Ltd [2016] EWHC 1248 (TCC) where there was an attempt to blame a flood on a workman. Again the claimant failed because of inadequate evidence. See the discussion in the post here).

KEY POINTS

  • The claimant failed to prove that the defendant was negligent or in breach of contract when bait blocks were placed in a roof void and there was a fire in the void.
  • The claimant failed to prove that the bait blocks were the cause of the fire.

THE CASE

The claimant owned a house that was destroyed by fire.  It was alleged that the fire was caused by bait blocks left too near halogen lamps in a roof void. These had been put in place by the defendant who was a self-employed pest controller. It was alleged that the defendant had placed the bait blocks too close to the halogen lamps and thereby caused a fire.

THE JUDGE’S FINDING ON LIABILITY

The judge found that some of the factual findings of the claimant’s expert ( Mrs Gosling,who had examined the scene shortly after the fire) were entirely consistent with the defendant’s evidence as to where he had placed the bait blocks. These were placed away from the halogen lamps and not “hanging over them and almost touching them”.

The claimant had been somewhat reticent in disclosing its expert evidence. The initial expert went on maternity leave,  The source of information for the replacement expert remained unclear.  The judge had ordered that the factual findings of the expert who examined the scene (Mrs Gosling) be disclosed.  Examination of those factual findings was enlightening.

  1. Unfortunately, the Claimant’s desire to establish this part of his case ignored what Mrs Gosling had herself found and how she described it. Mrs Gosling’s scene examination report quoted at paragraph 19 above, described the bait blocks as being in “close proximity” to the downlighters, which was accurate. At paragraph 3.13 of a report prepared by Mrs Gosling on 6 May 2016 (disclosed during the trial), Mrs Gosling had changed this to “very close proximity”. At paragraph 3.14 of his report, Mr Smith had faithfully copied out what Mrs Gosling had said in her May 2016 report, which was not accurate.
  2. As to the photograph of the bait block behind the downlighter in the white bedroom, this may not have been 2 or 3 inches from the lamp but, similarly, it was not in a position where it could have been touching or almost touching the lamp. It was not charred. Mrs Gosling agreed that it was “further back” on the insulation, which was itself much closer to the hole, and therefore the lamp. She refused to answer the obvious point that it was not close to the lamp, saying only it was placed “so that it could be associated with that [downlighter] as opposed to anything else”. That was pointless sophistry: since the downlighter hole had been used to place the block, all the blocks “were associated with the downlighter rather than anything else”. In short, the photograph contradicted, rather than supported, the Claimant’s case.”

The judge found that the defendant was neither negligent nor in breach of contract in placing the blocks where he did. It was appropriate to put the blocks through the openings and they had not been placed too near the lamps.

ESTABLISHING THE CAUSE OF THE FIRE IN ANY EVENT: THE LEGAL TEST

The judge summarised the law relating to proof and causation where there are a number of possible causes:-

  1. In circumstances where there are a number of potential causes of a fire, it is not appropriate for the Court to work through each potential cause, identify the least improbable, and then fix that as the cause of the accident or fire. The House of Lords made that clear when overturning the original decision in The Popi M (Rhesa Shipping Co SA v Edmunds) [1983] 2 Lloyds Rep 235. It is always necessary for the judge to stand back and consider whether the claimant has proved, on the balance of probabilities, that their case as to causation was, on the balance of probabilities, more rather than less likely.
  2. This was neatly summarised by Thomas LJ (as he then was) in Ide v ATB Sales Limited [2008] EWCA Civ 424 when he said:
“4. …In the vast majority of cases where the judge has before him the issue of causation of a particular event, the parties will put before the judges two or more competing explanations as to how the event occurred, which though they may be uncommon, are not improbable. In such cases, it is, as was accepted before us by the appellants, a permissible and logical train of reasoning for a judge, having eliminated all of the causes of the loss but one, to ask himself whether, on the balance of probabilities, that one cause was the cause of the event. What is impermissible is for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event; such cases are those where there may be very real uncertainty about the relevant factual background (as where a vessel was at the bottom of the sea) or the evidence might be highly unsatisfactory. In that type of case the process of elimination can result in arriving at the least improbable cause and not the probable cause.
As a matter of common sense it will usually be safe for a judge to conclude, where there are two competing theories before him neither of which is improbable, that having rejected one it is logical to accept the other as being the cause on the balance of probabilities. It was accepted in the course of argument on behalf of the appellant that, as a matter of principle, if there were only three possible causes of an event, then it was permissible for a judge to approach the matter by analysing each of those causes. If he ranked those causes in terms of probability and concluded that one was more probable than the others, then, provided those were the only three possible causes, he was entitled to conclude that the one he considered most probable, was the probable cause of the event provided it was not improbable.”
This passage was recently approved by the Court of Appeal in Graves v Brouwer [2015] EWCA Civ 595 at paragraph 24.
  1. The importance of the judge standing back so as to ask the critical question as to whether the claimant’s suggested explanation is more likely than not to be correct was emphasised by Toulson LJ (as he then was) in Milton Keynes Borough Council v Nulty & others [2013] 1 WLR 1183. He said:
“34. … Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. As Lord Mance observed in Datec Electronics Holdings Limited v UPS limited [2007] 1 WLR 1325, at 48 and 50, there is an inherent risk that a systematic consideration of the possibilities could become a process of elimination ‘leading to no more than a conclusion regarding the least unlikely cause of loss’, which was the fault identified in The Popi M. So at the end of any such systematic analysis, the court has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact: there is no rule of law that it must do so.”
  1. More recently, the proper approach was summed up by Carr J in this court in Cooper v Thameside Construction Company Limited [2012] EWHC 1248 (TCC) as follows:
“114. It is therefore common ground between the parties in principle that in a competing theories case:

a) The court is entitled to engage in a systematic analysis of competing theories and eliminate one in favour of the other;

b) That, in itself, may lead to the conclusion that the preferred theory is more likely than not to be true; but

c) The court must always then stand back and ask itself the ultimate question as to whether or not the preferred explanation is more likely than not to be true.”

That is the approach I adopt in this case.

THE CAUSE OF THE FIRE IN ANY EVENT

The judge found that the most probable cause of the fire was the halogen lamps in the ceiling.