PROVING THINGS 48: VALVES, FLOODS, MODELS AND CAUSATION.
If ever there were an object lesson in the need to prove every element of an action it is the judgment of HH Judge McKenna (sitting as a High Court judge) in Oldcorn -v- Southern Water Services Ltd  EWHC. The claimants succeeded on most issues but were reliant upon expert “modelling” of events to prove that the defendant’s breach caused a flood of their home. It highlights the danger of being wholly reliant upon expert evidence in proving an essential element of a case.
The claimants’ home was flooded due to surface water flooding. They alleged that the flood was caused by the defendant water authority negligently inserting a tideflex valve into one of its own pipes .This, the claimants’ asserted, significantly reduced the reduce flow through the pipe, led to water backing up behind the tideflex valve and caused the flooding of their property.
THE MATTERS UPON WHICH THE CLAIMANTS SUCCEEDED
The claimants’ succeeded in:-
- Establishing a duty of care in nuisance and negligence.
- Establishing that the defendant had been negligent in failing to carry out an assessment of the effect of the installation of the tideflex.
THE MATTER UPON WHICH THE CLAIMANTS FAILED: CAUSATION
To succeed the claimants had to establish that there was a causal link between the tideflex valve and the flooding of their property. To prove their case on causation the claimants were reliant upon modelling, the claimants’ expert was Mr Allitt. It transpired that modelling is not a precise science.
What was said on behalf of the Claimants is that Mr Allitt, a very experienced modeller, was objective and independent and prepared to make concessions where appropriate, for example in connection with the extent of the impermeable area, and was measured in his answers. The Defendants by contrast, are very critical of Mr Allitt, describing him in their Reply to the Claimants’ Closing Note as an appalling witness whose answers were almost always discursive and argumentative and seemingly designed to prevent any constructive consideration or assessment of his opinions. Whilst I would not be quite so critical of Mr Allitt, there is no getting away from the fact that many of his answers were indeed discursive and argumentative. That said, I accept that he was doing his best to assist the Court in what is plainly a difficult issue. That is the nub of the problem. The fact of the matter is that both experts were having to deal with an exceptional event and as a result were having to deal with areas such as permeable and impermeable which were going to behave differently than they would have done in a less severe storm and were doing their best in their different ways to model flooding so that, for example, whilst Mr Allitt was critical of the Defendants’ adoption of a dummy area of the size actually adopted, he did accept that modellers sometimes do adopt a dummy area as a necessary requirement. Mr Allitt had to concede that his adoption of 16.67 hectares wasn’t correct and he fairly said that he couldn’t say what the correct figure was, albeit that he considered that the overall effect would not have been significant, without quantifying that effect. Both experts adopted different figures for the rainfall uplift. Their respective figures were wholly subjective, and in the case of Mr Allitt were based on his belief that the rainfall on the Estate was in effect 13.5% less than that which fell on the nearest gauge to the catchment. When to that is added the absence of any evidence of surcharge of foul water which would have had the effect of reducing the maximum height of the flood waters in the model and the discrepancy in the timing of the flow. The totality of the evidence leads me to conclude that this court cannot be satisfied on the balance of probabilities that but for the installation of the Tideflex, the Property would not have flooded.”
This is one of a number of recent cases where the action has been about insurers attempting to recover their outlay. The actions have failed on the fairly fundamental point of failing to prove essential elements of the case.
The proving things series
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).
- Proving things 26: distinguishing between what you can remember and what you now think you did.
- Proving things 27: Burdens of proof, hearsay evidence and… attempted murder.
- Proving things 28: make unwarranted personal attacks and use a “mud-slinging” expert: that always ends well.
- Proving things 29: Make sure the witness evidence deals with the relevant issues
- Proving things 30: Office Gossip Proves Nothing: The importance of the source of information and belief.
- Proving things 31: witnesses tend to remember what they want to remember.
- Proving things 32: Damages claim struck out as unsustainable: application to amend refused.
- Proving things 33: causation and the burden of proof in claims against solicitors.
- Proving things 34: There is no primer for scuttlers: when your ship doesn’t come in.
- Proving things 35: Reconstruction, documents & memory.
- Proving things 36: credibility and contemporaneous documents.
- Proving things 37: An approach to damages that was “fundamentally deficient throughout”.
- Proving things 38: Proving inability to pay on a security for costs application.
- Proving things 39: You can spend £10 million in costs and still not prove your case.
- Proving things 40: No evidence – no loss.
- Proving things 41: Proving damages – you are not going to get a second bite of the cherry.
- Proving things 42: silence does not prove inducement.
- Proving things 43: How the Court decides: a Primer.
- Proving things 44: Findings of Fact, Walter Mitty and Witness Training.
- Proving things 45: If you can’t prove loss the defendant is going to get summary judgment.
- Proving things 46: Late theories advanced by experts rarely help.
- Proving things 47: Fire in the loft: it wasn’t the mouse man at all.