PROVING THINGS 232: CAR FIRES AND EXPERT EVIDENCE: WHY EXPERTS SHOULD MIND THEIR LANGUAGE: A MOVE FROM “MUST” TO “MORE THAN PROBABLE” REPRESENTS A SIGNIFICANT CHANGE

September 25, 2023 · by · in Appeals, Civil evidence, Expert evidence, Experts

The judgment of Mr Justice Freedman in Nash v Volskwagen Financial Services (UK) Ltd [2023] EWHC 2326 (KB) contains  important observations in relation to the law and evidence relating to causation.  However I want to look at the judge’s consideration of the expert evidence. In particular the claimant’s expert changed his stance from the assertion that a defect “must” have caused a fire to “more than probable”.  On appeal the judge rejected the submission that this was a simple matter of language.  It represented a significant change of view on an issue that was fundamental to the issue before the court.

 

“The above concerns were criticised by the Appellant on the basis that it was simply a use of language. In my judgment, it was a change in the evidence about a matter at the heart of expert evidence, namely the question of probability in respect of the putative cause of the fire as posited by the expert. In any event, the Judge had the advantage of seeing Dr Tompsett being cross-examined and Mr Dabek, not cross-examined, but answering questions of the Recorder at pp.99-100 of the Bundle. He was in a better position than an appellate court to form a view that this was a significant matter and to allow that to affect his evaluation.”

THE CASE

The claimant was the owner of a relatively new motor car. He parked the car outside his house.  The vehicle caught fire and was destroyed. The claimant brought an action against the manufacturers on the basis that the fire must have been caused by a defect in the car itself. The claimant was unable to identify a specific defect, however he had commissioned an expert who stated that the fire “must” have been caused by the car being defective.  On questioning the expert changed his view so that it was “more than probable” that a defect was a cause of the fire. The judge found that the claimant had failed to establish his case and that he preferred the evidence of the defendant’s expert.

The claimant appealed that decision. The appeal was unsuccessful.

 

CONSIDERATION OF THE EXPERT EVIDENCE

The judge reviewed the approach taken at trial in relation to the expert evidence.

    1. The case of the Appellant is that the Vehicle must have been inherently defective and consequently the Respondent is liable for the losses that he has incurred. He relies upon an expert report prepared by an automotive engineer, Mr John Dabek. Mr Dabek inspected the Vehicle about 8 months after the fire, and prepared a report dated 28 October 2020. The Respondent, then represented by different Counsel, elected not to put any questions to Mr Dabek at the trial.
    1. A report was prepared for the Respondent by Dr Stephen Tompsett who did not inspect the vehicle but prepared his report on a desktop basis with the benefit of the Clatworthy and Barrington reports and photographs of Mr Dabek.
    1. The Judge summarised the respective positions of the experts at paras. 13-14 as follows:
“…In his report, Mr Dabek said that on the basis that the vehicle was recently purchased, was relatively new, had not been abused and was parked correctly at the Claimant’s home address, it follows that the fire commenced within the vehicle and must have resulted from some sort of defect in that vehicle.”
    1. In response to a question from the Court, Mr Dabek changed his position from “must” to “more than probable.” As an alternative, Dr Tompsett considers that “the most likely explanation for the fire was careless disposal of cigarettes by a passer-by, igniting debris in the corner of the driveway, leading to a fire in this area which then spread to affect the car.”
    1. Neither expert identified a specific vehicle defect as the cause of the fire: see Mr Dabek at para. 6.1 of his report and Dr Tompsett at para.5.3 of his report. Dr Tompsett said that the only feasible source of a fire starting in the car was an electrical defect in the wiring of the cooling fans which would have remained live even when the car was parked, but there was no evidence to support the possibility of a fire starting due to this mechanism: see para. 5.4 of his report.
    1. The Judge recorded at para. 16 of his judgment that:
“Neither expert was able to identify any specific cause of the fire within the engine compartment of the car. Nevertheless, both experts considered that the state of the engine compartment was potentially consistent with the fire having started as a result of an electrical fault therein. However, they differed in opinion on what they considered likely in those circumstances.”
    1. The Judgment reflected on different theories of the experts. Mr Dabek’s view was that given there is no evidence of any external cause the fire must have started within the engine compartment as a result of a fault therein: see para. 16 of the Judgment.
IV The Cigarette hypothesis
15. Dr Tompsett’s view was that the fault was so unlikely that ignition by a carelessly discarded cigarette was a better explanation (“the Cigarette hypothesis”). He said that there was some evidence of some fire damage to the house including severe fire damage to the Telewest Box and evidence of a fire on the ground in the corner between the driveway and the garden wall (para. 3.2 of his report), and the patterns of fire damage were consistent with the fire starting in the debris at that point (para. 4.4 of his report). (The presence of debris was disputed). If the fire started there, it could have spread to the front of the car via burning brands (para. 4.11 of his report). His report was that “… the most likely explanation for the fire was careless disposal of cigarettes by a passer-by igniting debris in the corner of the driveway leading to a fire in this area which then spread to affect the car” (para. 5.5).
    1. The Judge summarised the evidence of Dr Tompsett at para. 25 of the Judgment as follows:
“Whilst there was no fire investigation undertaken of the scene, in Dr Tompsett’s opinion it started at a lower level by the redundant Telewest cable box and the brands, as they were described, loose lightweight burning particles made their way to the front of the car so as to catch alight and cause the damage. He described that radiant heat travels and the fact that the uPVC window frame did not melt in its entirety and there is a gap, which is evidenced by the photograph taken, confirms his view that there was a smaller fire by the Telewest box and referenced AIT (autoignition temperature) taking effect to ignite the bumper or the grill at the front of the car.”
    1. Against the defect to the Vehicle hypothesis, there were the following points which were made:
(1) had the fire started within the engine compartment there would have been much more severe damage within that compartment: see Dr Tompsett report para. 4.1;
(2) the only feasible source of a fire starting in the car was an electrical defect in the wiring to the cooling fans which would have remained ‘live’ even when the car was parked. There was no evidence to support the possibility of a fire starting due to this mechanism and Dr Tompsett did not consider this a likely explanation for the fire: see Dr Tompsett report para. 5.4;
    1. (3) it was “speculation’ that the fire was the result of the noise reported to the garage: see the oral evidence of Dr Tompsett at p.142 of the bundle. That connected with para. 9 of the experts’ areas of agreement that there was no evidence “whether or not the cause of the fire was related to any defect which might have cause the reported noise.” Against the Cigarette hypothesis, there were at least the following reasons:
(1) there was no evidence of a cigarette or evidence to support the suggestion that the fire resulted from the Telewest Box: see Mr Dabek’s report at para. 6.3;
(2) the distance between the street and the nose of the car was too far for a cigarette to have been simply discarded: it would have to have been thrown a significant distance.
V The Recorder’s assessment of the experts
    1. The Judge considered the weight which he could give to the two experts. In respect of Mr Dabek, the Judge expressed some concerns for the following reasons, namely
(1) as noted at paras. 13-14 of the Judgment, Mr Dabek changed his evidence from saying in his report that the fire ‘must’ have come from a defect in the Vehicle to saying in his oral evidence that it was ‘more than probable’ to have come from such a defect;
(2) Mr Dabek did not change his written report to reflect his significant qualification to the degree of probability that the cause of the fire was from a defect in the Vehicle;
(3) Mr Dabek agreed in the joint statement that the fire started in front of the engine and not immediately beneath it.
    1. The above concerns were criticised by the Appellant on the basis that it was simply a use of language. In my judgment, it was a change in the evidence about a matter at the heart of expert evidence, namely the question of probability in respect of the putative cause of the fire as posited by the expert. In any event, the Judge had the advantage of seeing Dr Tompsett being cross-examined and Mr Dabek, not cross-examined, but answering questions of the Recorder at pp.99-100 of the Bundle. He was in a better position than an appellate court to form a view that this was a significant matter and to allow that to affect his evaluation.
    1. In respect of the expert Dr Tompsett, the Judge rejected the criticisms made about him including the following:
(1) lack of relevant expertise: the Recorder found that Dr Tompsett had experience about cars and their mechanics with an expertise in fires and their causes and had provided numerous reports for courts in fire cases (an error about the precise subject of his degree was immaterial, and no permission was granted on that ground): see Judgment para. 22;
(2) failure to inspect the Vehicle: Dr Tompsett’s explanation for not having inspected the Vehicle himself was recorded without criticism, namely that there was little to be gained as it was a well-contaminated scene, and there was the possibility that items could dropped off the Vehicle in transit: see Judgment para. 23.
    1. The Recorder found that Dr Tompsett arrived at his own independent conclusions and to a large extent he maintained his conclusions, dismissing the possibility of a fuel leak absent a loud bang, noting that the circuit board and the battery were intact and finding it unlikely that on a February evening the cooling system was running: see Judgment para. 24.
  1. The Recorder related the opinion of Dr Tompsett referred to at para. 25 of the Judgment about the fire starting at a lower level by the redundant Telewest cable box and the loose lightweight burning particles making their way towards the front of the car without criticism of the hypothesis.

THE DECISION

The claimant’s appeal was refused. It was held that the approach taken by the Recorder was unexceptionable.  He was entitled to prefer the view of the defendant’s expert.

    1. cable to any other case, I am satisfied that the Recorder adopted an unexceptionable approach.
    1. In my judgment, the Recorder did enough in this case to justify the finding and gave sufficient reasons for doing so. In particular it is apparent from the judgment that:
(1) He had significant concerns about the expert for the Appellant, Mr Dabek, which affected the extent to which the Court could rely on him, particularly his retreat in his evidence and his failure to qualify his written report (Judgment paras. 26-27).
(2) In applying the law to the facts, the Recorder took into consideration that Mr Dabek:
(a) was unable to identify any specific cause of the fire within the engine compartment of the car;
(b) could not identify a defect in the electrical components or wiring;
(c) agreed that he had not seen any evidence that there was a defect which had caused the reported noise;
(d) agreed that whatever caused the fire may have been destroyed or concealed by the effects of the fire;
(e) changed his assessment of whether or not the fire “must” have been caused by a defect in the car as referred to above.
(3) The Recorder did not have such concerns about the expert for the Respondent, Dr Tompsett. The Recorder had little doubt about his experience and expertise (the error as to the subject matter of Dr Tompsett’s degree is immaterial): see Judgment para. 22. The reasons for Dr Tompsett not inspecting the Vehicle were mentioned without criticism (Judgment para. 23).
(4) The Recorder expressly accepted that Dr Tompsett reached independent conclusions and recited parts of his evidence without criticism. That included the evidence of Dr Tompsett (Judgment at para. 24) that the possibility of a fuel leak could be dismissed, the circuit board and the battery of the Vehicle were intact and there was no cable defect, and it was unlikely that cooling fans had been running (in February).
    1. Whilst the Recorder did not evaluate expressly the degree of probability of the Cigarette hypothesis, he did not discount it as wholly improbable. He did recount the evidence of Dr Tompsett at para. 25 about the fire starting at a lower level than the engine by the redundant Telewest cable box and the brands. There was no criticism about this. It was a feature that he took into account in coming to the overall conclusion. The experts’ joint statement (para. 12) was that the fire started in front of the engine and not immediately beneath it.
    1. The Recorder was entitled to conclude that there could have been an unknown explanation as he reminded himself at para. 27 of the Judgment, whilst at the same time not descending into some inadmissible speculation about a cause not advanced by the parties.
    1. The approach of the Recorder is not susceptible to criticism of the kind referred to in the Re Sprintroom case referred to above. There was not a gap in logic or a lack of consistency or a failure to take into account a material factor undermining the cogency of the conclusion. There is no reason to interfere with the evaluation of the facts in this case. The evaluation that the case had not been proven on the balance of probabilities was an assessment on the basis of the evidence as a whole with all the advantages available to the trial Judge over and above the snapshot approach of the appellate court (or what Lewison LJ referred to in Fage as “island hopping”) without the advantage of seeing the witnesses (in the case of Mr Dabek to the extent set out in para. 20 above) or watching the case as a whole unfold.
    1. The specific criticisms about not adopting the two-stage approach or analysing and testing the competing hypotheses such as to choose between the two of them are not made out. The Recorder was entitled to consider the single unitary question in this case. He gave more than sufficient reasons for reaching the conclusion which he did on his evaluation of the evidence as a whole. His evaluation was one which he was entitled to reach and there are no reasons for an appellate court to interfere with his decision.
Ground 2: The learned Judge gave no or no sufficient reasons for dismissing the Appellant’s Expert Witness’ evidence (and in particular his conclusion as to the cause of the fire) despite that evidence not having been challenged in cross-examination and despite the Respondent’s Expert Witness not having expertise in the discipline for which the parties had permission to adduce expert evidence.
    1. The Appellant relies on the cases of Flannery and English as above. In English, Lord Phillips MR said the following at [19]:
“It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, in may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon.”
    1. The argument that there were no or no sufficient reasons for dismissing the evidence of Mr Dabek is rejected. The reasons were apparent from the Judgment of the Recorder. They have been referred to above. The Recorder explained the reservations which he had about Mr Dabek’s evidence and was explicit about his reasons for the same. I reject the submission that the Judge did not say whether he preferred one expert to the other. He made negative observations about the evidence of Mr Dabek and positive observations about Dr Tompsett. In the context of what he was to find, his findings about the expert evidence were more than sufficient. The submission that they did not comply with the requirements of the Courts in Flannery and English is rejected.
    1. The absence of challenge in cross-examination of Mr Dabek is a matter to be taken into account, but as accepted properly by the Appellant in the light of Griffiths v TUI [2021] EWCA Civ 1442, the Court is not then bound to accept his conclusion. The point made by the Appellant at para. 30.1 of his skeleton argument is that this made it the more important for the Court to give reasons, but as I have found, there were ample reasons given by the Recorder for his conclusions and particularly for his concerns about Mr Dabek’s evidence. The deviation from his report on which the Recorder commented at paras. 13 – 14 of his Judgment emerged as a result of a question of the Recorder.
    1. The complaint that Dr Tompsett lacked expertise in the field of automotive engineering was taken up at trial with an attempt to exclude Dr Tompsett’s evidence. The Recorder made a case management decision to admit the evidence of Dr Tompsett. Unsurprisingly, there has been no application for permission to appeal that case management decision: see Practice Direction 52A para. 4.6. Once Dr Tompsett’s evidence was admitted, it is too late to rely on this as a reason that the Recorder should have accepted Mr Dabek’s evidence. On the contrary, the Judge heard from Dr Tompsett, and asked questions of Mr Dabek. He was satisfied about the expertise of Dr Tompsett and to the extent set out above and for the reasons given, he preferred the evidence of Dr Tompsett to that of Mr Dabek. The Judge was entitled to come to that conclusion, and there is no basis on appeal to revisit this.
Ground 3: The learned Judge put undue weight on the possibility of there having been some further unexplored possible cause of the fire when (1) neither expert suggested that this was likely and (2) it was not put to the Appellant’s Expert Witness in cross-examination (and nor did it arise in the course of preparing the joint statement). The Judge also gave no or no sufficient reasons for why he was so concerned about this possibility despite neither expert having suggested it.
    1. This appears to have as its origin para. 27 of the judgment where the Recorder reminded himself of the proper approach to causation including the possibility of an unknown explanation. That was as far as it went. The Recorder did not fasten on a specific explanation which had not been argued by the parties, nor did he place any emphasis beyond that. To the extent that he did so, he was entitled to do. In the Respondent’s skeleton argument, it is stated at para.31 that the Court had the right to remain agnostic in the sense used by Toulson LJ when referring to The Popi M in Milton Keynes BC v Nulty [2013] 1 WLR 1183 at para. 40 where he said:
“the combined effect of the gaps in the court’s knowledge and the cogency of the factors telling against the theory of a collision with a submarine was that the court could not properly be persuaded that the case for believing the submarine theory was stronger than the case for remaining agnostic.” [emphasis added]
    1. This must have been the extended use of the word “agnostic” as referred to by the Oxford English Dictionary to mean being “not persuaded by or committed to a particular point of view”. An aspect of that is to mention in passing the possibility of an unknown explanation. Neither was that objectionable nor does it render the decision wrong or unfair due to a serious procedural or other irregularity.
XI Conclusion
  1. It follows that the appeal is dismissed. Each of the three grounds are rejected. Despite the impressive submissions of Mr Simpson for the Appellant, the decision of the Recorder was neither wrong nor was the decision unfair due to a serious procedural or other irregularity.
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