The judgment of Mr Justice Coulson in Palmer -v- Nightingale  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  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).
- 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 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.
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.
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:-
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)  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.
This was neatly summarised by Thomas LJ (as he then was) in Ide v ATB Sales Limited  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  EWCA Civ 595 at paragraph 24.
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  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  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.”
More recently, the proper approach was summed up by Carr J in this court in Cooper v Thameside Construction Company Limited  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.
- The particular type of lamp carried an increased risk of fire.
- The fire investigation officer had concluded that halogen lamps were the cause of the fire (this was done on the basis of lamps he had taken away and examined – remarkably neither expert had asked for these lamps).
- There was insulation material in the loft space. The fire investigation officer had come to the conclusion that this was the cause of the fire.
- There were other, credible, causes of combustion, including wasp nests.
- The bait blocks were not combustible.
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.