Orthocare (UK) Limited v Norman West & Sons (A Firm)

Where the evidence of the origin of a fire is sparse, a trial judge may find causation on the balance of probabilities if there is a tenable explanation supported by direct evidence and the competing explanation is less likely. The judge must consider the evidence as a whole, including expert and lay evidence, and recognise that the claimant bears the burden of proof. An appellate court will not interfere merely because the evidence is difficult or competing inferences are available, provided the conclusion is properly reasoned and open to the judge.

Orthocare (UK) Limited obtained judgment in the Technology and Construction Court before His Honour Judge Bullimore for loss arising from a fire at its premises. The judge found that the fire had probably started in a defective light fitting for which Norman West & Sons were responsible.

The defendants sought permission to appeal, arguing that the evidence was insufficient and that the judge had wrongly preferred one child’s account, misunderstood the significance of the smoke alarms and failed to give proper weight to the alternative possibility that the fire began elsewhere. Lord Justice Pill treated the matter as a renewed application for permission to appeal.

1. Application refused. The trial judge’s finding that the fire started in the light fitting was open to him on the evidence.
2. The evidence was limited and presented difficulties. Nevertheless, one child’s contemporaneous account provided direct evidence consistent with the claimant’s case, and both experts regarded that explanation as possible. This supplied a tenable explanation on which the judge was entitled to rely.
3. The alternative theory, that the fire began at another location through human agency, was less likely. The judge had identified significant factors against that theory, including the absence of evidence that anyone had been present or noticed the fire before its discovery. The Court of Appeal accepted the force of a submission concerning the fire alarm, but that point did not undermine the overall reasoning.
4. The claimant retained the burden of proving its case on the balance of probabilities. The judge had recognised that burden and was entitled to conclude that it was more probable that the fire began in the light fitting than at an unconnected point.
5. Rhesa Shipping v Edmunds [1985] 2 All ER 712 was not entirely apt. That authority did not prevent a finding where, unlike the situation addressed there, the judge had some direct evidence supporting a tenable explanation and had evaluated it against the competing account.
6. Because the decision was carefully reasoned and it was not arguable that it would be reversed on appeal, the renewed application for permission was refused.

• High Court, Queen’s Bench Division, Technology and Construction Court: His Honour Judge Bullimore gave judgment for Orthocare in a written judgment dated 10 May 2001.
• Court of Appeal (Civil Division): Lord Justice Pill refused the renewed application for permission to appeal.