Drake v Harbour

Where a claimant proves negligence and proves that the ensuing loss is of a kind likely to result from that negligence, the court may infer causation on the balance of probabilities even though the precise mechanism remains unknown. The court must assess any alternative causes advanced by the defendant. Improbable alternatives may reinforce the inference that the proven negligence caused the loss.

The legal burden of proving causation remains with the claimant. References to an evidential burden should not obscure the ordinary fact-finding exercise of weighing all the evidence. Res ipsa loquitur is a guide to whether there is a case to answer, not a separate doctrine.

The respondent engaged the appellant electrician to rewire her bungalow. During the work, the appellant used previously used festoon cable for temporary loft lighting without inspecting it before fitting the lamp holders. A fire started in the loft after the workers had left the premises and caused substantial damage.

His Honour Judge David Wilcox held that the appellant had been negligent and that the negligence probably caused the fire. He entered judgment for the respondent for £104,841.63. The appellant challenged both the judge’s approach to causation and his reliance on res ipsa loquitur.

The central issue was whether the claimant had proved, on the balance of probabilities, that the established failure to inspect the cable caused the fire despite uncertainty about its precise mechanism.

1. Appeal dismissed unanimously. The judge was entitled to find, on the balance of probabilities, that the appellant’s negligent failure to inspect the used festoon cable caused the fire.

2. Longmore LJ held that, where negligence has been established and the loss is of a type to be expected from the work being undertaken, the court may take a robust approach to causation. The judge had considered the alternative suggested causes and was entitled to conclude that the appellant’s negligence was more likely than not to have caused the fire. The suggested possibilities of an undetectable defect, loose lamp holders or moisture were unsupported by evidence. In any event, loose fittings or moisture could themselves have resulted from inadequate inspection.

3. Toulson LJ explained that the ultimate burden of proof remained with the claimant. The issue was whether the evidence as a whole justified an inference of causation. Where breach is proved and the loss is likely to have resulted from it, the court may infer causation without proof of the precise physical mechanism, after considering credible alternative explanations. Toulson LJ echoed the approach in Snell v Farrell (1990) 72 DLR 4th 289.

4. It was unnecessary to decide whether the judge had correctly invoked res ipsa loquitur. Longmore LJ nevertheless approved the explanation in Lloyd v West Midlands Gas Board [1971] 1 WLR 749 that the maxim is a guide to whether a claimant has raised a case requiring an answer, rather than a distinct doctrine. The unresolved question about competing negligent and non-negligent causes did not arise on these facts.

• Court of Appeal (Civil Division) — dismissed the appellant electrician’s appeal: [2008] EWCA Civ 25.
• High Court of Justice, Queen’s Bench Division, Technology and Construction Court — His Honour Judge David Wilcox found the appellant negligent and entered judgment for the claimant for £104,841.63.