Amsprop Ltd v ITW Ltd (t/a Hobart UK)

Where a claimant alleges that damage resulted from one of only two possible causes, the court may compare their relative likelihoods. An apparently unlikely cause may satisfy the balance of probabilities only if the alternative is materially less likely. The court must avoid speculation where the evidence does not establish that comparison. A claimant must prove both the causative event and the alleged negligence. An engineer who identifies a possible safety risk may have to isolate equipment, but negligence cannot be established without evidence of the standard reasonably competent engineers would apply where that standard is disputed. On the facts, neither causation nor negligent failure to shut down the appliance was proved.

A fire substantially damaged premises owned by Amsprop Ltd. The fire experts agreed that there were two possible causes: a flare-up from food on a grill, or a burner flame being drawn into an extraction duct and igniting grease deposits. Amsprop alleged that ITW Ltd’s engineer had negligently failed to shut down the grill after servicing it shortly before the fire. The claim depended on proving both that the burner-flame mechanism caused the fire and that the engineer was negligent in leaving the appliance in service. The court therefore had to determine the probable cause of the fire and whether the engineer’s conduct fell below the legally applicable standard.

1. Claim dismissed. Amsprop failed to prove on the balance of probabilities that the fire was caused by a burner flame being drawn into the extraction duct. It also failed to prove that the engineer was negligent in not ordering the grill to be shut down.
2. Where only two possible causes are advanced, the court may discount one if it is much less likely than the other. This approach, discussed in [2006] ECWA Civ 880 and [1985] 1 WLR 948, does not permit the court to select a cause merely because it appears preferable when the evidence leaves the comparison speculative. The analysis in Fosse Motor Engineers v Conde Nast Distributors Limited [2008] EWHC 2037 (TCC) was accepted.
3. The experts’ evidence established that both proposed mechanisms were possible. However, the evidence did not show that the food flare-up was much less likely than the burner-flame mechanism. The court considered that a food flare-up was, if anything, more likely, but treated that conclusion as speculation rather than a finding sufficient to establish causation.
4. The claimant also had to establish negligence. The engineer was an honest and competent witness. He had identified a slight disturbance to the burner flame, but the court found that the appliance was operating at approximately 95 per cent efficiency and was not in an actually or potentially dangerous condition when he left it. There was no evidence of the standard expected of a reasonably competent engineer undertaking the work. The court therefore could not infer negligence from the alleged obviousness of the risk.
5. The engineer had an overriding duty to isolate the appliance if he thought it might be unsafe. He understood that duty, but reasonably concluded that the fault required attention by the premises’ maintenance engineers and did not create a safety risk during use. Judgment was accordingly given for ITW Ltd.