Graves v Brouwer

A claimant who bears the burden of proving causation cannot succeed merely because the proposed cause is less implausible than alternatives. The court must stand back after considering the whole evidential picture and decide whether that cause is more likely than not. It may instead conclude that gaps in the evidence leave causation unproved.

An expert should not be asked to determine the court’s mixed question of fact and law on the balance of probabilities. A trial judge’s misreading of such an answer may vitiate the causation analysis. A finding that a small, carefully controlled fire was lit and extinguished with appropriate precautions was not disturbed on appeal.

The claimant’s house was seriously damaged by fire about 30 minutes after the defendant, her neighbour, burned two sheets of paper and two pieces of card in the concrete alleyway beside his house. The claimant, whose claim was pursued by subrogated insurers, alleged that a flying ember entered combustible material in her eaves and that the defendant had been negligent.

Her Honour Judge Baucher found that the alleyway fire caused the house fire, but dismissed the claim because the defendant had not been negligent. The claimant appealed the finding on negligence. The defendant cross-appealed against the finding of causation.

The central issues were whether the claimant had proved causation on the balance of probabilities despite incomplete forensic investigation, and whether the defendant had breached his duty of care.

1. The defendant’s cross-appeal was allowed and the claimant’s appeal was dismissed. The claim remained dismissed. Tomlinson LJ gave the judgment, with Beatson and Sullivan LJJ agreeing.

2. The trial judge’s causation finding was unsound. She treated an answer from the defendant’s fire expert as a material concession that, once arson was rejected, the alleyway fire was the probable cause. The expert had instead responded to an impermissible question of mixed fact and law and had not accepted that conclusion.

3. Applying the approach in The Popi M, [1985] 1 WLR 948, and Milton Keynes Borough Council v Nulty, [2013] 1WLR 1183, the court held that the claimant retained the burden of proving causation. It was not enough that the alleyway fire appeared less implausible than other explanations. The judge had to consider the inadequate forensic investigation, the unexamined possible causes, and whether the evidence as a whole made the claimant’s explanation more likely than not.

4. The trial judge had not undertaken that final assessment. The evidence could not prove deliberate fire-setting, but neither did its rejection establish the alleged flying-ember mechanism. The proper conclusion was that the claimant had failed to prove causation.

5. It was strictly unnecessary to decide negligence. Nevertheless, the court would have dismissed the claimant’s appeal on that issue. The judge was entitled to find that the defendant had taken the utmost care: he selected a concrete location, watched a very small fire, had a hose ready, and thoroughly doused the remains. The unusual choice of location was not, on the evidence, negligent in itself.

• Court of Appeal (Civil Division): In [2015] EWCA Civ 595, allowed the defendant’s cross-appeal on causation and dismissed the claimant’s appeal on negligence. The claim remained dismissed.
• Central London County Court: Her Honour Judge Baucher found that the defendant’s fire caused the claimant’s loss but found no negligence, and dismissed the claim.