Carl Nash v Volskwagen Financial Services (UK) Limited

In disputed factual causation cases, a court is not always required to choose between competing explanations. It may ask the single, unitary question whether the claimant has proved on the balance of probabilities that the alleged cause produced the damage. A two-stage analysis may often be useful, but it is not mandatory.

The court must remain alert to the danger of selecting the least improbable explanation where all proposed causes remain highly improbable. It may conclude that the evidence leaves the cause uncertain and that the burden of proof has not been discharged. An appellate court should not interfere with a trial judge’s evaluative findings unless an identifiable flaw undermines the conclusion.

The claimant appealed from the decision of Mr Recorder Agnihotri in the County Court at Liverpool, which dismissed his claim under section 9 of the Consumer Rights Act 2015. He alleged that a vehicle acquired under a hire-purchase agreement was not of satisfactory quality because an inherent defect caused it to catch fire.

The claimant relied on an automotive engineer’s evidence. The defendant relied on a fire expert’s alternative theory that a discarded cigarette ignited debris near the vehicle. Neither expert identified a specific cause. The appeal concerned the proper approach to causation where competing explanations existed, the adequacy of the Recorder’s reasons, and the treatment of the expert evidence.

1. Appeal dismissed. The Recorder was entitled to conclude that the claimant had not proved on the balance of probabilities that a defect in the vehicle caused the fire.
2. The court rejected the submission that the Recorder was bound to choose between the vehicle-defect hypothesis and the cigarette hypothesis. The applicable question was whether the claimant had established that the alleged vehicle defect was more likely than not to have caused the damage. That was a permissible single, unitary question in an appropriate case.
3. A court will often analyse and choose between competing explanations. That approach is not obligatory. The court must avoid treating the least improbable explanation as probable merely because competing explanations are also unattractive. It remains entitled to find that the evidence leaves the cause in doubt.
4. The Recorder had considered the evidential picture as a whole. He had reservations about Mr Dabek’s change from saying that a defect “must” have caused the fire to saying that it was “more than probable”, his failure to amend his report, and his inability to identify a specific defect. He accepted relevant aspects of Dr Tompsett’s evidence and did not treat the cigarette hypothesis as wholly improbable.
5. The Recorder gave sufficient reasons. The principles in Flannery v Halifax Estate Agencies Ltd and English v Emery Reimbold & Strick Ltd did not require a longer or more explicit analysis. The absence of cross-examination on Mr Dabek’s report did not make acceptance of his conclusion mandatory, consistent with Griffiths v TUI.
6. The possibility of an unknown cause was a permissible reminder of the burden of proof, not an impermissible new theory. The appellate court could not identify a gap in logic, inconsistency, or failure to consider a material factor warranting intervention.

• High Court (King’s Bench Division): The appeal from the County Court at Liverpool was dismissed. All three grounds of appeal were rejected.
• County Court at Liverpool: Mr Recorder Agnihotri dismissed the claimant’s claim on 27 July 2022, finding that he had not proved that a vehicle defect caused the fire.