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England and Wales High Court (King's Bench Division) Decisions
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Cite as:  EWHC 2326 (KB)
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ON APPEAL FROM THE
COUNTY COURT AT LIVERPOOL
On appeal from Mr Recorder Agnihotri sitting on 27 July 2022
B e f o r e :
| MR CARL NASH
|VOLSKWAGEN FINANCIAL SERVICES (UK) LIMITED
Ms Ruth Bala (instructed by Lester Aldridge LLP ) for the Defendant/Applicant
Hearing date: 8 June 2023
Crown Copyright ©
MR JUSTICE FREEDMAN:
"Both the internal vehicle inspection report from Volkswagen prepared by Martin Clatworthy as well as the report by the Claimant's insurers prepared by Barrington Assessors concluded that the cause of the fire could not be attributed to mechanical defect. Merseyside Fire and Rescue Services, who had attended on the evening of the fire, produced a brief report which states that the source of ignition was "vehicle-only electrical fault."
III The Vehicle hypothesis
"…In his report, Mr Dabek said that on the basis that the vehicle was recently purchased, was relatively new, had not been abused and was parked correctly at the Claimant's home address, it follows that the fire commenced within the vehicle and must have resulted from some sort of defect in that vehicle."
"Neither expert was able to identify any specific cause of the fire within the engine compartment of the car. Nevertheless, both experts considered that the state of the engine compartment was potentially consistent with the fire having started as a result of an electrical fault therein. However, they differed in opinion on what they considered likely in those circumstances."
IV The Cigarette hypothesis
15. Dr Tompsett's view was that the fault was so unlikely that ignition by a carelessly discarded cigarette was a better explanation ("the Cigarette hypothesis"). He said that there was some evidence of some fire damage to the house including severe fire damage to the Telewest Box and evidence of a fire on the ground in the corner between the driveway and the garden wall (para. 3.2 of his report), and the patterns of fire damage were consistent with the fire starting in the debris at that point (para. 4.4 of his report). (The presence of debris was disputed). If the fire started there, it could have spread to the front of the car via burning brands (para. 4.11 of his report). His report was that "… the most likely explanation for the fire was careless disposal of cigarettes by a passer-by igniting debris in the corner of the driveway leading to a fire in this area which then spread to affect the car" (para. 5.5).
"Whilst there was no fire investigation undertaken of the scene, in Dr Tompsett's opinion it started at a lower level by the redundant Telewest cable box and the brands, as they were described, loose lightweight burning particles made their way to the front of the car so as to catch alight and cause the damage. He described that radiant heat travels and the fact that the uPVC window frame did not melt in its entirety and there is a gap, which is evidenced by the photograph taken, confirms his view that there was a smaller fire by the Telewest box and referenced AIT (autoignition temperature) taking effect to ignite the bumper or the grill at the front of the car."
(1) had the fire started within the engine compartment there would have been much more severe damage within that compartment: see Dr Tompsett report para. 4.1;
(2) the only feasible source of a fire starting in the car was an electrical defect in the wiring to the cooling fans which would have remained 'live' even when the car was parked. There was no evidence to support the possibility of a fire starting due to this mechanism and Dr Tompsett did not consider this a likely explanation for the fire: see Dr Tompsett report para. 5.4;
(1) there was no evidence of a cigarette or evidence to support the suggestion that the fire resulted from the Telewest Box: see Mr Dabek's report at para. 6.3;
(2) the distance between the street and the nose of the car was too far for a cigarette to have been simply discarded: it would have to have been thrown a significant distance.
V The Recorder's assessment of the experts
(1) as noted at paras. 13-14 of the Judgment, Mr Dabek changed his evidence from saying in his report that the fire 'must' have come from a defect in the Vehicle to saying in his oral evidence that it was 'more than probable' to have come from such a defect;
(2) Mr Dabek did not change his written report to reflect his significant qualification to the degree of probability that the cause of the fire was from a defect in the Vehicle;
(3) Mr Dabek agreed in the joint statement that the fire started in front of the engine and not immediately beneath it.
(1) lack of relevant expertise: the Recorder found that Dr Tompsett had experience about cars and their mechanics with an expertise in fires and their causes and had provided numerous reports for courts in fire cases (an error about the precise subject of his degree was immaterial, and no permission was granted on that ground): see Judgment para. 22;
(2) failure to inspect the Vehicle: Dr Tompsett's explanation for not having inspected the Vehicle himself was recorded without criticism, namely that there was little to be gained as it was a well-contaminated scene, and there was the possibility that items could dropped off the Vehicle in transit: see Judgment para. 23.
VI Principles applicable to the appeal
"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc  RPC1; Piglowska v Piglowski  1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd  UKHL 23  1 WLR 1325; Re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33  1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie  UKSC 58  1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include
i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
ii) The trial is not a dress rehearsal. It is the first and last night of the show.
iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.
VII The approach as a matter of law to disputed factual causation
"In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.
The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay upon them. (emphasis added)"
".. the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.
…the legal concept of proof of a case on balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a Judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.
In my opinion Bingham J. adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them." (emphasis added)
91. The speech of Lord Brandon is not a mandate to judges who are called upon to choose between two more intrinsically improbable accounts to reject them all. It reflects, and was clearly designed to reflect, the fact that whichever account is the least improbable still has to be evaluated against the surrounding realities.
95. What remains puzzling, if I may say so with the utmost respect, is Lord Brandon's third proposition, upon which Mr Flaux has understandably fastened. On its face it is—if I may paraphrase it—that as a matter of common sense a high degree of improbability that an event will occur defeats an assertion that it has occurred. I cannot believe that Lord Brandon meant that judges either could or should disbelieve evidence that an event has occurred simply because its occurrence was highly improbable. The law, like life, is littered with highly improbable events, many of them defying common sense, which have nevertheless indubitably happened. What Lord Brandon was, in my respectful view, considering here was an occurrence which, albeit the least improbable of those canvassed, made little or no intrinsic sense. Such cases may fail for want of sufficient proof. To elevate the third of his propositions to anything higher than this would in my respectful view put it in conflict with his second proposition."
"4… The Popi M was a very unusual case and as these two appeals demonstrate, the difficulties identified in that case will not normally arise. In the vast majority of cases where the judge has before him the issue of causation of a particular event, the parties will put before the judges two or more competing explanations as to how the event occurred, which though they may be uncommon, are not improbable. In such cases, it is, as was accepted before us by the appellants, a permissible and logical train of reasoning for a judge, having eliminated all of the causes of the loss but one, to ask himself whether, on the balance of probabilities, that one cause was the cause of the event. What is impermissible is for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event; such cases are those where there may be very real uncertainty about the relevant factual background (as where a vessel was at the bottom of the sea) or the evidence might be highly unsatisfactory. In that type of case the process of elimination can result in arriving at the least improbable cause and not the probable cause.
6. As a matter of common sense it will usually be safe for a judge to conclude, where there are two competing theories before him neither of which is improbable, that having rejected one it is logical to accept the other as being the cause on the balance of probabilities. It was accepted in the course of argument on behalf of the appellant that, as a matter of principle, if there were only three possible causes of an event, then it was permissible for a judge to approach the matter by analysing each of those causes. If he ranked those causes in terms of probability and concluded that one was more probable than the others, then, provided those were the only three possible causes, he was entitled to conclude that the one he considered most probable, was the probable cause of the event provided it was not improbable."
"41. The judge then posed himself the question, given that electrical faults setting buildings and cars alight were both uncommon, but such things did happen, was there sufficient material for him to conclude on the balance of probabilities that it was more likely that the Lexus set itself alight than that the garage wiring caused the fire? He then set out a number of reasons for his conclusion that, on a balance of probabilities, the cause of the fire was an internal electrical fault in the Lexus rather than a fault in the wiring or electrical units of the garage."
"45.…the judge was then left with the issue as to whether the cause had been the wiring or units in the garage or the electrics in the Lexus. No other alternative was put forward. Although both of these causes were uncommon, both could have been a cause; neither was improbable. The findings made by the judge simply do not support the contention advanced by the manufacturers that either of these causes was improbable. This was therefore not a Popi M case. It was therefore necessary to analyse as between the two which was the stronger probability."
VIII The Appellant's submissions
"15. We then have the issue of causation to be considered. The case of Ayannuga & Ors v One Shot Products Ltd  EWHC 590 (QB) at paragraph 24 provides a summary of the principles when considering repeating causes. This case referenced Graves v Brouwer  EWCA Civ 595 from paragraphs 24 to 27 (inaudible). For the Claimant to prove his case, he must convince the Court that his version of events is more likely than not to have been the cause of the fire. This requires him to show that it is both: (1) more likely than any competing version of events; and (2) that it is not so inherently improbable that even if it is preferable to a competing version of events, it is still not enough to discharge the burden of proof."
34. In the skeleton argument on behalf of the Appellant at para. 20, the Appellant described the application of these two questions as "a practical way of applying the…principles". At para. 21, the Appellant characterised these two questions as "effectively a way of breaking down the master question, which is whether the court is satisfied that the suggested explanation is more likely than not to be correct".
(1) there was no analysis or evaluation as to which of the competing explanations of the experts was the more likely, that is the defect in the Vehicle or the Cigarette hypothesis whether by reference to their internal cogency, inherent likelihood or how well the experts dealt with the evidence before the Court or the evidence supporting them;
(2) there was no choice between the defect in the Vehicle explanation and the Cigarette hypothesis;
(3) despite stating the two-question approach at para. 15 of the Judgment, there was in the end an answer to a different question at paras. 28 - 29, that is a single question about the balance of probabilities;
(4) the Judge failed to consider whether either hypothesis was so intrinsically improbable that it might be that the case should fail on the burden of proof. There was no evaluation as to how likely was the Cigarette hypothesis;
(5) in reaching the conclusion that the Appellant had not proven the case on the balance of probabilities, there was no discussion as to why it was unable to do so.
"So is there sufficient material for me to conclude on the balance of probabilities that it was more likely that the SEAT set itself alight due to an internal fault rather than the floating burning brands from the Telewest cable box? I accept that the case law, including Dana v Freudenberg, suggests that the Court does not need to identify a specific fault. However, it does still require the Court to find that it is more likely than not that the fire was caused by a fault, albeit unknown, in the vehicle. I am unable to do that on the evidence before the Court."
IX The Respondent's submissions
(1) the Judgment does not suggest that the Vehicle hypothesis was more probable than the Cigarette hypothesis, and therefore the Appellant was not required to assess whether it was so inherently improbable that it could not be accepted, even on the case of the Appellant; alternatively
(2) the two questions are no more than an elaboration of the simple question which the Recorder did answer: had the Appellant discharged the burden of establishing that the Vehicle hypothesis was more probable than not?
"In approaching this question it is important that two matters should be borne constantly in mind… it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay upon them (emphasis added)."
"It follows that the process of reasoning which led the judge to conclude that the Claimant succeeded on causation was fatally flawed. The judge did not stand back and ask herself the ultimate question whether she was satisfied that the suggested explanation was more likely than not to be true. She did not have regard to the significant gaps in the court's knowledge brought about by the lack of any adequate forensic investigation in the immediate aftermath of the fire. She did not ask herself whether the case for believing that the fire was caused in this way was stronger than the case for not coming to that belief, always bearing in mind that she was not obliged to come to a conclusion at all, and that a permissible outcome was that the inadequacy of the investigation conducted on the Claimant's behalf gave rise to a situation in which the Claimant was unable to prove on the balance of probabilities what had caused the house fire. (emphasis added"
"I must approach the issue of causation, applying common sense and looking at the whole evidential picture. The expert evidence forms part of that evidential picture, but it is just a part and I must have regard to all the evidence in the case. I should also bear in mind any gaps in what is known, and the reasons for those gaps. I note that, at first sight, both sides' explanations appear improbable. It is always possible that there is an unknown explanation, but the experts have given anxious consideration to what else might have caused the gas and can suggest nothing. I should consider each side's theory and test it against the evidence. In doing so, I will bear in mind that I am not bound to find one way or another, although the reality in this case may be that analysis of the competing explanations will lead to the answer. Ultimately, having analysed the evidence, I must (as the Court of Appeal in Graves suggest) stand back and ask myself whether I am satisfied that the claimants' explanation is more likely than not to be right. (emphasis added)"
Ground 1: The learned Judge erred in law and/or misdirected himself by failing to adopt the correct approach to disputed causation. The learned Judge identified the correct approach (in that he needed to (1) consider the competing explanations and choose between them, and then (2) stand back and check that the explanation he was left with was not still so inherently improbable that it could not be said to be more likely than not) but then failed to follow it. He did not attempt to critically assess or choose between the two competing theories before him, and he did not ask himself whether the 'defect theory' was so inherently improbable it could not be accepted.
(1) He had significant concerns about the expert for the Appellant, Mr Dabek, which affected the extent to which the Court could rely on him, particularly his retreat in his evidence and his failure to qualify his written report (Judgment paras. 26-27).
(2) In applying the law to the facts, the Recorder took into consideration that Mr Dabek:
(a) was unable to identify any specific cause of the fire within the engine compartment of the car;
(b) could not identify a defect in the electrical components or wiring;
(c) agreed that he had not seen any evidence that there was a defect which had caused the reported noise;
(d) agreed that whatever caused the fire may have been destroyed or concealed by the effects of the fire;
(e) changed his assessment of whether or not the fire "must" have been caused by a defect in the car as referred to above.
(3) The Recorder did not have such concerns about the expert for the Respondent, Dr Tompsett. The Recorder had little doubt about his experience and expertise (the error as to the subject matter of Dr Tompsett's degree is immaterial): see Judgment para. 22. The reasons for Dr Tompsett not inspecting the Vehicle were mentioned without criticism (Judgment para. 23).
(4) The Recorder expressly accepted that Dr Tompsett reached independent conclusions and recited parts of his evidence without criticism. That included the evidence of Dr Tompsett (Judgment at para. 24) that the possibility of a fuel leak could be dismissed, the circuit board and the battery of the Vehicle were intact and there was no cable defect, and it was unlikely that cooling fans had been running (in February).
Ground 2: The learned Judge gave no or no sufficient reasons for dismissing the Appellant's Expert Witness' evidence (and in particular his conclusion as to the cause of the fire) despite that evidence not having been challenged in cross-examination and despite the Respondent's Expert Witness not having expertise in the discipline for which the parties had permission to adduce expert evidence.
"It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, in may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."
Ground 3: The learned Judge put undue weight on the possibility of there having been some further unexplored possible cause of the fire when (1) neither expert suggested that this was likely and (2) it was not put to the Appellant's Expert Witness in cross-examination (and nor did it arise in the course of preparing the joint statement). The Judge also gave no or no sufficient reasons for why he was so concerned about this possibility despite neither expert having suggested it.
"the combined effect of the gaps in the court's knowledge and the cogency of the factors telling against the theory of a collision with a submarine was that the court could not properly be persuaded that the case for believing the submarine theory was stronger than the case for remaining agnostic." [emphasis added]