Drake –V- Harbour – Court Of Appeal Supports A Robust Approach To Causation In Negligence

The Facts

Mr Harbour was engaged by Mrs Drake to undertake rewiring works to her bungalow in East Sussex. A catastrophic fire occurred in the early hours of 27 June 2002. Mrs Drake had left the bungalow to visit friends whilst the work was being carried out. The fire had started in the loft. On the day before the fire, Mr Harbour had installed a system of temporary lighting in the loft comprising festoon wiring and 8 light sockets. Mrs Drake commenced proceedings against Mr Harbour and his assistant, Mr White, for the losses. The proceedings went to trial before His Honour Judge Wilcox in the Technology and Construction Court in London.

First Instance

Judgment was given for Mrs Drake against Mr Harbour in the sum of £104,841.63. The system of temporary lighting required site fixing of the light sockets to the festoon cable. The Judge found that Mr Harbour had been negligent in that he did not examine the cable for defects before attaching the light sockets.

As to causation, the Judge decided that the maxim "res ipsa loquitur" applied (the fire occurred when Mr Harbour had sole control of the bungalow) and that Mr Harbour had not established an operative cause of loss inconsistent with Mr Harbour's negligence or any operative cause at least as likely as Mr Harbour's negligence. No evidence as to the precise mechanism that was the cause of the fire was adduced by Mrs Drake. Mr Harbour appealed the decision of His Honour Judge Wilcox to the Court of Appeal.

Court of Appeal

Mr Harbour proceeded in the Appeal on the basis that negligence was accepted by him by failing to inspect the festoon cabling, but that his negligence was not causative of the loss. The thrust of the Appeal was that the maxim "res ipsa loquitur" was not applicable and that the Judge did not deal adequately with causation. It was asserted that the Claimant had not proved that the negligence caused the loss, there being other candidates for the cause of loss such as moisture in the light sockets. Counsel for Mr Harbour submitted that each of the other possible causes was inconsistent with any negligence on the part of Mr Harbour.

The Appeal was heard on 22 January 2008. The Appeal was dismissed. Central to Judgment of the Court of Appeal were the following matters:-

• In a case where negligence is found, the Court must be prepared to take a reasonably robust approach to causation where the sort of damage is that which one might expect to occur from the nature of the Defendant's work.

• HHJ Wilcox considered other possible causes of loss and his Judgment concluded that it was more likely that the fire was caused by Mr Harbour's negligence than it was not. That was the correct approach.

• There was no evidence from which any of Mr Harbour's suggested causes could be inferred. If there had been such evidence, there was no expert evidence that any such cause was inconsistent with the negligence of Mr Harbour.

• The Judge at first instance correctly held on the balance of probabilities that Mr Harbour's negligence caused the fire.

• It was unnecessary to consider whether HHJ Wilcox was entitled to rely on the maxim "res ipsa loquitur".

• The legal or ultimate burden remains with the Claimant, but in the absence of evidence to the contrary, adduced by the Defendant, an inference of causation may be drawn, although positive or scientific proof of causation has not been adduced (as per Snell –v- Farrell (1990) 72 DLR 4^th 289, 301).

Points of Interest from the Court of Appeal decision

Every case will be determined on its own facts and there appear to be at least 4 important factors unique to this case, which are:-

1. the existence of the festoon cable in the loft was never volunteered to the attending fire brigade officers and the Claimant only became aware of the existence of the festoon cable upon exchange of factual and expert witness statements in the proceedings; there was accordingly no opportunity for the cable to be inspected after the fire;
2. Mr Harbour asserted in the proceedings that the festoon cable was new, but the Judge held that it was not new, and said that Mr Harbour had been persuaded "to gild the lily" for reasons to do with liability insurance;
3. Mr Harbour's alternative causes of loss were not pleaded or supported by expert evidence in the proceedings; and
4. Mr Harbour had sole control of the bungalow at the time of the fire.

The Court of Appeal Judgment raises the following points of interest:-

• The concept of evidential burden of proof does not generally serve a useful purpose in a civil action for negligence where causation is being considered.

• Whereas in criminal law the prosecution must always prove the positive ingredients of an offence, in civil law an inference may be relied upon to find a causal connection between proven breach of duty and ensuing loss.

• The extent to which positive or scientific proof of causation is required must be a matter of judgement in each case and depends on the evidence as a whole.

• In reaching a conclusion about where the probability lies, the Court must consider any alternative theories of causation advanced by the Defendant. Where a Claimant proves both that a Defendant was negligent and that the loss ensued was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a Court to infer that the loss was probably so caused. This is a matter of applying common sense and is not a principle of law or a shifting of the evidential burden.

• A Defendant will stand little chance if it is unable to adduce factual evidence of the alternative theories of causation or expert evidence that any such alternative cause is inconsistent with the Defendant's negligence. This will be an important factor in pre-trial case preparation and pre-trial case assessment for Claimants that accept that there has been negligence.

• The Court of Appeal's decision emphasises the importance of proper consideration of each parties' position on causation in Pre-Action Protocol procedures concerning negligence.

Full case reference:-

Hilda Drake –v- Eric Anthony Harbour [2008] EWCA Civ 25 (31 January 2008).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.