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Fire damage – establishing causation, or not

This case concerned two neighbouring homeowners whose houses were separated by a small alleyway.

Graves v Brouwer, 18 June 2015, CA (Civ Div)

 The case concerned two neighbouring homeowners whose houses were separated by a small alleyway. Mr. Brouwer ("the Defendant") set fire to four pieces of paper and card in the alleyway to destroy confidential information. Shortly thereafter, Miss Graves’ ("the Claimant") home sustained significant damage caused by a fire which appeared to have started in the eaves of her roof. Miss Graves brought proceedings against Mr. Brouwer for the fire damage to her home.

Both parties relied on expert forensic evidence although neither could definitively state what actually caused the fire. The Claimant’s expert said that, discounting less probable causes such as arson, the most likely cause of the fire was flying embers from the Defendant’s fire reaching the Claimant’s roof. The Defendant’s expert could not ascribe the cause of the fire to any likely cause. Within their joint report, both experts conceded that the possibility of the flying embers was ‘of a low order’.

At first instance, the Defendant’s expert admitted that, if no other cause of the fire could be found to be probable then the flying embers must have been the cause, however improbable. Despite this, the Defendant was not found liable as negligence by him could not be established. The Claimant appealed the finding of and the Defendant cross-appealed the causation finding.

The Court of Appeal considered the trial judge’s findings in respect of causation. They found that the first instance judge should not have based such a finding on the evidence before him, given the low probability of that being the cause of the fire. Whilst it may have been the least improbable cause of the fire, it was not sufficiently likely to establish that the Defendant’s actions had caused the fire. Therefore the Claimant had proved causation and the claim failed.

Comment

Where different theories are advanced in relation to causation, a claimant must still establish, on the balance of probabilities, that one cause is more likely than not to have caused the damage. In this case, the fact that the ‘flying embers’ theory was the least improbable cause was insufficient to discharge this burden of proof. A claimant needs to put a positive case and satisfy the evidential burden. The court can still make findings on causation on competing causes but the court has to be convinced that the explanation put forward is more likely than not to be the cause.