No fire without smoke

I told you some while back about an everyday rewiring job that turned into a disaster (3 August 2007, page 46-47). The client’s bungalow practically burned down. There was a trial and the electrical contractor was found liable. The whole affair has now come back to a Court of Appeal hearing.

Let me remind you of the story. Hilda Drake decided that her fifties home ought to be rewired. An experienced electrical firm owned and run by Eric Harbour agreed to do the work. Mr Harbour and his fellow electrician got stuck in, while Mrs Drake took off to friends in Wales. Three o’clock in the morning saw the fire brigade attempting to stop the raging fire at her bungalow.

There are two stories here. First, Mrs Drake is having her bungalow rewired. Second, Mrs Drake’s bungalow burned down. And, this is where a human flaw raises its ugly head. It is ever so tempting to conclude that because the fire occurred while the work was being done, it was plainly caused by the works. Ah well, judges are a tad too experienced to fall for that. The judge at the trial concluded that the wrongful approach to using a festoon cable by the electrician was what caused the fire. Mind you, the court got to that conclusion after a two-day inquiry into all sorts of possible causes.

Credit: Simone Lia

The Court of Appeal has upheld the decision by the first judge. The guidance, however, is ever so useful for us arbitrators and adjudicators. The reason is that grappling with the who, what, why, when and how of causation is a fundamental ingredient in disputes and, I admit, not easy. And it is not unusual to get in a muddle when there is a cockshy of competing causes.

The grounds for appeal were that the first judge hadn’t dealt adequately with the arguments on causation. The notion is that even though the electrician had been found to have been negligent or careless, Mrs Drake’s lawyers had not proved that the negligence caused the fire – there were other candidates for the cause of the fire. Actually this is another poke in the eye for our human flaw – having become satisfied that the electrician had been negligent, it is so, so easy to then jump to the conclusion that that negligence caused the fire. But it ain’t necessarily so.

It is tempting to conclude that because the fire occurred while the work was being done, it was plainly caused by the work. Judges won’t fall for that

The Court of Appeal guidance from Lord Justice Longmore goes like this: “It seems to me that in a case where negligence has been found and the damage which has occurred is the sort of damage one might expect to occur from the nature of the work, which the electrician has been carrying out, a court should be prepared to take a reasonably robust approach to causation.”

Now then, let’s take this slowly. Step 1: Was the electrician negligent? Step 2: If so, might the damage be expected to occur from that negligence? Step 3: Be robust when deciding causation. How? By considering other possible causes and asking, was the loss more likely caused by the electrician’s negligence than it was not? Lord Justice Toulson explained: “Where a claimant proves that a defendant was negligent and that the loss caused was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer it was probably so caused, even if the claimant is unable to prove positively the precise mechanism.” And added: “That is not a principle in law, nor does it involve an alteration in the burden of proof; rather, it is a matter of applying common sense.”

It is ever so ordinary in the construction world to be faced with events that add to costs. Ordinary, too, for there to be a jumble of reasons for added costs, added time or both. The tendency is for the other party to require proof of the loss. Getting home with a claim may not actually require such certain proof. The guidance in Mrs Drake’s case appears to suggest that if the event, such as a variation or act of prevention, is proven and if it is an event of a kind which causes added money or time, it is legitimate for a court, arbitrator or adjudicator to conclude that it was probably so caused … it’s common sense. All that sounds jolly well, until the next dispute has a cockshy of possible causes and getting in a muddle is still on the cards.