COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONTRUCTION COURT
HIS HONOUR JUDGE DAVID WILCOX
HT 06 386
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE WALLER
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE TOULSON
| HILDA DRAKE
|- and -
|ERIC ANTHONY HARBOUR
Mr Adrian Hughes QC & Mr Michael Davie (instructed by Beachcroft Llp) for the Respondent
Hearing dates : Tuesday 22nd January 2008
Crown Copyright ©
Lord Justice Longmore:
i) a lead lamp plugged into the second four gang extension lead and used for close work in the eaves of the loft;
ii) although it would be dangerous to leave the festoon cable plugged in, if at the time of departure for the day there had been a "fishy" smell in the loft (which might thus be associated with the defendants' own equipment), any such fishy smell had dissipated before they left and there was no danger (in itself) in leaving the festoon cable plugged in;
iii) carelessly discarded cigarette stubs or other extraneous human action;
iv) any fault in the bungalow's existing wiring; or
v) damage to the festoon cable while the festoon cable was being fixed to the rafters in the loft.
"… at least as likely as that the defendants failed to check that the insulation was not unacceptably damaged, or that any existing damage was not exacerbated by their activity in assembling the light fittings on to the cable." (para 53)
He therefore gave judgment for the claimant for £104,841.63 against the first defendant Mr Harbour saying that, although both defendants were complicit in the re-wiring operation, the contract was only made with Mr Harbour and that judgment was to be appropriately entered only against him. This is, therefore, Mr Harbour's appeal.
i) that the maxim res ipsa loquitur had no application since the court had heard evidence of fact and conflicting expert evidence so that as he put it
"… the usefulness of the doctrine had been exhausted."
ii) that the judge did not deal adequately with his arguments on causation. He had submitted that, even if negligence was found (as it had been), the claimant had not proved that the negligence caused the loss. There were other candidates for the cause of loss e.g.
a) an undiscoverable defect in the festoon cable;
b) the fact that the light socket was not tightly enough screwed and was, therefore too loose;
c) the fact that moisture had got into the light socket.
Each of these possible causes, he submitted, was inconsistent with any negligence on the part of the defendants.
"… be prepared to take a reasonably robust approach to causation."
That is just what HHJ Wilcox did in the case. He considered other possible causes of loss and said that no operative cause of the loss had been established which was
"… at least as likely as that the defendants failed to check that the insulation was not unacceptably damaged or that any existing damage was not exacerbated by their activity in assembling the light fittings and the cable."
By this he meant, as I read his judgment, that it was more likely that the fire was caused by the defendants' negligence than that it was not. That was a conclusion that was open to him on the evidence and I am not persuaded that it should be disturbed.
Res ipsa loquitur
Lord Justice Toulson:
"I find it preferable to explain the process without using the term secondary or evidential burdens. It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden; see Cross on Evidence, 3rd Ed, at p129. In my opinion, this is not a true burden of proof, and the use of an additional label to describe what is an ordinary step in the fact finding process is unwarranted.
The legal or ultimate burden remains with the plaintiff, 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."
Lord Justice Waller: