Neutral Citation Number: [2008] EWCA Civ 25
Case No: A1/2007/1836
IN THE SUPREME COURT OF JUDICATURE
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
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/01/2008
Before :

VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION, 
THE RIGHT HONOURABLE LORD JUSTICE WALLER
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
and
THE RIGHT HONOURABLE LORD JUSTICE TOULSON
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Between :

	HILDA DRAKE	Respondent	
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	ERIC ANTHONY HARBOUR	Appellant	

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Mr Mark James (instructed by Mayo Wynne Baxter Llp) for the Appellant
Mr Adrian Hughes QC & Mr Michael Davie (instructed by Beachcroft Llp) for the Respondent

Hearing dates : Tuesday 22nd January 2008
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Judgment

Lord Justice Longmore: 
1.	Mrs Drake, a widow now aged 93, has a bungalow at 69 Northwood Avenue, Saltdean, East Sussex.  Her home needed extensive electrical rewiring since some of the wiring was pre – 1950, as were some of the fittings and junction boxes.  She decided to visit friends in North Wales while the work was being carried out.  When she returned a large part of the roof and some of the house had been damaged by fire.
2.	Mrs Drake had engaged the first defendant Mr Harbour to undertake the rewiring work.  Mr Harbour is an electrician who was nearing retirement.  He had industrial experience and had undergone a time served apprenticeship.  Because he had an injured knee he engaged the second defendant, Mr White, to assist him.  Mr White had a similar background training and experience and was able to undertake work requiring a degree of suppleness not enjoyed by Mr Harbour.
3.	In the early hours of 27th June 2002 the catastrophic fire occurred, starting in the loft.  The fire brigade were on the scene by 3.30 a.m.  The building had been left secure by Mr Harbour when he and Mr White had left the building at approximately 4.30 p.m. on 26th June 2002.  
4.	The first task undertaken by the defendants had been to disconnect the consumer unit and all of the circuits from the electrical supply.  The consumer unit was removed from the kitchen cupboard leaving in place the electricity company’s cut out meter equipment and two Henley junction boxes.  Mr Harbour connected a four gang extension lead to the Henley junction boxes to provide a temporary supply to the fridge freezer, his tools and also a festoon cable fitted up to provide temporary lighting in the loft.  A second four gang extension lead was connected to the first.  It was from that second lead that there were plug connections for the fridge and for the kettle.
5.	The second stage of work involved stripping the existing electrical cables out of the building (mainly the loft) and installing new electrical cables.
6.	The loft was not completely floored.  Access to the loft was through a hatchway in the kitchen ceiling.  From the access were three short tongue and groove pieces of wood, which led to some chip boarding in the middle of the loft area.  The roof timbers at the apex were approximately 8 ft above the ceiling rafters below.  The roof was a simple A frame, so that the space at the eaves where the roof timbers met the ceiling timbers was very constricted.  It was in these locations from which old cabling was removed and in which new cable was installed.  Mr White worked in the loft.  In the installation process he fed new cable down to Mr Harbour below in the kitchen.  Mr Harbour also assisted operations in the loft by supplying tools and materials to Mr White, and in doing so the upper part of his torso was in the loft and he was able to see, hear and sense what was going on.
7.	In order that Mr White should have some light to work by in the loft it was necessary to provide some temporary lighting.  It was, therefore, around the loft, at about shoulder height, that the run of festoon cable was fixed, into which had been fitted eight operative light sockets and bulbs.
8.	This festoon cable comprised a robust outer insulation layer and within, in separate sheaths of insulation, were two conductive inner cables.  The cable was fixed to the roof timbers using white plastic fixings through which a pin was hammered to the roof timbers, causing the U-shaped fixing to trap the cable against the timbers.
9.	The light sockets with the bulb holders were in two parts.  The part with the bulb socket had two sharp prongs and screwed into a base plate on the opposite face of the cable.  When the two parts are screwed together the prongs are forced through the outer insulation and inner insulation of the two inner cores in such a manner that they are offset to each other, and connected to the current.  Because the cable is located in specially designed seating, the cable should not deform or move in this process.  According to the expert evidence the use of festoon lighting is common in the construction and electrical industries.  Properly assembled it affords a safe and effective means of temporary lighting for work places when operations such as rewiring and fitting out are taking place.  The use of such lighting, given that it is properly assembled, accords with good practice and is safe.  Even, were it to be the case, that it was inadvertently left alive in the loft overnight it would be just as safe as leaving a domestic light on all night.  It might be wasteful but it would be safe.
10.	The judge was able to rule out certain possible causes of the fire e.g.
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. 
11.	He was further able positively to hold that the seat of the fire was in the loft, that some arcing occurred in the festoon cable about 3½ metres away from the plug and that the fire was therefore caused initially by the fact that the festoon lights were inadvertently left plugged in.  As I have said, there was nothing unsafe in that on its own; there must have been some co-operative cause.  Both defendants must have felt uneasy about that because they never revealed to those investigating the fire at the time that there was a festoon cable present at the site at all.  Mrs Drake, her expert and her legal advisers did not become aware that a festoon cable had been fitted until statements of factual and expert witnesses were exchanged on 31st January 2005.  Moreover, Mr Harbour asserted in evidence that the festoon cable was new at the time when it was fitted up on 26th June 2002.  The judge held, however, that it was not new and that Mr Harbour had been persuaded, by the fact that his liability insurance had run out, as the judge put it, “to gild the lily”.
12.	An important feature of the case was that the cable did not come ready fitted with light sockets; they had to be fitted.  Insofar as they had to be fitted onto a cable that had (as the judge found) been used before, it would be necessary to check that the insulation had not been unacceptably damaged by any previous fitting of light sockets and, in any event, to avoid placing the sockets in any place on the cable where they had previously been used.  It was very unlikely, said the claimant, that such examination did take place since Mr Harbour thought, wrongly, that the cable was a new cable.  In paragraph 46 of his judgment the judge held, positively, that Mr Harbour did not examine the cable before attaching the light sockets.  Before us, Mr James for Mr Harbour was constrained to accept that that was negligence on Mr Harbour’s part.
13.	As to causation the judge decided that the maxim “res ipsa loquitur” applied since the defendants were in sole control of the bungalow and its roof space when the fire broke out.  The defendants, therefore, had an evidential burden to discharge.  The position on the evidence was that no causation inconsistent with the defendants’ negligence had been established as showing an operative cause 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 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.
14.	Mr James for the appellant now submits
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.
Causation
15.	It is convenient to deal with causation first.  It seems to me that in a case where negligence has been found and the damage which has occurred is the sort of damage which one might expect to occur from the nature of the work which the defendants have been carrying out, a court should (as Chadwick LJ said in the slightly different context of Roadrunner v Dean [2003] EWCA Civ 1816 para 29)
“… 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.
16.	On any realistic view of the case (the facts of which occurred while the claimant was away from her home and while the defendants were working there) if the defendants were going to suggest that their negligence, in not examining the festoon cable before fitting the light sockets, did not cause the fire it was for them to suggest what such a cause might be.  There was in fact no evidence from which any of the defendants’ suggested causes could be inferred.  No examination of the cable took place either by the defendants at the time or by anyone after the fire.  That latter situation came about because the first defendant never volunteered to the fire officers that a festoon cable had been in operation in the loft until exchange of factual and expert witness statements occurred.  In that situation, there is just no evidence of the existence of a defect which could not be detected by the exercise of proper care.  The same is true of any potential looseness of the socket fitting or the existence of any inappropriate moisture.  In the absence of such evidence it is not surprising that the judge found as he did.
17.	As far as these two latter points are concerned (which formed the major part of Mr James’s argument before us), the matter does not stop there.  The defendants themselves never pleaded that the sockets were loose or that there was moisture inside them nor did their own expert (Dr Moncrieff) say that either of these factors could have caused the fire without any negligence on their part.  It was the claimant’s expert (Mr Slater) who introduced these possibilities, as a possible cause of the fire.  Mr James cross-examined Mr Slater with a view to getting him to agree that they could be excluded as causes of the fire presumably to divert the judge from any finding of negligence in that regard.  When this ambition failed, he then sought in his final speech (in what he accepted was a very compressed submission at 4/772) to say that they were indeed possible causes of the fire and on the basis of Mr Slater’s evidence inconsistent with negligence on the defendants’ part.  This was a submission which must have taken all of 20 seconds at the time and it is not surprising that the judge dealt with it equally briefly in para 53 of the judgment.  But the phrase “their [namely the defendants’] activity in assembling the light fittings onto the cable” covers both the concept of looseness and moisture aptly enough.
18.	I would therefore conclude not only that there was no evidence of loose fitting or moisture but also, if there had been such evidence, there was no evidence from the experts that any such cause was inconsistent with negligence.  It is indeed more likely that, if the fittings were loose or if there was moisture inside them, that was attributable to negligence on the part of the defendants than that it was not so attributable.
19.	I would, therefore, dismiss this appeal on the basis that the judge correctly held that, on the balance of probabilities, the first defendant’s negligence caused the fire.  If that is not the correct reading of para 53 of the judgment and the judge was in fact saying that the onus of proof was on the defendants to prove that their negligence did not cause the fire, and that they had failed to discharge that onus of proof, I would accept the invitation contained in the Respondent’s Notice and say that it is unnecessary to decide whether the judge was right to put the burden of proof on the defendants, because the claimant has discharged the burden of showing that, on the balance of probability, the defendants’ negligence caused the loss.
Res ipsa loquitur
20.	It is, therefore, unnecessary to consider whether the judge was entitled to rely on this maxim.  As Megaw LJ said in the case cited by the judge, Lloyd v West Midlands Gas Board [1971] 1 WLR 749, 755B, it is wrong to describe the maxim as a doctrine.  Rather it is a guide on the question whether the claimant had raised a case to answer or whether her case should fail regardless of any evidence called by the defendant.  On the present facts, there was undoubtedly a case to answer.  The more difficult question is whether if, on a proper analysis of the facts (in a case where the defendants have sole control of premises as they did at the relevant time in this case) there are competing causes of the loss one of which is consistent with negligence and the other (or others) of which can be shown to be inconsistent with negligence, it is the claimant or the defendant who fails because they cannot discharge the burden of proof.  I would prefer to resolve that conundrum in a case in which it truly arises.  That is not this case.
21.	For these reasons I would dismiss this appeal.
Lord Justice Toulson:
22.	I agree.
23.	The judge said that the state of the evidence at the end of the case was that an evidential burden was established by the claimant’s case.
24.	At that stage the judge had to weigh the evidence as a whole and decide whether he was satisfied, by direct proof or inference, that the fire had been caused by the negligent conduct of the defendant.  In that context, I confess that I do not find the reference to an evidential burden helpful, but I recognise that this may be a semantic point, depending on what is meant by the use of the term.  
25.	In the criminal law it has a distinct use when applied to excusatory circumstances.  The prosecution must always prove the positive ingredients of an offence.  As a general rule it must also disprove any “defences”, i.e. circumstances which would negate the defendant’s guilt, but only where there is material before the court to support the existence of such circumstances.  It is often said that there is an evidential burden on the defendant to provide that material, unless it has already emerged as part of the prosecution’s own evidence.  As a shorthand term, it serves a purpose in that context.
26.	I do not think that it generally serves a useful purpose in a civil action for negligence.  I would echo the words of Sopinka J in Snell v Farrell (1990) 72 DLR 4th 289, 301.  After referring to a number of authorities which spoke of the shifting of the secondary or evidential burden of proof or the burden of adducing evidence, he said:
“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.”
27.	The extent to which “positive or scientific proof of causation” is required must be a matter of judgment in each case and depends on the evidence as a whole.  There is also a significant difference between, on the one hand, relying on inference to establish both breach of duty and causation of loss and, on the other hand, relying on inference to find a causal connection between proven breach of duty and ensuing loss.
28.	In the absence of any positive evidence of breach of duty, merely to show that a claimant’s loss was consistent with breach of duty by the defendant would not prove breach of duty if it would also be consistent with a credible non-negligent explanation.  But where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism.  That is not a principle of law nor does it involve an alteration in the burden of proof; rather, it is a matter of applying common sense.  The court must consider any alternative theories of causation advanced by the defendant before reaching its conclusion about where the probability lies.  If it concludes that the only alternative suggestions put forward by the defendant are on balance improbable, that is likely to fortify the court’s conclusion that it is legitimate to infer that the loss was caused by the proven negligence.
29.	In this case the judge found that the first defendant was negligent in using old cabling for the festoon lighting without properly inspecting it.  He found that the cabling was the seat of the fire.  If the old cabling was damaged, using it without proper inspection carried with it the risk of causing such a fire.  The first defendant has put forward two suggested causes of the fire, loose fitting of the lamp holders on the festoon cable and moisture inside the lamp holders.  I do not see that either of those causes can be described as an inherently non-negligent cause, for either of them could be associated with a lack of proper inspection.  But in any event, for the reasons given by Longmore LJ, the judge was entitled to regard them as improbable explanations.  He was therefore entitled to conclude as a matter of probability that the fire resulted from the defendant’s established negligence, even though the claimant had not been able to demonstrate the exact mechanism which led to the arcing and over heating that ultimately caused the fire.
Lord Justice Waller:
30.	Whether an evidential burden plays a part seems to me to be largely a question of semantics but I agree with both judgments dismissing this appeal.