England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON
COUNTY COURT
HER HONOUR JUDGE BAUCHER
2YJ12521

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th June 2015

Lord Justice Tomlinson:

Introduction

1. This is by any standards a bizarre case.
2. The Claimant/Appellant Miss Graves and the Defendant/Respondent Mr Brouwer were in April 2010 next door neighbours at, respectively, numbers 9 and 11 Dibdin Road, Sutton. On 10 April 2010 Miss Graves' house was significantly damaged by fire. Re-building work involved Miss Graves and her family vacating the house for some eight months. Thirty minutes or so before the outbreak of the fire Mr Brouwer had set fire to two A4 size pieces of paper and two A4 size pieces of card in a narrow alleyway or access path which separates numbers 9 and 11. The alleyway is part of number 11, i.e. it belongs to Mr Brouwer, giving access from his front garden to his back garden. It was Miss Graves' case, pursued by her subrogated insurers, that the fire in her house was caused by an escape of the fire lit by Mr Brouwer on his property, and that in permitting such escape Mr Brouwer was negligent. Mr Brouwer denied that fire had escaped from the small fire set at his premises and caused the fire at number 11. Mr Brouwer also denied that he had been negligent.
3. The action was tried over three days in July 2014 before Her Honour Judge Baucher at the Central London County Court. Two weeks later the judge delivered an oral judgment of which we have an approved transcript. The judge found that the fire at number 9 had been caused by an escape from the fire at number 11. She went on however to find that the Defendant had not been negligent. Accordingly, she dismissed the claim.
4. The Claimant appeals against the judge's finding that the Defendant was not negligent. The Defendant seeks to uphold the dismissal of the claim on the additional ground that the judge should not have found that the fire at number 9 was caused by an escape of fire from number 11, and he cross-appeals accordingly.

The evidence and the facts found

5. The judge described the site of the incident in this way:-

"5. The building: The property at 9 Dibdin Road is a 1930's brick construction detached chalet style house comprising two floors with timber floors and roof trusses. The roof is pitched and tiled. At the time of the fire it is said to have been in a poor general state of repair. 9 Dibdin Road is separated from 11 Dibdin Road by, as per Mr Townsend's measurement, a 1.2 metre wide access path or 900 millimetres as per the evidence of Mr Brouwer which connects the front and rear gardens of number 11. The path is within the boundary and control of number 11 Dibdin Road with the roof eaves overhanging the boundary at a height of 2.8 metres to the underside of the soffit. The soffit at 9 Dibdin Road was of unpainted timber tongue and groove boarding. The eaves space above the soffit was filled with newspaper and cloth in all likelihood for the purposes of insulation. The infilling was visible in places beneath due to the poor condition of the timber. The chalet style construction of the premises meant that both the front and rear bedrooms had access to the eaves roof space via a cupboard door. This allowed for storage."

6. Mr Brouwer wished to effect secure disposal of (i) two pieces of paper because they were letters from his bank advising him of two new account PIN numbers, and (ii) two pieces of A4 card which were from the back of notepads on which, as an inveterate scribbler, he had written "facts and figures personal to [him]." He had no shredder so he decided to burn them.
7. He set fire to them on the concrete surface of the alleyway in the middle of the path, away from the walls of the two properties. It was a fine day with no noticeable breeze. Before lighting the papers at this location Mr Brouwer deployed his garden hose and had it with him. The water was turned on and it was "ready to shoot." The judge seems to have accepted his evidence that the material burned for perhaps two minutes and that the fire was both small and controlled. The judge seems also to have accepted his evidence that he watched the fire carefully throughout, that the flames rose only a few inches from the ground and that there were no sparks or smoke. The judge seems also to have accepted his account that the fire left only a small quantity of grey ash and appeared to have gone out completely, at which point, as the judge did find, "the remains were doused" or, as Mr Brouwer put it, he used his garden hose to spray water over the ashes to check that everything had been completely extinguished.
8. The judge rejected an allegation that the fire had been set against the wall of number 9 and thus directly under the eaves. She found, as I have recorded, that the fire was in the middle of the path. No measurements were made of the extent to which the eaves overhung the concrete path, although I do not think that this is of great materiality.
9. The only mechanism of fire transfer from number 11 to number 9 considered feasible by the fire experts who gave evidence at trial was the generation of a "flying brand." A flying brand is a piece of combustible material which has been ignited and rises in the air due to the draft caused by the flames and rising smoke from the fire. A glowing brand can cause a smouldering fire in a highly susceptible target fuel.
10. It was the evidence of Mr Townsend, the Defendant's fire expert, that flying brands can be seen. The judge however recorded that "there is no evidence that Mr Brouwer did see any brand." Mrs Brouwer, was also, quite coincidentally, present during, and watched, the entire duration of the fire in the alleyway and the subsequent dousing. The judge recorded her evidence that there were no flying embers. The judge recorded that she accepted Mrs Brouwer's evidence. Whilst the judge did not specifically say that she accepted Mrs Brouwer's evidence that she observed no flying brands, it is I think a fair reading of her judgment that she did. One of the difficulties with the judge's judgment is that a substantial part of it, under the rubric "the evidence in the case", consists of what in the Criminal Division of this court would be castigated as a "notebook summing-up." It is simply a recitation of the evidence as recorded by the judge in her notebook. It is followed by a section under the rubric "Findings" in which clear and relevant findings are indeed made, but they do not, perhaps unsurprisingly, extend to the entirety of the matters canvassed in the evidence as recorded by the judge. It is thus not always easy to know if a finding has been made on a relevant point.
11. The judge made no express finding as to the seat of the fire at number 9. The London Fire Brigade (LFB), which fought and extinguished the fire, despatched the duty specialist fire investigator, Mr John Galvin, to conduct an investigation on the day of the fire. He arrived at 16.10. It is apparent from his standard form report that the principal purpose of his attendance was to compile data for statistical analysis. He recorded that the fire started in the roof space, and that the "item ignited first" was "other textiles." The "supposed action or defect that led to the fire" is recorded as "Bonfire going out of control." The "supposed source of ignition" is recorded as "spread from secondary fire."
12. There was also in evidence a statement from Mr Galvin. The judge cited from it the following passages:-

"I spoke to the officer in charge and he informed me that he had been told the neighbour at number 11 had lit a bonfire between number 9 and number 11. He further informed me that Mr Brouwer had returned to see smoke emitting from number 9.

My next task was to go into number 9 on the top floor to see where the fire had originated. It had originated in the Mansard section of the roof that was accessed through cupboard doors into the eaves part of the roof. I examined the area for wiring but none was found in that area. I also looked at the flue of number 11 to see whether that was in close proximity but it was not. The electrical wiring above the bedrooms was examined and the wiring associated with the halogen downlighters in the bathroom at first floor level was also examined. This was determined not to be a cause of the fire. There was a lot of paper and fabrics in the eaves cupboard which were very combustible materials. I also noted that there were gaps between the soffits and flank wall of number 9 and that these gaps had been stuffed with old newspaper. I noted that the gap between the flank wall and the soffit was around three quarters of an inch.

From my experience, a feature noted at roof fires is the presence of birds' nests which ignite. There is a process which is known as "anting" where birds bring back cigarettes to the nest. I saw no evidence of birds' nests at number 9 Dibdin Road but due to the fire damage they could have been destroyed. I examined the alleyway between number 9 and number 11. The surface was entirely covered by fallen tiles and other roof materials. I noted the presence of brown and green wheelie bins and a quantity of paint pots. None of these showed any effects of heat or fire. I also noted the plastic uPVC windows in number 11 but these also were undamaged. The owner of number 11 admitted that there was a small fire in the alleyway between numbers 9 and 11 but it was apparent that that fire was insufficient to cause any damage to the plastic items I inspected. If there was a fire of a reasonable size producing a lot of smoke I would have expected t have seen smoke deposits on the flank walls but I could find no evidence of any smoke deposits.

I took a photograph of the wiring. I examined it carefully – this was of the halogen downlighters – and determined that it had been poorly installed but I was satisfied that this was not the cause of the fire. I also noted that the damage in the eaves to the materials stored in it was from the top down. This would indicate that the fire had spread up through the void and ignited the material at the top and then burned down. The note of my conversation with Mr Brouwer states that he was burning refuse between number 11.

I recorded my conclusion as to the most probably (sic) cause of the fire being embers from the fire in the alleyway combusting materials in the roof space of number 9 and I have recorded the fire as accidental. There were three main categories: accidental, deliberate or not known. Because the fire in the alleyway was in a confined space the fire or the flames would be elongated and subjected to the effects of air movement. It would be impossible to say whether, on a fire with two sheets of paper and two sheets of card, an ember would have risen high enough because there are so many different variables."

13. The insurers of number 9, Halifax General Insurance Services Limited, appointed contractors to make safe and clear the site of the fire at number 9. They did so after Mr Galvin had completed his investigation. A subsequent investigation carried out on behalf of the Claimant's insurers by a Mr Darren Cronk of Messrs Hawkins was therefore of little value.
14. It is I think a fair reading of paragraph 22 of the judge's judgment that she found that the fire started in the area of the eaves closest to ("directly above") the location of the fire in the alleyway, and the trial certainly seems to have proceeded on that basis. It is also I think likely that the judge accepted as accurate in this respect evidence from Mr Moore, the partner of the Claimant, who was in the garden of number 9 at about 2.30pm and smelled smoke, that at a relatively early stage in the development of the fire he saw flames at the bottom edge of the roof rafters, just under the eaves and at a point "directly above where the bonfire was positioned."
15. The five children of Mr Moore and the Claimant, aged between 16 and 7 were in the house at the time of the fire.
16. The judge found that Mr Brouwer had conducted a "risk assessment" the day before the fire. The judge recorded the following evidence from the Defendant:-

"The defence case: Mr Brouwer: He said that on the previous day, that is 9^th April, he had received from his bank notification of two new account pin numbers:

"They were printed on A4 letters and I had also had two pieces of A4 card which I needed to dispose of securely. I did not have a shredder so I decided that the best option was to burn them. I did not want to do so inside the house as I thought it might set off my smoke alarms so I went out into the back garden to see where the safest place would be. I was concerned about burning them on the grass or close to the nearby hedges or trees and decided that the best location was in the alley between my property and 9 Dibdin Road. The ground surface was concrete with a brick wall on each side and no risk of the fire spreading. I was interrupted by a telephone call which gave me good news about the value of one of my properties. I went back into the garden and saw Miss Graves and Mr Moore in the garden so I went to talk to them.

Miss Graves asked why I seemed happy and I mentioned my good news. I also took the opportunity to tell them both that I was going to burn a couple of bits of paper down the side of the house the next day and Miss Graves replied, 'Let me know and I'll stick something on it.'"

The judge found at paragraph 24 of her judgment that Mr Brouwer had "mentioned the fire to the Claimant" which seems to indicate that she accepted this account put forward by the Defendant.

17. The judge also recorded the following evidence from Mr Brouwer:-

"No more than 30 minutes later [i.e. after dousing of the ashes] I heard crackling noises and, getting out of the shed, I saw smoke coming from the roof eaves of 9 Dibdin Road. I immediately ran to my garden hose and started spraying water towards the area from where the smoke was coming and at the same time screamed in the direction of the property to alert Miss Graves and Mr Moore. It seemed a long time but eventually Josh came out and looked at me over the fence. He seemed very calm and in response to my warnings said, 'we know Rick, we know.' I could not understand why he was so calm when the roof was on fire and I continued to shout at him. Josh then disappeared and Mr Moore looked over the fence. He also seemed very calm and asked me what had happened. The fire brigade arrived and I felt shocked and distressed at seeing the fire. Mr Moore came up to me and said, 'You will have to buy the house off us now, won't you?'"

The judge makes no express findings about this evidence, although she appears to have accepted Mr Brouwer to be an honest and reliable witness. She notes that he was in shock at the time described in the passage which I have just cited, and then records, somewhat enigmatically, "it follows that whether he recalled Mr Moore swearing or appearing calm has to be considered in that context."

18. There was a dispute at trial as to the extent to which a substantial extension to the house undertaken at the same time as the remedial work increased the cost of that work and/or formed part of the claim. Miss Graves stated that there had been a separate specification for the extension work and that "various reductions" had been made "in areas of the work" to assist her so that she could have the extension. The work "had been paid for by this means and various loans." The judge rejected "the contention [that] the extension increased the cost of the building works." She also recorded the puzzling evidence of Miss Graves to the effect that "she had also not used the contents insurance to replace the contents of her home."

The expert evidence

19. The Claimant's fire expert at trial, Mr Horton, included in his report the following:-

"Having reviewed the evidence there is a notable absence and that is of the official fire investigation report.

6.1.1. I would have anticipated that a fire of this magnitude would have been subject to investigation by the fire officer in charge of the incident and possibly the specialist fire investigation team.

6.1.2. I have been informed by my instructing solicitors that LFEPA have confirmed that such a report was not drafted and only an incident report exists which confirms the conclusion of their investigation with the cause being listed as 'Bonfire going out of control'.

6.1.3. I have received a copy of the Witness statement of John Galvin, fire investigation officer LFEPA who conducted an investigation of the incident in question.

6.1.4. A further report is included which has been provided by Hawkins Forensic which was completed 5 days after the incident (Ref: L57/51977).

6.1.5. The report confirms the view that the fire in 9, Dibdin Road was likely to have started in the eaves approximately half way along the alleyway. From the images presented with that report this would appear to be a reasonable conclusion given the damage to the lower ends of the rafters in the images and their location.

6.1.6. The report concludes that 'The fire in the roof of Number 9 Dibdin Road was almost certainly stared by hot gases or glowing embers from the bonfire that was lit in the alleyway below in Number 11 which travelled up and ignited combustible material in the eaves. The fire was not caused by an electrical fault.'

6.1.7. Whilst this report (Ref: L57/51977) is in more depth it does confirm that the author of that report could not find an electrical cause of fire in the location of the origin of the fire but goes not further than this in exploring other potential causes.

6.1.8. I would have anticipated that an LFEP investigation of the fire would have mentioned all potential causes of fire, even if only for the purposes of elimination.

6.1.9. There is no mention for example of a consideration of arson, smoking materials, cooking/heating appliances, etc.

6.1.10. Given the circumstances of the incident this may appear to be a reasonable perspective, however, it does appear to leave some questions un-considered.

…

10.5. In the author's experience it is feasible for flying brands to be produced by fires involving burning paper and card, although it was not possible to generate these from the ad-hoc experiments conducted with one or two pieces of burning A4 paper.

10.6. From the author's personal experience where amounts of paper (of the order of say a newspaper or more) are burned then flying brands can be generated.

…

12.1. The lack of a formal fire investigation report does leave some questions unanswered, however what is clear is that the potential sources of ignition for the fire at 9 Dibdin Road were limited.

12.2. In the absence of any other sources of ignition, the only realistic causes of the fire in order of likelihood (the most likely first) were either:

12.2.1. the fire started by Mr Brouwer spreading to Number 9 Dibdin Road; or

12.2.2. Arson by Mr Brouwer; or

12.2.3. Arson by the occupants of 9 Dibdin Road.

12.3. It is the author's opinion that the most likely cause of the fire in 9 Dibdin Road was the fire started by Mr Brouwer there being no evidence to suggest arson by either the Claimant or Defendant

12.4. In the author's opinion it is probable that either the fire was larger than described in the Defendant's notes or else a flying brand was generated which was the source of ignition leading to the fire in 9 Dibdin Road.

12.5. it is the author's opinion that Arson is unlikely given there has been no substantive evidence provided to support this hypothesis and given the absence of any clear motive."

20. The Defendant's fire expert at trial, Mr Townsend, included in his report the following:-

"5.1.1. I consider the physical and photographic evidence available and the research and tests conducted tend to show the likelihood of ignition in the manner recorded by LFB and Hawkins, to be of a low order.

5.1.2. Flying brands were only produced when the test fires were agitated and the brands were then not capable of remaining viable at a greater height than 1 m.

…

5.1.8. Mr J Galvin's description of burn patterns within the eaves area appear to be consistent with external or internal fire origin.

5.1.9. From Mr J Galvin's statement:

I also noted that the damage in the eaves to the materials stored in it was from the top down. This would indicate that the fire had spread up through the void and ignited the material at the top and then burnt down.

5.1.10. This is a curious observation. It clearly states that damage had been from the top down. I consider this is potentially significant.

5.1.11. The analysis of fire spread going up through the insulation and then burning down appears to be an assumption of burn characteristics if the fire had originated externally.

5.1.12. There is no consideration of fire origin from the top.

…

6.1.1. I consider my tests have shown that the possibility of a flying ember or sufficient hot gasses being emitted from such a small fire source is of such a low order as to render it unlikely. I believe this fire may have been caused by other means.

6.1.2. The influence of wind directly on the fire source is not relevant in this case since it was not severe, the area was wind-shaded and the fire source would be unlikely to have produced a viable brand capable of travelling further than 1 m in any direction.

6.1.3. The principal reason of the non-viability of flying brands in this case is the lack of a substantial heat source. It is the heat at the seat of any fire and the necessary ventilation of the fire that causes the up-draft and buoyant fire plume within which the products of combustion and hot gasses (sic) travel.

6.1.4. The hotter the fire, the greater ability it has of lifting large particles. The buoyant plume of large fires often results in large, viable embers travelling considerable distance. The fire source at this incident appears to have been incapable of lifting any large particle, thus any particle capable of maintaining a glowing ember was so small that it self-extinguished rapidly and fell.

6.1.5. To create a viable ember capable of travelling the 2.8 m required then lodging in the combustible contents within the eaves of No 9, the fire source would need to have been much more substantial than that stated by Mr M G Brouwer or of those tested for the purpose of this report."

21. In the usual way the experts produced a joint statement. In material part it reads as follows:-

"REPORTS AND DOCUMENTATION

"WE AGREE that the reports and findings of the LFB (Statement dated February 15, 2013) and Hawkins (report dated April 19, 2010) appear coloured by the known and not denied existence of an open fire source in the vicinity of the area of origin (i.e. the items ignited by Mr Brouwer in the alleyway between both addresses).

WE AGREE that key information appears not to have been sought at the time of the original investigation (LFB and Hawkins) Specifically:

Locations and actions of other persons present at the material time.

The nature and quantity of items burned by Mr Brouwer.

Any other item of potential forensic interest in the debris at the alleyway.

Interviews, informal and formal, of all relevant persons on site at the material time.

WE AGREE that the lack of such fundamental information hampers the efficient determination of cause and effect.

We agree that the investigations appear not to have considered and have not listed and discussed all potential causes in a structured and considered manner that would be standard practice (Ref: Kirks Fire Investigation, Chapters one and seventeen: Scientific method - , NFPA 921 Chapter two: Methodology) specifically in this case:

Arson

Smoking

Juvenile fire setting

WE AGREE that the size of fire and the items burned at the alleyway cannot now be verified by physical, forensic evidence. This renders reliable assessment of cause and effect in relation to those items speculative. We each defer to our respective tests and modelling in this regard.

WE AGREE that if the fire at the alleyway had been as stated by Mr Brouwer (two sheets of paper and two cards) then the likelihood of there having been sufficient and viable ember transfer to the eaves of No 9 is of a low order.

THE PATTERN OF FIRE DAMAGE

WE AGREE that not having attended the scene in the immediate aftermath of the fire we are not able to make any definitive comment in regard to burn patterns.

THE CAUSE OF THE FIRE

WE AGREE that there appears to be no record of any physical evidence as to the cause of the fire.

WE AGREE that as stated above, all potential causes of fire appear not to have been given full consideration and thus cannot be eliminated.

THE ORIGIN OF THE FIRE

WE AGREE that the origin of the fire at number 9 has not been absolutely established.

Most Likely Cause of the fire based on the evidence available.

WE DISAGREE that the most likely cause of the fire based on the evidence, flawed as it is, was that the fire was caused by the actions of the defendant.

Mr D TOWNSEND considers that the material ignited by Mr Brouwer would not have been capable of emitting ember of sufficient energy or duration to transfer viable incandescent embers to the eaves of the building. Further, that there is witness evidence to corroborate the amount of material burned by Mr Brouwer and no evidence to refute it.

Mr D TOWNSEND considers that the physical evidence is such that it cannot be reasonably stated or inferred that the amount of material burned by Mr Brouwer may have been sufficient to result in viable embers at the eaves of the building.

Mr D TOWNSEND considers that the cause of the fire was most likely a deliberate or reckless act at or within the access cupboard at the eaves of number 9, Dibden Road. It is unfortunate that evidence for such hypothesis had not been sought but there are inconsistencies in timings and accounts plus personal circumstances and post-fire events that may be worthy of further, possibly criminal, investigation.

Mr G Horton considers that based on the evidence presented, that the most likely cause of the fire at 9 Dibdin Road was as a result of the fire started by Mr Brouwer.

SUMMARY

WE AGREE that the case lacks physical, forensic evidence. This has hampered a reliable determination of the origin of the fire at 9, Didden Road. Such evidence may have been obtainable. The case also relies on non-independent witness accounts."

22. In cross examination at trial Mr Townsend gave it as his opinion that the materials burned, as described by Mr Brouwer, would have been incapable of producing the ember that would be required. That is consistent with what he had said at 5.1.2 and 6.1.5 of his own report. In the course of what appears to have been a somewhat hectoring cross-examination it was pointed out that this was not however how he had put it at paragraph 6.1.1, quoted above. It is also of course not consistent with how the matter was put in the Joint Statement. After Mr Townsend had been reminded of how he had expressed himself at paragraph 6.1.1, there occurred the following exchange:-

"Q. Yet, you come into the witness box before her Honour and you say that the fire is incapable of having caused (inaudible). I want to know why you have changed your position, Mr Townsend.

A. I apologise for the use of the word, then, your Honour.

Q. Which word are you apologising for?

A. Incapable.

Q. Incapable.

A. Because I do consider it to be of an extremely low order – a very low order – so as to render it to be unlikely.

Q. Unlikely or low order. That is your language. Yes?

A. Yes.

Q. Correct.

A. As stated and as (inaudible).

Q. Not impossible. Yes? Not impossible, not to be discounted, unlikely or of a low order. They are your words, not mine. Yes?

A. That is correct.

Q. Right. What you mean by that, Mr Townsend, is that, objectively – yes? The percentage chance of that small fire causing this damage in these eaves is not impossible but, objectively, unlikely. Yes?

A. I would not look at in terms of percentages, your Honour, but I would –

Q. I was not aware that I was doing so – objectively, unlikely.

A. Objectively, unlikely.

Q. Right.

A. Correct.

Q. This fire, though, had a cause, did it not?

A. Yes, your Honour.

Q. We have gone through each and every possible cause.

A. Yes, your Honour.

Q. The only possible cause left after that analysis – yes? – is the fire in the alley, is it not?

A. No. The possible causes are still actions taken by persons unknown.

Q. I understand. You keep an eye on your arson thesis. Yes? I will leave her Honour to judge that; we will not (inaudible) it anymore. Parking arson, is there any other cause?

A. I would say that is highly unlikely.

Q. Is there any other cause?

A. In my opinion, no.

Q. No. If the court takes the view - all right? – that arson played no part in this, the likely cause of the fire, on the balance of probabilities, was the fire in the alley, was it not?

A. That is still an improbably cause, in my opinion, because of the tests and the observations I made.

Q. I understand. Improbable but still –

A. Yes.

Q. – On the balance of probabilities, having eliminated all the evidence either of being of no account at all or your arson theory, it is, on the balance of probabilities, the most likely, is it not?

MR. DEMACHKIE: We are getting into the realm of legal submissions here, especially when we have the uncertainty with regard to arson, which the witness has been very clear –

THE JUDGE: I have got the point. I think it is a valid question.

MR. WESTON: Thank you.

MR. DEMACHKIE: Understood.

THE JUDGE: It is a matter that is causing me some concern, so I would be happy to receive the answer.

MR. WESTON: What is your answer, Mr Townsend?

A. I understand entirely that, if the court deems that arson or deliberate fire setting in any manner is unlikely or less implausible that the fire (inaudible) from the items lit in the alley, then that would be the decision.

Q. That would be the…?

A. That would be the finding.

Q. Right.

A. Yes.

Q. I understand that. All of that analysis you have just done is based on the fire being as you tested it and as Mr Brouwer described it. Yes? That is what you say in your report.

A. Yes, your Honour."

Mr Weston then proceeded to cross-examine Mr Townsend to the effect that the fire in the alleyway might have been bigger than Mr Brouwer described.

The judge's conclusion - causation

23. The judge's conclusion on causation is contained in the following passage in her judgment:-

"21. …

Mr Demachkie submits that as the claimant has failed to prove her case on the balance of probability that it matters not how likely it is relevant to other causes. Put simply, he says the claimant has not proved her case. He asserts this is based on the expert evidence stating from his closing submissions.

…

Mr Demachkie further contends:

"The experts have corroborated this during the trial. The various responses in which this was confirmed will have been noted. The only point to draw to the court's attention was Mr Houghton confirming under cross-examination that, on the balance of probabilities, the fire as described by the defendant would not have caused the house fire at number 9."

However, this is to ignore the final exchange between Mr Weston, the claimant's counsel, and Mr Townsend, the defendant's expert, which was as follows:

"If the court takes the view that arson did not cause the fire then, on balance of probability, it must be the cause even if improbable."

To which the answer was:

"If the court deems arson unlikely or less plausible than the fire of an ember from the items lit, then that would be the conclusion."

It was put:

"That is as you test it and Mr Brouwer describes?"

To which the answer was: "Yes." I consider that exchange material. It was a significant shift of view. Had Mr Townsend not conceded as he did, given Mr Houghton had conceded in cross-examination that, on the balance of probabilities, the fire, as described by the defendant, could not have caused the house fire at number 9 then I would have acceded to Mr Demachkie's submission.

22. I do not consider that Mr Weston's submission re: the balance of probability is correct. His client had to prove, on the balance of probabilities, that the cause of the fire was the fire in the alleyway. It was not a matter of the court simply assessing the time frame of events, the location of the fire and its seat. That might have been so in the absence of expert evidence. However, there was expert evidence before the court and his own expert's conclusion was that the fire was not caused, on the balance of probability, by an alleyway fire. That would have been the end of the matter had he not succeeded in extracting the concession from Mr Townsend. However, as the defendant's own expert takes the view the cause of the house fire, on the balance of probability, was the alley fire (and the maintenance throughout by Mr Houghton, the fire in the alleyway was the cause of the fire, albeit not on the balance of probability, this court cannot be doubtful as to the real cause of the loss. The only realistic possibility proffered by Mr Townsend was arson. I reject that possibility. It would have required an unknown person to have appreciated when Mr Brouwer was about to start his fire and to start it in an area which was directly above the location. Realistically, it would have had to have been a member of the Graves/Moore family. As Mr Brouwer conceded in his evidence that he had not seen any strangers about, that is fanciful in the extreme. It was the alley fire. It follows, therefore, that the claimant succeeds on causation."

Causation - discussion

24. In an earlier passage the judge made express reference to Fosse Motor Engineers v Conde Nast Distributors Limited [2008] EWHC 2037 (TCC), identifying as the key passage paragraphs 61-68 where Akenhead J cited extensively from the well-known speech of Lord Brandon in Rhesa Shipping Co v Edmunds, The Popi M, [1985] 1 WLR 948, including the following passages:-

"My Lords, the appeal does not raise any question of law, except possibly the question what is meant by proof of a case "on a balance of probabilities." Nor do underwriters challenge before your Lordships any of the primary findings of fact made by Bingham J. The question, and the sole question, which your Lordships have to decide is whether, on the basis of those primary findings of fact, Bingham J. and the Court of Appeal were justified in drawing the inference that the ship was, on a balance of probabilities, lost by perils of the sea.

In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.

The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay upon them.

This second matter appears clearly from certain observations of Scrutton L.J. in La Compania Martiartu v. The Corporation of The Royal Exchange Assurance [1923] K.B. 650. That was a case in which the Court of Appeal, reversing the trial judge, found that the ship in respect of which her owners had claimed for a total loss by perils of the sea, had in fact been scuttled with the connivance of those owners. Having made that finding, Scrutton L.J. went on to say, at p. 657:

"This view renders it unnecessary finally to discuss the burden of proof, but in my present view, if there are circumstances suggesting that another cause than a peril insured against was the dominant or effective cause of the entry of sea water into the ship . . . and an examination of all the evidence leaves the Court doubtful what is the real cause of the loss, the assured has failed to prove his case."

While these observations of Scrutton L.J. were, having regard to his affirmative finding of scuttling, obiter dicta only, I am of opinion that they correctly state the principle of law applicable. Indeed counsel for the shipowners did not contend otherwise.

…

My Lords, the late Sir Arthur Conan Doyle in his book "The Sign of Four", describes his hero, Mr. Sherlock Holmes, as saying to the latter's friend, Dr. Watson: "how often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J. decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.

In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned.

The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so.

There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver's examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out.

The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.

In my opinion Bingham J. adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them."

Akenhead J also there cited the following passage from the judgment of Thomas LJ, as he then was, in Ide v ATB Sales [2008] EWCA Civ 424 at paragraph 6:-

"As a matter of common sense it will usually be safe for a judge to conclude, where there are two competing theories before him neither of which is improbable, that having rejected one it is logical to accept the other as being the cause on the balance of probabilities. It was accepted in the course of argument on behalf of the appellant that, as a matter of principle, if there were only three possible causes of an event, then it was permissible for a judge to approach the matter by analysing each of those causes. If he ranked those causes in terms of probability and concluded that one was more probable than the others, then provided those were the only three possible causes, he was entitled to conclude that the one he considered most probable, was the probable cause of the event provided it was not improbable."

I regard that passage as containing a sound guide to safe decision making. The judge also referred to paragraphs 100-102 in the judgment of His Honour Judge Toulmin in Amsprop Ltd v I.T.W Ltd [2009] EWHC 2689 (TCC) as being key. At paragraph 101 Judge Toulmin cited the following passage from the judgment of Waller LJ in Kiani v Land Rover Ltd [2006] EWCA Civ 880 at paragraph 30:-

"I do not myself think it is false logic to reason where only two possibilities are under consideration, both of which seem unlikely, if one seems much less likely than the other the less likely can be discounted thus making the first likely to happen on the balance of probabilities."

25. In Kiani the claimant, an industrial cleaner, had been found relatively uninjured but asphyxiated in a sub-floor tank containing coolant at the Land Rover plant in Solihull which he was cleaning as part of his work. It was common ground that there were only two possible causes of his being in the tank – either he had accidentally fallen in or he had committed suicide. The trial judge found it hard to visualise how Mr Kiani could have fallen in accidentally, but bore in mind that accidents happen in the most unlikely of ways. He regarded suicide as less than probable. It was in this context that Waller LJ made the observation which he did. He also said, at paragraph 32:-

"In my view therefore the recorder was entitled to take the view that suicide was "less than probable". If the only evidence before the recorder had established that an accident was "impossible", I would accept that the recorder would either have had to decide that the "less than probable" had happened or hold that the claimant had failed to prove his case. But the evidence did not go so far as to say that an accident was impossible "whatever the facts". The recorder took the view on the evidence before him unconsidered as it would seem by Mr Rawden, that there was a way in which Mr Kiani could have accidentally fallen into the tank when going over to have a look, and overbalancing whilst trying to see into the tank."

26. We were referred, although the judge below was not, to the decision of this court in Milton Keynes Borough Council v Nulty & others [2013] 1WLR 1183 in which Toulson LJ, as he then was, essayed a helpful distillation of the authorities. This too was a fire case, in which the trial judge had concluded that there were only two possible causes, either that it had been caused by arcing of an electric cable or by a cigarette carelessly discarded by an experienced electrical engineer. Having cited the first passage above from the judgment of Waller LJ in Kiani, the judge concluded that "it might be regarded as unlikely that an experienced electrical engineer, who had in the past been a part-time fireman, would choose to smoke in a building to which he knew a no-smoking policy applied and then discard the cigarette end – albeit one that he thought he had stubbed out – into flammable waste lying on the floor. But if the only other possible causes of this fire are very much less likely, as I find they are, then in law the discarded cigarette becomes the probable cause of the first fire. As Waller LJ observed in the passage that I have emphasised above, this process of reasoning is not false logic."
27. The Court of Appeal held that the trial judge had been wrong to adopt this approach. After discussing the speech of Lord Brandon in The Popi M, Toulson LJ said:-

"34. A case based on circumstantial evidence depends for its cogency on the combination of relevant circumstances and the likelihood or unlikelihood of coincidence. A party advancing it argues that the circumstances can only or most probably be accounted for by the explanation which it suggests. Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. As Lord Mance observed in Datec Electronics Holdings Limited v UPS limited [2007] UKHL 23, [2007] 1 WLR 1325, at 48 and 50, there is an inherent risk that a systematic consideration of the possibilities could become a process of elimination "leading to no more than a conclusion regarding the least unlikely cause of loss", which was the fault identified in The Popi M. So at the end of any such systematic analysis, the court has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact: there is no rule of law that it must do so. I do not read any of the statements in any of the other authorities to which we were referred as intending to suggest otherwise.

…

39. In expressing himself in those terms, the judge went further than he needed in order to answer the question which he had raised at [215]. Having concluded that a cigarette end carelessly discarded by Mr Nulty was the most probable cause of the fire, he posed the question whether on the authorities that finding was "sufficient" for him to hold that the council had discharged the burden of proof.

40. The answer to that question was yes, provided (as I think is implicit in his reasoning) that he was satisfied on all the evidence that the case for believing that Mr Nulty caused the fire was stronger than the case for not coming to that belief. The proviso is important as illustrated and explained in the Popi M. In that case the combined effect of the gaps in the court's knowledge and the cogency of the factors telling against the theory of a collision with a submarine was that the court could not properly be persuaded that the case for believing the submarine theory was stronger than the case for remaining agnostic."

The court did however conclude that the judge had reached the right conclusion on the facts. In his final paragraph Toulson LJ concluded:-

"69. The judge's finding that the cause of the fire was "very much less likely" to have been arcing of the Boa cable than the cigarette end discarded by Mr Nulty was reached after a painstaking examination of the evidence and was properly open to him. Rational analysis of the Boa cable theory showed that it was highly improbable. It would have required a remarkable combination of unlikely events. The objection to the discarded cigarette end theory was of a different nature. There was no comparable scientific or practical improbability about it. Mr Nulty was working alone at the relevant place and time. He had the opportunity and could well have had the temptation to do what the council alleged. The objection to it was that he would not have been expected to behave in such a way, but the circumstantial evidence that he did so on this occasion was compelling. In my view the judge was right to find that he did so and I would dismiss the appeal."

28. The present case is in some ways the obverse of Milton Keynes, although I would stress at the outset one very important distinguishing feature which is that in that case there had been a thorough forensic investigation into the fire. In this case the flying ember theory was scientifically improbable. The arson theory, which ought really to be described, as did the experts, as the arson or juvenile fire setting theory, the judge rejected as fanciful, but there was no comparable scientific improbability about it. It was a theory which had been neither investigated nor properly considered. By the same token there had been no consideration of smoking materials or cooking and heating appliances. One possibility discussed at trial was the phenomenon known as "anting" – birds picking up discarded cigarettes and returning them to their nest. This is apparently an unusual but occasional cause of fires. That too had not been investigated, save to the extent that Mr Cronk of Hawkins recorded Mr Moore as telling him that he was aware of some birds nests in the eaves on the opposite side of the house, next to number 7, but did not think that there had been any birds nesting under the eaves adjacent to number 11, where the fire occurred. Mr Townsend did not think it a likely cause.
29. It is plain from the concluding part of paragraph 21 of her judgment, which I have reproduced at paragraph 23 above, that the judge regarded one single answer from Mr Townsend as critical to the outcome of the enquiry into causation. Without it she would have found that the Claimant had failed to prove that the cause of the house fire was an escape of fire from the alleyway. The judge characterised the single answer as both a significant shift of view and a concession. With respect to the judge the answer to which she attached such significance was neither a shift of view nor a concession. The question or questions which elicited it ought never to have been put to Mr Townsend since it, or they, invited him to express a view on a conclusion of mixed fact and law which it was the task of the judge to reach. Moreover the question was put upon a false premise, that identified by Toulson LJ in Milton Keynes, that if arson was excluded then by definition the alleyway fire had to be regarded as, on the balance of probabilities, the cause of the house fire. In my view Mr Townsend was doing no more than giving it as his understanding of the law that if the judge rejected arson as a more (although he said less) implausible cause of the house fire than the fire in the alleyway, then the decision of the court, or "the finding", would be that the alleyway fire was the cause of the house fire. Moreover the judge seems to have misunderstood his answer. In paragraph 22 she says that "the defendant's own expert takes the view the cause of the house fire, on the balance of probabilities, was the alley fire." With respect, he did not. The judge went on to say that "the only realistic possibility proffered by Mr Townsend was arson." In the context of the relevant questions and answer that was not accurate either. The question of law had been posed of Mr Townsend in a manner which suggested that there were only two possible outcomes, ignoring the possibility that the Claimant had simply failed to prove the cause of the house fire.
30. It follows that the process of reasoning which led the judge to conclude that the Claimant succeeded on causation was fatally flawed. The judge did not stand back and ask herself the ultimate question whether she was satisfied that the suggested explanation was more likely than not to be true. She did not have regard to the significant gaps in the court's knowledge brought about by the lack of any adequate forensic investigation in the immediate aftermath of the fire. She did not ask herself whether the case for believing that the fire was caused in this way was stronger than the case for not coming to that belief, always bearing in mind that she was not obliged to come to a conclusion at all, and that a permissible outcome was that the inadequacy of the investigation conducted on the Claimant's behalf gave rise to a situation in which the Claimant was unable to prove on the balance of probabilities what had caused the house fire.
31. I do not overlook that, having expressed her conclusion on the basis of Mr Townsend's answer, the judge went on to reject the "arson" theory, and that there is no formal cross-appeal on that point. However the Respondents' Notice does contend that had the judge properly considered the evidence, she would have held that the Claimant had failed to discharge the burden of proof on the issue of causation. The judge could not possibly have concluded, on the basis of the evidence before her, that the house fire had been deliberately set, and the Defendant had no case to that effect. Before expressing her conclusion on arson, the judge had already indicated that, but for the critical answer or answers from Mr Townsend, she would have acceded to Mr Demachkie's submission that the Claimant had simply not proved her case. I infer therefore that she would have reached that conclusion, quite properly, without further consideration of the arson theory, which was simply unavailable to her as a proved cause. The judge had no need to reach a positive conclusion either way on the arson theory, and she had no evidential material on which to do so. The judge was I think drawn into expressing an unnecessary conclusion about arson by the formulation of the question to Mr Townsend, the answer to which she regarded as determinative of the case. On any view however the answer given by Mr Townsend was not one which could justify departing from the conclusion to which she had otherwise come, which was that the Claimant had failed to prove her case. I also bear in mind that the starting point for the discussion at trial was the fire experts' agreement in their joint statement that "all potential causes of fire appear not to have been given full consideration and thus cannot be eliminated." As Lord Brandon pointed out in The Popi M, at page 956, "there are cases… in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for [the judge] to take." That was in my judgment the position here.
32. I have well in mind the caution which an appellate court should observe before reversing a trial judge's evaluation of the facts. We were rightly reminded of the judgment of Clarke LJ in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577, which contains a masterly exposition of the approach to be adopted. But we are not here concerned with the judge's findings of primary fact, or of the impression made by the witnesses. We are essentially concerned with a process of legal reasoning on all fours with that which the House of Lords considered in The Popi M.
33. I would therefore allow the cross-appeal and dismiss the appeal on that ground alone. That renders it strictly unnecessary to consider the issue of negligence. However we heard argument on this point and I propose therefore to state my conclusion on it.

The judge's conclusion - negligence

34. The judge expressed her conclusion at paragraph 23 of her judgment in this way:-

"23. Was the defendant negligent? I have found, as a fact, that the fire was as described by the defendant, Mr Brouwer, namely, two pieces of card and two pieces of paper. I also find that he conducted a risk assessment the day before and, to some extent, on the day of the incident whereby he maintained the location. In cross-examination the essence of the exchange with this issue was:

"I chose not to burn close to the hedges. I am a very cautious person and I see green and brown as flammable and that is why I chose to go down the alleyway as concrete and brick which spell to me non-flammable."

He said further in that exchange in relation to page 511:

"That's a big area. It was about three feet. The alleyway is 1.2 metres and I disagree."

It was asked if the alleyway is 1.2 metres and he said:

"No. It was 900 millimetres. I measured the alleyway at the point where I had a small burn."

He was asked about lighting the fire by the shed and he said:

"Because of the grass and the fence panels and the wooden sheds and these areas spelling flammable and the alleyway was concreted, I thought it was the safest place to burn four bits of paper and hadn't been concerned in respect of the risk of the fire spreading as I chose the alleyway as it was inert matter and didn't think there was a risk of the fire spreading."

He then went on to say that the fire had not been positioned beneath the eaves; the eaves, in any event, were 2.8 and his eaves at his property were 3.8. The burning had not been against the wall and that he had chosen to go down there because he did not consider there was a risk because the burn was, as he put it: "Too small" and why would he have risked, as he put it, his own home. It was specifically put to him: "There was a risk because you took a hose." He said:

"I am cautious to the point of being anal and so used over the top measures."

24. I accept this is what occurred and also that Mr Brouwer used the hose to douse the fire. I do not consider that lighting a fire to burn two pieces of card and two pieces of paper, in itself, was negligent. Nor do I consider burning the same on a concrete surface in an alleyway as shown on page 458 was negligent. Further, Mr Brouwer went prepared. It was unchallenged that he had gone to the area with a hose. The only challenge was as to whether by using the word "grab" in his diary re: the hose, that indicated the fire had somehow got out of control. I do not find that the fire did get out of control nor that the use of the word "grab" by a person whose second language is English, indicated such. The fire was over in a couple of minutes and the remains were doused. My findings are consistent with the defendant's own description of himself in the witness box that he is a very cautious man to the point of being "anal". It is also consistent with my observation of him during the course of the trial and my findings re: how he dealt with Mrs Brouwer at the material time. He is controlling. He told her to wait and he tried to direct her evidence. He likes to control. That is why he mentioned the fire to Miss Graves. That is why he went to the area with a hose. That is why he doused the fire. He wants to control events. That is consistent with a cautious approach. Further, whilst the claimant's expert, Mr Houghton, said in evidence he would not have lit the fire in the alleyway, he did not go as far as to say that it was negligent to do so. Mr Townsend did not consider the choice of location was unreasonable. What then occurred was, as has been described, a freak accident. As was said by Lord Denning MR in H & N Emanuel Limited v Greater London Council [1971] 2 All ER 835 at page 838:

"That the occupier is not liable for the escape of fire which is not due to the negligence of anyone."

Sir John Holt himself said in Tuberville v Stampe that:

"If a man is properly burning up weeds or stubble and owing to an unforeseen windstorm without negligence the fire is carried into his neighbours ground he is not liable."

The key words for the purpose of this case are, "without negligence." Mr Weston sought to say that case should be distinguished on the basis we are not dealing with a windstorm and here Mr Brouwer had seen there was a risk; it was a grave and serious one as Mr Weston put it and Mr Brouwer seated the fire under the eaves. Mr Townsend said in evidence that brands can be seen and Mr Weston submitted that Mr Brouwer had, therefore, not done enough which is why he, as he put it, grabbed the hose. There is no evidence that Mr Brouwer did see any brand or that the word "grab" indicated that the fire was somehow out of control. I have found, as a fact, that the fire was in the centre of the alleyway as is self-evident. I reject Mr Weston's submissions. There is a risk with any fire but what the claimant had to prove, on the balance of probability, was that Mr Brouwer did something or omitted to do something which was negligent and the claimant has failed to do so. I, therefore, do not have to consider the case of Hughes v Lord Advocate [1963] AC 837 as I have not found there to be any negligent act or omission on the part of the defendant, Mr Brouwer."

Negligence - discussion

35. I do not consider that the judge was assisted by reference to the Emanuel case. This was not a "freak accident" in the sense that some unexpected phenomenon intervened, such as a sudden wind storm. Furthermore, on the hypothesis on which the judge was proceeding, what here occurred was exactly what the Claimant had foreseen might occur, viz an escape of fire, which is why he watched the fire so carefully and armed himself with a hose. Although he did not use the expression, Mr Weston's submission to us on this part of the case amounted to saying that the facts here spoke for themselves. He was critical of the judge for reciting the prophylactic measures taken by the Defendant without recognising that the critical point was whether he had discharged the duty of care which rested upon him, which involved rather an examination of the extent to which he had ensured that such prophylactic measures were effective.
36. I recognise the force of Mr Weston's submissions on this point. However the judge's conclusion as to the extent to which Mr Brouwer took appropriate care in order to avoid that which must be assumed to have eventuated falls pre-eminently into that area of decision-making with which an appellate court should be slow to interfere. It has to be acknowledged that the choice of this location to burn these items was unusual. It is but one of the features of the case which led me to describe it at the outset of this judgment as bizarre. I think it is fair to infer that the judge found Mr Brouwer a somewhat unusual person. But that unusualness manifested itself in ultra-caution to the extent of taking "over the top measures" and fastidious attention to detail. Thus the judge found that he carefully watched the fire, which burned for only a couple of minutes, and observed no sparks, or therefore embers or brands and that, for good measure, he then thoroughly doused the remains with the hose. All this against the background that had he asked the experts about the safety of what he proposed to do he would have been told that an escape of fire was unlikely. The judge recognised I think that the choice of location called for the taking of the utmost care in tending the fire, but she found that the utmost care was indeed taken. In these circumstances, in order to find negligence the judge would I think have had to regard the selection of the location for the fire as in itself negligent. On the evidence that would not have been a reasonable conclusion. In my judgment the judge was entitled to reach the conclusion which she did on the issue of negligence and I would dismiss the Claimant's appeal on that ground also.

Lord Justice Beatson:

37. I agree.

Lord Justice Sullivan:

38. I also agree.