Lydia Graves v Marinus Gerardus Brouwer [2015]

Should you keep the home fires burning? An alleged escape of fire leads to litigating neighbours and tricky causation issues in Graves v Brouwer.

The Court of Appeal recently reviewed the legal test for causation where there were a number of possible causes of fire in the case of Lydia Graves v Marinus Gerardus Brouwer [2015]. The claim was complex and described by Lord Justice Tomlinson as “by any standards a bizarre case”.

The facts

The claim arose following a fire at Ms Graves’ house at 9 Dibdin Road, Sutton. Approximately 30 minutes before the outbreak of that fire, her neighbour at 11 Dibdin Road, Mr Brouwer, burned a small quantity of confidential documentation in a narrow alleyway between their respective houses. The alleyway formed part of Mr Brouwer’s property.

Perhaps unsurprisingly, Ms Graves and her insurers alleged that the fire at her home had been caused by an escape of fire started by Mr Brouwer, and that he was negligent in allowing that escape. Mr Brouwer denied any escape of fire, and any negligence.

At trial, the judge accepted Mr Brouwer’s evidence that he thought about the risk of burning paper before starting the fire and thought the alleyway was a safer place, for burning the paper, than on a grassed area near a wooden fence and shed. She also accepted that Mr Brouwer watched the fire throughout and doused the embers with a hosepipe after the paper had burned, and said these steps were consistent with a cautious approach.

Ms Graves failed in her claim at first instance because the judge found that, while the fire at 9 Dibdin Road had indeed been caused by an escape of fire from number 11, the allegation of negligence on the part of Mr Brouwer was unfounded.

Ms Graves appealed against the finding of non-negligence. Mr Brouwer sought to uphold the dismissal of the claim, and cross-appealed the finding that the fire at 9 Dibdin Road was caused by an escape of fire from his property.

The fire

Having fought and extinguished the fire at Ms Graves’ property, London Fire Brigade arranged the attendance of the duty specialist fire investigator, Mr Galvin. He completed a standard form report primarily to compile data for statistical analysis. He recorded that the fire started in the roof space of 9 Dibdin Road, and that the supposed source of ignition was “spread of secondary fire”. He appeared to have understood that Mr Brouwer had started a bonfire between his property and that of Ms Graves.

Whilst Halifax General Insurance Services, the insurers of 9 Dibdin Road, arranged an investigation by Hawkins, this took place after both the attendance by Mr Galvin and that of contractors who made safe and cleared the site. It thus added little of value, although it ruled out an electrical fault as the cause.

The fire experts at trial, Mr Horton for the Claimant and Mr Townsend for the Defendant, agreed that notwithstanding the contemporaneous investigation, there was a lack of critical information regarding:

  • The locations and actions of other persons in the vicinity at the material time.
  • The nature and quantity of items burned by Mr Brouwer.
  • Any other items of potential forensic interest in the debris of the alleyway.

Efficient determination of cause and effect had therefore been hampered. The experts also agreed that earlier investigations appeared coloured by Mr Brouwer’s candid admission that he had been burning items in the alleyway. Arson and smoking, for example, had not been properly investigated as possible causes, and thus could not be eliminated.

On such evidence as there was, Mr Horton thought that the most likely cause of the fire was Mr Brouwer’s burning of documents, but accepted that the fire described by Mr Brouwer in his evidence was unlikely to have caused embers to fly into the eaves of number 9 sufficient to start a fire.

Mr Townsend considered that the most likely cause was a deliberate or reckless act at the eaves of 9 Dibdin Road, but stated in cross-examination that if the court did not accept arson as the likely cause, then an ember from Mr Brouwer’s burning papers would seem the likely cause.

The trial judge described Mr Townsend as thus having shifted his view and made a concession, declined to find that the Claimant had failed to establish her case on a balance of probabilities, and held that a burning ember had caused the fire, albeit not through negligence.

The law

The Appeal Court reviewed the factual and expert evidence submitted at trial as well as reviewing the authorities regarding proof of causation. Lord Justice Tomlinson noted that the trial judge had considered a number of earlier authorities. These included Fosse v Conde Nast [2008], where the judge referred to the well-known speech in The Popi M (Rhesa Shipping v Edmunds,1985), where the first instance decision was overturned, which included the following passages:

“The burden of proving, on a balance of probabilities, that the ship was lost by the perils of the sea, is and remains throughout on the [Claimant] shipowners […] 

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 reasons, as extremely improbable”.

That approach, rejecting the “logic” of Sherlock Holmes, was then affirmed by the Court of Appeal in Milton Keynes BC v Nulty [2013].

The decision

The Court of Appeal were not persuaded that Mr Townsend had shifted his view, and thought the trial judge had made a number of errors:

  • The relevant questions in cross-examination should never have been put, given that they invited views on a conclusion of mixed law and fact.
  • The question was in any event based upon a false premise, because if arson were excluded as a cause, a finding that the alleyway fire was the most probable cause was not the only factual or legal alternative. The judge did not stand back and ask herself whether she was satisfied that the suggested explanation was more likely than not to be true.

Bearing the reasoning in the Popi M in mind, the judges concluded that:

  • The Court should bear in mind that the forensic investigation had not been thorough.
  • The theory of an ember flying from the fire in the alleyway into the eaves of the roof was scientifically improbable.
  • The arson theory had been rejected by the judge at first instance as fanciful, but there was no comparable scientific improbability about it.
  • There had been no consideration of the potential factors of smoking materials or cooking and heating appliances.
  • “Anting” – the picking up by birds of discarded cigarettes and taking them to their nests – had been mentioned at trial as an occasional cause of fires, but had not been properly investigated either.
  • The judge’s reasoning as to causation was flawed.

Leaving that aside, the Claimant had failed to prove her case, on a balance of probabilities, as to what had started the fire. The suggested explanation – escape from the alleyway – could not be said to be the probable cause.

Accordingly, Ms Graves’ appeal failed and the cross-appeal was allowed. The Court nonetheless expressed the view, obiter, that Mr Brouwer had been careful (and thus not negligent) in starting, monitoring and extinguishing the fire.

The implications

Each loss will turn on its facts, so it is important that all potential causes of fire ignition and spread are fully and promptly investigated.

The alleged cause must be established on a balance of probabilities. The least unlikely cause of several improbable causes does not necessarily amount to the probable cause by default. Therefore, unless the evidence is clear, the court will hold that causation has not been established and the claim will fail.

It appears to remain the case, however, that where there are only two unusual but not improbable causes under consideration and one of them is then ruled out, the judge can properly conclude that the remaining cause was the probable one.

It follows that when defending claims, it will often be helpful to raise all potential causes of fire and require the claiming party to prove its case on causation. Defendants should generally try and run a positive case on causation, however, as it remains rare for the court to hold that cause cannot be determined.