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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Orthocare (UK) Ltd v Norman West & Sons (A Firm) [2001] EWCA Civ 1649 (30 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1649.html Cite as: [2001] EWCA Civ 1649

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
SHEFFIELD DISTRICT REGISTRY
(His Honour Judge Bullimore)

		Royal Courts of Justice Strand London WC2 Tuesday, 30th October 2001

1. LORD JUSTICE PILL: This is a renewed application for permission to appeal, permission having been refused by me on the papers. It is sought to reverse the decision of His Honour Judge Bullimore who, in a written judgment dated 10th May 2001, gave judgment for the claimants, Orthocare Limited, in relation to a fire at their premises.
2. The fire had occurred on 10th May 1996. It was discovered by two children who had gone to the premises in the early evening in advance of a relative, who was the cleaner. The Fire Brigade was called. The fire was put out. The two children, who at the time of the fire were aged 10 years, Joel, and 15 years, Esther, were called to give evidence. There were expert reports on each side. The fire officer present, Mr. Roberts, gave evidence.
3. The task faced by the judge was a difficult one. The evidence as to how the fire started was sparse. It is that sparseness which forms the basis of the submission of Mr. Forrest on behalf of the applicants, that there simply was not sufficient evidence to permit the judge to decide that, on a balance of probability, the fire was started because of a defective light fitting for which the defendants were responsible. There were two possible sources of the fire. One was that light fitting. The other was a position shown in the photographs, position A of the photograph at page 79. In the same photograph the position in which the light fitting had been is shown at point B.
4. The judge carefully set out the circumstances and the evidence available to him and the reasons why he reached the conclusion that the source of the fire was the light fitting. Mr. Forrest's first point is that the judge could not properly base his finding upon the evidence of Joel as he did. Mr. Forrest accepts that a statement made soon after the accident by Joel to the claimant's expert witness was admissible evidence. He points out, however, that it was not evidence which Joel could confirm orally, and it is submitted that it is in certain respects inconsistent with a statement given by Joel to solicitors shortly after the fire. Mr. Forrest submits that Esther's evidence is more reliable. Her evidence is consistent with the fire having commenced at point A. The experts were agreed that the fire could have started at either point and that one could only tell, as counsel puts it, from the lay evidence.
5. Mr. Forrest makes specific points in relation to the evidence available to the judge. He refers to the fact that Mr. Roberts believed the fire to have started half an hour before his arrival at the premises. That is inconsistent, it is submitted, with the account of Joel but consistent or more consistent with that of Esther. A further point made is that the judge has misunderstood the evidence as to the relevance of smoke alarms. The alarm went off shortly after Joel had observed what he did. Mr. Forrest submits that the judge's conclusion, that the fire "immediately caused such smoke to be given off as to activate the smoke alarm", is inconsistent with the evidence as to the positioning of the smoke alarms. If the fire had started at point A it could have been in progress for a considerable time before a smoke alarm was activated, having regard to the position of the alarms.
6. The judgment is carefully reasoned. I have considered the submissions of Mr. Forrest. Clearly this was a case where the oral evidence was of less value than it would be in many circumstances. Clearly there were difficulties about the evidence of Joel to which attention has been drawn. There are difficulties about the expert evidence in relation to a fire starting at point B, and attention is drawn to the fact that the fire, from a light fitting, would have had to have somehow covered a distance of 600 mms or just over two feet, because of the position of the light fitting, before other combustible material would have been affected. Reliance is placed on the fact that there is no evidence of this type of light fitting having any record of causing fires. However, I find the judge's reasoning persuasive.
7. Mr. Forrest commenced his submission, and rightly so, by accepting that the case of Rhesa Shipping V Edmunds [1985] 2 All ER 712 is not entirely apt to the situation in this case. There is evidence, though it is strongly submitted the judge should not rely on it, from a lay witness, Joel, which is consistent with the claimant's case, which supports the claimant's case and which is considered by both experts to be a possible cause of the fire. Thus, the judge had before him a tenable explanation. In my judgment, he was entitled, having carefully considered the position, as he did, to accept that the better contemporaneous account was that given by 10 year old Joel to the engineer. As there is some direct evidence that the fire started at the light fitting, one is then in the realm of considering whether it is more likely than not that the fire started at the light rather than at point A.
8. The alternative theory is that fire had been caused at point A by a human agency. It is difficult to see how else it could have started at that point, there being nothing liable to self-combustion. At pages 37 and 38 the judge carefully sets out the factors which make it extremely unlikely that a human agency had caused this fire. There is no suggestion that it had been caused by either of the children. The warehouse was empty, work having finished some time before. Neither child was aware of the fire before they observed what they did, either by observation or, for example, by smelling smoke. I regard the factors relied on by the judge, with the exception of the fire alarm point, as to which I see the force of Mr. Forrest's submission as significant. There are powerful arguments that the alternative argument, that human agency caused the fire at point A, is the less likely one.
9. The judge had a difficult task. Mr. Forrest has emphasised that there is a burden of proof upon the claimant. It is for the claimant to establish that it is more likely than not that the fire started at the light fitting for which the defendants were responsible. The judge recognized the difficulties. In my judgment, he was entitled to come to the conclusion that, on the balance of probability, the fire started at the light fitting. He stated at page 40:

"In the result, I find it to be more probable that the fire started in the light fitting at the eastern end of the southern aisle, than at some other point unconnected with the lighting."

10. He reached that conclusion, having set out many factors which I do not for present purposes propose to set out any more fully than I have done. Mr. Forrest has said all that could be said on behalf of the applicant in a difficult case. Upon analysis, however, I do not consider it arguable that the decision would be reversed in this court, and for that reason I refuse this renewed application.
Order: Application refused