Case No: B28YM661

Neutral Citation Number: [2017] EWHC 1651 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM CARDIFF COUNTY COURT

In the Mold County Court 
(Heard at the Cardiff Civil Justice Centre)
Date: 30/06/2017

Before :

THE HONOURABLE MR JUSTICE LEWIS

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Between :

	PT CIVIL ENGINEERING	Appellant/
Defendant	
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	PAUL BARRY DAVIES	Respondent/
Claimant	

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Julian Benson  (instructed by BLM) for the Appellant
Ben Davies (instructed by G Spilsbury And Co) for the Respondent

Hearing date: 14 June 2017

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Judgment
THE HONOURABLE MR JUSTICE LEWIS: 
INTRODUCTION
1.	This is an appeal by PT Civil Engineering against a decision of HHJ Seys-Llewellyn Q.C. giving judgment for the claimant, Mr Paul Barry Davies, in his claim for damages for personal injuries against the defendant (the appellant on this appeal). In brief, Mr Davies was driving a vehicle owned by the defendant. A fire erupted in the vehicle causing Mr Davies, and the two passengers in the vehicle, to leap from the moving vehicle. Mr Davies sustained injuries and brought a claim for damages alleging negligence on the part of the vehicle owners. 
2.	The judge held that there was no known cause for the fire. He found that the vehicle was poorly maintained and inferred that that was the cause of the fire and gave judgment for the claimant. The defendant appealed contending that, on the evidence as found by the judge, the judge was wrong to infer that the defendant was liable.
THE FACTS
3.	The claimant was working as a self-employed ground worker. On 27 March 2014, he was returning to Aberdare in a van owned by the defendant. There were two passengers in the vehicle, Mr Matthew Morgan and Mr Paul Davies. At about 3.10 p.m., as the vehicle was travelling along the A470, a fire erupted in the vehicle causing the claimant and the two passengers to leap from the vehicle whilst it was still in motion.
4.	The claimant brought a claim for personal injury alleging that the accident was caused by the defendant’s negligence in that they had failed, amongst other things, to maintain the vehicle adequately or at all. 
5.	The vehicle was examined after the accident by Mr Magnus-Hannaford, an expert instructed by the defendant, and he prepared a report dated 19 June 2014 and a supplemental report dated 8 August 2016. The claimant also instructed an expert witness, Mr Hoyes. The vehicle had been destroyed and he was not able to examine the vehicle.  He and Mr Magnus-Hannaford produced a statement setting out areas of agreement and disagreement. Both Mr Hoyes and Mr Magnus-Hannaford gave evidence. 
The Judgment
6.	At paragraph 6, the judgment records the account given by the claimant and the two passengers of the incident. That records that the claimant noticed a sweet smell and then saw a small flame from underneath a plastic area immediately in front of the driver, assumed to be the lower part of the fascia, followed by a larger flame. Mr Morgan was sitting in the middle. He smelled a sweet smell and saw a small fire in the driver’s footwell which erupted into a large orange flame which engulfed the cab. Mr Davies (that is, Mr Paul Davies, not the claimant who is Mr Paul Barry Davies) noticed a sweet smell and saw a large flame come out from underneath the plastic area immediately in front of the driver. In other words, the account of the three passengers was that the flames came from under the plastic area in front of the driver.
7.	The judge then turned to the evidence of the expert witnesses. He noted that Mr Magnus-Hannaford had examined the vehicle three months after the accident and had produced an extensive set of photographs and had made a careful record of what he had found. The judge noted that Mr Hoyes had not been able to examine the vehicle as it had been destroyed.  
8.	At paragraph 7, the judge noted the agreement of the experts on the location of the seat of the fire:
“It is agreed that the greatest fire damage was on the driver’s seat cushion and seatback. The fascia, although heat damaged, was still intact, the seat of the fire being the back of the driver’s seat cushion and the seat back. There was no fire damage in the footwell, including the mat, pedal rubbers and lower fascia panel.”
9.	The judge observed that
“It can be seen in the photographs, in particular E51, that which they describe, which shows that the fascia panel is undamaged, that the brake pedals and the footwell are undamaged by fire and that, though there is extensive damage by fire to the seat cushion on its upper  surface, the vertical face of the seat – certainly for some two thirds at the front and for some two thirds of the side of the cushion – is not damaged by fire.”
10.	Later in the judgment, the judge also cited an extract from the report of Mr Hoyes where he said this:
“I understand that, according to the claimant, fire was discovered emanating from the clutch area under the dashboard. Conversely, Mr Magnus-Hannaford reports that there was evidence of fire damage to the seats but less so around the fascia and that the patterns of burning suggested that the fire had come from around the area behind/beneath the driver’s seat. This is an area of inconsistency. Had the fire originated from under the dashboard, I would have expected Mr Magnus-Hannaford to have reported greater damage to the dashboard that the seat, not vice versa, and I would expect to see greater damage to the items such as the plastic fascia around the steering lock than is shown in the photographs.
7.11:  The fire damage burn patterns do not support the claimant’s description of the origin of the fire, though that description is very brief.”  
11.	In relation to the evidence on the cause of the fire, the judge cited an extract from the report of Mr Mangus-Hannaford where he said this:
“Overall, I cannot link the cause of the fire with the battery or wiring installation beneath the driver’s seat. However, the battery was not correctly secured, nor was it covered by the plastic panel that should be there to protect it. I did not find any other faults with the vehicle that could be associated with the cause of the fire. In terms of other causes and the potential for human involvement, I would need detailed statements from the occupants as to the precise sequence of events of that day.”

12.	The judge also recorded passages from Mr Hoyes report where he said this:
“The photographs of this are not clear enough for me to consider in any detail. It must be considered that an electrical fault may have developed within the engine bay but that effects were manifested in the cab. It must also be considered that the origin of the fire was within the engine bay and that the fire progressed into the cab through apertures in the bulkhead for steering the foot controls. It appears that these considerations have been made. Mr Magnus-Hannaford inspected the engine bay and found no suitable electrical faults and no evidence of fire damage. The photographs appear to support the statement. Mr Magnus-Hannaford discovered an empty butane lighter in the footwell and the burnt remains of a newspaper, though the location of the newspaper was not provided. In conclusion, Mr Magnus-Hannaford found no faults with the Ford that could be associated with the cause of the fire and highlights the need for statements from the occupants before considering human involvement. 
At 8.5 and 8.6  Mr Hoyes is recorded as saying:
“The claimant’s description that flames were seen emanating from under the dashboard is not consistent with the physical evidence, which indicates that the area where the fire started was on, under or behind the driver’s seat.
“8.6:
“The report of Mr Magnus-Hannaford shows a methodical approach with due consideration given to all the possibilities.”
13.	The judge found as a fact that the vehicle was poorly maintained and he sets out his reasoning for this finding at paragraphs 19 to 23 of his judgment.
14.	The judge then dealt with the issue of whether the claimant had established that the defendant was liable in negligence for the cause of the action. First, he considered a specific theory advanced by the claimant’s expert witness that an overcharging alternator had led the battery to produce hydrogen sulphide as which ignited. He rejected this theory.
15.	The judge then considered the second means by which the claimant sought to establish liability. This he described as the res ipsa loquitur route (that is, that the accident itself is evidence of negligence on the part of the defendant). He cited a passage from Munkman on Employer’s Liability (16th edition) where it is noted that in a case where the claimant relies upon the maxim res ipsa loquitur then:
“It is incumbent upon the claimant to prove:
(1)	the happening of some unexplained occurrence
(2)	that the unexplained occurrence would not have happened in the ordinary course of things without negligence on the part of somebody other than the claimant; and 
(3)	the circumstances point to the negligence being that of the defendant rather than anybody else.”           

16.	The judge noted that what had troubled him about the present case was whether it was properly to be characterised as an event which would not have happened without negligence on the part of somebody other than the defendant. In that regard, he noted that he was dealing with the fact that the vehicle had been poorly maintained. In relation to the connection between the poor maintenance and the cause of the fire, the judge first reminded himself of the position of the two experts who agreed that:
“It is claimed that, prior to the vehicle (sic), the vehicle had a history of reported faults – the engine cutting out, fuel/oil leakage, flashing beacon failure, hot fascia panel and a historical electrical fault in the engine compartment – and that the experts are unable to find a link between any of the defects mentioned there and the cause of the fire.”
		
17.	The judge then considered two authorities, including the decision of the House of Lords in Henderson v Henry E. Jenkins & Sons [1970] A.C. 282. The core of the reasoning of the judge is at paragraphs 37 to 40 of his judgment which need to be set out in full:
“37 It is a trite observation in this case that, if I do not accept the explanation or thesis of Mr Hoyes as probable, then neither expert identifies what the precise cause of this accident was. The cause was unknown
38. It seems to be that I am faced with a requirement explicitly stated by appellate courts time and again that, as the trial judge, I should seek to exercise common sense where there is no evidence of the precise cause which anyone has been able to identify. Here, in relation to electrical wiring, Mr Magnus-Hannaford said in answer to Mr Harrison that a properly maintained electrical system does not usually burst into flame. If there was no more than this, there would be no reason to involve the defendants in liability because there would be the possibility that the inadequate maintenance was on the part of the maintainers and maintenance and/or repair firm and individuals to whom it appears that the van was taken. However, on any view, this was a van of extremely high mileage which had been the subject of a repeated fault, repeated intervention, repeated necessity for attendance for repair and which had been the subject of being towed away in November 2013 where this is unchallenged evidence that Mr Paul Davies (the foreman of the gang) had made repeated complaint of the poor condition of the van to the defendants.
“39. I entirely understand that a forensic choice was made not to call evidence factually from the defendants but the fact is that I have no evidence whatsoever from the defendants factually as to what was done, what was thought, what was suspected and what the steps were which were taken to instruct the garage to which repeatedly this van was taken on account of its repeated failures - electrical fuse and others. 
“40. It seems to me that, if I am to follow the guidance of the authorities, to follow the example and instincts of the majority of the House of Lords in the case of Henderson and to revert to common sense, then this was a poorly maintained van, the subject of repeated complaint and repeated source of difficulty. Where I have no evidence to explain what steps were taken by the defendant, I propose to align myself with the approach taken by Lord Reid, Lord Donovan and Lord Pearson as applied to this case, notwithstanding that of course, in this case, the exact cause is not known (whereas, in that case, it was). Accordingly – after, I confess, a deal of deliberation – I find in favour of the claimant on liability.”
THE APPEAL
18.	Mr Benson for the defendant contends that the judge erred in his approach to the finding of liability in this case. He submitted that there was no evidential basis upon which it could be said that the judge was entitled to infer that the claimant had discharged the burden of proof. He submitted that the judge had found the fire started in the back of the driver’s seat cushion and seat back and that was unrelated to any poor maintenance. There was nothing in the vehicle in the area where the fire started to implicate a fault in the vehicle as being the cause of the fire. 
19.	Mr Davies for the claimant contended that the judge had accepted the evidence of the claimant and his fellow passengers that the fire started in the area underneath the plastic area in front of the driver. He submitted that the judge was entitled to infer that that might be due to an electrical fault in the vehicle arising out of poor maintenance.
Discussion
20.	In the present case, it is accepted by both parties that the defendant owed a duty to the claimant to take reasonable care to ensure that vehicle that he provided to the claimant was safe for the purposes for which it was to be used. The central questions are whether the defendant failed to exercise reasonable care and whether that failure caused the fire which, in turn, caused the claimant to suffer his injuries.
21.	As a matter of principle, a defendant will be liable to compensate an individual if the defendant owed the individual a duty to take reasonable care, he failed to do so and that failure caused the person to suffer loss or injury. The burden of proving those matters falls on the claimant. In particular, for present purposes, it is the claimant who must establish that, on a balance of probability, the defendant failed to take reasonable care and that that failure caused the injuries in question.
22.	There are cases where the claimant cannot show the precise cause of the accident but the circumstances are such that the accident would not have happened in the ordinary course of events without negligence and that the thing causing the accident has been under the sole control of the defendant or his employees. In such circumstances, a court may infer that the defendant failed to take reasonable care and was responsible for the accident unless the defendant adduces evidence to rebut the suggestion that he was negligent. 
23.	Thus, in Scott v London and St Katherine Docks Co. (1865) 3 H & C 596, a customs officer was injured when bags of sugar fell from a crane. Erle C.J held that:
“There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” 
24.	The drawing of an inference of negligence from the nature or fact of an accident is often referred to by the Latin maxim res ipsa loquitur or the thing speaks for itself. As Morris L.J. explained in Roe v Minister of Health 1954] Q.B. 66 at page:
“When used on behalf of a plaintiff it is generally a short way of saying: "I submit that the facts and circumstances which I have proved establish a prima facie case of negligence against the defendant." It must depend upon all the individual facts and the circumstances of the particular case whether this is so. There are certain happenings that do not normally occur in the absence of negligence, and upon proof of these a court will probably hold that there is a case to answer.”
25.	The circumstances in which such an inference may be drawn have been variously described in the case law and text books.	 In essence, there needs to be (1) an unexplained occurrence (2) which would not have happened in the ordinary course of events without negligence and (3) the circumstances are that such they point to the defendant having caused the occurrence by his  negligence (usually because the defendant had the control and management of the thing causing the accident).  See the discussion at 5.15 to 5.44 in  Charlesworth & Percy on Negligence (13th ed.).
The Present Case
26.	The judge in the present case accepted that the cause of the fire in the vehicle was unknown. He had rejected the one positive theory as to causation that had been advanced. Neither expert could identify the precise cause of the accident. The cause was therefore unknown. See paragraph 37 of the judgment.
27.	The judge then sought, in effect, to apply the maxim res ipsa loquitur, or to draw inferences, that the fire must have been the result of a failure by the defendant to take reasonable case to maintain the vehicle adequately. He inferred that from the fact that he considered that evidence had been given by Mr Magnus-Hannaford that “a properly maintained electrical system does not usually burst into flame. A properly maintained vehicle does not usually simply burst into flame”. Given the fact that this was a van which had been the subject of repeated faults requiring repair, he inferred that the cause of the accident was the negligent failure on the part of the defendant to maintain the vehicle adequately. See paragraph 38 of the judgment.
28.	In my judgment, the judge was wrong to draw the inference he did on the facts as found by him. First, the judge had accepted the evidence of the experts, as recorded in paragraph 31 of his judgment, that the particular defects were not linked to the cause of the fire in the vehicle. The mere fact of the previous defects could not of itself lead to the inference that the fire was caused by those defects as there was, as the judge accepted, no link between the defects and the fire.
29.	Secondly, the transcript of the evidence given by Mr Hannaford does not support the drawing of the inference that was made by the court below. A full transcript is available and was provided to this court. In the course of cross-examination, Mr Magnus- Hannaford was asked about the battery immediately beneath the driver’s seat. It was put to him that a properly maintained electrical system does not cause fires and he agreed that that was a reasonable thing to say. He then dealt with whether any maintenance failure could have led to the battery becoming overcharged and concluded that that was not the cause of the fire. It is not suggested by the judge that any problem with the battery did in fact cause the fire.
30.	The expert was then asked about the maintenance of this vehicle generally, and the possible link between that and the fire in the vehicle. The relevant parts of the cross-examination were as follows:
“ Q  We can go a little bit further in your description of the vehicle because you obviously received the report that the vehicle had been cutting out regularly. Again, would you suggest there was a persisting problem with the vehicle, albeit I suppose what you say is that you do not relate that to the fire. 
A  Correct.
Q  The conclusion from your examination, such examination as you were able to undertake was that, to all intent and purposes, this did not give the impression of a well-maintained vehicle. 
A  No, it did not. 
Q  If we were to put together the circumstances that we have in this case, we have a vehicle that is being driven which, on the evidence accepted from the claimant – I have used the word spontaneously but that is probably not the right way to put it – catches fire. 
A  Yes. 
Q  Yes. However, it goes a little bit further than that. It is a vehicle that is being driven normally which catches fire without any apparent external activity or external force or an external agent acting upon it, does it not? 
A  I would not agree with that. 
Q  It is a vehicle which is being driven normally which catches fire but also a vehicle which you agreed is a not-well-maintained vehicle which suddenly catches fire. 
A  A fire occurs in the vehicle and the vehicle is not particularly well-maintained. 
Q  Thank you. Now, well-maintained vehicles do not ordinarily catch fire do they? 
A  Well-maintained vehicles do not normally catch fire due to a fault with the vehicle. 
Q  No. Conversely, a poorly maintained vehicle gives you, if you like, a reason why it might catch fire, does it not? 
A  You are correct but the reason should be deducible. 
Q. All right. Perhaps we will-
A. That is my job.
Q. I understand that. Your view in this case is that you were not able       to deduce what the cause was. 
A. I could find no physical evidence to link the vehicle with the cause of the fire. 
Q.  Ultimately, it is obviously a matter for the court but you accept the proposition that this is a poorly maintained vehicle which apparently catches fire. 
A.  A fire occurs inside what I would agree is a poorly maintained vehicle”.

31.	Later, the expert noted:
“- and, secondly, that there must inevitably be a causative link between the condition of this vehicle and the commencement of the fire. 
A  I do not agree with that, either. I think it is fair to say that both Mr Hoyes and myself agreed that none of the reported faults with the vehicle were associated with the cause of the fire. 

Q  However, of course, you were unable to reach a conclusion as to what the source of the fire was. What you were able to see from your examination was, in general terms, a poorly maintained vehicle 
A  Yes, with no conclusion as to the cause of fire, but I am used to finding the cause of the fire if it is with the vehicle. 
32.	In response to questions from the judge, the expert witness said this:
Q  Well, it is really on the last few questions, Mr Magnus-Hannaford. What I am wrestling with is this, something caused this fire. 
A  Indeed, your Honour. 
Q  What I have seen is your response to what Mr Hoyes has devised or identified as a possibility and you have set out a number of reasons why you think that that possibility is remote and, therefore, it is impossible to say that this is the likely cause. What I am wrestling with is this: is there anything which is more likely than that unlikely possibility. 
A  I examined the vehicle in my usual way and found nothing with the vehicle. I fully expected to find some sort of fault in the battery or fault around the battery, bearing in mind that that there were some tools in the battery compartment which should not have been there. I was expecting to find some sort of short circuit because it had not been properly secured but there was nothing and I reached the conclusion that the cause of the fire was not associated with the vehicle itself in terms of any remaining physical evidence and usually there would be. 

Q  What else than something in the vehicle would do it? 
A  Well, as I said, your Honour, a cigarette lighter in there, they have had to be recalled because they leak and cause fires. Cell phone batteries catching fire spontaneously. There was a lot of bits and pieces in the van, whether it was part of the contents of the van. I do not think it was the van itself. 

Q  Suppose that there was no gas ready to be ignited into a conflagration. If it were to be an external source such as a butane lighter or a cell phone-
A   It was something at or close to the seat. 

Q That is the point. Would you not have seen it? 
A  I have had seat fires caused by seat heaters but these seats were not heated. I have had fires caused by cigarettes becoming trapped but the driver says he is a non-smoker. I have had fires in seats caused by butane lighters. Very often, after the fire, there is nothing left of whatever it was that caused the ignition in the first place. It is not that unusual but, if it had been part of the vehicle systems itself, I would expect to find some clue. The damage that was caused to the area down by the battery had been caused by dripping flaming plastics ignited. I think there was probably a jacket on the back of the seat or there was certainly a jacket just behind the seat. However, the battery itself was pretty clean and clear and certainly no evidence of melting on the terminals, no evidence of an explosion and, if the battery was gassing, as Mr Hoyes said, it would be producing both hydrogen and oxygen, which would be a very explosive mixture, but no explosion.”
33.	In my judgment, it was not open to the judge to regard that evidence as indicating that a poor maintained electrical system or a poorly maintained vehicle does not usually burst into flames and, therefore, to draw the inference in this case from the fact that there had been poor maintenance that that  caused the fire. The evidence was that poor maintenance could give rise to a fire but that the fault should be detectable. Here the evidence of the witness was that there was a fire in the vehicle, there was nothing to link the condition of the vehicle to the cause of the fire and the cause was unknown. 
34.	In those circumstances, in my judgment, the judge erred in inferring from that witness’ evidence that the accident was caused by the negligence of the defendant in failing to maintain the vehicle adequately. On the evidence, previous defects were not the cause of fire and there was no defect in the vehicle which could have caused the fire. There was an unexplained occurrence, namely the fire. That would not have happened without negligence. However, there was nothing to link the cause of the fire with the physical condition of the vehicle and so there was no basis for inferring that the condition of the vehicle, arising out of the failure to maintain, was the cause of the fire. It could not be said, on the evidence, that the circumstances were such that they pointed to the negligence of the defendant. 
35.	This was, truly, a highly unusual case where there was no known cause of the fire. The burden is on the claimant to prove that the defendant failed to take reasonable care and that failure caused the accident resulting in his injuries. Whilst an unexplained fire in a vehicle is an occurrence which would not normally arise without negligence on the part of someone, the facts were not such in the present case as to enable the inference to be drawn that it was the negligence of the defendant that caused the fire.
36.	I prefer to view this case as one where, on all the facts, the judge was not entitled to draw the inference that the accident had been caused by the negligence of the defendant. An alternative way of approaching the problem is to see the case as one where the presence of a fire in a poorly maintained vehicle may indicate negligence on the part of the defendant but the evidence adduced explained that the accident had not been caused by the negligence of the defendant. The defendant has not been able to prove an alternative cause for the accident and he has not been able to prove that he was not negligent. But he has been able to demonstrate that the fact of the accident itself no longer gives rise to the inference that  negligence on the part of the defendant was the cause of accident resulting in the claimant’s injuries.
37.	Mr Davies for the respondent submitted that, in fact, the judge had accepted the version of the accident given by the claimant and his two fellow passengers, namely that the fire started in the driver’s footwell, i.e. under the plastic fasica in front of the driver. In those circumstances, he submitted, the judge was entitled to infer that it was more likely than not that the cause of the fire was an electrical or mechanical fault and there was nothing to gainsay the inference that that did arise from poor maintenance or negligence on the part of the defendant.
38.	In my judgment, it is clear that the judge found that the fire did not arise in the way described by the claimant and the other two passengers. First, the judge noted at paragraph 6 of his judgment that the “account of all three witnesses is concisely and accurately summarised” in the joint statement by the expert and adopted that “as a summary”. But that falls short of an acceptance as a fact that that is how the fire started. Secondly, the judge noted the agreement of the expert witnesses that the location of the seat of the fire was the driver’s seat cushion and seat back. Thirdly, the judge then refers to the photographic evidence that confirms that the fascia panel was undamaged and there is extensive fire to the seat cushion. In my judgment, the irresistible inference from those parts of the judgment, and the rest of the judgment, read as a whole, was that he accepted that the two experts were correct in finding that the physical evidence demonstrated that the seat of the fire was the driver’s seat not the area under the fascia. There was no electrical wiring or mechanical feature in the driver’s seat area (other than the battery which was not  the cause of the fire). Hence, the judge did not, as the claimant submitted, draw inferences based on an acceptance of their description of where they thought the fire arose. 
DISPOSAL OF THE APPEAL
39.	In the circumstances, the judge erred in inferring that the claimant’s injuries resulted from a fire caused by the negligence of the defendant. The judge was wrong therefore to find the defendant liable to the claimant. The appeal will be allowed. Paragraphs 1, 2, and 3 of the order of 9 November 2016, giving judgment for the claimant,  ordering the defendant to pay the claimant’s costs, and providing for payment on account  will therefore be set aside. As the only order that the judge could make on the facts as found by him in the present case was that the claim be dismissed and as the claimant had not proved on a balance of probabilities that he had suffered injuries caused by the negligence of the defendant, the order will be varied to show that the claim was dismissed. 
CONCLUSION
40.	In the present case, the claimant sought damages for personal injury arising out of a fire in a vehicle. The claimant bears the burden of establishing that the injuries were caused by the negligence of the defendant. In the present case, the judge erred, on the facts as found by him, in inferring that the cause of the fire was the negligence of the defendant in failing to maintain the vehicle adequately. On the facts as found, there was no basis for inferring a causal connection between the fire and any failure to maintain the vehicle. The appeal will therefore be allowed.