Construction disputes often involve complex and technical questions of causation. It is frequently the case that a claimant is unable to identify precisely the cause of a given loss. An expert may raise a number of possible causes, preferring one over others, but nonetheless be unable to exclude causes which are not the responsibility of the defendant. In such circumstances a defendant may try to “put the claimant to proof” and claim that the loss has not been shown to be any fault of his.
A recent Court of Appeal decision has clarified the approach to be taken in such cases. Mrs Drake suffered the loss of her house when a fire broke out after repairs had been performed by electricians. The house burnt down after the electricians had left but before Mrs Drake returned. Mrs Drake had been able to prove that the electricians had been negligent but her expert could not scientifically establish that the negligence had caused the fire.
The Court of Appeal sided with Mrs Drake, agreeing with the trial judge that the probable cause of the fire was the electricians' negligence. The court held that a robust approach to causation ought be taken where negligence has been proven (as it had here), and the loss that occurred is of a kind one would expect from such negligence. In other words, it is not sufficient for a defendant who has been negligent, where a loss has occurred that is the normal result of that negligence, to turn to the claimant and say, “Prove it!”. The Court will usually infer that the defendant’s negligence caused the damage. Unless the defendant can show that some other cause for which he is not responsible was at least as likely as his negligence, then the claimant will probably succeed.
The adoption by the Court of Appeal of a robust and common sense approach to causation in technically uncertain cases should give potential claimants confidence that their claims will not fail because of a legal “technicality”. The approach is of broad significance and holds potential relevance for a number of common disputes arising under construction contracts, including:
- Claims for defective design or workmanship; and
- Claims for loss and expense and global claims, particularly those involving uncertain or competing causes.
Reference: Drake v Harbour [2008] EWCA Civ 25.
For the full judgment, please click here.
