“Who giving [me] the information that Mr Daffeh smoke cigarette in front of his house?”
"I first noted the roll of armoured electrical cable close to the domestic baler control panel on 6 April when I considered it was something which may need further investigation. It was clear this cable was not connected to any machinery but it was not possible for me to readily identify what this cable was. I later spoke to Mr Nulty and asked him, as an electrician familiar with the site, to identify what this cable was. On 22 April I again spoke to Mr Nulty who informed me that he had determined that the roll of armoured cable in question was connected to a circuit breaker labelled "
"The afternoon following the fire, on inspecting the site with an investigator I noticed a large roll of cable with bare ends at the rear of the baler. The other end was connected to the board, the breaker of which had triggered. I pointed this out to the investigator, she took a photo of the board. I worked only at the front of the baler and nowhere near the rear."
"You've got no choice, because, if you've seen the oil and paper and cardboard all over the floor, you don't smoke in there, definitely not"
"The only thing I can think of what started it - at the back of the baler, there's a roll of cable there and that cable has been there, I didn't know at the time, but that's been there for a long time and the ends were exposed. The other end of the cable is connected to the switchboard."
"In light of the very late reporting of this matter, and the fact that the Insured provided a statement to Burgoynes without first notifying us of the incident, reserve (sic) our rights under the policy until we have completed our investigations and are in a position to make a considered decision as to whether our position has been prejudiced and an indemnity can be granted under the policy."
"At present he is not working because he cannot get insurance. This is because of the problems caused by this case. He is therefore on the dole." "
"We regret to inform you that, in view of your failure to co-operate with NIG by providing us with consent to enable us to access documents held by the police relating to their interview of you, NIG takes the view that you have failed to comply with the policy requirements to co-operate, and, in view of that, NIG will not be providing you with an indemnity, should this claim be pursued."
"Although there is a "
"Although there was a no-smoking policy on site, it was not ruthlessly enforced. As the origin of fire was found to be the recently worked on Baler 1 and the factory itself was otherwise unoccupied, the most likely cause of the fire is likely to have been careless disposal of smokers’ materials."
"How would you have stubbed your cigarette end out in the building?"
“There can be very little doubt that when the Small Boa Baler was removed from site in 1996 that the MCCB labelled Small Baler on DB 1 was either switched off or manually tripped by depressing a small yellow trip pushbutton on the front fascia of the MCCB, prior to the Small Boa Baler cable being disconnected from the baler. However, there was nothing to prevent anyone from switching this MCCB back on subsequently.”
"It was my interpretation of how easy it was to switch the circuit breaker back on"
"… 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 … 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 the 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 choose 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 enquiry 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. Royal Exchange Assurance Corporation [1923] 1 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 of perils by sea, had in fact been scuttled with the connivance of those owners. Having made that finding, Scrutton LJ 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 seawater into the ship … and an examination of all the evidence and probabilities 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 …" 63. Lord Brandon then went on to consider the approach to the evidence adopted by the first instance judge and referred to the well-known saying of Mr Sherlock Holmes: "
"The first reason [why it is inappropriate to apply Mr. Holmes' dictum] 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 for saying that the party on whom the burden of proof lies in relation to any averment made by him must be able 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 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 the 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." 65. This case was picked up in the recent case of Ide v ATB Sales[2008] EWCA Civ 424 by the Court of Appeal. Thomas LJ giving the judgment of the court reviewed the Rhesa Shippingcase and also a more recent House of Lords decision in Datec Electronic Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR at 1325. He then said this: "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." 66. I do not consider that Thomas LJ was suggesting that there was anything wrong with Lord Brandon's conclusion; indeed the House of Lords decision was binding on the Court of Appeal. He was simply considering what might happen if there were three possible causes, by weighing up the inherent probability or improbability of each of those causes and come to a conclusion on the balance of probabilities as to what the cause was. 67. What is not acceptable, at the very least in a case like the current one, is to identify that there are, say, (as here) five possible causes, rank them each in percentage terms as possibilities and then select the possibility with the highest percentage as the probable cause. The only circumstances in which it would be legitimate would be if the highest ranked cause was the one which on all the evidence the judge was satisfied was the probable cause of the incident or loss in question. This proposition was, I believe, accepted ultimately by Counsel for both parties. I consider that it is dangerous and generally a fruitless occupation to seek to rank possibilities or probabilities in percentage terms in any event. If there are five possibilities of which four are remote or extremely improbable, that conclusion may go to support a judge's finding that the remaining "possibility" is in fact the probable cause or explanation for the event in question. 68. There are numerous cases at first instance and in the Court of Appeal which deal with causation largely as a matter of fact. One such case was Kiani v Land Rover Ltd and Others[2006] EWCA Civ 880 . The unfortunate facts of that case were that Mr Kiani went to work at the Land Rover plant; his dead body was found in a tank in the area in which he worked. He had died of asphyxia. His personal representative sued on the basis that Mr. Kiani had accidentally fallen into the tank; Land Rover suggested that his death was suicide. There were thus two possible explanations. The first instance judge had found suicide to be a less than probable explanation, he found that it occurred as a result of accident because the tank had its hatch left open and that Mr. Kiani had probably gone over to have a look, overbalanced and fallen in. Waller LJ giving the lead judgment, dismissing the appeal, said this at paragraph 30: "
“In theory this second fire could have been completely separate to the first, caused either deliberately or by an electrical fault, as some of the equipment remained energised (although switched "off") after the first fire. However, the area described by the Fire Service as being initially involved in the fire on3 April 2005 was linked to the area involved in the first fire by a hopper and a conveyor, as described earlier. Furthermore, due to the power failure on2 April 2005 there was waste material on the conveyors, including that linking the bunkers to the balers. Therefore, I consider it much more likely that a pocket of smouldering material, left unextinguished by the Fire Service following the first fire, underwent a transition to flaming and gave rise to the second fire.”
“I remain of the view that the cause of the second fire could, in theory, have been completely separate from the first fire. However, I also still consider that it would be a remarkable coincidence two entirely unrelated fires to have both occurred within 9 hours of each other in the same part of the building, separated physically by approximately 12-15m. Hence in my view it is far more likely that the two incidents were in some way related.”
“If the second fire was a re-ignition of the first, the most likely mechanism of initiation is the emission of a burning brand from the first fire landing within combustible materials in or close to the bunkers.”
“Where a solicitor fails to put in a defence or to take some other procedural step, with the result that his client loses the opportunity to contest the claim against him, the court must consider the merits of the proposed defence. The damages should represent the value of the opportunity which has been lost, and many of the principles which have been discussed above will be applicable.”