Principles governing causation

Fosse Motor Engineers Limited and others v Conde Nast and another [2008] EWHC 2037 (TCC) is a reminder of the principles governing causation in a civil case. It is incumbent on claimants to prove causation on the balance of probabilities. Causation is essentially a matter of fact. Beyond this, the courts have not laid down any strict rule of causation as to how damage or loss or an event has been caused is to be proved. It is not generally appropriate to seek to rank possible causes in order of probability and it is always open to a court to conclude, even after a prolonged enquiry, that a cause cannot be proved.

The case concerned how a fire at a warehouse owned by the first claimant started. The options were:

Expert evidence was not able to identify the cause of the fire, so the case depended on the evidence of witnesses of fact. The judge accepted the evidence of the agency workers and concluded that the fire was not attributable to them. He also discounted the electrical cause as improbable on the evidence. However, he could not determine on the balance of probabilities whether the fire was caused by either of the two remaining causes. Fosse had therefore failed to prove its case.

In reaching his decision, the judge emphasised that it is inappropriate to rank possible causes in terms of probability and select the most probable. He remarked that to do so is a "dangerous and generally a fruitless occupation".