Proving your Point
Litigation is expensive, time consuming and stressful. Whenever there is doubt as to causation there must be corresponding doubt in respect of liability. Potential litigants should take note of the Technology and Construction Court decision in Palmer v. Nightingale .
Once again the Court put to bed the notion that it is enough to show that a thing cannot be the cause of a problem in order to establish that another thing is the course. It is for a claimant to establish liability. Where there are competing arguments in relation to causation the Court will consider which it thinks is most likely on the balance of probabilities, this does not remove the claimant's obligation to prove their claim.
In Palmer the claimants alleged that a pest controller was liable for damage to a Georgian home following a fire. They argued that it was his use of rodent bait blocks that had caused the fire and that this meant he was liable in respect of a professional negligence claim for the damages incurred in the fire. The pest controller had relied upon the manufacturer's notice that the bait blocks were not combustible. Even though initial testing showed these were combustible, he was not liable for the fire. Instead it was the claimant's own use of halogen lamps which generated inappropriate levels of heat within certain parts of the building that was responsible. The tests that showed the bait blocks were combustible were immaterial; there was another cause, insulation, which the Claimant had considered an impossibility.
Palmer restates the Court's established position, first determined in The Popi M ,that it is necessary for the Court to stand back and consider whether a claimant had proved its case on causation on the balance of probabilities. It was not for the Court to work through each potential cause and identify the least improbable one as being causative, or as Sherlock Holmes may have put it “once you've have eliminated the impossible the remaining explanation, no matter how improbable, must be the answer”.
Where parties are intent on litigating there is often little that can stop this, however if there is not clear causation, then caution is advised.
Visit our Construction page by clicking here