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Failure to establish cause of fire extinguishes claim

Graves v Brouwer
Court of Appeal

Property fire cases can often involve multiple possible causes and limited physical evidence in the aftermath making it difficult to conclusively determine causation. Elliott Bromley and Rachel Coppenhall review the recent case of Graves v Brouwer highlighting the importance of a thorough forensic investigation immediately after the event.


The claimant and defendant were next door neighbours. The claimant’s property was a 1930’s brick construction, detached chalet style house with two floors in a poor state of repair. A concrete alleyway, within the boundary and control of the defendant’s property, separated the two houses. The defendant set fire to two pieces of paper and two pieces of card in the alleyway, which he fastidiously doused with water after a few minutes. Approximately 30 minutes later the defendant observed smoke coming from the eaves of the claimant’s property.

The fire caused significant damage requiring re-building works and the claimant’s insurers brought a subrogated claim for the cost of the damage against the defendant. At first instance HHJ Baucher found that the fire at the claimant’s house had been caused by an escape of fire from the defendant’s property but the defendant had not been negligent.

The claimant appealed the finding that the defendant was not negligent. The defendant sought to uphold the dismissal on the additional ground that the fire was not caused by the small fire lit on his path.

Expert evidence

The London Fire Brigade produced a short incident report following an inspection of the claimant’s property by a fire investigation officer on the day of the fire.

Both parties obtained fire expert evidence. The experts agreed that there was no record of physical evidence of the cause of the fire and all potential causes had not been given full consideration. They also agreed that the origin of the fire had not been absolutely established.

Based on the evidence available, the claimant’s expert was of the opinion that the most likely cause of the fire was a flying brand produced by the defendant’s fire on his path as there was no evidence of arson. This was despite the fact he agreed that the likelihood of this happening was of a low order.

The defendant’s expert contended that on the physical evidence, the flying brand theory was not feasible. Instead, he considered that the most likely cause was a deliberate or reckless act within the access cupboard to the eaves of the claimant’s property, noting that it was worthy of further, possibly criminal, investigation.

On cross-examination the defendant’s expert was asked whether he agreed that, if the court took the view that arson did not cause the fire, then, on the balance of probabilities, the fire in the alley must have been the cause even if improbable. The expert answered “If the court deems arson unlikely or less plausible than the fire of an ember from the items lit, then that would be the conclusion.

ThePopi M and Milton Keynes BC v Nulty

Two authorities on causation were key to this case. Rhesa Shipping Co v Edmunds (The Popi M) [1985] involved a ship sinking off the cost of Algeria in calm seas and fair weather. The House of Lords held that the trial judge should not have felt that he had to choose between the claimant’s theory which was extremely improbable (contact with a submarine) and the defendant underwriter’s theory (wear and tear) which was virtually impossible. Instead, he should have utilised the third option available to him, which was that the ship owners had failed to discharge the burden of proof which was on them.

Milton Keynes BCv Nulty & Others [2013] involved a fire at a recycling plant where the trial judge concluded that there were only two possible causes. In ­Milton Keynes Toulson LJ noted that that the systematic consideration of possibilities could become a process of elimination “leading to no more than a conclusion regarding the least unlikely cause of the loss.”  Milton Keynes set out that “at the end of any such systematic analysis the court has to stand back and ask itself the ultimate question of whether it is satisfied that the suggested explanation is more likely than not to be true.”

Appeal Findings

Tomlinson LJ, dismissing the claimant’s appeal:

  • There was a distinct difference between this case and the Milton Keynes case. In this case there had been no thorough forensic investigation into the fire. The flying brand theory was improbable but the arson theory had not been investigated in order for there to be any comparable scientific improbability about it. There were also several other theories (smoking materials, cooking or heating appliances) that had not been considered.

  • This aside, the process of reasoning which lead to the trial judge to conclude that  the claimant had succeeded on causation was fatally flawed:

- It was clear that the single answer from the defendant’s expert in cross examination had shifted the trial judge’s view. Without it the trial judge would have found that the claimant had not proved her case.

- That question should not have been put to the expert as it required a conclusion of mixed fact and law which should have been determined by the judge.

- Further, it was put forward on the false premise identified by Milton Keynes, that if arson was excluded then the alleyway fire had to be considered, on the balance of probabilities, the cause of the fire. It ignored the possibility that the Claimant had simply failed to prove the cause of the house fire.

  • The trial judge failed to stand back and ask the ultimate question which was whether she was satisfied that the suggested explanation was more likely than not to be true. Accordingly, the claimant’s appeal was dismissed.

  • Whilst it was not necessary to consider the issues of negligence, the trial judge’s conclusion on this point fell into the area of decision-making that an appellate court should be slow to interfere with. The finding on negligence was upheld.


Graves v Brouwer, like the Popi M, is one of those very rare cases where Courts fall back on the burden of proof and decline to make any finding as to the cause of an incident which has been brought to them for determination.  In the authors’ experience, Popi M type arguments often arise in fire cases, because there are usually multiple possible causes and limited physical evidence in the aftermath of the fire to conclusively determine causation. As Milton Keynes v Nulty shows, succeeding in establishing causation in such situations depends on a thorough forensic investigation. In Graves v Brouwer, perhaps because of the relatively modest nature of the damage, there was no such thorough investigation of the cause of the fire and so the Court was ultimately left with too many unanswered questions.

The case underscores the importance of collecting evidence immediately after the event. If loss adjusters, experts and solicitors can work together at that stage to ensure good evidence is collected, property insurers may stand to save legal costs at a later date as the need to resolve uncertainties in evidence is reduced.  Once the evidence has been collated, it is vital to subject it to rigorous scrutiny to ensure it that it is robust enough to support your case to trial.


For further information please contact Rachel Coppenhall, Senior Solicitor on +44 207 645 9557  or Elliott Bromley, Senior Associate on +44 207 280 8907.

By Rachel Coppenhall and Elliott Bromley

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.