Insurance And Reinsurance - 5 February, 2013

Nulty & Ors v Milton Keynes BC

Causation test when neither cause seems likely

http://www.bailii.org/ew/cases/EWCA/Civ/2013/15.html

Weekly Update 40/11 referred to the first instance decision in this case. The claimant alleged that a fire at its premises was caused by a self-employed engineer, who was insured by NIG. Edwards-Stuart J held that the insured had breached a notification condition and there was no appeal from that decision. The judge had also determined that the claimant had proved its case that the engineer had caused the fire. In so doing, he had held that neither possible cause of the fire (arcing from a disused cable or a cigarette end discarded by the engineer) seemed likely, but that the arcing possibility was no more than a remote possibility and was "very much less likely than" the cigarette explanation. He found that that was enough to discharge the claimant's burden of proof. The defendants appealed against that decision.

The Court of Appeal has found that the judge had reached the right result on the evidence but had applied the wrong legal test. In reaching this conclusion, the Court of Appeal referred to the The Popi M [1985] in which Lord Brandon rejected the proposition that once the impossible has been eliminated, what remains must be the cause (however improbable). There, the House of Lords concluded that in some cases, the result may be that no cause is proven on the facts.

Here, the Court of Appeal held that there is no rule of law that once all other possibilities have been eliminated, the one remaining possible cause must be correct. Furthermore, "The civil "balance of probability" test means no less and no more than that the court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing". The balance of probability should not be expressed in percentage terms (eg more than 50% probability). The balance of probability in favour of a finding that the cigarette had caused the fire had been satisfied in this case, with the circumstantial evidence proving compelling.

Wall v Mutuelle de Poitiers Assurances

Governing law for an issue concerning expert evidence

http://www.bailii.org/ew/cases/EWHC/QB/2013/53.html

The English claimant was injured in a car accident in France. He commenced proceedings in England against the other driver's French insurers (pursuant to the ECJ Odenbreit case). There was no dispute that the other driver had been negligent and judgment was entered in favour of the claimant. Damages fell to be assessed and the following issue arose: Does the issue of which expert evidence the court should order fall to be determined by reference to:

(a) the law of the forum (English law) because this is an issue of "evidence and procedure" (under Article 1.3 of the Rome II Regulation); or

(b) the applicable law (French law) because this is an issue relating to "the nature and the assessment of damage" (under Article 15 of Rome II)

It was not disputed that the Civil Procedure Rules (and, in particular, CPR r35) applied because rules as to expert evidence are plainly a matter of...