|Catchwords|| NEGLIGENCE – Product liability – Causation – House fire damaged respondents’ home in 2003 – Competing expert evidence as to the whether the fire was caused by evaporative air cooler or downlights – Whether evaporative air cooler manufactured by the appellant was the cause of a house fire – Whether judge erred in rejecting alternative theories as to cause of fire – Whether findings were against the evidence and weight of evidence
51 In any event the ascertainment of causation did not require the judge to be certain or even persuaded on the balance of probabilities as to everything concerning the events in issue before him. In the end, whatever uncertainties or mysteries remained as to the individual facts and circumstances, it was sufficient for his Honour to decide, as he did, that he was satisfied, in the sense of reaching a state of actual persuasion, that the concatenation of circumstances of which there was evidence rendered it more likely than not that the capacitor caused the fire.
106 Apart from anything else, it was clear beyond peradventure that, when the air cooler was switched back on at 8.00 am on the day of the fire, it resulted within minutes in the smoke in the house becoming thicker, the emission of an electrical smell from the unit and then the power to fail. Mrs Jeffrey sensed that there was ‘something terribly wrong’ and almost immediately she could see that smoke was billowing from the air cooler. Moments later, it burst into flames. Subject to other competing hypotheses, those facts implied that the air cooler had failed.
107 Contrary moreover to the submissions advanced on behalf of Seeley, so to reason was not to resort to post hoc propter hoc syllogism but rather to bring to bear on a common sense issue of fact the reality of everyday life experience. Logic and common sense imply that, if one turns on an electrical appliance and, within moments, it results in the emission of smoke, the production of an electrical smell, the mains power to fail and then smoke and flames to issue from the appliance, there is a fair chance that the appliance has suffered an electrical breakdown.
113 We think that submission to be misplaced. So far from it being an exercise in conjecture to eschew consideration of supposed but unidentified competing hypotheses, it would have been quite improper to take them into account. As has been explained, even in a criminal case it is unnecessary to do more than exclude reasonable hypotheses consistent with innocence; and in a civil case such as this, a tribunal of fact is entitled to be persuaded of what is alleged by identifying the circumstances which render it more probable than not. More precisely, a trial is not an inquiry into the truth of every fact and circumstance in the sequence of events under consideration. It is a rational adjudication of the issues inter se. And it is to be determined according to the pleadings. Where, therefore, it is alleged that the cause of a catastrophe was one thing and the defence is that it was another, the outcome should, in all but exceptional cases, be decided on the evidence according to which of them is the more likely.
David Cormack – Brisbane Barrister.