Sherlock Holmes, 221B Baker St, London, famously relied on logic
to solve his cases, beginning with the principle that once you have
eliminated the impossible, "whatever remains, however
improbable, must be the truth".
But the UK Court of Appeal in Graves
v Brouwer1 has unanimously agreed that it is not
always appropriate to apply Sherlock Holmes' reasoning to
The case of the flaming embers
The defendant, Mr Brouwer had set light to two A4 size pieces of
paper and two A4 size pieces of cardboard in a narrow alleyway
which separated his property from his neighbour's, Miss
Graves. Thirty minutes later, Miss Graves' house caught
Miss Graves brought proceedings against Mr Brouwer, alleging
that embers from his fire had floated up and ignited combustible
material in her roof eaves.
There was no forensic investigation of all the potential causes
of the fire, such as arson, smoking materials, cooking/heating
materials, or anting (birds picking up discarded cigarettes and
returning them to their nest). The parties' experts
acknowledged that the lack of forensic evidence hampered the
efficient determination of the cause of the fire.
The High Court found that the damage at Miss Graves' house
had been caused by Mr Brouwer. The Judge placed significant
weight on the acceptance by the defendant's experts during
cross examination that "if the court takes the view that arson
did not cause the fire then, on the balance of probabilities,
[embers from the fire] must be the cause even if
In allowing Mr Brouwer's appeal, the Court of Appeal held
that the process of reasoning which led the High Court Judge to
conclude that the claimant had succeeded on causation was flawed
for three reasons:
in the absence of satisfactory evidence, the only just course
for the court to take is to decide the case on the burden of
Sherlock Holmes' deductive logic only applies when all
relevant facts are known, so that all possible explanations, except
a single extremely improbable one, can properly be
eliminated. Here, Holmes' deductive reasoning did not
apply because there had not been a thorough forensic investigation
into all possible causes of the fire to eliminate all other
possible outcomes; and
the High Court Judge had failed to stand back and ask herself
the ultimate question whether she was satisfied that the suggested
cause of fire was more likely than not to be true. If a judge
concludes, on a whole series of cogent grounds, that the cause of
the event is extremely improbable, a finding by the judge that the
cause will satisfy the "more likely to have occurred than
not" standard, does not accord with common sense.
Chapman Tripp comments
The decision, although described by the Court of Appeal as
"by any standards a bizarre case", contains several
important points in relation to causation, in particular:
the fact that one possible cause of an event was discounted
does not automatically mean that another possible cause, however
implausible, will satisfy the causation test, and
there are cases, on the facts, in which a claimant will fail to
establish causation on the balance of probabilities if there
remains significant doubt as to a range of possible causes –
even if the plaintiff's account is the most likely amongst
The Court of Appeal of England and Wales' rejection of easy
simplifications in the causation analysis has resonance with the
recent judgment in
Vero Insurance New Zealand Ltd v Morrison2
where the New Zealand Court of Appeal upheld an insurers'
challenge to the High Court's decision to rely on modelling
evidence to allocate damage, and remediation costs, between
different earthquake events.
The Court concluded that the inherent limitations in the model
meant that it could not be relied upon to this extent. There
could be no assurance that all of the factors which might have
created the damage had been accounted for and the model did not
clearly link the damage to the cost of remediation.
Taken together, the cases reiterate that causation in fact is an
intensely factual inquiry, in which simplifications – whether
by experts or otherwise – are unlikely to succeed, even if
supported by reference to famous literary detectives.
Or as the long-suffering Dr Watson might have said were he here:
"Not so elementary, My Dear Holmes. Not so
Our thanks to Steven Li for writing this Brief
1  EWCA 595
2  NZCA 246
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
We discuss Robinson Helicopter Company Incorporated v McDermott  HCA 22 .
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).