Christopher Stanley Smith v Turney William Logan & Anor

In this case AXA, the property insurers of the Claimant, Mr Christopher Stanley-Smith, the owner and occupier of a property at 9 Vale Terrace, Calder Vale, near Preston (“No.9”), sue through him the Defendants, Mr Turney William Logan (“Mr Logan”) and Mrs Sue Logan (“Mrs Logan”), as the owners and occupiers of the adjoining connected property at 10 Vale Terrace (“No.10”), with a view to recovering from their property insurers their outlay in dealing with the financial consequences of a fire occurring on 8 May 2018 which started in No.10 and spread to No.9.

Shortly before the trial commenced quantum was agreed subject to liability in the sum of £350,000, so that the only two remaining issues I have to determine are those of liability and causation.

At the heart of this case are the following two questions, both of which must - of course - be decided on the balance of probabilities.

The case was well presented by the lawyers on both sides and the points in issue were well argued by counsel for the Claimant, Mr Fraser, and counsel for the Defendant, Mr McLaughlin.

Mr Smith did not give evidence and nor did his wife or either of his two children. The only issue identified by Mr McLaughlin which he submitted ought to have been addressed by factual evidence from the Claimant’s side was whether or not the elder daughter, Courtney, had been smoking before the fire. I shall address this later in this judgment.

Both Mrs Logan and Mr Logan gave evidence. They were both honest and genuine witnesses, doing their best to assist the court. The accuracy of their recollection was hampered by the lapse of time and by the fallibility of recollection of an event which was unexpected, fast-moving and traumatic. I am therefore inclined to place more weight on their contemporaneous recollections than on their oral evidence, insofar as there is a material difference, and I am not satisfied as to the reliability of Mrs Logan’s recollection as to how and why the cable came to be installed as and where it was and the nature and frequency of its use thereafter.

There was additional evidence in the form of accounts taken by the fire investigators instructed by the respective insurers / loss adjusters post-accident, including photographs and statements from the Fire Service.

As stated in Phipson on Evidence (20th edition) at paragraph 29-02, “the scheme of the [Civil Evidence] Act [1995] is to provide that hearsay is admissible in civil proceedings, and to set out procedures for the purpose of ensuring that hearsay evidence is given appropriate weight. Section 2 states that a party intending to adduce hearsay evidence must give notice of that fact. Section 2(4) provides that a failure to give notice goes to costs and weight but not admissibility”. Further, as stated in paragraph 29-08, section 4 relates to the weight to be given to hearsay evidence, where the court “shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence”, including the seven specific matters identified in s.4(2)(a)-(f).

The authors also observe at 29-16 that “the Act is not intended to provide a substitute for oral evidence. The basic principle under which the courts operate is that evidence is given orally with cross-examination of witnesses, and the admission of hearsay evidence is, and should be, the exception to the rule. Caution should be exercised before tendering important evidence through hearsay statements. Hearsay evidence is better used where the evidence is peripheral or relatively uncontroversial. Faced with a conflict between a written statement not tested by cross-examination and oral evidence, the judge will usually prefer the oral statement”.

The observation in 29-16 is entirely apt where, for example, there are competing witnesses to key disputed events, especially where there is little or any relevant contemporaneous documentation, and where one side calls witnesses who are cross-examined whereas the other does not, without any good reason. However, I do not consider that the observation applies with the same force where – as I find is the case here: (a) the hearsay evidence is contemporaneous evidence, recorded in circumstances where it is likely to be more reliable than the oral recollection of witnesses at trial seven years after the event; (b) there are good reasons for not wanting to compel the particular witness to come to court, if not obviously necessary; (c) it was not reasonably obvious to the side relying on the hearsay evidence than it was going to be the subject of fierce controversy at trial.

In the circumstances, I will place such weight on such of the contemporaneous hearsay evidence to the extent justified in accordance with the statutory criteria referred to above, and especially to the extent that it appears reliable.

I also heard evidence from the two fire investigation experts, Dr Paul Jowett of the well-known firm Burgoynes for the Claimant and Dr Carl Butler of the equally well-known firm Hawkins for the Defendants. Dr Jowett had replaced Mr Stephen Hammond of Burgoynes, who had undertaken the initial investigation and produced the initial reports, because of Mr Hammond’s subsequent and sad death between then and now.

Both witnesses were obviously expert in their field. For reasons I shall give I find the opinions of Dr Jowett more compelling in this case than those of Dr Butler.

There are two key areas of law which are relevant in this case, neither of which are controversial.

The first is the proper approach to deciding whether or not a claimant has proved its case on the balance of probabilities where there are said by the defendant to be at least two – and, as in this case, more than two - potential causes of the incident in question.

The most comprehensive analysis is to be found in the judgment of Coulson J in Palmer v Nightingale trading as Andover Pest Control [2016] EWHC 2800 (TCC), another fire case in the TCC, where he expressed the position in these terms.

“50.

In circumstances where there are a number of potential causes of a fire, it is not appropriate for the Court to work through each potential cause, identify the least improbable, and then fix that as the cause of the accident or fire. The House of Lords made that clear when overturning the original decision in The Popi M (Rhesa Shipping Co SA v Edmunds) [1983] 2 Lloyds Rep 235. It is always necessary for the judge to stand back and consider whether the claimant has proved, on the balance of probabilities, that their case as to causation was, on the balance of probabilities, more rather than less likely.

51.

This was neatly summarised by Thomas LJ (as he then was) in Ide v ATB Sales Limited [2008] EWCA Civ 424 when he said:

“4.

…In the vast majority of cases where the judge has before him the issue of causation of a particular event, the parties will put before the judges two or more competing explanations as to how the event occurred, which though they may be uncommon, are not improbable. In such cases, it is, as was accepted before us by the appellants, a permissible and logical train of reasoning for a judge, having eliminated all of the causes of the loss but one, to ask himself whether, on the balance of probabilities, that one cause was the cause of the event. What is impermissible is for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event; such cases are those where there may be very real uncertainty about the relevant factual background (as where a vessel was at the bottom of the sea) or the evidence might be highly unsatisfactory. In that type of case the process of elimination can result in arriving at the least improbable cause and not the probable cause.

…

As a matter of common sense it will usually be safe for a judge to conclude, where there are two competing theories before him neither of which is improbable, that having rejected one it is logical to accept the other as being the cause on the balance of probabilities. It was accepted in the course of argument on behalf of the appellant that, as a matter of principle, if there were only three possible causes of an event, then it was permissible for a judge to approach the matter by analysing each of those causes. If he ranked those causes in terms of probability and concluded that one was more probable than the others, then, provided those were the only three possible causes, he was entitled to conclude that the one he considered most probable, was the probable cause of the event provided it was not improbable.”

This passage was recently approved by the Court of Appeal in Graves v Brouwer [2015] EWCA Civ 595 at paragraph 24.

52.

The importance of the judge standing back so as to ask the critical question as to whether the claimant's suggested explanation is more likely than not to be correct was emphasised by Toulson LJ (as he then was) in Milton Keynes Borough Council v Nulty & others [2013] 1 WLR 1183 . He said:

“34.

… Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. As Lord Mance observed in Datec Electronics Holdings Limited v UPS limited [2007] 1 WLR 1325 , at 48 and 50, there is an inherent risk that a systematic consideration of the possibilities could become a process of elimination ‘leading to no more than a conclusion regarding the least unlikely cause of loss’, which was the fault identified in The Popi M. So at the end of any such systematic analysis, the court has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact: there is no rule of law that it must do so.”

53.

More recently, the proper approach was summed up by Carr J in this court in Cooper v Thameside Construction Company Limited [2012] EWHC 1248 (TCC) as follows:

“114.

It is therefore common ground between the parties in principle that in a competing theories case:

a)

The court is entitled to engage in a systematic analysis of competing theories and eliminate one in favour of the other;

b)

That, in itself, may lead to the conclusion that the preferred theory is more likely than not to be true; but

c)

The court must always then stand back and ask itself the ultimate question as to whether or not the preferred explanation is more likely than not to be true.”

The second key area of law is the interplay between nuisance and negligence, and the relevant principles applicable to both, in a case such as the present.

In opening submissions, Mr Fraser accepted that although the claim is pleaded in both nuisance and negligence there is unlikely be a material difference in the tests to be applied in both. He referred to Clerk & Lindsell on Torts 24th Ed at 19-38:

“If the defendant knew or ought to have known that in consequence of his conduct harm to his neighbour was reasonably foreseeable, he is under a duty of care to prevent such consequences as are reasonably foreseeable. In such case the defendant is liable because he is considered negligent in relation to his neighbour, and here nuisance and negligence coincide.”

This is consistent with Mr McLaughlin’s opening and closing submissions, where he argued that the sole question was whether or not Mr and/or Mrs Logan knew or should have known there was a reasonably foreseeable risk of danger to the neighbouring house from the cable.

Given the slightly unusual circumstances in which the cable came to be installed and used, Mr Fraser noted that the reference to “his conduct” in the context of claims of this kind (i.e. claims against the owners and/or occupiers of land) includes the conduct of those who: (a) are directly responsible for the activities in question; (b) authorised them; (c) continued or adopted them (where continuing is when “someone who has knowledge or presumed knowledge of their existence fails to take any reasonable means to bring them to an end, though with ample time to do so, and where adopting is when someone makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance” (Clerk & Lindsell on Torts 24th Ed at 19-72 and 19-73 and Sedleigh-Denfield v O’Callaghan [1940] A.C. 880 at 894 per Lord Maugham).

Mr Fraser also referred me to my own summary in a previous case (Partakis-Stevens v Sihan [2022] EWHC 3249 (TCC) at paragraph 155) of what Laws LJ had said in Arscott v the Coal Authority [2004] EWCA Civ 892 at paragraph 58 about the need for foreseeability of damage:

“Arscott is also a helpful authority in fleshing out the requirement that damage be reasonably foreseeable as a condition of establishing liability in nuisance. This requirement was authoritatively recognised by the House of Lords in Cambridge Water Co v Eastern Counties [1994] 2 AC 264 – and see again Clerk & Lindsell at [19-38]. [Arscott] is particularly useful because it contains some helpful observations about how a court should approach the issue of reasonable foreseeability. It confirms that: (a) the issue of reasonable foreseeability is a question of fact not one of law; (b) the question is what was reasonably foreseeable at the time of the nuisance, not at a later date; (c) it is reasonable to enquire what those involved at the time did in fact foresee; (c) Laws LJ plainly approved the succinct statement by the trial judge that "there is a difference between what is theoretically capable of being foreseen and what is reasonably foreseeable"; and (d) an event may be reasonably foreseeable even though the precise mechanics of its causation are not, but that there must be "some understanding of the chain of events which is putatively foreseen; otherwise we are looking not at foresight, but divination".

That concludes my reference to the legal principles and I now turn to the facts.

Calder Vale is a small village in rural north Lancashire. Vale Terrace is a row of well-established terraced houses in Calder Vale. No. 9 was an end terrace house (with an access road giving access to the rear gardens of the houses between No.9 and No.7) and No.10 immediately adjoined it.

Mr and Mrs Stanley-Smith became the owners of No.9 in 1991 and have remained the owners ever since. At the time of the fire they lived there with their two children, with the eldest (Courtney) then being 18 years old.

Mrs Logan acquired No.10 (also in 1991) with her then husband. They separated and, as it appears from her evidence and the title register, there was a divorce as a result of which she became the sole legal and beneficial owner in 1995 after which she continued to live there with her children.

In around late 2005 Mrs Logan invited her then partner, Mr Davies, to move in temporarily with her whilst he was between flats. Tragically, shortly after moving he was diagnosed with a serious brain tumour and, after initial admission and discharge from hospital, it was agreed that he should remain at No.10 where he lived until 2007 when he died. Although this trial is not concerned with these matters, I can only express my admiration for Mrs Logan in caring for her partner in this way and in these circumstances.

Turning to the detail of the layout of the relevant areas of No.9 and No.10, due to the destruction wrought by the fire this can only be ascertained from such contemporaneous photographs are available, from the post-fire investigations of the remains and from information (to the extent that it is reliable) obtained from the Stanley-Smiths and the Logans.

No.9 had a rear ground floor conservatory built close up (65cm approx.) to the boundary with No.10 and extending out about half of the rear garden area. Because the boundary consisted of an open chicken wire fence, and because Mrs Logan wanted privacy for her rear garden and also some additional storage room, she bought three wooden flat-pack self-assembly sheds from a local company, two of which she erected close up to the boundary with No.9 on concrete flagging already present. The third she erected to the rear of the garden. She sited each of the sheds on top of two wooden planks, so that they were raised up from the concrete flagging to provide protection from water ingress from below. It appears that she initially intended one shed for storing her children’s bicycles. The shed closer to the rear of the house has been referred to for convenience as shed 1 and the other behind it as shed 2. However, between shed 1 and the rear of the house was enough space for two existing propane gas cylinders (needed because there was no mains gas supply) to be sited as well as a wheelie type refuse bin.

The dimensions of the sheds are not known but, judging from the photographs, they were approximately square shaped, with pitched felt roofs running down from the top ridges which ran parallel to the end of the house. There was a small overhang but no guttering. It appears that it was only these small overhangs which separated the rear side wall of shed 1 from the front side wall of shed 2. They had no windows but did have doors at the front. They were made of softwood, probably pine, tongue and groove panels. There is no evidence as to the floor construction.

When Mr Davies moved in he brought his own household items with him. He put them in the two sheds, to prevent the house from being cluttered. These items included, so Mrs Logan said in examination-in-chief – although she was not entirely sure, a fridge in shed 2. Her recollection was that he wanted not only to store but also to use his fridge whilst it was in the shed. This is the most likely explanation for what otherwise would have been a very odd thing for him to do and for her to give him permission to do, which was to provide an electrical supply to the rear shed. He was an office worker rather than an electrician or builder. He had no electrical training or aptitude and no particular enthusiasm or skill in DIY. However, what he decided to do and what he did was: (a) to drill a hole in the rear wall of No.10 at around head height, adjacent to the existing double French doors from the house to the rear garden area; (b) to obtain (there is no evidence from where) a domestic grade extension lead for internal use with a four socket end; (c) to remove the plug from the cable, draw the cable through the hole he had made in the wall, to reconnect and connect the plug to an existing electricity socket located at low level in the rear corner of No.10 (which was then, as now, the kitchen); (d) to run the cable past (either above or below or through or to the side of shed 1) so that it entered shed 2 where the plug of the fridge could then be connected to the cable so as to provide an electrical supply for it to be used.

A domestic grade extension lead does not have steel armouring, such as would give it additional protection against impact or other damage, including attack by rodents who, as is well known, have a propensity for gnawing through the protective rubber / plastic coating on electrical wiring and thereby causing the electrical circuit in question to fail.

Mrs Logan said that she had no idea why he did this. She said that she was not really interested. I find this surprising and implausible. I find as a fact that she either knew or believed, correctly as I find, that he did put a small fridge (or, possibly, freezer) in there and connected it to the cable to provide power to use the fridge / freezer for his own purposes, most likely to store products which he used and needed to be kept chilled or frozen. There is no other rational explanation on the evidence for him to have done what he did and for her to have been willing for him to do so without further enquiry.

In any event, what is most important for present purposes is that Mrs Logan knew that he had installed the cable in this way and knew that it was connected to the mains electrical supply in the kitchen and was being used for some reason in shed 2.

As I have said, there is no direct evidence how the cable was routed from the rear wall to or past shed 1. Mrs Logan is simply unable to recall. The investigating fire officer believed it must have been run along the ground, because there was no evidence of any slack indicating it had been run at high level and had collapsed during the fire nor of any join in the cable. Dr Butler reported to Mr Hammond that Mr Logan could not remember whether it ran at high level from the rear wall to the roof of shed 1 or ran at low level. In their letter of response to the letter of claim the Defendant’s solicitors stated “Mr and Mrs Logan were also unaware of the exact position of the cable as it ran through the yard area. The cable either ran underneath or behind the shed nearest to the rear of the property before going into the second shed”.

In the experts’ joint statement Dr Butler recorded that: “It was reported by Mr Logan that the cable was routed to the rear corner of the southern shed, where it passed inside. It is unknown whether the cable remained at high level once inside the southern shed and subsequently exited the first (and entered the second) at high level, or whether it was routed to a lower level at some point”.

However, in his witness statement made in April 2025 Mr Logan, whilst accepting that “it's all a bit of a blur now”, stated that “the cable came out at a high height so it was not lying on the ground. It then ran through the air to that first shed and then, I assume, it ran through to the second shed. There may have been a spur in the first shed”. He was insistent in cross-examination that this had always been his recollection and could not explain how he had been reported as saying otherwise.

I accept that Mr Logan genuinely believes this and that he was not saying it because in any way he was seeking to argue the case or in some way to minimise any responsibility either he or Mrs Logan might have for the fire. Nonetheless, for a number of reasons, his account is not credible and I find on the balance of probabilities that the cable was routed down the external rear wall and then across the concrete flags, possibly along the boundary with No.9 where it was less likely to be in the way, and then either through shed 1 at floor level or under the shed, before passing out and then entering shed 2 at floor level.

If Mr Logan’s memory is correct on this point, the cable was placed on a shelf at waist level in shed 2. His memory is likely to be more reliable on this point, since he accepts that he made use of the four way socket at the end of the cable on a reasonably regular basis, both to connect fairy lights which had been strung on the top section of a pergola built to the side of the sheds and also to power a strimmer which he used to cut the hedge to the other side and to the rear of the garden.

There are a number of reasons why I can be confident that it was not run at head height from rear wall through to shed 2. First, the only evidence in support is that of Mr Logan, and his evidence is at best not particularly reliable on this particular point, given the evidence referred to above. Second, although the photographs do not capture the whole area, no such cable can be seen on the photographs. Third, the experts agree that if, as appears likely, the cable tripped before the fire was first observed, then whatever the precise cause of that trip it is much less likely to have happened if the cable had been at head height above or within shed 1. Fourth, the conclusion of the fire officers deserves weight. Fifth, it would be an obvious obstacle if it had been routed at head height, especially given that the area was in use for wheelie bin storage and propane gas cylinder storage. Sixth, if Mr Davies was prepared to run the cable up the internal wall and then out, there is no particular reason why he should not have decided to run it down the wall again and along the flagging if that made the result less obtrusive and less of a risk of obstruction. He might well then have run it down and then along the base of the rear wall and then under shed 1 or outside it, possibly along the boundary area, where it would also be less likely to cause an obstacle at foot height. In the end, I am satisfied that Mr Logan now has a genuine but erroneous recollection.

Nonetheless, it is not possible for me to make a clear finding as to whether the cable was routed inside or under shed 1. The route described above (i.e. under the shed or outside it along the boundary) has the merit of simplicity. Equally, however, there are reasons why it might well have been routed inside shed 1. Given that Mr Davies would have needed to drill a hole for the cable to enter shed 2, as it appears he must have needed to do, then it would have been relatively easy to drill holes in shed 1 at the same time and run the cable through shed 1 at low level at the back.

Further, as discussed below, I am also not convinced by the reliability of Mr Logan’s recollection that when he first saw the flame it was clearly coming from underneath shed 1. However, I accept that the evidence is not sufficiently strong either way for me to make a firm finding. The experts were prepared to accept that neither option can be discounted. Whether the fire started inside the shed or under the shed is relevant to the initial cause of the fire but, in either case, flames could have been seen coming from under the floor, either because the fire had started under the shed and taken hold of the wooden floor, or because the fire had started at ground level inside the shed and had spread under the shed, especially if there were gaps between the floor panels.

Moving on in time, Mrs Logan said in her evidence that after Mr Davies died she moved a small freezer from a static caravan into shed 2 and connected it to the cable. Her evidence was that she used the freezer for additional freezer storage space when she needed, particularly around Christmas, but not all the time, and when she was not using it she unplugged it from the socket. In re-examination she said that she thought it was probably only plugged in about two months every 12 months. However, she had accepted in cross-examination that it was being run “24/7 without her presence”. Bearing in mind that if she unplugged the freezer between uses she would have to defrost it on every such occasion, I am satisfied that even on her own evidence it was on for more of the time than it was off. In any event, even on this account, it plainly was on for repeated extended periods of time over the period from after 2007 to 2018.

What, however, makes me satisfied that this account is unreliable is that it is markedly inconsistent with the clear account recorded in Dr Butler’s contemporaneous notes of his discussions of what he was told by Mr Logan on 17 May 2018, which being contemporaneous is most likely in my view to be reliable. What is recorded there is that (a) there were two freezers in shed 1, a large one which “Sue thinks was plugged in” and “running all [the] time” and a smaller one which was “plugged in after winter”; (b) they were used only by his wife” who “went out once a week” since it was an “over-flow freezer” “bought new 6-7 years” ago.

That account is similar with what Mr Logan said in his witness statement, which was that: (a) “as far as I can remember there was a freezer connected to it. I think there was two freezers in there. One of them might have been a freezer that we had taken from a static caravan that we used to have”; and (b) “she went in and out, it was like a backup freezer for long term storage and she would buy things in bulk maybe”. I also note that the witness statement of Mr Stone, the Fire Service attending incident intelligence officer, records that he had initially been told by Mrs Logan that there was only a small freezer in the shed which had only been turned on a couple of days before the fire (paragraph 16), whereas after he had discovered the remains of two freezers she had “confirmed that both freezer appliances were plugged in and running” (paragraph 23).

Further, I note that in the Amended Defence it was pleaded in terms, at paragraph 10(b), that: It is admitted two freezers were kept in shed 2, one of which was plugged in to a socket but the other may not have been. The freezer that was plugged in had been installed by the 2nd Defendant’s former partner at or about the same time as the cable that supplied power to the socket in the shed, not in 2012 as alleged. The other freezer was a small appliance that had been taken out of a caravan and was not used” (amendment underlined).

Whilst these discrepancies were not put to Mr or Mrs Logan in plain terms in cross-examination, in my judgment the account given by her in oral evidence lacks credibility and consistency. I find it to be clear that, whatever else was in shed 1, a larger freezer was in there from at least 2012 onwards and was used “24/7” for regular storage, which explains why Mr Logan recalls Mrs Logan going out to shed 1 reasonably regularly. I find that Mrs Logan has confused the position before the second freezer was acquired with the position before the fire. I must also say that there seems to me to be some evidence of minimisation in her evidence as to the extent of the use made of the cable pre-fire, which is perhaps not surprising if she believes that it was the use of the cable to power the freezer which was the cause of the devastating fire. However, on any view what cannot be denied is that at the time of the fire there was at least one freezer in shed 2 which was running and w connected to the cable and was used on at least a reasonably regular basis.

Moving on in time once more, at some point Mr Logan met Mrs Logan, they developed a relationship and soon afterwards married and he moved into No.10 in around 2014, when the property was transferred into joint names. As I have said, whilst Mr Logan did not personally make use of the freezer in shed 2, he knew that the cable was there and was used to power the freezer. He also obviously would have consumed the food that was kept in it. He also used the cable for other purposes as described above, although he would always remove the plug for the fairy lights (because it had no separate on/off switch) and for the hedge strimmer after use.

On their evidence, neither Mrs Logan from the start nor Mr Logan when he moved in gave the question of whether the cable constituted a safety risk any real thought. Mrs Logan appears to have regarded it as something which Mr Davies had done for his own purposes and which had never caused a problem and which she had continued to use for her freezer because it was convenient and was there. She accepted in cross-examination that she knew that electrics presented a danger if incorrectly installed and used, not just because of the risk of electrocution but because of the risk of fire, which is why she would always have used an electrician to undertake any electrical works. However, because it was a cable serving a freezer in a garden shed it did not occur to her that this fell within the category of electrical works. She did not really give any thought to the difference between a domestic grade and an external grade cable, with the latter being armoured to give protection against physical impact, including rodent damage.

As to rodent damage, she accepted that because of the exposed rural location of Vale Terrace, with fields behind, there was a problem with mice getting into the property. There had been a previous occasion when there had been an electricity trip in the house and the electrician who they had called out had found that a mouse had gnawed through a cable in the underfloor. However, neither on that occasion nor when, in around 2017, the kitchen had been upgraded and an electrician employed to provide additional wiring and sockets, had either said anything about the cable installation. Neither had either Mr or Mrs Logan thought of asking them for advice on the point. None of this is particularly surprising, in that unless either electrician was especially observant or safety conscious they might not necessarily have seen, let alone thought it their business to offer unsolicited advice about, the cable and its safety.

Mr Logan did not know that the cable had been installed by Mr Davies or anything about Mr Davies’ electrical ability. However, he either knew or could have discovered that it was a domestic grade extension lead. He accepted in cross-examination that he knew that electrical installations were potentially dangerous and he would have employed an electrician to install fixed electrical installations and, indeed, had done so in the past to provide a fixed supply to an outbuilding. However his view was that this was not a fixed supply and that he had no reason to think it was unsafe.

Both Mr and Mrs Logan said, and there is no evidence to contradict this, that they had never had any problems with the cable and had never noted any damage or deterioration to the cable, although equally neither had ever specifically examined the cable for that purpose.

By the time of the fire shed 1 had various things inside it, including flammable items such as clothing, weedkiller, candles, gel burners and paint (from Dr Butler’s contemporaneous notes). It also had one or possibly more old tablet type electronic devices, one being referred to as a Kindle. in it.

That, then was the position in relation to events as they stood and the position prior to the fire.

The fire occurred in the early evening of Tuesday 8 May 2018, the day after what was the May bank holiday Monday that year, The weather had been fine and very hot until the Monday, when “it rained – damp day and rain”, whilst remaining very hot, and then “raining all day Tuesday”, as recorded in Dr Butler’s contemporaneous notes of his discussions with Mr & Mrs Logan on 17 May 2018, which I am satisfied is reliable.

Mr Logan returned home from work at around 5pm. Normally, he would have smoked a roll-up cigarette outside in the pergola area before coming into the house, using an ashtray on the table under the pergola placed there for that purpose but, because he was not feeling well his recollection is that he did not do so on that occasion. Mrs Logan and her child were already in the house and, after an early evening meal together, he went to watch TV in the lounge and they retired to their bedrooms, because they were also feeling unwell.

At about 6:30pm the TV went off and Mr Logan swiftly realised that all of the other mains electrically powered items were no longer working either. Having been told what to do by the electrician who had previously come out when the cable was damaged by mice, he went to the consumer unit in the lounge, turned off the main supply socket and the individual circuit supply sockets, then turned back on each circuit socket one by one, but each time the supply tripped again. He then started to disconnect each individual electrical socket in each room and tried again each time, starting with the kitchen, continuing with the lounge, and then asking Mrs Logan and her child to do the same upstairs.

At some point he realised that he had not disconnected the socket supplying shed 1 and, going back into the kitchen, saw what he described to Dr Butler in the first interview as “Fire out from under shed, burning from corner & onto 2 x gas canisters, underneath first shed, impinging onto gas cylinders”. It is a mystery why in his initial report Dr Butler simply stated that Mr Logan had said that “the flames were “shooting out” from the shed”. The implication appears to be that Dr Butler did not place much reliance on Mr Logan’s recollection of the fire emanating specifically from under the shed. Not surprisingly, Mr Logan was completely taken aback by what he saw and, immediately realising that there was no chance of putting it out himself, the only option given the presence of the gas cylinders, was for him, Mrs Logan and her child to flee the house and call the Fire Service, which is what he did at around 7pm.

I do not think that I can place any considerable weight on the precise detail of his snapshot first and only view of the fire he saw in the area of shed 1 given that it was, on any view, a terrifying thing for any householder to see in such circumstances.

It took some time for the Fire Service to arrive and to find a suitable water supply to fight the fire. They were also hampered because they soon decided that they could not safely attack the fire from the rear due to the danger posed by the propane cylinder, one of which was full of gas. The end result was that the fire spread to both houses (as regards No.9, because the conservatory caught fire first and then spread to the eaves and then caught firm hold), which were both effectively destroyed. Fortunately, no-one was injured and the rest of the houses in the terrace were undamaged.

The events afterwards were traumatic for the occupants of both houses, and it took a long time before the houses could be rebuilt and they could move in again. However there was no need to address these matters at trial, given the agreement of the value of the claim.

The final factual aspect I need to address is the evidence in relation to the occupants of No.9 and, in particular, whether or not the elder daughter Courtney may have been smoking before the fire and why neither she nor the Claimant or any of the members of his family were called as witnesses at trial.

The first report of Mr Hammond, Dr Jowett’s predecessor, records that he met Mr Stanley-Smith and his wife on site on 15 May 2018. It records that he was told that: “At the time of the fire Mr Stanley-Smith was away in Swansea but Mrs Stanley-Smith and their two daughters, Courtney, aged 18 years, and Sophie, aged 12 years, were at home. I understand that Courtney is the only smoker in the family but that she did not smoke during the afternoon of 8 May 2018 ‘as she was trying to give up’”. It continues: “Mrs Stanley-Smith explained that during the evening of 8 May 2018 she was in the conservatory with her two daughters with the window open when she could smell an unusual burning smell … [S]he assumed that her neighbours … were having a barbecue. Accordingly, she shut the conservatory window. A short time later she was in the front part of the house and could detect the smell there as well so she returned to the kitchen. … Once in the rear yard she saw smoke coming from the neighbouring yard ... Looking into the yard of [No.10] she saw flames that she described as “bright orange and strong” coming from the vicinity of [shed 1].

Mr Hammond provided the information obtained from the occupants of No.9 to Dr Butler on a reciprocal basis, so that in their preliminary reports both were able to draw on the information provided to the other from the occupants of the other properties. It is not clear whether Mr Hammond specifically referred to the evidence about Courtney in relation to her smoking, however Dr Butler’s contemporaneous notes record that that he was told by Mr Logan that “No.9 are smokers”.

In his first report dated 22 May 2018 Mr Hammond stated: “There was no evidence to suggest that the fire was the result of deliberate human agency but such a cause cannot be eliminated on the basis of the residual physical evidence alone. With regard to accidental human agency, both Mr Turney Logan and Courtney Stanley-Smith were smokers. However, their accounts were that Mr Turney Logan smoked hand–rolled cigarettes and may not have been smoking in the yard as he returned to the property at about 17:00 hours on 8 May 2018 and Courtney Stanley-Smith did not smoke in the yard of 9 Vale Terrace that afternoon as she was trying to give up. If those accounts are accepted and given that hand-rolled cigarettes have a propensity to self-extinguish when not being actively smoked, the only potential cause involving smokers’ materials would appear to be if Mr Turney Logan had been lighting a cigarette and had discarded an ignition source into the wheelie bin. However, given that a fire in the wheelie bin would need to have developed significantly to attack the extension lead and give rise to the electrical power going off, I would expect Mr Turney Logan to have discovered such a fire when he first went into the kitchen to unplug electrical appliances from the sockets to trace the electrical fault”.

In his first report dated 24 May 2018 Dr Butler did not specifically address smoking as a cause. He did say that: “There was also a wheelie bin in the vicinity of the origin of the fire. It is possible that smouldering or burning items could have been placed in the wheelie bin or items susceptible to self-heating could have been placed inside and the fire could have originated at the wheelie bin. Had this been the case, fire attack onto nearby cables suppling the second shed could have caused the protective trips to operate and the fire was actually already developing when Mr Logan was trying to identify the fault with the electricity supply and the circuit breakers”.

In the Defence the Defendant did not plead any positive case in relation to smoking, instead pleading at par 14(g) that “the cause of the fire was and/or is unknown”.

In their joint statement made 15 May 2025 (prepared, as customary in the TCC, before exchange of reports) Dr Jowett and Dr Butler considered (at paragraph 17) the position if the fire originated under or adjacent to the base of the shed. They stated: “the Experts agree that the fire could be explained either by an incendive electrical fault on the extension lead, or by the initiation of a smouldering fire arising from the careless disposal of smokers’ materials”. Having noted the evidence referred to below about Mr Logan and Courtney as smokers who had both reported not smoking before the fire, they stated: “If [this] is accepted, then clearly a fire caused by the careless disposal of a cigarette can be discounted”.

In his separate report made 18 June 2025 Dr Butler gave this matter more attention. In relation to Mr Logan, he noted that a discarded cigarette from No.10 “could more readily reach combustible materials around or under the southern shed and cause ignition. That said, it is noted that Mr Logan smoked roll-up cigarettes and these have a propensity to self-extinguish if not being actively smoked”. He then considered the possibilities if Courtney had been smoking and suggested that: “ A cigarette from number 9 could have been discarded towards the rear of the sheds at number 10 and/or in the vicinity of the void between the conservatory of number 9 and the back of the sheds of number 10. There was only a wire mesh fence between the two properties and a cigarette end “flicked” or otherwise discarded could travel to come into contact with readily-combustible material (such as accumulated debris and leaves)”.

He then explained how a short-lived flaming fire of such material below the shed could have damaged the cable, if located there, causing the cable to trip and also to cause the underside of the shed floor to smoulder and, eventually, break out into a flaming fire shortly before it was seen by Mr Logan.

Notwithstanding these developments in his thinking, no application to amend the Defence was made to plead this as a positive case and nor, when the only witness statement served by the Claimant was from their loss adjuster directed solely to quantum, did the Defendant request that the Claimant should ensure that Courtney (or other family members) was called to give evidence, failing which it would invite the court to draw an adverse inference that the reason she was not called was because the Claimant was not prepared to expose her to cross-examination on the basis that there was reason to believe that she had indeed been smoking before the fire and had carelessly disposed of a cigarette in such a way as could have caused the fire.

In his skeleton argument for trial Mr McLaughlin noted that: “[Courtney] was apparently a smoker but no witness statement has been served from her or anyone else who was in the Claimant’s home to establish she had not been smoking. It is possible she had been smoking and discarded the stub either over the boundary or just on the No 10 side”. In his opening submissions he stated, in reply to a question from me, that he was positively submitting that, given the expert engineering evidence, the Claimant should have adduced evidence from the family.

I observed that, given this submission, the Claimant should give consideration to providing evidence as to why they had not done so. That led to a witness statement from the Claimant’s solicitor, Mr Marston-Jones, who stated that: “The reason no statement was provided by Courtney Stanley Smith is because the Claimant informed us that he did not wish to assist with the claim as it was causing distress and worry to himself, his family and his neighbours. At this stage we did not have any contact details for Courtney Stanley Smith and no way of obtaining them”.

In closing submissions Mr McLaughlin submitted that this was an insufficient explanation and invited me to draw an adverse inference against the Claimant. He readily accepted that it was not sufficient for him to identify “smoking” as a generic plausible cause of the fire, given that if that included the possibility of Mr Logan as a person responsible for carelessly disposing his cigarette that would not avail him, because the Claimant would be entitled to contend (and, if required, I would readily - given the above chronology - have given them permission to plead in reply) that if this was a plausible cause then it would have resulted from Mr Logan’s negligence. Instead, he submitted that given Mr Logan’s evidence and the evidence about the difficulty of a roll-up starting fire the only realistic smoking contender was Courtney.

In his concluding closing submissions Mr Fraser, taking me through the chronology as set out above, submitted that there was no basis for drawing an adverse inference or for concluding that the contemporaneous evidence given in reply to Mr Hammond’s enquiry could be regarded as unreliable.

Authoritative guidance was given by Leggatt JSC in Royal Mail v Efobi [2021] 1 WLR 3863 in relation to adverse inferences, where he said this (at paragraph 41):

“The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”

In my judgment the evidence of Mr Marston-Jones, although light on detail (especially the date of the conversation with Mr Stanley-Smith he refers to) is clear that the avenue of obtaining a witness statement from Courtney was closed off to him. That, I interpose, is unless AXA as the Claimant’s insurers had instructed him to seek to invoke any non-co-operation clause in the relevant insurance policy in the event that Mr Stanley-Smith refused to provide a correspondence address. Against the history and background to this matter, to which I have referred in some detail, most significantly the fact that this had not been advanced by the Defendant as something which the Claimant ought to address failing which an adverse inference would be sought, that does not seem to me to have been something which AXA or their solicitors can be criticised for not doing. In effect, they would have been expected to threaten the Claimant that unless he took all reasonable steps to enable every member of the Claimant’s family to provide witness statements and be called to give evidence AXA would sue him to recover its outlay on rebuilding the house, replacing the contents and recovering the amount spent on accommodation. That does not seem to me to have been something which they can reasonably be criticised for not doing.

Further, there was no positive evidence to indicate that what Courtney’s mother had said at the time could or should have been disbelieved. Whilst all judges should be alert to the fact that the appreciation of risks of a teenager may be less developed than that of older adults, there is an inherent implausibility in Courtney (i) having been openly or surreptitiously smoking at home, when she was meant to have given up and when her mother and sister had been present; (ii) not only carelessly disposing of an unextinguished cigarette butt (or match or similar), but also doing so at such a well-judged angle that it landed or rolled under shed 1 (directly to the side of the conservatory, and close up to it) where it happened to cause a flaming fire in dry leaves or similar material under the shed. Given the evidence that it had been raining for the last two days, it would likely have self-extinguished had it not landed either directly under shed 1 or so as to have rolled under it. Whilst I appreciate that these things can happen, and that many fires are caused by carelessly extinguished cigarettes, this seems to me to be a highly speculative suggestion at best.

In all of the circumstances I am not prepared to draw an adverse inference on the basis of the Claimant’s failure to call Courtney as a witness.

It is convenient to refer to the experts’ joint statement to identify the areas of agreement and disagreement.

The experts agree that owing to the severity and extent of the fire, the precise origin cannot be determined from the residual physical evidence. They also agree that whilst there is no evidence to suggest that the fire was the result of deliberate human agency, such a cause cannot be eliminated on the basis of the residual physical evidence alone.

Based on the witness evidence of Mr Logan, corroborated by the account given to Mr Hammond by the Claimant’s younger daughter, they agree that shed 1 was the likely location of the fire. They agree that Mr Logan’s evidence is more readily explained by a fire originating beneath shed 1 rather than within shed 1, but they also agree that it is possible that the fire started in the shed and burned outwards underneath the shed. That said, Dr Butler is more sceptical of this and they both agree that if that was the case they would have expected smoke to have been issuing from the shed.

They agreed that the tripping of the electrical supply was consistent either with an electrical fault on the cable or from some other ignition source external to the cable causing damage to the cable. They agree that there was no evidence of an electrical fault on the cable, but also that what was observable post fire meant that this was not conclusive. They are not able to say that the tripping of the electrical supply must have been caused by a fault with or damage to the cable but, as Dr Jowett said in cross-examination, as a matter of commonsense it would be a remarkable coincidence if a fault on another circuit happened to coincide broadly simultaneously with a fault on or damage to the cable.

They agreed that, if the fire was due to a defect on the cable, ignition could have occurred at the time the defect occurred or when Mr Logan was trying to re-energise the circuits (because each time that occurred that process could have resulted in a new ignition event). If, however, the cable was damaged by a pre-existing fire, that would have needed to have been sufficiently well-established to damage the cable and to lead to the flaming fire later observed by Mr Logan, but for any flames or smoke given off by that pre-existing fire not to have been observed whilst Mr Logan was in the process of trying to identify the reason for the trip.

The experts agreed that “the extension lead’s cable was not of a suitable type for providing a permanent supply to outbuildings in the manner in which it was installed, meaning that it was more susceptible to sustaining damage that could give rise to an incendive fault. A suitable supply, installed by a competent electrician in accordance with the relevant wiring regulations, would have utilised a cable that was afforded protection against the environmental conductions to which it could be exposed, including the effects of UV radiation from the sun, and the activities of fauna (Footnote: ¹)”.

Dr Jowett’s view was that “the simplest and most straightforward explanation for the fire is that it resulted from an electrical fault on the extension lead’s cable, whether or not it ran below or within the shed” and that “taking the evidence as a whole … a defect on the electrical cable, arising from it not being of a suitable standard for the purpose to which it was put, provides the most likely accidental cause of the fire”.

Dr Butler’s view was that this could have been the cause of the fire, but that if the fire started under shed 1 then that is more consistent with ignition of debris below the shed, either by smoker’s debris or by a fault on the cable if routed under the shed.

As regards the possibly of the fire being caused by some other electrical device, they noted that “the remains of lithium-ion and other batteries were recovered from the fire scene in the vicinity of the sheds and conservatory, although their original locations are unknown. Whilst these could provide an ignition source, typically, a failure of a lithium-ion battery would be an ‘energetic event’. The experts agree that “the likely ignition scenario (based on the observations at the time) is consistent with a slowly-developing fire and as such, ignition due to a battery failure is unlikely”.

In cross-examination Dr Jowett accepted that his opinion that the fire probably started due to a fault to the cable, rather than starting separately and then damaging the cable, was based on Mr Logan’s timeline of around 30 minutes between the electricity supply tripping in the house and his first seeing the fire under the shed, on the basis that if the fire had started before the electricity supply tripped he would have expected Mr Logan to see or smell the fire when he was in the process of trying to identify the source of the trip. His essential point was that if the fire was caused by a carelessly discarded smouldering cigarette then there would have to have been a transition phase for that smouldering cigarette to lead to a flame before it could damage the cable and trip the supply and, at that point, it would have continued as a flaming fire which was inconsistent with the lengthy period between the trip and Mr Logan observing the fire.

Mr McLaughlin suggested in closing submissions that Mr Logan’s not smelling any fire was explicable if Mr Logan was inside with doors and windows closed and with his sense of smell being affected by his illness. However, there is no positive evidence from Mr Logan or anyone else about either the doors and windows being closed or his smell being affected by his illness.

Mr McLaughlin suggested that it was not necessarily surprising that Mr Logan did not observe any flames if he was not in the area of the rear of the kitchen until he finally went to remove the plug serving the cable from the socket. This is a stronger point, although as against it one can see from the photographs just how visible shed 1 is from the kitchen through the double French doors.

Mr McLaughlin put to Dr Jowett what in my view is the most significant part of Dr Butler’s report, which stated:

Dr Jowett was unable to say that any of this was not possible. His principal reasons for regarding it as speculative were: (i) first, the absence of positive evidence that anyone was smoking; (ii) second, the unlikelihood that any smoker could have contrived to discard a cigarette end so that it ended up under shed 1, which was the only place where there was likely to have been dry combustible material capable of permitting a smouldering cigarette end to cause a flame; and (iii) third, the unusual feature of the flame then dying back down into a smoulder before flaming out again, whereas if the initial flame was significant enough to damage the cable there was no good reason why it should not have spread to the shed and its contents without dying down first as Dr Butler postulated.

In comparison, in his view, a fault to the cable due to rodent attack was the more straightforward and the probable cause, given that an electrical fault would produce readily ignitable combustible material, especially if further ignition events were caused by Mr Logan’ repeated attempts to locate the fault, which would produce a flaming fire within a timeframe consistent with that observed by Mr Logan. Although it was put to him that there was no evidence of rodent attack, as he said that is not surprising given that the protective rubber material around the wiring was burned away. The same is true of the absence of any evidence of rodent droppings or carcasses. In my judgment it is fairly obvious that there is a risk of rodent activity in and around a garden shed which, on the evidence, was hardly used, especially in a rural area adjacent to fields and where there is evidence that mice had been previously able to and had entered the house let alone the shed.

Dr Jowett did not consider arson likely, because that would have involved a flaming fire and smoke which he considered would have been observed by Mr Logan in the period between any trip and the time when he did observe the fire. Dr Butler agreed in cross-examination that he would have expected an immediate open flame source and some evidence to suggest a motive, of which none has been identified.

Dr Jowett pointed out that, if the cable went under or around the shed, then the lithium ion battery possibility was even more unlikely. Dr Butler agreed in cross-examination that it would be necessary to identify the battery and the source to form an opinion as to whether this was consistent with the known timing. His best suggestion appeared to be an ejection from a charging vape, but there is absolutely no evidence of this and, as was put to him, it is difficult to see how one from No.9 could have led to a fire in or under shed 1.

In my view, one of the strongest points against Dr Butler’s support for the discarded smoking materials theory is that he had made no mention of the possibility of the fire being caused by discarded smoking materials under shed 1 in his preliminary report, which was a fairly detailed eight page report made 10 days after the fire and after a reasonably detailed examination. He did consider the possibility of a fire due to smouldering or burning items being placed in the wheelie bin, and he was aware that Mr Logan was a smoker, thus he was clearly aware of the possibility that smoking materials had caused the fire, but did not identify the possible cause which he now advocates. At the stage he only appears to have considered the possibility of the fire in the wheelie bin or the defect in the cable. Of course the fire in the wheelie bin, unless arson, would likely have been the responsibility of someone in the household of No.9, and that possibility has not been mentioned by him further. It is not too cynical in my judgment to see the emergence of the smoker theory as coincidental with the emergence of evidence that the smoker in question might have been an occupant of the adjacent household.

Mr McLaughlin is right to emphasise that this is a case where I must have regard to the evidence which is not available as much as the evidence which is available. In this case there is the almost complete lack of residual physical evidence. I must also have regard to the danger of making over-firm findings of fact, based on the imperfect recollections of witnesses, whether contemporaneous as reported to the fire investigation experts or otherwise, or as given in oral evidence 7 years after the fire. The same is true if and insofar as any of the opinions expressed by the experts are essentially matters of speculation.

Nonetheless, in my judgment the arson and the lithium battery theories can confidently be discounted as being no more than remote possibilities.

Arson can be discounted as anything more than a remote possibly due to: (a) the lack of any suggestion of any motive or similar previous occurrences in the area; (b) the lack of any evidence based on the seat or spread of the fire (to take one example, Mr Logan would probably have heard or noticed if the door to shed 1 had been forced and the fire started it in that way); (c) the obvious risk that anyone was taking in doing so, given that they would have had to make their way to the back road running behind the terrace and then along that road, and then make their way into the rear garden of No.10 at around 5:30pm on an early summer evening, with anyone able to see them do so from the rear-facing windows (including Mr Logan through the French windows); (d) since an arsonist would have been likely to use something which would produce an early flaming fire, if that was a flaming fire in or near the seat of the fire as seen by Mr Logan, for example in the wheelie bin or shed 1, then even allowing for Mr Logan not being in the kitchen throughout, one would expect that to have been seen and smelled much earlier than it was especially if – as is obviously more probable than not – the trip was caused by the cable being damaged by fire rather than the trip being entirely coincidental.

The lithium battery theory can also be discounted as anything more than a remote possibility notwithstanding that the evidence that there was – so it appears – a discarded Kindle device in shed 1. That is because: (a) there is no evidence that any such or similar battery operated device in the shed had been anything other than inert for a long time; (b) there is no explanation as to how an inert electrical device could have spontaneously ignited so as to cause a flaming fire – neither expert has given an explanation and the best that Dr Butler could do was to give a completely different example of a charging vape; (c) if Mr Logan is right that the fire he saw was under the shed, then that is difficult to square with the cause being a battery operated device inside the shed.

That realistically leaves only the smoking theory and the cable failure theory. This is not a case where either expert, or indeed either party or their lawyers, has been able to suggest any other theory, including theories for which there might have been evidence which might have been destroyed by the fire. The propane cylinders have been discounted by the experts as a cause and, since the seat of the fire was plainly in the region of the area of shed 1 and the wheelie bin, any more physically remote cause can confidently be discounted as no more than a remote possibility.

It must also be remembered that it is not the case that any possible cause other than damage to the cable can be put into the balance when deciding whether or not the Claimant has provided the case on the balance of probabilities. As already indicated, a possible explanation of a discarded cigarette by Mr Logan would not avail him as a co-Defendant, because had he admitted that he had been or might have been smoking in the back garden before the fire, that would inevitably have involved the further conclusion that something he had done or failed to do as a result might have caused the fire in some way, which could not properly have been regarded as happening other than due to his carelessness. Nor, for example, would it assist the Defendant if Mrs Logan had said that it was possible that she had put some ignitable material in the wheelie bin; that would also have been indicative of carelessness on her part in the absence of some explanation as to why not.

It follows that the first problem with the smoking theory is that there are only two realistic possible candidates and one, Mr Logan, cannot be put into the mix. As to the other, as I have said there is no basis for drawing an adverse inference against the Claimant. Nor is there any positive evidence, direct or indirect, which suggests that Courtney (or anyone else from No.9) was the cause. The only evidence is that her mother volunteered to Mr Hammond that Courtney was a smoker but, at the same time, she also said that she was not smoking that evening because she was trying to give up. If the Defendant wants to rely on the first part of that evidence but also to contend that the second part was not reliable, one would have expected them either to have adduced some evidence themselves or, if they were unable to do – as is clearly the case - to have pleaded the point or at least given formal notice of their intention to argue the point at trial or, possibly, to have witness summonsed Mr Stanley-Smith or, more pertinently, his wife (given that she and her husband have returned to live at No.9 so that they at least could have been served).

It is also notable than there was nothing in the witness statements of Mr or Mrs Logan to the effect that they had ever seen Courtney smoking, let alone carelessly discarding smoking materials, in the region of the boundary previously. Nor did Mr Logan say, for example, that he had seen Courtney smoking or had smelled smoke from No.9 as he made his way through the back garden that evening from work. Further, the only positive evidence from No.9 is that the three female occupants had been eating together in the conservatory before the fire. Whilst that does not make the theory completely impossible, it does tend to militate against Courtney having managed to smoke in the garden before the fire without her mother or sister being aware that she had been doing so.

The second problem, already discussed, is the inherent unlikelihood of a carelessly discarded cigarette end or other smoking material being discarded by Courtney in such a way that it managed to land under the floor of shed 1. Again, that is not impossible but it is inherently unlikely, given the location of shed 1 and the conservatory so close to each other. The third associated problem is that it also not only requires there to have been some combustible materials such as dried leaves under the shed (which I accept is plausible) but also to have been present in such a place and in such a quantity as to develop a flaming fire from a smouldering cigarette end which, as the experts agree, is not easy. It is worth noting that: (a) there is no evidence of trees or shrubs in the vicinity which might have led to large quantities of leaves being blown under the shed; (b) there is no evidence from Mr or Mrs Logan of ever having seen leaves in quantities under shed 1 at the time or previously; (c) the evidence is that it had been wet on the day before and the day itself, which makes the theory even less likely as any cigarette end which did not somehow manage to land directly under the shed (a considerable feat in itself) would probably have been extinguished before it somehow managed to roll from there under the shed .

There is also the point that it is not even certain that the cable was also under the shed or, if it was, that it was affected by a flaming fire which, even on the Defendant’s hypothesis, was only short lived, albeit long enough and strong enough to damage the cable and to cause the underside of the shed to smoulder and then transition into a flaming fire. There is also the fact that once the flaming fire took hold it was not noticed by Mr Logan until much later.

Whilst as Mr McLaughlin emphasised there are plausible explanations for all of these things, each is in itself a further obstacle to surmount (and where all have of them to be surmounted for the fire to have happened in this way) before it can properly be regarded as something which crosses the threshold of merely being at least possible, in the sense that there is no one piece of reliable evidence which shows that it could not even possibly have been the cause.

One then has to weigh this against the absence of any real obstacles in the way of the cable ignition theory due to rodent damage being the probable cause. In short, in my judgment there are no real obstacles to this as the plausible and indeed probable explanation. It is true that there is no positive evidence of rodents or rodent damage. But that is perfectly explicable by the extent of the fire and there is plentiful evidence that rodents could and quite probably would have been present in or under the shed given the circumstances described above. It is also well known that rodents can and do gnaw through cable protection and cause short circuits which can and do propel flaming material into their immediate vicinity. This, on the evidence, would have happened not just at the time of the initial damage but also on a number, seemingly around five to six times, afterwards each time Mr Logan re-energised the electrical circuits, having removed one plug from its socket first. Although the picture is not completely clear, if one assumes that Mr Logan is right when he says that the power was lost at around 6:30pm and he noticed the fire at 7pm, and if he is also right when he says that he was testing the system again every time he removed an individual plug from one individual socket downstairs and – at least on one version of events – upstairs as well, that could quite likely have been a considerable number of times in total.

The cable damage theory also has the undoubted merit of simplicity which, in my view, is a relevant consideration. It does not require the court to assume an initial flaming fire damage event and then for it to lapse into a smoulder and then a further transition phase before a flaming fire. Instead, it is explicable with the much simpler explanation either of a fire starting slowly and then developing steadily over a short period of time, or starting much more quickly if it was immediately adjacent to a ready supply of combustible material, as shed 1 seems to have contained in quantity. It is also consistent with the fire starting under the shed or within the shed. There are no obvious difficulties or obstacles with the theory which have been identified in my judgment.

For all of these reasons, when one stands back and considers not just the strength of the probability of the cause being rodent damage, due to the unsuitability of the cable for external use, compared with the strength of the probabilities of the cause being either: (i) smoking by Courtney or someone else other than Mr Logan; (ii) arson or accidental fire due to someone or something other than the careless act of Mr or Mrs Logan; (iii) the immaculate ignition of a lithium battery; or (iv) some other cause which cannot even be identified due to the extent of the damage, I am satisfied on the balance of probabilities that the cause was indeed rodent damage to the cable.

This is the final issue for determination.

Whilst I have sympathy for the Defendants, because I am not finding for a moment that they acted recklessly or in any way grossly negligently, I do find that they did not satisfy the duty of care which they (in common with all property owners) are under as owners of property to the owners of their neighbouring properties. That is for the following reasons.

Mrs Logan, as the then sole legal owner of No.10, authorised in legal terms the installation of the cable, in the sense that she knew that this is what Mr Davies was doing in his capacity (in legal terms) as her invitee or licensee and she did not prevent him from doing so or ask him to remove it, even though she had the knowledge and the right to do either. She knew that Mr Davies was not a qualified electrician and had no reason to believe that he was someone who had sufficient competence as a DIY enthusiast to undertake electrical work with the same competence as if he had been a qualified electrician. She also made use of the installation subsequently, knowing that she was doing so, over a lengthy period when there were two freezers in the shed and when she used one 24/7 and the other occasionally. I should add that even if she only used the one small freezer from time to time the same analysis would still hold good. In legal terms, she adopted or continued this state of affairs.

Mrs Logan also knew, or at least ought to have known, that this use of the cable was different from someone occasionally running a domestic extension lead to a shed for occasional use whilst cutting a hedge or for putting up lights on a pergola. The way in which the cable had been run from the kitchen and under, or around, or through shed 1 to shed 2 was plainly intended to be a permanent arrangement and the cable was plainly intended to and was used permanently. It would have been used during the day when she was out at work and at night when she was asleep as well as when she was away from the house on holidays or the like.

Although Mrs Logan may not have thought about the precise mechanics of how it might happen, she knew that electric cables could become worn or damaged. She also knew that if they did they could be a danger, either through electrocution or through fire, although again without knowing the precise details of how that could happen. She knew that mice and other rodents had been and could be in and around the house and she knew that mice could chew through cabling and cause short circuits.

Although there was never a Eureka moment, I identify at least three occasions when she ought to have asked herself whether she ought either to ask an electrician for a quotation to make this into a safe permanent connection or, at least, to ask an electrician whether it was safe to use the existing set-up on a permanent basis. The first was when she installed and started to use the freezer in shed 2 on a permanent basis (or, at least, when after Mr Davies’ death she continued to use the freezer(s) in there on a permanent basis where they were being served by the cable). The second was when the electrician came to repair the mouse damaged cable in the house. The third was when the electrician came to do the kitchen rewire. On both those second and third occasions there was a sufficient reason for her to consider the long term safety of the installation, on the first occasion in the context of the damage to the internal cable, and on the second occasion because of the general upgrade of the kitchen electrics in the context of the supply being fed by the socket in the kitchen, to justify my finding that this should have crossed her mind and she should have acted on it.

As regards Mr Logan, the same applies to him when he became joint owner of the property and started using the cable regularly for hedge trimming and fairly lights, knowing that it was a permanent feature and was permanently or at least regularly used to operate the freezer, and making use himself of that feature of that as member of the household. At that point, and at the same two further points as apply above to Mrs Logan, he ought to have had the same thoughts and acted on them.

In both cases, the risk was of fire starting in No.10 and spreading to adjoining properties. I appreciate that they may never thought of this specifically but, had they thought about the risks of the cable use long term, they ought to have done. In a sense this was no different from what they ought to have been thinking about in terms of the safety of their own house and their own personal safety.

I have no doubt that if they had thought about the risks in this way they would have foreseen that there was at least some risk which could not be confidently completely discounted and, therefore, the need to take at least some steps to satisfy themselves that the installation was safe. It is obvious that if they had called in or asked a qualified electrician for advice on that point they would have been alerted to the safety requirements of the Building Regulations to which I have been referred, would have been advised that the cable was not suitable and that what was required was that a safe permanent installation be provided which could be certified by an electrician. At the very least they would have been advised that if they chose to do nothing the potential consequences were at their own risk. I am satisfied that it cannot be inferred from the fact that neither electrician said anything at the time they were present that they would not have said anything if they had been asked. There is every reason why an electrician would not have presumed to volunteer advice about something which had no connection with what they had been asked to do. I am also satisfied that they had received that advice they would have acted on it and the fire would not, on the balance of probabilities have occurred.

As regards the Building Regulations, in opening submissions Mr Fraser helpfully referred me to the passage in Charlesworth & Percy on Negligence (16^th edition) at 14-173:

“In more recent times there has been a move to place greater statutory control over electrical works undertaken by those other than statutory suppliers and the management of electrical installations. Under Part P of the Building Regulations 2010, save for certain specified minor works, works to electrical installations in, or attached to, buildings comprising dwellings, in whole or in part, must be notified for approval to the building control body prior to commencement or be carried out by a person registered with a prescribed self-certification scheme. The works must comply with Part P and be certified by the registered person or by the building control body upon completion. Failure to notify or use a registered installer when carrying out such works is a criminal offence, and is likely to be evidence of negligence on the part of the owner undertaking or commissioning the work in the event that it is defective.”

As pleaded in the Amended Particulars of Claim, the relevant Building Regulations in force at all relevant times required reasonable provision to be made in the design and installation of electrical installations to protect against fire or injury, and that this extends to parts of premises associated with a building where the electricity source is from that building. The guidance in Approved Document P makes this obligation even clearer and brings in the Wiring Regulations 17^th edition as the relevant BS (British Standard) 7671:2008. This requires the installation method to ensure protection against expected external influences including damage from fauna such as rodents.

In the circumstances, as I have said, involving a qualified electrician at the outset or, later, to advise and/or inspect, would on the balance of probabilities have revealed the problem and remediated it and, thus, the fire would have been avoided.

For all of the above reasons I find that the Claimant has proved his case and is entitled to damages in the agreed sum of £350,000.

I will deal with all consequential matters once judgment is handed down.

I am grateful to all involved in the preparation for and the conduct of this case.