NEW HIGH COURT RULING ON THE BURDEN OF PROOF FOR CAUSAL CONNECTION IN FIRE DAMAGE
IT IS - BY ITS VERY NATURE - CHARACTERISTIC OF FIRE DAMAGE THAT IT CAN BE DIFFICULT TO DETERMINE THE CAUSE OF THE DAMAGE WITH CERTAINTY, WHEN SIGNIFICANT PARTS OF THE EVIDENCE HAVE OFTEN BEEN LOST PRECISELY AS A RESULT OF THE FIRE. THERE ARE QUITE A FEW CASES WHERE THE INJURED PARTY'S INSURANCE, AFTER HAVING COVERED CLAIMS COMPENSATION FROM THE ALLEGED TORTFEASOR AFTER COVERING THE FIRE DAMAGE. IN THE EVENT OF A DISPUTE ABOUT THE CAUSE OF THE DAMAGE USUALLY INVOLVES AN EXPERT OPINION, AFTER WHICH A QUESTION ARISES QUESTION ARISES AS TO HOW CERTAIN AN ASSESSOR SHOULD BE ABLE TO DETERMINE THE CAUSE OF THE DAMAGE IN ORDER FOR THE BURDEN OF PROOF FOR A CAUSAL CONNECTION HAS BEEN LIFTED. A NEW HIGH COURT RULING ADDRESSES THIS QUESTION.
As with other judgments regarding proof of cause of injury, the court's decision includes various specific factors.
But it is noteworthy that the Eastern High Court explicitly mentions that the appraiser and DBI agreed that the cause of damage claimed by P was the "most likely" cause of the fire. In other words, the criterion that P invoked with reference to the two judgments from the Western High Court from 2018 and 2022.
But the Eastern High Court did not find that this was not sufficient for T to have lifted the burden of proof, as it "could not be excluded" that one of the other possible causes of damage had caused the fire,
It is characteristic of such disputes that there are several potential causes of injury at play, some of which are more likely than others.
In this case, the decisive factor was that it could not be ruled out that one of the other possible causes of damage could have caused the fire - even if it was not the most likely.
Thus, this new High Court judgment does not seem to support the view that the injured party (or claimant) should be entitled to relief from proof in a case of liability for fire damage.
It also seems difficult to see why there should be a special relief from proof for the injured party in fire cases compared to all other tort cases. The legal protection that applies to the defendant party against whom a claim for damages is brought must be the same, regardless of the type of damage caused. The Eastern High Court's judgment is an expression of a usual, classic assessment of evidence and application of the rules on the burden of proof in tort law cases.
It should be noted that in relation to the question of possible relief from proof, it made no difference that the case was covered by the consumer protection rules of the Product Liability Act.
Michael S. Wiisbye is of course available if you have any questions about the judging.