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Jackson L.J. after reviewing Rhesa Shipping said,

 

64 It is not an uncommon feature of litigation that several possible causes are suggested for the mishap which the court is investigating. If the court is able, for good reason, to dismiss causes A, B and C, it may be able to reach the conclusion that D was the effective cause. But the mere elimination of A, B and C is not of itself sufficient. The court must also stand back and, looking at all the evidence, consider whether on the balance of probabilities D is proved to be the cause…

 

And

82 [D’s counsel]  candidly concedes in paragraph 4 (f) of his skeleton argument that the anaesthetic explanation “could be said to be unlikely”. Nevertheless he submits that the anaesthetic explanation is no more unlikely than the surgical trauma explanation postulated by the claimant. Therefore the judge was in a similar position to the first instance judge in Rhesa Shipping . He was faced with two unlikely explanations for the injury. In those circumstances he was not entitled to accept either explanation. He should have held that the claimant had failed to prove her case.

83 I do not accept this argument, essentially for two reasons.

First the judge was entitled to dismiss entirely the anaesthetic explanation for the reasons identified above. He was not obliged to keep it in play as a possible, although unlikely, candidate.

Secondly, the judge did not base his crucial finding of blunt trauma injury during the dissection stage simply on the fact that all other possible explanations had been eliminated. He based that finding on the totality of the evidence which he heard at trial. He treated the absence of any other plausible explanation as supporting his conclusion, not as providing the sole basis for that conclusion…

Edited for ease of reading. See the other cases under this tag.

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