Insurance — Breach of duty – Damages — Appellant supplying fire extinguishers to respondent church — Vandals entering church and discharging extinguisher — Dry powder from extinguisher damaging church interior – Court finding appellant in breach of duty to warn respondents of consequences of discharging extinguisher — Judge Appellant liable in damages since failure to warn causative of damage — Whether appellant failing to give warning — Whether respondents installing extinguisher in any event – Whether intervening act by vandals breaking chain of causation — Appeal allowed
The appellant had supplied the respondents with fire extinguishers for use in their church since 1999. In 2006, vandals entered the church, which was unlocked and unattended, and discharged the extinguisher in the main body of the church; the extinguisher contained a dry powder that caused substantial damage. Clean-up costs amounted to approximately £249,000.
The respondents’ insurer paid those costs, but exercised its right of subrogation to bring a claim against the appellant in the name of the respondents to recover them. The judge found that the appellant was under a duty to give the respondents proper advice on the consequences of discharging a dry powder extinguisher. Had the advice been given, the respondents would have rejected the extinguisher. The judge therefore found in favour of the respondents and awarded damages in the sum of £249,000 plus interest.
The appellant’s appealed. The court was asked to consider whether: (i) a warning had been given that the discharge of a dry powder extinguisher would cause a mess; (ii) the respondents would have acted on such a warning; (iii) the action of the vandals was an intervening act so that the appellant was not liable for the damage; and (iv) the respondents were contributorily negligent.
Held: The appeal was allowed.
(1) The judge had been reasonably entitled to conclude that the respondents had not been warned of the potential consequences of that type of extinguisher.
(2) However, he had failed to take account of the vicar’s evidence in cross-examination that, had the respondents been given balanced information, they would have taken further professional advice on the type of extinguisher to install. If the judge had properly had in mind that evidence, he should have made two findings, namely that the respondents would have taken further professional advice and that such advice would have informed them that the dry powder extinguisher was the safest and most cost-effective solution. By failing to consider the evidence that further advice would have been taken, the judge had erred in concluding that, if the warning had been given, the respondents would have made a decision not to install that extinguisher. If the judge had properly considered that evidence, he would have been bound to conclude that the extinguisher would have been installed in any event and that the failure to give the warning could not have been causative of the damage suffered and the claim should therefore fail.
(3) It was irrelevant whether the doctrine of a new intervening act was part of the law of causation or remoteness of damage. It was one of a number of means by which to decide whether a defendant, whose breach of duty of care to a claimant had been established, would be responsible for certain consequences of, and damages flowing from, that negligence. If remoteness of damage and causation were the means of deciding responsibility, the question would be as to the extent of the loss for which a defendant ought fairly, reasonably or justly to be held liable: Simmons v British Steel plc [2004] UKHL 20 and Corr v IBC Vehicles Ltd [2008] UKHL 13; [2008] 1 AC 884 considered.
In the instant case, it was not fair to hold the appellant liable for the independent acts of vandals. The attack happened seven years after the breach of duty and was the deliberate and criminal act of persons for whom the appellant had no responsibility. Although malicious discharge was foreseeable when the product was provided to the respondents, no one believed that there was any likelihood of it happening; the combination of events was, at the most, a mere possibility. The intervening conduct of the vandals rendered the appellant’s original breach of duty a part of the history of events, so that the appellant was not responsible for the damage caused.
(4) The judge had not erred in finding that that the respondents were not contributorily negligent. On the evidence, he had been entitled to conclude that the decision to leave the church open during the day, even if unattended, was reasonable.
Neil Moody QC (instructed by Morgan Cole LLP, of Bristol) appeared for the appellant; Graham Eklund QC (instructed by Beachcroft LLP, of Bristol) appeared for the respondents.
Eileen O’Grady, barrister
