Property – Gas boiler — Explosion – Warning – Claimant seeking damages for loss allegedly caused by defective gas booster – Whether defendant giving adequate warning – Whether proper warning avoiding loss – Whether claimant recovering damages for economic loss – Claim dismissed
The claimant owned the freehold of a building part of which was occupied by a retail store (BHS). In 1986, a new boiler system had been installed at the store, including two boosters manufactured by the defendant; the boosters raised the pressure of gas supplied to gas burners, which in turn injected a gas flame into the boilers.
In August 2001, a gas leak from one of the boosters led to a gas explosion in the boiler house of the BHS store. The claimant brought an action in negligence against the defendant, seeking damages for the cost of repairing the building. It contended that, following incidents at other premises in 1998, the defendant had been aware that there was a problem with the booster casings but had failed to address it. Had the defendant issued a proper warning, it was argued, BHS would have acted upon it, checked the boosters and replaced the casings. Accordingly, the defendant’s failures were negligent and had caused loss to the claimant.
The defendant argued that the steps taken following the 1998 incidents, namely distributing updated product information notes to customers and gas heating engineers, had been appropriate and reasonable in the circumstances. On the evidence, had the defendant given the advice it was alleged should have been given, it was likely that it would have been ignored and the explosion would not have been avoided. Furthermore, the incompetence of BHS’s maintenance regime was such as to have broken the chain of causation.
Held: The claim was dismissed.
Whether a duty to warn arose would depend upon the circumstances, including the level of danger and its obviousness to the reasonable user, although the necessity of avoiding undue alarm would also be taken into account. Where the duty applied, the warning had to be such as to make the user as safe as reasonably possible. If an indication of a serious danger was received, the manufacturer might be under a duty to take reasonable steps to bring it to the attention of those likely to be affected. In either case of failure to warn, the claimant still had to prove causation, that is, had there been a warning, it would have been heeded and, hence, it would have suffered no loss.
In the circumstances of the instant case, the defendant should have distributed a warning in the following terms: “There is a risk that boosters manufactured before February 1998 may suffer failure of the casing if not properly maintained. It is particularly important to carry out proper inspection and maintenance of these boosters.” That would have alerted recipients to the risks associated with the design of the casings and would have discharged their duty of care. Such a warning would also have given proper prominence to its justifiably held view that poor maintenance might have been the substantial cause of the earlier failures.
However, in the light of the evidence, the court was not satisfied that had such a warning been given the claimant would have heeded it and the loss would have been avoided. The claim therefore failed.
Furthermore, had it been necessary to decide the point, the court would have found, on the evidence, that the chain of causation had not been broken such as to disentitle the claimant from recovering damages if it were otherwise entitled to do so.
Finally, if the claimant had been successful, its claim would have fallen within the general rule that parties with a reversionary interest might recover damages only to the extent of the injury to the reversion. On that basis, it was confined to a claim for damages to the extent of the diminution in the value of the freehold reversion. It could not recover the cost of repairs incurred pursuant to the lease since that would be a claim for economic loss, which would not be recoverable: Ehmler v Hall [1993] 1 EGLR 137; [1993] 02 EG 115 distinguished.
Antony Edwards-Stuart QC (instructed by Reynolds Porter Chamberlain LLP) appeared for the claimant; Neil Moody (instructed by Kennedys) appeared for the defendant.
Eileen O’Grady, barrister
