Negligence – Statutory duty – Liability – Claimant factory owner claiming damages following fire at premises – Claimant contending fire caused by failure of probe manufactured by first defendant to detect loss of liquid in hot water tank – Whether first defendant being negligent or acting in breach of statutory duty – Claim dismissed
The claimant owned a factory in Exeter. As a result of a fire on the premises, the claimant suffered losses in excess of £20m. The claimant alleged that the fire had been caused by the failure of a probe manufactured by the first defendant that was supposed to detect a loss of liquid in a hot water tank. The second defendant had been engaged to design, supply and install a new grain etch line which included the tank that caught fire. The third defendant had purchased the probe from the first defendant and installed it as part of a subcontract with the second defendant for the
The claimant claimed damages against the first defendant alleging negligence and breach of statutory duty based on regulation 14(1) of the Electrical Equipment (Safety) Regulations 1994 (SI 1994/3260). It contended that the probe had been negligently designed so that it was unreliable in service and was not a “failsafe” device. In the context of this case, the expression “failsafe” was used in its engineering sense to describe a safety device which, in the event of its own failure or maloperation, left the system it served in a safe or deactivated condition. The claimant also complained about the brochure produced by the first defendant which, it said, contained misleading information as to the qualities of the product.
The first defendant denied liability. It contended that the losses sustained by the claimant were not within the scope of any duty which it owed, that the fire was caused by acts of the claimant which broke the chain of causation and that there was nothing wrong with what it said was a simple and relatively low grade product. In the alternative, the first defendant relied on the defence of contributory negligence.
Held: The claim was dismissed.
(1) On the evidence, the claim in negligence failed for want of proof of causation. The civil “balance of probability” test meant no more and no less than that the court had to be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred was stronger than the case for not so believing. It was not enough for the court to choose between a number of causes, each of which taken by itself was an unlikely cause, and then, as a matter of logic, conclude that the least unlikely had to be the probable cause of the loss. On the facts in the present case, although the court was satisfied that the fire was the result of a failure of the thermolevel to operate properly, it was unable to reach a conclusion as to the probable mechanism by which that came about and, therefore, precisely what led to the overheating of the heater in the hot water tank: Nulty v Milton Keynes Borough Council [2013] BLR 134 considered.
(2) As regards the alleged breach of statutory duty, the claimant had failed to prove that in the days immediately before the fire it had been relying on the thermolevel in the hot water tank to work properly and to act as a reliable safety device. It was critical to a proper analysis to determine whether the knowledge alleged to break the chain of causation or to give rise to a duty to mitigate could properly be attributed to the claimant party. In the absence of any knowledge to the contrary, the claimant was entitled to rely upon the first defendant to provide a device that operated reliably and in a manner that was consistent with what the first defendant said in its brochure and which was fit for purpose. However, the court was not satisfied that the claimant had been entitled to, or had, relied on the thermolevel operating correctly or reliably as a low level cut out at the relevant time. Accordingly, a claim based on the first defendant’s failure to provide a safe product contrary to the requirements of the 1994 Regulations had to fail: Lambert v Lewis [1982] AC 225 and Trebor Bassett Holdings Ltd v ADT Fire and Security plc [2012] BLR 41 considered.
Ben Quiney QC and James Sharpe (instructed by Reynolds Porter Chamberlain LLP) appeareed for the claimant; Andrew Bartlett QC and Alexander Antelme QC (instructed by Weightmans) appeared for the first defendant. The second and third defendants did not appear and were not represented.
Eileen O’Grady, barrister
