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Thu, 4 Nov 2010

An Unusual Case by the Vicar of Spalding – Duty to Warn

It is not very often that cases as unusual as this find their way to the Court of Appeal.

The Vicar of Spalding brought a claim against Chubb Fire Limited for the clean up costs to a church after a dry powder fire extinguisher was discharged.

The Vicar purchased a fire extinguisher from Chubb and approximately 7 years later, three boys entered into the church, which was kept unlocked and unattended, found an extinguisher in an adjoining room and took it into the main hall of the church where they discharged it. The extinguisher was a type that contained dry powder and when it was discharged caused an extensive mess.

The crux of the claimant's case was that Chubb had failed to advise the Vicar that the extinguisher if discharged was likely to cause a mess.

At this point, one would question whether there really ought to be a duty to warn in these circumstances when it must surely have been obvious that discharging this particular type of fire extinguisher would indeed cause a mess. After all, its purpose is to extinguish fires and presumably this would be most effective if the extinguisher is able to cover a larger area and powder by its very nature can be messy.

The judge at first instance found that Chubb was under a duty to give the Vicar balanced advice as to the advantages and disadvantages of installing a dry powder type extinguisher in the church. No warning had been given and if that advice had been given then the Vicar would have rejected the type of extinguisher in question. The court also held that the chain of causation namely the three boys entering into and discharging the extinguisher, as a third party act, did not break the chain of causation.

Chubb appealed and, in allowing the appeal, the Court of Appeal held that whilst the judge’s conclusion that no warning had been given was one that he could reasonably have come to, on the evidence, he should have considered what the Vicar would have done if advised in the context of general advice on what was the best solution for the church (as opposed to specific advice on powder type extinguishers).

The further advice may well have been that a dry powder extinguisher was suitable for the church but by failing to consider this, the judge erred in concluding that even if the warning had been given, the Vicar would have made a definite decision not to install the extinguisher.

Therefore, the failure to give warning could not be causative of the damage suffered and so the claim should have failed.

In addressing the acts of the third parties, the attack happened several years after the breach occurred. It was deliberate and the defendant had no responsibility for it. Whilst moisture discharge was foreseeable when the product was provided, no one thought then that there was any degree of likelihood that the combination of events that occurred would do so. The combination of events was, at its highest, a mere possibility. Further, the intervening conduct of the vandals rendered the original breach of duty by the defendant a part of the history of events so that the defendant was no responsible for the damage the vandals caused.

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