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Good Heavens ~ Duty To Warn And Supervening Event

3 Sep 10 The insurers of a church sued Chubb for providing a fire extinguisher which, when discharged, caused a mess which cost 240,000 to clean up. The extinguisher had been discharged by vandals who had gone into the church, The insurers sought to recover the clean-up costs. Chubb argued that the supervening event rendered them not liable.

In September 2006, three teenagers went into the medieval parish church of St. Mary and St. Nicholas, Spalding which was unlocked and unattended and discharged two fire extinguishers which caused significant damage. The cleaning-up operation cost £240,000, and was paid for by the church's insurers, Ecclesiastical Insurance. Using their right of subrogation, the insurers brought a claim in the church's name against Chubb Fire Ltd. which had supplied the extinguishers, alleging that it owed a duty of care to warn the church that any discharge was likely to cause a mess.

The church maintained that Chubb had negligently failed to issue such a warning, that the discharge of the extinguishers by the vandals, the consequent damage, and the need to clear it up had all been foreseeable. The church accepted that any potential claim it might have in contract against Chubb was statute-barred, and therefore brought a claim in tort, arguing that it was entitled to recover the cost of cleaning up the mess and making the required repairs. The judge in the Nottingham County Court awarded the church £240,000, and Chubb appealed.

The issues before the judge had been:  the scope of any common law duty on Chubb to advise the church at the time of the supply of the dry powder extinguisher in 1999; what advice had or had not been given by Chubb when the decision was taken to install the extinguisher;  whether the giving of advice in accordance with Chubb's policy would have made any difference,  whether the acts of the vandals constituted an intervening cause so that any breach of duty by Chubb in 1999 should not be taken to have caused the damage, and whether the church had been guilty of contributory negligence by failing to install "theft stoppers" on the extinguishers at the back of the church (not in the kitchenette), and/or leaving the church open and unattended.

In a joint expert report, the experts concluded that a dry powder extinguisher had been appropriate for fighting any fire that might break out in the new vestry area. The judge took this on board but went on to consider the disadvantages of using powder extinguishers, and that the church should have been warned that a dry powder extinguisher would be liable to make a mess which could cause considerable expense. Because Chubb had failed to give the church that warning, the judge had found that it had been in breach of duty when it had recommended that a dry powder extinguisher be installed in the new area of the church. The judge had also found that had the church been warned, it would not have installed such an extinguisher. Malicious discharge of the extinguisher had been "plainly" foreseeable in 1999, as had the consequent mess.

DUTY TO WARN

On appeal, the Court of Appeal found that the evidence did not support Chubb's contention that it had warned the church about the potential mess from the extinguisher. Whilst Chubb might not have foreseen the extent of the damage which could be caused by a discharge from the extinguisher, it knew that the discharge from a dry powder extinguisher could cause a mess, and if it were extensive that the cleaning-up costs could be significant.

However, the burden was on the church to prove that, on the balance of probabilities, it would have definitely rejected the extinguisher had Chubb given a warning about it. The judge had failed to take into account evidence given by Canon Barker that further professional advice would have been sought if the warning had been given; nor had the judge dealt with witness evidence that the ultimate priority had been to install an extinguisher that was the best for fighting fires in the church. If he had done so, the evidence would have led him to the conclusion that the extinguisher would have been installed in any event because it was the safest and most cost-effective solution where electrical equipment and large amounts of Class A material were present.

INTERVENING EVENT

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With the rationale for the doctrine of "new intervening act" in mind, the court concluded that it was unfair to hold Chubb liable for the independent acts of the vandals. The attack occurred seven years after Chubb's breach of duty. Whilst malicious discharge of the extinguisher had been foreseeable in 1999, no one thought then that there was any degree of likelihood that the combination of events which did occur would occur. The vandals' intervening conduct rendered Chubb's original breach of duty as part of the history of events, and Chubb was not liable for it.

CONTRIBUTORY NEGLIGENCE

Chubb had failed to prove that fitting "theft stoppers" to the extinguishers would have made any difference, and the church's reasons for not fitting them had been reasonable. Chubb's argument that the church had been contributorily negligent in leaving the church open, given the number of incidences of vandalism, was rejected. The judge had balanced the evidence and found Canon Barker's decision to leave the church open for worshippers had been reasonable.

Chubb Fire Ltd. v The Vicar of Spalding and The Churchwardens and Church Council of the Church of St. Mary and St. Nicholas, Spalding;  20 August 2010
[2010] EWCA Civ 981

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