The Civil Division of the Court of Appeal handed down judgment in the case of Chubb Fire Ltd v The Vicar of Spalding and Others [2010] EWCA Civ 981 on the 20th August 2010. The case concerned the failure to give warning of the likely effect of discharging a fire extinguisher and whether third party action could be a “new intervening act”.

Three teenage boys had discharged fire extinguishers installed in a church resulting in a clean up operation costing 240,000 pounds which was met by insurers. A contractual claim being time-barred, the insurers exercised a right of subrogation to bring a claim in tort in the respondent’s name. The claim alleged that the appellant company owed a duty to warn that discharge of the extinguisher would cause mess, that it had negligently failed to issue a warning and that the damage and consequent clean-up were foreseeable.

At trial the scope of the duty owed by the appellant was determined to be balanced advice detailing the advantages and disadvantages of the particular extinguisher. It was held that no warning had been given regarding the level of mess likely if the extinguisher was discharged and that if it had been the respondent would have sought further advice. Discussing the actions of the vandals, the judge found that as the damage was foreseeable the focus should be on the scope of duty of the defendant and the chain of causation had not been broken. Reviewing the practice of the respondent, the judge found no case of contributory negligence.

On appeal, the appellant challenged the conclusion that advice should have included the fact that a clean up operation would result in “considerable expense”. Also challenged were the conclusions regarding how the respondent would have acted on such advice and the approach of the trial judge to the issues of “new intervening act” and contributory negligence.

Assessing whether the judge should have found that a warning was given, the court found that the conclusion reached was one reasonable on the evidence. Considering whether the respondent would have acted on a warning if given, the court rejected the submission that the knowledge of cost could not have been available to the appellant at the time advice was given. However, the court found that the trial judge did not answer the important question based on the evidence given by the respondent, namely whether a definite decision not to install an extinguisher would have been made. Finding that the only affect produced by balanced advice would have been the seeking of further opinion, the court held that the trial judge should have concluded that the extinguisher would ultimately have been installed and that the failure to give warning would not have been causative of the damage.

On the issue of whether the act of the vandals was to be regarded as a “new intervening act” the appellant, distinguishing the case of Dorset Yacht v The Home Office [1970] AC 1004, argued that whilst in that case the defendant was under a duty to guard, this was not true in the present case. It was submitted that the correct conclusion should have been that the chain of causation was broken. Discussing the issue, the court referred to Clerk and Lindsell on Torts regarding the impact of intervening acts. Referring to cases including Simmons v British Steel plc [2004] ICR 585 and Corr v IBC Vehicles Ltd [2008] 1 AC 884, it was determined that the judge had not applied the correct legal principles. Reassessing the question in line with Clerk and Lindsell, the court first analysed whether the conduct of the vandals was such as to make the original wrong “merely a part of the history of events”; the court held that this was the case. Secondly, the acts were held to be unpredictable and extreme. Thirdly, the court determined in accordance with the trial judge that substantial damage was only a “real possibility” rather than foreseeable at the date of advice. On the fourth question, the court found the actions of the vandals were wholly independent of the appellant. Concluding, the court held this independent event rendered the breach of duty by the appellant a part of the history of events and therefore the appellant was not liable for the damage.

Analysing the issue of contributory negligence on the part of the respondent, the court affirmed the finding of the trial judge that the decision not to fit theft stoppers and to leave the church unlocked and unattended in the day was reasonable on the balance of evidence.

Delivering the lead judgment, Lord Justice Aikens allowed the appeal on the issue of whether a warning would have made a difference and the “new intervening act” question. The other members of the court also allowed the appeal on the first issue but expressed no view on the second issue.