Drake v Harbour & Anor

A claimant may establish negligence through res ipsa loquitur where the precise mechanism of an accident cannot be proved, provided the evidence makes it more likely than not that the effective cause was a failure by the defendant to take proper care. The inference must remain consistent with the evidence as a whole.

A contractor is not subject to strict contractual liability for fire caused by defective tools or equipment merely because the employer cannot sue the original supplier. Such a term requires contractual implication by necessity. Reasonable reinstatement costs remain recoverable even where reinstatement payments came from another source, although betterment and avoidable prolongation may affect the amount.

The claimant’s bungalow was destroyed by fire shortly after two electricians began rewiring work. The claim alleged negligence in the use and installation of temporary festoon lighting, and also relied on an implied contractual term that the contractor would use equipment fit for purpose.

The court also determined the recoverable consequences of the fire, including reinstatement, site clearance, project management, alternative accommodation, contents and distress. The central issues were whether the defendants’ conduct caused the fire, whether negligence could be inferred without proof of the precise mechanism, whether strict contractual liability arose, and what damages were recoverable.

1. Liability. The claim succeeded against Mr Harbour. The evidence established that the festoon lighting had been left live and that arcing, overheating and combustion had originated in the loft. The precise mechanism by which the insulation or fittings became sufficiently defective could not be identified.
2. Res ipsa loquitur. Applying the approach described in Lloyde v West Midlands Gas Board, the claimant had established an evidential burden. It was more likely than not that the effective cause was an act or omission of the defendants amounting to a failure to take proper care. No equally likely, negligence-inconsistent cause had been shown. The defendants had both participated in assembling and installing the temporary lighting.
3. Contractual implication. The proposed implied term that the contractor would use equipment fit for purpose was rejected. It concerned tools and equipment used during the work, rather than materials installed in the bungalow. The test of necessity was not satisfied, and there was no sensible basis for imposing the proposed onerous strict liability on a tradesman.
4. Damages. The claimant could recover reasonable reinstatement costs despite being underinsured and despite payment for reinstatement coming from elsewhere, consistent with Jones v Stroud District Council. The court allowed reinstatement costs net of betterment, site clearance, reduced project-management costs, one year’s alternative accommodation, contents, boarding-up costs and £3,000 for distress and inconvenience. Forensic investigation costs were treated as costs rather than damages. The claim for injuries caused by the claimant’s later accidents failed for lack of causation.

First-instance judgment in the High Court. No appellate history is stated in the judgment.