Fosse Motor Engineers Ltd & Ors v Conde Nast and National Magazine Distributors Ltd & Anor

In a civil claim, the claimant bears the burden of proving causation on the balance of probabilities. A court is not required to choose between competing explanations where the evidence leaves it genuinely uncertain. It may conclude that the claimant has failed to prove the alleged cause. Competing possibilities should not be ranked mechanically by percentage. An agency worker may be treated as an employee of the user for vicarious liability where the worker acts under the user’s direction, rules and benefit. Liability for an unauthorised act depends on whether the wrongdoing is sufficiently closely connected with the employment. A worker who smokes in breach of a clear workplace prohibition acts outside the course of employment. Leaving a security door open during an authorised break may, depending on the circumstances, remain sufficiently connected with the employment.

The claim arose from a warehouse fire which destroyed the premises and goods belonging to several occupiers. The claimants alleged that the fire was caused by a cigarette carelessly discarded by one of four agency workers employed by Phoenix Industrial Recruitment Ltd and supplied to Comag, and alleged that Comag was contractually or vicariously liable. Alternative causes included an earlier discarded cigarette, arson by an intruder and electrical equipment left by heating contractors. The forensic evidence could not identify the cause. The central issues were whether the claimants had proved causation, whether the agency workers were to be treated as Comag’s employees, and whether any relevant wrongdoing occurred in the course of employment.

The claim was dismissed and judgment was entered for the first defendant.

1. The court held that the claimants bore the burden of proving, on the balance of probabilities, that the fire was caused by a cigarette discarded by one of the agency workers. Applying Rhesa Shipping Co v Edmunds [1985] 1 WLR 948, a judge may adopt the third alternative of finding that the evidence leaves the cause uncertain. The court also considered Ide v ATB Sales [2008] EWCA Civ 424 and Kiani v Land Rover Ltd [2006] EWCA Civ 880. Those authorities did not require the court to select an explanation merely because it had the highest notional percentage probability.

2. The evidence did not establish that the conditions necessary for a discarded cigarette to ignite the relevant pallet existed. The court found that the agency workers were credible and that the alleged cigarette cause was not proved. It could not distinguish, on the balance of probabilities, between an intruder entering before 6 p.m. and a cigarette discarded by a non-Comag employee before that time.

3. The letter imposing a no-smoking policy constituted management requirements or house rules, not a contractual term. There was no contractual or collateral agreement prohibiting Comag, its servants or agents from smoking in the warehouse.

4. Applying the close-connection test stated in Gravil v Carroll [2008] EWCA Civ 689, the agency workers were to be treated as Comag’s employees for vicarious liability purposes. They worked under Comag’s direction, rules and for its benefit, notwithstanding that Phoenix paid them.

5. If an agency worker had discarded a lit cigarette inside the warehouse, the act would have been outside the course of employment because it contravened a clear prohibition and involved entry into an unauthorised area. If an intruder had entered because Door 3A was left open during an authorised smoking break, the omission could have been sufficiently connected with the employment to make vicarious liability fair and just.