Chubb Fire Ltd v The Vicar of Spalding & the Churchwardens and Church Council of the Church of St Mary and St Nicholas, Spalding

Where a supplier advises on a product choice involving materially different advantages and disadvantages, the advice must be balanced. On a negligent failure-to-warn claim, the claimant must prove that the warning, given in the context of the available alternatives, would probably have led to a different choice. Evidence that the decision-maker would have sought further advice is insufficient where the evidence does not show what that advice would have been and expert evidence supports the original choice.

The lead judgment further indicated, without this being necessary to the result, that a deliberate criminal act may be a new intervening cause where the defendant owed no duty to prevent it, the actors were wholly independent, and the precise combination of events was only a mere possibility.

The church’s insurers, exercising subrogation rights, brought a tort claim against the supplier of a dry powder fire extinguisher. Vandals discharged it inside the church, causing extensive contamination and agreed cleaning costs of £240,000.

The Nottingham County Court found that the supplier had failed to give balanced advice about the extinguisher’s disadvantages and awarded damages. The appeal concerned whether a warning had been given, whether the church would have chosen a different extinguisher, whether the vandals’ conduct was a new intervening act, and whether the church was contributorily negligent.

1. Outcome. The appeal was allowed on Issue B. Aikens LJ and Longmore LJ held that the trial judge had erred in finding that an adequate warning would have led the church to reject the dry powder extinguisher. Arden LJ agreed. The appeal therefore succeeded on causation.
2. The finding that no warning had been given was a permissible finding on the evidence. Evidence that Chubb’s representatives usually discussed the advantages and disadvantages did not prove that the particular salesman had given the warning in this case.
3. The required advice was balanced advice about the relevant extinguisher options. The church bore the burden of proving, on the balance of probabilities, that the warning would have produced a different decision. The vicar’s evidence that he would not have chosen powder reflected hindsight and did not answer the counterfactual question. His evidence showed that the church would have obtained further professional advice. There was no evidence of what that advice would have been, while the expert evidence supported the original choice as the safest and most cost-effective option. The judge should therefore have concluded that the extinguisher would ultimately have been installed in any event, so the breach was not causative.
4. Aikens LJ additionally considered Issue C. He treated the doctrine of new intervening act as a value judgment concerning legal responsibility, whether analysed under causation or remoteness. The relevant considerations included whether the original wrongdoing had become merely part of the history, whether the third-party conduct was deliberate or wholly unreasonable, its foreseeability, and whether the third party was independent of the defendant. Applying those considerations, he would have regarded the vandalism as breaking the chain because it was deliberate, criminal, extreme, wholly independent, and, in its precise combination, only a mere possibility. Longmore LJ and Arden LJ expressly declined to decide Issue C.
5. Aikens LJ also upheld the trial judge’s conclusions on contributory negligence. There was no proof that theft stoppers would have prevented the damage, and leaving the church unlocked and unattended during the day was reasonable on the evidence.

1. Court of Appeal (Civil Division): The appeal from the Nottingham County Court was allowed on Issue B. Aikens LJ would also have allowed it on Issue C, but Longmore LJ and Arden LJ expressed no view on that issue: [2010] EWCA Civ 981.
2. Nottingham County Court: HHJ Inglis found for the church, awarded £240,000 plus interest, and gave permission to appeal in an order dated 8 April 2009.