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

The supplier of a dry powder fire extinguisher who is asked to provide equipment for a particular location owes a duty to give balanced advice about the advantages and disadvantages of that type, including that discharge of dry powder is likely to cause contamination which may, if extensive, produce considerable cleaning expense; however, whether a negligent failure to give that warning causes loss may be negated by subsequent independent, deliberate third-party acts which are sufficiently extreme and unforeseeable to break the chain of legal causation.

The insurers of a parish church brought a subrogated tort claim against the supplier of a dry powder fire extinguisher after vandals discharged it, resulting in cleaning costs of £240,000. At first instance HHJ Inglis found the supplier breached a duty to warn the church of the contamination risk and awarded damages. The supplier appealed. The Court of Appeal considered (i) the scope of any duty to warn at the time of supply; (ii) whether a warning was given; (iii) causation and whether the vandals' conduct was a new intervening act; and (iv) contributory negligence. The central questions were whether the warning would have changed the church's decision and whether the vandals' actions break the chain of causation.

1. Disposition: The Court of Appeal allowed the appeal on the question whether, on the evidence, the church would have acted on a warning (Issue B) and, for Lord Justice Aikens, also on the question whether the vandals' acts constituted a new intervening act (Issue C). The appeal was therefore allowed in part (see outcome).
2. Duty to warn: The judge at first instance correctly identified that, when specifying an extinguisher for a particular area, a supplier who advises should give balanced advice about the pros and cons of the types available and, in the circumstances of the case, that included warning that discharge of dry powder is liable to contaminate and that, if extensive, cleaning could involve considerable expense. This is a legal conclusion about the scope of the duty (see paras [18]–[19]).
3. Findings of fact on warning: The primary judge's finding that no warning was given was a permissible finding of primary fact and not displaced on appeal (see Longmore LJ at [80]). The Court accepted the judge could properly infer that no warning had been passed on to the vicar (para [80]).
4. Causation — would the warning have made a difference (Issue B): The court must assess, on the balance of probabilities, whether the claimant would have acted differently if warned. The appellate court found the judge erred by failing to give adequate weight to the vicar's contemporaneous evidence that, if given balanced advice, the church would have sought further professional advice and that the experts' joint opinion supported installing a dry powder extinguisher as the "safest and most cost effective" option in the circumstances. On that basis the judge should have found the church would likely have taken further advice and that such advice would probably have supported the dry powder choice; accordingly the judge's finding that the warning would have decisively prevented installation was unsafe (paras [46]–[49]).
5. New intervening act / remoteness (Issue C): Lord Justice Aikens analysed the doctrine of novus actus interveniens and the authorities on remoteness, adopting a multi-factor value judgment approach (foreseeability, quality/extremity of the intervening act, independence from the defendant, and whether the intervening act renders the original wrongdoing merely part of the history). Applying those factors he concluded that the vandals' deliberate, extreme and unpredictable conduct seven years after installation was such that it was unfair to hold the supplier liable for their independent criminal acts and that the chain of causation was broken (paras [54]–[73]). However, that conclusion was not universally expressed by all members of the court and the other judges preferred not to decide the matter as it was unnecessary for the disposition on Issue B (Longmore LJ and Arden LJ, paras [83], [85]).
6. Contributory negligence and theft-stoppers: The judge's findings that omission to fit theft-stoppers would not, on balance, have prevented the loss and that leaving the church unlocked and unattended was not negligent were factual findings that the Court of Appeal did not disturb (paras [74]–[78]).
7. Practical guidance: When assessing causation where third-party wrongdoing is involved, courts should apply a value-judgment approach informed by foreseeability and the nature of the intervening act; the mere foreseeability of third-party wrongdoing does not automatically sustain liability if the intervening act is independent, extreme or sufficiently unforeseeable in its precise combination of features (paras [64]–[66], [68]–[73]).
8. Order: Appeal allowed on Issue B (and on Issue C by Aikens LJ). The court set aside the first-instance decision on the ground that causation had not been established on the evidence (paras [79]–[85]).

• Court of Appeal (Civil Division): [2010] EWCA Civ 981 — appeal heard and judgment handed down by Aikens LJ (majority reasoning on Issue B), with Longmore LJ and Arden LJ concurring on Issue B; Aikens LJ also addressed Issue C (paras [79]–[85]).
• Nottingham County Court: HHJ Inglis — trial judgment in favour of claimants; reserved judgment 3 April 2009; order 8 April 2009 giving permission to appeal (reversed on key causation finding).