Smith & Ors v South Eastern Power Networks Plc

The statutory safety regulations did not create a private cause of action, but informed the scope and content of the distributors’ tortious duty. A distributor could not discharge its inspection obligation merely by relying on meter readers employed by suppliers. Reasonable care required a risk-based assessment of inspection, replacement and monitoring arrangements, balancing the nature and likelihood of danger against the effectiveness, cost and inconvenience of precautions. Limited breaches were established, including failure to institute a distributor-controlled biennial inspection regime, a cut-out replacement regime and adequate asset records. The claims nevertheless failed because the claimants did not prove that those breaches probably caused the fires. An increased chance of avoiding damage was insufficient.

Five test claims concerned fires caused by resistive heating in electricity cut-out assemblies at domestic and commercial premises. The claimants alleged that the defendant electricity distributors negligently failed to inspect, maintain, replace and monitor the assemblies, train or supervise meter readers, and collect relevant asset and incident data.

The distributors admitted a duty of care but denied breach and causation. The central issues were the effect of the Electricity Safety, Quality and Continuity Regulations 2002, the inspection and replacement measures reasonably practicable at the relevant times, and whether any breach caused the individual fires.

1. Statutory framework. The Electricity Safety, Quality and Continuity Regulations 2002 did not give rise to a claim for breach of statutory duty, but they informed the negligence inquiry. The duties to inspect and prevent danger remained responsibilities of the distributors and could not be discharged by relying on suppliers’ meter readers. The statutory duty could be performed through a contractor under the distributor’s contractual or statutory control.
2. Standard of care. Applying the approach in Morrison Sports Ltd & Ors v Scottish Power [2010] UKSC 37 and drawing on Baker v Quantum Clothing Group Ltd [2011] UKSC 17, the relevant standard was that of the reasonable and prudent distributor, taking positive thought for foreseeable danger. The assessment required consideration of the likelihood, nature, gravity and imminence of the risk, the probable effectiveness and proportionality of precautions, and their cost and inconvenience. Codes and recognised practice were relevant evidence but did not conclusively determine the standard.
3. Breach. The distributors were in breach by failing to institute a distributor-controlled biennial inspection scheme, by having no regime for routine replacement of cut-outs, and by failing to maintain records of the type and installation date of cut-outs. Breaches were not established concerning temperature strips, thermal imaging cameras, fingertip testing, quinquennial intrusive inspections, replacement every 25 years, or records of vulnerable properties.
4. Causation and disposition. The claimants failed to prove that any established breach probably caused any of the five fires. A mere increase in the chance of detection was insufficient unless reasonable care would probably have prevented the fire. The proposed late amendments advancing a continuing-duty causation case were refused for lateness and prejudice, and would have failed in any event. The claims were dismissed and judgment entered for the defendants.