JOHN HENRY SMITH v JOHN HOWARD

Negligence is assessed objectively by asking what a prudent and reasonable person would have done in the circumstances. A person who knows, or ought to know, of a real risk must take reasonable steps to eliminate or reduce it. Departure from an objectively prudent common practice may support a finding of negligence, particularly where a safer alternative was available. Causation in a fire case is a question of fact assessed on all the evidence. It may be established where the defendant’s conduct materially contributes to the spread of fire and the resulting damage.

The claim concerned damage caused by a serious fire at an industrial site used to process used cooking oil. The claimants alleged that an employee of the defendants negligently left a full intermediate bulk container containing oil beside a boiler room and canteen.

The trial was confined to liability and causation. The court was required to determine whether leaving the container in that location was negligent, whether oil from it materially contributed to the spread of the fire, and whether that contribution affected the ultimate outcome.

1. Negligence. The court applied the objective standard described in Blyth v Birmingham Waterworks (1856) 11 Ex. 781. Negligence consists in doing what a prudent and reasonable person would not do. Failure to follow common practice may be evidence of negligence.
2. A prudent person must take steps to eliminate a risk which he knows or ought to know is real rather than merely possible. The boiler room, kerosene tank and canteen heaters were obvious sources of ignition, while IBCs containing oil were vulnerable to fire. The container was left contrary to the established practice of storing full IBCs in the designated storage area. A safer alternative was available. Leaving it where it was therefore amounted to negligence.
3. Causation. The significance of the discarded IBC was assessed as a question of fact. The court accepted the claimant’s factual evidence and expert evidence. The early request for bulk foam, evidence that fuel was running away from the fire, and calculations showing that oil escaped from the IBC and flowed eastwards supported the conclusion that its involvement materially increased the spread of the fire.
4. The court accepted that, without the IBC’s involvement, a fire confined initially to the portacabin and boiler room would probably have been contained by the fire service, with limited external spread. The IBC therefore made a significant difference to the spread and ultimate outcome of the fire.
5. Questions 2, 3 and 4 were answered “Yes”. Questions 1, 5 and 6 did not require determination. The parties were invited to agree an order giving effect to the findings, with consequential matters to be dealt with at a further hearing if necessary.