Smith & others v South Eastern Power Networks Plc & others [17.09.12]
Fire damage claims against electricity distributors failed on causation.
The claimant property owners in these five test cases all suffered fire damage to their properties and sued their electricity distributors for negligence.
By way of background, where mains power is brought by cable into premises, it first goes into a cut-out assembly. The distributors are responsible for bringing electricity into the premises and for the cut-out assemblies.
It was common ground in each case that:
- The fires started in or immediately around the cut-out assemblies as a result of resistive heating.
- The fires were not caused by negligent installation of the cut-out assemblies.
- The quality of the wiring connections had deteriorated since installation.
- The distributors owed the property owners/occupiers a duty of care (but breach and causation were in issue).
The Claimants accepted that the defendant distributors operated a good reactive inspection and maintenance regime. However, their argument was that it should have been proactive and should have included a visual inspection, "finger tip” testing, thermal imaging to detect internal hotspots and the use of monitoring temperature indicator strips. The trial Judge had to decide what the distributors should have done by way of inspection, maintenance, replacement or monitoring of the cut-out assemblies.
The Technology and Construction Court held that the distributors were in breach of duty for failing to:
- Implement a biennial inspection scheme whereby each cut-out was inspected by staff under the respective distributor’s control.
- Have in place any regime for the replacement of cut-outs.
- Maintain records in relation to at least the type of cut-outs and installation date.
The Claimants failed to establish any breach of duty in relation to the lack of five-yearly investigations, failure to use thermal imaging cameras, fingertip testing or temperature strips or to replace cut-outs every 25 years.
However, although breaches of tortious duties were established, the court went on to hold that there was no evidence to suggest that even a reasonably careful visual inspection would have discovered any impending problems with the cut-out assemblies. Accordingly, the distributors were not held liable, as the court found that none of the fires in question were caused by these breaches of duty.
This decision is a timely reminder to all claimants that a claim for breach of duty will fail unless it can also be proved on the balance of probabilities that the negligence caused the loss.
On the facts of these cases, the Judge found that, "It has not been established that there would be appropriate signs of an impending resistive heating problem beyond more than two or three days before the fire or at least scorching broke out". Indeed, one of the fires had occurred the day after the meter was read, when no fault had been noted or reported.
The lesson for any case is that, even though breach of duty may be easy to establish, proof of causation may still be hard to find. Without the latter, the claim must inevitably fail.