Is it enough to prove breach of duty?
Catherine Flannery reviews the recent TCC decision in Smith & Others v South Eastern Power Networks which acts as a useful reminder that it is not enough for a claimant to simply prove breach of duty by the defendant: it must also be causative of the claimant’s loss.
In the recent case Smith & Others v South Eastern Power Networks Plc  EWHC 2541 (TCC) the Court found that the defendant electricity distributors were in breach of their duty of care to consumers by virtue of their failure to regularly inspect cut-out assemblies (the apparatus found where mains power enters a building). However, the Court did not consider that the defendants’ breaches were causative of the losses.
Five test cases were brought against three electricity distributors by residential and commercial property owners for fire damage to their properties.
All of the fires had started as a result of resistive heating problems in the cut-out assemblies which ran to the electric meters. It was agreed between the parties that the fires were not caused by negligent installation but that the quality of the wiring connections had deteriorated since installation leading to a build-up of heat due to increased electrical resistance with the result that adjacent flammable surfaces or material caught fire.
Alleged Breaches of Duty
The claimants alleged that the defendants were in breach of duty as they: i) failed to carry out adequate inspections of the supply cables, the cut-out fuses or the connections between them; ii) failed to replace the cut-out fuses after 25 years in service; iii) failed to supervise, review or monitor the work of meter readers; and iv) failed to collate adequate data in relation to the cut-out assemblies or incidences of fire and/or to analyse this data properly.
The Court held that the defendants were in breach due to their failure to conduct regular (biennial) inspections of the cut-out assemblies (although meter readers did attend to take readings on a regular basis), the failure to have in place any regime for the replacement of cut-outs and the failure to maintain records in relation to at least the type and the date of installation of the cut-outs.
However the Court did not consider that such breaches were causative of the fires in any of the five test cases. It was not established that a reasonable inspection would have revealed signs of a possibly impending fire, nor was it established that a failure to make a routine replacement of the cut-outs represented a culpable failing. Additionally the Court found that in the absence of evidence determining the maximum prudent time for replacement of the cut-outs the presence or absence of records could not be considered to have caused the fires. As a result, the claimants’ cases failed and the Judge found for the defendants.
This case serves as a reminder to claimants that it is not enough to prove breach of duty by the defendant; the breach must also be causative of the loss suffered.
This is nonetheless a cautionary tale for potential defendants. Although the Judge was reluctant to impose an onerous duty of inspection and replacement on the defendants he was critical of their failure to proactively consider how the cut-outs should be inspected and when they should be replaced: “(the defendants) clearly had not really properly or at all considered the need to institute their own inspection regimes; they had dodged the question of whether to do so and had just made the assumption that very cursory inspections by overworked meter readers employed by others would suffice”.
Although the Judge stated that these cases were not in the nature of a public enquiry, he suggested that the defendants should actively consider conducting research into the optimal lifespan of the product and the implementation of a potential replacement regime to negate the risk of further fires as the equipment ages.
For more information contact Philippa Varcoe, Senior Associate and Professional Support Lawyer on +44 (0)20 7280 8848 or at Philippa.firstname.lastname@example.org
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.