England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
HIS HONOUR JUDGE INGLIS
7BS90633

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/08/2010

Lord Justice Aikens :

History of the case so far.

1. At about 4.50 pm on Friday 1 September 2006, three teenage boys entered the fine medieval parish church of St Mary and St Nicholas, Spalding, whose spire dominates the surrounding fenland. The church was unlocked and unattended. The boys found two fire extinguishers, one of which was placed on a wall in a kitchenette, which is next to the vestry area just off the South side of the chancel. That extinguisher was of the dry powder type. The boys discharged this particular extinguisher in the chancel, then along the length of the nave. The extinguisher's nozzle was held high so that the powder was distributed widely within the body of the church, including the organ. When the boy vandals had finished discharging that extinguisher and another one of the standard water type, they abandoned them at the West end of the church and then disappeared.
2. The contents of the dry powder extinguisher settled on many surfaces, covering them with a fine dust. The fabric of the church, its fittings and other contents including, not least, the church organ, all had to be thoroughly cleaned to clear up the mess. The cleaning operation was complex, laborious and expensive. In the first place it was paid for by the church's insurers, Ecclesiastical Insurance. The cost was about £240,000.
3. The insurers, exercising their right of subrogation, brought a claim in the name of the Vicar of Spalding and the Churchwardens and Parochial Church Council of the church (together "the church") against Chubb Fire Limited, ("Chubb") who had supplied the dry powder extinguisher ("the extinguisher") to the church in 1999. The church alleged that when Chubb supplied the extinguisher it owed a duty to warn the church that any discharge of the extinguisher was likely to cause a mess. The church's case was that Chubb had negligently failed to give this warning. The church alleged that the discharge of the extinguisher by vandals was foreseeable, as was the damage to the church that was done by the vandals' depredation and so too was the consequent need to clear up the mess. The church accepted before the judge that any claim in contract against Chubb, based on breach of any express or implied term of the agreement for the sale of the extinguisher, was time – barred. Therefore the church claimed in tort, arguing that it was entitled to recover, as damages for Chubb's negligent failure to warn, the cost of the cleaning and repair work that had had to be done following the vandals' attack. The quantum of damages was agreed at £240,000.
4. The claim was tried by HHJ Inglis in the Nottingham County Court on 21-23 January 2009. The judge gave his reserved judgment on 3 April 2009. He found in favour of the church and awarded damages of £240,000 plus interest. In his order of 8 April 2009, the judge also gave Chubb permission to appeal.
5. We heard Chubb's appeal from Judge Inglis' order of 8 April 2009 on 22 April 2010. Judgment was reserved.

The church and the installation of the extinguisher

6. The judge included in his judgment a plan of the church and some photographs of the vestry and kitchenette area which were most helpful to understand the church layout for the purposes of the appeal. However, I think it is unnecessary to reproduce them again here. In 1998 and 1999 the area on the south side of the chancel was redeveloped, so as to create a vestry, a new kitchenette, a new churchwardens' room and a lavatory. The vestry is at the western end of this group of small rooms. The new kitchenette area is adjacent to that, just further East. The new churchwardens' room is to the side of the kitchenette and the lavatory is between them. There is a door directly from the chancel into the kitchenette. That was usually closed, but was not locked because the kitchenette was used by ladies on the "flower rota" when preparing and arranging flowers to decorate the church. There is also a door from the vestry to the kitchenette. There is a third door on the Eastern wall of the kitchenette into the churchyard. The extinguisher and also a carbon dioxide extinguisher were placed together on the wall of the kitchenette next to the door to the churchyard.
7. Chubb have supplied and serviced the fire extinguishers in the church for many years. Three types of extinguisher in particular have been supplied: water, carbon dioxide and dry powder. The extinguisher was installed in the summer of 1999 after the alterations had been completed. It was, in the judge's words "a new appliance for a new area of the church building". In 2001 a maintenance contract was concluded between Chubb and the church whereby Chubb agreed to inspect the extinguishers annually and replenish them where necessary. Chubb also undertook to attend and refill or replace extinguishers that went missing or had been discharged.

The principal findings of the judge

8. There were five main issues before the judge. They were: (i) the scope of any common law duty on Chubb to advise the church at the time of the supply of the dry powder extinguisher in 1999; (ii) what advice was or was not given by Chubb when the decision was taken to install the extinguisher; (iii) whether the giving of advice in accordance with Chubb's policy would have made any difference; (iv) whether the acts of the vandals constituted an intervening cause so that any breach of duty by Chubb in 1999 should not be taken to have caused the damage; (v) whether the church was guilty of contributory negligence by (a) failing to install "theftstoppers" on the extinguishers at the back of the church (not in the kitchenette), and/or (b) leaving the church open and unattended.
9. Chubb accepted before the judge that it was under a common law duty to give advice to the church at the time of the supply of the dry powder extinguisher. The debate concerning issue (i) therefore focused on the scope of the duty owed by Chubb to give advice about the type of extinguisher to be installed and the advantages and disadvantages of the various types available.
10. At the trial there was expert evidence about the different classification of fires and the types of extinguisher that could safely be used against them. The judge found that there are five relevant types of fire. These are: Class A fires, which involve solid materials; Class B fires, which involve flammable liquids; Class C fires which involve gases; Class D fires which involve metals; and Class F fires which concern cooking oils and fats.
11. There is no separate category for fires involving electricity or electrical appliances. However the judge noted that the presence or possible presence of a live electrical source at or near a fire will limit the type of extinguisher that can safely be used against such a fire. Water based extinguishers, including foam, should not be used in those circumstances. The choice of fire extinguisher lies between the dry powder variety, which can be used for all types of fire, and a carbon dioxide extinguisher. The latter will smother a fire by depriving it of oxygen, but is of limited effect against a Class A fire, that is one involving solids. Therefore, the judge found^[1] that if there is an electrical source near a possible fire area and a carbon dioxide extinguisher is chosen, for the "…greatest efficiency" it is best to back that up with a water based extinguisher being available nearby.
12. The judge found, on the basis of the expert evidence, that there was a risk of a Class A fire which might involve electrical apparatus in the kitchenette area. That was because there was an electrical service unit in a cupboard in the kitchenette with an input to the church at 415 volts. He also concluded that there was a substantial quantity of material in the clergy vestry area that could feed a Class A fire. The judge recorded that the experts had concluded that, given these risks, there were, in practice, two options for fire extinguishers in the area of the vestry and kitchenette. They were: (i) a carbon dioxide extinguisher plus a water extinguisher; and (ii) a dry powder extinguisher.
13. The judge noted^[2] that the experts prepared a revised joint statement in the trial which stated:

"Based on the knowledge of fire engineers' training, we consider that the person who ultimately specified the dry powder extinguisher for the kitchenette exercised reasonable care and skill in specifying the safest and most cost effective solution for an area where electrical equipment but no large amount of Class A materials were present.

However, we believe that given the decision of Chubb to provide a 6kg dry powder extinguisher for the vestry it would have been reasonable for Chubb to advise the church of the fact that in the event of a discharge:

the powder would be extremely messy

its discharge would impair visibility and affect respiration of those present.

We have further considered the matter of the size of the most appropriate extinguisher and agree given the fuel load, if a powder unit was to be provided in the vestry it should have been no larger than 1kg.

In our view the engineer exercised reasonable skill and care in accordance with his training. His primary objective was to ensure effective extinguishing of a fire tin the vestry. However, the engineer's training may not have provided them with the flexibility necessary to provide solutions for unusual or non standard situations."

14. The judge also stated^[3] that Mr Kidd, the expert called by the church, accepted in evidence that there were advantages in dry powder for fighting the fire risks present in the vestry/kitchenette area and there were advantages and disadvantages in carbon dioxide extinguishers. If both types of extinguisher were available there was a danger that the wrong sort might be used. Mr Lewis, the expert called by Chubb, gave evidence that the dry powder extinguisher was appropriate and the best solution for fire fighting purposes but would be messy if let off; there were "pros and cons".
15. The judge also explained the characteristics of the powder used in dry powder extinguishers.^[4] It is fine and will remain suspended in the air for days or even weeks. Although coated in silicone it is hygroscopic and when water is absorbed becomes mildly acidic and so may cause corrosion and damage over time. When wet it will congeal into a hard crust. It is difficult to clean up and will require specialist vacuum cleaners. The judge noted that the Chubb Fire Extinguisher Maintenance Training Course booklet listed the advantages and disadvantages of the dry powder form of extinguisher. The booklet regarded that type as "mass for mass the most effective fire fighting medium", but it had disadvantages. The first three it noted were (i) it was messy; (ii) it reduced visibility when discharged in confined areas and so could jeopardise rescue and escape; and (iii) it could contaminate over a wide area involving food or expensive equipment.
16. The judge found^[5] that the use of the dry powder extinguisher (for its proper purpose) was not likely to be confined to the vestry/kitchenette area. Its use "…was likely to result in the contamination of the church generally, though plainly not to the extent of what occurred with powder being deliberately spread around the church", which would involve a clearing up operation which would necessitate expense. He continued:

"Nobody in 1999 would necessarily expect the extent of the damage, but if a powder extinguisher was let off in the church building, anyone who had or ought to have had knowledge of its characteristics should have understood the likelihood of contamination the clearing up of which could cause considerable expense".

17. The judge concluded^[6] that in 1999 a dry powder extinguisher was probably the best solution from the point of view of fighting a fire that might break out in the new vestry area. But "…on the other side, the disadvantages in terms of contamination from the use of powder were also to be considered".
18. Against these findings, the judge found that it was "…the overwhelming probability…" that Chubb would have been asked to provide "…the appropriate fire extinguisher for this new area [in the church]".^[7] He concluded that, because there were important advantages and disadvantages in the provision of a dry powder extinguisher (as opposed to a carbon dioxide plus water one) and because Chubb were asked to provide extinguishers for the new area without a particular type being identified by the church, "..these considerations [of the advantages and disadvantages] were ones that should not be kept from the church".^[8] The virtues of the dry powder extinguisher could be extolled, but:

"…at the same time a warning should have been given about the risk, namely that if discharged a powder extinguisher was liable to make a mess the clearing up of which could cause considerable expense."^[9]

19. I take that to be a conclusion of law on issue (i) (viz. the extent of Chubb's duty to advise the church) that, in the circumstances, Chubb was under a duty to give the church balanced advice as to the advantages and disadvantages of installing the dry powder type of extinguisher in the new area of the church.
20. That conclusion inevitably leads to the judge's findings on to issue (ii): what did Chubb advise before the extinguisher was sold to the church for a total sum of £156 plus VAT? The judge described that question of fact as the most important in the whole case.^[10] There was very little direct evidence available to the judge on which to base his conclusion on this issue. The judge found that the Vicar of Spalding, Canon Barker, would not have been directly involved in the decision to purchase the extinguisher. That would have been the job of the church administrator, who at the time was Mrs Jennifer Youngman. She was not "available" to give oral evidence; nor was there was any written statement from her. There was also no evidence from the Chubb sales representative who was responsible for the sale.
21. The judge heard evidence from Canon Barker and church administrators after Mrs Youngman, who all said that they could not recall any warning of the disadvantages of the dry powder type of extinguisher being given. Mr Tim Sanderson, the area sales representative for Chubb, said in evidence that there would usually have been a discussion. Mr Guy Middleton, the Chubb quality manager, gave evidence that he would usually have had a conversation with the client about the "pros and cons" and allow the customer to make an informed judgment. He said that "…sometimes the customer would make his own informed choice, as by consulting their insurers…". There was evidence that the Ecclesiastical Insurance website was recommending dry powder for kitchens as late as 21 December 2006, although recommending also that equipment should be bought from suppliers that belonged to appropriate trade associations.^[11]
22. The judge concluded on issue (ii) that Chubb did not give a warning that if the extinguisher were to be discharged in the church there was a likelihood that there would be a mess which could involve considerable expense in cleaning it up. He thought that if such a warning had been given, it was:

"…in the highest degree unlikely that someone in the position of a church administrator or other representative….would ignore [such a] warning or keep it to herself. It would inevitably have been shared with the vicar or the PCC, and I am satisfied that it was not"^[12]

23. The judge therefore concluded that Chubb was in breach of duty when it recommended the dry powder type of extinguisher for this new area of the church, in that Chubb "…did not give an appropriate warning about the mess it could make if discharged".^[13]
24. On issue (iii) (viz. whether giving advice would have made any difference), the judge concluded that the church would have taken further advice. But he also recorded Canon Barker's evidence as being that if he had been told what the powder could do, he would not have had it in the church. The judge found that the church would have rejected the dry powder type of extinguisher if "…faced with the prospect that discharging the extinguisher in the church would cause a mess that would be expensive to clear up….".^[14]
25. On issue (iv) (viz. causation and "new intervening act"^[15]), the judge characterised the question as being whether "..the criminal actions of the youths should be regarded as the sole cause of the damage". He reviewed the cases and the submissions of the parties.
26. The judge held that the malicious discharge of the extinguisher was "plainly foreseeable in 1999" and he found that a substantial amount of damage as a result was (at that time) a "real possibility".^[16] He stated that, as a matter of law, "when the foreseeable wrongful intervention by a third party is present, it is right to concentrate on the scope of the duty of the Defendant". He continued:

"When, as here, the damage is directly caused by the foreseeable wrongful act of a third party it must be a material consideration that the breach of duty lay in permitting circumstances in which the damage happened at all, however it was caused….the fact that the damage was caused by vandalism does not break the chain of causation between the negligence and the damage".^[17]

27. Lastly, on issue (v) (viz. possible contributory negligence by the church), the judge found in favour of the church on both of the two grounds advanced by Chubb. Thus he held that the fact that the church had not fitted "theft stoppers" to the extinguishers that were placed at the back of the church would not have affected the outcome.^[18]
28. On the question of whether the fact that the church was left open and unattended were factors that meant that the church was contributorily negligent for the damage caused by the vandalism, the judge said that the test was "…whether the claimant had fallen below a reasonable standard of care in the circumstances in a way that was a foreseeable cause of the damage in question".^[19] Having reviewed the evidence of the church's practice, the judge concluded:

"I do not think it established that by dealing with the matter of attending at the church and leaving it open in the daytime as they did, the claimants were at fault in the matter of the damage that they suffered in September 2006".^[20]

The arguments on the appeal and the issues that arise.

29. Mr Neil Moody QC, who appeared for Chubb on the appeal, as he had before the judge, said that Chubb accepted, for the most part, the judge's finding on issue (i), ie. that Chubb was under a duty at the time of the supply of the extinguisher to give balanced advice to the church that the discharge of a dry powder extinguisher was liable to cause a mess. However, Chubb did not accept the judge's finding that Chubb should, as part of its balanced advice, have warned the church that the mess caused by the discharge of the dry powder type of extinguisher would have resulted in "considerable expense" to clear it up. This was relevant to Chubb's challenge to the judge's conclusion on issue (iii), ie. whether, if a warning had been given, the church would have acted on it in such a way as to avoid the damage.
30. Chubb disputes the judge's conclusions of fact on issues (ii) and (iii). Mr Moody submitted that the judge erred in his approach in law to issue (iv) (causation and "new intervening act"). He submitted that the judge also erred in his approach and conclusion on issue (v) (contributory negligence).
31. Mr Eklund QC, for the church, who had not appeared at the trial, submitted that the judge's findings on issues (ii) and (iii) could not successfully be attacked. He sought to uphold the approach and conclusions of the judge on issues (iv) and (v).
32. I will deal with the various issues on the appeal as follows: Issue A: was a warning given? Issue B: would the church have acted on a warning if given? Issue C: is the action of the vandals to be regarded as a "new intervening act", such that Chubb is not liable for the damage caused by the discharge of the extinguisher, even if it was negligent in failing to warn? Issue D: was the church contributorily negligent?

Issue A: was a warning given that discharge of a dry powder extinguisher would be "messy"?

33. Mr Moody submitted that the judge failed to have sufficient regard to the evidence of Mr Sanderson, the Chubb sales representative for the area covering Spalding, who had worked in the same office as the person who sold the extinguisher to the church. His evidence was that he would "probably" have discussed the "downside" that dry powder extinguishers were "messy" because, he said, "…you need to let the person know what the ups and downs are".^[21] Mr Middleton's evidence was that he would have had a conversation with the client about the pros and cons of certain extinguishers and allowed the client to make an "informed judgment".
34. Mr Moody points out that the judge did not either accept or reject Mr Middleton's evidence on this point. He submits that the judge's finding with regard to Mr Sanderson's evidence was based upon a mis-recollection of what Mr Sanderson had said. The judge recorded Mr Sanderson's evidence that he would have explained to a client what an extinguisher did or did not do and he would have avoided recommending the dry powder type where there was electrical equipment that could be damaged by the dust and he would avoid enclosed areas. Then the judge said:^[22]

"[Mr Sanderson] seemed to me to fall short of saying that if he had been the sales representative concerned he would necessarily have warned about the mess the powder could make, though he might have done".

35. I accept that this does not accurately record the evidence that Mr Sanderson gave when he was recalled. But, even if the judge had accurately recorded that evidence and had accepted it, the result contended for by Mr Moody does not follow. Mr Sanderson was not the salesman. Even if his practice was to explain the pros and cons of dry powder extinguishers and probably to point out the downside that they were messy, it does not prove, on a balance of probabilities, that the actual salesman did so in this case. The judge's conclusion was one that he could reasonably come to on the evidence before him.
36. Therefore I reject the submission that the judge should have found that a warning about the messiness of the extinguisher was given to the church.

Issue B: Would the church have acted on a warning even if given?

37. Mr Moody made two principal submissions on this issue. First of all, he argued that the judge was wrong to find that the warning that should have been given was that if a dry powder extinguisher was discharged it was liable to make a mess "….the clearing up of which could cause considerable expense". Mr Moody takes issue with the word "considerable" and says that, in 1999, the possible extent of any mess and therefore the cost of clearing it up could not have been known to Chubb.
38. In my view there is no force in this argument. Chubb may well not have foreseen the precise extent of the damage that was done by the discharge of the extinguisher. But Chubb knew that the discharge of the dry powder type of extinguisher could cause a mess. How much mess was unpredictable. But it would have been obvious to Chubb that if the mess was extensive, then clearing it up might cause considerable expense. The judge's conclusion on the terms of the warning that should have been given does not depend on whether, in 1999, Chubb should have foreseen that vandals might enter the church and might discharge the extinguisher in the way that would cause the most mess. It depended on Chubb's knowledge, which could not be disputed, that the discharge of that type of extinguisher could cause mess, which could be expensive to clear up if the mess was extensive.
39. Mr Moody's second argument is more formidable. He points out that if the warning about mess and expense had to be given, then that had to be balanced by advice on the advantages of the dry powder type of extinguisher and the pros and cons of the other types, so that the church could make a proper choice. He submits that the judge erred in finding that if Canon Barker had known what the powder in a dry powder extinguisher could do, he would not have had it in the church, so that it would have rejected that type of extinguisher.^[23]
40. Canon Barker had certainly said in his second witness statement that "…if he had been advised of the disadvantages of powder – of which we are now all too aware – I would certainly not have had a powder extinguisher in the church or the vestry". He reiterated the statement in cross-examination.^[24] But that statement smacks of hindsight and it rather assumes that there would, necessarily, be a lot of mess and that would, necessarily, cause considerable expense to clear up. That does not equate with the warning the judge found should have been given. Later in his cross-examination Canon Barker accepted that he could not have expected to be advised in 1999 that there was a risk that powder would be sprayed all around the church giving rise to catastrophic damage to the entire premises unless it had happened elsewhere.^[25] Chubb had no such experience in churches.
41. In his oral evidence, Canon Barker was cross-examined by Mr Moody on what the church's course of action would have been if it had been warned that discharge of a dry powder extinguisher ran the risk of contamination, mess and expense, but if it was also told that powder was more effective at putting out fires. Canon Barker said that if they had been given that advice then "…I expect that we would have then have wanted to have sought further professional advice".^[26] Canon Barker said that he could not anticipate what a professional advisor might have said.^[27] There was no evidence, either factual or expert, as to what that further professional advice would have been.
42. So although the judge rightly recorded at [31] that Canon Barker had said that if he had known what the powder could do he would not have had it in the church, that does not really deal with the correct question. The issue is, more correctly, what would the church have done if given advice in the context of general advice on what was the best solution for the church. On that, Canon Barker was definitely challenged in cross-examination. His evidence, clearly, was that the church would have taken further professional advice.
43. But that does not answer the next question, necessarily hypothetical, ie. what would the church have done if it had sought further professional advice. The judge did not deal with that question, because he found that a decision would have been taken not to have the dry powder type extinguisher in the church at all if told that discharging it would have caused a mess that would be expensive to clear up. Canon Barker was cross-examined about how he would have balanced the risk of collateral damage against the need to have the most effective fire extinguisher. When asked if he accepted that he would want the most efficient fire extinguishers for putting out a fire in the vestry as quickly as possible, he replied "I suppose I would".^[28] The witness also accepted that the church was always trying to keep costs down^[29] and that no training was offered to members of the church community in the use of fire extinguishers.
44. Mr Moody submitted that the judge did not deal with the evidence of Canon Barker that the church would have sought professional advice if it had been given a warning about the possible mess (and consequent expense) if a dry powder extinguisher was discharged in the church. Nor did he deal with the witness' evidence that, ultimately, the priority was to have an extinguisher that did the best job in fighting fires in the church. Mr Moody submitted that, overall, the evidence is clear that even if a warning had been given, the church would ultimately have decided to install the dry powder type extinguisher. Therefore the lack of a warning and the breach of duty was not causative of the damage to the church.
45. Mr Eklund QC submitted to us that the answers given by Canon Barker do not lead to that conclusion, because they are answers to questions about how the church would have evaluated the comparative advantages and disadvantages of the different types of extinguisher. He submitted that the judge was entitled to accept Canon Barker's evidence as set out in his second statement and given in cross-examination, viz. that if the church had been advised of the disadvantages of powder as they now knew them to be, then they would not have had that type of extinguisher in the church. He also submitted that Canon Barker was not asked the specific question: what would you have done if warned that if a powder extinguisher was discharged it was liable to make a mess the clearing up of which could cause considerable expense – the warning that the judge found ought to have been given. But that is hardly surprising as the judge had yet to make his finding. In its Particulars of Claim the church had simply pleaded that Chubb had failed to advise of the harmful effects that the contents of a dry powder extinguisher could or would have on the fabric and contents of the church and had failed to advise that a carbon dioxide extinguisher would have been an acceptable alternative.
46. In my view it is clear from the evidence of the experts, as found by the judge, that the warning that the judge found should have been given would have been stated in the context of advice that Chubb should have given about the advantages and disadvantages of the various types of extinguisher. The church had the burden of proving, on a balance of probabilities, that if the warning had been given in that context, then it would have definitively rejected the dry powder type of extinguisher for the new vestry area.
47. It seems to me that the judge did not take account of Canon Barker's clear evidence in cross – examination that if the church had been given balanced advice, including a warning about the danger of a mess from the discharge of a dry powder extinguisher, the church would have taken further professional advice on which type of extinguisher to install in the new vestry area. There was no further evidence on what that professional advice might have been. But it is noteworthy that the experts did not criticise the ultimate decision of the Chubb engineer to install a dry powder extinguisher in the new vestry area, as is clear from the judge's recital of their evidence and the passage of their revised joint statement quoted at [13] above.
48. In my view, if the judge had properly had in mind Canon Barker's evidence that if the church had been given balanced advice on the advantages and disadvantages of the different types of extinguisher, including the warning in the terms the judge found should have been given, then the judge should have made two findings which he did not. First, that the church would have taken further professional advice. Secondly, that such advice would have been that the dry powder type extinguisher was the "least wrong" option, "….in that it was the safest and most cost effective solution where electrical equipment and large amounts of Class A material were present", as stated in the experts' joint statement.^[30]
49. I have therefore concluded that, by failing to consider that evidence of Canon Barker that further professional advice would have been taken, the judge fell into error in reaching his conclusion that if the warning had been given, the church would have made a definite decision not to install the extinguisher. In my view, if the judge had properly considered that evidence, he would have been bound to conclude that, ultimately, the extinguisher would have been installed in any event.^[31] If so, then the failure to give the warning could not have been causative of the damage suffered and so the claim should have failed on that ground.

Issue C: Is the action of the vandals to be regarded as a "new intervening act" such that Chubb is not liable even if it failed to warn as it should and that failure led to the extinguisher being installed?

50. This issue only arises upon the presumption that (a) Chubb was in breach of its duty to warn, and (b) if it had done so, the church would have taken a decision not to install a dry powder extinguisher in the kitchenette – or any other part of the church. To that extent, it must be accepted that the damage that occurred as a result of the vandals' work would not have occurred "but for" the negligence of Chubb. However, it is also obvious that the damage would not have occurred "but for" the intervention of the vandals. It is in that context that the question arises of whether Chubb is liable for the damage caused by the actions of the vandals, or whether their discharge of the extinguisher constituted a "new intervening act" for which Chubb is not responsible in law.
51. The judge found^[32] that "malicious discharge" was plainly foreseeable in 1999. That finding of fact is not, itself, challenged on appeal. Nor, as I understand it, is the judge's conclusion that a substantial amount of damage was a "real possibility" if the extinguisher was discharged.^[33] The judge then stated that "…if foreseeable wrongful intervention by a third party is present, it is right to concentrate on the scope of the duty of the Defendant".^[34] The judge cited various cases where the court had held that it had been the duty of the defendant to do something, which it had not, with the result that damage had been caused to the claimant because of the deliberate or foreseeable acts of third parties.^[35]
52. The judge then stated:

"But the principle does not seem to me to require the relevant duty to concentrate solely on the act of the wrongdoer. It may include all sorts of damage. When, as here, the damage is directly caused by the foreseeable wrongful act of a third party it must be a material consideration that the breach of duty lay in permitting circumstances in which the damage happened at all, however it was caused….the fact that the damage was caused by vandalism does not break the chain of causation between the negligence and the damage".^[36]

53. Mr Moody submitted that the judge was wrong to focus on those cases where the court found that the defendant was under a duty to take actions to protect the claimant from damage caused by the acts (deliberate or negligent) of third parties. He submitted that in cases such as Dorset Yacht the defendant was held to be under a duty to guard persons in the situation of the claimant from damage caused by the deliberate acts of a third party, such as the borstal boys. Therefore it was the breach of that duty that was the cause of the damage and loss. That is why there is no break in the "chain of causation" in such cases. It was not suggested in this case that Chubb had a duty to protect the church from the depredations of vandals.
54. Mr Moody further submitted that in cases where the defendant is proved to have been in breach of a duty of care, but the immediate cause of the damage suffered by a claimant has been the result of the acts of a third party, the question of whose acts are, in law, the cause of the damage, needs a more rounded approach. He submitted that the proper analysis is that set out in Clerk & Lindsell on Torts^[37] at paragraph 2-82, which passage had been in the previous edition and had been approved by Buxton LJ in Roberts v Bettany.^[38] The passage in the current, 19^th, edition of Clerk & Lindsell states:

"The question of the effect of a novus actus "can only be answered on a consideration of all the circumstances and, in particular, the quality of that later act or event".^[39] Four issues need to be addressed. Was the intervening conduct of the third party such as to render the original wrongdoing merely a part of the history of events? Was the third party's conduct either deliberate or wholly unreasonable? Was the intervention foreseeable? Is the conduct of the third party wholly independent of the defendant, ie. does the defendant owe the claimant any responsibility for the conduct of that intervening third party. ?In practice, in most cases of novus actus more than one of the above issues will have to be considered together".

55. Mr Moody submitted that if the judge had correctly considered all those four factors, he would have concluded that the acts of the vandals were a new intervening cause. The consequence of that conclusion should have been that any breach of Chubb in failing to warn the church could not, in law, be regarded as the cause of the damage done to the church by the vandals in discharging the extinguisher.
56. Mr Eklund submitted that the reasoning of the judge was correct. He submitted that the negligent breach by Chubb of its duty to warn the church about the consequences of a discharge of the extinguisher meant that the church was exposed to damage resulting from the discharge of the extinguisher in the church – however that was done. The warning would have put the church in a position to protect itself against that exposure by choosing not to install a dry powder extinguisher. To that extent, Chubb's failure was the source of the danger which led to the damage by the vandals.^[40] Moreover, the judge found that malicious discharge was foreseeable in 1999 and that finding was not appealed. Accordingly, there was a clear link between Chubb's failure to warn and the damage that the church has suffered as a result of the discharge of the extinguisher.
57. Mr Eklund submitted also that if the four factors identified in Clerk & Lindsell are properly applied to the facts of this case, it is clear that the acts of the vandals cannot be regarded as a new intervening cause. He accepted that Chubb was not under any duty to protect the church against damage caused by vandals. But it was Chubb's negligent failure to give the church the opportunity to protect itself against the damage of vandals (by Chubb's failure to give the warning) which caused the damage. He laid emphasis on the foreseeability, in 1999, of damage by vandals in the church.

Discussion.

58. Clerk & Lindsell considers the effect of intervening acts on the liability of a defendant for his tort under the general heading "Causation in Law". In Roberts v Bettany,^[41] Buxton LJ said:

"Although the doctrine of novus actus and the defence of novus actus are sometimes talked of as and presented as simply a question of causation, which at first sight might appear to be an issue of fact, it is well recognized that the matter is more complex than that. The issue is one of law, whereby the court has to be satisfied that the acts of the third party were sufficient as a matter of law to exculpate the defendants from liability for the particular result, proximate or distant though it might have been, of his negligent act".

59. Other judges have treated the doctrine of "new intervening cause" as part of a series of questions which the court may have to consider in a particular case to decide whether the damages claimed are too remote. This was the approach adopted by Lord Rodger of Earlsferry in the Scottish case of Simmons v British Steel plc.^[42] He analysed the position as follows:

"These authorities suggest that, once liability is established, any question of remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25, per Lord Reid; Bourhill v Young [1943] AC 92, 101, per Lord Russell of Killowen; Allan v Barclay (1864) 2 M 873, 874, per Lord Kinloch. (2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25, per Lord Reid: Lamb v Camden London Borough Council [1981] QB 625; but see Ward v Cannock Chase District Council [1986] Ch 546…"

60. This analysis was adopted by Lord Bingham of Cornhill in his speech in Corr v IBC Vehicles Ltd.^[43] That was an English case where the claimant's husband had been employed by the defendant and had suffered severe head injuries because of malfunctioning machinery. He suffered post-traumatic stress disorder and that led to depression. He ultimately committed suicide. His widow claimed against the employers for loss attributable to her husband's death by suicide under section 1 of the Fatal Accidents Act 1976. The House of Lords upheld the judgment of the Court of Appeal, which had allowed an appeal from the deputy judge, who had dismissed the claim.
61. At [8] of his speech, Lord Bingham said that the real issue dividing the parties was whether the damages claimed by the widow from the employer were too remote. Lord Bingham quoted the extract of the opinion of Lord Rodger that I have set out above and said that it represented the law of England. He then analysed the case before the House under the headings considered by Lord Rodger.
62. On the question of whether the suicide was a "new intervening cause", Lord Bingham referred to the judgments of the Court of Appeal and then, at [15], said:

"The rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness. It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor's breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible. This is not the less so where the independent, supervening cause is a voluntary, informed decision taken by the victim….".

63. In my view it is clear that both Lord Rodger and Lord Bingham were not confining their remarks about "new intervening cause" to cases where the new intervening act is that of the original victim, as opposed to that of a third party. Their statements of principle must cover cases where the "new intervening act" is that of a third party and, I would suggest, also where it is an act of nature. Further, in my view it also does not matter whether you regard the doctrine of "new intervening act" as part of the law of "causation" or "remoteness of damage". The doctrine of "new intervening cause" is used by the courts as one of a number of means by which to decide whether a defendant, whose breach of a duty of care to a claimant has been established, will be responsible for certain consequences of that negligence and the damages that are claimed to flow from those consequences. In Robert Eric Spencer v Wincanton Holdings Ltd,^[44] I dubbed those means "exclusionary rules". It is all a part of what Lord Hoffmann has said, extra-judicially, is the law's method of attributing legal responsibility for things that happen.^[45]
64. It is noticeable that when Lord Bingham made his statement of principle on "new intervening act" at [8] of his opinion in Corr's case, he was careful not to be prescriptive on when a particular cause is so independent and supervening that the tortfeasor is not responsible for it and so not responsible for damage caused by this new event. I suggested in Roberts v Wincanton Holdings Ltd, that this must have been deliberate. The courts have to make a "value judgment" when dealing with issues such as "remoteness of damage" or "causation", as Lord Nicholls frankly acknowledged in his opinion in Kuwait Airway Corpn v Iraqi Airwayu Co (Nos 4 and 5).^[46] If "remoteness of damage" and "causation" are means of deciding who is to be responsible for things that have happened, then in all cases, the ultimate question is: what is the extent of the loss for which a defendant ought fairly, or reasonably or justly to be held liable.
65. Against this background, I return to the judge's analysis at [36] of his judgment. He regarded the important points as being (a) the initial negligence of Chubb in failing to warn the church of the consequences of a discharge of the extinguisher; (b) the facts that malicious discharge of the extinguisher was a foreseeable event in 1999 and that if the extinguisher was discharged, substantial damage was "a real possibility"; (c) the scope of Chubb's duty to warn the church was such that it "permitted" circumstances to arise in which the damage happened. Taking those together he concluded that the fact that the damage was caused by vandalism did not break the chain of causation.
66. In my view the judge failed properly to apply the correct legal principles. First, he appears, effectively, to have held that it was within the scope of Chubb's duty to protect the church against the foreseeable actions of vandals because it was Chubb's duty to warn that discharge of the dry powder type of extinguisher could lead to a considerable mess which could be expensive to clear up. Mr Eklund rightly accepted that Chubb did not owe a duty to protect the church against vandals. Secondly, as a consequence, the judge seemed to have concluded that he need only ask: was Chubb in breach of duty and was the action of vandals foreseeable in 1999? In my view that is too simplistic an approach. As Lord Mackay of Clashfern observed in his speech in Smith v Littlewoods Organisation Limited,^[47] to hold that actions by third parties are foreseeable may not be enough. An action can be foreseeable but no more than a "mere possibility" or it may, depending on the circumstances, be "highly likely". The judge's finding on this aspect is in general terms only. Thirdly, although the judge mentions the four issues set out in Clerk & Lindsell, in reciting Mr Moody's arguments,^[48] he does not appear to have had them particularly in mind in reaching his decision on "new intervening act". Fourthly, although this may not be the judge's fault because he may not have been referred to Corr's case, the judge did not consider the four issues in the light of the rationale for the doctrine of "new intervening act" as set out by Lord Bingham in Corr's case.
67. This conclusion means, in my view, that this court must consider the issue again and arrive at a value judgment of its own. As I have already stated, the starting point is that Chubb was in breach of its duty to warn the church that if a dry powder extinguisher was discharged it was liable to make a mess, the cleaning up of which could cause considerable expense. Secondly, it must be assumed, contrary to my own conclusion, that if the church had been given that warning, it would not have permitted a dry powder extinguisher to be installed. Thirdly, the judge has made an unchallenged finding that malicious discharge of the extinguisher was plainly foreseeable in 1999 and that, if discharged, it was a "real possibility" that this would cause a substantial amount of damage. But, fourthly, it is accepted that Chubb did not owe the church any general duty to guard against the depredations of vandals.
68. The four issues set out in Clerk & Lindsell can now be reconsidered. The first factor – whether the intervening conduct of the third party was such as to render the original wrongdoing merely a part of the history of events – involves a value judgment and requires the court to take account of the other three issues listed by Clerk & Lindsell. But it can be noted now that the extinguisher was installed in 1999 and the vandal's attack and the damage took place seven years later. The judge listed the incidents between 1999 and 2006 when extinguishers had been let off in the church, but the dry powder extinguisher was not tampered with in the seven years between installation and the present incident. In the meantime the decision was taken to keep the church open in the day and it was not always attended. It is a clear inference from those facts that no one could have given much serious thought to the possibility that vandals would be at all likely to make their way through the church, through the heavy door in the chancel to the kitchenette and there pick up the extinguisher and take it into the church to discharge it. If they had done so, then further advice might have been sought. Further thought might have been given to applying "theft stoppers" to extinguishers in the kitchenette, but that was apparently never considered, even when they were being considered for other extinguishers.^[49]
69. On the second issue, it is clear that the vandals' acts were deliberate, unreasonable and criminal. Moreover, given the history of incidents of extinguishers being let off in the church between 1999 and 2006, with no history of this extinguisher (or the other one in the kitchenette) being let off, the actions of these vandals can be regarded as both unpredictable and extreme. Further, the method of discharge of the extinguisher in the body of the church on this occasion was obviously calculated to cause maximum damage, something which was itself unpredictable and extreme.
70. As for the third issue, whether the intervention was foreseeable, the judge found that malicious discharge was foreseeable in 1999. However, as at 1999 there was no evidence of previous incidents of vandalism in this church. There is no finding that, as at 1999, vandalism by discharge of fire extinguishers in this church was probable, or likely, or that there was a probability of extensive damage to the church by the discharge of extinguishers generally or the discharge of this extinguisher, placed as it was in the kitchenette. There is only the more tentative finding that if the extinguisher was discharged, substantial damage was a "real possibility".
71. On the fourth issue – whether the conduct of the third party was wholly independent of the defendant or did the defendant owe the claimant any responsibility for the conduct of the intervening party – Mr Eklund conceded that Chubb was under no duty positively to prevent the actions of the vandals. It is clear that Chubb owed no other relevant duty than the one found by the judge. The actions of the vandals were wholly independent of Chubb, which had no control over them nor any responsibility for them.
72. Mr Eklund argued that Chubb was, to use Lord Goff's phrase in Smith v Littlewoods,^[50] the "source of the danger" and so was responsible for the actions of the vandals. I do not accept this analysis. The extinguisher cannot be called a "source of danger". The judge found, on the basis of the expert evidence, that it was reasonable to install a dry powder extinguisher in the kitchenette. The installation of that type of extinguisher by Chubb did not involve any breach of duty by it because it was reasonable to install that type. Moreover, although the judge found that malicious discharge was foreseeable in 1999, he did not find (in contrast to the test expounded by Lord Goff in Smith v Littlewoods)^[51] that it was reasonably foreseeable in 1999 that vandals would trespass into the church, interfere with the extinguisher in the kitchenette and thereby cause damage to the church.
73. Looking overall at the four issues, as identified by Clerk & Lindsell, and doing so with the rationale for the doctrine of "new intervening act" in mind, I ask myself whether it is fair to hold Chubb liable for the damage caused the independent acts of the vandals? In my view the answer is that it is not. The attack happened seven years after the breach of duty. It was the deliberate and criminal act of persons for whom Chubb had no responsibility. Although malicious discharge was foreseeable in 1999, no one thought then that there was any degree of likelihood that the combination of events that did occur on 1 September 2006^[52] would, in fact do so. That combination of events is: that vandals would enter the church in the short space when it was unattended and unlocked during the day; that they would make their way to the kitchenette; that they would take down the extinguisher and then take it into the body of the church and discharge it in a manner that was designed to cause the maximum amount of damage. That combination was, at its highest, a mere possibility. So, I would conclude that the intervening conduct of the vandals was such as to render the original breach of duty by Chubb merely a part of the history of events, so that Chubb is not responsible for the damage caused by the vandals.

Issue D: Was the church contributorily negligent in not fitting "theft stoppers" or by keeping the church open and unattended?

74. The judge concluded, in relation to the "theft stoppers" that, first, even if they had been fitted to the water extinguishers, it would not have prevented the vandals going to the kitchenette and finding and discharging the extinguisher itself. Secondly, the judge found that the decision not to fit the "theft stoppers" was a reasonable one. The reason was that the extinguishers were likely to be interfered with when the church was unattended and so no one would hear the alarm on the "theft stoppers" when they were set off by anyone interfering with the extinguishers.
75. No one knows which extinguisher the vandals discharged first on entering the church and there are therefore no findings on that topic. The judge was correct to conclude that the "theft stoppers" would only have prevented the damage being done if they had been fitted to the water extinguishers and if the vandals had tried to interfere with those first and then been frightened off by the alarm. All that is known is that at some point the vandals went into the kitchenette, took down the extinguisher and then took it into the body of the church and discharged it there. The judge had no means of finding that, on a balance of probabilities, the vandals would have discharged a water extinguisher first, thus, if a "theft stopper" had been fitted, they would have been frightened off and so not ventured into the kitchenette.
76. So I accept the judge's finding that Chubb failed to prove that fitting the "theft stoppers" would have made a difference. I also accept that the decision of the church not to fit them was reasonable for the reasons given by the judge.
77. On the question of leaving the church unlocked and unattended, Chubb's submission is that the church should not have been left unattended, given the large numbers of incidents of vandalism that had occurred since 2001 and especially since 2005. Mr Moody submitted that the decision to leave the church unlocked and unattended in the day was an unreasonable one and the judge failed to carry out a balancing exercise between Canon Barker's natural preference to keep the church open for worshippers and visitors and the need to guard against increasing incidents of vandalism.
78. In my view the judge did balance the evidence at [38] – [39] of his judgment. He reached the conclusion that the decision of Canon Barker to leave the church open, even if unattended, during the day, was a reasonable decision. Having considered the arguments put forward by Mr Moody for Chubb on this aspect of the appeal, I have concluded that the judge's findings and conclusions on this issue, which is basically one of fact, cannot be impeached.

Conclusion and disposal.

79. For the reasons given, I would allow this appeal on Issues B and C for the reasons set out above. In other words, on Issue B I would hold that the judge erred in his conclusion that a warning in the terms found by the judge would have made a difference to whether the extinguisher was installed or not. On Issue C, I would hold that the judge erred in concluding that the actions of the vandals were not a new intervening act.

Lord Justice Longmore:

80. I do not think this court can reverse Judge Inglis' finding of fact that Chubb gave no warning to the Church about the danger or the downside of using a dry powder extinguisher. That is a finding of primary fact and there was evidence from Canon Barker that he would expect to have been told if any warning was given. It could only usefully have been given to the church administrator, Mrs Youngman, who was not called to give evidence. But the judge accepted that if she had been given any such warning she would have passed it on to the vicar and possibly other members of the Parish Council. In the event that did not happen and it is likely that no warning was given.
81. The other critical factual decision for the judge was what the Vicar would have done if he had received a warning. This is a matter of inference and can more readily be attacked in this court. The judge did not get much assistance from Canon Barker himself who merely said (reasonably enough) he would have taken further advice. When the judge said that Chubb should have given a "balanced warning" he must have meant that Chubb should have not only described the pros and cons of a dry powder extinguisher (ideal if a fire starts where electrics are situated but liable to cause polluting damage if discharged in a small or, indeed, a large space) but should also have described the pros and cons of the only alternative (a water and a CO² extinguisher) namely that it was essential not to use water first if there was a fire in the electrics area and that personnel likely to use the extinguishers would have to be trained in their use; the alternative system would also be more expensive than a dry powder extinguisher (see para 36 of the judgment). Even if the judge did not positively mean what I have described when he used the phrase "balanced advice", it would (according to the expert evidence) have been the advice which Canon Barker would have received if he had asked for further advice.
82. This being the case the Church did not, in my judgment prove that in these circumstances the more expensive and troublesome option would have been chosen; the judge's finding that, if the relevant warning had been given by Chubb the Church would have taken that course cannot, therefore be supported.
83. In these circumstances the appeal must succeed and the interesting arguments addressed to us to the effect that the acts of the vandalistic teenagers amounted to a break in the chain of causation do not arise. For this reason I would prefer not to express a view upon them.
84. I entirely agree, however, with the reasons much more fully given by Aikens LJ in relation to Issue B and would allow this appeal.

Lady Justice Arden:

85. For the reasons given by Lord Justice Aikens and Lord Justice Longmore, I agree that this appeal should be allowed on Issue B. As the judgment of Lord Justice Aikens so clearly demonstrates, Issue C raises difficult and important questions. In the circumstances, it is not determinative of this appeal, and, for that reason, in common with Lord Justice Longmore, I express no view on it.

Note 1    [8] of the judgment    [Back]

Note 2    [12] of the judgment    [Back]

Note 3    [14] of the judgment    [Back]

Note 4    [15] of the judgment    [Back]

Note 5    [17] of the judgment    [Back]

Note 6    [18] of the judgment    [Back]

Note 7    [19] of the judgment    [Back]

Note 8    [25] of the judgment.    [Back]

Note 9    Ibid.    [Back]

Note 10    [30] of the judgment.    [Back]

Note 11    [29] of the judgment.    [Back]

Note 12    [30] of the judgment.    [Back]

Note 13    Ibid.     [Back]

Note 14    [31] of the judgment.    [Back]

Note 15    I have deliberately not used the Latin tag “novus actus interveniens”, although it is still used in some of the modern cases.    [Back]

Note 16    [36] of the judgment.    [Back]

Note 17    [36] of the judgment.    [Back]

Note 18    [37] of the judgment.    [Back]

Note 19    [40] of the judgment.    [Back]

Note 20    Ibid.    [Back]

Note 21    Mr Sanderson was re-called as a witness on 22 January 2009. He gave this evidence in answer to questions from Mr Moody.    [Back]

Note 22    [26] of the judgment.    [Back]

Note 23    [31] of the judgment, based on para 2 of Canon Barker’s second witness statement made on 16 January 2009, ie. shortly before the trial.    [Back]

Note 24    Transcript: 21.109: page 62B.    [Back]

Note 25    Transcript 21.1.09: page 74G-H.    [Back]

Note 26    Transcript 21.1.09: page 30E.    [Back]

Note 27    Page 30F.    [Back]

Note 28    Transcript 21.1.09: page 74H.    [Back]

Note 29    Transcript 21.1.09: page 56B.    [Back]

Note 30    As quoted by the judge at [11] of his judgment.    [Back]

Note 31    I note here that although the experts made some comment and criticism about the decision to install a 6kg dry powder extinguisher instead of a 1kg one, it was not the church’s case at trial that the installation of the 6kg extinguisher was negligent.    [Back]

Note 32    [36] of the judgment.    [Back]

Note 33    [36] of the judgment.    [Back]

Note 34    Ibid.    [Back]

Note 35    The judge referred to Dorset Yacht v The Home Office [1970] AC 1004 – duty to take care in supervising borstal boys; Stansbie v Troman [1948] 2 KB 48 – duty, arising from contract, to lock the front door against thieves; Haynes v Harwood [1935] 1 KB 146 – duty to tie up horse properly so it could not run amok if frightened by boys throwing stones.    [Back]

Note 36    [36] of the judgment.    [Back]

Note 37    19th Ed. (2006)    [Back]

Note 38    [2001] EWCA Civ 109 at [17] – [20]. Laws LJ agreed.    [Back]

Note 39    This is a quotation of Lord Simond’s speech in Hogan v Bentinck West Hartley Collieries (Owners) Ltd [1949] 1 All ER 588 at 593.    [Back]

Note 40   Mr Eklund relied, by analogy, on Smith v Littlewoods Organisation Ltd [1987] 1 AC 241, particularly the speech of Lord Goff of Chieveley at 272-274.     [Back]

Note 41   [2001] EWCA Civ 109 at [12].    [Back]

Note 42    [2004] ICR 585 at [67].     [Back]

Note 43    [2008] 1 AC 884 at [8]    [Back]

Note 44    [2009] EWCA Civ 1404 : see [29]    [Back]

Note 45    See his article: “Causation” in (2005) 121 LQR 592.    [Back]

Note 46    [2002] 2 AC 883 at [70].    [Back]

Note 47    [1987 1 AC 241 at 260-261    [Back]

Note 48    See [34].    [Back]

Note 49    [37] of the judgment.    [Back]

Note 50    [1987] 1 AC 241 at 272 D-H.    [Back]

Note 51    Ibid at 273F-G    [Back]

Note 52       [Back]