Today’s lesson comes from the book of Ecclesiastical and wrestles with questions of choice, free will, causation - and whether it’s OK to tell the odd porkie
’Holy moly!” These words - and hopefully nothing more irreverent - might have been uttered by the vicar of Spalding as he stepped into his church one fine summer afternoon. Everything was covered by fine white dust. Everything. Rugs, drapes, chandeliers, prayer books and even the internal workings of the organ. It was as if someone had had a wrestling match with a thousand bags of flour.
There had been a visitation, but not of a celestial nature. Instead, three teenage ne’er-do-wells had run amok with the powder fire extinguishers while the church was unattended. The vicar found that the clean-up bill came to an alarming £240,000. He wouldn’t get that out of his congregation if he mugged them every Sunday.
Fortunately, he was able to turn to the church’s insurers - Ecclesiastical, no less - to foot the bill. Ecclesiastical wanted to bring a subrogated claim in the vicar’s name - but against whom?
There were not many pennies to be shaken out of the teenagers’ pockets. That meant Ecclesiastical was left with turning to the fire extinguisher suppliers, Chubb. It claimed the clean-up costs on the grounds that Chubb had failed to warn the vicar that the extinguishers, designed to cover a large area in dry powder, might cover a large area in dry powder.
This may bring to mind the infamous “contents may be hot” warning found on coffee cups, but nonetheless Ecclesiastical was successful at first instance.
On appeal, however, it was a different story. While the appeal judges concurred that the suppliers had given no warning of the potential mess, and that arguably they should have, the judges concluded that the critical question was whether the vicar would have decided against dry powder extinguishers had he been advised in full of their drawbacks. The appeal judges felt that that question had not been adequately considered at the first instance hearing.
The vicar had apparently given evidence at the (unreported) first instance hearing that he would not have ordered the powder extinguishers had he been properly advised of the advantages and disadvantages of different types of extinguisher. However, it emerged on appeal, perhaps rather embarrassingly for a man of the cloth, that that may have been just a trifle inaccurate. He admitted on appeal that he could not, hand on heart, say with any certainty that he would not have ordered the powder extinguishers if properly advised. However, he would have sought a professional opinion on the question. The court came to the view, that, if he had received such advice, he would probably have selected the dry powder extinguishers in any event. The failure to warn was therefore not found to be the legal cause of the loss.
Their lordships duly deliberated on the weighty legal questions of causation and remoteness of damage and acknowledged that the principles laid down by the considerable case law are a viable means of determining causation. However, adopting a reassuringly commonsense approach, they said that the issue of causation must ultimately be a “value” judgment on the facts of each case: “What is the extent of the loss for which a defendant ought fairly, or reasonably, or justly, to be held liable?”
Interestingly, the court took the view that the claim was doomed in any event on separate grounds: the inability of the defendant to foresee the damage, which is a crucial element of any claim in tort. At the time that the defendant supplied the product “no one would then have thought that there was any degree of likelihood that the combination of events that occurred would do so. The combination of events was, at its highest, only a possibility”. A curious view, perhaps, as the combination of an unlocked church, fire extinguishers and teenage louts spells trouble in giant neon letters to me. Maybe things are different in Spalding.
In any event, lessons from the pulpit on this occasion are as follows:
- Suppliers of potentially harmful goods may well be found to have a duty to give sufficient information to purchasers to enable them to make an informed choice. However, the purchaser needs to establish that, if properly warned, it would not have selected those goods in any event.
- While judges will be guided by case law relating to the legal “causation” of loss, they will also draw upon their common sense to reach their conclusions (thankfully).
- Even with God on your side, there is no guarantee you will win in litigation.
Melinda Parisotti is an in-house barrister at Wren Managers