Cut-Out Fuse Fires Have they Become Easier to Prove Since the Smith v South Eastern Power Networks Decision?

21/04/2015

Fires caused by cut out fuses have always proved to be contentious when it comes to making a case in negligence. 

Why are Cut out fires are hard to prove?

Firstly, it has always been difficult to establish that a cut-out fuse caused the fire in question. Secondly, even if it can be established that a distributor has a duty of care, how far can the scope of the duty extend?  Is it reasonable to require electricity distributors to bear the cost of regular inspections and maintenance of all their domestic cut-out assemblies, especially if the link between a cut-out fuse and a fire is difficult to establish?

These issues were considered by the Technology and Construction Court  in the  2012 test case brought against South Eastern Power Network by five claimants who argued that the fires that started in their separate properties were  caused by the defendant’s negligence in failing  to inspect adequately and monitor the cut-out assemblies.

This blog will discuss the facts and the findings that ultimately led to the Court’s decision on the issue, and ask the question, “have cut-out fuse fires become easier to prove since the case of Smith v South Eastern Power Networks or does the status quo remain?”.

 The Facts of the Case

 The case consisted of five separate claimants. However, the facts of each case were deemed similar enough to be grouped together under one claim.  In all five cases the fires started in or immediately around the cut-out assemblies as a result of “resistive heating”, which results in very high temperatures which then cause ignition of anything which is close by and flammable.

 Resistive heating is defined as:

“The generation of heat by electric conductors carrying current; degree of heating is proportional to the electrical resistance of the conductor; used in electrical home appliances, home or space heating, and heating ovens and furnaces”. (McGraw-Hill Dictionary of Scientific & Technical Terms, 6E, Copyright © 2003 by The McGraw-Hill Companies, Inc.)

In all five cases, the cut-out assemblies were found to have been correctly installed, however, the quality of the wiring connections were found to have deteriorated over time.  This, resulted in one part or other of the assemblies suffering substantial build-up of heat due to increasing or increased electrical resistance at those points that then caused the adjacent flammable surfaces or materials to ignite.

 The complainants argued that the defendants breached their duty of care in the following ways:

•  By failing to institute or carry out adequate visual or other inspection of the supply cables, the cut-out fuses or the connections between them;
• Not replacing cut-out fuses after 25 years in service;
• Neglecting to supervise, review or monitor the work of meter readers;
• Neglecting to collate adequate data about the assets and to instances of fires involving cut-out fuses and to analyse it properly.

The claimants also argued that the defendant failed to make two yearly and five-yearly inspections on the cut-out fuses, the supply cables and connections between them and neglected to use temperature strips which would alert an inspector that overheating had or might occur.  The inspectors also neglected to touch the equipment to check if it was overheating and infra-red or thermal imaging cameras were not used in the assemblies.

 Breach of Duty

 After establishing that a duty of care was in fact owed by the defendant to the claimants, Akenhead J then had to decide whether, on the facts of the case, they had actually breached that duty.

 The Court observed that after the initial installation the defendants did very little about the cut-outs after installing them.  No inspections and maintenance operations were routinely undertaken, and the cut-outs were not replaced after a certain number of years.

 The defendants argued that cut-outs were basic pieces of equipment and potential fires were unlikely to be identified by inspection alone.  They also stated that ‘maintenance in terms of tightening up or rewiring or removing the fuses may cause more trouble than it is worth and that there is little other maintenance if any which would reduce the relatively small incidents of fires in cut-outs’.  Therefore, maintenance was done on a reactive rather than pro-active basis.

 After reviewing evidence from the expert witnesses Akenhead J concluded that “there are only a limited number of respects in which I am satisfied on the balance of probabilities that there were breaches of the tortious duties owed by the Defendants to the individual Claimants”.

 The Court did find, however, that the distributors had breached their duties in respect of the following:

•  Failure to implement a biennial inspection scheme where each cut-out was inspected by staff under the control of the respective defendant;
• Failure to have in place any regime for the replacement of cut-outs;
• Failure to have maintained records about at least the type, and the date of installation of the cut-outs.

Causation

This has traditionally proved to be the most difficult element to establish in these types of cases, which explains why before this particular test case very few claims have been brought before the British courts.

 After reviewing all five cases, Akenhead J concluded the following:

 “It follows that, if a biennial inspection regime had been instituted in relation to the Claimants' premises along with the 8 million others within the Defendants' areas, it would simply have been a matter of chance as to whether the impending signs were actually present.

It has been established and agreed by the experts, that in all five cases a meter reader visited the premises with the frequency substantially better than the biennial inspection regime. To establish causation, it would be necessary to establish that a biennial inspection regime would probably have picked up the visible signs and one cannot establish that unless it could be shown in effect that the actual inspection for the individual properties would probably have been at a time when the signs would have been visible. The Claimants cannot do that. Even in the case of Smith when the meter reader inspected the day before, it is the case that the signs would not have been visible to him; the same is true in relation to the Surtees case when the inspection was five days before the fire. It had 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.”

 Therefore, despite finding that the defendants had, in fact, breached their duty of care by not completing biennial inspections on the cut-out assemblies, the claimants failed to establish that this breach caused the fires on the balance of probabilities (the required standard of proof).

In Summary

Are cut-out fuse fires easier to prove following the decision of Smith v South Eastern Power Networks?  It seems the answer is no, given how difficult it is to establish causation in these types of cases.  However, it must be noted that the issue of distributors’ liability for negligent installation was left open as the claimants, in this case, agreed that there was no breach of duty on the defendants’ part with regards to the fitting of the cut-out assemblies.

If you would like to find out more about claiming for fire damage, either through subrogation recovery or a standard claim then please click here http://www.fisherscogginswaters.co.uk/major-property-damage/fire-damage to find out more or phone our office on 0207 993 6960.

If you have any comments, please feel free to add your thoughts below.