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Construction Law Reporter


Tort - Negligence - Damage by fire - Relevance of knowledge by the claimant of the defect and its reliance upon its own system - Claimant unable to establish that negligence of the defendant was the effective cause of its loss

The claimant's factory suffered substantial damage in a fire. The claimant brought a claim in negligence and for breach of statutory duty against various parties including the defendant, a sub-contractor on the project. The basis on which the claimant brought the claim was that the defendant manufactured a device called a thermolevel, one of the functions of which was to avert the risk of fire. On the night on which the fire occurred the device did not function as it should have done. At the trial of the action between the parties it was found that the thermolevels were unreliable, unpredictable in operation and unacceptable as a critical safety device. Nevertheless, it was held that the claimant was not entitled to succeed with its action because, prior to the fire, it was, by virtue of the knowledge of some of its employees, aware that the thermolevels were not working as intended. The claimant was not therefore relying on the thermolevels as a reliable safety device but was instead relying on its own procedure so that the claim against the defendant failed for want of proof of causation between any breach of duty by the defendant and the loss suffered by the claimant.

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