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Smith v UKPN – Michael Kent KC and Jack Macaulay represent victims of fire damage in the TCC

On 17th September 2012 Akenhead J handed down judgment in Smith and others v UK Power Networks, a major series of Technology and Construction Court test cases determining the liability of the electricity distribution industry for fires caused by overheating mains cut-out fuses.

The Defendants were responsible for the safety of the electricity distribution network from power stations up to the cut-out fuse assembly found in a consumer’s premises just before the electricity meter. As these cut-outs age the electrical connections inside them can deteriorate, leading to a phenomenon known as “resistive heating”, which can eventually ignite surrounding flammable material. In each of the test cases the Claimants’ properties were damaged by fires caused by resistive heating.

The Claimants succeeded in establishing that the Defendants were in breach of duty in failing to inspect cut-outs; in failing to adopt a programme of replacing aging cut-outs, and in failing to maintain records of the type and age of cut-out in a given property. The Defendants were held to have adopted an “ostrich-like” approach to the risks posed by cut-outs. The claims ultimately failed on causation, the judge holding that the state of scientific knowledge was not such as to enable the Claimants to show that any of the battery of safety precautions they contended for would have prevented the fires in the individual test cases.

The case was also notable for the Defendant’s attempt to rely on complex risk analysis evidence, which purported to show that fires caused by overheating cut-outs were sufficiently rare, and the cost of preventing them so high, that any action would be grossly disproportionate to the risks involved, and thus not reasonably practicable. However, the judge rejected the evidence on which this approach was based and this aspect of the Defendant’s case was unsuccessful.

Michael Kent KC and Jack Macaulay, along with Simon Howarth of Hailsham Chambers, appeared for the Claimants, instructed by DAC Beachcroft. This case is another example of Crown Office Chambers’ involvement in major fire damage claims, following on from the Buncefield litigation, and Cadburys v ADT.

The judgment is available here.

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