UpdateDuty of care – not in this case

January 22, 2020

Victory for W Legal in a novel case

A new case on duty of care – John Innes Foundation and Others v. Vertiv Infrastructure Limited [2020] EWHC 19 (TCC).

Vertiv, a large infrastructure company, was contracted to provide maintenance for standby and emergency power equipment. The contract had been in place since 2006.

Two service visits per year were contracted for. For a period of two years starting in 2013, no such visits took place. The customer had not specifically requested visits.

A fire emanating from the batteries of the equipment caused substantial damage to the property in March 2015. The landlord and some of the tenants sued Vertiv. The judge set out the nature of the claims in his judgment,

“The First Claimant claims for damage to the building; the Second to Fourth Claimants claim for damage to machinery and equipment, computer equipment and scientific equipment. In addition the Second to Fourth Claimants claim damages in respect of business interruption and increased costs of working.”

Vertiv made a bold application for summary judgment – and won.

The judge set out the relevant tests to establish whether there was a duty of care, including foreseeability, proximity, whether it would be fair, just and reasonable, and the type of damage which might be caused – personal injury, physical damage or pure economic loss. There was also a question whether the fact that the alleged negligence was an omission rather than a positive act. He concluded as follows,

“I have considered whether there are any facts which might come out on a full trial which might alter that conclusion. However, taking the pleaded case on its face, as I must, I cannot discern any factual evidence which would alter the conclusion which I have reached. The only area of factual investigation which the Claimants’ skeleton argument suggests might be relevant is investigation as to whether the Defendant knew or ought to have known that the Claimants were relying upon it to carry out the annual testing of the equipment. However, that reliance appears to go no further than establishing foreseeability, which I have accepted can be shown in this case. As I have pointed out above, there is no suggestion that any of the Claimants relied upon the Defendant in particular to carry out such tests.

Thus, as it seems to me, I am in as good a position as a trial judge is likely to be in answering the central question, which is a question of law, as to whether a duty of care was owed to any or all of the Claimants.

Even if some duty of care was owed to one or other of the Claimants, there remains the question whether the Defendant owed a duty of care to take care to avoid pure economic losses. On the authorities, even if a duty to take care to avoid physical damage existed, it is difficult to see how a duty to take care to avoid pure economic loss could be established on the facts of this case.”

The result was that the case was dismissed.

Vertiv was represented by Steven Loble of W Legal Limited and Gary Blaker QC.

Steven Loble is a Litigation Director of W Legal Limited. For more information contact Steven – T 020 7220 9130 or steven.loble@wlegal.co.uk

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