Damages recoverable in the tort of negligence

The recent case of Barclays Capitol Services Limited -v- Kilby and Gayford (Building) Limited examined the nature of damages which may be recoverable in the event of a breach of a duty of care in the tort of negligence.

It is said that an underlying rule of common law is that where a party sustains a loss by reason of a breach of contract, the party is to be placed in the same situation with regard to damages, money-wise, as if the contract had been performed.

In tort however, the measure is the loss caused by the wrong, and a greater sum is sometimes recoverable. The defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a reasonable man would in the whole circumstances feel justified in neglecting it.

This rule of foreseeability concerns the type or nature of damages incurred and is not concerned with the extent or amount of damages. In the case of Hughes -v- Lord Advocate it was said that a defendant is liable "although the damage may be a great deal greater in extent than was foreseeable. He could only escape liability if the damage can be regarded as differing in kind from what was foreseeable."

These issues are well illustrated in the present case. Kilby was carrying out building works for Barclays on property in Swan Lane in the City of London.

The work involved the recovering, by a sub-subcontractor, of a flat roof above a generator room. The flat roof in question was bounded by a dwarf parapet about 125mm high which was covered by a lead flashing over a 250mm wooden capping board. The parapet itself was made of wood and covered with roof felting. On the external face of the parapet a plywood fascia board extended downwards and rested on a wooden fillet above louvres for the intake of the air supply necessary for the operation of the generators below.

New roofing felt was to be laid on to the roof and dressed up the vertical upstand and under the lead flashing. The lead flashing was not entirely removed from the parapet but was sufficiently loosened and prised open to enable the new felt to be dressed up. This required heating the underside of the felt with a blowtorch causing the surface to become hot and adhesive.

A fire started within the parapet. The void within the parapet ran the whole length of the roof to the generator house and provided a pathway for the swift and effective spread of the fire. It was agreed by experts that had there been no draft in the void, the fire would have been confined to its original seat, no larger than a thumbnail in extent, and in all probability would have burnt itself out.

The generators below were running, however, and through the louvres air was being drawn through the louvres into the generator house. Because of the configuration of the void there was significant negative pressure within the hollow parapet which enabled the fire in the wooden capping to rapidly spread along the wood at the edge of the roof for the whole length of the roof.

Within 7 to 10 minutes, flames were observed being drawn into the louvres of the generator room below the top of the parapet. There was significant damage to the generator room caused by the effects of the fire and the means of fighting it.

The roofer gave evidence at the trial. He confirmed that he had used an acetylene torch to soften the adhesive to enable the felt to be dressed up and stuck to the upstand. He had pointed the flame downwards to the felt and moved along it. The visible flame was some 100-125mm long but beyond it there was some 50mm of flame which was invisible, comprising hot gases capable of igniting combustible material. The flame was used to within 50mm of the upstand.

Because of the negative pressure within the void, initially there was no visible sign of fire. The roofer had remained on site after finishing his work for sufficient time to make a careful check for any signs of fire. None were to be seen, and accordingly he left for his lunch unaware that as he was leaving the Fire Brigade had already been automatically alerted and was on its way.

The Judge was satisfied that the roofer had been negligent in that he had used his hot torch too close to the upstand when he ought to have known that there was readily combustable material immediately adjacent.

In his defence it had been strongly argued that the roofer could not have known of the added dimension, namely that the fire would develop and spread more readily because of the negative pressure in the void when the generator was operating. The Judge was satisfied that this was not relevant in determining negligence. It was certainly crucial as to the extent of the fire damage that was directly caused by the negligent use of the blow torch. But nevertheless, the fire damage was caused directly by the roofer. It was of a type and nature readily foreseeable, even if its extent was not.