Over Taylor Biggs

The premises were owned by Foss Motor Engineers and occupied in part by Condé Nast and used for magazine distribution.  When the fire started, four women were in the warehouse, inserting advertisements in Condé Nast publications.  Faced with a claim against the workers or its employment agency, neither of whom were of sufficient financial worth, the owners instead sued Condé Nast in order to recover their reinstatement costs from Condé Nast's insurers. 

For this to be successful, it had to be established that whilst not employees of Condé Nast, the workers were under their control, such that Condé Nast were responsible for their actions. 

Whilst it was alleged that a carelessly discarded cigarette had ignited inflammable material around a palette, the reasons for the cause of the fire were disputed.  As the fire was so intense, the actual cause could not be determined by expert evidence.  The Court did find, on the evidence, that the no smoking policy had not been included in the contractual terms of the occupation of the space by Condé Nast and, therefore, to succeed, the owners would have to establish negligence. 

There were other possible causes of the fire, such as arson or electrical fault, but the owners argued that these were unlikely.  The Court was required to find the reason for the fire on the balance of probabilities, rather than the possibility that the cigarette was the cause.  Those working in the factory had denied discarding a cigarette.  Whilst the Court was able to find that an electrical fault was unlikely, it could not pinpoint the exact cause.

Ultimately, the Court decided that discarding a cigarette was not within the duties of the women whilst at work.  It was therefore outside the course of their employment and, therefore, the claim against Condé Nast failed.

Foss Motor Engineers v Condé Nast National Magazine Distributors (August 2008)