The High Court dismissed Kelly Builders (Rosemount) Limited’s claim against HCC Underwriting Agency Limited for insurance cover arising from a fire during roof repairs at the National University of Ireland, Maynooth. The court found that the ABC dry powder extinguisher supplied for the work was not fully charged, contrary to a policy condition requiring suitable, fully charged extinguishers near the work.
The judgment, delivered by Ms Justice Murphy on 1 February 2016, concerned a fire on 28 November 2008. Kelly Builders’ subcontractor, Brian Feeney, was using a gas torch to apply roofing felt when he discovered fire in the roof. The court accepted his evidence that he tried to operate the ABC extinguisher but it did not work. He then tried a CO2 extinguisher handed to him from below, which also failed. The fire was already beyond control by the time he found it.
The insurer had declined cover, alleging breach of condition 7(a) of the policy’s burning, welding and cutting conditions. The clause required “suitable and fully charged fire extinguishers” to be kept available near the work. The court held that, in this case, one ABC extinguisher could satisfy the policy’s plural wording. It also found the extinguisher was a suitable type and, based on Feeney’s evidence that its pin was in place and nozzle clipped on, was apparently suitable for use.
The dispute centred on whether it was fully charged at the time of the fire. Experts examined the extinguisher months later and found it depressurised, but the court said that evidence alone did not establish its condition on the day. It accepted the insurer’s expert, Len Brennan, that loss of pressure was the most likely explanation for the extinguisher’s failure. The court found the insurer had made a prima facie case that it was not fully charged, and that Kelly Builders had not rebutted it. The company had provided no evidence of the extinguisher’s service and maintenance history or whether it was checked before being given to Feeney.
The court ruled that breach of the condition could defeat cover even though a working extinguisher would not have changed the outcome of this fire. It dismissed the claim for specific performance of the insurance contract and all ancillary relief, including the claims for indemnity and damages. The judgment records the court’s decision on the claim; it does not state a separate costs order.