County Motor Works (Chelmsford) Ltd v PBFW Ltd [2014] EWHC 3392 (QB)

[2014] EWHC 3392 (QB)Case No HT-13-113IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISION(Transferred from the TECHNOLOGY & CONSTRUCTION COURT)Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17 October 2014
Before
SIR STEPHEN SILBER(Sitting as a High Court Judge)
Between
COUNTY MOTOR WORKS (CHELMSFORD) LTDClaimantPBFW LTDDefendant
Justin Davis (instructed by Messrs DAC Beachcroft) for ClaimantRobert Stokell (instructed by Messrs Greenwoods) for DefendantHearing Hearing dates: 24 and 29 July 2014Further submissions supplied on 1 August 2014
JudgmentSir Stephen Silber :Introduction
[1]At about 8 pm on Monday 27th September 2010, a fire occurred at 6, Suffolk Drive, Dukes Park Estate, Chelmsford, Essex at a furniture-manufacturing unit which was occupied by the Defendant. The fire spread to the adjoining premises at 4, Suffolk Drive which were occupied by the Claimant’s business from which it provided MOT and repair services to motor vehicles. Damage was caused to the Claimant.[2]Liability and quantum are in dispute. The dispute on liability relates essentially to the cause of the fire. It is common ground that there are only two possible causes of the fire. The first possible cause, which is the Claimant’s case, is that the fire started as a result of the self-combustion of linseed oil-soaked rags which the Defendant had disposed of in an unlidded metal tin within the spray booth enclosure at the Defendant’s premises. The second possible ground, which is the one contended for by the Defendant, is that it is likely that the fire started in one of several electrical items located on shelves adjacent to a plastic bin, which was outside the spray booth enclosure.[3]There is a dispute over quantum with the Claimant seeking damages in the sum of £225,000. Both liability and quantum are in issue. I decided to deal first with liability as a separate issue with the consequence that, if necessary, quantum will be dealt with separately on a subsequent occasion.[4]It is appropriate to start by explaining the layout of the Defendant’s premises and the damage caused before commenting on the rival versions of the causes of the fire. To understand the rival submissions, two plans are attached to this judgment. The first is Appendix A which is a sketch plan which was prepared by the Claimant’s expert, Mr Nicholas Davison who is a Consultant Forensic Engineer and Associate in the firm of Geoffrey Hunt and Partners. At Appendix B, there is a second sketch plan prepared by Mr Brendan Royle, who is a consulting fire investigator and who was instructed by the Defendant. Both experts gave oral evidence having prepared a joint report.

The Defendant’s Premises

[5]Access to the adjoining units at the Dukes Park Industrial Estate occupied by the Claimant and the Defendant was by two single personnel doors and a full height roller panel door to the front. The Defendant’s unit had a single fire escape personnel door to the rear. The units were serviced by a large car park in front of them.[6]The Defendant’s premises comprised offices and factory space on the ground floor and a shop show room, and there was further factory space on a mezzanine level. Their premises were fitted with a ‘bells-only’ (i.e. a non- monitored) fire alarm, which was activated by smoke/heat detectors and a remotely monitored intruder alarm system. The roller panel door and all three personnel doors were monitored by the intruder alarm system which also included two or three internal PIR sensors. There was neither a sprinkler system nor any form of CCTV on the premises.[7]There was a spray booth which was located at the rear right hand side of the Defendant’s unit on the ground floor and which was used for the sprayed application of various lacquers and finishes on furniture manufactured by the Defendant. The spray booth was fitted with a fume extraction system and this incorporated cardboard baffle filters to capture over-spray and an exhaust duct which exited the system through an opening in the profiled steel sheet roof above. As I have explained, the case for the Claimant is that the fire started in this unit.[8]Mr. Ronald Priest, who is a member of the Priest family which owned and controlled the Defendant, was personally responsible for all spraying operations in its factory. He gave oral evidence to the effect that the metal spray booth enclosure was a specific area of the premises, which was concerned in the process of finishing off the furniture. Typically that would involve taking to this area assembled furniture which only required a final finish for the application of a top coat, such as a lacquer applied using cellulose thinners or maybe the application of staining prior to applying the final lacquer coat. The typical furniture sold by the Defendant had a lacquer finish, but it was only those items of furniture requiring a final stain that received “blowing in” and that was always applied by the spray gun in the spray booth enclosure. Mr. Priest’s evidence was that “rarely” a piece of furniture might be given a very light application of linseed oil within the spray booth enclosure in order to achieve “a natural oil finish”.[9]The application of the linseed oil was carried out by spraying on to the furniture a film that was so light that it was immediately absorbed into the wood, the colour of which was usually oak colour, without the need for anything further to be done other than to allow the wood to take up the oil. Mr. Priest’s evidence was that the application of linseed oil was always carried out by the use of a spray gun, and not by hand. The Claimant contends that this was not the case and relies on a statement made by ADO Neil Fenwick (who was an Assistant Divisional Officer in the Essex Fire and Rescue Services) to the effect that Mr. Priest had told him on 28 September 2010 that he had applied linseed oil “using rags” and that he had done so on the afternoon of the fire. I will return to consider what weight to attach to this evidence, which is disputed by Mr. Priest, who also explained that usually the light film of linseed oil was absorbed into the wood without adopting any further process of physically rubbing in the oil or wiping off the excesses, but occasionally the linseed oil might leave some trace residue that had to be removed by wiping down the furniture in order to assist in the process of oil absorption and drying off. This process would be carried out within the spray booth enclosure.[10]In evidence, Mr Priest explained that the only type of cloth material used to wipe down the furniture would be non-fibrous towelling cloth because it did not leave any fibre residue. Mr. Priest stressed first, that linseed oil was never applied by hand by cloth, and second, that he had always been conscious that because of its potential dangers, cloths impregnated with linseed oil had to be disposed of carefully so as to avoid the risk of them igniting.[11]Mr Priest’s evidence was that he disposed of cloths using a tin with a matching lid and a layer of water. If lids of the tins which he had used were not on the tins at the end of the working day, Mr Priest said that he would then put them on so that they rested on the top of the tin. He explained that he did not put the cloths into any plastic bins or dustbins. He also explained that if after the fire any linseed oil-contaminated cloths were found in tins within the spray booth enclosure but without their lids on the tins, the absence of the lids would be a consequence of the lids having been disturbed and knocked off during the course of the fire and/or the fire fighting.[12]Mr Priest said in evidence that the last time before the fire on which he had used linseed oil in the spray booth enclosure was on the day before the fire which was Sunday 26 September 2010. His evidence was that on the day of the fire, he had sprayed a couple of shelves with only a lacquer finish. Mr Priest explained that no treated furniture was left in the spray booth enclosure overnight and that at the time of the fire, the only flammable material located within the spray booth enclosure was in his words “rags located in the metal tins, a cardboard filter and, possibly, a small wooden frame which was used as a turntable when spraying”. I also accept the evidence of Mr. Priest that he obtained 18 gauge galvanised steel angles, which were about eight feet long and which were bent to make them into an open “z” shape which he installed to fill the gap around the spray booth. In consequence, there would have been no gap between the metal ceiling and the wooden floor of the mezzanine and the ceiling of the workshop.[13]According to Mr Priest, in the vicinity of the plastic bin there was open shelving holding hand power tools and their associated battery chargers. They were typically left plugged in to the mains, and there were also handles and fittings all packed within their usual card and plastic packaging, tapes, paper goods and so on. As I will explain, Mr Justin Davis, counsel for the Claimant, contended that there were aspects of Mr Priest’s evidence which should not be accepted as it was contradicted or not supported by what he is alleged to have stated soon after the fire to ADO Fenwick. I will return to consider these matters which included the assertions that Mr. Priest had said that he had applied linseed oil on the day of the fire and that he used rags for this.

The fire

[14]The fire brigade was alerted to the fire at the Claimant’s premises at 20.07 hours when an emergency call was received from a passer-by, Mr Adrian White, who explained that as he passed Suffolk Drive, he had noticed thick black smoke coming from the rear of the Defendant’s building and flames coming out of a chimney/duct protruding from the roof of the building which is now known to be the spray booth extract flue towards the rear of the building. At 20.07 hours, the intruder alarm within the Defendant’s unit was activated.[15]At precisely 20.09 hours, the GSM module for the intruder alarm, which was located at ground floor level at the front of the unit, was attacked by fire. Mr Priest was first informed of the fire when he was telephoned by the alarm monitoring company, Securiguard; the alarm log confirms that he was called at 20.12.02 hours. The first fire crew arrived at the scene at 20.14 hours. The fire brigade confirmed to Mr Priest that with the exception of the roller shutter door, all doors and windows of the premises were secure.

The effect of the fire

[16]The undisputed evidence was that within the Defendant’s unit, there had been an exceptionally severe fire and many parts of the structure of the building were unsafe. It was noticed that heavy broad steel roof beams had sagged as a result of exposure to high temperatures.[17]The fire had completely destroyed the mezzanine at first floor level, while at ground floor level direct fire damage was essentially limited to a location coincident with the factory’s spray booth and that the damage had been suffered by low melting point material throughout the ground floor.[18]The roller shutter door at the front of the building had suffered considerable damage as a result of the fire. It had been open during the fire and when open, the door would have been held horizontally at high level by two parallel running rails. It seems that heat damage to the door indicated that it had been in the open position for a significant period of time during the fire and when it would have been exposed to hot gases at high level.[19]The spray booth enclosure in which it is said by the Claimant that the fire started, was a square sheet steel structure enclosed on four sides, namely rear, left side, right side and top, but was open at the front. The rear of the spray booth comprised a filtered extraction system incorporating a series of perforated cardboard filters, but following the fire the structure of the spray booth had collapsed. From the inside of the booth, it was noticed that the spray booth had incorporated a full height partition towards the left-hand side when viewed from the front. To the left of the partition, there was a space used for storing various liquid containers and spraying equipment.[20]In front of the spray booth enclosure, there was an area where wooden furniture would have been prepared for spraying or finished after spraying and this process entailed rubbing the furniture down with various cloths or treatments.[21]There was a partition wall between the Defendant’s premises and the Claimant’s premises at respectively 6, Suffolk Drive and 4, Suffolk Drive. There were a number of electrical items stored on shelving units against the partition wall and Mr. Priest confirmed that there were battery chargers that were typically left plugged in to the power sockets but there had never been any problem or reason for concern with that practice. Along the partition wall and located between two shelving units and close to a steel reinforced concrete pillar were the partial remains of a black plastic dustbin, but only the base of the plastic dustbin remained intact. It is the Defendant’s case that the fire started at this point as a result of electric failure.

The Claimant’s case

[22]Mr Davis rejects the Defendant’s case as being undermined by the simple fact that there was no supporting physical evidence of an electrical fault even after a detailed examination of the area, which failed to show any such supporting evidence. He contends that the combination of the expert evidence and the lay evidence shows that the cause of the fire was the self-heating to combustion of linseed oil-contaminated cloths which were placed in an un-lidded tin in the spray booth enclosure. His starting point is that linseed oil-contaminated cloths were stored in a tin in the spray booth enclosure, and that such materials could then self-heat and then ignite when exposed to oxygen. Mr Davis points out that it is common ground first, that linseed oil-contaminated cloths were stored in a tin in the spray booth enclosure, and second, that such materials can self-heat and ignite when exposed to oxygen.[23]The Claimant’s expert, Mr Davison, is of the opinion that the fire is likely to have been initiated in the spray booth enclosure by the spontaneous combustion of cloths contaminated with linseed oil that were inappropriately discarded. He believes the fire likely originated from a tin located within the spray booth which was found to contain cloths that were likely to have been contaminated with linseed oil.[24]Mr Davis points out that Mr. Priest accepted that on occasions he did not put lids on the tins containing cloths with linseed oil on them until the end of the working day, and so the oxidation process would have started when the cloths were placed in the tins. The Claimant’s case is that it was regrettable that there was this delay when the simplest and most straightforward way of preventing oxygen from gaining access to the cloths was by ensuring that the cloths were placed in a tin closed with a tight-fitting lid. It is the Claimant’s case that this is what should have been done by Mr. Priest.[25]Mr Davis also points out that when there was an examination carried out on 14 October 2010, which was 17 days after the fire, the relevant experts Messrs Coogan, Pope and Davison found that there were no lids to match the two open-topped tins found in the spray booth enclosure. Mr Davison attached great importance to the fact that the lids of the tins in which the linseed oil- contaminated cloths were placed did not have a tight fit, but that they were susceptible to being knocked off. Therefore his point is that the open-topped tins could not be considered to be appropriate receptacles for the disposal of linseed oil-contaminated cloths, whereas receptacles with tight-fitting lids would be. He explains that the reason for that is that there would then be no possibility of the lid being displaced and that the restriction of airflow would have actively prevented the ongoing oxidation of the linseed oil which was the chemical reaction that caused the self-heating effect that could ultimately lead to spontaneous ignition.[26]Mr Davison believes that the initiation of the fire during the evening of Monday 27 September 2010 could be consistent with the disposal of linseed oil-soaked cloths on the 26 or 27 September 2010. Indeed in their joint report, Mr. Davison and Mr. Royle agreed that there have been numerous scientific and academic studies relating to the behaviour of linseed oil in fires, and that the studies produced differing estimates of “self-ignition” time ranging between one and thirty hours depending upon the specific environmental conditions of each case.[27]A further point relied on by Mr Davis is that ADO Neil Fenwick recalls being told by Mr Priest that the cloths were placed in the tins in the spray booth enclosure on Monday 27 September 2010, which was the day of the fire. I should add that in his evidence, Mr Priest maintained that the cloths were placed in tins in the spray booth enclosure on 26 September 2010. Mr. Davis contends that it is unnecessary to resolve this conflict because, as I have explained, scientific studies have produced differing estimates of the self-ignition time of linseed oil ranging from one hour to thirty hours and therefore irrespective of whether Mr Priest last used linseed oil on 26 September 2010 or 27 September 2010, the fire could have started within the possible time frames envisaged in these studies.[28]A further point to which Mr Davis attaches importance is the evidence of Mr White, who rang the Fire Brigade at 20.07 hours on 27 September. Mr White then went to the front of the building and saw the roller shutter door to the Defendant’s premises was open and he could see a fire burning inside. Mr White’s evidence was that at the time he contacted the emergency services the intruder alarm at the Defendant’s premises was activated, and at approximately the same time, the roller panel at the front of the Defendant’s premises opened following the fire attack to its electrical motor and or its control cables.[29]The critical feature according to Mr Davis is that the alarm cable which was not running at ceiling height above the spray booth enclosure would have been protected from fire attack until the time that the fire had spread beyond the spray booth. In other words, he said that it was unlikely that the fire started where the Defendant contends that it did namely in a location directly underneath the alarm cable, because in that case, the alarm cable would have been attacked almost immediately.[30]The Claimants also seek to derive assistance from the fact that the alarm cable ran just below ceiling height along the length of the ground floor but it stopped at the spray booth with the consequence that there was no intruder alarm cable running along the ceiling of the spray booth. The significance of this is that in the words of paragraph 26 of the Claimant’s skeleton argument:
“It is more likely that the fire started in the spray booth enclosure, as the alarm cable (not running at ceiling height above the spray booth enclosure) would have been protected from fire attack until the time the fire had spread beyond the spray booth. Put the other way round, it is unlikely that the fire started where the D contends it did, i.e. in a location directly underneath the alarm cable, as in such circumstances the alarm cable would have been attacked almost immediately and before smoke and flames had had the opportunity to escape out of the spray booth extract flue”
.

The Defendant’s case

[31]Mr Royle disputes the Claimant’s account. He points out first, that there was no adequate physical evidence to support Mr Davison’s theory that the fire started in the spray booth; second, that Mr Davison has not identified any physical evidence of self-heating; third, that if self-heating had somehow occurred in a tin, with or without a lid, it is likely that it would have occurred and would been spotted during the working day on Monday 27th September 2010 before or at about 5 o’clock; fourth, that even if Mr Davison’s contention that the fire somehow spread out of a tin were correct, the fire would only have been a low intensity fire given the low fuel-load in the surrounding area. He gave other factors which he contends undermines the Claimant’s case to which I will return shortly.[32]Mr Royle has concluded first, that the fire began in the vicinity of the plastic bin; and second, that the likely cause of the fire was a fault in electrical equipment at the location of the bin as can be seen on the diagram at Appendix 2. There are a number of reasons why Mr Royle considers this to be the case. Together with Mr Davison, he observed a distinctive “V” pattern of smoke staining on the wall originating from the point where the plastic dustbin and electrical equipment were located. Mr Royle believes that this “V” smoke pattern on the concrete block wall indicated a likely area of fire origin. Mr Royle considered that the heavy spalling, which was observed there, was a result of a rapidly developing fire that started near the electrical sockets consuming the combustible material that was readily accessible as it travelled towards the spray booth area on the front of the premises. It was also indicative of a very rapid increase in temperature and was probably caused by the highly flammable liquid in the nearby metal cabinet becoming involved in the fire. This also led to the fire developing speedily and spreading to all areas of the premises. Mr Royle concludes that an unidentified electrical fault ignited material that dropped to low level where the fire developed to involve surrounding combustible materials and radiated out to affect the highly flammable liquids in the metal cabinet.[33]Mr Royle attaches importance to the presence of the hand power tools and chargers on the shelves close to the plastic bin which were typically left plugged in and on charge overnight. The shelves also contained packaging and other combustible materials.[34]He says that the portable electrical equipment left on charge overnight provided a recognised source of ignition, but he accepts that no one specific item of wiring or electrical appliance was recovered from the fire debris that positively proved an electrical source of ignition.[35]Mr Royle’s thesis is that the location of the severely fire-damaged remains of socket outlets, appliance fuses and quantities of extremely friable strands of copper electrical conductors all found at or near floor level indicated that they were involved in the fire at its very earliest stage. He explains that there are many fires in which it had been possible to establish the most likely cause of ignition as being an electrical fault without finding the definitive piece of evidence from the fire debris. Sometimes the material is destroyed by the fire and on other occasions it is lost in the fire debris and not retrieved by the investigators. In this case, none of the items found within the fire debris were subjected to laboratory investigation or testing.

Factual Evidence

[36]As I have explained, there are significant and perhaps crucial differences between, on the one hand, the evidence of Mr. Priest and on the other hand, what ADO Fenwick’s statement states what he was told by Mr. Priest. Having considered carefully these differences, I have had no difficulty in preferring the oral evidence of Mr. Priest to what is stated in ADO Fenwick’s statement first, because Mr. Priest emerged unscathed and as an impressive witness from a careful cross-examination; second because ADO Fenwick was not called as a witness; third, there has been no Part 35 statement from ADO Fenwick; fourth, a hearsay statement has not been served in respect of his evidence in accordance with CPR 33.2 as he was not called; and finally, neither the Defendant nor the Court has seen a copy of ADO Fenwick’s notes.[37]In consequence, I cannot accept ADO Fenwick’s evidence where it conflicts with that of Mr. Priest. In particular, I reject those parts of his statement in which ADO Fenwick’s statement states that Mr. Priest had said that he:
“(i) had applied linseed oil on the day of the fire when in fact, he had last done so on the previous day; and that he (ii) had applied the linseed oil using rags when he used the spray gun and rags were only used to wipe off surplus linseed oil.”
Indeed, as Mr. Priest has explained, “it would be wholly illogical to try to apply linseed oil by rags when one had a fully functioning spray booth enclosure”.[38]I should make it clear that I also accept Mr. Priest’s evidence first, that he disposed of cloths using a tin with a matching lid and a layer of water but not in plastic bins or dustbins, and second, that if after the fire, linseed oil-contaminated cloths were found in the spray booth enclosure, that could only be a consequence of the lids being disturbed and knocked off in the course of the fire and/or during the fire fighting operation. Finally, I am also satisfied that Mr. Priest was correct when he explained that there was no open construction point between the lip of the metal ceiling of the spray booth enclosure and the plasterboard ceiling of the workshop.[39]It is appropriate at this stage to deal with one aspect of the evidence of Mr. White quoted by ADO Fenwick, in which he records Mr. White as stating that he had seen smoke coming from the flue which ADO Fenwick “now understand(s)” to be from the spray booth. This evidence is not persuasive as first, the use of these quoted words implies that ADO Fenwick did not understand it initially; second, there is no Part 35 witness statement from Mr. White, third there is no hearsay notice in respect of this double hearsay, fourth neither the Defendant nor the Court has seen a copy of ADO Fenwick’s notes; and fifth, as I have explained, I have found ADO Fenwick’s statement to be unreliable when dealing with what Mr. Priest is alleged to have told him. For those reasons, I cannot accept what ADO Fenwick states that Mr. White had told him as accurately describing what happened.

Discussion

[40]It is settled law that in this type of case, the burden of proof is on the Claimant who must satisfy the Court that its suggested explanation – that the fire was caused by linseed oil-soaked cloths in a tin in the spray booth enclosure – was, on the balance of probabilities, the cause of the fire (see Ide v ATB Sales Limited [2008] EWCA Civ 424; [2008] PIQR P13 [4] and [45] and Milton Keynes v Nulty [2013] EWCA Civ 15 particularly at paragraphs 32-37). I will start by considering the Claimant’s case.[41]I have come to the clear conclusion that the Defendant is correct and that the fire started not, as alleged by the Claimant, because of the self-ignition of linseed oil-soaked cloths in the spray booth. There are a number of factors which individually or cumulatively drive me to that conclusion and which I will now set out but in no particular order of importance.[42]First, even if self-ignition occurred in the tins in the spray booth, there is no evidence or explanation as to how the fire spread out of the tin. Mr Davison could not point to any fuel or source of fuel (i.e. combustible material) that could have accounted for this development. I agree with Mr Stokell that Mr Davison’s case seems to be that the fire started in the spray booth and so there must have been some fuel to allow it to spread, but crucially no fuel has been identified that could have explained how the fire spread so speedily and so ferociously. This undermines the Claimant’s case.[43]Second, even if the fire somehow spread out of the tin in the spray booth, it would have only been a low intensity fire bearing in mind the low fuel load in the surrounding area. I accept the evidence of Mr Priest that the only fuel in the spray booth enclosure was the filter, cloths in tins and possibly a wooden turntable. In any event, the tin was in the partition area in the spray booth enclosure while there was nothing flammable in the spray booth at the time of the fire. There had been some suggestion that one of the photographs (photograph 9) showed that there were inflammable substances nearby, but this photograph was taken at some time prior to the fire and so it does not assist me. So I accept the evidence of Mr Royle that there was insufficient combustible material consisting of two wooden shelves and a wooden stand for a fire originating within the spray booth enclosure to ignite and to spread in the way that the fire actually did.[44]Third, Mr Davison’s case assumes that the fire was intense enough to burn through the metal walls or ceilings and to leap across the open area of spray booth in front of the actual spray booth enclosure, which was about 4.5 metres, to ignite the next available fuel package located within the workshop or quality control area. I cannot believe that this would have occurred as the fire starting in the tin could not have been, and indeed would not have been, intense enough to do so.[45]Fourth, I cannot accept Mr Davison’s assertion that the fire spread from the spray booth enclosure at ceiling level into the mezzanine through a “spray booth to mezzanine interface”. I have already explained that I have accepted the evidence of Mr Priest that he obtained 18 gauge galvanised steel angles, which were about eight feet long and were bent to make them into an open “z” shape which he installed to fill the gap around the spray booth. In consequence, there would have been no gap between the metal ceiling and the wooden floor of the mezzanine and the ceiling of the workshop. I do not accept Mr Davison’s contention that there was a gap or an opening at the interface, because there was no evidence to support it and he did not see the spray booth before it was devastated by the fire.[46]Fifth, even if the fire had started in the tin that had been left in the spray booth enclosure, it is unlikely that it would have attacked the roller door control and the GSM unit all the way across on the other side of the building which was about 18 meters away, within one minute fifty-three seconds (113 seconds). The timings of the attack on the intruder alarm, on the roller door controls and the GSM (which I have set out) are agreed. Mr Royle considers that such a rate of fire spread is “highly unlikely” and I accept that evidence. Mr Davison has not provided any cogent reasons or explanation how it would, or indeed how it could, have occurred. There is no evidence about the fuel which have enabled it to spread especially as Mr Davison accepts that the floor would have been fire-resisting for 30 minutes or up to an hour, if there were a double skin of plasterboard. Mr. Royle has stated that he had been informed by the Defendants that the underside of the mezzanine was lined with a double layer of plasterboard.[47]A sixth reason why I do not think that the fire started in the way suggested by the Claimant is because, as I have concluded, I accept the evidence of Mr Priest whose evidence emerged unscathed from an effective cross examination. He explained that he was very experienced and that he knew the dangers of linseed oil with the result that at the end of each day he put a lid on any tin in which he put the cloths contaminated with linseed oil rags. It is noteworthy that Mr Royle found lids that matched the relevant tin or tins, but he could not, and did not, say that this shows that the lids were definitely on at the time of the fire. Nevertheless, the discovery of the lids was consistent with the evidence of Mr Priest that they would have been on, but that they must have been knocked off during the fire or the fire fighting. In addition, the location of the lids in the debris indicates they had not been on the floor before the fire started. I have also accepted the evidence of Mr Priest that he put a couple of inches of water in the tins with the result that if the fire started in the tins, it would have been very unlikely that self-heating to ignition would have occurred even if the lids were not on the tins.[48]A seventh reason is that, as Mr Royle explained, the necessary environmental conditions were not present to support the self-heating/auto-ignition process. He explains that auto-ignition is a “very, very, difficult state to achieve, and requires ideal environmental conditions”. He points out that what is especially crucial is the ambient temperature of the room or compartment in which the vessel containing the oil-impregnated cloths is located. The auto-ignition process is conditional upon, amongst other things, the cloths producing heat, and retaining that heat in the cloth at a much higher rate than it loses heat to the surrounding ambient air. Mr Royle points out that the external air temperature at the factory at 20.00 hours on the night of the fire would have been in the region of 12-14 degrees centigrade and falling, according to the Meteorological Office. In consequence, this would have allowed any increases in temperature within the tin containing the burning cloth to easily dissipate into the surrounding atmosphere. In addition, the presence of the water would “have further inhibited” and would have probably prevented the self-heating and therefore the auto-ignition process from developing. This is another powerful argument against the Claimant’s case.[49]An eighth point of importance is that Mr Davison has not identified any physical evidence of self-heating. This is significant as there are agreed characteristics as set out in the joint experts’ report that any linseed oil -impregnated cloths that had undergone self ignition would display signs of having greater heat damage towards the middle of the cloth than on the outside edges, whilst cloths that had been within the vessel where self-ignition had occurred to another cloth, they would display signs of discoloration, decomposition and or charring normally associated with a self-heating process that proceeds auto-ignition. None of those characteristics are described by Mr Davison either in a cloth which is said to have self-heated or in a neighbouring cloth. This undermines the Claimant’s case.[50]A final reason for rejecting the Claimant’s case is that their expert, Mr. Davidson, unlike the Defendant’s expert, Mr. Royle, has changed his evidence on the crucial issue of where the fire started. Originally, Mr. Davison considered that the fire started “either in an open-topped 25L tin inside the spray booth, or in a plastic bin located just in front of the spray booth” (paragraph 8.13 of report of 4 April 2014). By the time of the joint meeting of experts in July 2014, Mr. Davison had decided that the fire could only have “originated from a tin containing one or more linseed oil-contaminated rags within the confines of the spray booth” (paragraph 3.3 of the joint expert’s report of 14 July 2014). In other words, he had changed his mind and this does not inspire confidence in his judgment.[51]For those reasons, the Claimant’s case must fail. For the purpose of completeness, I should add that I accept the Defendant’s case that the cause of the fire was an electric fault for the following reasons which I set out more briefly than I would have done if they had been of crucial importance in resolving this case. I set them out in no order of importance, but they individually and cumulatively show that to be the case.[52]First, the physical evidence shows that the fire probably started in the area of the plastic bin. It is common ground that there was a “V” smoke pattern on the wall by the bin which was where the black plastic bin and the electric sockets and the rechargeable electrical outlets were located. Mr Royle believes that this “V” smoke pattern on the concrete block wall indicated a likely area of fire origin. Mr Royle considered that the heavy spalling, which was observed there, was a result of a rapidly developing fire that started near the electrical sockets consuming the combustible material that was readily accessible as it travelled towards the spray booth area and the front of the premises. It was also indicative of a very rapid increase in temperature and was probably caused by the highly flammable liquid in the nearby metal cabinet becoming involved in the fire. I find this evidence convincing.[53]Second, the early and rapid spread of the fire to the mezzanine with the smoke and flames escaping from the flue is consistent with the fire starting in the area of the bin especially as there was, as I have explained, no opening at the spray booth/mezzanine interface.[54]Third, the ferocity of the fire is consistent with it starting in the area of the plastic bins and spreading in all directions including sweeping across the highly inflammable contents of the cabinet which “significantly accelerated the development of a high energy fire”. This, as Mr Royle explains convincingly, is significant as the timing: “clearly indicates that a fire accelerant of some description (probably liquid) was involved in the early stages of the fire. The only accelerant (in the form of highly inflammable materials) known to be within the premises were located in the cabinet beneath the staircase opening to the mezzanine level where the roller door motor was located; whilst also being approximately mid-way between the intruder alarm wiring and the GSM unit on the ground floor”.[55]Fourth, hand power tools and chargers on the shelves close to the plastic bin were routinely left plugged in. This, according to Mr Royle, constituted a recognised source of ignition and the shelves also contained packaging and other combustible material.[56]Fifth, as I have explained, I have concerns about the evidence given by Mr Davison because of his change of mind.[57]In reaching these conclusions, I have not overlooked the powerful point made by Mr Davis that the contention that it was an electrical failure is not supported by any physical evidence because it is accepted that none of the electrical items identified at the scene was subjected to laboratory examination or testing and indeed those remains of electrical items that were found had shown no evidence. I do not see why I should not accept Mr Royle’s contention that not all fires resulting from an electrical fault have physical evidence to prove it. The physical evidence might have been destroyed in the fire. It is also noteworthy that the plastic bin and the electrical equipment had not been examined before Mr Royle’s involvement, which was about four months after the fire on 13 January 2011. The nature and ferocity of this fire is consistent with a fire started by an electrical fault in an area where there was combustible material nearby and that is a powerful factor in favour of the Defendant’s case.[58]In reaching my conclusions, I have considered the relevance of the attack on the alarm cable bearing in mind Mr. Davis’ contention that it was unlikely that the fire started where the Defendant contends that it did, namely in a location directly underneath the alarm cable because in that case, the alarm cable would have been attacked almost immediately. I do not consider that this point undermines the Defendant’s case which is that the fire probably started at the electrical sockets and/or appliances by the plastic bin. Part of this equipment dropped down, and a low level fire developed and spread out in all directions. The heat and smoke moved up the wall and along the ceiling, but crucially without at this stage having sufficient energy to fill the corner or “angle” between the wall and the ceiling[59]So it would not have attacked the wire at this time but only at a later time when the contents of the cupboard were attacked by the fire which then developed into a high-energy fire. Mr. Royle considers that it was at this point that the intruder cable would have been attacked by the fire, which would then have reached that point. I find this convincing.

Conclusion

[60]For the reasons which I have sought to set out and notwithstanding the able submissions of Mr. Davis, the claim must be dismissed.