LMS International Ltd & Ors v Styrene Packaging and Insulation Ltd & Ors [2005] EWHC 2065 (TCC)

NEUTRAL CITATION NO. 2005 EWHC 2065 (TCC
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Between
LMS INTERNATIONAL LIMITEDClaimantsWALLABY INVESTMENTS LIMITEDClaimantsCONTRACT EXPERTS LIMITEDClaimantsSTYRENE PACKAGING AND INSULATION LIMITEDDefendantsPAUL EDGEDefendantsMICHAEL EDGEDefendantsMARIA EDGEDefendantsROBERT COOPERDefendants
B E T W E E N:
APPROVED JUDGMENTMr Stephen Bickford-Smith, instructed by Beachcroft Wansbroughs for ClaimantsMr Andrew McGee, instructed by Gordons for First DefendantsHIS HONOUR JUDGE PETER COULSON QC:A INTRODUCTION
[1]On Wednesday, the 6th August 2003, a fire started in the upper floor of the Defendants’ factory premises at Unit D, Parkhouse Industrial Estate, Low Moor Road, Bradford. The premises at Unit D were owned by the Second, Third, Fourth and Fifth Defendants. Unit D was occupied by the First Defendant company, of which the other Defendants were directors and shareholders, and used for the making of polystyrene blocks for insulation purposes and polystyrene mouldings to be used in packaging. It is admitted that the fire broke out “whilst an employee of the First Defendant was cutting expanded polystyrene blocks with a hot wire machine…”: see paragraph 13 of the Amended Particulars of Claim and Paragraph 10 of the Amended Defence. Although the West Yorkshire Fire Brigade attended Unit D within 5 minutes of being alerted to the disaster, the fire spread so quickly that Unit D was largely destroyed. The fire and smoke from Unit D spread to the two adjoining factory Units, B and C (which had originally been part of the same factory building prior to its sub-division) and caused extensive damage to those Units and their contents.[2]The First Claimants, LMS International Limited, are the lessees and occupiers of both Units B and C. The Second Claimants, Wallaby Investments Limited, are the owners of Unit B. The Third Claimants, Contract Experts Limited, are the owners of Unit C. All three Claimants now bring proceedings against the Defendants arising out of the fire of 6th August 2003. They were represented by Mr Stephen Bickford-Smith of Counsel.[3]The First Claimants claim compensation for the damage done by the fire and smoke to their machinery, plant and stock, and they also make a substantial claim for business interruption. Their damages claim is estimated to be in excess of £2 million. The Second and Third Claimants claim around £400,000 in respect of building re-instatement costs and about £360,000 in respect of lost rent, together with one or two other smaller sums.[4]All these claims are brought against the First Defendants, who occupied Unit D and who operated the polystyrene manufacturing business from those premises. In the alternative, the same claims are also made against the four individuals who are grouped together as the Second - Fifth Defendants, as the landlords of Unit D and as directors/shareholders of the First Defendants. One of these four, Mr Michael Edge, was a key witness at the trial.[5]In this Judgment I shall refer principally to the First Defendants, because they were directly involved in the events before and after the fire. They were represented by Mr. Andrew McGee of Counsel. The Second-Fifth Defendants did not appear and were not represented.[6]On 12th October 2004, I ordered that there should be split trial, with all issues of liability dealt with at the first hearing, and all quantum issues left over until a second hearing. The trial on all liability issues took place on 20, 21, 22, 28, 29 and 30 June and 5th July 2005. Both Counsel helpfully provided me with written opening statements and written closing submissions, and I am extremely grateful to them for their assistance. This Judgment, which has been slightly delayed by the long vacation, is solely concerned with issues of liability.[7]The claims brought by the Claimants are put in a number of different ways, and it is important to identify at the outset the different legal concepts that are said to arise in this case. First, the entirety of the Claimants’ loss is sought to be recovered against the First Defendants on the simple basis that the fire and/or spread of fire arose from the dangerous materials and activities inherent in the First Defendants’ manufacturing business (including, but by no means limited to, the storage at Unit D of large quantities of inflammable material), and that, since, on the Claimants’ case, this constituted a non-natural user of land, the First Defendants were strictly liable to the Claimants for the escape of fire in accordance with the rule in Rylands v Fletcher (1866) LR 1 Ex 265 at 279, affirmed at (1868) LR 3 HL 330. In the alternative, all of the Claimants’ loss is claimed against the First Defendants pursuant to a claim in negligence and nuisance, on the basis that the fire resulted from the First Defendant’s actionable default. This primary claim in negligence and nuisance, unlike the strict liability claim based on Rylands v Fletcher, requires a finding of culpability on the part of the First Defendants.[8]Even if I concluded that the Claimants had no cause of action against the First Defendants in respect of the commencement of the fire, the Claimants contend that the fact that the fire was not put out at or around the hot wire machine where it started demonstrated significant flaws and omissions in the First Defendants’ fire safety/training arrangements. Accordingly the Claimants say that, as a result of this negligence on the part of the First Defendants, the fire spread to Units B and C when, but for this negligence, it would not have done. I have referred to this below as the secondary negligence/nuisance claim. It should also be noted that this claim, as well as the claim based on Rylands v Fletcher and the primary negligence/nuisance claim referred to above, is put, in the alternative, against the Second-Fifth Defendants, on the grounds that they were the landlords, alternatively the directors, of the First Defendants.[9]Finally, even if all those claims fail, the Claimants contend that they can recover at least part of their losses as a result of the Defendants’ failure, after the fire, to re-build the party wall between Unit D, on the one hand, and Units B and C, on the other. The Claimants contend that this failure, which is said to be actionable under the terms of a number of particular Deeds, and alternatively in nuisance, has resulted in a number of the specific heads of loss that make up the total claim. I have called this the support claim. It should be noted that the support claim put by reference to the Deeds lies against the Second-Fifth Defendants only, since they (or their predecessors in title) were parties to those Deeds. The alternative support claim in nuisance is alleged primarily against the First Defendants, although the indirect liability arising from the Second-Fifth Defendants’ role as landlords and directors is again relevant.[10]There are a large number of factual disputes between the parties, as well as significant disputes of principle. However, at the heart of this case lie the parties’ different contentions as to the cause of the fire. As I have already noted, both parties agree that the fire started on a hot wire cutting machine on the upper floor of Unit D, which was being used to cut up scrap blocks. It is the Claimants’ case that the fire started on this machine when one of the heated wires broke, causing a spark which ignited the polystyrene block being cut up. The First Defendants deny this and say that the cause of the fire was and remains inexplicable. Accordingly, at the trial, the First Defendants spent a good deal of time endeavouring to demonstrate that the Claimants’ case as to the cause of the fire was incorrect; they were able to put forward no positive case of their own.[11]I propose to set out the relevant principles of law at the outset of this Judgment (Sections B and C below) before going on to deal with some of the background facts (Sections D, E, F and G below). At Section H, I deal with the situation at Unit D at the time of the fire and at Section I I address in detail the evidence as to the cause and spread of the fire. Section J sets out a summary of my findings as to the cause and spread of the fire. Then, having addressed some of the later events at Section K, I set out my conclusions as to the Rylands v Fletcher claim at Section L; my conclusions as to the primary negligence/nuisance claim at Section M; my conclusions as to the secondary negligence/nuisance claim at Section N; and my conclusions as to the support claim, and the other claims against the Second, Third, Fourth and Fifth Defendants, at Section O. There is then an overall summary of the key elements of this Judgment at Section P below. BRYLANDS v FLETCHER: RELEVANT PRINCIPLES a) General Observations[12]In Rylands v Fletcher at first instance, Blackburn J found the defendant liable for the flooding of the plaintiff’s mine. The water had been accumulated by the Defendant on his own land to act as a mill reservoir, and had escaped to the adjoining land owned by the plaintiff. The legal basis for the defendant’s liability was found to be that if a land owner collects and keeps on his land “anything likely to do mischief if it escapes [he] must keep it at his peril and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”. The House of Lords agreed, but Lord Cairns added the qualification that the rule could only apply in cases where the defendant had made a non-natural use of the land.[13]Rylands v Fletcher is a rule of strict liability, requiring only that a prospective claimant demonstrates an escape from the defendant’s land of something which, having been brought there by the defendant, was likely to do mischief if it did escape and which constituted a “non-natural use” of the land. As Lord Moulton put it in Rickards v Lothian [1913] AC 263 at 280:
“It is not every use to which land is put that brings into play that principle [Rylands v Fletcher]. It must be some special use bringing with it increased danger to others and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community.”
[14]Since the Second World War, the courts have adopted a generally restrictive approach to the rule in Rylands v Fletcher. This can be demonstrated by reference to three cases: Read v J Lyons & Co Ltd [1947] AC156; Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] 2 AC 264; and Transco v Stockport MBC [2004] 1 ALL ER 589.[15]In Read v J Lyons & Co Ltd, the Defendants operated a munitions factory where the Plaintiff was employed. Following injuries to the Plaintiff caused by the explosion of a shell, proceedings were commenced against the Defendant on the basis of Rylands v Fletcher. There was no alternative claim in negligence. The claim failed on the basis that there had been no escape from the Defendant’s land to a place outside his occupation or control. In the speeches in the House of Lords, their Lordships denied the existence of any general principle of strict liability for ultra-hazardous activities.[16]In the Cambridge Water case, solvent from the Defendants’ tannery polluted the Plaintiffs’ bore hole where water was abstracted for domestic purposes. The claim failed, again on a relevantly narrow ground, on the basis that the Plaintiffs had failed to establish that pollution of their water supply by the solvent was foreseeable and that, since foreseeability of harm of the relevant type was a prerequisite for the recovery of damages under the rule in Rylands v Fletcher, the claim must fail.[17]There are two particular points that should be noted about the speech of Lord Goff in the Cambridge Water case. First, there is his clear opposition, on policy grounds, to the suggestion that there should be a significant expansion of this kind of strict liability. He said, at page 305:
“I incline to the opinion that, as a general rule, it is more appropriate for strict liability in respect of operations of high risk to be imposed by Parliament than by the courts. If such liability is imposed by statute, the relevant activities can be identified, and those concerned can know where they stand. Furthermore, statute can where appropriate lay down precise criteria establishing the incidence and scope of such liability.”
[18]The second point to note is that Lord Goff expressly disagreed with the trial judge’s conclusion that the storage of organo-chlorines was a natural use of land. He expressly found that the storage of chemicals in substantial quantities was a non-natural use of land. At page 309 he said:
“I cannot think that it would be right in such circumstances to exempt ECL [the Defendants] from liability under the rule in Rylands v Fletcher on the ground that the use was natural or ordinary. The mere fact that the use is common in the tanning industry cannot, in my opinion, be enough to bring the use within the exception, nor the fact that Sawston contains a small industrial community which is worthy of encouragement or support. Indeed I feel bound to say that the storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use; and I find it very difficult to think that it should be thought objectionable to impose strict liability for damage caused in the event of their escape.”
[19]In Transco Plc v Stockport MBC, the claim concerned an escape from the Defendants’ water pipe which caused the collapse of an embankment and the exposure of an unsupported gas main. A claim based on Rylands v Fletcher was made to recover the cost of the remedial work to the gas main. The trial judge found for the Claimant but the decision was reversed in the Court of Appeal. The House of Lords dismissed the Claimant’s appeal. The principal reason for this was their Lordships’ conclusion that the provision of a water supply to a block of flats, by means of a connecting pipe from the water main, though capable of causing damage in the event of an escape, did not amount to the creation of a special hazard constituting an extraordinary use of land.[20]Again, rather like in Cambridge Water ten years before, there was an attempt by the Defendants to argue that the rule in Rylands v Fletcher was no longer applicable. Again, this attack failed. Lord Bingham of Cornhill said:
“There remains a third option, which I would myself favour: to retain the rule, while insisting upon its essential nature and purpose; and to restate it so as to achieve as much certainty and clarity as is obtainable, recognising that new factual situations are bound to arise posing difficult questions on the boundary of the rule, wherever that is drawn.”
[21]After a detailed review of many of the relevant authorities, at paragraph 39, Lord Hoffmann referred to “the very limited circumstances to which the rule has been confined”. He went on:
“It is perhaps not surprising that counsel could not find a reported case since the Second World War in which anyone had succeeded in a claim under the rule. It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse.”
[22]At paragraph 43, Lord Hoffmann declined to abolish the rule in Rylands v Fletcher, concluding that that “would be too radical a step to take”. However, in paragraphs 44-46 he went on “to introduce greater certainty into the concept of natural user which is in issue in this case”. He concluded that the question of what is a natural use of land or, (the converse) a use creating an increased risk, must be judged by contemporary standards. He identified two features of contemporary society which seemed to him to be relevant. The first was the extension of statutory regulations which had to be considered to see whether or not they had created an exhaustive code of liability for a particular form of escape which excluded the rule in Rylands v Fletcher.[23]Lord Hoffmann’s second point was to the effect that, since Rylands v Fletcher was concerned only with damage to property, it was relevant to consider the insurance position. He said:
“A useful guide in deciding whether the risk has been created by a “non-natural” user of land is therefore to ask whether the damage which eventuated was something against which the occupier could reasonably be expected to insure himself. Property insurance is relatively cheap and accessible; in my opinion people should be encouraged to insure their own property rather than to seek to transfer the risk to others by means of litigation, with the heavy transactional costs which that involves.”
It is not entirely clear in that last paragraph what is meant by “the occupier” but I accept Mr McGee’s submission that that was probably intended to be a reference to the prospective claimant, namely the occupier of the adjoining land, rather than the occupier who allows the dangerous thing to escape from his land.[24]What is clear is that Lord Hobhouse of Woodborough did not agree with this second point at all. At paragraph 60 he said:
“Thirdly it is argued that the risk of property damage is “insurable”, just as is public liability. It is then said that, since insurers are likely to be the real parties behind any litigation, the rule has become unnecessary. This is an unsound argument for a number of reasons … The economic burden of insuring against the risk must be borne by he who creates it and has the control of it. Further the magnitude of the burden will depend upon who ultimately has to bear the loss: the rule provides the answer to this. The argument that insurance makes the rule unnecessary is no more valid than saying that, because some people can afford to and sensibly do take out comprehensive car insurance, no driver should be civilly liable for his negligent driving. It is unprincipled to abrogate for all citizens a legal right merely because it may be unnecessary as between major corporations.”
[25]In my judgment, Lord Hobhouse’s comments on the Cambridge Water case are also of some relevance. He referred to Lord Moulton’s statement in Rickards v Lothian and Lord Goff’s analysis in Cambridge Water and concluded:
“It is thus the creation of a recognisable risk to other land owners which is an essential constituent of the tort and the liability of the defendant. But, once such a risk has been created, the liability for the foreseeable consequences of failure to control and confine it is strict.”
[26]Lord Hoffmann’s comment to the effect that no claimant had successfully relied on the principle of Rylands v Fletcher since the Second World War was presumably based upon a review of the authorities cited to the House of Lords in Transco. Given that Transco was a case about the escape of water, it is perhaps not surprising that the majority of the cases referred to in argument were concerned with flooding of one sort or another. But there have in fact been quite a few cases since the Second World War where the rule in Rylands v Fletcher has been successfully relied on. A number of those cases were concerned with the escape of fire, and they were not all cited to the House of Lords in Transco. b) The Fire Cases[27]At common law, the position was that, if a fire escaped from A’s land to B’s land, A was strictly liable to B for the consequences. This effect of this strict liability for fire was ameliorated by the Fires Prevention (Metropolis) Act 1774 which gave A a defence to any claim if the fire started accidentally. The word “accidentally” in the Act has always been given a narrow construction and effectively been taken to mean “non-negligent”. In Musgrove v Pandelis [1919] 2 KB 43, it was held that the Act did not provide a defence if the fire started accidentally but was continued and not extinguished by the negligence of the householder.[28]A fire resulting from a non-natural user of land (i.e. a fire to which the rule in Rylands v Fletcher applies) has been held to be outside the protection of the Act, because, in such circumstances, the relevant fire was not regarded as having been started accidentally: see Musgrove (supra); Spicer v Smee [1946] 1 ALL ER 489 and Perry v Kendricks Transport Limited [1956] 1 ALL ER 154.[29]In Mason v Levy Auto Parts of England [1967] 2 QB 530, Mackenna J found that, in circumstances where the Defendants had a store of machinery in inflammable packings, together with a quantity of petroleum, acetylene and paints, they were liable for the damage when fire broke out and escaped to the neighbouring property. He found that the circumstances of the storage amounted to a non-natural user and that consequently the Defendants were liable under the rule in Rylands v Fletcher, irrespective of negligence and the Act of 1774. This case was apparently not cited in Transco. At page 70C, Mackenna J applied a two stage test: first, whether the things brought onto the land were likely to catch fire and, if they did, whether the fire was likely to spread to the adjoining land; and secondly, whether such things were done in the course of a non-natural user of the land.[30]It is fair to say that, in reaching his decision in Mason, the learned judge was apparently concerned that, by allowing the plaintiff to rely on the rule in Rylands v Fletcher, he was allowing him to escape the consequences of the 1774 Act. I agree with His Honour Judge Thornton QC in Johnson v B J W Property [2002] 3 ALL ER 574 when he commented on this point :
“With respect to Mackenna J, however, the narrow meaning given to the Act which so concerned him is one that is particularly appropriate given the Act’s historical origins since the fire in question had not escaped ‘accidentally’ since it escaped following a dangerous or non-natural use of the land. Thus, the escape was one for which custom had long since imposed strict liability on the occupier of the land.”
I note that Johnson was also apparently omitted from the authorities referred to in Transco.[31]It has been said in a number of cases that fire is obviously a ‘dangerous thing’ so that any escape of fire gives rise to a potential liability under the rule in Rylands v Fletcher, provided that the escape was caused by or the result of a dangerous and non-natural user of land: see Johnson (supra) and Clerk v LindsellOn Torts 18th Edition, paragraph 20-46. This does not, however, extend to domestic fires in grates and fireplaces: see Sochacki v Sas [1947] 1 ALL ER 344 and J Doltis Limited v Issac Braithwaite & Sons (Engineers)Limited [1957] 1 Ll L Rep 522.[32]In at least two other cases, neither of which were referred to the House of Lords in Transco, the Claimant succeeded both in negligence and in a claim based upon the rule in Rylands v Fletcher: see Balfour v Barty-King [1957] 1 ALL ER 156 and E Hobbs (Farms) Limited v The Baxenden Chemical Co Limited [1992] 1 Ll L Rep 54. In the latter case, a fire started in Hobbs’ barn when a spark from a grinding machine fell onto combustible material/debris below the machine. The fire spread into and destroyed Gerber’s adjacent hanger. Hobbs alleged that the fire spread was due to the action of the foam insulation in the barn (called Isofoam) and issued separate proceedings against Baxenden, the manufacturers of Isofoam. Sir Michael Ogden QC, sitting as a Deputy High Court Judge, found that Hobbs was negligent and that there was a real risk that the fire in the material/debris under the bench would get out of control and spread to the hanger, with or without the exacerbating effect of the Isofoam. However, he found that, not only was Hobbs liable to Gerber, but that Baxenden was also liable to Hobbs, because Baxenden had made a number of misleading statements about the combustibility of the Isofoam. As to the Rylands v Fletcher claim he said : “Since I have decided that Hobbs was negligent, the Fire Prevention (Metropolis) Act 1774 provides no defence. I have rejected Hobbs’ arguments on causation and remoteness. Therefore Gerber has succeeded in establishing liability in respect of this cause of action [Rylands v Fletcher].” c) Summary of Relevant Principles[33]Although it is not a wholly easy task, I set out below the principles which I have taken from the authorities cited above: a) In cases concerned with fire, the rule in Rylands v Fletcher requires two things. First, the defendant must have brought onto his land things which were likely to cause and/or catch fire, and kept them in such a condition that, if they ignited, the fire would be likely to spread to the claimant’s land. To put it another way, those things must represent a recognisable risk to the owners of the adjoining land. Secondly, the actions on the part of the defendant must arise from a non-natural user of the defendant’s land: see Mason and Transco. b) This rule, although carefully restricted in recent years, has twice avoided complete abolition: see Cambridge Water and Transco. c) A non-natural user should be considered by reference to contemporary standards. The existence of statutory regulations relating to the storage of the dangerous thing(s) may preclude the operation of the rule in a particular case: that was Lord Hoffmann’s first factor in Transco. The existence, or otherwise, of insurance may be a relevant factor, although, as set out above, this was a matter on which the House of Lords emphatically disagreed. d) In the two leading cases of the last decade or so, it has been held that a pipe containing water for domestic purposes was not a non-natural user of land (see Transco) but that the storage of chemicals for the purposes of industrial tanning was a non-natural user (see Cambridge Water). Respectfully, I do not regard either conclusion as exceptionable. In addition, it was held, in both Mason and Hobbs, that the storage of inflammable materials was sufficient to trigger the rule in Rylands v Fletcher. e) Fire is plainly dangerous. Therefore, if the escape of fire from A’s land to B’s land was the (foreseeable) result of the storage of dangerous things that comprised a non-natural user of land by A, then, subject to the qualifications set out above, A is prima facie liable to B under the rule in Rylands v Fletcher. CNEGLIGENCE AND NUSIANCE : RELEVANT PRINCIPLES a) Negligence[34]There is, quite properly, no dispute between the parties that the First Defendants owed to the Claimants a duty of care at common law to take reasonable care in carrying out their business at Unit D, and, in particular, to take reasonable care to prevent fires starting and/or spreading to the Claimants’ properties. It is also agreed that any claim that the Claimants might otherwise have against the First Defendants in nuisance would require a similar element of fault or failure to take reasonable care on the part of the First Defendants. Accordingly, in this case, the claim in nuisance is co-extensive with the primary claim in negligence.[35]Arising out of the arguments advanced by the Claimants, it is necessary to consider two particular points of principle in relation to the primary and secondary negligence/nuisance claims in this case. First, there is the question of whether or not the duty of care owed to the Claimants was or could be higher and/or more onerous than normal because of the potentially dangerous nature of the First Defendants’ production process. Secondly, there are the points of principle that arise out of the Claimants’ secondary negligence claim, to the effect that the First Defendants were negligent because, although (on this scenario) the start of the fire was unavoidable, they negligently failed to stop the spread of the fire once it had started. i) Higher Duties[36]Mr Bickford-Smith, on behalf of the Claimants, relied on the speeches in Donoghue v Stevenson [1932] AC 562 in support of the proposition that, if the Defendant was engaged in dangerous activities, the standard of ‘reasonable care’ might involve “a degree of diligence so stringent as to amount practically to a guarantee of safety”: see Lord Macmillan at page 612.[37]This point was picked up in the Australian case of Burnie Port Authority v General Jones Pty. Ltd [1994] 179 CLR 520, a decision of the High Court of Australia. There, in the majority speech, it was said at 554:
“Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur … even where a dangerous substance or dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains “that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances”: Adelaide Chemical & Fertiliser Co Ltd v Carlyle [1940] 64CLR514 at page 523. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of ‘reasonable care’ may involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety’”
[38]The reference to the rule in Rylands v Fletcher in the above passage is explained by the decision in Burnie to the effect that, in Australia, the rule in Rylands v Fletcher had been absorbed by the principles of negligence. In that case, construction work, which involved welding, took place close to cardboard cartons containing an insulating material called Isolite which burnt fiercely if brought into sustained contact with flame. The owner’s contractor was negligent in allowing sparks to cause the Isolite to burn and the fire spread to an area of the building occupied by a licensee and caused damage to the licensee’s stock. It was held that the licensee had a claim against the owner pursuant to a non-delegable duty of care which extended to ensuring that its independent contractor took reasonable care to prevent the Isolite being set alight as a result of the welding activities.[39]In my judgment, in the present case, the standard of care owed by the First Defendants to the Claimants was that which was reasonable in all the circumstances. However, those circumstances included the nature of the manufacturing business being carried out by the First Defendants and the risk of accident and danger to others (and the First Defendants’ knowledge of those risks and dangers) which I find was involved in their activities. That is one of a number of reasons why the findings of fact that I make below, as to the risks and dangers inherent in the First Defendants’ activities at Unit D, and the First Defendants’ knowledge of such risks and dangers, are so important to the outcome of the primary and secondary negligence/nuisance claims. ii) Duty to Abate the Fire[40]Even if the start of a fire was not the result of actionable negligence on the part of the First Defendants, the First Defendants can be liable in negligence/nuisance if they allowed the fire to continue and/or failed to abate it. One authority for that principle is Musgrove (supra). In the better-known Goldman v Hargrave [1967] 1AC645, the Judicial Committee of the Privy Counsel found that an occupier was in breach of his duty of care for failing to extinguish a fire which had started by natural causes. The defendant was found to be negligent because he chose not to put the fire out, but to let it burn itself out instead. This erroneous decision allowed a wind to revive the fire which then spread to the plaintiff’s property.[41]Accordingly, it is plain that an occupier does have a continuing duty to abate a fire but, in any such case, it is always necessary to decide how far the occupier needs to go to discharge that duty: see Goldman, and paragraph 20-51 of Clerk & Linsdell. b) Support Claim[42]As previously noted, the Second and Third Claimants have a subsidiary support claim against the Second-Fifth Defendants arising out of the alleged failure to rebuild the party wall between Unit D and Units B and C. That claim turns on the words of the various Deeds and is separately analysed in Section O2 below. The same claim, arising out of the failure to rebuild the party wall, is also made by the First Claimants against the First Defendants. That claim is put in nuisance.[43]In one respect, the guiding principle in respect of this separate nuisance claim is the same as that set out in Goldman, to the effect that a land owner can be liable to his neighbour for failing to abate a nuisance on his land. Of more direct relevance, perhaps, is the decision of His Honour Judge Blackett-Ord V.C. sitting as a judge of the High Court, in Bradburn v Lindsay [1983] 2 ALL ER 408. In that case the plaintiffs sued the owner of the adjoining house which had deteriorated so badly it had had to be demolished. The party wall was left standing but was largely unsupported. The judge found that the defendant should reasonably have appreciated the danger to the plaintiffs’ property from the dry rot and from the lack of repair of the defendant’s property and, because there were steps which the defendant could reasonably have taken to prevent the damage occurring, the defendant owed a duty to the plaintiffs to take such steps. The judge rejected the suggestion from the defendant that the claimants could have gone onto the property and taken appropriate steps to prevent the damage themselves. He cited a passage from the judgment of Megaw LJ in Leakey v National Trust for Places of Historic Interest [1980] 1ALL ER17:
“If, as a result of the working of the forces of nature, there is poised above my land or above my house a boulder or a rotten tree which is liable to fall at any moment of the day or night perhaps destroying my house, and perhaps killing or injuring me or members of my family, am I without a remedy?.. Must I, in such a case, if my protests to my neighbour go unheeded, sit and wait and hope that the worst will not befall? If it is said that I have in such circumstances a remedy of going on my neighbour’s land to abate the nuisance, that would, or might, be an unsatisfactory remedy. But in any event, if there were such a right of abatement, it would, as counsel for the Plaintiffs rightly contended, be because my neighbour owed me a duty. There is, I think, ample authority that, if I have a right of abatement, I have also a remedy in damages if the nuisance remains unabated and causes me damage or personal injury.”
[44]Leakey itself is authority for the proposition that an occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such a hazard was natural or man-made, and that the duty is to take such steps as are reasonable in all the circumstances to prevent or minimise the risk of injury or damage. A similar conclusion was reached by the Court of Appeal in Holbeck Hall Hotel Limited v Scarborough Borough Council [2000] 2 ALL ER 705, where it was held that the owner of a servient tenement was under a duty to take positive steps to provide support for a neighbour’s land. The Court of Appeal found that there was no difference in principle between the danger caused by loss of such support and any other hazard or nuisance on the Defendant’s land, such as the encroachment of some obnoxious thing, which affected the Claimant’s use and enjoyment of his land. They also found that, where the question was not whether the Defendant had created the nuisance but whether he had adopted or continued it, there was no reason why different principles should apply to one kind of nuisance rather than another. They confirmed that, in each case, liability only arose if there was negligence and the duty to abate the nuisance arose from the Defendant’s knowledge of the hazard which would affect his neighbour.[45]Finally in this group of cases there is Rees v Skerrett [2001] 3 EGLR 1 in which the claimant succeeded in his action against his neighbour who had demolished his own house but neither stabilised the party wall nor prevented damp penetration into the claimant’s property.[46]In summary, therefore, it appears clear that an occupier has a positive duty to take reasonable steps to prevent or minimise the risk of injury or danger emanating from his land, howsoever caused. The occupier cannot discharge that duty simply by abstaining from the creation or addition to the source of danger or hazard. However, it will be a matter of fact and degree in each case as to whether what the occupier does in purported compliance with that duty was reasonable in all the circumstances. c) Landlord’s Liability for Nuisance Committed by Tenants[47]The Claimants allege that the Second-Fifth Defendants, as landlords, are liable for the acts and omissions of the First Defendants, as tenants, and are thereby liable for all the claims outlined above. Thus it is necessary to consider briefly the applicable principles relating to the landlord’s liability in such circumstances.[48]In general terms, a landlord is liable if he let the premises to a tenant for the purpose of doing an act likely to cause a nuisance, or if he has expressly authorised the tenant to do something which is likely to cause a nuisance. However, the landlord is not generally liable for his tenants’ nuisance, it being said in Rich v Basterfield (1847) 4 CB 783 that:
“If a landlord lets premises, not in themselves a nuisance, but which may or may not be used by the tenant so as to become a nuisance, and it is entirely at the option of the tenants so to use them or not, and the landlord receives the same benefit whether they are used or not, the landlord cannot be made responsible for the acts of the tenants.”
[49]Southwark London Borough Council v Mills [1999] 4 ALL ER 449 is authority for the proposition that it is not enough for landlords to be aware of the nuisance and then take no steps to prevent it. In that case the Court of Appeal decided that the landlords must either participate directly in the commission of the nuisance or they must be taken to have authorised it by letting the property.[50]In addition, Mr Bickford-Smith relied upon Tetley v Chitty [1986] 1 ALL ER 663 and Hussain v Leicester City Council [1999] 4 ALL ER 125, cases concerning, respectively, noise nuisance and racial aggravation, neither of which I found to be of any real assistance. His final authority on this topic, Ribee v Norrie [2001] L & TR 23 does not, in my judgment, depart from the principles set out above. It is actually a fire case and is concerned with the landlord’s liability for a fire caused by his tenant which damaged the neighbouring property. The Court of Appeal overturned the trial judge’s ruling that the defendant landlords were not liable because the fire was due to the negligence of one of the tenants who were to be treated in law as strangers to the landlords. The Court of Appeal found that, on the facts, the defendants did have the power to exercise some control over the behaviour of the tenants by the use of regulations or notices and, because the tenants were not therefore strangers to the defendants, the defendants were liable for their default. DTHE FACTORY PREMISES AT UNIT D[51]As previously noted, Units B, C and D were carved out of one single factory building, built sometime in the 1920’s, with a large number of additions and modifications in subsequent years. One continuous roof structure covered all the Units in the factory building. The roof was made of steel and consisted of a series of ridges with one steeper slope and one shallower slope. A compression beam, running North/South, linked the ridges and supported the roof.[52]The whole of the southern third of the factory building was occupied by Unit D, the Defendants’ premises. This was accessed by a road on the eastern side, where there was a loading ramp. Because the land sloped downhill in a southerly direction, Unit D was on two levels: a lower floor where there were offices and storage facilities, and an upper floor where most of the manufacturing of the polystyrene blocks took place.[53]The northern (internal) wall of Unit D, which ran right across the factory building, was a party wall shared with both Units B and C. It was not a load-bearing wall. Unit B was to the north-west of Unit D and Unit C, next to Unit B, was to the north-east of Unit D. As noted above, Units B and C were occupied by the First Claimants and were owned, respectively, by the Second and Third Claimants. Unit C was also served by the road that ran along the eastern side of the factory building. To the north of Unit C, at the northern end of the building, was Unit A, which was unaffected by the fire and is therefore irrelevant for present purposes. ETHE MANUFACTURING PROCESS[54]The First Defendants made expanded polystyrene at their premises at Unit D. Their principal business was the manufacture of large panels, about 8ft x 4ft and 2ft thick, which were used as insulation in the construction industry. That was the main work being carried on at Unit D on the day of the fire in August 2003. The stages in the manufacturing process of these blocks are briefly outlined below.[55]Polystyrene beads were delivered to the factory in large quantities. The evidence of Mr Goodsell, the First Defendants’ employee responsible for purchasing the beads, was that about 48 tons of bead were delivered to Unit D “in a good week”; Mr Michael Edge referred at one point in his evidence to 60 tons a week; and there is a contemporaneous reference in the documents to a figure of 80 tons, although neither Mr Goodsell nor Mr Michael Edge accepted this last figure. The first stage in the manufacturing process was the expansion of these beads, which involved a steaming process. The expanded beads (‘EPS’ as they are referred to in the papers) were then put into block moulds and steamed again. When the blocks were removed from the moulds they were cut in half, thereby creating the 8ft by 4ft by 2ft panels referred to above.[56]An expansion or blowing agent was needed to expand the beads during the steaming process. The blowing agent used was an inflammable hydrocarbon called pentane. The pentane expanded in vapour form and caused the beads to form cells. The amount of residual pentane following each stage in the process is disputed and is therefore dealt with in greater detail at paragraphs 186-192 below, but in general terms I accept the figures given by Mr Howe, the Claimants polystyrene process expert, which were themselves based on the published technical data. He said in evidence that when the beads were delivered to the factory they comprised about 5.4%-7% pentane by weight. Following expansion there was a 20-30% loss of pentane and, following the moulding process, there would have been a further reduction so as to leave about 50% of the pentane (or about 2.5%/3.5% pentane by weight) when the blocks were first stored. The pentane would continue to dissipate thereafter. However, provided that there was at least 1.4% pentane by volume within any pockets or cavities in the moulded blocks, the pentane in the blocks could ignite.[57]Once the large blocks had been cut in half they were stored on the upper level of Unit D, where they were the subject of Quality Control procedures. The stored blocks were stacked in a large area between the moulding machines at the western end of the upper floor, and various items of machinery, including the hot wire cutters, towards the eastern end. Blocks that failed the Quality Control procedure, because they were not of sufficient density or because of other defects, were marked with a cross. They were then put in a reject pile adjacent to the main storage area. They were then cut up so that the EPS could be recycled. The machines that cut up the blocks were the hot wire cutters referred to above, which utilised electrically-heated wires (sometimes heated to considerable temperatures) to cut the polystyrene into strips, so that the EPS could be reused. It was on one of these hot wire cutting machines that the fire started on 6th August 2003.[58]Although the First Defendants’ principal business was and is the manufacture of polystyrene blocks, there is also a related department making polystyrene packaging for hi-fi and similar equipment. That involved the same sort of processes as described above, although, obviously, everything was on a much smaller scale. The packaging department also used a hot wire cutting machine. The packaging department was located in the lower floor of Unit D. FFIRE RISKS GENERALLY[59]It is clear that there were a number of fire risks inherent in the First Defendants’ manufacturing operations as a result of both the expansion process involving pentane, and also as a result of the use of a hot wire cutting machine. I was provided with a considerable amount of published material dealing with these fire risks. I set out a summary of that material below. a) The Expansion Process[60]The polystyrene beads used by the First Defendants at the time of the fire were probably those manufactured by NOVA Chemicals. They were a product known as EPS F46A. The beads were delivered to Unit D in bags which contained a warning as follows:
“Contains pentane expanding agent. In use may form flammable/explosive vapour-air mixtures…keep away from sources of ignition.”
[61]Nova produced a written document entitled ‘Storage Handling Safety Guide’. This said:
“NOVA Chemicals’ expandable polystyrene consists of spherical beads of thermoplastic polystyrene typically 0.012” (0.25mm) to 0.079” (2.0mm) in diameter. Our EPS contains about 3-8% by weight of a volatile, flammable blowing agent, typically Pentane… …NOVA Chemicals’ modified EPS contains a specially formulated flame retardant. If ignited, properly aged foam products moulded exclusively from these modified beads in accordance with good manufacturing practices and without the use of additional additives or lubricants will, once the source of ignition is completely eliminated, stop burning sooner than if this specially formulated additive had not been incorporated in these beads.”
A few pages further on there was the warning that “foam products should not be continuously exposed to temperatures in excess of 175oF (79oC) …” The Guide also warned that “the principal safety hazard associated with NOVA Chemicals’ EPS is fire; EPS is flammable”.[62]The Guide was clear that one of the sources of this fire hazard was the pentane vapours. It described them as being:
“…flammable in vapour – in – air mixtures of 1.4% to 7.8% by volume; mixtures within this range can be ignited with low intensity ignition sources. Therefore, when handling EPS during converting/manufacturing operations, two principal efforts should be made: eliminate ignition sources (including static sparks) and prevent Pentane vapour accumulation.”
The Guide advised that, in order to eliminate sources of ignition, equipment that might “generate sparks” should be separated from operating areas, where the EPS was received or processed or fabricated or stored. It also warned the user to avoid “generation of electrical, frictional, or electrode static sparks which can constitute an ignition source”. It also advised that when hazardous work was done in operating areas, “combustibles” should be removed from the area. It concluded by warning that EPS beads, pre-expanded beads or moulded foam articles were to be handled with caution because “static electric discharge from any part of the body including skin in clothing could result in a fire”.[63]The NOVA Information Sheet for EPS F46A identified the amount of the blowing agent by weight as equal to or greater than 5.4%.[64]A good deal of other technical information was included in the bundles for the trial. It is not necessary to refer to all of it. However, it is of assistance to identify the Technical Information Sheet relating to a very similar product, manufactured by BASF, called Styropor. This Sheet provided:
“The unpacked raw material in the loose state does not quickly catch fire when discontinuously exposed to flames from matches. If exposure to flame lasts longer, however, 60 seconds say, using a touch-paper or 15 to 30 seconds with the flame of a Bunsen burner, the material expands and ignites. … The flammable blowing agent present at all stages of processing also has a substantial impact on the fire characteristics of intermediate and final product. For that reason the ignition characteristics when processing Styropor with or without flame-retardant additives have to be assessed as approximately equal. … Immediately after production, expanded materials made from Styropor still contain approximately 50% of the quantity of blowing agent in the raw material. This value falls relatively rapidly in the course of storage. The blowing agent escapes except for a residue of 10-15%.”
[65]The Styropor Sheet also contains a helpful section about cutting. It stated:
“Overheating due to the heated wires of the cutting equipment and also due to high-speed band knives and saws increases the fire hazard in this processing area. There is additionally the danger of ignition due to finally divided waste (dust) on account of its large surface area and tendency to become electrically charged. … All expanded foam wastes must be continuously removed from the plant and conveyed to a separate waste depot.”
[66]Another similar material, made by Shell, was called Styrocell. The Styrocell bulletin of March 1998 identified the pentane as an explosion hazard. At paragraph 6.2.3 of the bulletin, it warned:
“Immediately after production, molded Styrocell products contain a significant amount of Pentane. As a result they can be ignited by low energy ignition sources such as smouldering cigarettes and sparks.”
The bulletin also referred to the use of hot wires and this is further referred to below.[67]There was also a Health and Safety Executive Information Sheet entitled ‘Fire and Explosion risks from pentane in expandable polystyrene (EPS)’. This stated that:
“Raw expandable polystyrene (EPS) bead contains a flammable gas, usually Pentane. Pentane is extremely flammable. Its flash point is –50oC and its boiling point 36oC. It is heavier than air and odourless. Some Pentane is given off all the time the material is being stored and transported, and will even be released from finished products for a short while after manufacture.”
[68]In March 1999, under pressure from the HSE, the First Defendants commissioned Derek Burke to produce a written risk assessment. The document, dated 11 March, made plain that the First Defendants were well aware of the risks associated with pentane. It stated: “The main hazard associated with raw expandable polystyrene is that it contains an extremely inflammable gas known as Pentane which is present in both flame retardant and regular expandable polystyrene. Pentane is heavier than air and is odourless making detection only possible by the use of a suitable gas monitor and as it is heavier than air could form pockets in wells, sumps, drains etc. Pentane is given off all the time that the material is in its raw stage and will also be released from finished items for a short period after the manufacturing process has been completed.” b) Hot Wire Cutting[69]Some of the technical documents to which I have already referred also warn about the specific dangers of hot wire cutting the EPS material. I have, for instance, already referred to the relevant passage in the Styropor bulletin. The Nova Chemicals Safety Guide, previously referred to at paragraphs 61 and 62 above, contains a very clear warning about hot wire cutting. It stated:
“There are three main hazards associated with hot wire cutting – electrocution, thermal burns and fires. Please refer to your equipment manufacturers’ safety health and maintenance guide for additional information. Hot wire cutting can be dangerous if wires break and arc upon grounding with the frame of the cutter. The resulting spark can ignite the Pentane vapour liberated from the expanded polystyrene block by the cutting operation. Ventilation in this area should be supplemented with additional fans and fume hoods to dissipate the Pentane vapours along with the other vapours from cutting. Fire fighting equipment should be readily available to this area. Controls for the cutter should be remote from the cutter itself, so that they may be shut off in case of fire. EPS foam that will be hot-wire cut should be adequately conditioned (aged) to minimise the likelihood of fire. Consideration must be given to block size, foam density, conditioning time and conditioning temperature to ensure that Pentane concentrations at the hot wire cutter do not create dangerous conditions.”
[70]The Styrocell Bulletin of March 1998 also contains a section entitled ‘Using hot wires’. That section warned in terms:
“Foam cutting and shaping using hot wires presents a particular fire hazard. The following precautionary measures should be considered: • A safety cut-off device, in case the transport system carrying the foam stops. • A method to cool the wires where they enter the block, for example a blowing system. • A method to vent the vapours”
[71]The HSE Information Sheet referred to at paragraph 67 above also warned in unequivocal terms about the dangers inherent in hot wire cutting. The document stated:
“Hot-wire cutting is known to cause fires (in one company there were about 10 incidents a year). So make sure that you: • Cool exposed wires by forced draft ventilation; • Interlock the block transport system so that if the conveyor stops, the electrical supply to the wire cuts out; • Provide electrical fault detection to prevent wires running red hot and check it regularly; • Have carbon dioxide/dry powder extinguishers available and people trained in their use.”
[72]There was also a much more extensive document published by the HSE in 1996 called ‘Safe use and storage of Cellular Plastics’. At paragraph 118 there was a passage dealing expressly with ‘Hazards in hot-wire cutting’. That said: “118. Normally the risk of ignition is low, but fires may result if the temperature of the wires is initially set too high or if the wires are short-circuited in use. Ignition may also occur if the feed to the machine is stopped so that foam remains in contact with the hot wire. In both these situations the foam may be heated to temperatures above 300-400oC when chemical breakdown can occur causing toxic fumes and flammable vapours to be emitted. …[119]The machine should be properly set up by a trained operator and should not be left unattended while in operation.” c) Generally[73]The HSE published a separate document entitled ‘Assessment of Fire Hazards from Solid Materials and the Precautions Required for their Safe Storage Use’. At page 9, under the heading ‘Training’ there this was this general guidance: “Anyone working in a building where flammable materials are kept should be trained in the action which should be taken in the event of fire and in general fire precautions. The special needs of disabled people should be taken into account, and the training should include all staff including those on duty outside normal working hours, part-time staff, cleaners etc. Training should be based on written instructions and it is important that these instructions are specifically related to the individual premises.” d) Conclusions[74]This wealth of technical literature identifies three main ways in which the First Defendants’ manufacturing process involved the particular risk of fire. First there was the EPS itself, which was quite clearly expressed in the technical literature to be inflammable. It was present at Unit D in very large quantities: see paragraph 55 above. Secondly, there was the pentane blowing agent, which was again described as inflammable and which gave rise to a clear risk of fire. Thirdly, and perhaps most important of all, there were the specific fire risks posed by the hot wire cutting machines, about which all the relevant literature warned so clearly. On this basis, therefore, I have no hesitation in concluding that, for the purposes of the Rylands v Fletcher claim, there were dangerous things stored on the First Defendants’ premises which could easily ignite and which, if they did ignite, would be likely to cause fire to spread to the adjoining premises. In addition, for the purposes of the negligence/nuisance claims, it seems equally clear that the First Defendants owed a duty to their neighbours to take all reasonable steps to ensure that these dangerous things did not start a fire which spread to the adjoining properties. As to the Claimants’ case that the First Defendants did not comply with that duty, I am in no doubt that these allegations fall to be considered on the basis that Unit D contained large quantities of potentially dangerous material which was wholly within the control of the First Defendants.[75]I consider that these findings are confirmed by the concerns expressed in writing by the relevant statutory bodies, in the years before the fire, which are summarised in Section G below.

GPARTICULAR HEALTH AND SAFETY CONCERNS AT UNIT D

[76]The factory at Unit D was the subject of a number of checks by both the Health and Safety Executive and the Fire Authority in the years before the fire. The key events and documents are outlined in paragraphs 77-94 below. Thereafter, at paragraphs 95-100 below, I summarise the fire prevention/protection system in place at Unit D at the time of the fire. a). Narrative[77]On 19th July 1990, there was an HSE inspection of Unit D “to support possible enforcement of the safe storage of expanded polystyrene”. The inspection found that, although a storage area had been partitioned off from the work room, the fire-resisting integrity of the partition was incomplete and “large amounts of material were still kept in the work room”. The report recommended that “the partition around the storage area should be made fire resisting and that only expanded polystyrene in use should be kept in the work room. Support will be given for enforcement”.[78]On 23rd October 1997, there was an inspection of Unit D, this time by the West Yorkshire Fire Service. They were extremely concerned because, although the First Defendants were employing 60 odd people at Unit D, there was no Fire Certificate. The inspector noted the large quantities of polystyrene and associated processes and concluded that “the risk factor could be high”. A concern was also noted that “no means of early warning in case of fire has been provided”. In cross-examination, Mr Michael Edge, the managing director of the First Defendants, confirmed that, not only was there no early warning (detection) system in place in 1997, but that no such system was installed at any time prior to the fire.[79]As a consequence of the inspection in October, the First Defendants were warned in writing on 30 October 1997 that:
“It appears the premises are being put to a use designated under the above Act as requiring a Fire Certificate and application for a Fire Certificate has not yet been made. Continuing to put premises to such use without applying for a Fire Certificate is an offence. Unless an application for a Fire Certificate is made, without delay, the Fire Authority will take further action.”
Prompted by this stern warning, on 4th November, the First Defendants made an application for a Fire Certificate.[80]There was a further inspection by the West Yorkshire Fire Service on 17th November. Following that inspection they wrote to the HSE to say:
“…The following process/storage hazards were noted which are of evident concern: Polystyrene manufacturing and storage Large number of gas cylinders within the building”
[81]This inspection was undertaken in connection with the First Defendants’ application for a Fire Certificate. On 3rd December, the West Yorkshire Fire Service wrote to the First Defendants to inform them that the Fire Authority was “not satisfied with the fire precautions at the premises”. The letter enclosed a Notice identifying the steps that needed to be taken by the First Defendants before 4th March 1998. Eighteen separate steps were identified in the Notice including the provision of a manually operated electrical fire alarm system and a fire alarm system with automatic detectors to cover specific areas of Unit D, principally in the lower ground floor. It was put to Mr Michael Edge during his cross-examination that this was a “massive list of failures to comply” on the part of the First Defendants. Mr Edge did not accept that, arguing that this was an old building which the First Defendants were renovating, and that therefore some non-compliance was inevitable.[82]On 26th February 1998, there was a joint inspection by the HSE’s inspector, Mr Kay, and the Fire Authority. The HSE report that followed recommended that “unexpanded polystyrene bead should be treated as highly flammable because of the Pentane blowing agent which it contains … The storage area should be separated from the remainder of the working area by the provision of a fixed barrier of no less that one hours fire resistance. The storage area should be fitted with either smoke or heat detectors connected into the fire alarm system or alternatively sounding into the working areas.” The report went on:
“All areas where polystyrene is handled should be regarded as a process fire risk area … The company should examine the reasons for fires occurring at the cutting machinery just after the block forming moulds. If the source of the fires cannot be determined in consideration of improving local ventilation, or allowing the blocks to breathe for a while longer before cutting should be considered.”
For reasons which will become apparent, it is, in my judgment, highly significant that, at this time, the First Defendants obviously had a problem with fires at or on the hot wire cutting machinery. Mr Kay said in evidence that this information came directly from his discussions with the First Defendants’ employees.[83]The West Yorkshire Fire Service also produced their own note of this inspection and, on 2nd March, wrote to the First Defendants to point out that the action which they had required in their letter of 3rd December 1997, and the accompanying Notice, had not been completed. The First Defendants were given an extension until 4th June 1998 to put these matters in hand. At the same time, the HSE also wrote to the First Defendants, on 9th March 1998, which made trenchant criticisms of the storage areas, describing them as “poorly ventilated, internal and unzoned”. The letter went on to say that there was no fire resisting separation between the storage area and the remainder of the building. It identified “at least 80 tons” of polystyrene bead stored in the area. The letter also repeated the points about polystyrene as a process fire risk. As to fires generally, the HSE said:
“Fires had occurred at one of the early cutting stations, just after the polystyrene had been formed into blocks. You dealt with this by instructing production personnel to use portable fire extinguishers. You should examine the reasons for fires occurring at the cutting machinery just after the block forming moulds. If the source of the fire cannot be determined, then consideration of improving local ventilation, or allowing the blocks to breathe for a while longer before cutting should be considered.”
[84]Mr Michael Edge was asked about this document in cross-examination. As with a number of these documents, Mr Edge was keen to play down their impact and he disagreed with particular elements of the letter. For instance, he did not accept that there were at least 80 tons of bead in the area. The credibility of Mr Edge’s attempts to minimise the seriousness of these letters were not helped by the fact that, at the time, the First Defendants did not apparently respond to any of these critical letters, much less disagree with or dispute their contents.[85]By 9th June 1998, the measures required in the Notice dated 3rd December 1997 had been carried out and the West Yorkshire Fire Service wrote to the First Defendants to say so. Of course, the matters raised by the HSE inspection of February 1998, and set out in detail in their letter of 9 March 1998, were not directly connected with the Fire Certificate. It appears that the First Defendants took no steps whatsoever to comply with those separate requirements and, on 11th September 1998, they were chased by the HSE, who threatened an Improvement Notice if the First Defendants did not comply.[86]Mr Michael Edge was asked a good deal of questions about the HSE criticisms of February/March 1998, and in particular their apparent requirement that the storage areas be segregated from the working areas. Mr Edge said that “I opted for more open areas”. He confirmed that he did not partition the upper working area in the way recommended by the Fire Authority. He said that his concern was that, if the storage areas were partitioned, fires starting in another area of the production process would not be seen and that it was better to keep it open so that fires could be “clearly seen”. He had no answer as to why the First Defendants were continually being chased to meet the HSE requirements.[87]As a result of the First Defendants’ continuing inaction, on 4th December 1998, the HSE served 4 Improvement Notices. One of these was for the “provision of fire separation in the process and intermediate storage areas …” The letter complained that “progress in addressing the serious fire risks in the factory has been slow, having regard to the potential for harm.” Mr Edge accepted that the First Defendants had been slow but denied that they had been reluctant. He said he disputed the HSE view that Unit D represented a serious fire risk but he did not write to the HSE to make his disagreement known at the time.[88]On 24th February 1999 the First Defendants wrote to the HSE informing them that they had carried out some improvements but they had not complied fully with 3 of the 4 Notices. On the question of fire separation in the process and intermediate storage areas, the First Defendants said:
“We have failed to meet the compliance date for this notice, due mainly to a lack of, and difficulty in, obtaining any reliable and relevant information in this area. I have previously contacted several consultants, our own builders and contents insurers, as well as the West Yorkshire Fire Service, only to receive, what was often quite wildly conflicting advice.”
The letter sought further time to comply with the Improvement Notices. No copies of, or details concerning, the allegedly “wildly conflicting advice” were provided.[89]On 13th April 1999, the First Defendants provided to HM Inspector of Factories a written risk assessment produced on their behalf by Derek Burke, dated 11 March 1999 and referred to in paragraph 68 above. This recommended that, before undertaking the fire separation work required by the HSE in the upper production areas, in order to separate the polystyrene blocks from the process machinery, a “monitoring programme is implemented to measure for pentane gas to determine if a problem exists or not”. The report also recommended that:
“Interlocks should be provided on the hot wire conveyors to ensure that if the conveyor ceases to move its efficient speed, stop or jam, then the power supply to the hot wires will be cut off.”
Mr Michael Edge in cross-examination accepted that this was a clear warning that the pentane was a fire hazard. He maintained that he did not want to divide up the upper floor. There was no evidence that any pentane monitoring programme was ever put into effect. Whether or not there was an interlock of any sort on the hot wire cutting machine where the fire started is dealt with in greater detail in paragraph 112 below.[90]On 14th May, the HSE wrote to the First Defendants to say they did not agree with all of the conclusions in the Risk Assessment and still required action to be taken as required by the Notices. Mr Kay, the HSE inspector who gave evidence at the trial, said that the Assessment “was not what we hoped for”. His letter stated:
“We also require that steps be taken to reduce the risk of spread of fire in the production areas by provision of a half hour fire resistance separation as explained in our original letter of 9 March 1998, or equivalent fire safety measures. It is my opinion that you have not complied with the conditions of the remaining 3 Notices but since you have clearly taken some action towards complying and have notified HSE of your reasons I do not propose to take any enforcement action at this stage.”
Mr Kay also explained that the HSE always believed that the storage area should be separated, and that that was the “right way forward”. However he pointed out that any enforcement proceedings would not be straight-forward because it was a “grey area”; any action would be a “test case for court”. He said that if the problem could be dealt with in another way, “we would not push it”.[91]On 27th August the HSE wrote again to the First Defendants to say that they expected the remaining matters “to be resolved without further delay”. As to the thorny issue of fire separation in the upper floor, the HSE were obviously aware that the First Defendants were positively opposed to such measures. Accordingly they said:
“Since you do not wish to go down the route of providing additional fire separation in the upper production area you should consider whether the existing fire detection system could be improved.”
This, of course, was an extremely important development, because it indicated that the HSE would not “push” the separation solution if the problem was dealt with in another way, such as the installation of an automatic fire detection system in the upper floor area. Mr Kay confirmed this in his evidence. Accordingly Mr Michael Edge was asked in cross-examination what steps the First Defendants had taken to consider improvements to the existing fire detection system, and in particular whether they had thought about putting in an automatic smoke or fire detection system in the upper floor. Mr Edge’s answer was best described as cagey. He said he thought that the First Defendants had considered the point but could not really be specific whether they had done or not and, if so, why no automatic system was installed.[92]On 1st September 1999, the First Defendants replied to the letter saying that they would “consider” the possibility of fitting further smoke detectors above the block ageing area and some form of roof mounted ventilation. The letter also dealt with the HSE’s point that the hot wire cutting machines should operate so that “the current to the work is interlocked to the block movement”. The HSE were asking for the power to the wires to be cut if the block on the machine jammed, which was essentially what the risk assessment produced by the First Defendants themselves had recommended. In those circumstances, the First Defendants’ response was surprising:
“None of the machinery is automatic; at very best some could be said to be semi-automatic. It was decided to operate the machinery this way because automated cutting machinery was seen to encourage operatives to “wander” away from the machinery, but running them as we have seems to encourage the vigilance of the machine operatives. We do however recognise the obvious benefits of your suggestions and are looking into the feasibility of fitting such devices to some of our machinery.”
Mr Edge in cross-examination put the gloss on this response that, since the machinery was coming to the end of its life and the First Defendants intended to buy new machinery, it was not worth putting interlocks on old machinery. When pushed on the curious stance that it was better not to have automatic interlocks at all, because then the operative did not wander away from the machine, Mr Edge eventually said that this was a matter for Mr Higgins to explain, because he had written the letter of 1st September. Mr Higgins did not explain it in his evidence. As set out in greater detail below, I regard the First Defendants’ repeated emphasis on the need for operator vigilance, as opposed to automatic detection systems, as being indicative of their stance in respect of fire protection generally.[93]On 23rd August 2000 the West Yorkshire Fire Authority wrote to Mr Goodsell of the First Defendants following an inspection. The Authority stated that the First Defendants had “failed to comply with the requirements imposed on you by the workplace fire precautions legislation”. Three matters were identified concerned with signage, self-closing doors and the like. The letter required the First Defendants to carry out a written risk assessment of Unit D because none had been done for a number of years. Mr Michael Edge said that he disagreed with that, although again there was no written response by the First Defendants to this letter making that, or any other point. Neither were there any written risk assessments from the First Defendants on the files of either the Fire Authority or the HSE, other than the one referred to at paragraph 68 above. Accordingly, although Mr Edge, and Mr Goodsell, suggested in their evidence that fire assessments had been carried out, there was absolutely no evidence to support that contention. I accept, of course, that many of the First Defendants’ documents were destroyed in the fire itself, but, given that the whole tranche of documents to which I have been referring comes, not from them, but from the files of the Fire Authority and the HSE in any event, it would appear that, even if the First Defendants did produce any written fire risk assessments (which, on the evidence, I do not accept), they did not send them to either the HSE or the Fire Authority. Accordingly, at the time of the fire, neither the HSE nor the Fire Authority were aware of the up to date position, by way of written fire risk assessments, at Unit D.[94]This might ordinarily be of little account but, in this case, the First Defendants are seeking to defend themselves against the negligence/nuisance allegations by saying, amongst other things, that they did everything that they were required to do by the relevant statutory authorities. That is a difficult argument for the First Defendants to run if, as is plainly the case here, those statutory authorities were not aware of the updated position at Unit D because the First Defendants simply had not provided them with any further information. It is plain beyond doubt that no written risk assessments were provided by the First Defendants to the relevant statutory authorities (aside from the report referred to at paragraph 68 above) and that therefore the authorities were not aware of the ongoing position at Unit D at the time of the fire. As Mr Kay put it during his cross-examination, “the information at the date of the fire did not go beyond the information available on 23rd August 2000.” As an example of the potential consequences of this default, it is worth considering the need for an interlock on the cutting machine which would cut the power to the wires if the conveyor jammed, a recommendation made in the First Defendants’ sole risk assessment document of April 1999. Given the absence of any information from the First Defendants thereafter, the Fire Authority and/or the HSE might have been forgiven for thinking that this, at least, had been done, since it was being recommended by the First Defendants’ own consultant. As we shall see at paragraph 112 below, I find that it was not done, and the Fire Authority and the HSE were never informed. b). The Fire Prevention System in place in August 2003[95]On the basis of the material set out in paragraphs 77-94 above, I find that the fire prevention system in place at the time of the fire in August 2003 was essentially as set out on the plan that went with the Fire Certificate.[96]Accordingly, in respect of the lower floor, there were heat/smoke detectors in and around the area of the offices. There was fire protection for the storage tanks. In general terms, in this area, the First Defendants complied with the requirements/recommendations of the HSE and the Fire Authority.[97]In the upper production area there were no heat/smoke detectors. In other words, there was no automatic fire detection system. There were also no fire-resisting barriers or other separation between the large storage area for the completed blocks and the process machinery, including the hot wire cutting machine. There were, however, a large number of fire extinguishers situated close to the machines.[98]I find, on the evidence, and in particular on the basis of the documents held by the statutory authorities, that the First Defendants’ attitude to fire and fire prevention was to carry out the absolute minimum work necessary to ensure that the authorities did not issue enforcement proceedings, but to do no more than that. They were not proactive in respect of sharing information about or endeavouring to reduce possible fire risks. Overriding everything else was an apparently unshakeable belief on the part of the First Defendants that the most important element of fire-fighting was the human element; in consequence, fire-resisting barriers were regarded as a bad idea because they prevented workers from seeing down the upper floor area to where the fires might start; and the possibility of interlocking devices on cutting machines was also rejected because they encouraged workers not to be vigilant.[99]Accordingly, at the time of the fire in August 2003, in the upper floor area, there was no fire protection from fire-resisting barriers between storage areas and production areas, and neither was there an automatic fire detection system. Indeed, there was no heat or smoke detection system in the upper floor at all. On any fair reading of the correspondence set out in paragraphs 77-94 above, I consider that it is plain that the Fire Authority/HSE wanted one or the other, but in the event, they got neither.[100]In my judgment, by ignoring the technical literature and the recommendations of the HSE in respect of fire resisting partitions, and in failing to do anything about the alternative suggested by the HSE, namely the installation of an automatic heat/smoke detection system in the upper area, the First Defendants took an unwarranted risk. They operated on the basis that everything would be alright because their employees would deal promptly with any fire that might occur. It is not unfair to categorise the First Defendants’ fire prevention system at Unit D as being one which was wholly dependant upon their employees; they left it to those working on the upper floor to spot the fire and then to raise the alarm and to try and deal with it before it got out of control. In all those circumstances, it was therefore even more critical than usual that the First Defendants ensured that all their employees had a complete understanding of what they had to do in the event of a fire. For the reasons set out at paragraphs 121-129 below, I find that they failed to do so. HSITUATION ON 6 AUGUST 2003 a). The Lay-Out At The Time Of The Fire[101]By 8 pm on the evening of 6 August 2003, many of First Defendants’ more senior employees had left the Unit D premises, either because they were part of the management team and stopped work at about 5.30pm or because they were not working on the 2pm-10pm shift. Mr Michael Edge was not there and neither were any of the relevant department heads, Messrs. Goodsell (Quality Control and purchasing), Higgins (package moulding) and Mallison (cutting). It is not at all clear who was the most senior person on the upper floor at the time of the fire.[102]By 8pm, on the upper floor, Mr Sayeed Abbas was working the hot wire cutting machine, cutting failed and/or defective blocks into scrap. This was not his usual department or place of work, although he had worked there before. The hot wire cutter was situated towards the eastern end of the upper floor of Unit D. It was close to a chute down which the cut-up scraps were sent to the granulator on the lower floor. At the other (western) end of the upper floor, four Polish workers were operating the two block moulding machines. It seems that the man responsible for them was Mr Chris Godwin. Neither he, nor any of the other Polish workers, was called to give evidence at the trial.[103]It is common ground that there were stores of EPS close to the moulding machines. In addition, between the two block moulding machines and the hot wire cutter being operated by Mr Abbas, there was a large area where the moulded blocks were stored. There was general agreement about the size of this area and its precise location. Mr Abbas said that the store of good blocks was about 50 foot long and 50 foot wide, and about 10 foot high. Mr Higgins, now the First Defendants’ operations manager, expressly accepted that, and Mr Goodsell said that, if anything, it was a little bigger than that. Mr Michael Edge said that he believed that the storage area was about 12 foot high.[104]There was some debate about how many blocks might be within the storage area at any one time. Mr Michael Edge said that the store could hold about 500 blocks, which was about one day’s output. On the evening of 6th August 2003 I find, on the evidence that I heard (which was all speculative because no relevant records escaped the fire) that there were at least 400 blocks in the storage area, and very probably more. That is also consistent with the agreed evidence that the storage area at the time was about 12 foot high and 50 foot square. I also find that this storage area was separated from the hot wire cutting machine by a passage of about 10 foot in width to allow for a fork lift truck to pass between the stacks of blocks and the hot wire cutter.[105]In a separate, smaller stack, to the north of the larger storage area, and just to the west of the hot wire cutting machine, were the blocks which had been rejected and which were to be cut up and recycled. It was clear on the evidence of Mr Goodsell that there were two sorts of defective blocks that might be put in that stack: those which had failed the Quality Control procedures (because, for instance, they had not attained the required density specification); and those which had been rejected because of a visual inspection after the blocks had come out of the moulding machine.[106]There was a debate about how many blocks were in this stack at the time of the fire. Mr Higgins originally said 40, but later changed that to 20. Mr Goodsell also said 20. I have concluded on all the evidence that there must have been more than 20 blocks in the reject store, and that there were probably between 30 and 40. Otherwise, on the agreed evidence that it took 2.5 minutes to cut up a block on the hot wire cutter, Mr Abbas would have quickly run out of work on the night shift. However, I consider that Mr Abbas was wrong to say that this area was as large as 45 foot by 15 foot on the night of the fire. Mr Goodsell’s evidence was that the reject area was about 8 foot by 10 foot, and Mr Michael Edge said that he thought it was 8 foot by 12 foot. I find it was probably bigger than that, but perhaps not by much, and that it was not as big as indicated by Mr Abbas. It was agreed that, again, this reject stack was about 10 or 12 foot high. It was also agreed that there was an alleyway, at least wide enough for a fork lift truck, between the reject storage area and the hot wire cutting machine.[107]In my judgment, the precise size of the two storage areas matters less than the undisputed fact that, at the heart of the First Defendants’ manufacturing area, there were large amounts of recently-moulded blocks that were not compartmentalised and which were close to machines, like the hot wire cutting machine, that were potential sources of ignition. That, of course, was contrary to the technical literature (Section F above) and the point that the HSE and the Fire Authority had been so concerned about for so long (Section G above). As Mr Goodsell memorably summarised it in his evidence, “the upper floor areas were cramped and full of blocks.” b). The Hot Wire Cutting Machine[108]The hot wire cutting machine was the seat of the fire. It consisted of a conveyor about 15 feet long. In the middle, on either side of the conveyor, were two vertical members. Between the two vertical members were strung a number of wires, 2.8 metres in length, which were capable of being heated by electric current to a temperature of at least 200oC. The blocks were put longways onto the conveyor (i.e. with the long side facing the wires) and, as they passed through the hot wires, they were cut into horizontal layers or slices. It appears that there were seven wires on the machine on the night of the fire. As previously noted, the principal purpose of the machine was to cut up defective blocks, so that the EPS could be recycled.[109]There was considerable debate about the number and type of controls on the machine. However it appeared to be common ground that there was an on/off switch, an emergency stop, an ordinary stop button and a start button. There was also a dial for controlling the speed of the conveyor.[110]There was a dispute about whether there was an additional dial for controlling the heat of the wires. It was the Claimants’ case that there was such a dial. It was the First Defendants’ case, at the outset of the trial, that there was no such dial at all; later, that stance was modified, and they instead alleged that, although there was a temperature control, it was locked away, and the only way for an operator to change the heat in the wires was to go inside the locked control box on the side of the machine.[111]On the evidence, I have reached the firm conclusion that there was a dial on the control panel which allowed the operator to control the heat of the wires. That was the clear evidence of Mr Sayeed Abbas, a witness ultimately called by the First Defendants who was, of course, operating the machine on the night of the fire. That was also the unequivocal evidence of Mr Sutcliffe, the man who had used the machine before Mr Abbas on the night of the fire and probably knew it better than anyone else. In addition, Ms Footit, another of the First Defendants’ employees who had used the machine and gave evidence before me, also said in terms that the machine had such a control.[112]The other dispute about the hot wire cutter was the existence of any interlock systems which would cut power if there was a problem. It was common ground that there was no automatic interlock that stopped the hot wire cutter if one of the wires broke. But in addition, the Claimants maintained that there was also no interlock that would have automatically stopped the machine if the conveyor jammed. The First Defendants submitted that there was such an interlock. Other than Mr Michael Edge’s assertion that there was an interlock which fulfilled this function, there was no other evidence to support the First Defendants’ position. Certainly, neither Mr Higgins nor Ms Footit could say that there was such an interlock, and it could not be pointed out on the wiring diagrams of the machine that were available in Court. On the other hand, Mr Howe, the Claimants’ polystyrene processing expert, who I find to be a very meticulous witness, explained in some detail how and why there can have been no such interlock on the hot wire cutter where the fire started. Further, I am bound to note that the absence of an interlock was entirely consistent with the First Defendants’ written stance that they did not want to introduce interlocks because they reduced the vigilance of the employees: see paragraph 92 above. More significantly still, the German manufacturers of the machine, Pantel and Bromser, in answer to written questions from Mr Howe, said in terms that the hot wire cutter had no interlock that stopped the machine if the conveyor jammed (see the email exchanges between 7.3.05 and 17.3.05). Accordingly, on all the evidence, I am bound to conclude that the hot wire cutter did not have an interlock of any sort. Accordingly, the First Defendants failed to comply with one of the key recommendations of their own risk assessment document (see paragraph 89 above). c). Earlier Fires On Cutting Machines[113]I consider it of some importance that, on the evidence before me, the fire that started on the hot wire cutting machine on 6th August 2003 cannot be regarded as an unusual event at Unit D. I have already noted that, in the HSE report of 9 March 1998, there was an undisputed reference to fires occurring “at one of the early cutting stations, just after the polystyrene had been formed into blocks”. In addition, there was other evidence that there had been an ongoing problem with small-scale fires at Unit D prior to the fire in August 2003. I identify some of that evidence below.[114]On 7th August 2003, the First Defendants’ insurers appointed Mr Hotchkiss as a forensic fire expert to investigate the cause of the fire. He immediately interviewed a large number of the First Defendants’ employees, including Mr Mallison, who was the First Defendants’ Cutting Manager. Mr Hotchkiss’ notes of that interview were broadly accepted as accurate by Mr Mallison in his cross-examination, although he endeavoured to say at one point that he was mainly talking about old-fashioned cutting machines, and not the machine where the fire started. I reject that qualification; after the fire, Mr Hotchkiss would not have been interested in machines other than the actual machine where the fire had apparently started. This is confirmed by the notes themselves, which expressly referred, amongst other things, to a fire only the week before:
“If wire snaps - ? stop and pull out. Otherwise – wire can sag and contact other wires below – if two wires are bridged wire ends glow and wires break. If block snags – wires overheat. Wires snap or ? Hasn’t seen fire because of this cause but wires glow. John had fire five years ago on ? cutter. Used CO 2 extinguisher. Some CO 2 extinguishers refilled Thursday before fire. Small fire on third cut machines put out with fire extinguisher – wire break Thursday before main fire. 2/3 extinguishers used.”
[115]Mr Hotchkiss also recorded Mr Michael Edge, again after the fire in August 2003, talking about “occasional incidents where ignition of block [on a hot wire cutting machine] has occurred”. More significantly still, Mr Hotchkiss recorded Mr Sutcliffe as saying that “if wire snaps-can sometimes cause a fire”. Mr Sutcliffe’s witness statement in these proceedings, at paragraphs 30-33, expanded on this considerably, and his evidence on this important topic was not significantly challenged. Mr Sutcliffe said that there were a lot of small fires on the hot wire cutting machines, including “fires on the very machine that Mr Abbas was using”.[116]The fact of a small fire on Thursday 31st July, 6 days before the fire with which this action is concerned, was confirmed, not only by Mr Mallison in conversation with Mr Hotchkiss (paragraph 114 above), but also by the invoices from Pegasus Fire Protection. Copies of these documents, which were sent to the First Defendants but which, like many of the documents in the bundles, were obtained by the Claimants, showed a number of occasions when fire extinguishers at Unit D had been refilled. There was a call-out visit by Pegasus on the 31st July to refill 3 extinguishers and supply and fit pins and tags and one horn. That was entirely consistent with the fire that Mr Mallison had mentioned to Mr Hotchkiss. It was, I am afraid, not untypical of the First Defendants’ overall stance that, despite this, Mr Higgins was prepared to say, on oath, that the invoice definitely did not show that a fire had occurred on that date. For the avoidance of doubt, I find, on the evidence of Mr Mallison, both at the trial and as recorded by the First Defendants’ insurer’s fire expert; the evidence of Mr Sutcliffe; and the Pegasus call-out record for the very day identified by Mr Mallison, that there had been a fire at Unit D, on a hot wire cutting machine, less than a week before the catastrophic fire with which I am primarily concerned.[117]Mr Higgins denied that this fire, or any other fires, had been reported to him, although, to the extent that it could be said that the First Defendants had any sort of reporting system, he was the person to whom fires should have been reported. Thus it seems clear that incidents occurred which plainly should have been reported to Mr Higgins, but which, on his evidence, were not. That was, in my view, a significant failure in the First Defendants’ overall safety system, and a graphic illustration of the prevailing culture at the First Defendants, where everyone appeared to treat fires as simply an inevitable fact of manufacturing life, and they therefore failed to take proper steps to prevent fires from re-occurring.[118]I am satisfied, for all the reasons set out above, that small fires were, and were accepted as being, a consistent and inevitable feature of the First Defendants’ manufacturing processes at Unit D. This therefore confirms the fact that, long before the fire in August 2003, both the HSE and the Fire Authority had been right to be concerned about the fire hazards inherent in the polystyrene manufacturing business of the First Defendants. d) Mr Sayeed Abbas[119]It was Mr Sayeed Abbas who was operating the hot wire cutting machine at the time of the fire on the 6th August 2003. Accordingly, before coming on to his evidence as to the circumstances of the fire, it is necessary to consider his employment background and training with the First Defendants.[120]Mr Abbas started work with the First Defendants in April 2003, about three and a half/four months before the fire. For most of that period he was employed on the lower floor of their factory in the packaging department. As part of his duties in that department he operated a hot wire cutting machine to cut up boxes. He did not operate that machine more than two or three times a week. In cross-examination, he said that he had had no real training on the hot wire cutter in the basement but that a man called Robert had shown him how to operate the machine.[121]As to the general levels of training and safety instruction which Mr Abbas received, the evidence was confused. In his original signed statement, prepared on behalf of the Claimants, Mr Abbas said: “21. I have been asked whether I was given any training in fire safety when I joined SPI Limited. I can say that fire safety was never mentioned to me and I was certainly given no training. Nobody told me anything about what I should do in the event of a fire and nobody showed me the location of any of the fire extinguishers in the premises, or where the fire alarm points were located.[22]I was not told that there was any fire risk on the job that I had been given on the hot wire cutting machine. Nobody told me that the machine could catch fire if a wire broke and nobody mentioned any fires having occurred in the past on these machines….I have never been trained how to use fire extinguishers, or what the different types are used for.”[122]However in his most recent statement, prepared on behalf of the Defendants, and dated 15.6.05, Mr Abbas stated that he wished to change paragraph 22 and that paragraph 21 was incorrect. However, the statement did not make clear what the changes were that he wished to make to paragraph 22 or what the errors were in paragraph 21. I find that it is much more likely than not that Mr Abbas’ first statement, that he was given no relevant instruction/training, was correct and that his later statement was untrue. My detailed reasons for this conclusion are set out, in the context of Mr Abbas’ radical change of story concerning the start of the fire, at paragraphs 147-169 below.[123]Further, when he was cross-examined on this topic, Mr Abbas accepted that certainly Mr Higgins, the Manager of Mr Abbas’ department, did not give him any training in fire precautions or the operation of fire extinguishers, and provided no induction at all into fire safety and fire prevention. He also confirmed that there were no fire drills. Although he said that another man, identified as Mr Zahir Bashir, showed him a fire extinguisher and how it worked, and the locations of some of the extinguishers and fire exits, I reject that oral evidence and prefer Mr Abbas’ original evidence set out at paragraph 121 above. But, even if I was wrong about that, and Mr Abbas’ oral evidence is to be accepted, his description of the rudimentary instruction from Mr Bashir made it clear that the fire precautions training that he received was completely inadequate.[124]When Mr Higgins gave evidence, he disagreed with Mr Abbas, saying that he had inducted Mr Abbas in fire safety/fire prevention procedure. He said that this one-off session had been in English and that Mr Abbas’ command of the English language was “fairly good”. He therefore maintained that Mr Abbas was wrong to say that he had not given Mr Abbas any fire instruction. I reject Mr Higgins’ evidence on this point. I think it much more likely that Mr Abbas’ recollection is correct: he will recall what happened to him much better than Mr Higgins, who was responsible for so many other employees in 2003 and thereafter.[125]In addition, I must note that Mr Abbas gave evidence throughout by way of an interpreter. It was clear to me that his command of English was rudimentary, which was why, for instance, his interviews with Mr McKeating and Mr Hotchkiss took place in the presence of his wife, who spoke better English and could translate where necessary. Accordingly, if (which I do not accept) Mr Higgins did give Mr Abbas any sort of induction, it is unsurprising that Mr Abbas could not recall it, since the induction would have been in English and would not have been understood by Mr Abbas. In my judgment, therefore, if Mr Higgins is right, it again demonstrates the slap-dash nature of the First Defendants’ approach to training and fire precautions. For all these reasons, I am satisfied that the general level of training and instruction in fire safety given to Mr Abbas was either non-existent or, at best, patently inadequate, particularly given the obvious language difficulties which meant that Mr Abbas required particular instruction in order to ensure that he understood what the fire precautions were. Contrary to the HSE Guide (paragraph 73 above), he was given no written procedure or instructions which told him, in his own language, what he should do in event of fire.[126]The inadequate nature of the fire training given to Mr Abbas was borne out by the evidence of another employee of the First Defendants, Mr John Sutcliffe who said, at paragraph 34 of his statement:
“I cannot remember ever having a fire drill. That is not to say there definitely never was one, but I would have thought that I would have remembered if there had been regular fire drills. I knew how to use a fire extinguisher, but I cannot remember who it was who showed me how to use one.”
[127]On this point I should also note that, at paragraph 10.3 of his report, Mr Howe sets out the reasons why he considered that the training given to Mr Abbas in respect of fire extinguishers was inadequate. His criticisms mirror the points that I have set out above. Therefore, on the basis of the factual evidence that I heard, I accept Mr Howe’s criticisms of the First Defendants’ training regime.[128]On the 28th July 2003, Mr Abbas first worked on the hot-wire cutter on the upper floor that was the seat of the fire. This date was identified in paragraph 3 of Mr Abbas’ original statement, which his most recent statement confirmed to be correct. It was also noted by Mr Hotchkiss during his interview with Mr Abbas on the 7 August 2003, the day after the fire. Accordingly, as Mr Hotchkiss noted, Mr Abbas had worked (intermittently) on the hot-wire cutter for just one and half weeks before the fire.[129]It is clear from the evidence that Mr Abbas was not given any real training on this hot-wire cutting machine either. At paragraph 5 of his original statement, which was confirmed to be accurate by his most recent statement, he said:
“5. I recall that the person who showed me how to do the job was called Andy. It took him approximately 10-15 minutes to show me what to do and after that I was left to continue working alone. The hot wire cutting machine had controls to adjust the speed of the conveyor and the temperature of the wire. However, I never touched these controls, which were set by the workers who had used the machine before me.”
[130]During the ten days between the 28th July and the date of the fire, Mr Abbas used the hot wire cutting machine from time to time. In his evidence he described putting the blocks longways on the conveyor and pressing the start button. He said that the wires then got very hot and the block would then move along the conveyor and be cut by the hot wires into strips. Once the block had gone through the wires, he would stop the machine by pushing the red button and then put the cut-up bits into the granulator. He also said that when the block that was being cut was about half way through the wires he would put another block on the conveyor behind it.[131]On Tuesday the 5th August, the day before the fire, Mr Abbas said that he experienced problems with the machine. Specifically, two of the wires on the hot wire cutting machine broke and he did not know what to do. He said in evidence that, as a result, somebody came to give him training as to what to do when the wires broke. This person was Mr Sutcliffe, who spoke to Mr Abbas about the broken wires that day. Mr Sutcliffe’s evidence to me was that he was upset about this incident, and what he plainly regarded as Mr Abbas’ mishandling of the machine. At paragraphs 41-42 of his statement Mr Sutcliffe said: “41…I had made a complaint the day before the fire to my line manager about Mr Abbas. He had left the machine with the wire snapped and it had taken me about an hour to set it up again at the beginning of my shift.[42]So when I saw Mr Abbas on the afternoon of the fire, I showed him how to use the machine again and how to fix the wires onto the machine, if they snapped.”[132]Accordingly, on the afternoon of the fire, Mr Sutcliffe had showed Mr Abbas how to fix the wires if one or more of them should break. Then, accordingly to Mr Sutcliffe, the hot wire cutting machine was left for Mr Abbas with all the wires intact, with a temperature setting of 50, and with the conveyor speed set at 4. Mr Sutcliffe then left the factory, and Mr Abbas took over the machine. Mr Abbas said that he was told not to touch the temperature and speed controls, and he plainly would not have known what to do with them in any event, since he had not been trained in their use. As noted above, it appears that there were not very many employees working at Unit D on this particular shift; on the upper floor, there was just Mr Abbas towards the eastern end of the upper floor, and the four Polish workers, in the charge of Mr Chris Godwin, at the western end. I am in no doubt that Mr Abbas, untrained and working in a different department and on a new machine as he was, should never have been left to operate the hot wire cutter unsupervised. ITHE FIRE I1Overview a). Introduction[133]As I have previously noted, on the face of the pleadings, there is no debate that the fire commenced on the hot wire cutting machine that was being operated by Mr Abbas. I find that, in any event, the evidence admits of no other conclusion. Further, although there were some small differences as to timings and the spread of the fire, there was no significant debate about the action taken by the Fire Brigade once they had been notified of the fire. Essentially, the real dispute between the parties concerned the circumstances in which the fire started and the cause of that fire. Accordingly, it is appropriate to set out below some of the relevant timings and the evidence as to the fire-fighting efforts, before going on to consider in greater detail the evidence as to the commencement and cause of the fire. b) Timings[134]On the evidence before me, it would appear that the fire started at about 8.20pm on the evening of the 6th August. This is consistent with the first call to the Fire Brigade that was logged on the Fire Brigade Computer at 8.25pm. The Computer recorded that the first Fire Engines arrived on the scene at 8.29pm.[135]This sequence is also consistent with the evidence of Mr Mends, a Director of the First Claimants. Mr Mends told me that, in Unit B, they were working their second shift and there was a meal break between 8.00 and 8.30pm. During that meal break, the smoke alarms in Unit B went off. As a result of those automatic detectors, the Claimants realised that there was a fire and were able to evacuate their premises. I am therefore bound to comment that the Claimants became aware of the fire, not because of any automatic detection system at Unit D, where the fire started, but because of the automatic detection system which the Claimants themselves had installed in their own premises.[136]As I have said, all of the evidence before me was consistent with the timings set out above. It is, however, right to note that, in the records of the Fire Brigade, there was a reference to a nearby resident, Mr Sykes, who thought that he had seen fire at the gable end at about 8.00pm. The fire officers explained how this evidence was completely inconsistent with all the rest of the evidence as to the timings of the fire. On behalf of the First Defendants, Mr McGee put to a number of witnesses the possibility that the fire was already raging at 8.00pm in accordance with Mr Sykes’ observations. Each of the witnesses to which this suggestion was put dismissed it as being completely inconsistent with all the rest of the evidence. It seems to me that, for precisely the same reason, I should also dismiss the suggestion that the fire was already raging by 8.00pm. As I have said, no witness before me made any such suggestion. c) The Fire-Fighting Efforts[137]Sub-Officer Greenup was on detachment at Odsal Fire Station, Bradford, when the alarm call was received. Although he was unfamiliar with the area, the location of the fire was apparent as soon as they left the Fire Station because of what he described as “the large pall of black smoke … rising into the sky from the incident.” He arrived at the scene at 8.29pm. On arrival he could see at once that Unit D was effectively lost. He decided that the fire was so serious that the incident should be made a “fourth alarm” incident increasing the attendance of the Fire Brigade to 11 pumping engines. This decision, taken at 8.32 pm, was made because, as Mr Greenup said, “it was very clear to me that we were dealing with a large fire.” He also said:
“I should mention that because of the extent of the fire there was simply no prospect of sending crews into the burning building to fight the fire at close quarters. As indicated, my strategy was to prevent spread into the premises to the north. It would then be possible to consider the best way to extinguish the fire in the southern part of the building as resources became available.”
[138]As a result of the fire being give “fourth alarm” status, Senior Divisional Officer Martyn Redfern was alerted and arrived at the site to take charge of the incident just after 9.00pm. Also in attendance during this period were Assistant Divisional Officer Brian McKeating and Temporary Assistant Divisional Officer Melvyn Holmes.[139]In his statement, Mr Redfern gave greater detail of what was involved in the designation of the fire as a “fourth alarm”. He said:
“This requires the attendance of 11 pumping appliances together with ancillary units. These included a rapid deployment safety crew, a major salvage unit, an incident support unit, a hose layer and a command unit. Certain of these ancillary units were also accompanied by further support pumping appliances.”
[140]Mr Redfern estimated that about half of the planned fourth alarm attendance had arrived at the fire ground just after 9 o clock. In addition to the jets, an aerial appliance was set up on the eastern elevation and a second arial appliance was set up to cover the south western portion of the premises. At this point the fire was very intense. Mr Holmes said that the whole building was involved and that the roof had collapsed over unit D, with the ground (upper) floor burning “from end to end”.[141]Just before 10.00pm, command of the incident was taken over by the Brigade’s Chief Fire Officer, and Mr Redfern continued as Operations Commander. By about 10.30pm, according to Mr Redfern, “it was apparent that the fire fighting activities in Section 3 were successfully knocking down the fire in SPI’s ground floor premises.” Mr Redfern went on:
“At this stage I strongly suspected that the fire at the eastern end of the ground floor was being sustained by burning in stock situated in the basement of the premises. A covering jet was set up and the sliding door into the basement was pulled off using a forklift truck and chains. All that came out was quantities of black smoke. There was no sign of flames.”
[142]A little later, Mr Redfern said that there now were flames coming from a fire in the polystyrene stored in the basement area and that “the venting of the fire in the basement onto the level above was making it difficult to extinguish the fire on the ground floor.”[143]Mr Redfern concluded:
“Once the existence of severe fire on the ground floor was discovered, it was apparent that we were not going to be able to quickly extinguish the fire in the premises. Accordingly the decision was taken to stand down a number of the crews and to wait until the fire subsided before attempting final extinguishment.”
The Chief Fire Officer left the site just past midnight and Mr Redfern again assumed overall command. He left the scene about 45 minutes later. It appears that, by morning, the worst of the fire was out, although it continued to burn for several days.[144]During his cross-examination of the Fire Officers, Mr McGee, on behalf of the First Defendants, suggested to them that there was a particular problem as a result of the gas main round the Unit D premises. I am bound to say that it was never entirely clear during this cross-examination what the particular problem was or what relevance it had to the case. But in any event, all of the witnesses dismissed the point out of hand and rejected any notion that the location or existence of the gas main was anything other than a standard feature of premises such as this. Mr McKeating said in terms that it was irrelevant to the cause of the fire. Mr Redfern explained that “it took a little while for the gas to be shut off but that that was one of the many things that happen in the middle of a fire.” Accordingly, to the extent that the First Defendants relied on the existence of the gas main as being of any relevance to the cause or the spread of the fire, I expressly reject that suggestion. I therefore turn to the principal matter between the parties concerning the fire, namely the circumstances in which it started and the cause of the fire itself.

I 2The Relevant Evidence As To The Circumstances And Cause Of Fire

[145]There are three sources of evidence as to the circumstances and cause of the fire. They are: a) The contemporaneous records, in particular those made by the fire investigators appointed by the Claimants and the Defendants’ insurance companies and those made by the officers responsible by the Fire Authority. That evidence is addressed in Section I 3 below. b) The witness statements and oral evidence in these proceedings. That evidence is addressed in Section I 4 below. c) The expert evidence, in written reports and oral evidence, in the proceedings. That evidence is addressed at Section I 5 below.[146]I should say that, for obvious reasons, I place particular emphasis on the material addressed in Section I 3 below, namely the contemporaneous records made by Mr Hotchkiss, the Fire Investigator appointed by the First Defendants’ insurers, and the evidence obtained by the officers of the Fire Authority. This information was provided to professional men with no personal interest in the outcome of any dispute as to the cause of the fire. More importantly still, this information was provided by those most closely involved in the fire immediately after the fire had occurred. Inevitably therefore, such evidence must remain by far the most reliable evidence as to the circumstances, and therefore cause, of the fire. I 3Contemporaneous Evidence a). Mr Sayeed Abbas[147]On the 7 August 2003, the day after the fire, Mr Abbas was interviewed at his home by Mr McKeating and Mr Holmes of the West Yorkshire Fire Service. The notes, which Mr Abbas signed, read as follows:
“At approx 20.30 I was operating a cutting machine on the first floor. There are seven cutting wires operating at high temperature. A block was half way through being cut when it caught fire. I ran to the floor below to get a fire extinguisher. When I returned four others were using extinguishers to tackle the fire. It became very hot and smoky so we all left the premises. …”
[148]Mr McKeating said that, when giving a more detailed explanation as to the precise moment when something went wrong, Mr Abbas told him that, when the block was half way through being cut, he heard a noise. Mr McKeating said:
“Mr Abbas described the noise as a sort of hissing sound, he used the word “toast” to describe it. He said that the sound was caused by one of the cutting wires snapping. He appeared to be familiar with that noise, and I understood from what he said that it was common knowledge that this sound resulted when one of the wires breaks.”
[149]In his evidence in chief, Mr McKeating confirmed that Mr Abbas had first used the word “toast” to describe the noise made at this interview on the 7th August, and that, because Mr Abbas’ English was not very good, Mr McKeating clarified it with Mr Abbas’ wife. She confirmed that that was the sound of “the wire going”. In cross-examination Mr McKeating said firmly that the word was not used for the first time by Mrs Abbas but had been used by Mr Abbas to describe the noise of the wire breaking. In this evidence, Mr McKeating was supported by the evidence of Mr Holmes who gave exactly the same account. Mr Holmes confirmed that Mr Abbas did not appear uncertain about his account of the fire, but was instead confident that what he said was an accurate explanation of the circumstances of the fire.[150]On the same day, the 7th August, Mr Abbas was also interviewed by Mr Hotchkiss. Mr Hotchkiss’ notes record Mr Abbas as saying as follows:
“8.30. Two blocks. First ok. Second block – half way through, heard a hiss…saw smoke and fire, lot of black smoke. Frightened. Didn’t switch machine off as so much smoke being produced. Didn’t want to go near machine. Next I get fire ext – went down stairs because didn’t know where extinguishers were upstairs – couldn’t find door because lights off. Went back up. Other workers trying to put fire out with extinguishers.”
[151]This entirely separate record of Mr Abbas’ description of the fire, also provided on the 7th August was, of course, entirely consistent with the account that he had given to Messrs McKeating and Holmes. So too was the further account he gave 6 days later, on the 13th August 2003, again to Mr Hotchkiss. In Mr Hotchkiss’ notes of that interview, Mr Abbas was recorded as saying:
“Standing where blocks loaded when heard “toast” sound. Then 5-10 seconds. Smoke came then. Flames in area of frame but not sure exactly where from. Not told could be a fire if wire broken. Not told to do if wire broke other than to turn machine off remove broken wire and fit replacement.”
[152]The two sets of notes prepared by Mr Hotchkiss were then put into a statement for Mr Abbas to sign. It was the first signed statement that Mr Abbas ever produced, being dated the 26th August 2003, just 3 weeks after the fire. At paragraph 9 of that statement Mr Abbas said:
“The first block went through the machine without any problem (as had all the blocks that night). When the second block was approximately half way through the hot wires I heard a hissing sound which lasted for approximately one second or so which sounded like the word “toast”
. I did not know what the hissing was and at the time I thought it might have been made by one of the moulding machines. Approximately 5-10 seconds later I saw flames and a large quantity of black smoke coming from the block that was part way through the wires. I’m not sure exactly where the flames and smoke were coming from as so much smoke was being produced. I do not remember if there was a fire extinguisher near the machine controls. Although I was only standing a few feet from the controls, I was frightened to approach the machine because of the amount of smoke that was being produced and I did not switch it off but went to find a fire extinguisher. I was not familiar with where the fire extinguishers were kept on the first floor so I ran down to the ground floor where I normally worked. However, when I got to the ground floor I could not find any fire extinguishers because the lights were off. When I came back up to the first floor some of the other workers were already trying to put the fire out with fire extinguishers.”[153]Accordingly, it seems clear beyond doubt that Mr Abbas gave precisely consistent accounts of the circumstances in which the fire arose to all those who asked him about it in the weeks immediately following the fire. b). Others Present[154]On the 8th August 2003, Mr McKeating interviewed the four employees on the upper floor who were referred to collectively as the Polish workers. They were Andrzej Godwin, Stan Godwin, Dymitri Chomantes and Bogdan Ostrowski. This interview, which Mr McKeating also wrote up, was carried out in the presence of Mr Hotchkiss, who also made a note of what the witnesses said. There was a very close similarity between the notes produced by Mr McKeating and the notes produced by Mr Hotchkiss. I set out briefly below the key elements of the notes prepared by Mr McKeating.[155]Mr Andrzej Godwin:
“He first noticed the fire when he smelt the smoke. He turned towards the cutting table to see it involved in fire. At this stage it was mainly the polystyrene block on top, and part into, the cutting machine that was on fire. He picked up the portable fire extinguisher near his own work station and ran towards the fire. The fire very quickly spread to a second block on the same table.”
[156]Stan Godwin:
“He smelt smoke and saw the fire…he picked up a portable fire extinguisher and tried to extinguish the fire. As he was fighting the fire he noticed it spread very quickly from the cutting table to the polystyrene stock surrounding the table.”
[157]Bogdan Ostrowski:
“He was moving some blocks of polystyrene when he saw the fire. The fire was in its early stages and was confined to the polystyrene block on top of the machine. The block appeared to be stuck in the machine. Bogdan fought the fire until the extinguisher was empty but as it was not extinguishing the fire he decided to try to escape.”
[158]Having noted the comments of the various personnel present, Mr McKeating concluded his notes as follows:
“The information received from the above interviews supports the events as described by Sayeed Abbas, the operator of the cutting table when the fire started. At this stage there is no doubt that the fire started within or on the cutting table as a polystyrene block was being cut. It is not clear at this stage as to what actually went wrong with the machine to start the fire. The seven wires fitted to the machine are heated by electricity, which allows them to cut the polystyrene as it passes through the machine. The operator stated he heard one of the wires break. He did not stop the machine immediately, and ran to get an extinguisher when he saw the block was on fire. Further investigation is required to establish the cause of the fire within the machine. It is not yet possible to determine if the broken wire can cause a spark if it comes in contact with other parts of the machine or if sufficient heat can build up to cause a fire when the block becomes stuck.”
[159]Finally, in this review of the contemporaneous records of the circumstances and cause of the fire, it should also be noted that Mr McKeating filled out a Fire Investigation Pro-Forma document which recorded that “witness reported polystyrene block as first ignited"; that “witnesses all report origin of fire as cutting table”; and that “polystyrene – very large quantities” was the “material mainly responsible for fire development.” I 4Witness Statements And Oral Evidence a). Mr Sayeed Abbas[160]Mr Abbas produced two written witness statements in these proceedings on behalf of the Claimants. They were both dated 17th February 2004 and were prepared by Dr Beeley, the Claimants’ fire investigator. They were entirely consistent with the account of the fire that Mr Abbas had given to Mr Hotchkiss and Mr McKeating in August 2003. It is unnecessary to set them out in any great detail but at paragraphs 15 and 16 there is a description of what happened at the critical moment which was almost exactly the same as the description which, entirely independently, Mr Abbas had given to Mr Hotchkiss. These paragraphs read as follows: “15. The first block went through the machine without any problems. About half way through the cutting of the second block I heard a noise. At that time I was standing close to the control panel of the machine near position J. I would describe the noise as a hissing sound. It sounded very much like the word “toast” and lasted for about a second. At the time I did not think the noise meant that anything was wrong with the machine. I’d never heard this noise before and I thought it had been made by some of the other machinery that was in operation nearby.[16]About ten seconds after I’d heard the “toast” sound I realised there was a problem on the hot wire cutting machine. The smoke was thick and black and there were some small flames. I cannot say exactly where the smoke and flames were coming from. When I saw the smoke I was very concerned. It did not occur to me to switch off the machine at the control panel; all I could think about was finding a fire extinguisher to try to fight the fire.”[161]About a month before the trial, Mr Abbas informed the Claimants that he wished to withdraw parts of these written statements, including those paragraphs set out in paragraph 160 above, and that important information, that he had freely given to Mr Hotchkiss and Mr McKeating in the immediate aftermath of the fire, was untrue. In particular, he now said that he had not been at the machine when the fire started and that he had turned the machine off and gone down stairs to the toilet, only discovering the fire when he returned.[162]A new statement was signed by Mr Abbas on the 15th June 2005. This statement was prepared by the First Defendants. The key passage in this new statement was at paragraph 6 which read as follows:
“The area where I was working became messy about 8.00pm. I switched off the hot wire cutting machine using the stop button on the top of the control panel. I then turned another off-switch which was a lever on the side of the panel. The machine was definitely switched off as the lever turned the power off to the machine completely. I then put a single block on the machine which was not touching any wires and cleaned up. I swept the floor and put everything in a bin which was near to the machine. I then decided to go to the toilet in the basement. It was about 8.30pm. I walked across the ground floor to the stairway which lead to the basement canteen. I walked down the stairs and then walked to the toilet block which was in the corner of the basement. I was in the toilet from between five and seven minutes. I then walked back the same way I came. When I was walking up the stairs I heard a strange noise. The fire alarm then went off. When I got to the top of the stairs I saw smoke and flames coming through the open doorway. I could see my machine and I could see flames and smoke around the machine. When I got back to the machine four people were fighting the fire with fire extinguishers. They told me to go and get a fire extinguisher which I did from the top of the stairs next to the canteen where there were three or four fire extinguishers to help fight the fire. The flames were about 3 metres high above the machine but not yet touching the roof. I cannot remember anything burning on the floor or in the bin where I had swept up. The flames quickly hit the roof and we could not control the fire.”
[163]In cross-examination, Mr Abbas maintained that, before he went downstairs, he turned the machine off using the red button and that he also switched the side switch off as well. He said that there was a polystyrene block which was left on the machine, but that it was not touching any of the wires.[164]In respect of all of the contemporaneous statements and accounts that he had given to Mr Hotchkiss and Mr McKeating, amongst others, Mr Abbas was emphatic. He confirmed that he did give to them the accounts which they had recorded but that, at the time that he gave them, as he put it, “I was lying”. Specifically, he said that his use of the word “toast” to describe the hissing sound was “not true”.[165]Of course, this new, and radically different, version of events raised an obvious question: why, if what Mr Abbas now said was true, had he lied so repeatedly to Mr Hotchkiss, Mr McKeating and others for the best part of two years? Mr Abbas’ explanation was that he had lied to protect himself ; that he was frightened that he would get into trouble because the fire had started on his machine; and that his previous version was invented to deflect blame away from himself. He was asked in cross-examination why he had made up these accounts. He said:
“At that time I had to go to Pakistan within three weeks. I was very frightened. I was very worried that somebody would blame me. That I would be prevented from going.”
[166]There are three separate reasons why I am quite unable to accept Mr Abbas’ new version of the events surrounding the fire, as set out in paragraph 6 of his latest statement. First, as I have said, I am entirely satisfied that the contemporaneous nature of Mr Abbas’ accounts as set out in Section I 3 a) above, and their complete consistency, one with another, makes them overwhelmingly likely to be true.[167]Secondly, I am unable to accept Mr Abbas’ explanation as to why he lied so extensively and for so long. After all, his new version of events, that he had turned the machine off and gone to the toilet, was much less likely to get Mr Abbas into trouble than his original, allegedly untrue explanation, which had the fire starting as he worked on the hot wire cutting machine. I asked Mr Abbas to explain why he considered that his original explanation, provided to Mr Hotchkiss, Mr McKeating and others, excused him from potential blame, and what there was in the new version of events that caused him to be so frightened that he had covered it up for two years. Mr Abbas was quite unable to answer those questions. I therefore reject the explanation that he gave as to his reasons for covering up his latest account of the fire. Indeed I am quite satisfied that the position is, in truth, the other way round, and that Mr Abbas was troubled that his earlier (correct) account of the fire might well get him into trouble, whilst his latest (untrue) account, exculpated him completely.[168]The third reason why I reject Mr Abbas’ latest version of events is because, so it seems to me, it is so far-fetched. Nobody even tried to explain how the fire could have started in or around the hot wire cutting machine if that machine had been turned off. As Dr Beeley said in cross-examination, he rejected Mr Abbas’ explanation because it was simply inconsistent with all of the other information that had been gathered. I agree with Dr Beeley. I do not consider that any alternative argument is even tenable.[169]In all the circumstances, I wholly reject Mr Abbas’ last-minute attempt to rewrite the story of the start of the fire. I am satisfied that the version of events that he gave to Mr Hotchkiss and Mr McKeating was accurate because it was contemporaneous; because it was repeated on a number of different occasions to a number of different people; because it was consistent with all the other evidence; and because it was palpably not a version of events designed to protect Mr Abbas from potential criticism. Indeed, there was nothing about it which sought to shift the blame away from Mr Abbas, in contrast to the new version which, I find, was expressly designed to exculpate Mr Abbas. For all these reasons, therefore, I accept Mr Abbas’ contemporaneous evidence, as supported by the witness statement prepared by Mr Hotchkiss and the two statements prepared by the Claimants, and I reject the statement made on the 15th June 2005 and referred to at paragraph 162 above. b) Other Witnesses[170]No other witnesses of fact gave evidence to me as to the circumstances surrounding the fire. Accordingly, the only material available from those witnesses is the set of notes taken by Mr McKeating and Mr Hotchkiss, referred to at paragraphs 154-159 above. I accept, of course, that I must be very careful in respect of such material because it could not be challenged in cross-examination. However, I consider that, at the very least, that contemporaneous material supports the Claimants’ case, admitted on the face of the Defence, that the fire started at the hot wire cutting machine, and spread quickly to the surrounding blocks. It is material which, as Mr McKeating correctly pointed out at the time, is entirely consistent with the original account of the circumstances of the fire given by Mr Abbas, and which I have accepted for the reasons set out above. I 5Expert Evidence As To The Cause Of The Fire a). Introduction[171]The Claimants called two experts. Mr K A Howe gave expert evidence relating to polystyrene processing and appropriate fire precautions. Dr P Beeley gave evidence as to the cause and spread of the fire, as well as giving some evidence about fire precautions and the like. There was an inevitable overlap between the evidence of these two men. The First Defendants adduced expert evidence from the Third Defendant, Mr Michael Edge who, as set out above, was also a witness of fact. Whilst there is no doubt that expert evidence can properly be given by a Defendant on his own behalf, it is correspondingly more difficult for such a witness to fulfil his independent duty to the court. In general terms I believe that Mr Michael Edge did his best to fulfil that duty, although there were occasions on which I had no doubt that he was arguing from his own interests rather than from an objective analysis of the facts. More fundamentally, I consider that both Mr Howe and Dr Beeley adopted a much more logical and meticulous approach to the issues than Mr Edge. Accordingly, I confirm at the outset that, in general terms, I preferred the evidence of Mr Howe and Dr Beeley to that of Mr Edge.[172]The issue as to the cause of the fire really came down to this: Mr Howe and Dr Beeley had no doubt that the fire had been caused by a wire breaking on the hot wire cutting machine and snapping back to touch either another wire or the earthed frame, causing a spark which ignited the residual pentane in the block that was being cut. Mr Michael Edge, on the other hand, had various reasons for saying that, in his view, such a scenario was essentially impossible, and that, in the absence of any other theory, the cause of the fire was wholly inexplicable. Accordingly, before going on to look at some of the specific differences between the experts in greater detail, it is sensible to identify their general views and the particular points between them.[173]At paragraph 9.1 of his report Mr Howe said:
“I believe that the fire was caused by a wire breaking on the cutting machine and the resulting spark igniting the inflammable gases issuing during the cutting process and then, almost immediately, the block jammed between the slicing bars on the cutting machine and this caused the conveyor motor to trip out on overload.”
[174]Dr Beeley’s report concluded as follows: “276. The cause of the fire on the 6 August 2003 was a hot wire cutting machine used to cut up scrap blocks of EPS for recycling. The fire was probably associated with an arc or spark caused as a result of the breaking of a wire, which ignited the block being cut.[277]The EPS manufacturing process carried out by SPI was clearly associated with a serious risk of fire. This stemmed from the inherent flammability of the materials being handled, the amounts of material present and the risk of ignition attending certain of the processes being carried out. In particular hot-wire cutting is a known process fire risk.”[175]Thus, both Mr Howe and Dr Beeley had reached the same conclusion as to the cause of the fire. Moreover their conclusion can hardly be described as extraordinary, since fires caused by broken fires were, as we have seen, not an uncommon occurrence at Unit D.[176]On the other hand, Mr Michael Edge was of the view that “the fire ignition must have been down to an unavoidable accident”. This view, he said, was based on his knowledge and experience of the polystyrene processing industry and his experience of designing and building hot wire cutting machines. b). Physical Evidence[177]As I have noted, as a result of the points taken by Mr Michael Edge, there was a range of technical disputes between the experts. I go on to deal with those at Sub-section c) below. But, before doing so, I should make plain that, in my judgment, these disputes were very largely matters of academic interest only. The core issue for me to decide is whether the Claimants’ case as to the cause of the fire was, on the evidence, more rather than less likely to be correct. I have already made plain that, on the factual evidence, the contemporaneous accounts of the circumstances of the fire from Mr Sayeed Abbas and the Polish workers (which I have accepted) were wholly consistent with the Claimants’ case to causation. I have also set out the evidence that fires on hot wire cutting machines caused by wire breaks were known at Unit D long before this fire, another factor which demonstrates, in my view, that the Claimants’ case on causation is more likely than not to be correct. Does the expert evidence support or contradict that case?[178]It seems to me that the expert investigation after the fire produced evidence that leads inexorably to that same conclusion, that the fire was caused by a broken wire. Moreover, it was just about impossible for the First Defendants sensibly to challenge that aspect of the expert evidence. It is therefore appropriate to set it out in some detail.[179]At paragraph 9.2.2 of Mr Howe’s report, he said this:
“The wires from the PB machine were recovered from the scene of the fire by Dr P Beeley, the Claimants’ forensic expert, and Mr Hotchkiss of Hawkins and Associates, the Defendants’ forensic expert. If a wire had broken, this should show as ‘necking’ on two of the wires on the cutting machine, one on each side of the break. The recovered wires from the machine were examined under a microscope and photographs taken at Hawkins and Associates office. Two of the wires did show signs of ‘necking’ – figure 11 and 12. This confirms that a breaking wire was the cause of the fire on the PB machine.”
[180]As might have been imagined, Dr Beeley dealt with the evidence of the wires after the fire in greater detail in his own report. The relevant paragraphs are paragraphs 160 and 162. They read as follows: “160…It was noted that arcing appeared to have affected low voltage cables associated with the machine (photograph 29). A close up view of one of the pneumatic rams used to tension wires is shown in photograph 30….[162]The remains of a number of the cutting wires were located (photograph 32-34). These were partly fused into solidified molten glass which had fallen during the fire from glazing panels fitted at roof levels. Without the benefit of a microscopic examination it was not possible to be certain, however there appeared to be evidence of electrical arcing on one of the wires. The wires were carefully recovered. They were removed from the site by Mr Hotchkiss of Messrs Hawkins for further examination in the laboratory.”[181]Section 6 of the report of Dr Beeley is then concerned with various exhibits and experiments. Dr Beeley here confirmed that evidence of necking was apparent on examination of the wires which meant that at least one of the wires had broken. Further, in his report at section 7.4, he went on: “240. Considering all the above factors an arc or spark from a broken wire is most likely to be responsible for a fire on this type of machine and, as I understand it, this reflects industry experience.[241]In the present case the fire appears to have occurred on the top of the blocks. The physical evidence suggested that it was probably the wire from the top of the frame that had undergone arcing. The evidence was consistent with arcing persisting whilst the wire was dragged in contact with another conductor at different electrical potential. This would have increased the time for which the arc was able to burn and made it more incendive.[242]In the present instance the top slice being cut was apparently very thin. A broken wire at this point would produce an incendive spark etc in a position where a flammable mixture could more readily form. As discussed, there may possibly be further reasons why wire breakage at this location might be more likely to occur.[243]There was also evidence in terms of necking of wires to suggest other wires were over tensioned, probably whilst they were heated. It is possible that this was in some way linked to the block becoming stuck in the machine…[244]It can however be concluded, with some confidence in my view, that the fire started as a result of wire breakage and that initially it involved a small area on the top of the block.”[182]On behalf of the First Defendants Mr McGee, as he was bound to do, cross-examined Dr Beeley on these conclusions and the physical evidence upon which they were based. Dr Beeley did not resile in any way from the conclusions set out in his report. He was asked how he could identify the wires and be sure that they were the wires on the machine in question, and he explained how, having found the control panel in the wreckage once the roof was removed, the wires were found in the bed of the machine. It was suggested to him that the wires had been damaged by the collapsed glazing in the roof, but Dr Beeley was clear that the evidence of necking and arcing was not caused by the collapse but instead demonstrated the cause of the fire. He said that “there was something on the end of the wire which was consistent with arcing. The wires were then examined under the microscope in detail. That showed arcing.” He said that arcing was significant and that he (and indeed Mr Hotchkiss) had regarded it as clear evidence as to the cause of the fire.[183]Dr Beeley went on to explain that arcing on one side was consistent with one wire being dragged over the other which was also consistent with breakage. Arcing was caused by the contact between the live wire and the earth. He said:
“Accordingly, one can surmise that this was consistent with a broken wire at live voltage coming into contact with a wire at a different voltage or the frame of the machine. This was electrical arcing. It did not come about during the fire itself.”
[184]When he came to summarise his evidence at the end of his cross-examination Dr Beeley said that the fire was probably due to a spark from a wire breakage because “the physical evidence was very strong” in support of such a theory. He stressed that the physical evidence of the machine found after the fire not only made it most unlikely that Mr Abbas’ new version of events was true, but it also fully supported Mr Abbas’ original version of events. As Dr Beeley memorably concluded: “physical evidence cannot lie”.[185]Accordingly, it seems to me that I am bound to accept Dr Beeley’s clear evidence as to the physical evidence (and its significance) found after the fire. He demonstrated beyond doubt that the physical evidence is consistent only with a wire breakage and arcing, and that this was the cause of the fire. Accordingly, the Claimants’ expert evidence and post-fire investigation are entirely consistent with and supportive of Mr Abbas’ original account as to how the fire started. In my judgment, this renders of little or no account the theoretical disputes between the experts. However, for completeness, I deal with the main theoretical disputes below.

(i) Amount of Residual Pentane

[186]It appeared to be Mr Michael Edge’s view that there could not have been sufficient residual pentane in the blocks that were being cut up on the machine to start a fire. No detailed analysis was put forward in support of this proposition. Instead, the evidence put forward by Mr Edge was somewhat impressionistic, as exemplified by paragraph 15 of his statement:
“The pentane levels in the block are so low that I recall on one occasion the health and safety executive visiting my factory and testing air around the blocks stored on the factory floor and could not locate any pentane content in the air.”
[187]However, when the figures relied on by Mr Howe, and referred to at paragraph 56 above, were put to Mr Edge in cross-examination, his only real comment was that the “figures can vary quite substantially”. Whilst the technical documents contained a variety of figures for residual pentane, it did not appear that Mr Edge, from his own knowledge or from any experiment that he had done, could really quibble with the proposition that, following moulding, there was a maximum of 3.5% pentane by weight residual in the EPS. I reject the suggestion, in one unsupported document from Plastics New Zealand, that the pentane disappears altogether during the moulding process. That suggestion is contradicted by all the rest of the technical literature, and the evidence from Mr Howe and Dr Beeley, which I accept.[188]The 3.5% figure for pentane by weight after the moulding process, put forward by Mr Howe, was coupled with his figure of 4.7% of pentane by volume remaining in the polystyrene cells after moulding. That figure, explained by Mr Howe during his cross-examination, was not itself challenged by Mr McGee. This calculation demonstrated that there was more than enough pentane in the blocks after moulding to ignite, if there was a source of ignition, given that the minimum ignition level of pentane was 1.4% by volume.[189]Mr McGee spent some time endeavouring to demonstrate that residual pentane would not have existed in such concentrations because of the particular circumstances at Unit D. His first point was to suggest to Mr Howe that, given that the blocks being cut were within a large factory area, the amount of residual pentane, compared to the volume of the upper floor area, would have been tiny, and nothing like the 1.4% figure needed for ignition. However, Mr Howe said that that was not the right comparison, because the residual pentane would be within the individual cells making up the expanded polystyrene, and/or within air pockets inside the blocks. The problem, according to Mr Howe, was that, if the pentane was within these pockets in a sufficient amount, it could be ignited by the spark caused by the broken wire on the cutting machine. I accept that evidence.[190]Mr McGee’s other line of attack on this topic was to suggest that the pentane, even at 3.5% by weight following moulding, would continue to disperse thereafter and that, by the time the blocks came to be cut up on the hot wire cutting machine, a considerable further dissipation of the residual pentane would have taken place. It is certainly right that there would have been a further loss of pentane following moulding, but, on the evidence before me, I could not possibly say that the pentane would have reduced to less than 1.4% by volume, which was the minimum figure required for ignition. One reason why there was no evidence to make good such a contention was the First Defendants’ failure to put in hand the pentane monitoring exercise recommended by their own consultant in 1999.[191]Furthermore, this point was complicated still further by the significant debate in the evidence as to the age of the blocks in the reject store that were being cut up by Mr Abbas. It was the First Defendants’ case that there was a mandatory 24 hour curing period and that, therefore, the blocks being cut up would be at least 24 hours old. This, according to the First Defendants, meant that the amount of residual pentane would have reduced further before the blocks were put on the hot wire cutting machine.[192]I accept that, in general terms, the First Defendants endeavoured to operate a 24 hour curing period, although I am not persuaded that it was a very scientific process. Mr Abbas appeared to have no knowledge of it. But it seems to me that such a curing period, on the First Defendants’ own case, could only have delayed the entry into the reject stack of those blocks rejected as a result of the Quality Control procedure. Blocks that failed the Quality Control procedure might well have been allowed to cure for 24 hours before the procedure was applied, and therefore would have stood for at least 24 hours before being put into the reject stack. But there was no evidence that blocks which were rejected on a visual inspection immediately following moulding waited any time at all before being put into the reject stack. If they were put into the stack straight away, Mr Abbas would have proceeded to cut them up, given that he had not been told to do otherwise. He only had 2 or 3 hours’ worth of blocks to cut up on the night shift in any event. Accordingly, it seems to me that it was entirely possible that at least some of the blocks being cut up by Mr Abbas on the 6th August had been recently moulded, and would therefore have probably had residual pentane of up to 3.5% by weight, or 4.7% by volume, which would have been more than sufficient to cause ignition, provided there was a spark. (ii). Flammability[193]The First Defendant seemed, at least at one point during the trial, to be suggesting that the EPS was not a particularly flammable material. It was a little difficult to see where this point went, given the unchallenged evidence of the fire officers that the fire at Unit D burnt for as long as it did because of the presence of large quantities of EPS. Moreover, as Mr Howe made plain, the real problem in this case was the combination of the EPS and the residual pentane. It was the pentane that was initially ignited by the spark and would, according to Mr Howe, have been visible as a blue flame on the polystyrene block. He drew the analogy with a spoonful of brandy on a Christmas pudding.[194]Mr Howe said that, once the pentane had caught fire first, in this instance it then set fire to the block. He made it clear that this would not happen every time: as he put it, “not every wire break is a fire”. His evidence was that the fire occurred in this case because the conditions were right. In particular, he referred to the fact that the top sheet of the block being cut up was, on the evidence, very thin, and that there was a pocket of pentane within that sheet which ignited and set fire to the rest of the block. This was what the Polish workers saw when they first became aware of the fire.[195]Dr Beeley gave similar evidence. He said that polystyrene was quite a bit easier to ignite than other material. Whilst he accepted that, in the absence of pentane, he would not expect a polystyrene block to ignite readily, he made plain that the pentane, and the spark that ignited the pentane, were the key elements in the start of the fire. He also said that once the polystyrene block had ignited, it would burn readily.[196]I accept the evidence of Mr Howe and Dr Beeley. Indeed, by the time that Mr Michael Edge came to give his evidence, it was unclear what, if any, elements of their evidence on flammability he disputed. It was undoubtedly true that some of the experiments carried out by Mr Edge, in the absence of Mr Howe and Dr Beeley in October 2004, and in their presence in June 2005, demonstrated that it was not particularly easy to set fire to a block of polystyrene. However, it seems to me that that did not and could not detract from the simple proposition that, in the present case, the circumstances were such that, on this particular occasion, the block on the machine did catch fire, as was observed by the Polish workers who tried to put it out. iii). Temperature Of The Wires[197]There was a large amount of cross-examination of the experts about the temperature that the wires would have to reach in order to cause a fire. Essentially, it was Mr Michael Edge’s case that the wires might not be any hotter than 79C in order to cut through the polystyrene, and that therefore the temperatures quoted in the technical literature of 250-300C were completely exaggerated.[198]The first point to make is that, in my judgment, the temperature that the wires on this machine might have reached was irrelevant to the issues surrounding the cause of the fire. The fire was caused by a spark which ignited the pentane. The spark did not arise because of the great heat of the wires, but because one of the wires broke and touched either another wire or the frame of the machine, which in turn caused a spark. It was the spark which caused the fire, not the residual heat of the wires. Accordingly, whilst I deal with the temperature point in brief below, it seems to me that it is of no ultimate relevance to my conclusions.[199]The technical literature identified a variety of temperatures which the wires might reach. There was also a range of temperatures at which the polystyrene was said to soften and melt. It is unnecessary for me to set all that material out in any great detail. It seems to me that, from all the material that I have seen, EPS may begin to soften at 79C, although it probably does not melt until the wires are at 100C or more. I consider that, on the 6th August 2003, the wires on the hot wire cutting machine may have reached a temperature well in excess of 100C, and maybe even closer to 200 C. However, I think it unlikely that the wires achieved the temperature of 300C or more referred to in the technical literature. I accept Mr Michael Edge’s view that those figures are now out of date.[200]I should say a word about the experiments carried out in October 2004 by Mr Michael Edge, which were effectively redone in June 2005 in the presence of Dr Beeley and Mr Howe. It was Mr Edge’s case that those experiments showed that the wires on a hot wire cutting machine did not exceed a temperature of 176 C and that, at 79 C, the foam ‘softened’. Mr Howe and Dr Beeley had a number of criticisms to make about the reliability and accuracy of these experiments, and did not resile from the much higher figures in their reports. I consider that the experiments do show that temperatures of 300 C are generally unlikely, although it is equally clear that the wires could easily reach temperatures up to and even beyond 176 C. But the most important point to make is that, for the reasons which I have previously stated, these theoretical figures are of no real relevance to the issues before me, since what mattered was not the precise temperature of the wires at the time of the fire, but whether or not a spark was created following the breakage of one of the wires on the machine. For all the reasons that I have set out above, I have no doubt whatsoever that there was such a spark. d) Conclusions[201]It seems to me that the expert evidence which I accept can fairly be summarised as follows. Wires can break on hot wire cutting machines: indeed it happens all the time, and it happened on this machine only the day before the fire. It happened again on 6th August, because the physical evidence recovered after the fire showed that necking on the wires had occurred. If a broken wire touches either another wire or an earth, there can be arcing and a spark can be created. Again, the physical evidence showed that arcing had taken place. The spark thereby caused can ignite any pentane that may exist in or around the block in greater volume than 1.4%. That can then lead to fires. Such fires appear to have occurred before at Unit D. There is nothing extraordinary about such an analysis: indeed, it might be fair to describe it as a mundane and unremarkable explanation which was simply consistent with all the facts.[202]Essentially, I consider that Mr Michael Edge’s attempts to demonstrate that the fire was inexplicable were fundamentally flawed. At one point, he appeared to be arguing that, if the Claimants were right, fires would occur on the hot wire cutting machine every time a wire broke. His whole stance was summarised by his answer towards the end of his cross-examination when he said:
“I decided from Day 1 that the fire did not start on this machine.”
It seemed to me that, thereafter, Mr Michael Edge devoted himself to demonstrating that the fire did not start on the machine (despite the pleaded admission that it did) and he endeavoured to do so by demonstrating that each of the steps in the Claimant’s case on causation would not or could not have happened.[203]Mr Edge apparently failed to appreciate that the Claimants’ experts were not saying that every wire break would cause a fire. Indeed, as I have explained, their evidence was to the contrary. They were making it clear that the various steps in the sequence (residual pentane, breaking wire, spark igniting the pentane, the burning pentane then igniting the block on the machine) were all possibilities which, in the right (or, rather, wrong) conditions, could combine together and give rise to a fire. It seems to me that their collected evidence was perhaps best summarised by Mr Howe during his cross-examination when he said that, on many occasions, the wires would break and there would be sparks but there would be no fire. He said of such circumstances:
“The conditions were not right. I have said that a wire break can cause a fire. I have not said that it does. It may not because there is no appropriate gas mixture in the pockets. It depends on the conditions.”
[204]Finally, I should observe that Mr Michael Edge came much closer than he realised to accepting that the fire started in the way explained by the Claimants’ experts shortly after the fire itself had occurred. I have referred to Mr Hotchkiss’ interviews with various people in the days following the fire. Mr Hotchkiss interviewed Mr Michael Edge on 8th August 2003 and, as noted at paragraph 115 above, Mr Edge there talked about broken wires giving rise to occasional incidents “where ignition of block has occurred”. That was put to Mr Michael Edge in cross examination. Tellingly, he said that “this was my explanation of how the fire might have started on this machine”. A little later, he endeavoured to back-track and said (like Mr Mallison before him) that he was essentially talking about older-style machines. I reject that explanation: as I have already said, Mr Hotchkiss had no interest in the historical position in relation to old machines, and was solely interested in this machine and the possible reasons for this fire. I accept Mr Edge’s admission that, on 8th August 2003, he was talking about wire breaks as a potential explanation of this fire. I consider that he was right to do so because that was, in all the circumstances, the obvious explanation for the fire. Thus, on all the evidence, whether it be factual, physical, or expert, I am in no doubt that the fire was caused by a broken wire on the hot wire cutting machine which led to a spark which in turn ignited the pentane envelope and set fire to the block on the machine. All the evidence points unequivocally to this conclusion. JSUMMARY OF FINDINGS AS TO CAUSE AND SPREAD OF FIRE a). Commencement Of Fire[205]I find that Mr Abbas’ contemporaneous account of the circumstances of the fire, given separately to Mr McKeating and Mr Holmes of the Fire Service, and Mr Hotchkiss, in August 2003, was an accurate account: see paragraphs 147-153 above. In particular I find that Mr Abbas heard a noise caused by a breaking wire and that, shortly thereafter, the block on the machine caught fire. I find that Mr Abbas did not shout ‘fire’ or try and put the fire out or use the fire extinguisher close to the machine and that instead, doubtless in panic, he ran to the stairs leading down to the lower floor and went downstairs. I find that, whilst he was away from the machine, the blocks on the machine became fully alight. At that point, but not before, the Polish workers at the other end of the upper floor became aware of the fire. I find that, despite their best efforts, they were unable to put out the fire on the machine which very quickly spread to the stored blocks that were surrounding the hot wire cutting machine. From that point on, it was impossible for the employees to put the fire out and they sensibly evacuated the building. By the time the Fire Brigade arrived promptly in answer to the alarm call, the fire had taken hold and was blazing furiously, doubtless as a result of the large quantities of EPS at Unit D, both in block form on the upper floor and in bead form on the lower floor.[206]I reject, as lacking all credibility, Mr Abbas’ later explanation that he turned the machine off and went down stairs, only finding the fire on his return. My detailed reasons for rejecting this version of events are set out at paragraphs 166-168 above. I find that this very different account was created specifically by Mr Abbas with the intention of avoiding any criticism that could otherwise have been made of his conduct. However, I should also make clear that, on his account of the events which I have accepted, I do not believe that any criticism could properly attach to Mr Abbas in any event. b) Causation Of Fire[207]I find that, on the evidence, the fire was caused by a broken wire. I find that such broken wires were a relatively common occurrence on hot wire cutting machines such as the one being operated by Mr Abbas. In this instance, the wire snapped and one end of the wire touched either another wire or the frame of the machine. Either way, the consequent arcing created a spark which ignited the pentane envelope within the block on the machine. That, in turn, led to the ignition of the block itself.[208]I expressly reject the suggestion that the fire on the hot wire cutting machine was, in some way, inexplicable. To the contrary, the stages in the causation of the fire which I have outlined above were, on the evidence, overwhelmingly likely to have occurred, in particular because:(1) they are consistent with Mr Abbas’ contemporaneous account of the fire;(2) they are consistent with the physical evidence found by Dr Beeley and Mr Hotchkiss after the fire and in particular the state of the wires on the machine which were examined in the laboratory; and(3) they were not of themselves unusual, having occurred before at Unit D on hot wire cutting machines including, according to Mr Sutcliffe, this very machine. c) Spread of Fire[209]As indicated above, the fire spread quickly. There were a number of reasons for this.[210]First, I find that, when the fire first started, Mr Abbas panicked, and left the machine. He failed to shout ‘fire’ or alert his colleagues, and he failed to use the fire extinguisher in the vicinity of the hot wire cutting machine. By the time he returned with a fire extinguisher from downstairs the fire had taken hold on the blocks on the machine and, despite the best efforts of Mr Godwin and his colleagues, the fire could not be put out.[211]Secondly I find that, as Mr Stan Godwin said, the fire spread “very quickly” from the blocks on the hot wire cutting machine to the surrounding stock of blocks. Because the surrounding stored blocks, both reject and otherwise, were close to the hot wire cutting machine and were not separated or segregated in any way from that machine, there was an inevitable risk that, if the fire on the hot wire cutting machine was not put out immediately, it would spread to the polystyrene blocks in the upper floor and a major fire would eventuate. That is what happened here.[212]I find that the Fire Brigade were notified very soon after the fire and that they arrived promptly. For the avoidance of doubt I find that they tackled the fire in an exemplary manner. In particular, I respectfully agree with the decision made shortly after their arrival by the Fire Officers that Unit D was effectively unsalvageable, because of the intensity of the fire that had taken hold. I have no doubt that the intensity of the fire at Unit D was solely due to the large quantities of EPS (both in bead and block form) stored on the two floors of Unit D. KLATER EVENTS a). Damage Done[213]It is unnecessary for me in this Judgment to make any findings as to the precise nature of the damage caused by the fire. That will be a matter for the quantum hearing. However, it is clear that Unit D was essentially destroyed by the fire. The polystyrene continued to burn for about three days before the fire was eventually put out. The damage to Unit D was so bad that the First Defendants have not taken any steps to rebuild or reuse Unit D. Instead the First Defendants promptly switched their production processes to another site altogether.[214]The fire caused considerable damage to the structures, particularly the roof, of Units B and C and to the stock and machinery therein. There was a particular difficulty in respect of the party wall between Units B and C on the one hand and what was left of Unit D on the other. That had been an internal wall. Following the destruction of Unit D it became an external wall, exposed to the weather. It was also required to take the downward loading of the collapsed roof and suffered deflection and damage as a result. It required extensive remedial work. I find that such work has not yet been carried out.[215]Further, I find that, as a result of the failure of the roof trusses in Unit D, serious distortion was caused to the roof trusses above Units B and C. b) The Later Fire at First Defendants’ Premises[216]On the 7 July 2004 there was a fire on a hot wire cutting machine at the First Defendants’ new premises. This fire is referred to in detail by three of the First Defendants’ witnesses: Mr Craig Mallison, Mr Julian Bulmer and Mr John Painter, the last being the man actually operating the cutting machine at the time of the fire. There is also a CCTV film of the machine being operated by Mr Painter and the commencement of the fire.[217]Ordinarily, the existence of another fire on another machine at another location would be of little or no relevance to a dispute of this kind. However, the evidence of this later fire was adduced by the First Defendants because they sought to rely on it to support their case that the fire on 6th August 2003 could not be explained. It was the First Defendants’ positive case that the later fire in July 2004 was likewise inexplicable.[218]For the reasons set out in some detail above, I have found that, far from being inexplicable, the fire on 6 August 2003 had a very simple explanation. But, for the avoidance of doubt, I should also say that I am equally clear that the cause of the later fire in July 2004 was also very straightforward.[219]Mr Painter, the operator, told me that he turned the machine off and went for a break, leaving a new block hard up against the wires in preparation for the commencement of cutting operations after his break. However, it is clear to me that Mr Painter did not switch off the computerised control element of the machine and that, as a result, and contrary to his understanding, he had not turned the machine completely off. Thus the machine was left on, with a polystyrene block hard up against the wires. In consequence, the fire started in the manner demonstrated by the CCTV footage.[220]There are essentially three reasons which lead me to conclude that the machine was not fully switched off. First, as Dr Beeley made plain, the polystyrene could not have smouldered or self-ignited. Therefore the machine must have been left switched on. Secondly, as Mr Howe pointed out, on the CCTV footage Mr Painter did not press the emergency stop button. Mr Howe said that, whilst it was clear that Mr Painter pressed the pause button, he did not press the emergency stop button. It was put to him that this was wrong and that, although difficult to spot on the film, Mr Painter’s hand did reach across to the emergency stop button. Mr Howe remained firmly of the view that Mr Painter had not pressed the stop button. On my viewing of the CCTV footage I am bound to agree with Mr Howe: the emergency stop button was not pressed. Accordingly the machine was left on.[221]Thirdly, and finally on this point, the manufacturers of the relevant machine, Pantel and Bromser, were themselves quite clear that the fire started because the machine had not been switched off and was left on with a polystyrene block touching the hot wires. In their email of 17th June 2005, sent to Mr Howe, they said unequivocally that “the machine was not switched off because we can see that the monitor was on”. I accept that statement, noting that it was made by the people who probably know more about the machine than anyone else.[222]Accordingly, to the extent that it is relevant, I find that the fire in July 2004 was due to a block being left against the wires of a machine that was not switched off. Perhaps more importantly, I am bound to note that it is curious, to say the least, that the First Defendants, through the agency of Mr Michael Edge’s expert’s report, were seeking to rely on another allegedly mysterious fire to support their case as to the inexplicability of the August 2003 fire when, in truth, just as with the August 2003 fire, there was a clear and unsurprising explanation for the later fire in the written and CCTV evidence. Thus, I consider that the introduction of the later fire into this case demonstrated that the First Defendants, and Mr Michael Edge in particular, were willing to go to great lengths to try and counter what were otherwise clear explanations for events at their premises, if they considered such explanations were to be to their disadvantage.

LCONCLUSIONS AS TO THE RYLANDS V FLETCHER CLAIM

[223]I have identified the relevant principles of law in Section B (paragraphs 12-33 above). a) Did The First Defendants Bring Onto Unit D Things Which Were Likely To Cause And/Or Catch Fire?[224]Clearly, on the basis of my findings set out in paragraph 74 above, the answer to this question is Yes. The First Defendants brought onto Unit D large quantities of inflammable EPS. The particular risk of fire was created by the pentane within the EPS, which was used as a blowing agent. The technical literature, which I have summarised at paragraphs 60-73 above, makes it clear beyond doubt that the EPS/pentane was flammable, a known fire risk and potentially dangerous. b) Was The EPS/Pentane Kept In Such Condition That, If Ignited, The Fire Would Spread Beyond Unit D?[225]Again, on the basis of my findings at paragraph 74 above, the answer to this question is Yes. There are two particular reasons for this conclusion. First, the storage of the blocks on the upper floor made fire spread very likely, given that those blocks were not segregated or compartmentalised, and were very close to a source of ignition, namely the hot wire cutting machine. The second reason was the hot wire cutting machine itself. That treated the inflammable material in a way which made fires a real probability; indeed, fires on hot wire cutting machines, including this one, were a common occurrence at Unit D. c) Did The EPS, Pentane And/Or Hot Wire Cutting Machine Represent A Recognisable Risk To The Claimants?[226]On the basis of the evidence set out in Sections F and G above, there can be no doubt whatsoever that the EPS, pentane and the hot wire cutting machines, taken separately or together, represented a recognisable risk to the Claimants. Indeed, they were risks that were recognised, not only by the general technical literature, but by the Fire Authority and the HSE in relation to Unit D itself. Unfortunately, the statutory authorities were unable to persuade the First Defendants either to compartmentalise the stored blocks or to install an automatic fire detection system. The First Defendants’ attitude throughout the correspondence, which I have summarised at Section G above, showed a marked lack of interest in doing anything beyond the bare minimum that prevented the start of enforcement proceedings against them. d) Did The First Defendants’ Use Of The Land Amount To A Non-Natural User?[227]Accordingly, the Claimants’ claim based on Rylands v Fletcher, requires one final ingredient to succeed. Can it be said that the First Defendants’ use of the land, as set out above, was ‘non-natural’, so as to bring the Claimants within the scope of the rule? I have no hesitation in finding that the First Defendants’ use of the land was a non-natural user. This was not a case where the damage was caused by an everyday element of modern life, like the domestic water pipe in Transco. This was a situation where the land was used for a specific manufacturing purpose which, for the reasons which I have given, involved a very real risk of danger to adjoining land owners. Indeed, I can see no substantive difference between the storage of the chemicals for the purposes of a tanning process, as in the Cambridge Water case, and the storage of EPS, with pentane, in and around the hot wire cutting machine, in this case. The House of Lords found that the storage of chemicals in Cambridge Water was a non-natural user, just as Mackenna J had found that the storage of inflammable materials in Mason was a non-natural user. I consider that the storage and use here which I have described in some detail above was a non-natural user of land. In my judgment, not only was the physical situation at Unit D very similar to that in Cambridge Water, but I also consider that Lord Goff’s remarks, to the effect that it is difficult to see how a finding of strict liability in such circumstances could possibly be regarded as objectionable, are equally applicable to the present case.[228]That conclusion is not altered by the two factors identified by Lord Hoffman in Transco. First, there are no specific statutory provisions relating to the storage of EPS or the safe use of hot wire cutting machines in or around EPS and moulded polystyrene blocks. Although there were various general Fire and Health and Safety Regulations which applied to Unit D (and although, as we shall see, I find that the First Defendants failed to comply therewith) those general Regulations were not what Lord Hoffmann was referring to. He was talking about the possible existence of Regulations which applied directly to the dangerous things being stored: Regulations which, in his Lordship’s words, provided “an exhaustive code of liability for a particular form of escape”. In this case, there were no such Regulations relating to the storage or manufacture of EPS, and Mr McGee did not seek to argue to the contrary. Accordingly, Lord Hoffmann’s first factor simply does not arise here. As to the second factor, namely the question of insurance, there was no direct evidence before me as to the insurance position of the Claimants. However, even assuming that, as may well be the case, the Claimants were insured for some or all of their losses, I consider that it would be wrong in principle for this one point to over-ride all the other findings that I have set out above, which explain why the rule in Rylands v Fletcher applies in the present case. Indeed, given that this was a matter on which Lord Hoffmann and Lord Hobhouse expressly disagreed, it would, I think, be a mistake for me to attach any real significance to the point at all. As to the matter of principle on which their Lordships disagreed, I offer my own view with great diffidence, but I am bound to say, with the greatest of respect to Lord Hoffmann, that I instinctively agree with Lord Hobhouse’s reasoning. It seems to me that the existence or otherwise of insurance in favour of a claimant should not, of itself, be determinative of that party’s right of action in law.[229]Accordingly, I find that the Claimants have made out their claim against the First Defendants under the rule in Rylands v Fletcher and the First Defendants are therefore liable to the Claimants without the need for the Claimants to prove negligence or nuisance.[230]Finally, on this aspect of the claim, I should deal expressly with a point made by Mr Michael Edge in his witness statement. At paragraph 18 he said this:
“Given the precautions I take at my factory, it would seem grossly unfair if I am found to be strictly liable for a heavily regulated manufacturing process, which provides benefits to the community.”
In my judgment, for the reasons which I have explained, it seems to me that, far from it being grossly unfair for the First Defendants to be found strictly liable to the Claimants in these circumstances, such an outcome is wholly appropriate and fair. They were responsible for creating the fire for the reasons set out above; in particular, it was their storage and use of dangerous materials, as part of a non-natural user of the land, which created a liability under the rule in Rylands v Fletcher. That said, given Mr Michael Edge’s reference to ‘precautions’ and to ‘a heavily regulated manufacturing process’, it is appropriate for me now to assume that I am wrong in my conclusions as to the applicability of the rule in Rylands v Fletcher, and to go on to consider whether or not the First Defendants were liable in negligence/nuisance for failing to take all reasonable steps (or ‘precautions’, to use Mr Edge’s word) to prevent the escape of the fire from Unit D to the Claimants’ property. MCONCLUSIONS AS TO THE PRIMARY NEGLIGENCE/NUISANCE CLAIM a). Introduction[231]The allegations of negligence/nuisance made by the Claimants range over a variety of matters. However, I believe that they can be summarised into five areas. First, there is the general question relating to the nature of the duty owed by the First Defendants to the Claimants. I deal with that in Sub-section b) below. Secondly, the Claimants allege that the First Defendants’ training and safety systems in respect of their employees were inadequate. I deal with that at Sub-section c) below. Thirdly, the Claimants allege that the First Defendants failed to respond properly to the various interventions of the HSE and the Fire Authority, and in particular they contend that the First Defendants should have either put in some form of compartmentalisation so as to protect the stored blocks from the manufacturing process or should have put in a fire detection system that would have automatically sounded when the fire started. I deal with that in Sub-section d) below. Fourthly, there are the allegations about the inadequacies of the hot wire cutting machine itself, and, in particular, the absence of interlocks. I deal with that aspect of the case at Sub-section e) below. Finally, it is said that the First Defendants were negligent because they failed to install a sprinkler system and that, had they done so, the fire would have been put out before there was any damage to Unit D. I deal with that in Sub-section f) below. b) Nature of Duty[232]I have dealt with the general nature of the tortious duty owed by the First Defendants to the Claimants at paragraph 39 above. I do not accept that it is right, as a matter of law, to say that the duty of care owed to the Claimants was different or more onerous than usual, simply because of the nature of the First Defendants’ business. What, however, I do conclude is that the First Defendants’ duty, to take reasonable care to ensure that there was no fire or that any fire did not spread to the Claimants’ property, must be considered in the light of all the relevant circumstances, and that these included the fact that fires were an accepted part of the manufacturing process at Unit D; that the First Defendants were aware or ought to have been aware of the need properly to train their employees to deal with fires and safely to operate the machines; that the First Defendants (through Mr Michael Edge) were involved in the design of the hot wire cutting machines and could, if they had wished, have insisted on the inclusion of safety features; and that the First Defendants were aware of both the potential dangers of pentane and the various measures for reducing fire risks which were recommended by the Fire Authority and the HSE. I am firmly of the view that, seen against that background, the First Defendants wholly failed to discharge their duty of care to the Claimants, and that entirely foreseeable damage resulted from their breach. My detailed reasons are set out below. My finding of a clear liability in negligence/nuisance on the part of the First Defendants mirrors the outcome of earlier authorities with very similar facts to this case, such as Hobbs and Burnie, set out in paragraphs 32 and 37-38 above.[233]As I have noted, Mr Michael Edge referred in his statement to the precautions which he claims were put in hand at Unit D and which, he said, made it unfair for him now to be found liable to the Claimants. In fact, on analysis, I find that there were no real precautions at all. There were regular fires, but the staff were not properly trained to deal with them. There were strenuous efforts by the authorities to get one or the other solution adopted, but in the event there was neither segregation of the stored blocks from the manufacturing process, nor an automatic fire detection system. There were no interlocks on the hot wire cutting machines, although the First Defendants’ own consultant had recommended that very course. And, although they knew just how potentially dangerous their premises were, the First Defendants wholly failed to put in hand the measures which might have protected their own employees, as well as the Claimants and the adjoining properties. For these reasons, I have no doubt that the First Defendants were in breach of the duty of care which they owed to the Claimants. c). Training/Safety Systems[234]I am in no doubt that that First Defendants failed adequately to train Mr Abbas, and other employees, in respect of fire precautions at Unit D. I find that this was an aspect of the prevailing culture within the First Defendants, to the effect that fires were not something with which they had to be overly concerned. The findings set out at paragraphs 121-127 are therefore repeated. This failure to train their employees was particularly significant because the First Defendants had not followed the recommendations of the statutory authorities, preferring instead to operate a fire-fighting system that was dependant on those same employees: see paragraph 100 above.[235]In particular, I reject Mr Higgins’ evidence that he gave any sort of fire training or induction to Mr Abbas. I accept Mr Abbas’ evidence that he did not. As to fire training generally, I accept Mr Abbas’ original evidence, that he had no such training from anyone. Even if that was wrong, it is clear that, on Mr Abbas’ own evidence, his training was limited to some sort of introductory talk by Mr Zahir Bashir, largely in Urdu, which went no further than a demonstration in respect of a fire extinguisher and an indication of where some of the extinguishers and exits were. The very fact that nobody within the First Defendants can really say what was involved in Mr Bashir’s alleged training session is eloquent testimony, on their own case, to the inadequacy of their fire and safety training. At the very least, Mr Abbas should have been given a written procedure, in his own language, telling him what to do in the event of a fire. As I have already pointed out, the absence of written instructions was contrary to the HSE document referred to at paragraph 73 above.[236]Aside from the specific inadequacies in Mr Abbas’ training, I find that the First Defendants’ general training/safety systems in respect of fire were also deficient. There are four different aspects to this. First, I accept the evidence from a number of witnesses that there were never any fire drills or any other sort of factory-wide fire precaution exercises. I consider that that was a major omission, made considerably more significant by the fact that, on any view, fires were a regular feature of the manufacturing process at Unit D.[237]Secondly, I find that written risk assessments, of the sort requested by HSE (see paragraphs 93-94 above) were not produced. I consider that it is inconceivable that, if there had been any such assessments, given that the HSE had specifically requested them, they would not have been provided to them by the First Defendants. Copies would therefore now be available: as set out above, the HSE has provided copies of all their documents, and, aside from the document referred to at paragraph 89 above, they had no other risk assessments. The only proper inference to be drawn is that there were no such assessments in the first place. That, again, typifies the First Defendants’ approach: that fires were not something in respect of which they needed to have any special or particular precautions.[238]Thirdly, I note that, as set out in paragraph 89 above, the First Defendants’ own document recommended that, given the fire risks inherent in the use of pentane, the levels of pentane should be monitored. No witness could say that this was ever done and I find that it was not done. Finally on this topic, I find that there was no system at all for reporting and logging fires at Unit D, which meant that there was no way in which the First Defendants could analyse any sort of pattern and take steps to reduce the number of fires which occurred.[239]As far as the hot wire cutting machine itself was concerned, it is also clear on the evidence before me that Mr Abbas was not properly trained in the use of such a potentially dangerous machine. That was his evidence, and I accept it. I also accept Mr Sutcliffe’s evidence to the effect that he simply showed Mr Abbas the basic steps to operate the machine and did not give him any sort of instructions as to the proper maintenance of the hot wire cutting machine and the potential dangers it represented. I should say at once that this is not a criticism of Mr Sutcliffe because, as he himself pointed out in his evidence, he was not a supervisor and was not paid to give such instructions. The fault, therefore, was within the training/safety systems operated by the First Defendants. But it plainly was a fault, and a major one at that, because it meant that Mr Abbas had very little idea of how to operate the hot wire cutting machine. The most graphic example of this, of course, was his failure to appreciate the significance of breaking wires on the day before the fire, which led to a specific complaint by Mr Sutcliffe. I am in no doubt that, if Mr Abbas had been properly instructed in the use of the machine, he would have been taking much greater care on 6th August when the block that was being cut up was going through the hot wires.[240]In addition, Mr Abbas’ repeated evidence, that he had been told not to touch either the speed dial or the temperature control on the hot wire cutting machine, also illustrates the failure of the First Defendants’ training regimes. The whole point of those controls was to ensure that the machine could adjust to the particular blocks being cut up, with the process being speeded up or the wires heated further if there were particular problems with a block passing through the machine. Mr Abbas’ evidence meant that he was effectively using the machine without being able to make such necessary adjustments or even understanding why they might be necessary. It was a manifestly dangerous situation, created by a failure to train Mr Abbas in the proper operation of the machine he was using.[241]There is one last point to be made about the absence of a proper and safe system of work in connection with the hot wire cutting machine. Since it is common ground that the pentane within the blocks dissipated over time, the longer the period between the moulding of the blocks and their presence on the hot wire cutting machine, the less pentane there would have been to ignite. There is no doubt that there was no proper and effective system in place to ensure that only mature blocks were exposed to the hot wire cutting machine. Mr Abbas was cutting up the blocks in the reject stack; he had no idea how they got there or when they had been moulded. He did not know that blocks moulded more recently represented a greater fire risk, because the First Defendants had not told him. There was, in fact, a very real risk that, even if the blocks which failed the QC procedure had been moulded for at least 24 hours, the blocks which failed a visual inspection might be put in the reject stack very shortly after manufacture, when the residual pentane levels would be correspondingly higher. Mr Abbas would have been wholly unaware of this.[242]Although it adds nothing to the Claimants’ substantive case, I should say that, as a result of my findings as to the First Defendants’ training/safety systems, I consider that they were in breach of the Management of Health and Safety at Work Regulations, 1999. In particular, in breach of Regulation 7(8), they failed to identify and give effect to appropriate procedures to be followed in the event of serious and imminent danger to their employees, and failed to give sufficient warning to their employees about the dangers, in particular those posed by the hot wire cutting machine. The failure to provide all relevant information to their employees also rendered them in breach of Regulation 10.[243]For all these reasons, therefore, I am firmly of the view that the First Defendants’ training of Mr Abbas, both in respect of fire generally and the use of the hot wire cutting machine in particular, was inadequate. The safety systems in place, such as they were, were unsatisfactory. As I have noted, I consider that this was all symptomatic of the First Defendants’ cavalier attitude to the potential risk of fire at Unit D. I find that, if proper training and safety systems had been in place, then, on the balance on probabilities, the fire would either not have started at all or, if it had done, would have been confined to the blocks on the cutting machine, as had happened before at Unit D, and indeed as had apparently occurred only the week before the fire with which I am concerned. c) Compartmentalisation/Automatic Detection System[244]The Claimants say that, arising out of the correspondence analysed in Section G above, the First Defendants should either have ensured that the EPS and, in particular, the newly-finished blocks, were compartmentalised and/or segregated properly from the manufacturing process for fire safety purposes. Alternatively, they contend that the First Defendants should have installed a fire detection system which would have meant that alarms would have sounded automatically once there was a fire on the hot wire cutting machine. The First Defendants’ answer to that is to say that, since they had apparently satisfied the Fire Authority and the HSE in respect of such matters, it is now wrong in principle to rely on such allegations in support of a case of negligence.[245]I have already expressed my concern about this line of argument, particularly in circumstances where the First Defendants did not supply full information to the relevant authorities: see paragraph 94 above. Further, in my judgment, it is wrong in principle for the First Defendants to contend that, simply because the Fire Authority and the HSE chose not to issue enforcement proceedings against them, this somehow demonstrates that they satisfied their duty of care to the Claimants to take all reasonable steps to ensure that fire did not escape from Unit D to the adjoining units. As I have noted above, on any fair reading of the correspondence set out at Section G above, the HSE and the Fire Authority wanted the First Defendants either to compartmentalise the storage of the blocks with fire-resisting walls or to put in an automatic fire detection system. It was the First Defendants’ decision to do neither of those things. Mr Kay of the HSE made it clear that, as far as he was concerned, whilst he wanted one or the other to be done, he was concerned about issuing enforcement proceedings at the Magistrates Court given that, as he said, the point might be something of a “grey area”. I do not believe that Mr Kay can be criticised for deciding not to issue such proceedings. But that does not mean to say that, on the evidence which I have heard, the First Defendants’ decision to take neither of the recommended steps must automatically be regarded as non-negligent.[246]On the contrary, the technical literature and the correspondence, which I have analysed in Sections F and G respectively above, make it clear beyond doubt that a reasonable polystyrene manufacturer in the position of the First Defendants would and should have either properly separated the stored blocks or installed an automatic fire detection system. I regard the decision to do neither, despite the clear recommendations of the technical literature and the HSE and the Fire Authority, as plainly negligent. The reason given for not properly separating the stored blocks- that compartmentalisation would mean that employees at one end of the upper floor would not see a fire developing at the other end of the upper floor- was quite untenable for two different reasons. First, the height of the stored blocks, which Mr Michael Edge put at 12 foot, meant that those employees could not see from one end of the upper floor to the other in any event, except perhaps for a narrow row between the stacks. Secondly, as I have already pointed out, such a decision unreasonably put the onus for discovering and fighting any fires on the upper floor firmly on the employees themselves. This only serves to highlight the First Defendants’ failure properly to induct and train those employees, like Mr Abbas, to fight such fires.[247]I also regard the decision not to put in an automatic fire detection system as negligent. As I have said, it was clear from the correspondence that it was what the HSE and/or the Fire Authority wanted if the stored blocks were not going to be segregated. The installation of such an automatic system in place of compartmentalisation would, on his case, have allowed Mr Michael Edge to achieve his stated aim of allowing his employees a sight of the other end of the upper floor in order to spot fires. Mr Edge had no explanation as to why the automatic alarm system had not been installed, and no-one else offered one. That leaves the only fair inference to be drawn, that the automatic system was not installed because of cost considerations. I have already made the point that not only did the Claimants have such an automatic system in their adjoining premises, but it was that system which alerted the Claimants to the fire in Unit D and allowed them to evacuate Units B and C safely. It is hard to imagine a more graphic demonstration of the need for premises such as Unit D to have an automatic fire detection system. The can be no doubt, therefore, that the First Defendants’ decision not to install such a system, despite the request from the HSE/Fire Authority, was negligent.[248]The findings of fact set out above also mean that the First Defendants were, in my view, in breach of the Fire Precautions (Workplace) Regulations 1997. In particular, they were in breach of Regulation 4(1), because, given the activities carried on at Unit D, and the hazard they so obviously created, it was not only ‘appropriate’, but absolutely essential, that an automatic fire detection system was installed. e) The Hot Wire Cutting Machine[249]The one risk assessment document produced by the First Defendants recommended that interlocks be provided on the hot wire cutting machines to ensure that, if the conveyor jammed, the current to the wires would be switched off: see paragraph 89 above. Mr Michael Edge told me that, so great was his experience, he helped to design the cutting machines. However, as I have found at paragraph 112 above, no such interlock was included in the hot wire cutting machine where the fire started. In failing to follow the recommendations of their own written risk assessment, the First Defendants were plainly negligent. f) Sprinklers[250]It was part of the Claimants’ case that the First Defendants were negligent because they did not have a sprinkler system. In my judgment, as a stand-alone allegation of negligence, this criticism must fail.[251]It is common, following a catastrophic fire in this country, for the media to point out that the fire would not have occurred if there had been a sprinkler system: the major fire at the centre for asylum-seekers a few years ago was a case in point. The answer to the point is equally simple: there is no mandatory requirement in this country for most large buildings to have sprinkler systems. It is therefore difficult to say that the owner of a building can be negligent for not installing something which was not statutorily required, unless, as happened here in respect of all three of the compartmentalisation and fire detection and interlock points, the statutory authorities or the owners’ own consultant made a recommendation that was ignored.[252]I find that the First Defendants were not obliged by any statutory provision to install a sprinkler system because, unlike the installation of compartmentalisation or a fire detection system or an interlock that cut the current if the machine jammed, the installation of sprinklers was not something which the HSE or the Fire Authority or their own consultant had even suggested, let alone recommended. Of course, the fire may well not have gone beyond the cutting machine and certainly would not have had any of the devastating effects that it did have, if a sprinkler system had been installed. But that cannot equate to a finding of negligence. It may very well be that, having decided not to install a fire detection system, the First Defendants should then have gone ahead to install a sprinkler system. But, as I have said, having found that the First Defendants were negligent in not installing an automatic fire detection system, I do not believe that the First Defendants were also negligent in failing to install sprinkler system. f) Conclusions[253]For the reasons which I have given, I find that the First Defendants were negligent in respect of the training and safety systems that they provided for their employees; in their failure either to compartmentalise the stored blocks or install an automatic fire detection system; and in the absence of interlocks on the hot wire cutting machine. I am in no doubt that if these things had happened as they should have done, there either would have been no fire at all or the fire would have been confined to the top of the hot wire cutting machine. At paragraph 85 of his closing submissions, Mr Bickford-Smith said that, given these various fundamental failings, Unit D “was an accident waiting to happen”. For the detailed reasons set out above, I accept that submission, and find that this situation was a result of the First Defendants’ breach of duty and/or nuisance.[254]I should also make it clear that, as noted in paragraphs 94 and 244 above, the First Defendants failed to provide adequate or proper information to the Fire Authority and the HSE in the years prior to the fire. It is quite clear to me from the documents that have been provided by the Fire Authority and the HSE that the First Defendants did not provide full and frank information about their manufacturing processes. They did not carry out or provide written risk assessments. They did not even obtain or provide the sort of monitoring data which their own risk assessment specifically recommended (see paragraph 89 above). These failures amount to a separate reason why I am in no doubt that the First Defendants cannot rely on the decision of the Fire Authority and the HSE in 1999 not to take them to the Magistrates’ Court as evidencing the fulfilment of their duty of care to the Claimants in 2003.

NCONCLUSIONS AS TO SECONDARY NEGLIGENCE CLAIM

[255]As set out in paragraph 8 above, the Claimants have a secondary negligence claim against the First Defendants. That claim assumes that the start of the fire was beyond the First Defendants’ reasonable control but alleges that the failure on the part of Mr Abbas and others to put the fire out within the confines of the hot wire cutting machine resulted from a failure of training/safety systems which itself represented negligence on the part of the First Defendants and therefore rendered them liable to the Claimants in negligence in any event. The relevant principles are set out in Section C a) ii) (paragraphs 40 and 41) above.[256]My analysis of the allegations of negligence in Section M above deals with both the commencement of the fire and the failure to deal with, or abate, the fire immediately. I have found that, in relation to both, the First Defendants were negligent. I therefore find that, to the extent that it is a separate claim, the Claimants’ secondary negligence/nuisance claim is also made out. The First Defendants were negligent because their training of Mr Abbas was inadequate, and as a result, he failed to deal with the fire properly at the outset. This was compounded by the failure to protect the stored blocks or install an automatic fire detection system.[257]The aspect of the case highlighted by the secondary negligence claim is Mr Abbas’ failure to deal with the fire on the hot wire cutting machine. Mr Abbas’ original account of his immediate reactions, as given to Mr Hotchkiss and Mr McKeating, and which I have found to be correct, made it clear that, when he saw that the polystyrene block was on fire, he did not attempt to put the block out with the fire extinguisher that was located close to the hot wire cutting machine. Neither did he shout ‘fire’ or attempt to alert the Polish workers at the other end of the upper floor. Instead, according to Mr Abbas, he went along towards the western end of the upper floor and down the stairs to the lower floor. Effectively, he ran away from the fire. Only later did he return from the lower floor with a fire extinguisher, but by then it was too late.[258]With hindsight, of course, it is easy to criticise Mr Abbas’ actions on discovery of the fire. However, it seems to me that his reaction was understandable, given the lack of proper training that he had received. He saw a fire and his immediate reaction was to move away from it. Although he returned later, by this time the fire was sufficiently advanced for the Polish workers to have been alerted without any shout from Mr Abbas. I do not believe Mr Abbas could be criticised for his actions. But I do consider that they are again evidence of the First Defendants’ failure to train Mr Abbas both in the use and dangers of the hot wire cutting machine, and the proper response on discovery of a fire.[259]Accordingly, I find that, if Mr Abbas had been properly trained and instructed, he would either have ensured that the block did not catch fire or, if it did, he would have been able to put it out within a few seconds using the fire extinguisher close by the machine. His failure to do so was not his fault but the fault of the First Defendants and their failure properly to train him. They therefore were responsible for the failure to abate the fire. Accordingly, I consider that the secondary negligence/nuisance claim is made out. If the fire had been put out on or around the hot wire cutting machine, there would have been no damage of any sort to Units B and C. O1Support Claim Against The First Defendants[260]The support claim by the First Claimants against the First Defendants, arises out of their alleged failure to carry out proper remedial works to the party wall which, as a result of the fire, had been turned into a external wall. The loss was, however, subsumed within the Rylands v Fletcher and the primary and secondary negligence/nuisance claims: in other words, if those claims were successful, this separate head of claim would not need to be considered. Since I have found against the First Defendants in relation to all such claims, it is therefore unnecessary for me to consider the support claim in any detail.[261]However, I should say that, in my judgment, the First Defendants plainly owed to the Claimants a duty of care to abate the nuisance created by the fire and, in particular, the problems associated with the party wall. The relevant points of principle are set out in Section Cb) (paragraphs 42-46) above. I consider that the First Defendants failed to fulfil this duty to the Claimants. The fact that, two years after the fire, no substantial remedial work has been carried out to the wall demonstrates beyond doubt that the First Defendants are in breach of their duty. Whilst I accept that these things can not be done over night, the correspondence in Bundle 9.14 demonstrates an unjustified lack of urgency on the part of the First Defendants. The First Defendants were able to get their manufacturing business up and running on new premises within a few months. They ought to have evidenced the same urgency in respect of the party wall. Their failure to do so, despite their knowledge of the problems with the wall, amounts to a separate nuisance although, as I have said, the damages that result are likely to be encompassed by the Rylands v Fletcher claim as well as the primary and secondary negligence/nuisance claims analysed above. O2The Claims Against the Second, Third, Fourth and Fifth Defendants[262]On behalf of the Claimants, Mr Bickford-Smith asserts that the Claimants also have claims against the Second, Third, Fourth and Fifth Defendants which arise out of the claims which I have already upheld against the First Defendants. These claims, he says, arise in two ways. First, he says that, since the Second, Third, Fourth and Fifth Defendants were the landlords of the First Defendants, they are liable for the nuisance of their tenants. In the alternative, he also says that these other Defendants, as Directors of the First Defendants, are also liable for that company’s default. In addition, he says that, pursuant to the various deeds, the Second, Third, Fourth and Fifth Defendants are specifically liable for the support claim, due to their failure to carry out remedial works to the party wall.[263]I have set out at paragraphs 47-50 above the relevant principles which would need to established by the Claimants if they were to succeed in their allegations that the Second, Third, Fourth and Fifth Defendants, as landlords, were liable for the defaults of the First Defendants as their tenants. As I have said, these principles are relevant, not only to the support claim against the Second, Third, Fourth and Fifth Defendants, but to all the claims made by the Claimants, because it is said that their liability, as landlords, covers all the claims were the First Defendants have been found to be liable.[264]I am satisfied that, on the evidence, the Claimants have not made out any liability on the part of the Second, Third, Fourth and Fifth Defendants as landlords to the First Defendants. The Second, Third, Fourth and Fifth Defendants did not let the premises to the First Defendants for the purposes of any act of nuisance and have not expressly authorised any such nuisance. They have not participated directly in the commission of the nuisance. Furthermore, I do not believe that it is realistic to say that, as landlords, the Second, Third, Fourth and Fifth Defendants could have prevented the nuisance being committed by the First Defendants. I therefore reject that way of putting the support claim, or any of the other claims for which I have already found the First Defendants to be liable, against the other Defendants.[265]The same conclusion must also apply to the argument that, as directors of the First Defendants, the Second, Third, Fourth and Fifth Defendants were liable for the acts and omissions of the company. Indeed, no real argument was advanced by Mr Bickford-Smith in support of such an analysis. It seems to me to be quite contrary to the basic principles of company law.[266]The liability of the Second, Third, Fourth and Fifth Defendants to the Second and Third Claimants under the terms of the Deeds is quite a different matter. Here the position is a little complicated by the fact that, as Mr McGee informed me on the last afternoon of the trial, he only represented the First Defendants, meaning that, to my surprise, the Second, Third, Fourth and Fifth Defendants were essentially unrepresented before me. Mr McGee was therefore not in a position to make any representations on their behalf. However, very properly, he indicated to me that, at first sight, the words of the Deeds were clear and that they appeared to impose support obligations on the part of the Second, Third, Fourth and Fifth Defendants.[267]I respectfully agree with Mr McGee’s indication, although I make it clear that he made (and could make) no concession on the point. On a consideration of the words of the Deeds, it seems clear beyond doubt that the Second, Third, Fourth and Fifth Defendants owed obligations to the Second and Third Claimants in respect of support which, as result of the fire and the failure to carry out proper remedial works to the party wall, have not been fulfilled. The Second, Third, Fourth and Fifth Defendants are therefore in breach of those obligations.[268]It is convenient here to set out the relevant provisions. Unit B was sold by Henry Lax Limited to the Second Claimants on 22 March 2001. The Deed provided that the Second Claimants’ Unit B would have “the right of support and protection for the Property and Additional Property from the adjoining buildings forming part of the Retained Land”, which meant Unit D.[269]Unit D was itself transferred by Henry Lax Limited to the First Defendants pursuant to a Deed dated 27 March 1995. At this time, Henry Lax retained Unit C. One effect of this Deed was to provide expressly that the retained Unit C had a right of support from Unit D. Unit C was subsequently transferred to the Third Claimants. Thus, by October 2001, by virtue of the Deeds set out above, the First Defendants, as the owners of Unit D, owed obligations of support to the owners of both Units B and C.[270]Unit D was transferred by the First Defendants to the Second, Third, Fourth and Fifth Defendants in October 2001. Accordingly, as a result, the support obligations owed to the Second and Third Claimants (as the owners of Units B and C respectively) were likewise transferred to the Second, Third, Fourth and Fifth Defendants.[271]The damage to the wall between Unit D, on the one hand, and Units B and C on the other, as a result of the fire, and the subsequent failure to carry out the necessary work to the wall, amounted to a clear breach of the support obligations owed by the Second, Third, Fourth and Fifth Defendants. They are therefore liable separately to the Second and Third Claimants for the losses that flow from this default.

PSUMMARY

[272]I have found that the circumstances of the fire were those described in detail, and on a number of different occasions, by Mr Abbas in the days and weeks immediately following the fire in August 2003. I have rejected Mr Abbas’ more recent and radically different version of events.[273]I have found that the cause of the fire was a wire breakage on the hot wire cutting machine which created a spark. This was a regular occurrence on machines of this kind. The spark set fire to the polystyrene block on the cutting machine. The fire then spread quickly to the stored polystyrene blocks close to the machine. A fire caused in this way was not only consistent with the version of events from Mr Abbas, but it was also consistent with the physical evidence found by the experts following the fire.[274]I have rejected the suggestion that the fire was somehow inexplicable. On the contrary, I have found that the fire had a straightforward explanation and that a fire, started in this way, was a not uncommon event at Unit D.[275]I have found that the fire could probably have been extinguished at or around the hot wire cutting machine. The fact that it was not was due to Mr Abbas’ decision to run away from the machine when he saw the flames coming from the block, without using the nearby extinguisher or shouting for help, and the absence of an automatic fire detection system. I have found that Mr Abbas cannot personally be criticised for his actions: they were the direct result of the First Defendants’ failure to train him properly, both in respect of fire precautions generally, and the proper operation of the hot wire cutting machine in particular.[276]On the facts that I have found, the First Defendants were strictly liable to the Claimants because the various ingredients of a claim under the rule in Rylands v Fletcher have all been made out. Indeed, it seems to me that this is the sort of case to which, even in its modern, restricted form, the rule should plainly and obviously apply.[277]If I am wrong about the claim under the rule in Rylands v Fletcher, I am entirely satisfied that the First Defendants fell below the standard of care required of them in these particular circumstances. Therefore liability is made out, in the alternative, pursuant to the Claimants’ primary negligence/nuisance claim. In particular, I find that the First Defendants’ training and safety systems were inadequate; and I find that, following the correspondence with the Fire Authority and the HSE, the First Defendants’ decision neither to compartmentalise the stored blocks nor to put in an automatic fire detection system was wholly unjustified. I also find that the failure to install interlocks on the hot wire cutting machine, contrary to the only risk assessment that the First Defendants themselves ever produced, was also negligent.[278]I have found that the commencement of the fire was due to the First Defendants’ negligence/nuisance and that, even if I am wrong about that, the failure to put out the fire on or around the hot wire cutting machine was also the result of their negligence/nuisance. Accordingly, the secondary negligence/nuisance claim is also made out.[279]I consider that, to the extent that it is relevant, the First Defendants were separately liable to the First Claimants in nuisance for failing to carry out proper works to the party wall between Unit D and Units B and C in the two years following the fire.[280]I reject all the claims to the effect that the Second, Third, Fourth and Fifth Defendants were liable, either as landlords, or directors, for the default of the First Defendants. However I uphold the claim that the Second, Third, Fourth and Fifth Defendants were directly liable to the Second and Third Claimants under the terms of the various Deeds for failing to provide proper support to the party wall, because they have failed to carry out (or have carried out on their behalf) the appropriate remedial works since the fire.[281]This Judgment has therefore dealt with all matters concerned with liability. All questions of quantification will be dealt with following a separate hearing. GH004975A/YC

Cited in 2 later judgments