Wessanen Foods Ltd v Jofson Ltd [2006] EWHC 1325 (TCC)

Case No HT-05-155

[2006] EWHC 1325 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

St Dunstan's House

Venue 133-137 Fetter Lane

Date 8 June 2006

London, EC4A 1HD

Before

HIS HONOUR JUDGE PETER COULSON QC

Between

WESSANEN FOODS LTDClaimant

JOFSON LTDDefendant

Mr Daniel Crowley (instructed by Beachcrofts) for Claimant

Mr John Slater QC and Mr James Medd (instructed by Kennedys) for Defendant

Hearing Hearing Dates: 25 & 26 April, 2, 3, 4, 8, 9, 10 & 11 May 2006

Judgment

[1]At about 5 am on the morning of 9 July 2002, a fork lift truck at the food factory owned and operated by Wessanen Foods Ltd ("the Claimant") at Unit A, Halesfield 10, Telford in Shropshire, caught fire and caused extensive damage to the factory and the materials and food products stored there. The truck was owned by the Defendant company and hired out to the Claimant pursuant to a contract dated 31 May 2000. It is the Claimant's case that the fire was the result of a number of breaches of the contract by the Defendant and/or the Defendant's negligence, and in these proceedings the Claimant seeks damages for such breach of contract and/or negligence. The claim is denied by the Defendant. Subject to questions of liability, causation and foreseeability, and one discrete point as to damages, the quantum of the claim has happily been agreed in the sum of £820,554.50.

[2]The principal allegations made against the Defendant divide into three parts. First, the Claimant alleges that the cables which connected the battery of the truck to the truck itself were longer than was necessary, making the cables difficult to stow away when the truck was in service, and creating the risk that the cables would become damaged by being caught up in the lift/mast mechanism of the truck itself. Allied to these allegations is the suggestion that, during the hire period, there were sufficient instances of damage to the cables to have caused the Defendant to warn the Claimant about this potentially significant problem, which – so it is said – the Defendant failed to do. Secondly, the Claimant maintains that the Defendant failed to provide proper familiarisation training in the use of the trucks, particularly in respect of the stowage of the cables. Thirdly, the Claimant alleges that, although problems with the truck in question was notified to the Defendant some time between noon and just after 1 pm on 8 July 2002, no maintenance engineer attended until early the following morning, by which time the fire had occurred.

[3]Accordingly, the structure of this Judgment will be as follows. In Section B below I deal with the proper construction of the contract and the other issues of law arising out of the allegations of breach of contract/negligence. In Section C I set out the relevant events that occurred before the fire and at Section D, a more detailed analysis of the events at the factory on 8 and 9 July 2002. Following on from that, at Sections E, F and G, I deal in turn with the three relevant categories of alleged breach, namely the cables/battery, the familiarisation training, and the non-attendance of the maintenance engineer. Thereafter, at Section H, I set out my conclusions as to causation. At Section I, I deal with the arguments raised by the Defendant in respect of foreseeability. At Section J, I deal with contributory negligence and at Section K, I set out my conclusions on the one specific dispute as to damages. At Section L, I make some general observations about the evidence in cases like this. There is a short summary of my conclusions at Section M below.

[4]I should like, at the outset of this Judgment, to compliment the parties (and their legal teams) for the way in which the trial was conducted. Despite the many disputes of fact and law in this case, the parties were able to agree, and then comply with, a sensible timetable for the trial. This was no doubt due to the careful preparation of the case on both sides. Although, at Section L below I have some general observations to make about certain features of the evidence in this case, I am anxious to make clear that those are not to be taken as criticisms of the parties; they are merely suggestions as to how evidence in cases like this might be improved in the future. The written and closing submissions on behalf of both parties were extremely full and very helpful. It is my intention that this Judgment deals comprehensively with all the matters raised in those detailed submissions. B. THE CONTRACTUAL AND TORTIOUS OBLIGATIONS B1 General

[5]By a contract dated 31 May 2000 ("the contract"), the Defendant agreed to hire to the Claimant three Mitsubishi RB14 battery-powered Fork Lift Trucks, including spare batteries and quick-change battery trolleys. The Defendant also agreed to provide a maintenance/repair service.

[6]The contract consisted of the following documents: a) a letter from the Defendant to the Claimant of 30 May 2000, together with two Appendices dealing with increases in net monthly payments for specific matters such as the spare battery and battery trolley (Appendix 1) and a table showing the truck hours worked in 1999 and 2000 by the vehicles previously hired by the Claimant from the Defendant (Appendix 2). b) The Defendant's Hire Contract document, which included with it the Defendant's General Terms and Conditions of Sale, and an appendix signed and dated by both parties on 31 May 2000.

[7]The appendix to the contract stated that the period of hire was "a minimum period 3 years". The contract document itself stated that the "hire rate per 40 hour week" was £2,675.77 per month. The value of the three trucks and associated equipment, for insurance purposes, was stated to be £136,000.

[8]I note that the documents set out in paragraph 6 above were bound together as a formal set of contract documents. It seems clear that the parties intended that these documents – and no others – would contain the entirety of the agreement between them. Thus I am doubtful as to whether any other documents, such as the Mitsubishi brochure, should be accorded any contractual status at all. This is particularly so given that, for the reasons explained below, I do not consider that there is any difficulty whatsoever in interpreting the terms of the contract. Thus I do not consider that it is necessary for the court to have regard to any other documentation as an aid to interpretation. B2 Quality

[9]Clause 5(a) provided as follows:

"The Owner shall ensure that at commencement of the hire the Plant shall be of sound construction and in good working order and properly maintained and that at that time all Regulations regarding construction, maintenance, testing and inspection applicable to the Plant have been complied with."

[10]In addition, it is agreed that the trucks supplied pursuant to the contract had to be of satisfactory quality in accordance with Section 9(2) of the Supply of Goods and Services Act 1982. Section 18(3) of the 1982 Act defines satisfactory quality by reference to:

"(a) fitness for all the purposes for which goods of the kind in question are commonly supplied, (b) appearance and finish, (c) freedom from minor defects, (d) safety, and (e) durability."

[11]Clause 2(c) contained a deeming provision in respect of quality in these terms:

"(c) unless notification in writing to the contrary is received by the Owner from the Hirer within three working days of the Plant being delivered to the site the Plant shall be deemed to be in good order, save for either an inherent fault or a fault not ascertainable by reasonable examination, in accordance with the terms of the Contract and to the Hirer's satisfaction. The Hirer shall be responsible for its safekeeping, use in a workmanlike manner within the Manufacturer's rated capacity and return on the completion of the hire in equal good order (fair wear and tear accepted)."

B3 Familiarisation Training

[12]There was an express term of the contract in respect of the provision by the Defendant to the Claimant of what was called familiarisation training. The letter of 30 May 2000 said that "familiarisation training will take place between 12.00 – 16.00 covering two shifts." The Claimant maintains, and the Defendant does not dispute, that the provision of this service had to be undertaken with reasonable skill and care. B4 Maintenance and Repair

[13]There is no dispute between the parties that, pursuant to the contract, the Defendant would provide maintenance and repair services to the Claimant in respect of the three Mitsubishi fork lift trucks. It is also agreed that such maintenance and repair services as were provided by the Defendant would be provided with reasonable skill and care. There are, however, two disputes in respect of this element of the contract. The first concerns the provisions regulating the speed of the Defendant's response to any problem with the trucks notified by the Claimant; the second concerns whether or not there was some sort of duty on the part of the Defendant to warn the Claimant in respect of specific matters arising out of their maintenance and repair obligations. I set out below the relevant contractual provisions and then consider those two disputes in turn below.

[14]Clause 5 of the Conditions was entitled "MAINTENANCE AND REPAIR". Clause 5(a) has already been set out above. The other relevant parts of the clause to the present dispute are as follows:

"Owners' obligations … (b) The Owner shall (save as hereinafter provided) carry out and provide all necessary repairs and replacements as quickly as reasonably possible, and (so far as reasonably possible and during normal working hours) at times to suit the convenience of the Hirer. Hirer's Obligations (a) The Hirer shall repair all punctures and replace all damaged tyres at his own expense, but save as aforesaid he shall not repair the Plant or make replacements or alterations unless authorised to do so by the Owner. Any replacements by the Hirer shall forthwith become the property of the Owner, and part of the Plant unless otherwise agreed in writing. (b) The Hirer shall forthwith notify the Owner if the Plant breaks down or fails to work properly, or if any repairs or replacements (other than to or of punctured tyres) are necessary."

Hirer's Obligations

[15]In addition, there was a specific agreement as to what was called 'service back-up' at paragraph 4 of the letter of 30 May. That read as follows:

"Our responsibility for Service back-up is formally detailed, if briefly, in the terms and conditions of the contract. In summary, we are responsible for all preventative maintenance and repairs to include: • arranging and undertaking planned preventative maintenance visits during normal working hours, but at times most convenient to you. This will include the provision of Service Reports for your files which will satisfy the requirements of Health and Safety Regulations. • Carrying out repairs as quickly as possible. Usually this means responding to the initial breakdown within 4 working hours and undertaking a satisfactory repair within 24 hours. In an emergency we will provide a replacement truck if the repair cannot be carried out within a practical time scale."

[16]The first dispute of construction concerns the Defendant's speed of response. It is the Claimant's case that, as a result of these provisions, the Defendant was obliged to visit the premises within 4 hours of having been notified by the Claimant that there was a problem with one of the trucks, unless it was impossible for such a visit to occur. In my judgment that construction puts an impermissible gloss on the words used. There a number of reasons for my conclusions.

[17]In my judgment, the basic obligation on the part of the Defendant was to carry out and provide all necessary repairs and replacements as quickly as reasonably possible (my emphasis): see clause 5(b) set out above. Whether, in any particular instance, the repair work was carried out as quickly as reasonably possible will depend on the facts. It seems to me that, amongst other things, what is reasonable in all the circumstances will depend upon what the Claimant told the Defendant about the nature of the problem; whether or not the Claimant told the Defendant that the problem was urgent; the reasonableness or otherwise of the Defendant's assessment of the situation, including its assessment of the urgency of the repair work; and, perhaps most important of all, the Defendant's other repair/maintenance commitments. To the extent that it matters, I find that the references in clause 5(b) and the letter of 30 May to "normal working hours" are to the Defendant's normal working hours: that is both the natural sense of the words used and, given that the Defendant worked from 8.30 am to 5 pm whilst the Claimant operated a 24 hour shift system during the week, it is also the only way that the agreement could operate in practice.

[18]I also consider that the Claimant's construction reads far too much into the words of the letter of 30 May. The reference there to 4 working hours is not a guarantee to visit the Claimant's premises within 4 working hours unless such a visit was impossible. First, the letter says that "usually this means responding to the initial breakdown within 4 working hours" (my emphasis). It could be said that a telephone response, to the effect that the request for the attendance of a maintenance engineer had been noted and that he would attend either at a particular time or as soon as possible, was a response within the meaning of that paragraph. Alternatively, if the problem with the truck was one that was so obvious that it could have been addressed by the Defendant over the telephone, with the necessary spare part being identified during that call, it seems to me that, provided that the maintenance engineer arrived at the Claimant's factory within 24 hours with that spare part and fitted it, then, even on the Claimant's interpretation of the paragraph, there could be no breach of contract.

[19]Secondly, even if the Claimant is right and the reference to "responding to the initial breakdown" is a promise to visit the Claimant's premises, it is still plain, on the words used in the letter, that the Defendant was not providing any sort of guarantee that such a visit would, barring the impossible, always happen within 4 hours of the notification of the problem. The letter stresses that such a response time would happen "usually". That means that it will generally, or habitually, occur within 4 working hours. It is an indication of what will normally happen; it is far from a guarantee that, barring the impossible, it will always happen. If someone says that Arsenal usually beat Tottenham Hotspur, they mean that it generally happens. It does not mean that it always happens unless something occurs to render victory impossible.

[20]I do accept the Claimant's submission that, pursuant to Clause 5(b), the repairs would generally be carried out at times to suit the Claimant's convenience and that the stated qualification to this ("so far as reasonably possible and during normal working hours") relates to the timing of the repair work itself, and not the general obligation to carry out repairs as quickly as reasonably possible. However, it does not seem to me that that argument makes any real difference to the principal point between the parties in respect of the speed of the Defendant's response. For the reasons that I have given, I consider that the Defendant's basic obligation was to carry out the repairs "as quickly as reasonably possible" and that any question of breach of that obligation would depend on an analysis of the facts as to what was reasonable in the particular circumstances. I consider that the reference to a usual response time of 4 (of the Defendant's) working hours was not, and could not be, a guarantee that the maintenance engineer would visit the premises within 4 hours unless it was impossible for him to do so.

[21]There is a further argument in respect of the Defendant's maintenance/repair obligations. The Claimant maintains that if, in the performance of those obligations, the Defendant became aware of a significant problem arising out of the Claimant's use of the trucks, the Defendant had a duty to warn the Claimant of that problem. It is unclear whether the Claimant says that this duty to warn arose out of the implied obligation to carry out the maintenance/repair services with all reasonable skill and care, or whether it is said to arise out of a separate duty of care in tort. For my own part, I do not think that it matters very much how the duty is said to have come into existence.

[22]It seems to me that if, in the performance of their maintenance/repair obligations, the Defendant became aware of something which indicated that the Claimant was using the truck in a way that was causing repeated damage, and/or which might give rise to a risk to health and safety, the Defendant would be duty-bound to point it out. It seems to me that the Defendant would be failing in its general obligation to maintain and repair if it was aware of a repeated problem but did nothing to prevent its re-occurrence. B5 Limitation of Liability

[23]The Defendant relies on Clause 6(c) of the Conditions as limiting its liability for property damage. It is therefore necessary to set out Clause 6 in full:

"6. HIRER'S LIABILITY FOR LOSS OR DAMAGE (a) The Hirer accepts full responsibility to the Owner for loss or damage to or destruction of the Plant suffered during the period of hire from whatever cause the same may arise (fair wear and tear or Owner's negligence excepted) and is fully responsible to the Owner for the safekeeping of the Plant and its return in equal order to the Owner at the end of the hire (fair wear and tear excepted). (b) The Hirer accepts all liability and responsibility in respect of, and shall fully and completely indemnify the Owner against, all third party claims and losses howsoever arising in respect of damage to or loss or destruction of any property or in respect of the personal injury or death of anybody in any way caused by or relating to the Plant or its use (including but not limited to the payment of all damages, costs and charges in connection therewith) except in so far as the damage, loss, destruction, injury or death directly results from the negligence of the Owner, its employees or agents. (c) The Owner shall not be liable to the Hirer in respect of any damage to or loss or destruction of the property of the Hirer, nor in respect of the personal injury or death of the Hirer or his employees or contractors or other person in any way caused by or relating to the Plant or its use except in so far as any such damage, loss, destruction, injury or death directly results from the negligence of the Owner, its employees or agents."

[24]Part of the Claimant's arguments, to the effect that this clause does not limit the Defendant's liabilities, relies upon Clause 14(b). The relevant parts of Clause 14 are as follows:

"14. ALLOWANCE AND LIABILITY (a) Without prejudice to the provisions for payment herein before set out, the Hirer shall be fully liable to the Owner for damages for any breach of this Contract. (b) Without prejudice to any liability assumed under clauses 2(c) and 6(c), the Owner shall not be liable to the Hirer for any consequential or indirect loss or damage (including loss of profits) arising out of any accident or damage howsoever caused, provided always that nothing in this sub-clause shall protect the Owner against liability arising from a fundamental breach of contract on its part."

[25]There are a variety of disputes about these provisions. The Defendant maintains that Clause 6(c) excludes all claims against them for property damage, including all claims put by reference to contract, unless such claims: a) arise out of the Defendant's negligence (ie, any breach of contract is irrelevant); and b) directly result from the Defendant's negligence. In this context, the Defendant maintains that any negligence on their part has to be the "proximate and sole" cause of the loss before a finding can be made that the Defendant is liable for such property damage. The Defendant contends that such a provision is reasonable in accordance with the Unfair Contract Terms Act 1977.

[26]The Claimant submits that Clause 6 does not exclude – or indeed have any bearing on – the Defendant's liability for claims for breach of contract. It is further submitted on behalf of the Claimant that, given that Clause 14(b) expressly maintains claims for breach of contract, it would make no sense at all for Clause 6(c) to be construed as excluding such claims. It is the Claimant's case that Clauses 6(c) and 14, taken together, do not prevent or limit any claims for breach of contract. In addition, it is the Claimant's case that the reference in Clause 6(c) to loss directly resulting from negligence is not concerned with causation as such, but is simply an exclusion of losses arising under the second limb of Hadley v Baxendale [1854] 9 EXCH 341, 156 ER 145. It is said that this is consistent with Clause 14(b), which also excludes claims for damages under the second limb of Hadley v Baxendale for breach of contract unless the breach is fundamental, in which case no such exclusion can arise. As a completely separate argument, the Claimant maintains that the provisions of Clause 6(c) are caught by the Unfair Contract Terms Act 1977.

[27]I have reached a clear view as to the proper construction of these provisions. I deal first with what it is that Clause 6(c) is excluding (paragraphs 28 to 30 below); secondly I deal with the effect of the words "directly results from the negligence …" (paragraphs 31 to 33 below); thirdly I deal with the effect on these conclusions – if any – of Clause 14(b) (paragraphs 34 – 38 below); and fourthly I deal with the arguments concerning the Unfair Contract Terms Act 1977 (paragraphs 39 – 48 below).

(a) Clause 6(c)

[28]Leaving aside the reference to personal injury or death in Clause 6(c), which is happily irrelevant to the present dispute, Clause 6(c) endeavours to exclude the Defendant's liability to the Claimant "in respect of any damage to or loss or destruction of the property" of the Claimant, with one express exception. The general words at the start of Clause 6(c) are wide. They exclude any liability in respect of property damage. It seems to me that the words must encompass any liability, howsoever that liability may occur. In other words, the exclusion of liability is not, on the plain words used in Clause 6(c), limited to the exclusion of any liability arising in tort. It does not seem to me that a claim for property damage arising as a result of a breach of contract on the part of the Defendant can escape the exclusion at the start of Clause 6(c). I therefore conclude that Clause 6(c) does operate to exclude all liability for property damage, including claims for such property damage put as claims for damages for breach of contract, subject of course to the exception.

[29]On the basis of that straightforward construction, I do not accept Mr Crowley's submissions on behalf of the Claimant that, in some way, Clause 6(c) is not concerned with, and does not affect, claims for damages for breach of contract. In my judgment, such a submission ignores what Clause 6(c) is, in reality, endeavouring to exclude. In the instant case, it is (with the exception to which I shall return below) endeavouring to exclude a liability for "any damage to or loss or destruction of the property of the Hirer". It is an exclusion of liability for that particular type of loss, however that liability might have arisen.

[30]There is, of course, an exception to this provision. The exception is where such property damage "directly results from the negligence" of the Defendant. Thus, when taken together, the clause can easily and naturally be read as a clause excluding liability for property damage unless such property damage can be demonstrated to be the result of the Defendant's negligence.

(b) "Directly Results From …"

[31]It is the Defendant's case that, not only is its liability for property damage limited to situations where there is negligence on its part, but it also maintains that there can be no claim unless the damage in question is the direct result of its negligence. In their helpful written submissions, Mr Slater QC and Mr Medd maintain that, in this context, the word "directly" qualifies the causative link between the negligence and the loss and, at paragraph 201 of their written closing submissions, they conclude that the use of the word "directly" must mean that, in order for liability not to be excluded, the negligence in question must be the "proximate and sole cause" of the loss. Mr Crowley, on the other hand, contends that the word "directly" is used merely to distinguish direct losses from consequential losses. He relies on the judgment of Megaw LJ in Croudace Construction Ltd v Cawoods Concrete Products Ltd [1978] 2 LLR 55 at 62:

"Accordingly, taking the view that I do, that Mr Justice Parker was right to hold that the word "consequential" does not cover any loss which directly and naturally results in the ordinary course of events from late delivery, I would dismiss the appeal."

In other words, Mr Crowley was submitting that the use of the word "directly" meant that liability for losses akin to those recoverable under the first limb of Hadley v Baxendale was being preserved.

[32]I have concluded that Mr Crowley's submissions are to be preferred. It seems to me that the natural meaning of the words is designed to preserve, as an exception to the exclusion of liability for property damage, a claim for any such damage which arose from the negligence of the Defendant. In such circumstances, a claimant would be entitled to the loss which directly and naturally resulted from that negligence, but not otherwise; in other words, losses akin to those recoverable under the second limb of Hadley v Baxendale were excluded. I consider that it is a strained construction of the clause to say that the word "directly" means "the proximate and sole cause"; that would introduce potentially complex legal concepts into these straightforward terms, giving rise to endless wrangling about the 'but for' test and questions of joint causes. It might also make the necessary causation practically impossible to demonstrate in fact. I do not consider that any of that was what the parties contemplated.

[33]Accordingly, in my judgment, Clause 6(c) was excluding claims for property damage howsoever arising, unless such claims arose out of the negligence of the Defendant. If, however, negligence could be established, then the Claimant would be entitled to recover all losses directly and naturally resulting from the negligence (akin to the losses recoverable pursuant to the first limb of Hadley v Baxendale) but not otherwise.

(c) Clause 14(b)

[34]Mr Crowley's submission was that, if Clause 6(c) was excluding claims for damages for breach of contract, then Clause 14(b) was a nonsense because it appeared to preserve them. However, in my judgment, that submission ignores not only what Clause 6(c) was purporting to exclude, but also what Clause 14(b) actually said.

[35]The first point to make is that, on my construction of Clause 6(c), the Defendant would be liable to the Claimant in respect of property damage if such damage was due to the Defendant's negligence. There would therefore be a liability on the part of the Defendant to the Claimant in those circumstances. That liability is assumed by the opening words of Clause 14(b) ("without prejudice to any liability assumed under Clause … 6(c) …"). In other words, Clause 14(b) is subordinate to Clause 6(c). As a matter of construction, therefore, it is difficult to see how anything in Clause 14(b) could affect Clause 6(c) (and the liability set out there) given that the former is subordinate to the latter.

[36]Secondly, Clause 14(b) is a general provision. It is not concerned specifically with, say, property damage, like Clause 6(c). Clause 14(b) provides a general exclusion clause in respect of losses recoverable under the second limb of Hadley v Baxendale. As regards claims for property damage, for the reasons that I have already given, such an exclusion can be found expressly in Clause 6(c). Accordingly, the principal thrust of Clause 14(b) does not contradict or qualify Clause 6(c); on the contrary, the provisions say precisely the same thing.

[37]That just leaves the final proviso in Clause 14(b) in respect of fundamental breach. It needs to be remembered again that this provision is not concerned with liability in respect of property damage: that is covered by Clause 6(c). This is a general and subordinate clause. In those circumstances, it is perfectly understandable how and why the proviso arises. Take, for example, the provision of fork lift trucks at the outset of the hire period which were thoroughly defective, and had to be replaced, causing the Claimant to suffer a loss of profit. That would be a loss recoverable as damages for breach of contract under the second limb of Hadley v Baxendale. In such circumstances, the Claimant could recover such loss because of the fundamental breach of contract on the part of the Defendant and the preservation of such a claim by Clause 14(b). But again that has nothing whatsoever to do with a claim such as this, which is for property damage, and which is governed by Clause 6(c).

[38]Accordingly, for these reasons, I am entirely confident that Clause 14(b) has no effect on Clause 6(c) and the issues in this case. It follows that as a matter of construction of the contract, I find that the Claimant's claims for property damage as a result of a breach of contact cannot lead to any recoverable loss, unless negligence on the part of the Defendant can also be established. However, it is important to note that, in my analysis of the Claimant's case on liability and causation below, I have considered the claims in both contract and tort, in case my construction of this provision was wrong, and claims for breach of contract in respect of property damage (absent negligence) were not excluded by the contract.

(d) The Unfair Contract Terms Act 1977

[39]Before considering the application of the Unfair Contract Terms Act 1977 to Clause 6(c), it is worthwhile summarising what effect the clause has. My construction of Clause 6(c) means that, if there is damage to property, the Claimant needs to demonstrate negligence on the part of the Defendant; it is not enough simply to assert a breach of some strict obligation under the contract (if any). So that is one effect: a more onerous obligation on the part of the Claimant, not only to show breach, but also some element of default. The other consequence of my construction of Clause 6(c) is that it excludes the losses recoverable under the second limb of Hadley v Baxendale. The remaining question is whether a clause which provides those two limitations/exclusions can be unfair under the terms of the 1977 Act.

[40]I find it difficult to see how my construction of Clause 6(c) could, objectively at any rate, be described as unfair or unreasonable. It is very common for businessmen to exclude losses recoverable under the second limb of Hadley v Baxendale. It is also very common for businessmen to limit their liability only to those situations in which their default – some element of blameworthiness – can be identified. It must be remembered that these provisions were freely agreed, and the court should always be very wary before interfering with contracts voluntarily entered into by commercial men. There have been numerous authorities to that effect, including the words of Lord Wilberforce in Photo Production Ltd v Securicor Ltd

[1980] 2 AC 287

at 843. More recently, in Watford Electronics Ltd v Sanderson CFL Ltd

[2001] BLR 143

, Chadwick LJ said:

"Where experienced businessmen representing substantial companies of equal bargaining power negotiated an agreement, they may be taken to be the best judges of the commercial fairness of the agreement which they have made; including the fairness of the terms of that agreement."

[41]In similar vein, in Granville Oil v Davis Turner [2003] 2 Ll Rep 356, Tuckey LJ said:

"The 1977 Act obviously plays a very important role in protecting vulnerable consumers from the effects of draconian contract terms. But I am less enthusiastic about its intrusion into contracts between commercial parties of equalling bargaining strength, who should generally be considered capable of being able to make contracts of their choosing and expect to be bound by their terms."

I respectfully share Tuckey LJ's lack of enthusiasm for intruding into contracts such as the present one, provided that the parties were of equal bargaining power and provided that the relevant term was known and/or capable of clear identification.

[42]Turning to the 1977 Act itself, Schedule 2 identifies a number of things to which the court should have regard when considering whether or not a clause is reasonable. Of those relevant to the present case, the list includes the strength of the bargaining positions of the parties, and whether the customer knew or ought reasonably to have known of the existence and extent of the terms. I do not consider that any of the other matters in the schedule are relevant; to the extent that it was suggested that these trucks were manufactured, processed or adopted to the special order of the Claimant, I reject that submission. These were standard fork lift trucks, with very minor modifications made for the Claimant. In any event, I agree with Mr Slater QC that it is entirely unclear, if I did consider that the truck had been significantly modified, which party that would assist under the 1977 Act.

[43]As to bargaining power, I have concluded that, if there was an imbalance, it was in favour of the Claimant. The Defendant is a relatively small family business with a workforce of about 25 people. At the time that the contract was made, the Claimant was a subsidiary to a major Dutch parent company. According to Mr Brooks, who was their procurement manager, their turnover was about £20 to £22 million and they employed a couple of hundred people. They were therefore much the bigger organisation.

[44]As to the circumstances in which this contract came to be made, Mr Brooks was expressly brought in to conduct the negotiations. He said that he was expressly asked by the Claimant's Managing Director to negotiate "more favourable contracts" with suppliers. He struck me as an alert commercial man, well able to handle the negotiations on behalf of the Claimant. Mr A'Court also said that Mr Brooks had been brought in because he was a "good negotiator". Mr Brooks actively considered entering into contracts with "several other companies". In all those circumstances, I reject any suggestion that there was any sort of imbalance in the bargaining power between the parties in favour of the Defendant.

[45]As to knowledge of the terms, it must be remembered that, prior to the negotiation of the contract, the Claimant was hiring other fork lift trucks from the Defendant. Mr Brooks confirmed in his cross-examination that, because of the long history of dealings between the Claimant and the Defendant, the Claimant company was reasonably happy with the Defendant's standard terms of contract in any event. He described them as "not too onerous from the commercial point of view". Mr Brooks also confirmed that the only matters of concern to the Claimant were the matters raised in the letter of 30 May: there were no specific points raised on the Defendant's general conditions. In addition, Mr Brooks confirmed that the Claimant had a choice of suppliers but they chose to continue to contract with the Defendant. He said:

"A: We did not just pick them because they were our preferred supplier; they were the right supplier for the continued contract. Q: For this contract? A: Yes. Q: Including all the terms that they had to offer? A: Yes. Q: They were the most acceptable that you could find? A: Yes."

Q: For this contract? Q: Including all the terms that they had to offer? Q: They were the most acceptable that you could find? A: Yes."

Q: They were the most acceptable that you could find?

[46]In those circumstances, it seems to me that the Claimant knew or certainly ought reasonably to have known of the existence of all of the conditions (including Clause 6(c)) and never at any time raised any point on those terms. Including that provision, the terms offered by the Defendant represented the best offer to the Claimant, which was why it was accepted. Again, bearing in mind the warnings against interfering with contracts made by commercial men set out above, it is difficult to see on what basis it could be said that Clause 6(c) should somehow be excised because the Claimant failed to generate a specific discussion about it.

[47]The final point under the Unfair Contract Terms Act concerns the question of insurance which arises pursuant to Section 11(4)(b). At the trial of this action, it was made plain to me that both sides had insurance; the Claimant is making a subrogated claim and the Defendant is supported by its insurers. Moreover it was clear that, at the time that the contract was made, Mr Brooks knew that the Claimant "carried their own insurance policy against accidental damage, including fire". It therefore seems to me that insurance is a neutral factor in any consideration of unfairness.

[48]For all those reasons, therefore, I conclude that, pursuant to the operation of the Unfair Contract Terms Act 1977, Clause 6(c) is not unfair and should not be excised from the contract. I should also say that, for the reasons which I have given, I regard such a result as entirely in accordance with commercial business sense. B6 Duty of Care

[49]During the closing submissions there was some debate as to the existence or otherwise of a separate cause of action against the Defendant in tort. Mr Crowley, on behalf of the Claimant, maintained that the Defendant owed the Claimant a separate freestanding duty of care at common law and that, regardless of the claims in contract, the Claimant would also have claims in tort against the Defendant. There were a number of difficulties with this: no duty of care was pleaded or opened, and it was not clear the extent to which such a claim could exist independently of (and thus survive) any failure of the claims put by reference to the contract.

[50]It seems to me that the starting-point for any analysis of the common law position was that the Defendant owed the Claimant a classic Donoghue v Stevenson type duty in respect of the supply of the fork lift truck. However, any duties at common law owed by the Defendant to the Claimant in respect of the supply of the truck could not be any greater or wider in scope than the obligations owed in contract. In all probability, the duty would probably be less extensive than the contractual obligations, given the implied terms imposing a strict liability pursuant to the Supply of Goods and Services Act 1982.

[51]As to the continuing duty that might be owed during the period of maintenance/repair, I have already indicated that, in my view, a duty to warn might arise in certain factual circumstances and that such a duty could arise either as a result of the operation of the contract or at common law. It ultimately makes no difference how such a duty arose. Again, therefore, it does not seem to me that the existence of a separate duty of care at common law ultimately has any bearing on the outcome of this case.

[52]Of course, in the present case, Clause 6(c) preserved claims framed in negligence (rather than contract) so, to that extent, the claim in tort is a necessary ingredient for the Claimant's case in any event. But, on the detail, I consider that, in this case, the claim in tort is entirely coextensive with the claim in contract; put another way, I do not believe that, other than the clause 6(c) point, a claim in tort adds anything of substance to the claims put by reference to breaches of contract. C. RELEVANT EVENTS BEFORE THE FIRE C1 The Claimant's Premises

[53]The Claimant manufactured and distributed dehydrated food products, such as pot noodles and packet soups, from their premises in Telford. It was clear on all the evidence that I heard that this was a busy factory which operated a 24 hour production line from Sunday at 10 pm until Friday at 8 pm. Mr Mold, who was an engineering team leader employed by the Claimant, described the factory as "very, very busy."

[54]This case is concerned with events in one relatively small area of the premises, namely the warehouse. In the warehouse there were large areas of racking, on which were stored the food products and the packaging. They were stored on pallets. The fork lift trucks moved the pallets to, and from, the racking. Beyond the racking, and down a ramp, was the small room where the batteries of the fork lift trucks were charged, and changed over. There was a distance of about 30 metres, perhaps a little more, between the fork lift charging room and the area where the fork lift truck in question caught fire, close to an area of storage racking.

[55]There was a surprisingly large amount of dispute concerning the floor conditions at the Claimant's premises. This debate was originally said to be of some relevance because, in answer to the Defendant's case that other fork lift trucks in other premises had operated satisfactorily without damage to cables and/or outbreaks of fire, the Claimant endeavoured to say that there were particular "discontinuities" in the floor at their premises, thereby effectively invalidating the comparisons relied on by the Defendant. In truth, as we shall see later, there was little if any practical difference between the floor surfaces at the various premises in question. As regards the Claimant's premises in Telford, there is no doubt that, in general terms, the floor surface was good. Mr A'Court, the Claimant's engineering manager, told me that the floor had been re-covered shortly before the fire to make it more secure, with an easy-clean and non-slip surface. Mr Mold confirmed that in his words, "the floor covering [in] the warehouse to the best of my memory was in really good condition." It appears however that, in the words of Mr Garbett, the driver of the truck at the heart of the relevant events, the ramp was "rough" and there was at least one crack in the floor which had been filled in, but where the filling had worked loose. There was no such discontinuity in the floor of the fork lift charging room: see the evidence Dr Lavender, the Claimant's fire expert. C2 The Mitsubishi Fork Lift Truck

[56]There was little debate about the component parts of the RB 14 truck, number SB 2285, at the heart of the events at the Claimant's premises in July 2002. Perhaps the only significant feature of the truck was the mast mechanism that operated the two forks, which was to the right hand side of the driver, rather than in front of him, beyond the controls. This, of course, allowed the driver a better view of the load that he was lifting and carrying.

[57]Because the truck was manufactured by Mitsubishi, but the battery was sourced from a company called IBS Ltd, the Claimant maintained that the fork lift truck in question was a hybrid vehicle assembled with different parts from different manufacturers. I consider that this is an unfair criticism. I was told that Mitsubishi do not make batteries and that it was therefore entirely standard for the battery to be purchased from another manufacturer and fitted onto the Mitsubishi truck.

[58]The battery was located immediately to the right of the driver; that is to say, between the driver's seat and the mast mechanism. There was a GRP cover that fitted over the top of the battery although it did not fit tight.

[59]The most important things about the battery for the purposes of this case were the two cables which ran from the battery terminals to a plug, which was then connected to the truck itself to provide the necessary power. These cables had two slightly different functions. Obviously, their primary task was to supply power from the battery to the fork lift truck. However, in addition, they played an integral part in the mechanism by which the batteries were changed over.

[60]When the batteries on these trucks were changed over, a particular procedure had to be followed. The truck was driven into the fork lift charging room. The truck was aligned with a trolley. The empty battery was disconnected and then rolled onto the trolley. On the other side of the trolley was the new, fully charged battery. In order to move the fork lift truck forward a metre or so, in order that the new battery could then slide onto the truck itself, the cables had to be connected to the terminals on the new battery and then plugged into the fork lift truck in the normal way. This allowed the fork lift truck to move forward. The new battery was then rolled into position on the fork lift truck.

[61]For this reason, the cables that ran between the battery terminals and the fork lift truck had to be longer than they otherwise would have been. In order to allow them to facilitate the battery change-over procedure (to run from the terminals on the new battery back to the fork lift truck, so as to allow it to move forward) the cables supplied with these fork lift trucks were 1.8 – 1.9m long. The length of the cables is a critical factor in the Claimant's case.

[62]I should note for completeness that the "roll-on, roll-off" method of changing over batteries was described by Mr Wheeler, the Claimant's warehouse team leader, as a considerable improvement on the way in which batteries had been changed over before, which had involved winches and hoists.

[63]It was also clear on the evidence that the new system and the longer cables did away with extension leads. Mr A'Court described it as a "simple quick facility for changing batteries" and Mr Wheeler confirmed that extension leads were not part of this change-over process. Accordingly, to the extent that Mr Garbett (at one point in his evidence) appeared to recollect that extension leads had been used at the Claimant's premises, I reject that evidence. Indeed, it is right to note that, after the fire, when Dr Lavender was pursuing his enquiries, he noted the changeover procedure in a conversation with Mr Garbett and concluded:

"That's why the leads are so long."

If extension leads had been used, of course, it would have been quite unnecessary for the cables to have been so long.

[64]The only other point to note about the battery is that one of the long sides was slightly lower than the other three sides. This was referred to in the trial as its "lower lip." Although it was not wholly clear why there was such a lower lip, Mr Tredray, the Defendant's mechanical engineering expert, and the person with the greatest knowledge of the design and operation of fork lift trucks who gave evidence before me, considered that it was likely that the lower lip was designed to enable a further flap to be fitted on batteries that were wider than the battery cover. There was some debate, to which I refer below, as to whether the lower lip should have been positioned to face the driver or the mast when the battery was rolled onto the truck. C3 Familiarisation/Handover

[65]Mr Brookes said that, as part of the discussions relating to the contract, he was keen to ensure that both shifts became familiar with the new trucks. It appears that Mr Martin of the Defendant came to the premises in Telford to familiarise the Claimant's employees with the new trucks. He showed them how the new trucks worked. Mr Wheeler, who was present at the familiarisation session, was confident that he had understood what he had been told:

"And you are quite happy with what Mr Martin from Jofson's had done and explained to you and the drivers? A: Yes. Q: No question marks left, you understood how to operate them, obviously practice would make people better but they could get use to these machines quite quickly, could they not? A: Yes, basically a reach truck, yes. They are basically all the same."

A: Yes, basically a reach truck, yes. They are basically all the same."

[66]Mr Rooney, the Claimant's production manager, who was also there, made it clear to me that he did not suggest for a moment that Mr Martin had not done a proper job in explaining how the trucks worked.

[67]Mr Martin explained that, as part of the familiarisation, he had explained the battery change procedure. He emphasised that the new system was, as he put it "not remotely non-standard at all" but that, because it was different from the way that the Claimant's employees had done it previously, he was keen to show them how it worked. In particular he was concerned that the drivers might hurt themselves by dropping the batteries on their feet.

[68]In relation to each truck, there was a "Truck Handover Check List" which demonstrated the various items that had been identified as part of the familiarisation process. Also provided to the drivers was a document entitled "Battery Changing Instructions" which explained in some detail the change over procedure identified above, and some detailed instructions for the drivers to follow when operating the trucks.

[69]Mr Martin did not undertake any familiarisation procedure with the night shift; he said that, although he had intended to do that, the Claimant had cancelled that session. Thereafter, there was no contractual requirement for further familiarisation sessions, nor were any undertaken by the Defendant. According to Alison Barrett, the team leader in the batching department, the practice was that a driver who was familiar with the fork lift truck would show a new driver how it worked. C4 Mr Garbett

[70]As I have said, Mr Garbett was the driver of the fork lift truck on 8 July. Moreover, there is no reason to suppose that Mr Garbett's experience and skill in handling the truck were was not typical of the fork lift truck drivers at the Claimant's premises before and at the time of the fire.

[71]There was a relatively high turnover of fork lift truck drivers. Likely drivers were selected by a more senior employee. Mr Rooney agreed that they would be competent and able. If they agreed, the selected drivers then had to undergo a period of training by a separate company, Beacon Training. Mr Rooney confirmed that he had selected Mr Garbett for training; although Mr Garbett was only 19, Mr Rooney did not consider that he was particularly young to do the job. Having been selected, Mr Garbett then attended a week's course of basic training operated by Beacon Training. Mr Garbett attended his course from 30 July to 3 August 2001. As part of his training programme, it seems clear beyond doubt that Mr Garbett was trained in the correct method of stowing the cables after the battery changeover. Mr Rooney said that that was something which he would have left to Beacon to teach the drivers. Mr Garbett said that they were shown the right way to stow the cables by Beacon. He said that they showed them "to lay them [the cables] on top of the battery with like a figure of eight, because there is cable spare. It is quite long." Mr Garbett was shown some photographs of cables stowed by means of a loop with the cables running across the top of the battery terminals. He said that that was "exactly the method that we were shown, that is the method that we always did."

[72]Mr Garbett was asked how many times he had changed the batteries and stowed the cables between the completion of his course and the 8 July 2002. He thought that it was "hundreds, hundreds of times." He said that stowing the cables was not very difficult and that, if the cables were not stowed properly, they would "fall out straightaway", before the driver had come out of the fork lift charging room. Although he could not really remember, he thought that that might have happened to him a few times in the year between his training and the fire. However he was clear that, on those occasions, the cables fell out before he got outside the fork lift charging room and he was instantly aware of it and would put them back "the right way." He confirmed that he had never once experienced any problem with the cables becoming caught in the mast.

(a) General

[73]Mr Martin explained the working hours of the Defendant's maintenance engineers. They started work at 8.30 am. They finished work at 5 pm. If they were still working on a job at 5 pm they would probably continue to complete it but they were not expected to work excessive hours and would not be expected to start a major job after about 4pm. It appears that, in exceptional circumstances, the Defendant's engineers might work late into the evening.

[74]The Defendant essentially had a small branch office in Telford, very close to the Claimant's premises, called Shropshire Forklift Services. It was obvious that, in all usual circumstances, the maintenance and repair requirements of the Claimant would be met by the team at Shropshire Forklift Services. They had only one maintenance engineer, Mr Burrows (as compared to the Defendant's main branch in Streetly, near Birmingham, where there were ten engineers). Mr Burrows confirmed that his normal working hours were 8.30 am to 5 pm and that the latest that he could recall making a visit to the Claimant's premises in order to start carrying out engineering work was between 4.15 pm and 4.30 pm. He said he would not usually start a new job later than about 4 pm although, if he was working on something at 5 pm, he might stay later to finish it. Indeed, he recalls staying between 6.30 pm and 7 pm on one occasion.

[75]It is clear that the Claimant's employees relied heavily on Mr Burrows in respect of the proper maintenance and repair of the fork lift trucks, and were quite happy to do so. Mr A'Court said that he found Mr Burrows to be a conscientious engineer who took his job seriously. Mr Mold also agreed that Mr Burrows was reliable and dependable and that, if Mr Burrows pointed out that a particular maintenance problem had been the responsibility of the Claimant's employees, he would not query that judgment: he would accept what Mr Burrows told him.

[76]An integral part of the Defendant's maintenance system was the production of a document called the Service Visit Report (SVR). One of these documents was generated by every visit to the Claimant's premises. In those documents, the Defendant's engineer – overwhelmingly Mr Burrows – identified what he had found, what the problem was, and how it was put right. Importantly, the document also indicated whether or not the item in question was something for which the Claimant had to pay (because the defect arose from misuse, driver error, etc) or if the item was the Defendant's responsibility under the terms of the contract. The documents had to be counter-signed by a representative of the Claimant. Very often, that was Mr Blakemore, a team leader in the Claimant's engineering department. Like Mr Mold, Mr Blakemore accepted what he was told by Mr Burrows and had no reason to doubt what Mr Burrows had identified as being the cause of the problem and the parties' respective responsibilities for that problem. Mr A'Court was also involved in the SVR system and was again happy to sign off the documents that had been filled out by Mr Burrows.

(b) Particular SVR's

[77]There are six SVR's that have some potential relevance to the fire on 9 July 2002. I deal with those individual SVR's at paragraphs 78 - 83 below and then at paragraphs 84 to 90 below I consider what, if any, cumulative effect those documents had, or should have had, and what was done about them.

[78]On 14 June 2001, Mr Burrows was called to the premises and found a battery plug had been broken. There was no explanation for how and why this had happened.

[79]On 19 July 2001, Mr Burrows went to site and found cables that had been trapped against the battery. This was categorised as a driver error and the Claimant accepted responsibility for this item of remedial work. Neither Mr A'Court nor Mr Mold, who were both cross-examined on the report, had any reason to doubt Mr Burrows' view that this was a matter for the Claimant's account.

[80]A month later, on 16 August 2001, Mr Burrows went again to site and again found a battery cable trapped and insulation torn. The cable was taped up and a new cable ordered. Again this was recorded as being the responsibility of the Claimant and again the Claimant accepted that and signed off the SVR. Mr A'Court said he could not recall this incident and could not recall discussing it with Mr Burrows. He said that, if the problem had been happening frequently, it would have been picked up by the Claimant's staff.

[81]On 3 September 2001, Mr Burrows visited and noticed the battery cable badly damaged and severed. Again new cables had to be ordered; again the Claimant accepted that that was to their account. Again Mr A'Court could not remember any discussion about this item. He said that it was a possibility that Mr Burrows had told him that the drivers were not stowing the cables properly.

[82]On 6 November 2001, the relevant SVR shows that a battery plug was broken and Mr Burrows had to refit it. Again that was identified as the responsibility of the Claimant. Mr Mold said that nobody knew how the plug had got damaged.

[83]On 3 May 2002, two months before the fire, there was a further visit by Mr Burrows where he noticed a battery cable ripped out and the plug damaged. This was signed off by Mr Bothwell, and Mr A'Court could not recall the incident. (c) Pattern or Isolated Incidents?

[84]I understand it to be the Claimant's case that these SVR's demonstrate a pattern of events: a series of warning signs that should have alerted the Defendant to an ongoing problem with the length of the cables in use at the Claimant's premises. The Claimant contends that this should have caused the Defendant to warn the Claimant about the problem. It is said that the Defendant should have realised that something, somewhere, was wrong with the cables or the driver's method of stowing them.

[85]I do not accept that submission in its entirety. It seems to me that, on a proper analysis of the records and the evidence, it is only the operation of hindsight that could weld together these disparate events into any sort of significant warning sign. My detailed reasons for this conclusion are set out below.

[86]First, it seems to me that the two events on 14 June 2001 and 6 November 2001, which were concerned with the battery plug, are, on any view, irrelevant. Nobody knows whether or not they had anything to do with the length of the cables or the cables getting stuck in the mast. That leaves the four events where the cable was trapped or damaged. Three of those events happened in a very short space of time (July, August and early September 2001). Thereafter, the problem appeared to disappear, save for the isolated incident on 3 May 2002, eight months later. The overwhelming likelihood must therefore be that there was some sort of problem with cables in the summer of 2001 which nobody considered to be of any great significance, and which was in any event identified and rectified. I find it quite impossible to say that those three events, a year before the fire, somehow demonstrated that the fire on 9 July 2002 was an accident waiting to happen.

[87]My view, that the three events in July, August and September 2001 were not accorded any great significance but were dealt with at the time by the Defendant, is confirmed by the evidence of Mr Burrows. Mr Burrows said in cross-examination that there were situations where the cables were damaged at the Claimant's premises, although he said that he only came across those three or four times in two years. He said he did not attach any great significance to them. However, he said he was concerned enough to tell Mr Blakemore and Mr Mold, the engineering team leaders, about the problem, which he said was the result of a cable stowage failure. He said he also told Alison Barrett, the team leader in the batching department. When it was put to him that he never told those individuals, or any others, that there was a problem with the way the drivers stowed the cable he expressly refuted that suggestion. He confirmed that he had also made that very point to the drivers themselves. I therefore consider, on the balance of probabilities, that the problem that gave rise to the three SVR's in the summer of 2001 was identified by Mr Burrows and rectified. Had it not been, the regular incidents of damage would have continued. They did not. The only explanation can be that Mr Burrows did what he said he did, and explained the importance of properly stowing the cables to a number of the Claimant's staff.

[88]It was Mr Burrows' view that the incidents to which I have referred were, in the overall scheme of things, relatively minor and were certainly not happening with the sort of frequency that he would have expected if there was a major and deep-rooted problem. In that view, he was supported by the evidence of a number of other witnesses. Mr Martin of the Defendant said that he was unaware of any problem with the cables or their stowage. Perhaps more tellingly, the Claimant's witnesses gave evidence to the same effect. Mr A'Court said that the problem of cable damage was not a frequent occurrence in the period before the fire. Mr Rooney said that he was not aware of a large-scale problem of cable damage because, if he had been, it would have been something that he would have taken up with the Defendant. Mr Garbett, of course, did not consider that this was a problem since he had never once experienced his cables being trapped in the mast or being damaged; on the handful of occasions that he thought his cable had fallen out from below the battery cover, he said that the fork lift truck was still in the charging room.

[89]In this connection, I should also refer to the notes taken by Dr Lavender, the Claimant's fire expert, immediately after the fire. He had a long discussion with Mr Blakemore which is relevant on a variety of topics. On this point, I note that Dr Lavender recorded Mr Blakemore as saying that the drivers of the fork lift trucks had never reported to him any problems with cables sliding over the front and into the mast mechanism.

[90]Accordingly, I am confident that the incidents reported in the SVR's were regarded by everybody as isolated incidents which were to the Claimant's account and which did not denote any serious or ongoing problem with the trucks. The highest that it can be put is that, in the summer of 2001, there appeared to be a problem with cable stowage, because of the sudden appearance of damaged cables in the SVR's. On Mr Burrows' evidence, that problem was not regarded as major and was in any event addressed, albeit not in writing. Whatever was said was obviously effective because, other than the one isolated incident in May 2002, there were no further incidents of cable damage in the ten months prior to the fire. It follows therefore that, to the extent that the Defendant had a duty to warn the Claimant in respect of any potentially serious problems with the trucks or the Claimant's use of the trucks, that duty was not triggered by the events in the two years between the supply of the trucks and the fire. And to the extent that the duty to warn was triggered, Mr Burrows gave the appropriate warnings and what was regarded as a relatively minor problem was resolved. C6 Strides

[91]It is convenient here to say a few words about Strides, another company to whom the Defendant supplied the same Mitsubishi fork lift trucks. Their experience of the trucks is relied on by the Defendant because the trucks were very similar, and Strides used them for years without any difficulties with the cables at all.

[92]I accept the Claimant's point that the trucks in use at Strides were slightly different because they did not operate the same roll on/roll off battery changing facility, but it does not seem to me that that difference is of any relevance to the issues put before me. What is, perhaps, more important is that, at Strides, the battery cable lengths were of a similar length to the cables in use at the Claimant's premises. In addition, to the extent that it matters, the lower lip was apparently bigger at Strides, and that lip was always facing the mast.

[93]For those reasons, it seems to me that the evidence of the trouble-free operation of the trucks at Strides is of relevance to the issues in this case. It appears that there were only two occasions when the Defendant had to visit Strides for reasons that were anything to do with cables. I accept the evidence that those visits were not caused by the length of the cables or the fact that the cables had got caught in the mast. Furthermore, as to the method of stowage, it appears that Strides largely used the loop stowage that Mr Garbett said he was taught to use at the Claimant's premises. On the evidence, it appears that sometimes the drivers at Strides simply laid the cables along the terminals. There was some debate as to whether the cables at Strides were pushed down between the terminals so that the terminals could hold the cable in place (a means of further security which I am bound to say occurred to me the moment I saw the cables lying between the terminals in the truck that was brought to court on the second day of the trial). To the extent that the drivers adopted this technique at Strides, they were only doing something which the drivers at the Claimant's premises could also have done.

[94]The Claimant seemed to make much of the different floor conditions at Strides, the suggestion being that the floor surface there was better than at their own premises, and might explain why there were no cable problems at Strides. However, on the evidence, it did not seem to me that the floor conditions at Strides were significantly different to the floor conditions at the Claimant's premises. In particular, I accept the evidence of Mr Robinson, the Claimant's engineering expert, that different performances by the trucks could not be explained by reference to the different floor surfaces. Certainly, I do not consider that there was any difference which could possibly explain how it was that the cables fell out from time to time at the Claimant's premises, but nothing similar ever happened at Strides.

[95]It seems to me that the experience at Strides confirms my findings about the general experience at the Claimant's premises. Save for the brief period in the summer of 2001, when I find that there was a particular problem of cable stowage at the Claimant's premises, which caused the three incidents referred to above, it appears that both the Claimant and Strides had a relatively trouble-free experience with these trucks. That is obviously a relevant factor which I must take into account when considering the allegations of breach of contract and negligence in this case. D THE FIRE 99. D1 The Truck

[96]On 8 July 2002, Mr Garbett was asked by Ms Peevor (the Claimant's factory resources manager) to collect a pallet stored at high level on the racks. He had therefore to use a fork lift truck. The truck in question was SB 2285, one of the three Mitsubishi trucks hired from the Defendant. The battery on the truck had to be changed before Mr Garbett used it. He therefore went to the battery charging room and changed the battery. He described the procedure that he followed when he changed the battery in some detail. It was quite clear from his description that he undertook the change over in the manner described in paragraphs 60 - 62 above. For the avoidance of doubt, I find as a fact that he did not use extension leads: he would have had no need to. The position is, in my judgment, confirmed in this passage in his cross-examination:

"Q: The battery leads that you have seen in the photograph we looked at earlier would be easily long enough, would they not, to reach the fork lift truck? A: Yes, they probably would, yes. Q: You would not need an extension lead, would you? A: No, I suppose."

Q: You would not need an extension lead, would you? A: No, I suppose."

Q: You would not need an extension lead, would you?

[97]Mr Garbett said that he stowed the cable in the approved way, namely looping the cable on top of the terminals and then closing the battery cover. Unsurprisingly, perhaps, there was no independent evidence to verify that. On the balance of probabilities, I find that it is unlikely that, on this occasion, Mr Garbett stowed the cables in the manner that he had been shown by Beacon Training. After all, we know that, a little later, the cables connecting the battery to the truck had looped out from underneath the battery cover and had become caught in the mast mechanism. How did those battery cables loop out? There are two possibilities. Either they were properly stowed but, despite that, they fell out anyway; or alternatively they were not properly stowed.

[98]I shall deal in greater detail below with the tests that were subsequently carried out on properly stowed cables. However, the general conclusion I draw from those tests is that, at the very least, properly stowed cables are not likely to fall out. On the other hand, if the cables were not properly stowed, they would be much more likely to fall out. The most likely explanation for the cables falling out on the 8th July was a topic that was pursued with Mr Robinson in his cross-examination. He eventually accepted that it was more probable than not that, on the 8th July 2002, the cables had been incorrectly stowed by Mr Garbett. After a certain amount of fencing, the following position was reached:

"Q: Does it not then follow that if you have a incident of cable snagging in the mast, the probabilities are that the cable was not stowed properly in the first place? A: That is a possibility, certainly. Q: Probability? A: I have not judged it as a probability. It is certainly a possibility. I believe that the conclusion cannot be drawn that because a cable fell out, it must have been, to use a better word, incorrectly stowed. Q: We are not dealing with absolutes, we are looking at probabilities here; did you not realise that? A: I did, I do. Q: Well, will you address probabilities then? I will ask it again. Is not the probability that where you have a cable snagging incident, especially if they are relatively infrequent, that on that occasion, the cable was not properly stowed? A: There is a higher probability that that is the case, yes."

Q: Probability? A: There is a higher probability that that is the case, yes."

D THE FIRE

[99]Accordingly, it seems to me that, on the same balance of probabilities, I must find that, on this occasion, Mr Garbett did not stow the cables correctly. It was for that reason that, somewhere between the fork lift charging room and the storage racking, the cables fell out, unnoticed by Mr Garbett, and became entangled in the mast mechanism of his fork lift truck.

[100]Almost as soon as Mr Garbett put the pallet onto the forks, Ms Peevor noted sparking from the fork lift truck. She saw big sparks that she said looked like a fuse shorting. She told Mr Garbett to get out of the truck and to take the keys out. He did as she instructed him.

[101]It appears that, once Mr Garbett had got out of the truck, with the mast in the air with the pallet on, there was no more sparking. However the truck was blocking the aisle in which it was situated; although it was possible to walk round the truck, it was not possible for another truck to get past it. Since the racking ended in a transverse wall, it meant that the aisle was blocked by the truck.

[102]For completeness I should say that it appeared from the evidence that the location of the truck when it was sensibly abandoned by Mr Garbett was incorrectly shown on the drawing produced by Station Officer B. E. Downes after the fire. He indicated the truck with the forks pointing towards the racking that was badly damaged in the fire. Mr Garbett indicated that he thought that that was wrong and that they were actually pointing towards the racking on the other side of the aisle. This was later confirmed by other witnesses. I find, therefore, that the forks were in fact pointing the other way to that indicated on Station Officer Downes' drawing, towards the racking on the other side of the aisle which was not so badly damaged in the fire.

[103]Finally, I should also note that, when Mr Garbett left the truck, the battery cover was closed. He confirmed in cross-examination that he had no reason to open the battery cover. There is some significance to this because, after the fire, the fire brigade found the battery cover was open. That is a point to which I return at paragraph 130 below. D2 The Disabling of the Truck

[104]As a result of the sparking and the hasty abandonment of the truck, Ms Peevor contacted Mr Blakemore, a team leader responsible for repair and maintenance of the equipment at the Claimant's factory. He was a qualified electrician in charge of a team of five or six electricians and mechanical engineers.

[105]Precisely what Mr Blakemore did to disable the truck was the source of some debate. It seems to me that the best evidence of what he did was what he told the fire officer the following day. He told the fire officer that he had "pulled some damaged wiring from the socket and coiled it on the body on the fork lift truck." The obvious inference was that he had done this for both the cables, particularly since they were connected. It appears that, at the time, everyone believed that that is what he had done: it is assumed as a fact in Mr Fiddler's later memo; in the manuscript notes of Mr Jones, the Defendant's depot manager; and in the Claimant's letter before action. That is also what Mr Blakemore said he had done with the cables in his re-examination. However, during a part of his cross-examination, he suggested that he might have only coiled one of the cables on the top of the battery cover and he indicated that he had possibly left the other cable still entangled in the mast. He was not very sure about this; as he himself accepted, there was no such indication in his comments immediately after the fire to the fire officer. I am bound to say that, on the basis of the rest of his evidence, it seems to me singularly unlikely that Mr Blakemore left one of the cables in the mast, particularly as he plainly went to the trouble of coiling a cable onto the top of the battery cover. I think it therefore more likely than not Mr Blakemore did what he told the fire officer he did, namely coiling the cables – which were, of course, connected - onto the top of the battery cover.

[106]It is agreed that one thing that Mr Blakemore did not do was to disconnect the cables from the battery. He left the cables connected to the battery and therefore they were still live. It is worth noting that this was not what Mr Rooney said he would have expected Mr Blakemore to do. Mr Rooney was very clear that he would have expected Mr Blakemore to isolate the cables. Mr Rooney also accepted that, provided Mr Blakemore was careful, he would have been just as capable of doing this as Mr Burrows of the Defendant. Further, there was some suggestion that, after the fire, Mr Rooney was not best pleased to be told of Mr Blakemore's failure to disconnect the cables from the battery, which would have isolated the battery altogether. Mr Burrows witnessed this reaction. When that was put to Mr Blakemore in cross-examination he said that Mr Rooney "may well have [criticised me] but whether it was stern look down the nose or saying something to me …", he did not recall.

[107]It struck me as odd that Mr Blakemore did not disconnect the cables, since it seemed the obvious thing to do in all the circumstances. Perhaps some explanation for this omission could be found in Mr Blakemore's re-examination when, expanding on something that he had said during his cross-examination, he confessed that he did not really like batteries since an event in his childhood, when he was helping his father with a car and his father dropped a spanner or screwdriver which landed on top of the battery "and there were a lot of sparks and flashes."

[108]Mr Blakemore could have isolated the battery by disconnecting the cables. What is more, in my judgment he should have done so. It was, as Mr Rooney accepted, the obvious thing to do at the time. Moreover, the first supplemental report of Dr Fletcher, the Defendant's fire expert, dated 3 April 2006, contains a detailed analysis of Mr Blakemore's actions and concludes that Mr Blakemore:

"Was sufficiently well qualified to carry out the simple task of disconnecting the battery … the risks would have been the same whether Mr Blakemore or Mr Burrows undertook the work…"

[109]I consider that Dr Fletcher's view on this topic is unarguably right. I can see nothing to justify Mr Blakemore's failure to undertake the "simple task" referred to by Dr Fletcher, and I regard Dr Lavender's attempts to excuse this omission as inherently implausible. It was manifestly not unsafe. The Claimant's difficulties on this point may explain why the cross-examination of Dr Fletcher on this topic was extremely brief, coming right at the end of his entire cross-examination and not really addressing this central aspect of the history. Of course, the experts agreed that, if the cables had been disconnected by Mr Blakemore at the same time as he coiled the cables on top of the battery cover, then the fire would not have happened. D3 The First Call

[110]Mr Blakemore telephoned the Defendant sometime between 12 noon and just after 1pm. His call was answered by Ms Lisa Evans, who made a brief note of what he had said. The relevant parts of her note read as follows:

"Tony Telford FO 1734 - forks down 2285- broken wires Scrubber - won't pick up water"

Scrubber - won't pick up water"

[111]Mr Blakemore's evidence was that he told Ms Evans that there were three problems with the Defendant's equipment; that one of them was a fork lift truck in the aisle that needed to be moved urgently as it was in a dangerous position and it was restricting operations. He said that he thought he had said that the battery leads had been ripped out when they had become snagged. He also thought that he had mentioned this problem first. However, he stressed in his evidence that he only gave Ms Evans "a very brief account" of the situation.

[112]Ms Evans could not recall the particular conversation with Mr Blakemore. However, by reference to her contemporaneous note, she said that she would have written down the problems in the order in which they had been mentioned by Mr Blakemore. She made it plain that it was her practice to write down whatever was said to her. She reiterated on a number of occasions that, if she had been told that the problem with the fork lift truck was urgent, she would have noted that down.

[113]The contemporaneous note that Ms Evans made on 8 July is not only the extent of the written material that helps with what was said during this telephone call, but it is also, in my view, a much more reliable source of information than the memories of Mr Blakemore and Ms Evans. This was, after all, one short telephone call that happened almost 4 years ago. It would be astonishing if either of them could really remember what was said.

[114]In those circumstances, therefore, I conclude that it is much more likely than not that Mr Blakemore went through the problems for which he required the Defendant's repair and maintenance service in the order noted in Ms Evans' note. He therefore referred to the truck problem second, not first. It is also more likely than not that he described the problem with the fork lift truck as being one of "broken wires" rather than anything more serious or potentially dangerous. Because I accept Ms Evans' evidence that, if he had said that it was urgent, she would have noted that down, I find that Mr Blakemore did not say that the truck problem was urgent.

[115]I should say here that Mr Blakemore struck me as a rather diffident man. I see that I am not alone in this view; the fire officer who spoke to him on 9 July thought that he was "guarded" and gave his opinion that he was, at least potentially, withholding information because he felt that he might be blamed for the fire. My view is that Mr Blakemore is not one of life's ranters and ravers; he deals with everything in a relatively calm, almost understated way. What struck the fire officer as guardedness is, in my judgment, simple diffidence. I consider therefore that it is probable that, during this call to Ms Evans, Mr Blakemore understated the extent of the problem with the fork lift truck. It would have been entirely within character for him not to tell Ms Evans that the problem was urgent.

[116]The note was passed to Ms Tracy Roberts. Against the reference to "2285 - broken wires" Ms Roberts put the inscription "1st" against the entry and, at the conclusion of the entry, wrote "dmg". It was suggested to her that this indicated that Mr Blakemore had said that this job had to be done first and that it was important because the truck was damaged. However, Ms Roberts explained that the "dmg" merely denoted that either the wires or the truck were damaged and that she had noted "dmg" so as to ensure that the engineer checked it to see if the repair was chargeable. She also said that, in relation to the inscription "1st", she wrote that because the truck would have to be looked at first, because the nature of the problem meant that there might be a need for spare parts which might take some time to order. She said:

"From my terminology, looking at that, broken wires, and looking at the other one with the forks down or that will not pick up water, the broken wires could have needed a loom or parts ordering that would have taken longer than getting hold of a pair of forks … you could get hold of forks quicker than you could get hold of a loom or any parts to do with wiring. You would normally have to order on a next day."

[117]On Ms Evans' note, Ms Roberts wrote "passed to Lillian 1.05pm". This was a reference to the fact that, at about 1.05pm, Ms Roberts spoke to Ms Lillian Davis at Shropshire Forklift Services. This is the only clear reference to a specific time for any of these calls. As I have mentioned, due to their geographical proximity, they were the usual providers of the maintenance/repair services to the Claimant; it was from there that Mr Burrows worked. According to Ms Davis, she noted that there were broken wires on the fork lift truck and she rang Mr Burrows some time after that to see what he was doing, and whether he could visit the Claimant's premises that day.

[118]There was a good deal of cross-examination on the documents which were generated, principally by computer, at the Defendant's offices. However, the position on the evidence from Ms Davis and from Ms Moore (the Defendant's managing director) was relatively clear. It seems that Ms Davis simply inputted the description of the job ("broken wires"), the name of the vehicle, customer and so on. At no stage did Ms Davis ever categorise the job as either a high priority, or a low priority, or urgent, or non-urgent. The different computer systems then in place at the Defendant appeared to register the job as a high priority on one set of documents, and as a low priority on another. I find that the documents are of no assistance in judging the urgency with which the job was viewed by the parties at the time. It seems clear that Ms Davis did not consider the job to be urgent because she had not been told by Ms Roberts that the job was urgent. In her turn, of course, Ms Roberts had not said it was urgent because Mr Blakemore had not told Ms Evans that it was urgent. D4 Mr Burrows' Commitments

[119]When Ms Davis rang Mr Burrows to find out what he was doing that afternoon, and whether it would be possible for him to attend the Claimant's premises, Mr Burrows was carrying out scheduled maintenance work at a company called Brintons, on the same industrial estate as the Claimant's premises. Mr Burrows told Mrs Davis that he was half way through a job, but that he would call in at the Claimant's premises before the end of the day if he had the time. Ms Davis made it plain that "unless a job is extremely urgent, we do not pull an engineer off what he is doing."

[120]Mr Burrows disputed the suggestion, when it was put to him in cross-examination, that his work at Brintons that afternoon was not urgent. He said that, on the contrary, it was urgent because it had been pre-booked. He could have only stopped that work, and gone to the Claimant's premises, if Brintons had agreed. Mr Burrows said that, although he had been told that there were three breakdowns at the Claimant's premises, it had not been indicated, either to Ms Davis or to him, that any of these jobs were urgent. Accordingly, Mr Burrows said that he would try and get to the Claimant's premises if he could before the end of the day, but he made no promises to Ms Davis that he could. Since it had not been indicated that any of the jobs at the Claimant's premises were urgent, no attempt was made to ask Brintons for permission to re-arrange the scheduled maintenance that Mr Burrows was carrying out for them

[121]Of course, it is only fair to note that, whilst Mr Burrows was the only engineer available to Ms Davis, he was not the only engineer available to the Defendant. The Defendant had a much larger team based at Streetly and therefore it was at least possible for one of those engineers to come to their premises. Again, it seems to me that the obvious explanation as to why neither Ms Davis nor Ms Roberts thought that this possibility needed to be explored was because neither of them considered that any of the three items at the Claimant's premises was urgent. Given that lack of urgency, and the possibility, as it existed in mid-afternoon, that Mr Burrows might be able to get there before the end of the day, depending on how the work went at Brintons, it seems to me unrealistic to criticise the Defendant for not trying to arrange for one of their other engineers to visit the Claimant's premises, particularly when such a person would not be the usual engineer who repaired the Claimant's fork lift trucks. D5 The Later Calls

[122]It appears that, back at the Claimant's premises, Mr Blakemore was not overly-concerned about the "conked out" fork lift truck. He made no attempt to ring the Defendant again. However, Mr Rooney was not so happy: being concerned with the production side, it is perhaps unsurprising that he was more concerned about something being done about the truck because of its effect or potential effect on the Claimant's production. Accordingly, it appears that, later in the afternoon, he chased Mr Blakemore, who duly rang the Defendant again. On that occasion, he was told that Lillian Davis from Shropshire Forklift Services would contact him shortly. It seems that Ms Davis rang him back at about 4.30 pm. Again there is a dispute about precisely what was said. However, I am clear that Ms Davis did not say, and did not promise, that an engineer would definitely attend at the Claimant's premises that day. Although Mr Blakemore's evidence was that – during this call – he said that the fork lift truck was restricting the Claimant's operations and that it was important that it moved, he accepted that Ms Davies did not go further than agreeing to do her best to get somebody there before the end of the day. Mr Blakemore fairly conceded in cross-examination that "I made the assumption that doing their best would get somebody there to fix the truck". Accordingly, to the extent that it remains in dispute, I find that, during that second telephone call, Ms Davis did not promise that an engineer would definitely get to the Claimant's premises that day. I accept her evidence that this is not something that she ever did. She said:

"I never promise an engineer on any day. You cannot promise an engineer, because you do not know what that engineer is doing at the time or how long his job that he is out on, which Simon was at the time, would take. So you can never promise to go that day. You would go as soon as possible."

[123]It appears that, shortly after this conversation, Mr Burrows rang in to Ms Davis, as he always did at the end of the day. In cross-examination he accepted that, during the course of this call, Ms Davis asked him if he could call in at the Claimant's premises. He said that he made it clear that it was very unlikely that he would be able to get there that evening and that he would go first thing in the morning. He reiterated that, as he put it, "there was no urgency stressed". He said that he made it very clear that it was very unlikely he would be able to go that evening.

[124]He finished his work at Brintons at about 4.45 pm and he then drove home, a 45 minute journey which he was apparently allowed to set against his working day. He got home at 5.30 pm. He was cross-examined on the basis that he should have looked into the Claimant's premises on his way home, since he would have had to have passed those premises in his car. He again said that he did not go into the Claimant's premises because it was the end of his working day and because he had no reason to go that evening rather than in the morning. He accepted that "if it had been stressed to me that it was urgent" he would have called in to the Claimant's premises.

[125]Again, therefore, Mr Burrows' decision to visit the following day comes back to the question of urgency, and the Defendant's understanding of the nature of the problem with the fork lift truck. It seems clear that the Defendant, and Mr Burrows in particular, may well have acted differently if anybody had stressed the urgency of the repair to the fork lift truck. For the reasons which I have given, I find that Mr Blakemore did not stress the urgency of the repair work to the fork lift truck at any stage during his two telephone calls and that, although the fact that he had rung a second time must have indicated that the job was of greater significance than he had perhaps stated 3 hours before, by then, since it was half past four, the chances of getting an engineer to the Claimant's premises had been significantly reduced. For the avoidance of doubt, I consider that any criticism of Mr Burrows' non-attendance on 8 July 2002 to be both unfair and unrealistic; it is only with hindsight that one could even argue that he should have called in to check over an apparently insignificant job on his way home from another site where he had already carried out a full day's work.

[126]Back at the Claimant's premises, it was becoming apparent that no engineer was going to come until the following day. Whilst Mr Rooney was concerned about that from a production point of view, it does not appear that it ever occurred to him that it would be dangerous to leave the truck in position overnight. "Q : ... It never occurred to you that the truck in that condition, left in that position, was a fire risk? A: No Q: That did not occur to you? A: No Q: In an ideal world, you wanted Jofsons' engineer to turn up and mend the whole thing so it was back available for use? A: Correct." A: No Q: That did not occur to you? A: No A: Correct."

A: No

[127]By about 6 pm, it was clear to everybody that no-one from the Defendant was coming until the following day. Mr Rooney said that "once it had gone past 6 o'clock or whatever, I knew that there would not be anybody turning up." D6 The Night Shift

[128]It is very unclear what happened on the night shift: nobody who worked the night shift between the 8/9 July 2002 was interviewed by Dr Lavender after the fire, and none of them gave evidence before me. It is therefore unclear whether anybody endeavoured to move the truck during this period. Mr Roberts and Mr Love both gave evidence that they had heard it suggested, in the aftermath of the fire, that somebody on the nightshift had tried to move the truck and that it was this that had caused the cables to become re-entangled in the mast mechanism and the fire to commence. However, it was accepted that this was simply a rumour and a range of witnesses called by the Claimant, including Mr Brookes, Mr Rooney, Mr Garbett and Miss Peevor, all emphatically denied hearing such a rumour. They all said that, had there been such a rumour, they would have heard it.

[129]It is the Claimant's case that the mast mechanism moved during the night as a result of the changes in pressure in the hydraulics and it was this movement that caused the cables to move and come into contact either with each other or an earth, thereby creating a further spark leading to the fire. They derived some assistance in this theory from Mr Garbett's evidence that, before he finished work on the afternoon shift, he had heard a creaking noise coming from the truck. Of course, the difficulty with this theory from the Claimant's perspective was that, if it was the hydraulic movement of the mast which caused the cables to move, and thereby come into contact with one another or with an earth and thus cause the fire, it meant that the truck had been left in an extremely volatile condition by Mr Blakemore, where any sort of minor movement could have triggered the fire. Their alternative case, that the cables were moved by a gust of wind from an open door, again highlighted the dangerous situation in which the truck had been left by Mr Blakemore, and again confirmed the importance of his failure to isolate the cables (paragraphs 106 - 109 above).

[130]Another difficulty for the Claimant was that, if the truck was not touched by anybody, it was hard to say how it was that the fire brigade found that the battery cover had been opened after the fire. The Claimant maintained that it could have been opened by the fire brigade themselves, but that possibility seemed remote, given that it was not even mentioned in the fire officer's report. There was also no evidence to that effect. Moreover, nobody could identify why the fire brigade would have had any reason to open the cover. A related difficulty concerned the fact that, after the fire, the cables were found caught in the mast mechanism. If, as I have found, Mr Blakemore did what he told the fire officer that he had done, and removed the cables from the mast mechanism before 1 pm, then how did the cables get back into the mast mechanism during the night shift?

[131]I reject the Defendant's case that somebody tried to move the fork lift truck. There was no evidence of that except the evidence of rumour, which I discount. On the other hand, it also seems to me that the Claimant's case is inherently unlikely, because it does not explain how cables, which were plainly disentangled from the mast by Mr Blakemore, got back into that mast mechanism some 16 hours later. The Claimant's case also does not plausibly explain how the battery cover was found to be open after the fire.

[132]It seems to me that the only explanation for the position of the cables after the fire and the open cover is the one referred to by Mr Slater QC in cross-examination: that, at some stage during the night shift, somebody thought they would take a look at the truck themselves. They opened the battery cover, and the disturbed cables slid back into the mast mechanism. The conditions for the fire were thus created. That is the only possibility which explains why the battery cover was open and why the cables were back in the mast at the time of the fire. It also accords with Dr Lavender's admission that human intervention was the most likely cause of the disturbance to the cables. D7 The Fire Itself

[133]It appears that, at about 5 am on the morning of 9 July, the fork lift truck caught fire. Mr Roberts was in the maintenance department when the alarm sounded. The factory was evacuated. Mr Roberts went to investigate but found the warehouse "thick with smoke". It appears that both Mr Roberts, and the security guard, Mr Love, telephoned the fire brigade. The call was received at about 2 minutes past 5 and the appliance attended the incident within 7 minutes.

[134]The fire brigade found a considerable amount of smoke but could see no flames. Fire-fighters with breathing apparatus went into the warehouse, found the location of the fire, and mounted an attack on the fire using a main jet and a hose reel jet. The fire was brought under control relatively quickly.

[135]The fire caused considerable damage to the palletised racking, parts of the roof structure, and the material stored on the racking. The fork lift truck was effectively destroyed by the fire, although there are photographs of it in its burnt-out state. In the fire report put together by Station Officer B. E. Downes, it was recorded that:

"The area of most severe damage was centred on a section of the palletised storage racking, and an accumulator battery powered fork lift truck, in the warehouse area … Patterns of fire damage indicate clearly that the incident originated in the vicinity of the fork lift truck."

[136]It is clear that Station Officer Downes was told of the events of the previous day. It was in this connection that he spoke to Mr Blakemore who (as we have seen), he described as "guarded in the explanations he was giving as he may have formed the opinion that he may have been in some way responsible for the fire". The report went on to try and work out how it was that a fork lift truck which had not been touched since lunchtime the previous day had caught fire at 5 am the following morning. The report concluded:

"It is difficult to speculate on the exact cause of the fire that was detected by the fire alarm system at 0502 hours. The fork lift truck had clearly been in position for many hours after it failed with no fire occurring. It may be that a physical factor such as a draught from an open door caused a damaged conductor to short onto a metal component of the truck causing sparks or heat that ignited insulation or nearby packing materials. It may be, although I consider it less likely, that wiring had been overheating for some 16 hours, since the original fault, before causing a fire capable of being detected by the smoke sensors."

D8 Aftermath

[137]Mr Burrows attended the factory the following day in order to carry out the maintenance work to the fork lift truck. He had not been told about the fire. He witnessed the conversation between Mr Rooney and Mr Blakemore and confirmed that Mr Rooney told Mr Blakemore that he should have insulated the damaged cables (paragraph 106 above).

[138]The following day, namely 10 July 2002, the site was attended by Dr Lavender of Burgoynes. He had been instructed on behalf of the Claimant and it was his task to investigate the fire. In accordance with the usual procedures adopted by representatives of Burgoynes, and other well-known fire investigation companies, Dr Lavender interviewed a wide range of people (albeit nobody who had been on the night shift) and made contemporaneous notes of his conversations with them. These notes were extremely helpful and I have already referred to various entries within those notes in this Judgment. Unfortunately, it appears that Dr Lavender's notes were not provided to the Defendant's experts until the service of his report in these proceedings, almost 4 years later. Even more unfortunate was the failure to show Dr Lavender's notes to a number of the witnesses called by the Claimant at the time that those witnesses were preparing their written witness statements. I am in no doubt that it would have assisted them (and the court) if that had been done. It may also have avoided some of the debates at the trial.

[139]Another event that occurred after the fire was the preparation of a memo by Mr Fiddler, the Defendant's general manager, dated 22 July 2002. The Claimant relied on Mr Fiddler's memo, because, it said, it indicated an acceptance of responsibility on the part of the Defendant for the fire. It was also suggested that the recommendations as to procedure made in this memo would, if they had been in force at the time of the fire, have prevented the fire.

[140]I am bound to say that I reject both contentions. It seems to me that this memo was endeavouring to work out the cause of the fire and, since that seems to have been a problem with the fork lift truck, endeavouring to identify ways in which the Defendant's standard of equipment/maintenance might be improved. It seems to me that this was a perfectly reasonable response to the situation. It was not, on any view, an acceptance of liability on the part of the Defendant.

[141]As I made clear in argument, I also reject the suggestion that, if the recommendations as to procedure identified in the memo had been in place, the fire would still have happened. That was because, for the reasons which I have already explained at some length, this job would not have been given a "priority red" status, because at no stage was the urgency of the job stressed to the Defendant's operatives. Therefore, even with these recommendations in place before 8 July, the fire would still have happened. Mr Crowley pursued with Mr Fiddler the probability that, if these recommendations had been in place, it would have been apparent by the end of the day on 8 July that no engineer was coming from the Defendant until the following day. But as Mr Fiddler pointed out, everybody knew by about 6 pm that nobody was coming from the Defendant until the following day: indeed, that was Mr Rooney's express evidence on the point. For all these reasons, therefore, I reject the suggestion that the memo from Mr Fiddler of 22 July 2002 has any significance in this case. D9 The Other Two Trucks

[142]Shortly after the fire the Claimant company was taken over and, regrettably, their busy factory in Telford was closed down. The other two fork lift trucks were taken back by the Defendant and hired out to Douwe Egberts and Trenchex. The evidence was that these trucks worked perfectly satisfactorily for their new operators and that, although no changes were made to the batteries or the cables or any other component part of the fork lift truck mechanism, there were no problems at either site as a result of the battery change-over procedure and the length of the cables.

[143]Particular evidence on this point came from the Defendant's Mr Martin, in a (late) statement dated 28.4.06. He explained that the trucks were supplied with "the same length battery cables as had been the case at Telford Foods". He exhibited the maintenance records in respect of both trucks and concluded that "there were no incidents of cable damage occurring to either of these trucks whilst at Douwe and Trenchex". E. LIABILITY/THE CABLES 148. E1 Did The Truck Comply With The Terms As To Quality?

[144]As set out in Section B2 above, there were a number of implied terms in the contract concerned with quality. On the basis of the Claimant's case as opened and closed by Mr Crowley, it appears that the principal allegation of breach was that the truck was not safe and/or unfit for its purpose. I deal with that allegation in detail below. However, in relation to the specific allegation of unfitness for purpose, it should be remembered that the truck was used by the Claimant for two years prior to the fire. The only difficulty that arose during that two year period was the brief spate of incidents involving damaged cables in the summer of 2001 and, for the reasons set out in paragraphs 84 - 90 above, I consider that this was due to the drivers' failure to stow the cables correctly rather than any problem with the fitness for the purpose of the truck itself. Accordingly, it seems to me that the Claimant's principal case in contract must be that the truck, and in particular the cables that were supplied, was unsafe and therefore comprised a breach of the 1982 Act.

[145]Although the Claimant's pleaded case is not entirely clear, it seems that the allegations as to safety (and/or fitness for purpose) really boil down to three principal areas of criticism. First, it appears to be the Claimant's case that the cables were inherently unsafe because their length meant that they had to be stowed in a particular way or there was a significant risk that they would fall out from beneath the battery cover. The second, and related, criticism appears to be that a clip or some other restraining device should have been used so as to keep the cables secure. The third point is that, in some way, the lower lip on the battery was unsafe and only increased the risk that, if the lip was facing the mast, the cable would fall out from beneath the battery cover.

[146]I have no hesitation in rejecting each of these three criticisms. In my judgment, the fork lift truck in question was entirely safe and fit for its purpose. I find that there was no breach of contract on the part of the Defendant. There are five specific reasons for this conclusion, set out below.

(a) The History of the Truck

[147]My first reason for rejecting the suggestion that the truck was unsafe and/or unfit for its purpose (and therefore supplied in breach of contact) is by reference to its history of use at the Claimant's premises. The three trucks were operated without any significant difficulty for two years. Mr Garbett said that he had used the trucks quite happily since the summer of 2001 and had never experienced any problems at all. Mr A'Court was equally clear:

"Q: It follows from that, Mr A'Court, that so far as you were concerned you thought your fork lift trucks were perfectly safe; correct? A: Yes. Q: You had no occasion to complain about them? A: If I did not think they were safe, I would have sounded warning bells. Q: You did not think there was anything defective about them? A: No."

Q: You had no occasion to complain about them? Q: You did not think there was anything defective about them? A: No."

E. LIABILITY/THE CABLES

[148]The principal point underlying the criticism, namely the length of the battery cables, was something that was known to Mr A'Court, Mr Garbett and others, from the first day that the trucks were in use at the Claimant's premises in Telford. At no time did any of them consider that the longer cables represented a problem. That is, in my judgment, powerful evidence that there was nothing inherently unsafe about these trucks, a point that Mr A'Court reiterated in his evidence.

(b) Their Safe Operation Elsewhere

[149]There is a considerable body of evidence in this case that fork lift trucks similar to the ones supplied by the Defendant to the Claimant, with cables that were of similar lengths to those in use at the Claimant's premises, operated entirely satisfactorily elsewhere without any difficulties resulting from the length of the cables. It seems to me impossible, in the light of that evidence, to conclude that the particular truck that caught fire at the Claimant's premises was unsafe because of the length of its cables, in circumstances where cables of that length were (and remain) in satisfactory use all over the country.

[150]I heard evidence that similar trucks, with cable lengths of similar dimensions, were in use at Strides (see paragraphs 91 – 95 above). These trucks were supplied by the Defendant. The evidence as to their satisfactory performance came from Mr Hipkins who explained that, in respect of the four fork lift trucks hired by Strides from the Defendant, there had been only two incidents involving the battery, and both of those were events concerned with the plug. They were wholly unconnected with the length of the cables and the risk that the cables might get caught in the mast mechanism.

[151]Mr Crowley endeavoured to demonstrate that there were differences between the conditions at Strides and those at the Claimant's premises. Of course I accept that no premises are ever precisely the same and no fork lift truck will ever be operated in precisely the same way. However, on any view, the evidence was that the similarities between the two sets of conditions were far greater than the differences. The cable lengths were the same. The need to stow the cables carefully was the same, even if, at Strides, different stowage methods might have been used from time to time. The overall infrequency of any problems with the battery cables or plugs was also something which the Claimant's premises shared with Strides. And, although there were doubtless some differences in the floor/ground surface over which the trucks travelled, the Claimant's own expert evidence established that there was no significant difference between the floor surfaces, and the effect that those surfaces would have had on the trucks passing across them.

[152]The Defendant's experts carried out some tests at Strides without notifying the Claimant's experts. There were also some later tests witnessed by all the experts. The tests took place at the Claimant's premises, at Strides, and at the Defendant's premises. Those tests (which were recorded on a DVD which was played as part of the evidence) showed that, in general terms, properly stowed cables did not fall out from under the battery cover and did not therefore snag in the mast mechanism. There was, at worst, a little bit of movement of the cables under the cover, but nothing more. Of course, such tests only confirmed the experience at Strides, namely that these trucks were entirely safe and did not give rise to safety issues.

[153]But the evidence of the safe use of trucks with cables of this length was not limited to Strides. I have already referred, at paragraphs 141 and 142 above, to the later use of the two sister trucks at Douwe Egberts and Trenchex. Again, there can be no doubt that these trucks were satisfactorily used at those premises without any concerns over the length of the cables or any related safety issues.

[154]In fact, the evidence of the safe use of cables of the same length as those supplied by the Defendant to the Claimant was even more extensive than the experience at Strides, Douwe Egberts and Trenchex. Mr Tredray, the Defendant's expert engineer, carried out relatively extensive research on the topic of cable lengths and the use of cables of this sort of length by other fork lift truck manufacturers and users. He identified five different companies with whom he had discussed the situation, including three of the largest suppliers of fork lift trucks in the UK: Jungheinrich, Barloworld and Finnings of Cannock. As he put it at paragraph 5.7.4 of his report:

"None of these persons were aware of any problems with cables falling off battery boxes."

It appears that Mr Clifton of Finnings was aware of one instance of battery cables being trapped in the mast mechanism and his investigation had led him to conclude that the incident had occurred because the cables "had been incorrectly stowed by the truck operator".

[155]In addition, Mr Tredray had examined a series of trucks at Finnings, at Jungheinrich and at the Defendant's premises, a total of 16 in all. The vast majority of these had cables which were about the same length as the cables on the truck in question. Again, this research demonstrated that cables of this sort of length were not only safe, but in common use all over the country.

(c) Cable Lengths Not Contrary To Any Recommendation Or Standard

[156]My third reason for concluding that there was nothing inherently unsafe with the cable lengths of 1.8/1.9m supplied by the Defendant to the Claimant arises from the fact that, in my judgment, such lengths were not contrary to any industry standard or unequivocal manufacturers' recommendation. Again, Appendix C of Mr Tredray's report demonstrated that cables of this length have been, and remain, in use all over the country. It may well be that now, in 2006, manufacturers are leaning towards shorter cable lengths, with extension leads for battery change-over purposes: that certainly seems to be the result of the researches carried out independently by both Mr Robinson and Mr Tredray. But there is nothing in any of the documents, and there was no other evidence, to indicate that there is, even now, any clear recommendation or technical standard which positively requires shorter cable lengths. There is certainly no evidence that there was any such recommendation or industry standard in existence at the time that the contract was made in 2000, or at the time of the fire in 2002.

[157]Mr Martin was cross-examined on this topic for some time. He reiterated that, at the time that the contract was made, Mitsubishi had no recommendations as to cable lengths. Further, in my judgment, no such recommendations or standards (either from 2000 or thereafter) were ever identified. The closest that the Claimant got was an email from Hamech, the suppliers, to Mitsubishi, and a reply, dated May 2004, which was almost two years after the fire, and thus of limited relevance. Moreover, in my judgment, even this email did not purport to set out any recommendations as such. It merely identified cable lengths for warehouse trucks. Although it indicated cable lengths in a range from 800 mm to 1100 mm for a RB14 truck, the e.mail did not say that cables longer than 1100 mm were somehow dangerous or not recommended. The other document emanating from Mitsubishi, namely their brochure from 1997, merely showed shorter cables in the photograph of the truck. There is no doubt that shorter cables, and extension leads, have been in use for some time, and are now becoming the norm, but that does not mean that, even in 2006, longer cables are automatically prohibited, or even contrary to the manufacturer's recommendations.

[158]In my judgment, the absence of any technical literature or clear manufacturer's recommendations as to cable lengths (dating from 2000, or 2002, or even today) put the Claimant in a certain amount of difficulty. That difficulty was, of course, compounded by Mr Tredray's researches, which demonstrated clearly that, as a matter of practice, cable lengths of the kind similar to the cables at the Claimant's premises are still in wide use today. In all those circumstances, it is impossible to conclude that cables of 1.8/1.9m were supplied by the Defendant in breach of any sort of recommendation or industry standard. The cables were, therefore, not unsafe and did not render the trucks unfit for their purpose.

(d) Clips/Restraints

[159]I can deal with this point shortly. Mr Robinson suggested that clips could have been used which would have held the cables in place. However, he accepted that he had no relevant design experience in respect of fork lift trucks and his recommendation was entirely general. It was not explained by Mr Robinson how such clips could have worked in practice. They were not used at Strides, and no UK factory where they were used was identified.

[160]Mr Tredray, on the other hand, had a large amount of experience in relation to fork lift trucks and their design. He explained in some detail how and why such clips could not work in practice. In the end, the point seemed to come down to a rather simplistic allegation that plastic clips from a DIY catalogue might have been capable of being fitted to the battery in such a way as to restrain the cables. However, since Mr Robinson had no relevant experience, and there was no evidence that any such clips were in use anywhere in the UK, I regard it as fanciful now to suggest that, in some way, the truck was unsafe or unfit for its purpose, because no such clips were supplied. If that were right, then all trucks with longer cables and no clips in use in this country would be unsafe, and the source of numerous cable-damage incidents. The evidence was quite the contrary.

(e) The Lower Lip

[161]I can also deal shortly with this part of the Claimant's case. It seemed to me that, despite rather a lot of debate on the point, the question of the alleged lower lip (and its positioning) was completely irrelevant to the safe operation of the truck. On the evidence, the longer cables were quite safe if they were stowed correctly, and this was so whether the lower lip was pointing towards the mast or pointing towards the driver. The evidence was that at Strides the lower lip was always pointing towards the mast and, for the reasons set out above, they never had any problems with this configuration. The evidence from the tests carried out by the experts was that, if the cables were properly stowed, they would not fall out, wherever the lip was. Accordingly, I reject the suggestion that the lower lip on the battery was in some way unsafe. I consider that it was quite irrelevant, both to the safety of the truck generally, or to the events on the 8/9 July 2002.

(f) Summary On Safety/Fitness For Purpose

[162]In essence, it seems to me that the case against the Defendant relating to the safety or fitness for purpose of the truck can be boiled down to one rather startling proposition. Given that Mr Robinson accepted (paragraph 98 above) that the cables had probably fallen out as a result of Mr Garbett's failure to stow the cables correctly, the Claimant was driven to argue that the fork lift truck was unsafe/unfit because the only thing preventing snagging of/damage to the cables was the driver's ability to stow the cables properly during use. Although I do not accept as accurate all of Mr Slater QC's colourful summations of the various elements of the Claimant's case, I do agree with him when he says that the essence of this critical allegation is therefore the Defendant's purported failure to make the truck "idiot-proof". It does seem to me that the root of the Claimant's case is that the truck that the Defendant supplied was deficient because its safety and/or fitness for purpose depended on the driver properly stowing the cables following the battery change-over.

[163]Of course, such a proposition only has to be stated for the flaws in it to be apparent. Equipment can never be designed so as to avoid all the consequences of human error. The designers and suppliers of equipment for use in commercial premises must always ensure that they have done all that they reasonably can to minimise the consequences of such error. But it is impossible to design out every potential human mistake or accident.

[164]In the present case, as Mr Garbett attested, the stowage of the cables was not a difficult matter. Once a driver was used to it, it seems to me that it would have taken a matter of seconds, following the battery change over, for the cables to be safely stored under the battery lid. Given that, in the present case, it is agreed that the most likely cause of the cables being caught in the mast was the failure to follow the correct stowage procedure, I reject the suggestion that the Defendant should (or even could) have supplied a truck that, in some way, was designed to negate the consequence of such a stowage error.

[165]For all these reasons, therefore, I am in no doubt that the trucks supplied by the Defendant were safe, fit for their purpose, and entirely in accordance with the terms, both express and implied, of the contract. I therefore reject the Claimant's primary case as to the liability of the Defendant for breach of contract. E2 Did The Truck Comply With Any Duty Of Care?

[166]The answer to this question is plainly yes, for the same reasons set out in Section E1 above. Accordingly, to the extent that the Defendant owed a separate duty of care at common law to the Claimant in respect of the supply of the truck, it is clear that the Defendant complied with that duty.

[167]Of particular relevance to any allegation that there was a failure on the part of the Defendant to exercise reasonable skill and care in and about the supply of the truck are my conclusions at paragraphs 156 - 158 above to the effect that the supply of cables that were 1.8/1.9m long was not a failure to meet any specific recommendations or technical requirements. To succeed on an allegation of this sort, a claimant will usually need to demonstrate that the supplier was in breach of duty because that which was being supplied was not in accordance with an industry standard or manufacturer's recommendation. For the reasons set out in those paragraphs above, I have concluded that, far from being contrary to the industry standard, the cable lengths in the present case were commonly in use, in 2000, in 2002 and (albeit perhaps in reduced quantities) even today. There can therefore be no question of negligence on the part of the Defendant in the supply of this truck. E3 Duty To Warn

[168]I refer to paragraphs 21 - 22 above. There I concluded that if, in the performance of their maintenance/repair obligations, the Defendant became aware of something which indicated that the Claimant was using the truck in a way that was causing repeated damage, and/or which might give rise to a risk to health and safety, the Defendant was obliged, either in contract or at common law, to bring that matter to the attention of the Claimant. At paragraphs 77 - 90 above I have concluded that, in the summer of 2001, there was, for a short period, a problem with the stowage of the cables, and that this was a matter that was addressed by Mr Burrows. With one exception, this problem did not arise again before the fire. Accordingly, for the avoidance of doubt, I find that any contractual or tortious duty to warn on the part of the Defendant was fulfilled. I do not consider that any criticism can be made of the Defendant's maintenance and repair service provided in the two years before the fire.

[169]I should make it plain that this conclusion is based entirely on the primary facts. I do not arrive at this conclusion simply because the maintenance and repair work carried out by the Defendant (including the damage to the cables) was signed off by the Claimant as being the Claimant's responsibility. If the facts had indicated that, in truth, these matters were the Defendant's responsibility, I would have found that the fact that the SVR's had been signed off saying something else was quite irrelevant. As it is, the fact that the SVR's have been signed off as being the Claimant's responsibility merely confirms (but not more) my findings of fact: that the matters which were the subject of the SVR's were the Claimant's responsibility, because they stemmed from a failure to stow the cables safely, and were dealt with properly by the Defendant.

F. LIABILITY/FAMILIARISATION TRAINING

[170]I can take this second part of the Claimant's case on contractual liability much more shortly. The relevant facts are set out in Section C3 above. In short, there is no dispute that the Defendant carried out familiarisation training which was, certainly at the time, regarded as entirely satisfactory. The criticism now appears to be that, in some way, the familiarisation training should have involved (but did not) a session demonstrating to the drivers the correct method of stowing the cables.

[171]I reject any such criticism. There was no reason why the Defendant needed to train the Claimant's drivers in the correct method of stowing the cables; indeed, it might be thought that this was entirely a matter for the individual driver. But in any event, the evidence from Mr Garbett was clear, to the effect that he was shown how to stow the cables by Beacon Training. He confirmed that it was not a difficult process to master. From my observations, it appeared to be very largely a matter of common sense. Accordingly, even if (which I do not accept) the Defendant should have shown the Claimant's drivers (as part of the familiarisation training session) how to stow the cables, it was an omission which was made good by the Claimant's own in-house trainers, Beacon Training. There is no suggestion that Beacon somehow failed to train the drivers to stow the cables correctly. Indeed, Mr Garbett's evidence was to the contrary.

[172]Accordingly, I do not consider that there was any failure on the part of the Defendant to carry out familiarisation training in accordance with the contract. For the same reasons, I do not consider that the Defendant failed to exercise reasonable skill and care in the carrying out of such familiarisation training. Moreover, if one or both of those findings are wrong, any omission on the part of the Defendant was made good by Beacon Training, who did show the Claimant's drivers how to stow the cables. For all those reasons, therefore, it seems to me that the claim in respect of familiarisation training must fail. G. LIABILITY/NON-ATTENDANCE OF MR BURROWS 178. G1 The True Nature Of The Contractual Obligation

[173]I have dealt at some length in Section B4 above with the true nature of the Defendant's contractual obligation in respect of repairs and services. I have concluded that the principal obligation was to carry out and provide all necessary repairs "as quickly as reasonably possible". I have also confirmed that, pursuant to the letter of 30 May 2000 'as quickly as reasonably possible' embraced a usual – but not a guaranteed - response time of 4 working hours, which may or may not have involved a visit to the Claimant's premises. I have rejected the Claimant's case that the Defendant was obliged to visit the Claimant's premises within 4 hours of notification at about 1 pm on 8 July 2002 unless such a visit was impossible.

[174]It may be that, as a result of my rejection of the Claimant's primary way of putting their case on the contract, much of this part of the case falls away. It appeared from Mr Crowley's opening and closing submissions that the allegation as to attendance relied heavily on his construction of this obligation, namely that the Defendant was obliged to visit within 4 hours unless it was impossible. The Claimant's alternative case on the facts, on the basis that the obligation was limited to responding as quickly as reasonably possible, was not easy to discern. However, I deal with what I perceive to be the Claimant's alternative case below. G2 Relevant Circumstances

[175]In my judgment, deciding whether or not the Defendant carried out the repairs "as quickly as reasonably possible" depends on all the facts. I have set out what I consider to be the relevant facts in Section D3, Section D4 and Section D5 above. It seems to me that the material considerations for present purposes are: the nature of the problem with the truck as stated by the Claimant to the Defendant; the urgency of the problem as stated by the Claimant to the Defendant; the usual procedure adopted by the Defendant and thereby accepted by the Claimant; and the other commitments of the Defendant, in particular those of its engineer, Mr Burrows. For the reasons set out below, I consider that, by reference to all these factors, the decision by Mr Burrows that he would carry out the necessary repairs in the morning of the 9 July, and not outside his (and the Defendant's) normal working hours on the evening of 8 July, was not a breach of the Defendant's obligations as to maintenance and repair as set out in the contract.

(a) Stated Problem

[176]The Defendant's decision as to how to respond to Mr Blakemore's call and when to send a maintenance engineer to visit the Claimant's premises was going to turn on a variety of factors. One of the most important was the nature of the problem as stated by the Claimant (in this instance, Mr Blakemore) to the Defendant. After all, in assessing the nature of the problem with the truck, the Defendant was entirely dependant upon the information provided by the Claimant in their first notification of the problem.

[177]For the reasons set out in paragraphs 110 - 118 above, I have found that Mr Blakemore did not tell Ms Evans that there was any particular difficulty in respect of the RB14 fork lift truck. In the conversation, Mr Blakemore identified three different pieces of equipment, on hire from the Defendant, which needed to be considered by the maintenance engineer, of which the RB14 fork lift truck was only one. Moreover, the truck in question was only the second of the three items referred to by Mr Blakemore. In addition, I have found that Mr Blakemore made no reference at all to the sparking that had been seen by Miss Peevor; neither did he make any suggestion that the fork lift truck was or might be dangerous. It appears clear from Ms Evans' contemporaneous note that the only thing that Mr Blakemore said was that there were "broken wires". In those circumstances, it seems to me that the Defendant cannot now be criticised because, when this information was passed on to Shropshire Forklift Services, it was not a matter that was regarded as particularly important or significant.

G. LIABILITY/NON-ATTENDANCE OF MR BURROWS

[178]The Defendant had to respond to the problem, but the speed and nature of its response was always going to depend, in large part, on the nature of the problem that had been identified by the Claimant in the first place. It seems to me that the problem, identified as the middle one of three by Mr Blakemore in his conversation with Ms Evans, was not expressed to be particularly serious or particularly important. That information, therefore, inevitably shaped the Defendant's response time.

(b) Stated Urgency

[179]Of course, linked to the fact that Mr Blakemore did not stress the significance of the problem with the truck was his failure to express any sort of urgency. For the reasons set out at paragraphs 114 and 115 above, I have accepted Ms Evans' evidence that, if Mr Blakemore had indicated that the problem was urgent, she would have written it down and it would have been passed on to Shropshire Forklift Services. I have found that Mr Blakemore did not say that the job was urgent, which is of course entirely consistent with the fact that it was only the second of the three items he identified as requiring the Defendant's attention.

[180]Again, it seems to me that a crucial factor in any consideration of whether or not the Defendant responded as quickly as reasonably possible, was the stated urgency of the problem. Again, the Defendant was entirely dependant upon the Claimant for this information; if the Claimant failed to stress the urgency of the problem with the fork lift truck, it cannot now be for the Defendant to be criticised in consequence. As both Mrs Davis and Mr Burrows made clear, things might have been very different if the Claimant, through Mr Blakemore, had stressed the urgency of the problem with the truck. Because the urgency was not stressed, Mr Burrows did not consider that it mattered that he completed his scheduled maintenance at Brintons on 8 July and attended the Claimant's premises on the morning of the 9th.

[181]I should also say this about the perceived urgency of the job. I do not consider that Mr Blakemore can be criticised because, in his telephone call with Ms Evans, he did not stress its urgency. It does not appear that anybody at the Claimant's premises considered that the job was particularly urgent, particularly from a safety point of view. Obviously they wanted the truck repaired and there was a suggestion (although Mr Rooney seemed to go out of his way to deny it in cross-examination) that the broken down truck might affect production. But it does not appear that anybody at the Claimant's premises ever thought that the truck represented any sort of danger. As a result, it was entirely consistent with that view that no urgency was ascribed by Mr Blakemore to the need to repair the truck in his two calls to the Defendant.

(c) Usual Procedure

[182]Part of the Claimant's case on this aspect of the story was to point out that, whilst Mr Burrows was the only maintenance engineer available to Shropshire Forklift Services, there were ten engineers based at the Defendant's premises in Streetly and any one of those could have been sent during the afternoon of 8 July. It seems to me that the Claimant is right to say that one of those engineers could have been sent to their premises during that afternoon. However, in considering whether such an engineer should have been sent, it seems to me that it is reasonable to have regard to the usual maintenance/repair practice that was adopted by the Defendant and accepted by the Claimant in the two years since the contract came into effect.

[183]There can be no doubt that it was Mr Burrows, from Shropshire Forklift Services, who carried out the maintenance of these fork lift trucks on behalf of the Defendant. As far as I can tell, all of the Service Visit Reports were made out by Mr Burrows. He knew about the details of the Claimant's use of the trucks, as well as the trucks themselves, better than anybody else in either organisation. The Claimant's employees trusted him completely: see paragraphs 75-76 above. It therefore made sense for both the Claimant and the Defendant for all necessary maintenance work to be carried out by Mr Burrows unless there was a good reason why it could not be. In the present case, I find that there was no such good reason.

[184]Of course, this is where the lack of any stated significance or urgency concerning the problem with the fork lift truck becomes important again. I do not believe that the Defendant can be fairly criticised for not supplying another engineer from Streetly in circumstances where the usual engineer was Mr Burrows and there was nothing to cause the Defendant (Ms Davis in particular) to alter the usual procedure whereby Mr Burrows would attend as quickly as he reasonably could. I therefore regard it as reasonable that throughout the afternoon of 8 July, Ms Davis operated on the basis that this work would be carried out by Mr Burrows in the usual way. Of course, if the significance or urgency of the job had been stressed by Mr Blakemore to start with, then it may well be that Ms Davis could be criticised for not triggering a visit by another engineer from Streetley. However, in the absence of such emphasis, I consider that no criticism of Ms Davis is appropriate.

(d) Mr Burrows' Other Commitments

[185]The final point concerns Mr Burrows' other commitments. As set out at paragraphs 119 - 121 above, Mr Burrows was engaged on scheduled maintenance work at Brintons during the afternoon of 8 July 2002. The clear inference from Mr Crowley's cross-examination of Mr Burrows was that he should either have stopped the work at Brintons and gone straight to the Claimant's premises, or, alternatively, he should have called in at the Claimant's premises once he had finished at Brintons, even though that would have meant that he would have been working beyond his normal working day.

[186]I reject these criticisms. The mere fact that the maintenance work at Brintons was scheduled did not mean that it was any the less important or urgent as far as Brintons, and therefore the Defendant, was concerned. I can see no reason whatsoever for contending that Mr Burrows had to stop the work at Brintons, which had been pre-booked, in order to go to the Claimant's premises to deal with some "broken wires" on a fork lift truck which no-one had said, and which no-one believed, was urgent. There was simply no contractual basis on which the Claimant was entitled to such priority treatment.

[187]As to the suggestion that Mr Burrows should have called in at the end of his working day, it seems to me that this, again, is a criticism that could only be justified (if at all) if the alleged urgency of the problem with the fork lift truck had been stressed to the Defendant at the outset. Mr Burrows very fairly said that if he had been told that the work was urgent he would have called in to the Claimant's premises on his way home. Because he was not told of any urgency, he did not call in. In those circumstances, I decline to criticise Mr Burrows for deciding that the work at the Claimant's premises could wait until first thing the following morning. He was plainly entitled to reach that conclusion on the information available to him. G3 Summary

[188]For the reasons set out above, I am satisfied that the non-attendance of Mr Burrows at the Claimant's premises on the afternoon of 8 July 2002 did not constitute a breach of contract on the part of the Defendant. I do not believe that the Defendant can be criticised for deciding to attend first thing the following morning. On a proper analysis of the facts relayed by the Claimant to the Defendant, the usual procedures for maintenance and repairs, and Mr Burrows' other commitments on 8 July, I consider that his decision to visit the premises first thing on the morning of 9 July, to carry out the repair works, complied with the Defendant's contractual obligations under Clause 5(b) of the contract. I also consider that, to the extent that it makes any difference, such a decision also complied with any common law duty of care owed by the Defendant to the Claimant in respect of the maintenance and repair work which they carried out. By reason of the facts and matters set out in paragraphs 175-187 above, I reject any suggestion of negligence on the part of the Defendant in dealing with and/or responding to the problem with the truck notified to them by Mr Blakemore at lunchtime on 8 July.

[189]I should make two last points. First, even if, contrary to my earlier conclusions, the Claimant's construction of the repair obligation was correct, and Mr Burrows was obliged to visit the Claimant's premises within 4 working hours, whether or not that constituted a reasonable response time in all the circumstances, it is still not possible to conclude that the Defendant was in breach of contract. For the reasons that I have set out above, I consider that all references to 'working hours' in the contract documents are to the Defendant's working hours. The 4 working hours in this case might not have started until about 1pm: it is not possible to be more precise. If, therefore, the 4 hour period had not quite expired by 5pm, it would still be operating until just after 8.30 am the following day. On that analysis, Mr Burrows' attendance at the very start of the next day constituted a visit within 4 working hours. And secondly, even if it could have been shown that the visit was not within 4 hours, thus representing a breach of the contractual obligation as to maintenance and repair (as construed by the Claimant), clause 6(c) meant that such a breach was irrelevant unless the Claimant could also demonstrate negligence. For the reasons set out at paragraphs 175-187 above, I am entirely satisfied that there was no such negligence. The claim would therefore fail in any event. H. CAUSATION 196. H1 Introduction

[190]Of course, it follows from Section E, Section F and Section G above that, because I have concluded that the Defendant was not in breach of contract and/or negligent, the Claimant's claim against the Defendant must fail. Accordingly, on one view, any detailed consideration of the issues as to causation would be superfluous. However, in view of the parties' submissions on this part of the case, and the firm conclusions that I have reached, I consider that I should set out, in some detail, my analysis of the causation issues.

[191]Accordingly, for these purposes, it is appropriate to assume that the conclusions expressed at Section E above are incorrect and that, contrary to my findings there, the Claimant's principal allegation has been made out, and the length of the cables of this fork lift truck constituted a breach of contract on the part of the Defendant. Let us also assume, again contrary to my conclusions set out in paragraphs 28-48 above, that this breach of contract triggered a potential claim under Clause 6(c), regardless of any question of negligence. The question then becomes: was that breach of contract causative of the fire? In my judgment, the answer to that question is No. My reasons for that view are set out below. H2 The Cause Of The Fire

[192]The experts are agreed that the cause of the fire was an electrical fault. This involved the damaged cables, which were apparently moved so that they came into contact, either with one another or with a metal component of the fork lift truck, which contact caused arcing and/or sparking and led to the fire. There was a good deal of debate about how it was that, many hours after Mr Blakemore had disabled the truck, this movement of the cables came about. I have dealt with that at paragraphs 128 – 132 above. However, before coming back to consider that topic by reference to causation, it is, in my judgment, much more important to identify the reasons that this movement of the cables (however it came about) actually caused the fire to start. In my judgment, there were two. The first reason is the undisputed fact that the cables were damaged, so that the internal wires were not protected by the insulation; the second is the undisputed fact that those damaged cables were still live at the time that they were moved.

(a) Damaged Cables

[193]The parties are agreed that the cables were damaged and, in particular, that the insulation had been so damaged that the internal wiring was exposed. The parties are also agreed that this damage was caused by the fact that the cables got caught in the mast when the truck was being driven by Mr Garbett.

[194]On the evidence, the cables got caught in the mast because Mr Garbett failed to stow the cables properly. Mr Robinson confirmed that that was the probable cause of the damage to the cables (paragraph 98 above). Accordingly, even if the length of the cables comprised a breach of contract and/or duty, I do not see how or why, on the evidence with which I have been presented, that such a breach could be said to be the cause of the damage to those cables. The cables were longer than some but, on all the evidence, if they had been properly stowed, they would not have been damaged. In this particular instance, it is plain that they were not properly stowed. Thus the first cause of the fire was not the length of the cables but the fact that, on this particular occasion, the cables had not been stowed in the way in which they should have been. That was not a matter for the Defendant. That was solely the responsibility of the Claimant's driver, Mr Garbett. Thus, to the extent that it is necessary, I accept Mr Slater QC's submission that the failure to stow the cable safely was a 'novus actus interveniens', and was the first cause of the fire.

(b) Live Cables

[195]Because the cables were damaged by the failure to stow them correctly, they were the source of the original arcing and sparking. Thus it was that Mr Blakemore took steps to try and make the truck safe. Those steps included disentangling the cables from the mast mechanism in which they had been caught up, and coiling the cables on the battery cover. However, Mr Blakemore did not make any attempt to disconnect the battery cables, which meant that those cables remained live.

H. CAUSATION

[196]I have set out at paragraphs 106 - 109 above the evidence relating to Mr Blakemore's decision not to disconnect the cables. It seems to me that, whilst I well understand that Mr Blakemore had himself a personal aversion to batteries and the risks that they posed, it would not only have been possible but relatively straightforward for him, as an engineering team leader, to disconnect the batteries. It was clear that Mr Rooney expected him to take such a step. It is what a reasonably competent engineer in Mr Blakemore's position should have done. The fact that Mr Blakemore did not disconnect the cables meant that it was more likely that, if the cables moved and came into contact with one another or with an earth, there would be further arcing and/or sparking, and the real risk of fire.

[197]I ought to deal here in passing with the suggestion by the Claimant that Mr Blakemore should not have disconnected the cables because part of Clause 5(a) forbade the Claimant to repair the plant or make replacements or alterations unless authorised to do so by the Defendant. I am inclined to agree with Mr Slater QC's description of this point as a 'desperate' excuse for Mr Blakemore's failure to disconnect the cables. I consider that, if Mr Blakemore had disconnected the cables, he would not have been repairing the plant or making replacements or alterations to it but, instead, simply taking preventative action to avoid a potentially dangerous situation. I do not believe for a minute that Mr Blakemore thought about disconnecting the cables and then decided not to because of the small print in the contract. As he himself made plain, Mr Blakemore did not disconnect the cables because he had a personal aversion to the risks posed by batteries. Whilst that may be understandable, it does not affect my conclusion that Mr Blakemore should have performed the simple task of undoing the cables from the terminals. Again, therefore, to the extent that it is necessary, I find that that too was a 'novus actus', and was the second cause of the fire.

(c) Summary

[198]For these reasons, therefore, it seems to me that the cables came to be in a condition in which they could cause a fire as a result of these two matters. Neither were the responsibility of the Defendant; both were the responsibility of the Claimant or its employees. The failure to stow the cables correctly and the failure to disconnect the leads after the arcing and sparking were not matters which occurred as a result of any breach of contract or negligence on the part of the Defendant. Thus, even if, which I reject, the Defendant was in breach of contract or negligent in respect of the length of the cables supplied with the fork lift trucks, I do not consider that that breach of contract or negligence caused the fire. The fire was caused by the two matters identified above, neither of which was the Defendant's responsibility in fact or in law. H3 What Moved The Cables?

[199]Since I have set out above my conclusions on causation, I regard as largely irrelevant an investigation into the precise way in which, hours after the main incident involving the truck, the cables were moved, thereby creating the electrical fault that started the fire. However, it was the subject of factual evidence, and a good deal of argument. I have dealt with the relevant evidence at paragraphs 128 - 132 above. It seems to me that the main difficulty with the Claimant's case (that the downward movement of the hydraulic mast moved the cables) is that it is dependant upon the suggestion that the cables remained trapped in the mast mechanism; on the basis of Mr Blakemore's evidence, I reject that as very unlikely. Similarly, I reject the Claimant's alternative case, that in some way there was a draught from an open door which moved the cables. On the other hand, I reject the Defendant's case that somebody endeavoured to move the fork lift truck. There was no evidence from anybody which corroborated such a suggestion and I decline to find that that was the cause of the movement simply on the basis of rumour.

[200]However, given that the battery cover was open after the fire, and had been closed when it was left by Mr Blakemore, and given that something had to have caused the cables to move from the top of the battery cover back into the mast mechanism, it seems to me that, on balance, the most likely explanation was that somebody on the night shift opened the battery cover, which caused the cables to slide off and become entangled again in the battery mast. I am a little hampered in respect of precisely what took place because Dr Lavender did not interview anybody from the night shift after the fire and nobody on the night shift has come to court to give evidence. However, as previously noted, this likely mechanism is entirely in accordance with Dr Lavender's view that the cause of the disturbance to the cables was most likely to be human intervention.

[201]If this is the most likely way in which the cables were moved, then that is another reason why, even if there was a breach of contract on the part of the Defendant, the cause of the fire was not the responsibility of the Defendant, but the responsibility of the Claimant.

[202]However, let us assume that, contrary to that view, the Claimant's case on causation was right and that Mr Blakemore left the cables entangled in the mast to be moved later by the hydraulics or, alternatively, that the cables were moved by a sudden draught of wind in the warehouse. If either of these contentions are correct, it meant that the fork lift truck had been left by Mr Blakemore in an extremely volatile and dangerous condition. It meant that any minor movement, such as the release of air from the hydraulic system, or a sudden draught, could cause the cables to come into contact with each other or with an earth and create arcing and sparking. If that is correct, then that only serves to confirm my view that the truck had been left in an extremely dangerous condition, because of Mr Blakemore's failure to disconnect the damaged cables from the battery. Thus, even if the Claimant's case on how the fire started is right, it does not seem to me that it avails them anything, since it only serves to confirm the significance of Mr Blakemore's erroneous decision to leave the cables live. H4 Summary On Causation

[203]For these reasons, even if, contrary to my finding, the Claimant was in breach of contract (or negligent) in supplying a fork lift truck with battery cables that were 1.8/1.9m in length, I do not consider that, on the evidence, such a failure was the cause of the fire. In my opinion, the cause of the fire was Mr Garbett's failure to stow the cables correctly, and, once the cables had been damaged in consequence, Mr Blakemore's failure to disconnect those cables from the battery. My primary view is that the precise cause of the movement of the cables that led to the fire, many hours after Mr Blakemore attended to the truck, is irrelevant to the present proceedings. If it is regarded as relevant, I consider that the most likely explanation for the movement was an attempt by somebody on the night shift to open the battery cover, causing the cables, which had been coiled on top, to slide into the mast mechanism. But even if the Claimant is right, and the cause of the movement of the cables was the escape of air in the hydraulic system or a draught, this would still be something which would be traceable directly back to the decision on the part of Mr Blakemore not to disconnect the damaged cables.

[204]For all those reasons, therefore, I find that, even if the primary breach of contract alleged by the Claimant against the Defendant is made out, and even if such a breach was actionable (without negligence) under the terms of the contract (neither of which I accept), any such breach was not the cause of the fire. The causes of the fire were the two matters identified above as being the Claimant's responsibility. Thus, for causation reasons as well, I reject the Claimant's claim against the Defendant.

I. FORESEEABILITY

[205]The Defendant contended that, assuming both breach of contract/negligence and causation, the consequence in this case, namely the fire, was not foreseeable. Of course, given that the claims for breach of contract/negligence, and the Claimant's case on causation, have all failed, this argument becomes academic. However, out of deference to the careful arguments advanced by counsel, it is probably convenient if I set out my conclusions on this point.

[206]The question for me to decide is whether it was reasonably foreseeable, or alternatively in the reasonable contemplation of the parties at the time that the contract was made, that if the truck supplied was defective, then the Claimant's property might be damaged by fire. It seems to me that such a consequence was reasonably foreseeable and/or within the reasonable contemplation of the parties when the contract was made. The batteries were powerful, and a number of witnesses, not just Mr Blakemore, spoke of their wariness of the power of such batteries and the possibility of sparking. It would, I think, be unrealistic to conclude that, if there was something wrong with the cables connecting those powerful batteries to the truck itself, damage by fire was, in some way, the entirely unforeseeable consequence of such a defect.

[207]In addition, I consider that Mr Crowley is right to rely on the well known decision of the House of Lords in Hughes v Lord Advocate[1963] A.C. 837. In that case, it was decided that, provided some damage was foreseeable, then it matters not whether the damage which actually occurred was greater than might have been foreseen or arose in an unpredictable way. As Lord Reid put it:

"This accident was caused by a known source of danger, but caused in a way which could not have been foreseen, and, in my judgment, that affords no defence."

[208]Accordingly, I accept the proposition that, if there had been a breach of contract and/or negligent act or omission on the part of the <BR>Defendant, and if that breach and/or negligence had caused the fire, then the damage claimed was reasonably foreseeable. I therefore reject Mr Slater QC's submission that the damage claimed by the Claimant was unforeseeable.

J. CONTRIBUTORY NEGLIGENCE

[209]It is unnecessary for me to deal with the parties' respective arguments in relation to contributory negligence. I have concluded that there was no breach of contract and/or negligence on the part of the Defendant and I have also concluded that, even if there had been a breach of contract and/or negligence in respect of the length of the battery cables of the truck in question, that was not the cause of the fire. I have therefore rejected the Claimant's case on the two vital ingredients of their cause of action. It is therefore unnecessary for me to consider questions of contributory negligence.

K. DAMAGES

[210]As noted above, the parties have agreed quantum in the sum of £820,554.50. Of that amount, the sum of £69,061.50 is the subject of a discrete dispute. In view of my rejection of the Claimant's case on liability and causation, it is unnecessary for me to deal with this argument in any detail.

[211]Briefly, however, I ought to say that, in my judgment, the Defendant is wrong to submit that this sum, and the items that make it up, were excluded by the terms of the contract. I do not consider that these items amount to a claim under the second limb of Hadley v Baxendale. The items in question are, I think, the direct and natural consequences of the fire. If the fire had been the Defendant's responsibility in law (which, for the reasons I have explained, I do not consider that it was) the sum of £69,061.50 would have been recoverable.

L. EVIDENCE IN FIRE CASES

[212]As I have made plain at paragraph 4 above, I consider that this case has been well prepared and the trial in particular was very efficiently organised. The points that I make below are not, therefore, to be taken as criticisms of either side. They are, however, three matters which have arisen out of the evidence in this case and which I consider may be of some relevance to insurers, including not only those directly involved in this case but also other insurers who offer fire cover and get involved in claims of this type. L1 Contemporaneous Notes

[213]It is inevitable that, when a judge is faced with a dispute of fact about what was said or what was done 4 years ago, he will give considerable weight to any contemporaneous notes made at or immediately after the events in question. In that regard, I respectfully agree with what Lord Pearce said in Onassis v Vergottis [1968] 2 Lloyds 403 at 431:

"It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred."

[214]Doubtless with this common sense position in mind, those who work in the fire investigation industry are encouraged to make full and careful notes of their findings immediately after a fire. This includes the making of careful notes of their interviews with those involved in the relevant events leading up to the fire. That is precisely what happened in the present case: Dr Lavender of Burgoynes attended the Claimant's premises the day after the fire and spoke to a number of the most important witnesses, making a full handwritten note of the salient parts of his conversations. For the reasons set out by Lord Pearce, such notes were extremely important. In this Judgment, where there has been a conflict of evidence, I have preferred what was in those notes to the witnesses' later endeavours to recall what happened and why.

[215]It seems to me that, where an experienced fire investigator, like Dr Lavender in the present case, makes such notes, they should be made available to everyone at the earliest stage of the proceedings. In the present case, they were not. This resulted in Mr Garbett preparing a witness statement years after the event without the benefit of access to the notes that Dr Lavender made of their discussions the day after the fire. I have no doubt that Mr Garbett would have benefited greatly from seeing those notes. Similarly, I consider that it was unsatisfactory that Dr Lavender's notes were not provided to the Defendant and the Defendant's witnesses until service of Dr Lavender's report. It seems to me that those notes should have been provided at the outset of the litigation, and certainly no later than the time of standard disclosure. I consider that, if they had been disclosed earlier, the disputes in the present case would have been capable of better (and earlier) refinement.

[216]Thus, I hope that, in the future, those responsible for investigating the causes of fire immediately after the fire will continue to take detailed notes and conduct careful interviews with the relevant witnesses. I also hope that those notes are then provided promptly to the other parties should the fire lead on to litigation of this kind. L2 Role Of Fire Investigators

[217]There is a second point, again not unique to this case, which arose in relation to the fire investigators. The fire investigators reached the point where they had agreed what caused the fire. Thereafter, there was very little on which the fire experts could provide helpful evidence to the court. In other words, having agreed the cause of the fire, the role of Dr Lavender and Dr Fletcher was, or certainly should have been, very limited.

[218]In my judgment, whilst it was appropriate for the parties to plan for a trial that involved both fire experts and expert mechanical engineers, it ought to have been apparent to the parties before the trial that, in truth, there were no real 'fire' issues between the experts (and, as it happens in this case, precious few mechanical engineering points as well). I consider that it was not necessary for the court to hear four different experts on what were, in truth, relatively straightforward matters. I accept that fire experts were necessary at the outset of the action and that it was necessary for those fire experts to meet, to discuss their respective findings, and to see what they could agree. However, once they had agreed the cause of the fire from a technical perspective, I consider that their role was really over and that the parties could have managed with just one expert each.

[219]Thus, I would like to see parties in cases such as these take a long hard look at the statement agreed by the fire experts pursuant to CPR 35.12, to see whether, in view of the agreements reached, it is necessary or appropriate to adduce oral evidence from fire experts at the trial. There will be cases where such evidence is vital to the proper disposition of the issues by the court. But there will be many others where, because of the wide range of agreements reached, such evidence is not necessary. I believe that this was one of those cases. L3 Testing

[220]Finally, I should say a word about testing. A number of tests on fork lift trucks, and the right way to stow the cables, were carried out by the Defendant's experts. One batch of these tests was carried out without the Claimant's experts being present, or indeed without them knowing that such tests were being performed. A second batch of tests was undertaken shortly before the trial, when all experts were in attendance.

[221]It is not a good idea in cases of this sort for one side's experts to carry out tests unilaterally. This is particularly true of the sort of tests and experiments habitually carried out in fire cases. I note that paragraph 13.3.2 of the second edition of the TCC Guide provides:

"… It is imperative that, wherever possible, the parties' experts co-operate fully with one another. This is particularly important where tests, surveys, investigations, sample gathering or other technical methods of obtaining primary factual evidence are needed. It is often critical to ensure that any laboratory testing or experiments are carried out by the experts together, pursuant to an agreed procedure."

I respectfully agree with those sentiments.

[222]The risk is that, if one set of experts carries out tests unilaterally, the tests have to be repeated at a later date with the other side's experts in attendance. This leads to unnecessary work and additional cost. It also means that there can be endless debate about the circumstances in which the first, unilateral, set of tests was carried out. In the present case, I am in no doubt that the first series of tests carried out by the Defendant's experts should have been carried out in the presence of all the experts. I think that would have clarified the issues earlier and would again have saved time at the trial.

M. CONCLUSIONS

[223]For the reasons set out in Sections E, F and G below, I have concluded that the Defendant was not in breach of contract and was not in breach of any duty of care owed at common law to the Claimant. In particular, I consider that there was nothing inherently unsafe or defective about the length of the battery cables. Cables of this length are satisfactorily in use all over the country. They also performed for two years without significant problem or risk at the Claimant's premises. Their safe performance in operation depended on their being correctly stowed by the drivers but since, on the evidence, this was a relatively simple task in which all the Claimant's drivers had been trained, it is fanciful to suggest that, in some way, the truck was defective because the proper stowage of those cables relied on these (trained) drivers.

[224]For the reasons set out at Section H above, I consider that the two principal causes of the fire – namely the failure to stow the cables correctly in this particular instance, and the failure to disconnect the cables once the sparking started – were not the responsibility of the Defendant in fact or in law. Indeed, for the avoidance of doubt, I have made it plain that, even if, contrary to my primary finding, the truck was provided in breach of contract and/or in breach of duty by the Defendant to the Claimant, any such breach was not the cause of the fire.

[225]It follows from those two conclusions that the Claimant's claim must fail. The inevitable result of that is that the Defendant's counterclaim, for the value of the truck destroyed in the fire, must be paid by the Claimant. The relevant figure is £13,500.

[226]Accordingly, the Claimant's claim is dismissed. The Defendant's counterclaim, for the value of the truck that was destroyed, is allowed in the sum of £13,500. I will deal separately with any points as to interest and costs.