Drake v Harbour & Anor [2007] EWHC 1670 (TCC)

Case No HT 06 386[2007] EWHC 1670 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
St Dunstan’s House
Venue 133-137 Fetter LaneDate 11th July 2007
London, EC4A 1HD
Before
HIS HONOUR JUDGE DAVID WILCOX
Between
MRS HILDA DRAKEClaimant(1) MR ERIC ANTHONY HARBOURDefendants(2) MR ROY LEONARD WHITEDefendant
Mr Davie (instructed by Beachcroft LLP) for ClaimantMr James (instructed by Mayo Wynne Baxter LLP) for DefendantsHearing Hearing dates: 25 and 26 June 2007
Judgment
[1]On 26 June 2002 the Defendants started work rewiring the Claimant’s bungalow at 69 Northwood Avenue, Saltdean, East Sussex.[2]The Claimant had engaged the First Defendant Mr Harbour to undertake the rewiring work. Mr Harbour is an experienced electrician who was nearing retirement. He had industrial experience and had undergone a time served apprenticeship. Because he had an injured knee he engaged the Second Defendant, Mr White, to assist him. Mr White has a similar background training and experience and was able to undertake work requiring a degree of suppleness and an ability to kneel.[3]The existing wiring was old and had been added to over the years in an ad hoc way by persons who were not qualified electricians. Some of the wiring was pre 1950, as were some of the fittings and junction boxes.[4]It was arranged that Mrs Drake would vacate the bungalow and take the opportunity to visit North Wales whilst the work was being carried out.[5]The bungalow was secured by effective locks and catches. Mr Harbour had one set of keys, Mrs Drake’s nephew a second set and her daughter a third set. Mrs Drake had her own keys. No keys were left with neighbours. In the early hours of 27 June 2002 there was a catastrophic fire, which started in the loft, and consumed most of the roof and spread below. The fire brigade were on the scene by about 3.30 am. The building was secure. It had been left secure by Mr Harbour when he and Mr White had left the building at approximately 4.30 pm on 26 June 2002. The first task undertaken by the electricians was to disconnect the consumer unit and all of the circuits from the electrical supply. The consumer unit was removed from the kitchen cupboard leaving in place the Electricity Company’s cut out meter equipment and two Henley junction boxes. Mr Harbour connected a four gang extension lead into the Henley junction boxes to provide a temporary supply to the fridge freezer and to his tools. A second four gang extension lead was connected to the first. It was from the second lead that there were plug connections for the fridge and for the kettle.[6]The second stage of work involved stripping the existing electrical cables from out of the building and installing new electrical cables.[7]The loft was not completely floored. Access to the loft was through a hatchway in the kitchen ceiling. From this access were three short tongue and groove pieces of wood, which led to some chip boarding in the middle of the loft area. Around the chipboard base, until a matter of several weeks before, there had been a train set which had been installed by Mrs Drake’s late husband. It comprised a complete layout of scenery, tracking, engines, rolling stock and ancillary equipment. This was carefully removed and packed away by Mrs Drake’s son, Mr John Drake. I accept his evidence that he left the loft space clear for the electricians to work in, and importantly free of loose combustible material, cardboard, paper, packing.[8]The roof timbers at the apex were approximately 8 ft above the ceiling rafters below. The roof was a simple A frame, thus the space at the eves where the roof timbers met the ceiling timbers was very constricted. It was in these locations that old cabling was removed from and new cabling installed. Mr White worked in the loft. In the installation process he fed new cable down to Mr Harbour below in the kitchen. Mr Harbour also assisted operations in the loft by supplying tools and materials to Mr White, and in so doing the upper part of his torso was in the loft and he was able to see, hear and discern by smell in part what was going on.[9]Both Mr White and Mr Harbour gave evidence that the removal of the old wiring and ancillary equipment gave rise to a “fishy” smell that both of them associated with the disturbance of old wiring, particularly of the 1950’s vintage. Dr Moncrieff, the forensic expert who gave evidence on behalf of the Defendants, attributed the smell to the fact that some of the protective coatings on old insulating material contained urea formaldehyde. This “fishy” smell is often produced by past overheating or degrading of old cable insulation.[10]Both experts, that is Dr Moncrieff and Mr Slater on behalf of the Claimants, gave evidence that a “fishy” smell may also be an indication of present overheating taking place, and causing degradation and breakdown in the harder thermo setting plastics used in such items as lamp holders and plugs.[11]In order that Mr White should have some light to work by in the loft it was necessary to provide some temporary lighting. Around the loft at shoulder height a run of festoon cable was fixed into which had been fixed eight operative light sockets and bulbs.[12]The festoon cable comprises a robust outer insulation layer and within, in separate sheaths of insulation, are two conductive inner cables. The cable was fixed to the roof timbers using white plastic fixings through which a pin was hammered to the roof timber, causing the U shaped fixing to trap the cable against the timber.[13]The light sockets with the bulb holders are in two parts, that with the bulb socket has two sharp prongs, screws into a base plate on the opposite face of the cable. When the two parts are screwed together the prongs are forced through the outer insulation and the inner insulation of the two inner cores in such manner that they are offset to each other, and connect to the current. Because the cable is located in a specially designed seating the cable should not deform or move in this process. The use of festoon lighting is common in the construction and electrical industries. Properly assembled it affords a safe and effective means of temporary lighting for work places when operations such as rewiring and fitting out are taking place. Mr Slater, the Claimant’s expert, has an impressive experience in electrical engineering, both academically and practically. He was a time served apprentice, and is experienced in design and in forensic investigation. He gave evidence, which I accept, that the use of such lighting, given that it is properly assembled, accords with good practice and is safe. Even, were it to be the case, that it was inadvertently left alive in the loft overnight it would be just as safe as leaving a domestic light on all night. Wasteful, but safe.[14]For the closer work at eaves level in the loft Mr White used a lead lamp that was plugged into the second four gang plug. I am satisfied that in all probability it was fitted with a 100 watt bulb. It was not a specially manufactured lead light with a bulb guard to prevent the glass coming into contact with any surface or material.[15]It was used as needed when cable had to be threaded from the loft down to Mr Harbour below. I am satisfied that it was not illuminated for more than 10 minutes at a time for this purpose. Mr White said, and I accept, that he hung it over a timber and that it did not rest upon the floor. The evidence of Dr Moncrieff, based upon his experience and tests carried out for the purposes of giving evidence in this case, using a 100 watt bulb is that the fire in the loft could not have been caused by the use of the lead light with the 100 watt bulb. Firstly, it was found disconnected after the fire in the kitchen unharmed by fire. Secondly, there was no readily combustible material in the loft. Even had there been it would have taken a great deal of time for any heat to have built up, but theoretically it could have led to combustion. The lead was left detached in the kitchen at 4 pm. The fire did not occur until sometime after 3 am the following morning. Had there been any smouldering leading to much later combustion, it would have been evident in the confined space of the loft. Mr Slater in his first report, on the basis of his inspection and information given to him by the fire officer, Mr Cox, expressed the view that the fire was caused by the use, albeit intermittent, of the lead light.[16]Armed with the subsequent knowledge that a festoon light had been used, and consequent upon his examination of the remnants of the festoon light not consumed in the fire, but at kitchen level having been plugged into the first gang socket, he concluded that the fire was caused by the festoon light fitted in the loft.[17]Mr Slater’s microscopic examination shows that there was some arcing evidenced by the pitting of one of the conductors in remnant of the cable.[18]Such arcing could be the effect of fire, as well as being an initiating event causing overheating, combustion and fire.[19]Dr Moncrieff agrees with that analysis, which gives rise to the certain conclusion that the festoon cable must have been live at the time of the fire.[20]Mr Harbour in evidence said that he was confident that he had turned the festoon lights off. That means by unplugging.[21]Mr White confirmed that the festoon lights were left in the loft and he said that he was sure that they were unplugged, otherwise when he descended from the loft he would have noticed that the lights above would have been still on.[22]I am satisfied that the festoon lights were inadvertently left plugged in. Each tradesman assuming that the other had unplugged them, and, in the daylight in the kitchen in a June afternoon, they may well have been unaware that the festoon light was still on within the loft when they left and locked up. The Investigation[23]Assistant Divisional Officer Peter Cox inspected the premises at 10.15 on 27 June 2002. He took a number of photographs, and, it is evident from the photographs taken as he inspected, that various items were moved in the course of the inspection, as would be inevitable.[24]The photographs taken by Mr Cox and later that morning by Mr Slater, the Claimant’s expert, depict the four way adapter lead nearest the main electrical intake as having one plug plugged into it which fed the second four way adapter. This had two plugs plugged into it, one feeding the fridge and one feeding the kettle. Mr Cox could not identify any evidence that anything was unplugged from the first adapter after the fire.[25]However the festoon light must have been plugged in to the first adapter at the time of the fire, otherwise the arcing could not have taken place.[26]An issue arises as to how the plug for the festoon lights became detached from the first four way adapter plug.[27]It is submitted by Mr Davie, on behalf of the Claimant, that Mr White entered the premises between 8 and 9am on 27 June 2007 and removed the plug.[28]Mr White in a statement made in 2004 denied that he went into the house. In evidence he accepted that he did go just beyond the porch to recover some tools that he had left in there. In his earlier statement he deposed that he had taken his tools away the night before.[29]Mr Harbour gave oral evidence that Mr White went into the premises just beyond the double doors leading from the porch, this is some distance away from the kitchen.[30]I am satisfied that Mr White entered just inside the dining room to recover some of his tools, as confirmed by Mr Harbour.[31]The probability is that the fire investigation officer who preceded the inspection of Mr Cox, and the fire fighters themselves, could well have inadvertently dislodged the plug.[32]Mr Cox, in his contemporaneous note of 27 June 2006 following his inspection, records at paragraph 6 that:
“Mr Harbour stated only single lead lamp used and this was made up and brought down into kitchen.”
[33]Mr Harbour in evidence said that in answer to questions put he confirmed that the lead was used because he had asked about it. It was clear that the festoon light cable was in the kitchen and photographed. Mr Harbour did not volunteer the fact to Mr Cox that festoon lights had been used as well as the coil lead lamp.[34]Neither was it made evident to Mr Slater, the Claimant’s expert, that an additional form of temporary lighting was used in the loft until 31 January 2005, when he was provided with copies of witness statements made by Mr Harbour and Mr White, and the report dated 29 November 2004 prepared by Dr Andrew Moncrieff instructed on behalf of Mr Harbour. The omission is curious. Mr Harbour is being economical with the truth. He would have known on the morning after the fire that his public liability insurance cover had run out.[35]There is a further feature of Mr Harbour’s evidence that warrants caution. His evidence as to the festoon light system was that cable had been purchased new six weeks before, and was unused before 26 June 2002. The large segment recovered nearest to the second four stage adapter, a metre away from the plug, had a socket attachment fitted to it which had been covered by red insulation tape to safeguard against contact with what would have been live points within the socket. Mr Harbour’s evidence was that the sockets were fitted to the festoon cable on-site. There is no conceivable reason why a further socket should have been fitted, which would have hung in the kitchen a metre above the floor serving no useful purpose. In my judgment the cable used was not new, it had been used before. That does not mean, of course, that it lacked utility or was not safe. It is a fact that leads me to conclude that Mr Harbour was aware of his vulnerable uninsured position, and by omission and embellishment was willing to gild the lily.[36]It is a feature of this case that both Mr Harbour and Mr White smelt a “fishy” smell during 26 June 2002. Mr White said the smell dissipated after a few hours following removal of the old cable.[37]Mr Davie submits that this was the clearest indication to prudent electrical tradesmen that the equipment they were then using was defective, causing the generation of heat that could well lead to combustion and damage.[38]There is a difference of emphasis as to the significance attached to the occurrence of the “fishy” smell when undertaking rewiring work such as that embarked upon by Mr Harbour and Mr White. Both experts agree that in order to generate such a smell there must be some heat in the appliance associated with defect.[39]Dr Moncrieff goes further, and says that in his opinion, because of the chemical composition of earlier 1950’s components and the composition of the protection to insulation when the degeneration of the components and/or insulation has occurred, the fishy smell may persist and become dispersed when the equipment is physically stripped out. Both Mr Harbour and Mr White were emphatic that this was their experience, in both cases it goes back over 40 years. Their evidence, both in the earlier statements of 2004 and in those submitted to the court, spoke of the “fishy” smell, and associated it with dismantling of the old equipment and stripping out of the antique wiring.[40]Mr Davie submits, in a careful exegis of both documents, that Mr Harbour was originally asserting that the fishy smell permeated the loft throughout and did not dissipate within an hour or so of the old equipment being stripped out when the works were commenced. I do not accept his analysis. Mr Davie correctly submits, in my judgment, that a finding that the festoon lighting was left plugged in and live and that at the time they were preparing to leave the premises such a smell was being generated and discernable, it would have been a clear breach of the duty of care not to investigate to check that the festoon light was first operating effectively and then unplugged before they left.[41]As to the presence of the “fishy” smell I am satisfied that it dissipated within a relatively short time of the old wiring and equipment being stripped out, and well before they left the premises. Secondly that the smell was certainly caused by the stripping out process. Thirdly that both Mr Harbour and Mr White honestly and conscientiously believed this to be the case. I am satisfied that there was no fishy smell apparent in the course of the afternoon and when they left the premises.[42]If the festoon equipment was defective giving rise to the generation of heat and degradation of the components and insulation that could have taken place at any stage after Mr Harbour and Mr White left the house and locked it up. It could have been minutes before the fire broke out, it could have been an hour or so before, neither expert was able to assist in that relation.[43]Taking into account all the evidence it is impossible to resist the inference that the seat of the fire was in the loft. In the circumstances it is impossible for the fire to have been started by the coil lead light. I am satisfied that there is no evidence that the fire could have been started by carelessly discarded smokers materials. I accept Mr Harbour’s evidence that he was not a smoker. I reject Mrs Prince’s evidence that she saw Mr Harbour smoking on 27 June 2002. Her written statement is that she ‘believed’ that she saw him smoking. Her companion, Mr John Drake, was standing feet away from her and had he seen Mr Harbour smoking I have no doubt he would have drawn attention to it contemporaneously. He did not see Mr Harbour smoking. Mrs Prince’s account was tendered in writing some years after the alleged observation. There is no evidence that the fire was started as a result of any other extraneous human action. There is no evidence of bonfires, intruders or chimney fires nearby. The central heating system, so far as the boilers were concerned, the generation of heat and all venting was confined to the garage under the sitting room and were in no manner connected with this fire.[44]For the Claimant Mr Davie realistically accepts that there is no evidence that the use of the improvised coil lead lamp could have caused this fire. In his re-amended case it is pleaded i) that the Defendants failed to take reasonable care in fixing the festoon lighting to the rafters in the loft with cable clips such as to cause damage to festoon lighting, causing an electrical fault which in turn caused the fire.[45]He accepts that there is no evidence that would support that assumption. Indeed the evidence of both experts is that the cable insulation, both inner and outer, is very robust and the conformation of the cable and the seating in which it sits, renders it very unlikely that such damage could have occurred by fixing the cable in place. The direct evidence of Mr Harbour, which I accept, is that no damage was caused in this way.[46]ii) There was a failure to take reasonable care in fitting the light sockets to the festoon lighting cable such as to cause damage to the festoon lighting cable, thereby causing an electrical fault, which in turn caused the fire. In relation to this allegation both experts accept that the design of the fittings, and in particular the fact that the prongs designed to puncture the insulation are not in alignment, and produce connections that are off-set to each other may seem to militate against such a finding. However the evidence given by Mr Harbour was that the light fittings were fitted to the cabling on site in the loft. This was not a pre-prepared assemblage of cable and attached fittings fitted to the roof timbers. It is evident, and I find, that the cable used had been used before. Insofar as there was earlier use there would have been puncture marks of both the outer and inner insulation. Clearly care would have to be taken in installing the lights on 26 June 2002 to avoid the earlier locations where the insulation had been damaged by use. Since Mr Harbour represented the cable was brand new and unused such an examination would not have taken place.[47]The final allegation supporting the Claimant’s case of negligence, namely that of leaving the festoon lighting on and the festoon lighting circuit live in the loft overnight and unattended when they vacated the premises on 26 June 2002, in the light of the Claimants own expert evidence is not viable. In terms Mr Slater says at 13.47 of his report:
“Mr Harbour and Mr White cannot be criticised for inadvertently leaving the festoon lights plugged in as this normally should not result in a hazardous situation, such as a fire.”
[48]At paragraph 4(a) of the Amended Particulars of Claim, the Claimant asserts:
“It was an implied term of the contract that the First Defendant would in carrying out the rewiring work use equipment that was fit for its purpose.”
[49]This, of course, does not relate to equipment and material being installed in the premises, but to tools and other equipment.[50]Mr Davie submits that the effect of the fire expert’s evidence is that a conductive fault in the festoon lighting used by Mr Harbour and Mr White during the course of their works was the cause of the fire, thus it was the contractor’s faulty equipment that has caused the fire. He argues by analogy, submitting that if the fire had been caused by a faulty cable that the contractor had installed there would be strict liability for fire as a result of the implied term in the Sale of Goods Act of 1979 that the contractor would supply goods that were fit for the purpose. Such strict contractual duty, he submits, should apply in relation to equipment and tools used, because it will often be the case that a contractor is not himself responsible for the defect in equipment used by him. Because the employer is prevented by considerations of privity of contract from pursing the original supplier of the tools and equipment, it makes sense to cast upon the contractor a strict duty, and he is then able to claim against the supplier of the goods.[51]Mr James submits that, so far as that implication is concerned, the test of necessity is not fulfilled. I agree. There is no sensible basis for imposing upon a tradesman, such as Mr Harbour, the onerous contractual liability contended for.[52]The Claimant relies on the maxim res ipsa loquitur, on the basis that the Defendants were in the sole control of the bungalow and roof space and on the available evidence it is more likely than not that the effective cause of the accident was the act or omission of the Defendants, which act or omission constituted a failure to take proper care of the Claimant’s safety. In Lloyde v West Midlands Gas Board (CA) 1 WLR page 749, at page 755B Megaw LJ said:
“I doubt whether it is right to describe res ipsa loquitur as a “doctrine”
. I think that is no more than an exotic, but convenient, phrase to describe what is in essence no more than a common sense approach, not limited by technical rules to the assessment of the effect of evidence in certain circumstances. It means that a plaintiff prima facie establishes negligence where: (i) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident; but (ii) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiff’s safety.”[53]The state of the evidence at the end of this case is that an evidential burden is established by the Claimant’s case. No causation inconsistent with the negligence of the Defendants has been established which shows an operative cause, at least as likely as that the Defendant failed to check that the insulation was not unacceptably damaged, or that any existing damage was not exacerbated by their activity in assembling the light fittings onto the cable.[54]In my judgment the Claimants have proved their case, although they cannot demonstrate the exact mechanism leading to the arcing and overheating which ultimately caused the fire in this case. It is evident that both Defendants were complicit in the operation of assembling and installing the temporary festoon lighting.[55]Mr Harbour was the employer and the contract was made with him. It is appropriate that the judgment be against him.

QUANTUM

[56]The Claimant was under insured, both as to rebuilding costs and as to contents replacement.[57]The bungalow was repaired and at the same time the Claimant’s family sensibly took the opportunity to add some improvements to the bungalow. A bedroom was installed in the loft and small bathroom, the height of the roof was increased to accommodate this. Mr John Drake and members of the family undertook the task of clearing debris following the fire, and thereafter Mr Drake project managed the reinstatement works, including the control and purchase of materials and the hiring of labour. The Claimant relies upon the report of Mr Robert Evans, a civil and structural engineer, as to the cost of the reinstatement, this is the sum of £80,431.49. It is evident that he has deducted from labour and material costs the costs attributable to electrical work and betterment. Included within Mr Evans’ assessment of the value of restatement works is a sum of £2,784.80 for site clearance and £13,405.25 for project management costs.[58]The quantum experts agree in their joint report that the sum of £64,026.24 is a reasonable sum for reinstatement costs, taking account of betterment. However, at issue are the sums of £2,784.80 for site clearance costs and £13,405.25 in respect of project management charged by Mr Drake.[59]It is contended that the project management costs arose because Mr Drake oversaw the works in order to better the design of the premises.[60]Having heard Mr Drake’s evidence I reject that. Mr Drake, in order to maximise the sum paid out by his mother’s insurance company for reinstatement, had to frugally and economically expend those monies. He lived in a caravan on an adjacent site owned by his mother in order to accomplish this. The project, had it been professionally undertaken, would have been much more expensive, but of course could have been completed within a shorter time span. It is contended by the Defendants that because Mr Drake performed the clearance task, and that of project management, out of natural love and affection his mother should not be able to recover the cost of project management. I reject that submission. The Claimant is not to be denied recovery of the cost of reinstatement because the payment for reinstatement has come from elsewhere, see Jones v Stroud District Council [1986] 1 WLR at page 1141, page 1150F(c)(a). However, I do think there is some merit in the argument that the protracted time upon which the project management costs are based was due in some part to betterment. I award under this head £10,000. The costs of site clearance are recoverable in full. In addition the engineering fees of Philip Goacher Associates, in the sum of £3,703.24, are recoverable and boarding up costs of £200.[61]Mrs Drake was out of her property for some two years whilst her son undertook its reinstatement. She claims alternative accommodation costs in the sum of £9,800. The reinstatement was protracted, firstly because there was betterment and secondly, by reason of her inability to recover full reinstatement costs under her insurance. In my judgment she should be entitled to recover one year’s alternative accommodation costs, namely £4,900.[62]There is a claim for forensic investigation costs. This in my judgment should not form part of recoverable damages. It is an item that is part of the costs that will be recoverable in this case.[63]Mrs Drake was a robust elderly lady at the time of the fire, who lived an independent life driving a motor car and able to travel and pursue her interests.[64]Sadly, whist she was living with her daughter her daughter’s dog jumped up at her, causing her to break a leg. Her son seeks to argue that had the fire not taken place, she would not have gone to her daughters and she would not have been so injured. Sadly, on her return to her reinstated bungalow she suffered a further broken leg and her mobility, at the age of 93, is now somewhat impaired. In no way can it be said that the negligence of the Defendant was in any way causative of the injuries which sadly befell the Claimant. However, it is right that she should be entitled to damages in respect of inconvenience and distress suffered by being forced to live other than in her home for several years, and at a time of life when peace and security are at a premium. For the distress and inconvenience she suffered I award £3,000. SUMMARY OF DAMAGES i). Reinstatement costs net of betterment £64,026.24. ii). Site clearance £2,784.80. iii). £10,000 project management costs. iv). Alternative accommodation £4,900. v). Board up costs £200.92. vi). Value of contents £12,349. vii). General Damages £3,000.[65]I am satisfied that the schedules showing the estimates of costs for replacement items are extremely modest, bearing in mind the furniture and contents lost. It is noteworthy that no claim was made for clothes or items of sentimental value such a books, family photographs, pictures and the like. The full cost of the walk in bath is not allowable and a deduction of £1,000 has been made[66]It follows from the award that I make in relation to reinstatement costs that I reject the submission that any increase in the value of the property is relevant when considering reinstatement costs.