Adams & Anor v Scottish and Southern Energy Plc & Anor [2008] EWHC 1926 (TCC)

[2008] EWHC 1926 (TCC)Case No HT-08-30
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 22nd July 2008
Before
HIS HONOUR JUDGE DAVID WILCOX(Sitting as a Judge of the High Court)
Between
(1) GRAHAM ADAMSClaimants(2) SUSAN ADAMSClaimant(1) SCOTTISH AND SOUTHERN ENERGY PLCDefendants(2) J RIDDELLDefendant
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Mr Graham Eklund QC (instructed by Berrymans Lace Mawer) for Claimant.Mr Neil Block QC and Mr Karim Ghaly (instructed by Kings Legal) for First Defendant.Mr Richard Stead (instructed by Morgan Cole) for Second Defendant.
Judgment
[1]This claim arises out of a house fire which occurred at the Claimants’ house in West Sussex. The claim is for insured losses of £483,575 and uninsured losses of £4,388. Quantum, however, has now been agreed, subject to liability, in the sum of £400,000 and interest.[2]In early 2001, the Claimants had an extension built onto their house. During the course of those works, which commenced on 23rd March 2001, the state of the electrical wiring of the supply of electricity to their house became the cause of concern. Mr Adams formed the view that the wires were oxidised and could fall down at any time. As a result, Mr Adams contacted the electricity supply company, the First Defendant. Their engineers visited the property and provided a quotation for the installation of a new supply cable from the First Defendant’s electricity pole in a neighbouring field to the Claimant’s electricity meter and cut-out installed in their kitchen. The quotation was provided on 29th March 2001. Some building works were underway at this time and the First Defendant was aware of the extension. The extension was to replace a conservatory which had been removed and was intended to extend the existing sitting room. Above, according to Mr Adams, there was to be a roof void, that void being accessible from the first floor bedroom above the existing sitting room only through a window aperture.[3]The single overhead supply cable replacing the two that preceded it was substantial. It had a 35mm cross-sectional solid aluminium core, a stranded concentric copper wire neutral – these were PVC insulated – and a sheath over the cabling. The board’s engineers, Mr Cook and Mr Clark, who provided the quotation, also provided a diagram of the route of the intended works to the Claimants, showing the new service from the pole 20m away in the neighbouring field to be attached to the exterior of the house, which was free of charge, and then the fitting of a clipped service cable to the existing meter position.[4]Mr Adams’ evidence was that he understood that this installation would follow the line of the old cable. That cable went from a bracket attached to the east side of the house nearest to the pole, along the line of the facia board for several yards, until above the position of the internal meter, when it was fed vertically down and through the cavity wall for about 9ins or so and then was fixed to the meter and cut-out.[5]The replacement cable provided by the First Defendant was installed by Mr Cook and Mr Clarke, who had surveyed the site and provided the quotation. This was done on 23rd April. At this time Mr Adams said he was not at the site, he was in the vicinity. The builder, Mr Norman Flexman, was at the site. It is probable that his labourer, Derek, was there also.[6]On 2nd December 2005, five boisterous bullocks being rounded up in the field opposite the Claimants’ house on the other side of the A272, rushed along the hedgerow near to where the First Defendant’s electricity supply support pole was situated. All except one avoided it. It came into contact with the support stay by tripping. This caused the pole to sway and the cable to rattle. At approximately the same time, the lights in the Claimants’ house went out and the Claimants heard noises coming from the roof space of the extension and saw smoke coming from the roof space. The fire brigade were summoned. Extensive damage was done to the property by reason of the fire.[7]Investigation revealed a number of matters not in dispute. First, by the time of the fire, the route of the supply cable from the external bracket to the meter and the cut-out in the kitchen differed from the route which would have been observed immediately before the extension works. Before April 2001, the cable ran down the external face of the eastern wall and entered the property near to the kitchen cupboard housing the meter and cut-out. In December 2004, the supply cable passed from the insulated bracket, behind flashing, through a hole in the outer brickwork skin of the wall between the first floor of the original building and the extension, down through the cavity between the inner and outer brickwork, then horizontally beneath the doorway between the bedroom and the roof void at the rear of the house, before passing again through the inner skin of brickwork and into the meter cupboard. Secondly, the supply cable was damaged at its point of entry into the property through the outer skin of the eastern wall. Thirdly, immediately after the fire, it was observed by those rounding up the bullocks that the piece of facia board which supported the insulated bracket had come away from the property and was dangling from the supply cable.[8]Two electrical engineering experts gave evidence before me, Mr Slater for the Claimants and Mr Garner for the First Defendant. It was agreed between the experts inter alia that the fire probably would have been prevented had the cable not been routed through the property’s cavity wall. The routing of the cable did not comply with the First Defendant’s engineering instructions or any relevant legislation. It was accepted that mechanical damage to the cable, namely to the insulated layer, could have occurred either during its installation by the First Defendant’s operative or others or during the extension works or when the facia board to which the bracket holding the cable to the house came away from the building. The experts also agreed that the cable could have been re-routed through the building, had the installation on 23rd April exactly followed the route of the original, without disconnecting it from the pole or the cut-out assembly in the kitchen. It could have been done without unclipping the live cable and it could have been repositioned into the existing cavity of the east wall of the house by removing bricks from the east wall. The experts also accepted that the short length of facia board to which the bracket at the house end of the supply cable was inadequate to support the weight of the bracket and the cable from the fixed pole. It was evident that both the bracket and the facia board had been shortened during the extension works.[9]The case against the First Defendant is pleaded in contract, tort and breach of statutory duty. The First Defendant accepts that it owed duties in contract and like duties in tort to supply and install equipment suitable for its purpose and to ensure that the electrical equipment it supplied was installed and maintained in so far as was reasonably practical so as to prevent danger. It is accepted that there was a duty to ensure that the electrical equipment supplied by the board, namely the cable and cut-out unit, was safe within the meaning of Regulation 5 and Schedule 3 of the Electrical Equipment Safety Regulations 1994 and that it owed a duty under the Consumer Protection Act 1987 to supply electricity that was free of defect at the time it was generated and electrical cables and a cut-out unit that were free of defects at the time at which they were supplied.[10]In relation to the Electricity Supply Regulations 1998, it accepted that there were obligations under Regulations 17, 21 and 25 to ensure that their works were sufficient for the purposes required and that they were used and maintained so as to prevent danger so far as reasonably practical and to supply protected devices preventing the flow of the current when part of the system was not carrying it without danger. It was also accepted that there was a duty, where appropriate, to fit cut-outs and fusible devices close to the supply terminals and to provide an adequate standard of construction in the installation works.[11]The Claimants’ case was that the board were in breach of those duties by defectively installing the cut-out unit, that, in any event, it was too insensitive and that the supply cable and cut-out unit were defectively maintained and inherently defective.[12]In the light of the expert evidence, these were not live issues at the trial. It was contended that the supply cable between the wooden pole was defectively installed with insufficient sag or give and without sufficient cable loops at the house end of the supply and that the wooden pole supporting the cable was insufficiently supported or protected. The Claimants contended that the cable at the house end of the supply was attached to a piece of facia board insufficiently robust to bear the weight of the cable and bracket and that it should have been attached to the brickwork of the building. The pleaded case was that the customer supply cable from the insulated point on the bracket to which the cable from the pole was attached should have been routed along the external brickwork to an external metering box and cut-out rather than through the roof space to the metering box and cut-out in the kitchen. It was also the Claimants’ case that the First Defendants had elected to place the cable into the wall cavity and had done so in a way that contravened their own code of practice and manual of instruction which permitted such a course only when there was underground cabling and the use of what was described as “hockey stick” insulation in the cavity.[13]I turn to the fire and its causation, the principal operative cause of the fire, the cutting of the facia board and the routing of the cable. I am satisfied that there is no evidence that there was insufficient slack or sag in the installed cable required to prevent stress upon fixing of the bracket to the Claimants’ building. Mr Slater, the Claimants’ expert, was unimpressive upon this aspect of the case. He was prepared to speculate on an indistinct photograph, having no experience of this type of installation and failing to consider that part of the code of practice depicting given topographical situations where various degrees of sag were required. I accept the evidence of Mr Clark and Mr Cook that it was sufficient. I am satisfied that the stability of the pole from which the supply was taken by the new cable was sufficient and safe. I reject the evidence of Mr Slater and prefer the evidence of Mr Clark, who examined it and climbed up on it on 23rd April and the evidence of Mr Paddick, who examined it on 4th December 2005 and concluded that it was in good order and needed no rectification or replacement. Its stability had not been prejudiced and there was no evidence of damage to either stay or to the pole.[14]I heard a great deal of evidence as to the wanderings of the Second Defendant’s errant bullocks in the days that preceded the collision with the pole stay on 2nd December 2004. I was struck and impressed with the pragmatic good sense shown by the Second Defendant’s farm manager, Mr Dann, in his approach to managing these unusually difficult beasts, difficult in all probability because they were bred with little human contact and were nervous and “spooky”. I was impressed also with the good sense and neighbourliness of his neighbour who assisted in the attempts to corral the beasts and his patience in permitting them to stay and calm down on his land until attempts could be made to move them on. The use of people, some bribery and sensitive guile led to their final apprehension on 2nd December 2004. No possible criticism could attach to the Second Defendant and his helpers. There is no warrant or evidence for finding any want of care in the way in which they dealt with these beasts either before 2nd December or on 2nd December itself.[15]I am satisfied that a bullock tripped over the stay of the pole, causing movement of the pole and the attached cable. The stay and pole were sufficiently robust to withstand such impact, as Mr Baker, the overhead line standards engineer of the First Defendant deposed and whose evidence I accepted. No owner or keeper of such beasts in a field wherein a properly maintained electricity pole is situate could possibly foresee that the activity of such a beast could cause a fire in a dwelling-house some remote distance away or any damage to that property. There is nothing that could have put any lay persons in the field on enquiry that the attachment to the house may have been inadequate or the routing of the cable through the house was inappropriate.[16]I come to the central issue of fact in this case. That relates to the routing of the cable, the cutting of the facia board and the backing. These two items of fact are interlinked. When Mr Clark and Mr Cook attended on site to survey and give a quote, the footings had been dug and it was evident to them that at the east side of the house there was to be built an extension. It was to contain a ground floor enlargement of the existing sitting room and a roof void above it, covered by a timber and a tile roof. The line of the existing cabling was along the facia board on the east side of the house and then going down, as I described earlier, to the kitchen. Mr Adams expected the replacement to be along the lines of the original. He was not on site on 23rd April 2004.[17]Mr Flexman, the builder, in his first statement of 19th September 2007, said that:
“The electricity works were undertaken just before we were to fit the new roof. The electricity workers undertook the replacement and fixed the cable to the house to their satisfaction. Again, I was not involved with this at all. I cannot confirm whether the facia board was removed or the bracket removed by the electricity workers.”
I give some emphasis to that last sentence. “I do not know whether the same bracket was used or a different bracket. However, I confirm I did not fix the bracket or facia to the house. All these works were undertaken by the electricity workers.”[18]By 15th April 2008, his recollection was more precise. He said that the roof of the existing building had been opened up prior to the installation being undertaken and that they waterproofed the roof after the electricians installed the cable through the property. “I recall seeing the cable bending into the wall cavity,” he said. He accepted that the facia was cut when he opened the roof to accommodate the roof of the extension. I am satisfied that the facia and the bracket were cut at the same time by Mr Flexman or his assistant, Derek, and that he would not, or they would not, have attempted such an operation when the old deteriorating and dangerous cabling was fixed to the bracket and onwards. They would have appreciated that such an operation would be hazardous. I am satisfied that the installation work on 23rd April was before he was to fit the roof, and I understand this to be to complete the supporting timberwork and the tiling above it. Mr Adams, in my judgment, is not accurate in his belief that the roof timbers may well have been up when the electricity works were carried out. He was, of course, absent from the site at that stage.[19]Mr Clark was clear in his evidence that he had fixed the cable to the pole in the field from the existing bracket on the house when the facia board was entire. He would not have fixed the cable to the severed board because it was not adequate to support the weight of the cable. I am satisfied that he is correct. He struck me as an impressive and a truthful witness who would have ensured that the bracket was safely secured and corresponded to its state at the time of his survey. Mr Clark was adamant that the facia board was not cut and it was checked for condition and robustness for carrying the weight of the replacement cable and bracket. His evidence was accurate and truthful. I am satisfied that neither Mr Cook nor Mr Clark would have utilised a truncated bracket attached to the severed piece of facia board. I am satisfied that those two witnesses are accurate and truthful in their account that a loop of 200mm was left on the bracket just after its attachment to the insulation point in accordance with the code of practice. I am satisfied that they fitted that in order to give the extra tolerance or slack necessary should the cable be hit by a branch or the pole receive impact. I find also that, had the full extent of the fascia board been permitted to remain, the occurrence of the fire would have been less likely and the truncated bracket and facia board may not have been detached from the wall.[20]Mr Eklund demonstrated by his cross-examination that, prior to the fire on 2nd December 2004, this crucial loop had been removed. The photograph he produced showed no evidence of the loop remaining at the time the photograph was taken. That photograph depicted the completed extension with an outside electrical attachment, presumably installed by the Claimant, that is to say the light.[21]Mr Flexman, the builder, told Mr Slater, the Claimant’s expert, after the fire that he did not know how the engineers had routed the cable following its replacement and installation. He said, however, the cable did not interfere with the construction of the extension. That was consistent with his account of 19th September 2007; it was inconsistent with his statement of 15th April 2008.[22]I did not find Mr Flexman to be a reliable witness or candid as to when and how the cable was variously routed. I found that the evidence of Mr Cook was impressive and accurate when he described the original routing of the cable and the state of the bracket and facia. He also told me that it was not his practice to use a cavity to route a cable down because it was not practical to fix it within the cavity and because the code of practice at paragraph 8.2.2 was specific:
“The meter position for new installations shall be selected to avoid the need for cables to be installed either through roof spaces or down the cavity and external walls unless the company is specifically requested in writing to do so. This is important in view of the possibility of the cavity being filled with thermal insulation which may affect the rating and conditions of the cable.”
There was not such a request in this case.[23]Cavities, of course, contain elements other than insulation material. They may contain combustible materials, wall ties and other impediments or potential causes of damage to insulation material. In my judgment, the cable was properly fixed on the bracket which was safely and robustly fixed to the facia board and in accordance with the long practice spoken to by Mr Baker, Mr Clark and Mr Cook.[24]Mr Eklund submitted that the code of practice made no mention of facia boards as a fixing location. He is right. Neither did it mention concrete, stone, stucco or other surfaces routinely met by installers following the good practice described in the code and in accordance with their training and doubtless long experience. If Mr Eklund is right, then the location for such fixings as depicted in the diagram H0/39/301 in the code of practice could only be into brickwork. Doubtless for demonstration purposes what is depicted in the diagram happens to be brick; it does not prescribe brick. The code is not mandatory. It is a guide to good fixing practices and should be followed save where judgment and discretion sensibly dictate otherwise, and is consistent with the safety obligations of the supplier and the installer. Clearly the room for discretion would be less in more technical matters such as sag and the provision of looping.[25]The evidence of Mr Adams as to the routing of the cable I did not find helpful. It was economical as to when the cable was put into the cavity and his statements lacked a degree of candour in failing to mention that he had carried out building works on the extension himself and may have directly or indirectly caused the cable to move. He opened up the window aperture between the bedroom and roof void of the extension left boarded up by Mr Flexman. He removed masonry in the cavity wall to make a four foot high doorway and he may have widened the aperture. In so doing, he said he saw the cable in the cavity and that it may have bulged out. To place it back would have involved some handling of it, an operation that I observe would have been much safer than had the old wiring had to be handled in some way. He put a door casing in and he did electric works in the extension.[26]Where Mr Adams’ evidence conflicts with that of Mr Clark and Mr Cook, I preferred their evidence. I am satisfied that the cable was routed by Mr Cook and Mr Clark safely along the facia board following the route of the replaced cable. There is no good reason why this could not have been incorporated into the roof space without cutting the facia. The benefits of putting it into the cavity are understandable. There are benefits of laying it at joist level under the new doorway created. I note that I have not heard from Mr Flexman’s assistant, Derek. He did not give evidence before me and none was tendered.[27]I am satisfied the cabling was re-routed after being installed in a safe and workmanlike manner by the First Defendant. In my judgment, it was unfixed from the facia board and fed into the cavity wall. This had two consequences. Firstly, since the well insulated single cable remained fixed at both ends, the slack afforded by the loop left by the First Defendant’s installers was taken up. Secondly, where it went into the brickwork, the insulation became vulnerable to damage should the cable be suddenly moved. The impact to the pole in the field clearly would have led to a tautening of the supply cable, putting strain on the bracket. Since the bracket and length of the facia board on the east front of the house had been cut by Mr Flexman, the sudden tightening of the cable caused the bracket to be torn away from the wall and the small length of facia remaining came down. Since there was no looped cable left on the house bracket, there was no tolerance left so that when the cable was vigorously pulled against the wall, damage was caused and the board came off. The likelihood is that the damage to the cable insulation then occurred and caused arcing and ignition of whatever debris there was in or near to the cavity and the cable.[28]I am satisfied that the Defendants are not liable. I make no specific finding as to who re-routed the cable. The Claimants should pay the costs of each of the Defendants on a standard basis. I will hear any submissions to the contrary should that be appropriate. I direct that there shall be transcription of this judgment and that it be provided to the parties at public expense. - - - - - - - - - - - - - - - - - - - - -