Stoke-On-Trent College v Pelican Rouge Coffee Solutions Group Ltd [2017] EWHC 2829 (TCC)

Case No B90MA096

[2017] EWHC 2829 (TCC)

IN THE HIGH COURT OF JUSTICE

Venue BUSINESS AND PROPERTY COURTS IN MANCHESTER

TECHONOLOGY AND CONSTRUCTION COURT

Venue Manchester Civil Justice Centre,, 1 Bridge Street West, Manchester M60 9DJ

Date 9 November 2017

Before

HIS HONOUR JUDGE STEPHEN DAVIES

SITTING AS A JUDGE OF THE HIGH COURT

Between

STOKE-ON-TRENT COLLEGEClaimant

PELICAN ROUGE COFFEE SOLUTIONS GROUP LIMITEDDefendant

Michael Davie QC (instructed by Clyde & Co LLP, Manchester) for Claimant

Jonathan Mitchell (instructed by Kennedys Law LLP, Sheffield) for Defendant

Hearing Hearing dates: 9, 10, 11, 12, 17 October 2017

Draft judgment circulated: 2 November 2017

JUDGMENT

His Honour Judge Stephen Davies

His Honour Judge Stephen Davies:

Contents

1 Introduction 1 - 4 2 The witnesses 5 - 10 3 The facts: 11 3.1 The site 12 - 20 3.2 The relationship between the parties 21 - 33 3.3 The drinks vending machine 34 - 43 3.4 Maintenance visits in December 2009 44 - 64 3.5 The fire – the CCTV and other evidence 65 - 86 4 The cause of the fire: 4.1 The competing causes 87 - 90 4.2 The defendant’s criticisms of the claimant’s case 91 - 107 4.3 The claimant’s criticisms of the defendant’s case 108 - 112 4.4 Cause of the fire – discussion and conclusions 113 - 118 5 Breach of the contractual duties owed by the defendant to the claimant – discussion and conclusions 119 - 123 5.1 Breach of contractual duty of care 124 - 130 5.2 Breach of contractual duty to supply goods of satisfactory quality 131 - 135 5.3 Breach of other contractual duties 136 6 Breach of statutory duty under the Electrical Equipment (Safety) Regulations 1994 137 - 160 7 Causation 161 - 168 8 Conclusions 169 - 170

[1]Introduction This is a fire damage case where the principal issue is whether a fire which occurred in the early hours of 23 December 2009 at the Stoke on Trent College Taylor Building started in a drinks vending machine (“drinks vending machine”) located in an alcove in a reception area in that building or in a closed ceiling void channel (“ceiling void”) directly above the drinks vending machine. If the fire started in the drinks vending machine then the claimant says that the defendant, as the supplier, operator and maintainer of the drinks vending machine, is liable for the fire for breach of contractual, statutory or tortious duty. If the fire started in the ceiling void then there is no question of the defendant bearing any responsibility for the fire.

[2]Each possible fire seat is propounded by a highly competent and experienced expert fire investigator. Each of those two experts has been subjected to skilful cross-examination by counsel for the other party, who have also each submitted persuasive written and oral submissions in support of the cases advanced by their respective clients. I must now decide whether or not the claimant has satisfied me that it is more likely than not that the fire started in the drinks vending machine and, if so, whether the defendant is legally liable for that fire. The quantum of the claim has been agreed, subject to liability, in the sum of £265,008.75.

[3]In making my decision I must have regard to the factual evidence submitted by the parties, to the expert evidence and to the documentary evidence. Perhaps the most important documentary evidence is from a CCTV camera located in a room adjacent to the reception area, which the defendant’s expert Mr Jones described in the joint statement of experts as a “game changer”. The experts fundamentally disagree as to the conclusions to be drawn from that CCTV evidence and I must, therefore, decide whose analysis of the CCTV evidence is the more plausible.

[4]If I find for the claimant as regards the seat of the fire, then I must go on to consider whether or not it has established that the defendant was in breach of contractual, statutory or tortious duty owed to the claimant and also whether or not the fire was caused by any such proven breach. If I am satisfied that the fire was caused by a lack of proper maintenance by the defendant, then these issues are relatively straightforward. If, however, I am satisfied that the fire began in the drinks vending machine but that there was no lack of proper maintenance then questions arise as to:(i) the nature and extent of the contractual obligations owed by the defendant, including those said to be owed under the Supply of Goods and Services Act 1982 (“1982 Act”); and

(ii) the nature and extent of the statutory obligations owed by the defendant under the Electrical Equipment (Safety) Regulations 1994 (“1994 Regulations”).

[2]The witnesses

[5]The claimant called five factual witnesses. They were all clearly honest and reliable within the limits of their recollection concerning events going back 8 years. Their evidence was not of critical importance, with the potential exception of one piece of evidence from one witness, Mr Tunnicliffe, until recently the claimant’s site manager. His evidence included his recollection that shortly after the fire one of the defendant’s engineers, who he had never previously met and cannot identify, attended to inspect the remains of the drinks vending machine and commented that a solenoid had stuck, causing the boiler to continue to be operated even after the water had achieved the desired temperature, which had caused the fire. There was no other evidence, documentary or oral, from either side which corroborated that there was such a visit, let alone that this was believed to be the cause of the fire by anyone at the time, and it had not been mentioned by Mr Tunnicliffe at the time to anyone else who could corroborate him. Neither expert supported this as a possible cause of the fire, which is not surprising since:(a) the evidence from the defendant’s witness Mr Ryles is that there was a failsafe device to isolate the boiler circuit to prevent overheating in such circumstances;

(b) the experts found no evidence of any damage to the heater on their joint inspection. In the circumstances, I am confident either that the visit and the conversation did not happen and that Mr Tunnicliffe is simply wrong about this or, if it did happen, it can only have been a chance attendance and observation by an unqualified service operator upon whose opinion no weight can be attached.

[6]The defendant called three factual witnesses. Again, they were all in my view clearly honest and reliable within the limits of their recollection. Only one, Mr Anderson, had been directly involved with the drinks vending machine the subject of the case, since he had attended to investigate a reported leak in the drinks vending machine on the day of the fire. I accept Mr Davie’s criticism that all three appeared to have had their witness statements drafted for them so that, at least in some respects, they read rather more favourably to the defendant’s case than the oral evidence which they gave under cross-examination. I do not consider that any of the witnesses is personally at fault in this respect or that this materially affects my view as to their essential credibility.

[7]As I have said both parties called highly competent and experienced fire investigation experts; the claimant called Mr Braund and the defendant called Mr Jones, who are both electrical engineers by qualification and initial occupation and also both vastly experienced in fire investigations. Unlike Mr Jones Mr Braund has no formal qualifications in fire investigation recounted on his CV and Mr Braund also has lesser length of experience in fire investigation, but I do not regard either factor as diminishing his expertise or enhancing that of Mr Jones to any significant degree; I am satisfied that they are both equally expert in the field. Mr Braund had attended the site the day after the fire and taken a number of photographs whereas Mr Jones did not have the opportunity of attending until a later stage after remedial works had been undertaken, although he had been able to view the photographs taken by Mr Braund. They had both undertaken inspections of the damaged drinks vending machine. Mr Jones had examined an equivalent undamaged version of the machine and taken photographs, which Mr Braund had been able to examine. They had both produced initial reports before proceedings had been issued and, as directed by the court, had held joint discussions and produced a joint statement before producing supplemental reports in relation to the matters in issue. There had also been a further exchange of letters addressing a further point raised by Mr Jones shortly before trial.

[8]Both experts were, as I have already said, cross-examined in detail and with skill. The essential criticism made of Mr Braund by Mr Mitchell for the defendant was that he had arrived at the conclusion very early on in his investigation that the fire had started in the drinks vending machine, which had led to his adopting a blinkered approach to his investigations and his considerations. The essential criticism made of Mr Jones by Mr Davie QC for the claimant was that he was over willing to propound theories without sufficient evidence or deliberation behind them and over reliant upon his own assessment of how a fire would behave in particular circumstances when, as argued by Mr Davie fires were liable to develop unpredictably.

[9]Mr Braund gave evidence in what I would describe as a very careful and precise manner. As he said at one point in his cross-examination he was unwilling to come up with elaborate theories without good physical evidence. I was not persuaded that his investigation had been inadequate in all of the circumstances or that he had adopted a blinkered approach. In contrast Mr Jones was far more willing to give explanations for what he believed had happened based on his belief that he had, through his long experience in fire investigation, a very accurate understanding as to precisely how a particular fire would behave in a given situation. There were a number of respects in which his position had shifted over the course of his involvement in the case and a number of respects in which he had reached opinions which were demonstrated on a more detailed analysis to be incorrect. In my view Mr Jones had fastened on the time lapse of some 40 minutes between the power being cut to the drinks vending machine and the first sign of fire, leapt to the conclusion that this ruled out the drinks vending machine as the probable source of the fire and, in consequence, leapt to the conclusion that the fire must have started in the ceiling void, a position which he then stuck with through thick and thin thereafter.

[10]Whilst this is not a case where my decision turns entirely on whether I prefer the opinions of Mr Braund or Mr Jones, nonetheless where there is a dispute between them which cannot be resolved by reference to the underlying facts as found by me or by my assessment of the inherent probabilities then on balance I prefer the opinions expressed by Mr Braund. I emphasise that this is not a criticism of Mr Jones as a knowledgeable and independent expert witness; it is simply a reflection of my assessment of the relative cogency of their evidence in this particular case.

[3]The facts

[11]I begin with a summary of the relevant facts.

[3]1 The site

[12]The claimant operates from a number of different sites in Stoke on Trent. The site in question is the Taylor building. This comprises an original three storey main building and a one storey extension running at a right angle to the main building. It is likely, judging from the available drawings dating from 1994, that there was originally a small toilet block which was substantially extended to create what is now the full extension to provide more accommodation. It appears that this extension was created as part of works undertaken in or around 1996 which undoubtedly did include the erection of a glazed walkway link structure connecting the main building and the extension, the entrance to which runs at 45 degrees to both. This work was part of an internal remodelling and provided an extended reception area at low and high levels. The general layout of the proposed works appears from the drawing entitled “small power main entrance” dating from 1994. At the furthest end of the low level reception area (“reception area”) and set into one side of it was an alcove (“alcove”) in which was located the drinks vending machine and a snack vending machine, both powered by a double socket outlet behind, which – it is common ground - would have had a circuit breaker fitted to it. Beyond the alcove was a glass and timber partition with opening glass and timber doors leading into a lobby area (“lobby”), which is where the CCTV camera was situated, with a view of the partition to the left of the screen.

[13]The precise composition of the partition is not known. It is known that the doors were fire doors and it is also known that the glass in the partition was wired, but nothing is known as to how truly fire-resistant it was or how effectively it would have prevented smoke from passing through from the reception area into the lobby. Running above the alcove was the ceiling void which connected into another ceiling void which ran above the partition. Both the front (vertical) fascia and the lower (horizontal) soffit sections of the ceiling voids were made of plywood. It is assumed that there would have been some sealant at the corner of the fascia and soffit but there is no detailed evidence as to the extent to which the ceiling void was effectively sealed whether at that junction or elsewhere.

[14]Set within the ceiling void running above the partition was mains electrical wiring, enclosed within steel trunking, and data cabling runs, such as cabling for fire alarms and intruder alarms, positioned on a cable tray. Mr Jones says that whilst it was clearly the intention to separate the 240V mains wiring from the lower voltage data cabling the photographic evidence indicates that this separation may have slipped as new wiring and data cabling was added. What is clear is that the wiring and data cabling passed through the rear alcove wall into a switch room behind at high level.

[15]There was an intruder alarm system, which was monitored by the security team during opening hours and thereafter monitored by an external company known as Security Services until morning. If there was an activation Security Services would notify Redguard who would arrange to attend.

[16]There was also a fire alarm system, which was monitored by the estates team during opening hours and thereafter again by Security Services (as Mr Tunnicliffe clarified in his oral evidence). Regrettably, there is no indication that the claimant or its advisers ever asked Security Services whether they had any record as to which smoke detector(s) activated the fire alarm on the night of the fire or when.

[17]It is common ground that there was a smoke detector in the switch room, at least after the fire, and there is no particular reason to think there was not one therefore beforehand. It is less clear whether or not there was a smoke detector in the reception area. That is because in the fire incident report produced by the Fire and Rescue Service under the heading “alarm systems” it was stated “main security system including smoke alarm … in room of origin of fire operated … but did not raise alarm [because] no person in earshot”. This was not covered by the firefighters’ statements taken by Mr Braund. In re-examination Mr Tunnicliffe also said that there would be a smoke detector in the reception area, although I do not place much reliance on that evidence. Mr Braund was unable to say either way, because he said that when he attended the ceiling was already part dismantled making confirmation either way impossible, although he accepted that he did not see a smoke detector or any evidence of one. Mr Jones believed that there was no smoke detector in the reception area. The reasons for his belief were:(a) there was no smoke detector in the reception area when he inspected subsequently;

(b) he saw no evidence of red cables which would have been connected to the smoke detector in any of the post-fire photographs. The force of his second point was somewhat diminished when at the end of his re-examination in answer to a question from me he agreed that he was unable to say from his examination of the photographs of the top of the alcove whether or not there might have been a cable leading to a smoke detector there, due to the extent of the fire damage. He suggested that it would be perfectly plausible for a decision to be taken to install smoke detectors only in locations, such as the switch room, where there was a risk of fire but which were not normally peopled. Whilst I acknowledge the force of Mr Jones’ points, in my view the best evidence is that recorded in the fire incident report, because it is plain that the fire investigators are expected to complete the report in a methodical way, so that it is unlikely that they would have made the positive statement which they did about the smoke alarm if one was not present in the reception area at the time.

[18]For completeness, there is as I understand it no evidence either way as to whether or not there was a smoke detector in the lobby area.

[19]There was an emergency light above the alcove mounted to the ceiling void soffit. There were two alarm beacons in the reception area, one mounted at high level on a wall facing opposite the partition, which is of some importance when it comes to assessing the CCTV evidence.

[20]The mains wiring in the Taylor building had most recently been inspected in 2005, when some concerns were expressed about the condition of the wiring. There is no evidence that anything was done in response to that warning. Equally, there is no evidence that the mains wiring in the ceiling void above the alcove was inspected at that time. If the mains wiring was installed as part of the 1996 internal remodelling, as Mr Braund believes and as I accept on balance is most probable, then it is likely to have been of more modern vintage than the original mains wiring in the main building. I reach this conclusion since even if there was original mains wiring leading to the original toilet extension it is intrinsically improbable that it was not replaced with new extended mains wiring given the scope and extent of the new extension which was constructed. I do so notwithstanding that, as I accept:(a) that the claimant has adduced no positive evidence to show when the mains wiring in this location was installed or as to its condition;

(b) after the fire the wiring was so damaged as to make an informed assessment impossible; and

(c) whilst the claimant employed an electrician to maintain and repair the electrical services within its buildings he has not been called as a witness, even though he did not retire until late 2014.

[3]2 The relationship between the claimant and the defendant

[21]It is common ground that for many years prior to the fire the defendant and its predecessors supplied vending machines to the claimant for the use of its students and others visiting the College and that at all relevant times this included the provision of a drinks vending machine and a snack vending machine located in the alcove in the reception area. It is also common ground that the only contractual documents relevant to the drinks vending machine are what are referred to as “operating agreements” dating from 1996 and again from 1999 and made between the claimant and the defendant’s predecessor Springbank Industries Limited. These agreements, which are short and not professionally drafted, contained the following relevant terms:(a) By clause 1, Springbank agreed to provide from a specified date “free on loan vending equipment to the [defendant] at locations to be agreed by both parties. In return for a three year contract.” The reference to a three year contract is clearly a reference to the terms which follow, contained in clauses 2 and 3 of the operating agreements, rather than to a separate agreement, since no-one has suggested that there was any other or more formal relevant agreement ever entered into.

(b) Under clause 2(b) it was said that the vending machines would be rebuilt vending machines, other than in certain prestigious locations where the parties might agree that new vending machines should be provided. There is no suggestion that a new - as opposed to a rebuilt - drinks vending machine was ever supplied at this location.

(c) Under clause 2(c) Springbank agreed to provide a “full operating and technical service to the equipment within 4 hours”. This is, effectively, a full re-stocking and maintenance service. By the time of the fire the maintenance system which was in operation involved a 4-hour response time if the vending machine was reported as being out of operation (“down”) but not if operational (sometimes referred to as “degraded”).

(d) Under clause 2(d) Springbank agreed to undertake “responsibility for insurance on all equipment sited”, although it also reserved the right to “relocate equipment where unreasonable abuse of machine … has occurred”. There was no further indication as to what insurance cover was being referred to and no evidence that there was ever any further discussion or agreement in that respect.

(e) Under clause 3, entitled “commercial agreement”, it was agreed that the claimant would receive a specified “guaranteed net rebate” payment each year together with a further fixed payment for every drink sold from the vending machines installed at its premises above a specified number

[22]The agreement did not contain any express provision for it to continue after 3 years if not replaced by a further agreement. It was doubtless envisaged that a new agreement would be entered into every 3 years. Whilst that clearly happened in 1999 it did not happen subsequently and the evidence is that the parties simply continued to operate after 2002 in accordance with the existing agreement, presumably on the basis that both parties were happy with the commercial terms.

[23]In 2008 Springbank or its business was acquired by the defendant, then known as Autobar Group, changing its name to its current appellation of Pelican Rouge Coffee Solutions in 2014. The defendant has not disclosed details of the legal transaction by which or the precise terms upon which it acquired Springbank or its business. In his witness statement Mr Slade for the defendant said that upon acquiring Springbank the defendant became responsible for the machine in question. In cross-examination he referred to the process being that the contracts were novated. In the Particulars of Claim it was pleaded that the agreement continued on a rolling basis in accordance with its terms and that the defendant took over the contract and operated it on the same terms. It was admitted in the Defence that there was a contract in place between the claimant and the defendant and that the defendant “worked to the terms of” the 1999 operating agreement.

[24]It is clear that the claimant was aware of the fact that Autobar had taken over from Springbank and raised no objection to that change. Doubtless all it was concerned about was that the vending machines continued to be efficiently re-stocked and maintained and that it received the rebates to which it was entitled.

[25]In the absence of any further evidence in relation to this issue I am satisfied that the only sensible analysis of the contractual relationship from 2002 was that the parties were content to proceed on the basis of an informal agreement terminable on reasonable notice in accordance with the terms of the 1999 operating agreement and that from 2008 the agreement was novated, so that the existing agreement with Springbank was discharged and replaced with an agreement with the defendant on the same terms, both with the informal consent of the claimant.

[26]So far as the practicalities of the operation are concerned, it is common ground that in practice the defendant would send a service operator to site each day to restock the vending machines with consumables such as tea and coffee and cups. There is no evidence that these service operators had any maintenance responsibility, but I have no doubt that they would report back any faults discernible on a particular vending machine. Either through this means or through customer report the defendant would despatch maintenance engineers to site to perform its contractual maintenance obligation. What would happen, I am satisfied from the evidence, is that a call would be made to the defendant’s operational centre reporting a fault with a particular vending machine at the defendant’s premises. The call might be made by a representative of the claimant if a member of staff or student reported a problem, or might be made by the service operator if they attended and saw a problem. The call operator would record the date and time of the call on a service management system in operation as at 2009 known as “Vendman” together with the details of the customer and location. He or she would also record the nature of the fault as described as well as the machine status. If the machine status was described as “down” it would be treated as falling within the 4 hours response time, whereas if it was described as “degraded” or some similar description it would not.

[27]A maintenance engineer would be assigned to attend and, on arrival, would use an application installed on the mobile phone provided to him to notify his arrival time to the call operator. He would then deal as appropriate with the fault and notify the time of completion to the call operator as well as a description of the repair undertaken, which would be entered into Vendman and the job would then be updated with the status “call completed by engineer”.

[28]As one would expect with a data system such as this electronic and printed different types of reports can be produced by those able to access and interrogate the system. In this case the only report which has been disclosed is a report of all jobs recorded on all the vending machines at the defendant’s premises over the period October 2009 to February 2010. This provides the information summarised above. However, as Mr Ryles explained, when asked more about this, it would have been possible to have obtained a more detailed report giving more information in relation to a particular job or jobs. Unfortunately, either no such report was obtained in relation to the relevant attendances to which I shall refer later or, if one was obtained, it has either been lost or misplaced and not disclosed. Based on the evidence of Mr Ryles it appears that more information may have been obtained from Vendman at some earlier stage in order to enable him to include information appearing in his statement. It is surprising that even after this became apparent the defendant was unable to provide any further explanation as to how he had obtained his information and that all that could be said was that the defendant’s IT manager had provided instructions that it is no longer possible to access information from Vendman, it having been replaced by the defendant sometime in 2012. It is not possible in such circumstances to know how much more information might have been recorded on Vendman in relation to these attendances. Moreover, it appears from Mr Slade’s evidence in cross-examination that Vendman was only introduced in October 2009 and no information is available as to what if any records were maintained either by Springbank or by the defendant before this. Thus no information is available for example as to whether there were any other attendances relating to fault descriptions of “leaks” or similar for this drinks vending machine pre-dating October 2009.

[29]The maintenance engineers did not have access to Vendman through their mobile phones and, hence, when on site they were unable to access the call-out history as regards that particular machine.

[30]It is clear that the defendant did not undertake any planned or preventive inspection or maintenance regime, whether in relation to the electrical equipment in the vending machine or otherwise. It adopted a reactive maintenance regime, relying upon any faults being notified to it by its service operatives or its customers. It is fair to say, as Mr Mitchell submitted, that since the machines were visited every day by a service operator any faults in the operation of the machine or faults observable on their visual inspection would very likely be picked up by such a system. Equally, however, it follows that any latent faults not affecting the operation of the machine or faults visible on a closer inspection that the service operators would have done would not be picked up. As Mr Slade confirmed, the defendant did not see itself as responsible for undertaking regular inspection or testing of the electrical components. Mr Slade said that the defendant did not perceive itself as under any contractual or statutory responsibility to undertake routine electrical portable appliance testing (“PAT”), although its maintenance engineers would perform PAT after working on any part of the electrical components whilst attending to any fault. Mr Slade said that insofar as PAT was necessary it was regarded by the defendant as the customer’s responsibility, although he also readily accepted that in reality this was impracticable, since the customer would not have access to the inside of the machine, which needed a key to open which only the defendant’s employees had, and that he was unaware of the defendant ever having notified the claimant that it viewed the claimant as responsible for PAT.

[31]There was some debate at trial about whose responsibility it was to undertake PAT and how frequently it should have been undertaken. In closing submissions reference was made to the Electricity at Works Regulations 1989 (“1989 Regulations”) and to the guidance produced by the HSE from 1994 entitled “Maintaining portable electrical equipment” (“HSE Guidance”). As regards the 1989 Regulations it is clear that:(a) the danger which they are designed to guard against is the risk of death or personal injury arising from electrical hazards, including fire initiated by electrical energy (reg. 2);

(b) they impose duties on all employers insofar as they relate to matters within their control (reg. 3);

(c) a duty to maintain all electrical systems including electrical equipment so as to prevent as far as is reasonably practicable such danger (reg. 4). It follows, I am satisfied, that since the defendant had control over the drinks vending machine under the terms of the operating agreements it owed a duty under the 1989 Regulations as regards the maintenance of the machine, albeit that the duty was owed in its capacity as employer of those operatives having access to it and not to the claimant and nor in relation to damage to property - which of course explains why the claimant has not relied upon these Regulations in its Particulars of Claim. Nonetheless this shows in my view that Mr Slade’s view and, on his evidence, the collective view of the defendant, is simply wrong in this respect.

[32]The HSE Guidance explains [11] that there is no legal definition of portable equipment. Nonetheless it is clear in my view that the drinks vending machine falls within the wide definition of such equipment employed by the HSE Guidance. I have no doubt that the HSE Guidance adopts a wide definition because it also recognises that there is a wide range of electrical appliance falling within that wide definition each with its own particular hazards and risks and exhorts those responsible under the 1989 Regulations to conduct individual risk assessments in order to decide upon the particular maintenance requirements for the particular item. The HSE Guidance makes clear [18] that the 1989 Regulations do not, as appears may be commonly but mistakenly believed, impose a requirement to test all portable electrical appliances every 12 months. It is clear from the Guidance that the drinks vending machine would not fall within the categories of portable equipment which create the most hazard and risk. It does however [35] emphasise the need for the maintenance plan to be proactive rather than reactive, although it also makes clear [36] that the maintenance plan may only require user checks or formal visual inspections as opposed to the combined formal visual inspection and test conducted by an electrically competent person referred to as the PAT. Nonetheless it is also apparent [38] that even the basic user check should include for signs that it has been exposed to wet conditions or overheating as [41] should formal visual inspections. The PAT is intended [47] to detect faults, such as deterioration of insulation integrity, which cannot be detected by visual inspection alone, and should be carried out “whenever there is reason to suppose the equipment may be defective and this cannot be confirmed by visual inspection” as well as after repairs and “at periods appropriate to be the equipment, the manner and frequency of use and the environment”. There is a section [55-60] which addresses the question of the frequency of examinations from which it is apparent that, consistent with the general approach of the Guidance, there is no “one size fits all” frequency nor, in my view, any clear-cut answer as regards the drinks vending machine the subject of this case which does not obviously fit within any of the categories of electrical equipment referred to.

[33]I shall refer to the evidence about this from the experts and state my conclusions in section 5.1 below. I should also however note at this stage that whilst Mr Davie sought to place reliance on the maintenance manual for the machine produced by Zanussi, which referred to the need for periodic maintenance, since the periodic maintenance referred to did not include any inspection or testing of any of the electrical components in the machine it does not seen to me that this assists the claimant’s case in any material respect.

[3]3 The drinks vending machine

[34]Mr Ryles evidence was that the drinks vending machine in question was a Hyperion VMC model. This model was first manufactured by Zanussi from around 1996. Sometime around 2001 Zanussi replaced it with a model known as a Spazio. Until sometime around 2006 Springbank continued to strip down and recondition Hyperion VMCs previously out on hire after which it would recirculate them to their customers. It follows from this evidence that the drinks vending machine the subject of this case cannot have been supplied to the claimant before around 1996 but could have been supplied to the claimant as late as 2006. Unfortunately, there is no better evidence available as to the date when it was manufactured or the date when it was supplied, since there is no record of its serial number and no records available either from Springbank or the defendant which would assist.

[35]There had been a dispute going into trial as to whether the drinks vending machine had been first manufactured and supplied before or after 9 January 1995, since the 1994 Regulations only apply to electrical equipment first supplied after that date. However, once the defendant’s witnesses had given evidence it became clear that they were unable to give positive evidence to the effect that it had been supplied before that date and Mr Mitchell sensibly and realistically conceded in closing submissions that the machine had not been first supplied before that date so that the 1994 Regulations did indeed apply. As Mr Davie had observed, even if it had been supplied before that date that would not have materially assisted the defendant since the predecessor Regulations – which were not materially different - would have applied in any event.

[36]There was much discussion and debate at trial as to the make-up of the drinks vending machine focussing, inevitably, upon the electrical components within the machine and the risk of incendive failure of those components, including the risk of incendive failure caused or contributed to by contact with water, and the combustibility of the various components and contents within the machine. In summary, the position is as follows:(a) The machine was a metal unit with an opening door. There were no metal vents in the top, but there were metal vents to the rear. There was an opening in the front at mid-low level where the drinks dispenser was located and a smaller opening also in the front at mid-low level where the coin slot was situated. There were flammable plastic fittings externally down the front of the machine and also inside the machine, particular the containers in which the ingredients such as tea and coffee were stored. The machine was set up to dispense hot drinks and carbonated (fizzy) cold drinks, the latter through a chiller carbonator unit, although the evidence is – and I accept – that by the time of the fire the latter had been decommissioned as the commercial preference was to sell cans of carbonated cold drinks through the snack vending machine. Behind the front door there was a compartment where plastic cups were stored. The front door was locked but as I have said could be opened with a key in order to gain access to restock the machine or for maintenance. There was no seal at the base so that any liquid spilled internally could escape onto the floor in front.

(b) Internally there were a number of electrical components, including a number of mains 240V components which would have been energised at the time of the fire. Thus there was a mains control board and power unit at high level, supplied by the mains supply entering the unit at mid-level. There was a mains power supply running down the unit to a common rail at mid-level into which separate power sources were plugged. This would include a mains power supply which supplied the chiller carbonator unit located at low level, albeit that as I have said I accept that this was disconnected at the time of the fire. It also included a mains power supply which supplied a ventilation fan, located at mid-level. There was also a mains power supply from the distribution board to the boiler at high level and a mains power supply to the door lighting circuit (albeit again there is evidence which I accept that the lighting bulbs had been removed by the time of the fire so that no current was flowing albeit the circuit remained energised) as well as a mains power supply to the control panel in the door at high level. The remaining circuits were 24V or less, with the only one permanently energised being that running from the control panel to the input selector on the front of the unit.

(c) The water supply also entered the unit at mid-level, from where it was piped up via a solenoid controlled filter to the header tank at high level and from there either into the boiler to produce hot water for hot drinks or down to the chiller carbonator unit for producing cold drinks. The hot water from the boiler was piped laterally to the boiler valves, controlled by solenoids, from where it was piped down to the individual mixing decks and into the mixing bowls at the front of each mixing deck, in which it was mixed with the ingredients dispensed from the ingredient vats above (using a low voltage motor to power a rotating screw) to produce the different hot drinks offered. Hot water was piped separately down to the tea brewer located below the header tank. In each case a low voltage whipper motor was needed to power the mixing bowls. The finished product would then be piped down to the drink dispenser at the front of the machine where it would be dispensed into the plastic cups stored behind the front door.

(d) Upon opening the front of the machine one would see the ingredient vats and mixing chambers at high level and then a tea brewer and drip tray at mid-level, below which there was the chiller carbonator unit and a bucket to collect any escaping water at low level. The drip tray was fixed onto the common rail at the rear of the machine; its purpose was to ensure that any leaking water from above that level was collected and fed into the bucket at low-level, which had a ball valve which would operate to cut off the water supply if it was at risk of overflowing.

(e) In order to see and gain access to the electrical and water parts referred to above it would be necessary to remove the ingredient vats, revealing a back plate which then also had to be removed to gain access to those parts.

(f) The experts agree that the electrical wiring and components in general and the 240V wiring and components in particular are always a potential source of incendive fault. They also agree that the lower voltage wiring and components present less of a risk, especially those which are only energised when the machine is in use. It is also common ground that the electrical equipment is protected by fuses and circuit breakers such that any incendive fault would have to develop before either the fuse or the circuit breaker operated to shut down the electricity supply. Moreover, the machine contains a number of safety features such as an over-temperature sensor and a drain pipe for the boiler and the float for the water bucket.

[37]So far as the risk of water leakage affecting the electrical components is concerned, the position is as follows. Mr Ryles was very emphatic in cross-examination that there was no realistic risk of water leaking from the boiler valves coming into contact either with the solenoids above or the mixing motors below, since any leaking water would either still pass through the existing water pipe where it could do no harm or, if not, down to where it would be collected by the drip tray and safely fed into the water collecting bucket. He also made the point that insofar as there was a risk of any such water leaking onto the dispenser motor or the whipper motor both were served by 24V electricity supplies and were only energised when the machine was dispensing which – as Mr Braund agreed – reduced the risk of incendive fault from these electricity components significantly.

[38]As I have said the drip tray was fixed to slot onto the common rail in which the power connections were made. It was suggested to Mr Braund in cross-examination that the presence of this drip tray, hooked over the top of the common rail as Mr Ryles described it, would ensure that any liquid would be intercepted and taken away down into the water bucket rather than come into contact with the electrical components connected into the common rail. Mr Braund accepted that this was the design and he agreed that he would assume that this is what would happen.

[39]Mr Anderson confirmed in re-examination that the electrical components in the door would have been separated from the inside of the machine by a metal casing, so that there was no risk of their being “sprayed” by a leak in the machine. He explained that it was possible for there to be a spray if a filter was blocked on the tea brewer, although he also said that this would be a brown spray and would have probably have been noted as a dispensing issue.

[40]Nonetheless Mr Braund maintained the view that there were points where there was a risk of water coming into contact with 240V electrical components. He particularly pointed to the electric fan, which sat within a non-sealed metal unit behind the tea brewer at mid-level, and also noted that the design of the water inlet valve was such that that the solenoid coil was to the side of, rather than above, the valve such that it was potentially vulnerable to water ingress.

[41]There was an issue as to whether the drinks vending machine was sited to the right of the snack vending machine, thus placing it closest to the partition, or to the left of the snack vending machine. This issue arose because the firefighters in their statements to Mr Braund indicated their belief that the worst damage was to the machine on the left hand side and also because Mr Tunnicliffe had thought that the drinks vending machine might have been to the left. But for this evidence Mr Jones would readily have accepted that the drinks vending machine was closest to the partition. In cross-examination he accepted that having seen Mr Braund’s reconstructions of the scene the drinks vending machine must have been situated to the right of the snack vending machine. Moreover, having heard the evidence of Mrs Vincent, Mrs Bould and Mr Watwood, even taking into account the fallibilities of recollection I am quite satisfied that they are correct in saying that the drinks vending machine was closest to the partition. It is possible that the firefighters are simply confused or mistaken; whilst the statements were taken in January 2010 there is no reason to think that this was a particularly important matter for them to recall, and it is not referred to in the firefighters incident report. Mr Tunnicliffe was unclear in his recollection.

[42]I am also satisfied that there is no credible evidence that there was any waste bin between the drinks vending machine and the partition. The evidence of the bin being burned does not assist one way or another and the evidence of Mr Tunnicliffe on which Mr Jones relied was not in the end supportive of this possibility.

[43]Whilst I am not critical of Mr Jones for raising these points as issues, given the evidence of the firefighters and that of Mr Tunnicliffe, it is notable that he was prepared to give them some prominence in his reports without either undertaking the reconstruction exercise which Mr Braund eventually undertook or caveating his opinion accordingly. It is one of a number of examples of Mr Jones being willing to propound theories without having done the work necessary to ascertain with real confidence whether or not they were consistent with all of the known facts.

[3]4 Maintenance visits in December 2009

[44]There is no evidence of any history of repeated or serious faults with the drinks vending machine prior to December 2009. If there had been Mrs Vincent would, on her evidence, have known about it and she disclaimed any such knowledge.

[45]As I have said, the only documentary evidence which the defendant has been able to adduce comprises the record obtained by interrogating Vendman. This records that on 15 December the machine was described as down due to a leak. The repair description is “cooler/carbonator”. The reason why I have said that Mr Ryles must have had access to further information beyond the printout is that his witness statement contains more detail about this visit even though he was quite clear that he had not seen the witness statement taken by Mr Jones from Mr White when making his witness statement. Either he did have access to more information from Vendman at some stage or his witness statement simply records what other people know from reading Mr White’s witness statement; whilst this is not what a witness statement should do it is, regrettably, not unknown for it to happen.

[46]Mr Davie submitted that in such circumstances the court is justified in making adverse factual findings against the party responsible for the failure to provide relevant information, and should do so in this case in question. I accept of course that the court may do so in appropriate circumstances. However whether it should do so will all depend on the facts of the particular case. In this case I am not satisfied that I should. On balance I believe it more likely that Mr Ryles did simply regurgitate what he had been told by other people rather than have access to more detailed information from Vendman. There is no reason to believe that the defendant was anything other than careless of its disclosure obligations when it failed to ensure that the relative information within Vendman was extracted and safeguarded before decommissioning the system sometime around 2012. I bear in mind that this is a case where it is the defendant’s insurers who are contesting this litigation so that the chains of communication may not have been quite so good as they would have been had the defendant been directly involved. Most significantly there is available a witness statement taken by Mr Jones from Mr White, who attended on 15 December 2009, and a witness statement and oral evidence from Mr Anderson, who attended on 22 December 2009. Both give detailed accounts of their visits on those dates. Whilst it might be said that their accounts might be shown to be inconsistent if the information from Vendman was still available, that seems to me in the context of this case to be no more than a theoretical possibility. In my assessment this is not a case where it is likely that Vendman would contain information from which it could be demonstrated that the accounts given by either man were wholly unreliable or worse. Thus I do not consider that it would be just for me to draw adverse factual inferences against the defendant in this case in relation to this aspect of the evidence.

[47]Turning to the substance, as regards Mr White he has not been called as a witness. He has recently retired from the defendant’s employment. The defendant’s solicitors wrote to him asking if he would be willing to give evidence but he did not reply. Neither they nor anyone within the defendant company has made any further attempt to persuade him to give evidence. I do not consider that I should criticise the defendant for not badgering someone who might simply be unwilling to be involved, although I accept that it might have been better to have sent one chasing letter in case the first had gone astray. Nonetheless I must treat his witness statement as hearsay evidence which has not been tested by cross-examination and give it only such weight as is appropriate.

[48]His statement, which was taken in May 2011, says that he attended in response to a reported leak where the machine was described as “down”. (Mr Ryles accepted that the fact that the machine was described as down indicated that the leak was more of a problem than simply some small leak to the interior of the machine. It is likely I find that the service operator who attended that day must have concluded that the leak was sufficient to justify taking the drinks vending machine out of service and reporting it as a fault on this basis so as to expedite the engineer’s attendance). He says that he was unable to locate any water leakage or evidence of a leak on inspection, despite checking all around the machine including the back walls. He said that this puzzled him since in his experience intermittent leaks were extremely unusual. He says that he saw that the cold drinks selection options at the front of the machine had been removed and that the chiller carbonator for dispensing cold drinks had been electrically disconnected but remained connected to the gas and water supply. He says that having considered matters further he concluded that it was possible that the leak was associated with this redundant unit, his assumption being that if a leak had developed in one of its outlet valves water would have been forced out due to pressure from the gas inside the carbonator until the gas had totally discharged from the gas bottle which, he noted, was empty. He therefore decided to disconnect this redundant unit from the water supply by using a clip already provided on the pipe to seal the pipe which he left resting on the floor. He then checked that the unit was operating correctly and left.

[49]There does not seem to me to be any reason to treat the essentials of that account as inherently improbable or unreliable, although I do accept that it would be unsafe to place too much reliance upon any specific details in the statement without knowing just how good his precise recollection in circumstances where the witness statement was taken 18 months after the event. Mr Davie initially suggested in closing submissions that it could not be correct since the attendance log recorded him as only being present for 3 minutes and I should take that record at face value and conclude that Mr White was not there for sufficient length to do what he says he did. However, sensibly he did not press this submission too hard and I am quite satisfied that the attendance log simply reflects an error in the time submitted by Mr White through his handheld device. It is obvious that Mr White could not have done anything like what he says he did within that time period and there is no reason to believe that he was lying to Mr Jones about this when he made his statement.

[50]Mr Davie also submits however that what is apparent from this account is that:(a) in fact Mr White was unable positively to identify the source of the leak, so that there could be no certainty that the leak was not still continuing from another source;

(b) Mr White introduced a further source of leakage by disconnecting the pipe – albeit now sealed – from the carbonator, whereas he could simply have left the pipe once sealed connected to the carbonator.

[51]It is clearly the case in my judgment that Mr Davie is right about point (a). It was pure conjecture by Mr White, albeit no doubt based on his experience. I do not think that I can safely assume that he undoubtedly removed the vat dispensers or the back plate in order to conduct a full check of the interior of the machine – the reference in his witness statement to what he did is not entirely clear on this point. It also seems to me that there were a number of flaws with his assumption. If, as he inferred, the chiller carbonator had probably been disconnected some time ago then the gas bottle was likely to have discharged through natural leakage some time ago as well – as Mr Ryles agreed in cross-examination. Since the engineers could not call up the service history whilst on site he had no way of ascertaining when it had been disconnected and he does not say that he made contact with the operator to find out. Moreover, if that had been the cause, in the absence of a recent history of leakage – about which he says nothing - it would have been a remarkable coincidence if the leak in the outlet valve had developed just before the gas bottle had finally emptied. Still further, it did not explain the curiosity of there being no evidence of a water leak from that location visible on inspection despite being reported only the same day as sufficient to warrant a “down” machine status. A regards point (b) in my view Mr Davie is right about this as well; there was no good reason for disconnecting the pipe as well as sealing it – if the sealing was effective it would not matter if it was still connected, whereas the converse was also true. Mr Ryles and Mr Anderson accepted the force of this point in cross-examination.

[52]My conclusion is that Mr White was clearly correct, as he said in his witness statement, to regard the absence of any leakage as “a bit of a puzzle”. There is evidence which indicates that he may have been in rather a rush that day, not least his error in recording his time of attendance or of departure. On the balance of probabilities I conclude that he decided that rather than spend too much time trying to locate a source of leakage which was not immediately apparent he jumped to and acted upon a conclusion which was no more than informed speculation and not based on a careful examination of all of the machine.

[53]In fairness to Mr White I can understand that he may well have believed that the worst that could happen was that if that was not the cause of the leak it would recur and would be reported again and either he or another maintenance engineer would attend, discover its source, and repair it. He was clearly an experienced maintenance engineer but there is no positive evidence that he was aware of the risk of incendive failure if water came into contact with any live electrical components. He clearly did not think it necessary to conduct a PAT on the machine before he left. In that regard I am satisfied that he was, on my findings, in error. There was a report of what must have been a significant leak and an unresolved puzzle as to what had caused it. I am satisfied that he could not properly have positively excluded the possibility that whatever had leaked might have come into contact with a live electrical component. Mr Anderson accepted in cross-examination that he would want to do a PAT test if there was a possibility of water having affected electrics. The HSE Guidance and common sense clearly mandate in my view that in such circumstances a PAT should have been undertaken and I am satisfied that this is what Mr White should have done.

[54]Mr Mitchell submitted that it was not open to me to make such a finding since Mr Braund had not criticised Mr White or Mr Anderson, whether in his reports or in his oral evidence, for what they did. In fact Mr Braund’s answer in cross-examination was qualified so that what he actually said was that he would not criticise either of them on the basis that what they said they saw and what they said they did was accurate. I accept Mr Davie’s submission that this is not a professional negligence case where I can only find that one or other or both of these maintenance engineers failed to exercise reasonable care and skill if there is evidence from an electrical engineer such as Mr Braund to that effect so as to satisfy the well-known “Bolam” test. There is no evidence that Mr White was a qualified electrician and Mr Anderson said that he was not. They were maintenance engineers who had familiarity with the electrical components they worked with as part of their job and, as is clear from Mr Anderson’s evidence, were able to undertake PAT. However the question as to whether or not they ought to have undertaken PAT in the circumstances as I find them to have been is a matter which I am able to assess by reference to the totality of the evidence before me, including the evidence of the factual and expert witnesses and the HSE Guidance.

[55]Returning to the chronology, there is no history in the maintenance log or any other evidence of any further problem with the drinks vending machine in the following week until 22 December, which was a Tuesday. The week before was still term time so that there is reason to think that the drinks vending machine would still have been used by students over that period. Thus I am prepared to accept that if there had been a significant continuing or recurrent leak it would have been observed and would have been reported and a maintenance engineer would have been called out and his visit recorded. Term finished at the end of that week, so that it is reasonable to assume that the drinks vending machine was little used, if used at all, in the week commencing 21 December. The log records that on the 22 December there was another report of a leak, which was not marked as a priority response because the machine status was recorded as “degraded” rather than down. The log records that the engineer, who we know was Mr Anderson, spent some 42 minutes on site, completing the job at 16:56 hours. The repair description is recorded as “water system cold”.

[56]Mr Anderson provided a witness statement in this litigation and gave evidence at trial. He came across to me as a thoroughly honest and – save as qualified below – a reasonably reliable witness. I bear in mind that it is likely that anyone in his position would be defensive, as indeed he was, and I must assess his evidence in that context. I also bear in mind the criticisms made by Mr Davie as to his reliability. I accept that he was in error in his witness statement as to where the water supply entered and circulated around the machine which gave the misleading impression that the water and the electrical components were physically separate. There was also a small but important discrepancy between:(a) the Amended Defence, which must have been founded on what he had told either Mr Jones or someone else closer to the date of the fire, where it was said that whilst there was water on the floor of the machine “there was no leak observable” and no reference to water dripping from the pipe end; and

(b) his witness statement, made at a much later date, where he said that there was a “very small amount of water on the stainless steel floor of the machine” and that he saw a “tiny drip of water” drop from the pipe end onto the floor. This alteration is important because in his witness statement he explained that it was this water dripping from the pipe which led him to conclude that this was the source of the leak. It was clear that when he was cross-examined about this he had no very clear recollection of events and, not surprisingly, found it difficult to explain the difference between the two versions of events or to confirm which was the more accurate. Whilst he still maintained that he had seen a drip of water from the pipe I am afraid that I am unable to accept this as accurate. If he had seen this at the time it is inconceivable in my view that it would not have been referred to in Mr Jones’ first report at [2.11] or pleaded in the Defence. In my view it is clear that he must have made an assumption about where the water had come from, having seen the disconnected pipe with the clip on it on the floor where he saw collected water.

[57]His evidence was that he had been employed by Springbank and then by the defendant, initially as an apprentice in July 1999 for two years and then as a service maintenance engineer. He received practical training as an apprentice by working in the repair and reconditioning workshop, stripping out and rebuilding vending machines. This included working on the electrical equipment within the machines although he has no formal electrical qualification. His evidence was that as a result of this experience he had plenty of practical experience in the operation of the vending machines by the time he came to inspect this particular drinks vending machine on 22 December 2009. He confirmed that he was unaware of the previous visit by Mr White and, thus, that he investigated matters afresh. I have already referred to the conflicting evidence as to what he found on his inspection. His evidence was that having concluded that the leak had come from the pipe he removed the bottom end of the pipe to stop it trailing on the floor and retightened the clip before re-fixing it. He then test operated the machine by carrying out what he described as a bowl flush to run clean water through the pipes running from the boiler into the mixing bowls and then made a coffee and, whilst drinking the coffee, watched and observed that there were no more leaks. Being satisfied that he had done what was necessary to fix the problem he then left site. He confirmed Mr White’s account that the electrical supply to the carbonator had already been disconnected.

[58]Mr Davie made a number of criticisms of what was done by Mr Anderson the majority of which I consider have substance. I should make it clear that, as will appear, some of these criticisms are made in the context of Mr Davie’s criticisms not of Mr Anderson as an individual but as someone dealing with a problem which confronted him in the context of the information which was available to him and the instructions which were given to him, both of which were limited

[59]The first criticism was that his diagnosis was made on the basis of complete ignorance as to the previous maintenance history relating to the machine. He was unable to access the Vendman records remotely via his handheld device and did not consider it necessary to make contact with the operator to ascertain the position. I consider that this criticism is made out although, to be fair to Mr Anderson, in the absence of his being able to access the records remotely and in the absence of a system whereby maintenance engineers were alerted to any relevant recent service history relating to the machine they were instructed to attend or instructed to telephone the operator to ask if in doubt it is perhaps not surprising that he did not feel it necessary to take the initiative. This omission is significant however because if he had done he would have discovered that there had been a similar occurrence the previous week where a leak had been reported but nothing had been found on inspection so that Mr White had made an assumption as to the possible leakage source and conducted a repair on the basis of that assumption. It is apparent that two reported leaks in the space of a week where nothing was visible only hours later begged a number of further questions as to where this leak was emanating from and why it was only intermittent. It could in some circumstances, as Mr Ryles said, have been nothing more sinister than two separate spillages which had been misreported as leaks when in fact they were not, but that was plainly not the case here even on Mr Anderson’s findings and he would not have been justified in reaching that conclusion.

[60]The second criticism was that Mr Anderson had made an assumption that it was a leak from the pipe which had caused the water to be on the floor, when there was no positive evidence to support that assumption. On the basis of my findings I agree that in the absence of water leaking from the pipe itself he had indeed made an assumption. It was perhaps on the evidence facing him not a completely unreasonable assumption, given the physical evidence of the clipped pipe on the floor and the water in the same location. However, in the same way as with the previous criticism, had he known about what had happened the previous week he ought to have been aware that there was at least a potential alternative explanation.

[61]The third criticism was that, having made that assumption, he failed to undertake a thorough investigation as to other potential sources for the water. In his witness statement he said at [8] that having found the water on the floor he checked the rest of the machine and found that none of the other components inside were wet. He did not give any further explanation as to precisely what he had done or how extensive his check was. He was asked in re-examination about what further investigation to find the source of water he had undertaken and did not refer to anything other than the bowl flush or making a coffee and observing whether there were any drips on the drip tray. He said that he “imagined” (by which I consider he meant he believed) he would have removed the back panel to look at the boiler and the valves, as it would only take 2 minutes to do so, but it did not seem to me that he had any clear recollection of doing so either in this case or as a general practice. In the circumstances I consider that this criticism is made out. I have no doubt that in the run-up to Christmas it would have been a busy time and that this visit was just before 5pm. I am satisfied that in a similar way to Mr White he saw what appeared to be a puzzle but jumped to the conclusion that the leak must have been due to a leak from the pipe serving the chiller carbonator and tightened that, rather than – as I am satisfied he saw it - wasting time on a full inspection of the machine.

[62]The fourth criticism was of failing to undertake PAT in circumstances where he ought to have been aware of at least the possibility that water had affected the electrical components. His evidence in cross-examination was that he would undertake PAT if he had worked on the electrical components or if he was aware of a potential electrical fault. He accepted in cross-examination that he would want to undertake PAT if there was a possibility of water having affected electrics. His evidence in cross-examination was that he did not consider that the water on the floor of the machine was capable of adversely affecting the electrical equipment. It seemed to me that he had not really considered whether, if that water had come from a source other than the disconnected pipe, it might have adversely affected the electrics on its passage down to the floor of the machine. It was apparent from his witness statement at [10] that he believed that an internal water leak could not have adversely affected the internal electrical components. In my view it is plain from what he did know and ought to have known that there was at least a possibility that this was the case. Again, in fairness to Mr Anderson, as he said he had not received any training or instructions as to when and in what circumstances he ought to undertake PAT so that this is as much a criticism of the system and his instructions as of him individually, but nonetheless I do consider that the criticism is made out.

[63]The fifth criticism was that he ought to have decommissioned the machine given all of the circumstances and the risk of a continuing leak resulting in damage to the electrical components and thus a risk of fire. I do not consider that this criticism is made out. That would have been an over-reaction to what, even on the findings I have made, would still have been only a surmise at that stage. Insofar as relevant I would accept a lesser criticism that if Mr Anderson did not have time or access to the equipment necessary to conduct a full inspection and PAT on his visit – and neither he nor anyone else suggested that this was the case – then he should have contacted the operator to request a visit by someone who could undertake a full inspection and PAT and, if he had been told that it could not happen until the next day or even later then, given the time of day and the fact that it was out of term time, he should have decommissioned the machine in the meantime.

[64]On the balance of probabilities I am satisfied that there was an intermittent water leak from the drinks vending machine over this period and that it did not emanate from the water supply feeding the chiller carbonator. The absence of evidence of a water leak from the chiller carbonator as at 15 December, coupled with the points I make above in [51] about the intrinsic unlikelihood of the explanation as arrived at by Mr White, coupled with the further reported leak but the absence of a drip from the disconnected but clipped water pipe as at 22 December, and my conclusion that neither Mr White not Mr Anderson undertook a full inspection of the drinks vending machine to enable me to be satisfied that they could positively rule out a leak elsewhere, satisfies me on the balance of probabilities that there was an intermittent leak elsewhere in the drinks vending machine as at this time. I do however accept the evidence of Mr Anderson that there was no leak observable to him when he conducted the bowl flush and made a cup of coffee. That does indicate that there was no leak in the hot water system from the boiler through the mixing chambers to the drink dispenser. If there was also no leak in the cold water system feeding the chiller carbonator then, by a process of elimination, that leaves the possibility of a leak in the water intake from the rear of the machine to the water inlet valve referred to at [40] above and leading to the header tank and boiler. There is no evidence from the photographs or otherwise that this section of the water system is immediately visible either to a service operator or even to a maintenance operator on removing the ingredient vast or even the back plate.

[3]5 The fire - the CCTV and the other evidence

[65]I have already said that the CCTV evidence is of great importance in this case. It is relatively unusual in fire cases for CCTV evidence to be available; that is explained here because although the lobby was smoke damaged it was not fire damaged so that the CCTV camera was not destroyed or damaged in the fire itself. It is also fortunately the case that the approximate view of the CCTV can be ascertained from footage available from the afternoon before the fire in which the reception area is illuminated so that it can be confirmed that the view from the CCTV camera extends to the partition, the position of which can be fixed by reference to the fire exit sign in the middle upper glass panel. It follows that insofar as anything can be seen behind the partition into the reception that would include the alcove in which the vending machines were located. In addition to this internal CCTV camera there was also an external CCTV camera sited externally and trained on the reception entrance, to which brief reference will be made as appropriate where necessary.

[66]I have been assisted in understanding the CCTV evidence by Mr Braund having commissioned from a CAD consultant a series of models which show in 3D form the layout of the reception area and the lobby and the view from the CCTV. Mr Braund has also made good use of modern technology to produce composite CCTV video stills showing the location of various images appearing on the CCTV at separate times in real life on the same screen to enable their respective positions to be compared. Finally, the CAD consultant has added those images to the 3D models so that the location of the images and the view from the CCTV camera through the various panes of the partition door can be seen in context of the layout of the reception area including the alcove and the lobby. In order to identify the location of the images compared to the assumed location of the drinks vending machine, the snack vending machine and the bottom edge of the soffit of the ceiling void the CAD consultant has produced further 3D models showing these machines in various assumed positions in the alcove. Mr Braund has been at pains to assure me that he conducted this exercise without knowing in advance what the results would be, i.e. whether or not they would support the claimant’s or the defendant’s case, and I entirely accept that assurance. He has also willingly conceded that there is inevitably a margin of error and, also, an element of subjectivity in that he has superimposed a number of red circles to identify where in his opinion the centre of the flaming fire is at any particular point in time. Now that the relative position of the drinks vending machine and the snack vending machine can be ascertained with confidence (see section 3.3 above) there can be no doubt as to the essential accuracy of these reconstructive aids and, indeed, Mr Jones accepted in evidence that they were a useful tool the fundamental accuracy of which he did not seriously dispute.

[67]It is common ground that although the CCTV camera was always on it was programmed to produce a recording for only a few milli-seconds every second, in order to lengthen the total available recording time. There were two versions of the internal CCTV recording produced at trial. The original copy of the CCTV digital recording had been made available to all from an early stage. This had a 24 hour clock running on it and, thus, showed developments as they occurred in real time. It worked well on older computers but due – as I understand it – to software issues less well or not at all on newer machines. Hence a copy was made with its own internal time clock which was playable on newer machines and which went into the trial bundle. However shortly before trial Mr Braund was able, with the assistance of his firm’s IT department, to produce in a playable form another version of the original recording hearing with the 24 hour clock which was of much better quality than the copy. Mr Jones had not seen that version until trial although he had, of course, seen the original copy and the subsequent copy previously.

[68]The CCTV recording begins at 23.45:00 hrs on 22 December. At this point all that is clearly visible is a white image to the mid left of the screen. It is common ground between the experts that this is that part of the illuminated display of the front of the snack vending machine (and not the drinks vending machine, which was not illuminated) which is visible through the glass panels of the partition door. It assists, therefore, in locating the approximate position of the drinks vending machine now that I have found that the drinks vending machine was located to the right of the snack vending machine. Also visible on the other side of the screen at higher level is a faint glow which is light entering the lobby from the outside through a glass partition in that area, close to where the orange flashes appear later (see below). This is relevant because the extent to which the faint glow is visible, as well as the extent to which the orange flashes are visible, provides a reasonable indication as to the presence and extent of any smoke in the lobby at a particular time.

[69]The first significant event is at 23:53:00 hrs on 22 December when the white image on the left hand side ceases and does not reappear subsequently. It is common ground between the experts that this can only have been due to the mains power supply to the snack vending machine being cut as a result of the circuit breaker tripping in the double socket which served both vending machines. It is common ground that the fuse in the plug of the snack vending machine was intact (the plug of the drinks vending machine was never found) so that it was the circuit breaker which tripped. It is also common ground that this means that the mains power supply to the drinks vending machine must have been cut at this point as well. The experts agree that this means that if a fire began in the drinks vending machine as a result of an electrical fault whatever caused that fire to start must have happened by this time since at all relevant times subsequently there was no power supply to the machine. Mr Braund considers that a short circuit fault in the drinks vending machine, of sufficient intensity to start a flaming fire, caused the circuit breaker to trip. Mr Jones considers that the reason the circuit breaker tripped was not due to a fault developing in the drinks vending machine but due to the mains power supply in the void, which fed the vending machines as well via a power cable running down from the ceiling void, having failed by that point. This point in time, therefore, marks the start of the fire wherever it began.

[70]The next significant event is at 00:21:42 hrs on 23 December (and thus some 28 minutes after the power is cut) when there is the first of a number of short orange flashes visible to the top right hand corner of the CCTV screen.

[71]It has always been Mr Braund’s opinion that this is a reflection on the white wall panel at that location of a fire alarm beacon located above that point and not visible to the CCTV camera. If so, that would indicate that the fire alarm was activated at or shortly before that time. Until a late stage in his cross-examination and his re-examination it had always been Mr Jones’ opinion that this was either the reflection of the fire beacon or, more probably he considered, the reflection of visible evidence of the fire already established in the ceiling void. His explanation was that hot gases escaping from a hole in the ceiling void into the lobby were intermittently igniting as they escaped and that these intermittent ignitions were being reflected across to the other side of the lobby.

[72]It is right to record that Mr Jones’ primary reason for considering this second explanation to be more probable was his belief that if the CCTV was recording at a consistent time each second and the fire beacon was also flashing at a consistent time each second then there ought, by a process of mathematical deduction, to have been a consistent time lapse between each occasion when the flash was captured by the CCTV, whereas in fact there was no such pattern. Mr Braund accepted that this would be expected in theory; however he did not find the lack of such a pattern particularly surprising in practice since in his view any small variation in the timing of the milli-second CCTV recordings or in the beacon signals would have a significant event on the consistency of the pattern. As a matter of mathematical deduction that must be right; Mr Jones’ analysis only works if the time lapse between each event is indeed constant. Neither Mr Jones nor Mr Braund was able to refer to any evidence one way or another as to whether or not there was likely or unlikely to be any such small variation. All that can be said with any confidence is that from a design perspective it would not have mattered to those responsible for designing or manufacturing or commissioning the CCTV or the fire beacon whether or not there was any such minute variation.

[73]In cross-examination Mr Jones did not agree with Mr Davie’s suggestion that his analysis was quite clearly wrong and adhered to his view until the end of his cross-examination on this topic, when he was shown the last recorded orange flash. This was almost invisible due to the presence of smoke in the lobby and at that point he agreed that this flash could only have been a reflection of a fire beacon since the quantity of smoke by then present would by then have been preventing any light from the vent hole in the ceiling void from reaching the wall on the other side of the lobby. In re-examination he accepted that whilst theoretically plausible it was inherently improbable that the same flash in the same location could have been caused at one point in time by the fire beacon but previously by the reflection of visible evidence of the fire, so that he agreed that it was more likely than not that it was caused by the fire beacon throughout.

[74]I accept that Mr Jones was entirely genuine and clear throughout as to what he believed and why. I also note that he was prepared to volunteer at the end of his cross-examination that he had changed his opinion and why he had done so, in circumstances where a less truly independent expert witness might have chosen to try to conceal what was clearly a genuine “eureka” moment. Nonetheless, in my view this explanation always advanced lacked essential credibility; even though Mr Jones made it clear that his escaping gas ignition theory would only be an intermittent event as Mr Davie put to him it does not appear at all consistent with the pattern of the same type and size of flash appearing in precisely the same place on a repeated basis over a prolonged period and even after –on Mr Jones’ analysis – the fire in the ceiling void had begun to break down the plywood surrounds allowing air to enter the ceiling void. When this point was put to him in cross-examination he suggested that by this stage the reflection was of burning timber remnants in the same location, which was not only a new point but did not explain why it remained of the same intermittent character and the same type, size and location. Furthermore, had Mr Jones examined the CCTV (which he had always had) with the same rigour before propounding this theory he would have seen the change in visibility over time and reached the same point he arrived at after cross-examination. More generally, this also supports my opinion of him as someone who was able to articulate and to maintain with great conviction and credibility an explanation for – in this case – the intermittent flashing which, as it transpired on closer examination, was completely wrong.

[75]In the circumstances I may now conclude with confidence that the fire alarm beacon was activated at or shortly before 00:21:42 hrs. The question is whether I can confidently conclude whether or not it was:(a) activated only by the sensor in the server room which, if so, undoubtedly supports the proposition that the fire started in the ceiling void;

(b) activated only by a sensor in the reception area which, if so, undoubtedly supports the proposition that the fire started in the drinks vending machine; or

(c) activated by both sensors, if there were two. It is of course possible, as Mr Braund recognised, that due to the absence of clear evidence as to the construction of the ceiling void at the time of the fire: (a) smoke from the machine could have found its way into the ceiling void and through the cable gap into the server room activating the smoke detector there; (b) equally smoke in the ceiling void could have found its way into the reception area and activated the smoke detector there, so that this would not be conclusive evidence one way or the other in any event. Given my finding however that there were sensors both in the switch room and the reception area I do not consider that I can make any finding either way so that this point is, effectively, a neutral one.

[76]Cross-referring to the CCTV recording from the external car park, between around 00:30 and 00:35 hours smoke is visible emerging from the reception area, at first in wisps and then in increasing quantities. This of course is consistent with the fire alarm beacon having been activated some 8 or 9 minutes previously and demonstrates that by this stage the fire, wherever it was and in whatever state it was, had begun to produce sufficient quantities of smoke to escape externally. It is also consistent with smoke entering the lobby over this period and obscuring the visibility of the light penetrating from the exterior adjacent to the flashing lights, which Mr Braund agreed was the case.

[77]The next significant event is from 00:34:09 hours (the precise time is not quite agreed but does not matter) which is the first point in time at which there is faintly visible what can very quickly, by 00:34:34 hrs, plainly be seen as a white / orange glow on the left hand side of the CCTV screen, a little less than half way up the screen and a little less than a quarter away from the left hand side. This is a critical event, because Mr Braund’s opinion is that this is the first visible sign of a fire glow and, in his opinion (by reference to the known location of the prior white light from the snack vending machine, the known location of the panels in the partition door and the fire exit sign obscuring part of one of them, and to the assumed position of the respective vending machines in the alcove) it is located in the approximate position of the coin slot of the drinks vending machine, just to the right of the drinks dispenser. Mr Braund’s view is that this is evidence of a burning fire in the drinks vending machine, visible through the drinks dispenser. Mr Jones accepts, as he must in my view, that this glow is indeed apparent in this approximate area at this time, but his view is that it is either a glow from some burning item which had fallen from the ceiling void or a reflected glow from some burning item in the general alcove area, rather than a glow from a fire originating within the drinks vending machine.

[78]Within a further 10 seconds, at 00:34:45 hrs, the glow has become significantly larger and more intense, now clearly visible not just through the lower of the glass panels but through the middle panel as well and this, in Mr Braund’s opinion, shows the fire breaking out of the drinks vending machine through the drinks dispenser. Within a couple of seconds, at 00:34:46 hrs, the centre of the glow and thus the main area of burning has, in Mr Braund’s assessment, moved up again. His interpretation is that by this stage the combustible plastic on the front of the machine is now burning and the fire is spreading upwards to the top of the machine. Mr Jones maintains that this is still explained by a fallen burning item, perhaps landing on the top of the machine, or by the fact that the plastic front of the machine has now caught fire as a result of ignition from a fallen burning item.

[79]Over the next 30 seconds or so the fire continues to increase in area and in intensity. In Mr Braund’s view the fire is still clearly below the corner of the ceiling void fascia and soffit, indicating that there is no fire inside the ceiling void breaking out from above at this point. At a point after 00:35:00 hrs onwards Mr Braund identifies an intense fire at this corner which he considers is the point in time at which the fire is breaking through the plywood soffit into the ceiling void.

[80]It is known that the intruder alarm was activated at 00:37:02 hrs, which is before the fire brigade arrived. Unfortunately, it is not known at which location the alarm was activated or, hence, which cable run served that location. In the absence of any evidence to the contrary it is reasonable to assume that it was activated because the cable ran through the ceiling void and had become sufficiently fire damaged to fault and trigger the alarm. This point however is of little if any significance, because Mr Braund would not dispute that by this time it is likely that the fire had extended to the contents of the cable tray, whereas Mr Jones would say that it is perfectly plausible that it may have taken some time – and certainly after the ceiling void had already become open due to damage to the soffits - for all of the cables lying within the cable tray, especially those at the centre, to become sufficiently fire damaged to trigger the alarm.

[81]The fire continues to burn with intensity until it ends at 00:39:35 hrs, which is when the experts agree the cabling to the CCTV, also probably running through the ceiling void, became sufficiently fire damaged to prevent it from operating or recording. It is common ground that by this stage there are significant amounts of smoke in the lobby area, almost completely obscuring the flash of the beacon.

[82]As regards other evidence, there is also the fire incident report by the Fire and Rescue Service to which I referred in section 3.1 above in relation to the question as to whether there was a smoke detector in the reception area as well as the statements taken by Mr Braund from the attending firefighters subsequently. Mr Davie relies upon the conclusion in the report that the fire started in the drinks vending machine due to an electrical fault in that machine. Mr Mitchell submits that it is irrelevant. I accept that it has some relevance as the opinion of those with expertise in attending fires who attended this fire as it was still burning, but of limited relevance when compared to the opinions of the experts who have spent far more time and effort on investigating and analysing the evidence relating to the cause of the fire. It confirms what Mr Jones willingly admitted when asked about the report in cross-examination, which is that without the CCTV evidence he would not have dissented from the proposition that the fire probably started in the drinks vending machine.

[83]There is also a helpful photograph taken by a press photographer who arrived on the scene before Mr Braund attended the following day, so that the photograph – which is available in electronic form – is the best close contemporary record of the scene after the fire.

[84]Mr Braund was instructed by the claimant’s insurers and attended site for approximately 3 hours on 24 December, by which time the vending machines had been removed from the alcove and the tidying up process had begun. He inspected the site, opened up the drinks vending machine to inspect the interior and took a large number of photographs. It would take too long and be unnecessary to record everything that he observed and recorded; I will refer to the evidence as and where relevant.

[85]Mr Jones was instructed in January 2010 and inspected the damaged machine along with Mr Braund in February 2010. It was agreed that there was no evidence of any electrical fault found (although, as they agreed, the extent of the fire damage would always have made that task difficult if not impossible anyway) nor any evidence of failure or overheating of the heating element in the boiler.

[86]One photograph taken by Mr Jones showed a bundle of documents and unused labels found at the base of the machine, which have assumed some importance in the debate between the experts. It appears that they were operating instructions and similar documents, but far more substantial in size than the version for which there was a place to store them elsewhere in the machine. There were also some paper cups with tools stored inside recorded as present at the base of the machine.

[4]The cause of the fire 4.1. The competing causes

[87]Mr Braund proposes a fire beginning with an incendive electrical fault developing in one of the electrical components in the drinks vending machine. It is common ground that this is perfectly plausible in relation to any electrical component forming part of the or connected to the mains power supply. The mechanisms whereby such a fault may develop were discussed in some detail and agreed in the joint report at [1.8.1 – 1.8.8]. In re-examination Mr Braund explained that such a failure could be as a result of a breakdown in insulation through ageing or temperature effects or as a result of poor connections which have oxidised over a period of time causing resistive heating. He explained that faults often occur in power supplies because they are quite highly stressed in electrical terms. He explained that progressive faults could occur in transformers, in the fan and in the solenoid coils. He explained that if there had been an undetected water leak it could find its way onto a mains power component and cause a tracking fault, leading to arcing and ignition. Mr Jones agreed with these as “generic possible causes of any electrical fire [albeit] not specific to the drinks machine”. He also accepted that, contrary to what he had said in his report for the court at [4.3], a number of 240V circuits, including that serving the fan which he had not identified in his report, would have been permanently energised immediately prior to the circuit breaker activating.

[88]Mr Jones’ main criticism of Mr Braund’s theory is as to the means by which such a fire could begin but not become established for over 40 minutes. Mr Braund says that a perfectly plausible explanation is that the flaming fire caused a smoulder within the machine; he identifies two possibilities as being one or more of the ingredients within the vats such as tea or coffee or the pile of papers at the base, before becoming a flaming fire again around 40 minutes later. I address this in some detail in section 4.2 below.

[89]Mr Jones proposes a fire beginning with an incendive electrical fault developing in the mains wiring in the ceiling void. This was also discussed and agreed in the joint report at [1.8.10 – 1.8.11]. Mr Jones says that this could cause a fire which, over time, burns out of the steel ducting and starts to attack the enclosed ceiling void and its contents, including the data cables in the cable tray. He considers that because the ceiling void was essentially a closed system a number of consequences follow. The first is that due to the lack of oxygen in the duct the combustion process will be slower than it would be in open conditions, thus explaining the 41 minutes or so between the circuit breaker tripping and the first signs of fire. The second is that due to the lack of oxygen in the duct the combustion process will be incomplete and that the hot gas within the duct will contain what are referred to as the products of the chemical process known as pyrolysis and which are, effectively, creosote. The third is that this hot gas will expand and will seek to find an exit. His view is that one can see what may have been one possible exit, at the far side of the reception area from the alcove, where a cable has been passed through a gap between the top of the partition and the top of the wall into the lobby, which is consistent with where one sees smoke discolouration on the glass roof panel above which, in his view, represents the deposit of these products of pyrolysis on the cold glass panel as the hot gas condenses there.

[90]Mr Braund considers that this proposed cause is inconsistent with the CCTV evidence, whereas Mr Jones disagrees, and I consider this in more detail in section 4.3 below.

[4]2. The defendant’s criticisms of the claimant’s case

[91]Mr Jones’ strongest point against the claimant’s case is his view that Mr Braund has been unable to explain how a flaming fire could have begun inside the drinks vending machine due to an electrical fault sufficiently powerful to trip the circuit breaker at some point prior to 23:53:00 hrs but then have smouldered inside the machine for over 41 minutes before developing into a flaming fire at around 23:34 hrs. His firm opinion is that the fire would have broken out of the machine within 5 – 10 minutes of the power being cut had it started as Mr Braund suggests because, he says, if it had begun as a flaming fire in an electrical component it would undoubtedly have come into contact with other combustible materials inside the machine (such as the plastic vats and mixers and the paper cups in the door) if it came into contact with smouldering materials as well, so that it simply could not have smouldered for 40 minutes or more before becoming a flaming fire again and breaking out. He also says that there is no plausible explanation offered by Mr Braund as to how the smoulder then turned into a flaming fire at around 23:34 hrs.

[92]He says that the only explanation offered by Mr Braund was that a piece of burning wiring may have fallen onto the plastic vats and burned through into the ingredients within – some of which Mr Jones accepts would have sustained a smoulder - whereas in order to penetrate the vats the likelihood is that the plastic the vats were made of would have ignited as well. (There was some debate about whether or not the plastics used here were made of fire resistant plastic, as to which there is no hard evidence either way, the only evidence being that in a letter from the company which has since taken over Zanussi it is asserted, without supporting details, that the plastics used in the machine contained flame retardant chemicals.) He says that this also does not explain how the smoulder in the ingredients then came to ignite and cause a flaming fire inside and then outside the machine.

[93]When these points were put to Mr Braund in cross-examination his answer was as follows:(a) [D3/72-3] “if, for example, my Lord, the fan had failed or something of this nature, the plastics of the fan or some other component could have ignited and then fallen on to something else such as the papers that we know were within the machine and started a smouldering fire or indeed possibly if the fan had overheated it might have even burnt a hole through one of the vats and started a smouldering fire in the contents. A smouldering fire can take a very long time to develop into a flaming fire; it depends on the nature of the materials and the ventilation that's available.”

(b) [D3/83] “Well, a smouldering fire -- depending on ventilation and proximity of materials and the rate at which materials are consumed, a smouldering fire can suddenly erupt into a flaming fire.”

(c) [D3/75-6] “One possibility is that the fire I mentioned -- the fire started around the water inlet solenoid or perhaps the ventilation fan or the heater and then something has dropped down and started smouldering in the papers you can see were consumed in the fire. Q. But, Mr Braund, in order to get into something that smoulders, if it's paper, the paper is going to burn. A. A wad of papers won't just go up like a single sheet of paper. Q. But the papers have then got to burn or – smouldering paper sitting in the base of the machine ... there's a huge gap above that paper before it meets anything else that's combustible, isn't there? A. In an empty machine, that would be the case, but in this machine we don't know, we already know there were quite a few things kept in there. So we just don't know and I'm -- you know, I'm quite satisfied that it's possible that we've had a fire smouldering inside the machine.

[94]When it was put to him that if a flaming fire was able to burn through the plastic vats and start a smouldering fire in the ingredients it would also have ignited the vats themselves he said this at [D3/77]:

“It doesn't automatically follow that a plastic will automatically ignite if you burn a hole through it. If Mr Ryles is correct that somehow these vats are made from a special plastic which is fire retardant, it's easy to understand how a hole might be melted in it and ignite the contents without the plastic igniting.”

[95]Whilst it is fair to say that the reference to the papers on the machine floor had not previously been raised by Mr Braund, nonetheless his evidence about this did not seem to me to be implausible, nor did his answer about the ingredients in the vat. He accepted that on the physical evidence available to him he could only say that these were possibilities, rather than probabilities. As he said he was not prepared to propound an elaborate theory without good physical evidence which, he candidly admitted, he did not have.

[96]Mr Jones was asked whether the bundle of papers found at the bottom of the drinks vending machine and the cups holding tools could have supported a smoulder. He said “not in practice”. He gave the same answer in relation to the ingredients in the vats. When I asked him about this at the end of his re-examination he said this at [D4/139-40]:

“If we look at the contents of the vat, we need an electrical fault that creates enough energy, really, to burn into that vat and heat the contents of the vat so they smoulder. The only material that we have that's really capable of doing that would be, for example, an overload on one of the motors that drives the mixing chamber because that's the only thing that's close enough to do it. … So that would have to be a strong overload that doesn't operate the fuses on the low-voltage system, is able to get energy into the vat, and able to create a smoulder in there. But that heat has got to somehow travel all the way through from the motor to the vat and yet avoid the other components in the area, and particularly the drinks carousel, which closes up right against it. Then it's also got to travel to where the mains wiring is in order to operate the circuit-breaker. So we're not talking about some small source of heat just creating a smoulder, we're talking about a very significant amount of heat and from something that shouldn't be operating at the time, which creates a smoulder and operates a circuit-breaker. So in practical terms, I cannot see how that can happen.”

[97]Whilst the reasons he gives in relation to the mixer motor appear convincing, Mr Jones did not also explain why Mr Braund’s suggestion that a fault in a mains power component, such as the fan he specifically refers to, could not also have led to some flaming material falling into a vat and burning through it as Mr Braund described but also have tripped the circuit breaker.

[98]He also said this at [D4/140]:

“The alternative would be something falling to the floor and creating a smoulder in any paper materials on the floor. But again, the fault has got to deliver a large amount of energy into something to get that to smoulder and then drop down to the floor, so a brief spark from an electric circuit won't do that. You would need a constant stream of sparks or you would need to have really heated something up to a great deal to get that to drop down, and then again, while that has dropped down and created the smoulder, this large heat source has then attacked the mains wiring and caused a circuit-breaker to operate.”

[99]Again, however, he failed in my view to address Mr Braund’s suggestion that an electrical fault in a mains power component such as the water inlet solenoid or the fan might also have led to some flaming material falling down onto the papers on the floor and causing a smoulder in the papers bur also have tripped the circuit breaker. In short, it seemed to me that Mr Jones was making Mr Braund’s possible scenarios more complicated than they actually were and demonstrating how those scenarios were implausible, rather than addressing the more straightforward scenarios which Mr Braund was actually postulating.

[100]When he was asked whether it was possible for a smouldering fire in the papers on the floor of the machine to cause a flaming fire to break out subsequently he said this at [D4/141-2]:

“The smouldering in the papers on the floor would have to spread through those papers to a point where it meets some other material, plastic material, that is more easily ignitable because at that stage there is sufficient air around to support flaming fire, it's just that the fire hasn't got going with enough vigour. So it would have to find something else that can ignite more readily, heat that up, and then get that to ignite, and then we would start with a flaming fire in the base of the machine. JUDGE DAVIES: Yes. So to take -- I think this could be purely hypothesis, but so I can understand: if there was a paper bundle on the floor and next to it there was a pile of plastic cups, then if the smouldering paper came -- or the smoulder in a paper got to the plastic cups, then that would have the potential to cause a flaming fire, and then that would have the potential to spread more widely? A. Yes. JUDGE DAVIES: On your analysis, there would have to be something else at that stage for the smoulder to turn to a fire? A. Yes, my Lord.”

[101]There was evidence of plastic cups holding tools on the base of the machine as well as evidence of documents so that in my judgment this hypothesis is not implausible, although again Mr Braund would readily accept that he has no positive evidence that this is indeed what happened.

[102]In conclusion, in my view Mr Jones’ opinions in relation to this crucial issue are not as compelling as he believes them to be. It clearly all depends upon which electrical component may have developed a fault and a flaming fire and where that happened and what happened to the flaming material. Given that the drinks vending machine is a large item of equipment with a large number of different components inside it, both electrical and non-electrical, and given that the way in which a fire might spread is dependent upon the unique combination of features which were present at that particular time, I find it difficult to accept that Mr Jones can be so dogmatic on this point. Whilst I would readily accept that it is more likely that a fire beginning in such circumstances would break out in the way described by Mr Jones, simply because Mr Braund’s smoulder theory does require the flaming material to come into contact with one of only a small number of potential smouldering materials and not come into contact with one of a larger number of combustible materials, it is clearly not impossible in my view. Mr Jones was unable to demonstrate by reference to a detailed analysis of every realistically possible fault point and every realistically possible flame or fall point that it was realistically impossible for the fire to smoulder in the way described by Mr Braund. In short, whilst I accept that the evidence of the delay between the circuit breaker operating and the fire breaking out is a factor which militates against the claimant’s theory, I do not consider that this converts what is otherwise not improbable into one which is improbable.

[103]Mr Jones’ second strongest argument is that in his view Mr Braund’s theory is not consistent with the evidence of the smoke in this case. He relies on three different points. The first is the presence of smoke in the lobby before the fire, on the claimant’s case, breaks out of the drinks vending machine. His point is that if this is at this stage still only a smoulder in the machine it is extremely unlikely that sufficient smoke could be produced for such a time and in such quantities as to percolate through or around the fire resistant partition and obscure the view from the CCTV camera. The second is the pattern of smoke staining revealed by the photographs in two areas. The first is the area above and to the front of the alcove, where Mr Jones says that the fact that the damage is immediately below the alcove, as opposed to in the frontal area above the alcove, is inconsistent with where the smoke and fire would expect to rise if the fire started in the drinks vending machine. The second is the smoke discolouration on the glass roof panel in the lobby, in particular a circular area of intense discolouration at its base consistent, according to Mr Jones, with smoke venting from a hole in the ceiling void at this location.

[104]As to the first point, there is really no reliable means of assessing how much smoke a smoulder would produce over a period of 41 minutes or the extent to which that smoke was able to enter the lobby through or around the partition. Mr Jones accepted in cross-examination [D3/13] that a smoulder ignition in the drinks vending machine would produce a lot of smoke. It is clear that there would be no significant obstacle to its exiting the drinks vending machine through the drinks dispenser. It is known that there was at least one point where smoke could spread through from the reception area to the lobby, being the point identified by Mr Jones, who had also been critical in his reports of the smoke stopping abilities of the fire compartmentation in the building. It follows that it cannot now confidently be asserted by the defendant that the only way in which smoke could have penetrated through into the lobby was if the fire started in the ceiling void. Moreover, it became apparent during Mr Braund’s cross-examination that there was a significant issue as to whether or not the partition between the reception area and the lobby rose perpendicular straight up to the roof or whether there was an open area at the top section through which smoke could percolate. One can see from the photographs, in particular the press photograph and the photographs at [D/1174 & 1175] that Mr Braund may well be right in what he says. In re-examination Mr Jones said that if this was correct there would be no staining due to smoke emitted under pressure to the glass ceiling panel, which is the third point relied upon. However in my view this confuses the position inside the ceiling void with the position above the ceiling void and, therefore I did not find that answer nor, ultimately, this point particularly persuasive.

[105]Mr Jones’ second point is directed to the proposition that smoke and flames from the drinks vending machine would be carried upwards due to convective forces, a point with which Mr Braund did not disagree. Mr Jones accepted that the flames would play on the fascia and then the soffit and, in due course, once they failed the fire would enter the ceiling void. Again I did not understand Mr Braund to disagree. Ultimately, therefore, it did not seem to me that there was very much force to this point, since the area forward and upwards of the drinks vending machine would carry smoke and flames to the top of the reception area where, as both experts agree, there is no brown staining, whereas the area above the drinks vending machine, where the ceiling void was would, at some point, become embroiled in the fire and would be fire damaged. Although Mr Jones says that the absence of heat and smoke staining on the wall and atrium roof above the alcove is inconsistent with the fire starting in the drinks vending machine, I am not persuaded by this point. It appeared to me that what Mr Jones was describing was a process where the heat and smoke would be carried to the top of the atrium and since, on this hypothesis, this would be a fire with plentiful oxygen, all that one would expect to find on the roof glass panes would be soot from fully combusted materials, and I did not understand there to be any assertion let alone agreement that there was any incontrovertible evidence that no such soot was present.

[106]As to Mr Jones’ third point, Mr Braund did not disagree with Mr Jones’ analysis that the staining was caused by smoke existing through a channel in the void space at that location – see his cross-examination at [D3/59]. His point was that this could have happened after the fire had penetrated the ceiling void from the drinks vending machine. Mr Jones considered that if this had happened the ceiling void would by definition have been opened up so that there would not be the same effect in terms of the build-up of hot gas containing pyrolysis products within the void or thus the venting out under pressure. However that seems to me to depend on the circumstances in which the ceiling void came to be penetrated. I can see that if the whole soffit failed and fell down at the same time it is unlikely, whereas equally I can see that if only one relatively small part of the soffit failed initially there could be that effect before the remainder of the soffit failed. At various stages in his evidence Mr Jones had referred to circumstances in which the fascia and soffit might be affected by fire in different ways at different stages. Thus he was not saying that it must have been a sudden opening up of the whole ceiling void and, even if he had, I would not have accepted that opinion. It seemed to me that Mr Jones was expressing a very firm view as to the precise circumstances in which these brown stains came to be on the glass ceiling panel in circumstances where it was simply not possible to be so dogmatic on the available evidence. I therefore did not this point particularly persuasive either.

[107]Mr Jones also considered that his analysis of the CCTV from the beginning of the glow onwards was inconsistent with the fire starting in the drinks vending machine. I was not convinced by his arguments. He appeared to suggest that if the fire had broken out of the machine at drink dispenser level he would have expected the lower panels to be showing more illumination. In my view that criticism is more apt in relation to Mr Jones’ theory that the glow represented burning material which had fallen down from the ceiling void and which would therefore most likely have landed on the floor and burned at lower level. It is clear that the glow as it first appeared was at low level, albeit in the region of the coin slot as opposed to the drink dispenser. It is said by Mr Jones that this in itself is inconsistent with the glow coming from inside the machine, since the coin slot has a metal enclosure and thus would not allow a flame inside to be visible outside. However in my judgment this is more sensibly explained as Mr Braund’s reconstruction being within a reasonable margin of error – given the difficulty of placing the centre of the fire due to the obstruction caused by the partition - since on any view the coin slot is clearly close, both horizontally and vertically, to the drinks dispenser. Mr Jones also suggested that the fire would have spread more slowly up the front of the machine than is shown on the CCTV. He said this with great conviction but as Mr Davie put to him that, with respect to him, appeared no more than speculation on his part, in the absence of any detailed knowledge as to the nature of the plastics and in the absence of a test which he suggested at one stage in cross-examination [D4/42] “would have been quite nice”. In order to place significant weight on Mr Jones’ opinion alone, where unsupported by objective evidence, I would have to feel sufficient confidence in his opinions that I could prefer them over those of Mr Braund but, for reasons already stated, I am not in that position.

[4]3. The claimant’s criticisms of the defendant’s case

[108]It is clear in my view that there is little if any cogent independent evidence of the fire starting in the ceiling void. Mr Jones frankly admitted under cross-examination [D3/155] that he came up with this cause once he had seen the CCTV and formed the view that the fire could not have started in either of the vending machines and thus began to look at other places where a fire might start and continue undetected for some 40 minutes.

[109]Although Mr Jones places strong reliance upon the smoke stains to the ceiling panel for the reasons I have given above I do not consider that these are only consistent with the fire starting in, as opposed to spreading to, the ceiling void.

[110]A major difficulty with Mr Jones’ analysis, in my view, is that it fails to explain the initial white glow at this mid-lower level on the CCTV screen before the flame breaks out more widely. The CCTV does not capture any burning item falling down from the ceiling void area. Mr Jones does not explain what might have fallen down from the ceiling void at this stage at a point where, as is apparent from the CCTV, the fascia and the soffit must still be substantially intact because there is no evidence of a burning flame at higher level. Nor does he explain how a burning item could have fallen but lodged at this mid-lower level rather than to the floor, where it would be seen at lower level. Initially in his 2011 report he had suggested that the CCTV images were “consistent with gentle fire development outside the vending machine. This would be consistent with burning material dropping through the false ceiling above it and perhaps drifting into the cup dispensing area of the machine where it could then have ignited the surrounding plastic material”. This explanation appears unlikely in that:(a) the only way burning material could drop through the false ceiling would be if the soffit had already been burned away, in which case it would not still on Mr Jones’ analysis be a gentle fire development;

(b) Mr Jones has never identified what material from the ceiling void might “drift” (laterally) into the cup dispensing area.

[111]Nor does Mr Jones explain why it begins as a very faint glow and then become steadily more visible at a higher level. If this is a reflection he does not explain in any convincing way the source of the burning flame which is being reflected. All that he could really say in re-examination was that might be something to the right of and below the level of the coin dispenser. He does not suggest that it could be a reflected glow from a contained fire in the ceiling void, sensibly given the construction of the ceiling void. He failed to grapple with this in his reports or in his joint statement and he struggled, in my view, to articulate this in his oral evidence. When it was put to him he suggested that the first faint light in the left hand side of the screen was “the first signs of the fire having reached the plywood soffit, burn a hole in the plywood soffit and then for material to fall through”. However, in my view that is wholly inconsistent with what is seen at that point. As Mr Braund said in re-examination, if the fire had begun in the ceiling void one would have expected to see an initial brightening at high level and flames illuminating the lobby as it began to break out, but there is no evidence to that effect. To my mind the initial white glow and its spread outwards and upwards is far more consistent with Mr Braund’s theory of the first signs of a flame inside the drinks vending machine visible from the drinks dispenser area and then breaking out and upwards.

[112]Mr Jones’ theory as advanced at trial requires the drinks vending machine to have caught fire as a result of radiated heat from burning materials falling from the ceiling void onto the top of the machine. Since there are no vents at the top of the machine it is not possible that burning materials could have fallen directly through into the machine. Whilst Mr Braund accepted that the inside of the drinks vending machine might catch fire if there was sufficient heat above it he rather doubted, given that closed steel construction at the top of the machine, the gap between the top of the machine and the soffit, and the insubstantial nature of the construction of the fascia and soffit and what was inside the ceiling void, that sufficient heat would be produced to do so. The defendant submitted that since Mr Braund accepted that the damage to the snack vending machine had come from heat being applied from the top of that machine he could not sensibly argue that it was unlikely that the drinks vending machine could have caught fire in the same manner. However the fundamental differences between the damage to the two machines is that the drinks vending machine was far more substantially fire damaged, with the internal components suffering very significant damage, whereas the snack vending machine was far less badly damaged. It would clearly require significantly more heat to produce the damage occasioned to the drinks vending machine than to the snack vending machine. Indeed a further point against Mr Jones’ theory was the lack of equivalent serious damage to the snack vending machine, the damage to which Mr Jones accepted was consistent with fire attack from the drinks vending machine. Whilst the vending machines were of course in different locations and may not therefore have been subject to the same falling items or heating effect, nonetheless on Mr Jones’ theory both were directly under a ceiling void in which a hidden fire had broken out and effectively destroyed the surrounds to the void.

[4]Cause of the fire – discussion and conclusions

[113]By the time of closing submissions no causes other than electrical fault in the drinks vending machine or electrical fault in the ceiling void had been suggested by the parties or their experts as likely possible causes. In his cross-examination Mr Jones was referred to a section of the joint statement at [2.8.1] where he referred to a number of other “theoretical possibilities” such as an emergency light found lying on the floor of the alcove, mice chewing through wires [and] water leaks from mains services”. He accepted however that there was absolutely no evidence of human agency being a cause and he made it clear that he was not promoting any of these alternative possibilities with any vigour on the ground, essentially, that there was no positive evidence to support any of them. I am quite satisfied that none of the other causes referred to by Mr Jones are anything more than theoretical possibilities with no factual foundation and, hence, am satisfied that they may be disregarded for all practical purposes.

[114]Nonetheless my task is not simply to choose which of the two competing causes is the more possible. I must be satisfied that the cause advanced by the claimant is more likely than not to be the cause, independent of my conclusions as regards the probability (or lack of probability) of the fire starting in the ceiling void.

[115]As will be apparent from sections 4.2 and 4.3 above, I have concluded that whereas the criticisms made by the defendant of Mr Braund’s theory do not have anything like the force which they are said to have the criticisms made by the claimant of Mr Jones’ theory do have substantial force.

[116]Furthermore, as Mr Braund said all things being equal it is more likely that an electrical fault will develop in an apparatus such as the drinks vending machine, where there are a number of different circuits and components, where there is a risk of the electrical equipment coming into contact with water, and where the machine is liable to be moved or jolted – especially perhaps by exuberant or disgruntled students - than in a length of wire running inside and protected by steel trunking itself set inside a ceiling void. As Mr Braund said in cross-examination, and as I accept, mains cable insulation does not burn particularly well unless there is a fire around it and also any fire will normally be confined within the steel trunking surrounding it. I accept that the wiring in the ceiling void is likely to have been of relatively recent vintage, running as it did into the new extension, and there is no evidence of it having being recently worked on or interfered with. Of course electrical faults leading to fires in such circumstances are not unknown but they are, I am satisfied, relatively speaking more unusual than fires in apparatus such as the drinks vending machine. I bear in mind that the defendant relies upon evidence in the form of an email from the managing director of N&W Global Vending Ltd - being the company which took over Zanussi in around 2000 – to the effect that:(a) vending machines are in general very reliable and it is highly unusual for one to catch fire due to their being designed to “fail safe”;

(b) the Zanussi VMC was affixed with a CE mark and was issued with a written declaration of conformity with the relevant harmonised standards – as to which more later;

(c) the harmonised standards take the risk of fire into account. Whilst I accept this and other evidence to the effect that fires in vending machines generally are highly unusual, nonetheless it must be remembered that this particular machine must have been somewhere between 8 and 13 years old by the time of the fire with, so it would appear, no regular inspection, testing or maintenance of the electrical components undertaken over that length of time. In the circumstances, and for the reasons given I am satisfied that it represented more of a fire risk than did the fixed mains wiring in the protected environment of the trunking within the ceiling void.

[117]Still further, given my findings the defendant’s case involves my accepting that it was a complete coincidence that on the night in question a fire developed in the mains wiring in the ceiling void above the drinks vending machine when that was the night following the second visit in a week to inspect the machine for a reported leak, in circumstances where:(a) neither engineer had been able to locate with any confidence the source of the reported leak in part, on my findings, because they had not had the time or the inclination to conduct a thorough visual inspection of all of the machine;

(b) neither engineer had been able positively to confirm that no such water leak had affected any of the electrical components within the machine;

(c) neither engineer had undertaken PAT to confirm that there was no apparent problem with the electrical components within the machine;

(d) the CCTV footage showed a fire apparently beginning in the area of the drinks vending machine;

(e) unlike the adjacent snack vending machine, the drinks vending machine had suffered very significant damage consistent with the fire originating in the drinks vending machine, such that but for the reliance which Mr Jones placed on the CCTV footage he would have agreed with the firefighters and Mr Braund that this was where the fire had started. Of course coincidences do happen, but I am both entitled and required to have regard to the likelihood of this being the case when considering whether or not the claimant’s case is more probable than not.

[118]In all the circumstances I am satisfied on the balance of probabilities that the claimant has established that the fire did start in the drinks vending machine due to an incendive fault in the electrical equipment and spread outwards from there. I accept, as did Mr Braund, that it is not possible to state on a balance of probabilities in precisely which electrical component the incendive fault or precisely why it started there, nor indeed to make a positive finding as to how it came to cause a smoulder for some 40 minutes and then break out again into a flaming fire. On the evidence before me the likelihood is that it started in either the water inlet solenoid or the fan and a flaming piece of either component or some of the mains wiring leading to either made its way down to the base of the machine where it started a smoulder in the paper bundle on the floor, since I accept that it is less likely – although by no means improbable - that the fire would have started in electrical components sufficiently close to the ingredient vats to burn through and begin a smoulder in the ingredients without also causing plastics to ignite as well. It is not necessary for me to make positive findings in this respect in order to be satisfied that the claimant’s case has been established on the balance of probabilities in circumstances where I am satisfied that one way or another this is what happened on the balance of probabilities.

[5]Breach of the contractual duties owed by the defendant to the claimant – discussion and conclusions

[119]It is the claimant’s case that this amounts to the provision of the supply of goods on hire to which the provisions of the Supply of Goods and Services Act 1982 applies and, specifically, the duties under:(1) s.13 that where, in a contract for the supply of a service the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.

(2) s.9(2) that where, under a contract where one person in the course of a business bails goods to another by way of hire, there is an implied condition that the goods supplied under the contract are of satisfactory quality.

[120]The claimant also contends that the obligation under clause 2(c) to provide a full operating and technical service to the equipment imposed a strict contractual obligation on the defendant to provide that service, which would be breached regardless of fault if the defendant failed to provide that service in full. I am not satisfied that this contention materially assists the claimant in relation to this case. This is not a case about the non-provision of a maintenance service; it is a case about the alleged defective provision of that service. Insofar as the claimant contends that there was a positive obligation to provide a specific maintenance service, specifically a periodical electrical service including 12 month PAT, that is not something which is expressly stated in the contract itself. Nor, as I agree with Mr Mitchell, is it something which could be implied by reference to the provisions of the 1989 Regulations or the HSE Guidance or similar. In my view the essential question remains whether or not the defendant’s performance of its maintenance obligation required the defendant in the particular circumstances of this case to undertake periodic maintenance including periodic PAT, which is a question to be determined by reference to its contractual duty to exercise reasonable care and skill in the performance of that obligation and not by reference to a strict duty.

[121]For completeness I should note that the claimant also relies upon breach of a duty to take reasonable care arising in tort. I accept that in a property damage case such as this such a duty would arise but equally – as Mr Davie accepted in closing submissions – it adds nothing to the contractual duty of care anyway.

[122]The claimant also contends that the obligation under clause 2(d) to undertake responsibility for insurance on all equipment sited required Springbank and its successors to provide insurance which would respond to a claim such as the present regardless of whether legal liability on the part of Springbank or its successor could be shown, and that the defendant’s failure to procure such insurance is a breach of contract which sounds in damages being the amount of the claim which otherwise could have been claimed against its insurer.

[123]It is the defendant’s case that there is no basis for construing this clause as imposing any obligation to provide insurance against loss or damage to the vending machine itself and points to the further reservation in the clause permitting Springbank to “relocate equipment where unreasonable abuse of machine … has occurred”. I agree with this submission and do not accept the claimant’s case in this regard. It is clear that the contract gave no further indication as to precisely what insurance cover Springbank was agreeing to take out and no evidence that there were ever any further discussions or agreement in that respect. There is no basis for construing the clause anywhere near as widely as the claimant contends.

[5]1 Breach of contractual duty of care (a). Failure of maintenance on 15 and 22 December 2009

[124]I have already made findings as to the claimant’s criticisms of what was done by Mr White and Mr Anderson on 15 and 22 December 2009 in section 3.4 at [52-53] and [59-64] above. I am satisfied that the defendant was in breach of its contractual and tortious duties of care in those respects for the reasons I gave at that point. (b). Failure to undertake a regular system of preventive maintenance

[125]I have already referred in section 3.2 at [30-33] to the maintenance system adopted by the defendant and that in my view it was obliged to undertake PAT in order to fulfil its obligations to its employees under the 1989 Regulations.

[126]In the joint statement the experts agreed [1.6.5] that they would “expect the vending machines to have been inspected and tested by [the defendant] for electrical safety periodically, e.g. as would be expected for portable appliances”. At [2.6.6] Mr Braund said that he considered that this should “comprise a detailed visual inspection of readily accessible parts for signs of damage and deterioration and testing of electric insulation resistance and earth loop impedance”. Mr Jones did not disagree. The experts had proceeded on the basis that the regime for portable appliances required a test once every 12 months. As I have said, in fact the 1989 Regulations do not mandate this is every case, as is made clear by the HSE Guidance.

[127]In cross-examination [D3/79] Mr Braund said that where items powered by mains electricity were vulnerable to the effects of a water leak or where heat was a concern – for example circuits operating at high currents such as heaters – “they need to be kept in good condition because connections and suchlike deteriorate over time”.

[128]In cross-examination Mr Jones maintained that reactive maintenance such as happened here was perfectly sufficient, because the daily inspections by the service operators and the responsive maintenance by the maintenance engineers would give scope to see any deterioration and pick up any leaks. Whilst I agree that the inspections Mr Jones refers to would indeed pick up any leaks, on the evidence before me I do not accept that it would also allow any deterioration whether in the electrical components or in the water supply system to be observed. Neither the service operators nor the maintenance engineers would be able to see all of the electrical components or all of the water supply system unless, for some reason, it was necessary for the latter to strip down the machine to expose everything in order to conduct a very detailed examination to locate a particular fault. There is no evidence as to the circumstances in which that was, or might be, done. It is clear that the maintenance engineers were not trained or instructed to do anything other and respond to the problem which was reported. They were not trained or instructed to conduct a visual test or PAT on these occasions. Mr Jones accepted in cross-examination that conducting PAT reduced the risk of missing an insulation resistance fault. He also accepted that it would not be a good idea for the claimant to have to take responsibility for undertaking PAT on these vending machines.

[129]In cross-examination Mr Jones also suggested that having regard to the hazards and risks presented by the drinks vending machine a test every 3 to 5 years would have been sufficient. I accept that this was not high hazard high risk electrical equipment but equally it is electrical equipment which was subject to an express maintenance obligation and which was sited in a busy environment and subject to intensive use and potential abuse by users who might be frustrated by its non-operation. I am satisfied on the balance of probabilities that a 12 month visual inspection of the electrical components and an electrical test was required and that the defendant was in breach of its contractual obligations in not so doing.

[5]2 Breach of contractual duty to supply goods of satisfactory quality

[130]Whilst considering the scope of the condition of satisfactory quality in the course of producing this judgment I came across the decision of the House of Lords in TRM Copy Centres (UK) Ltd v Lanwall Services Ltd

[2009] 1 WLR 1375

in which, in a case about a contract in similar terms to the present, it was held that on the true construction of that agreement it was not a contract of hire. I did not consider it necessary to draw that decision to the attention of the parties because in this case it has been accepted by the defendant that the implied term applies. I also consider that acceptance to be correct, even if the agreement was not a contract of hire properly so called, because on any view the commercial relationship between the parties involved the defendant providing these vending machines to the claimant’s site for use by staff, students and other visitors and, therefore, there must on any objective analysis have been an implied contractual obligation to provide vending machines which were of satisfactory quality for those purposes. That is particularly so when one considers that s.18(3) of the 1982 Act provides that “for the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods —(a) fitness for all the purposes for which goods of the kind in question are commonly supplied,

(b) appearance and finish,

(d) safety, and

(e) durability”. All of these aspects are things which the parties would regard as important attributes of the vending machines to be supplied under the operating agreement.

[131]However the more difficult question which arises in this case is whether or not the statutory duty in relation to hire contracts to supply goods of satisfactory quality is a once-and-for all duty at the time of first hire or an ongoing duty which subsists without reference to the length of the hiring over the whole hire period. Of course the reference to durability in the definition confirms what was always known to be the position in relation to contracts of hire as much as contracts of sale and other associated contracts, namely that a defect emanating at some time after the original supply may demonstrate that the goods supplied were not satisfactory as at the date of original supply, either as a matter of evidential inference or by reference to their lack of durability: see the discussion in Chitty on Contracts at paragraph 33-073.

[132]This issue arises in more acute form in this case because of what I suspect are the relatively unusual facts of this case involving, as they do, a supply over an extended period of approximately 13 years from around 1996 to the date of the fire in December 2009. Can it be inferred in the absence of clear evidence as to precisely how or why a fire developed in the electrical components of the drinks vending machine that an incendive electrical fault emanating 13 years after first hire in itself renders the drinks vending machine unsafe or of insufficient durability? In my view the answer must depend on a proper analysis of the contract of hire in question. In a typical long term equipment hire case the obligation is to supply a particular item which the hirer is entitled to retain in his possession throughout the duration of the contract of hire. The owner would not be entitled to require the hirer to accept a replacement in the absence of some express term to that effect. A paradigm case would be a business contract for the long term hire of a motor car. In such a case I am satisfied that s.9(2) only imposes an obligation as at the time of first hire. Although there is no authority which counsel or I have been able to locate which deals with or expressly decides the point, in my view it is clear that the obligation in s.9 that “the goods supplied under the contract are of satisfactory quality” is not in such a case a continuing obligation in the sense that it continues throughout the whole period of the contract, however long. There is no continuing obligation to supply; the obligation is to supply and then to permit the hirer to retain possession until the hire terminates. The satisfactory quality obligation in relation to such contracts of hire is assimilated to the obligation in relation to contracts of sale and contracts of hire-purchase. As regards the former, there can of course be no continuing obligation, since the sale transaction is complete once the sale has occurred. As regards the latter, which is a continuing relationship in the same way as is a hire contract, there is no authority in support of the proposition that there is a continuing obligation.

[133]However the contract in this case is significantly different. It is to provide “free on loan vending equipment to the client at [agreed] locations” for the duration of the contract. The defendant was entitled to perform this obligation by supplying any rebuilt drinks vending machine to the alcove location; it was not obliged to keep the same machine in the same location for use by the claimant or its visitors for the duration of the contract. It follows in my view that there was a mutual intention that the obligation was to continue to supply a drinks vending machine for use at this location for the duration of the contract. In my view it follows that the obligation to supply a drinks vending machine of satisfactory quality was also a continuing one.

[134]I should also record that Mr Davie advanced a further, ingenious, argument to support his case, which was that the 2008 acquisition by the defendant of Springbank’s business and the novation – as I have found it to be – of the operating agreement from Springbank to the defendant had the effect of constituting a fresh supply so that there was a fresh obligation arising to supply a drinks vending machine of satisfactory quality as at that time. I would not have accepted this argument if I had not concluded that there was a continuing supply. It is true that as a matter of law a novation does have the effect of bringing into being a new contract. It could also be said that the defendant had a choice as to whether or not to continue to make available these old second hand machines to the claimant and chose to do so in the context of a new relationship and, thus, ought not therefore to be allowed to argue that in fact the supply occurred many years previously. As against this it could be said that this was not how the parties regarded the position at the time, as no new operating agreement was entered into and the parties continued to work to the existing agreement with Autobar simply standing in Springbank’s shoes. The most significant point against Mr Davie’s argument in my view is that even though a new contract may have come into being, that does not also mean that a new obligation to supply a drinks vending machine of satisfactory quality came into being. Instead the obligation was to continue to make available the existing machine.

[135]In the circumstances I am satisfied that the claimant has made out its case in this respect, since in my judgment an incendive electrical fault which appears in a drinks vending machine establishes that it is neither sufficiently safe or durable, whether the fault was caused initially by a water leak from a failed element of the water system or by an electrical fault from a failed electrical component.

[5]3 Breach of other pleaded contractual duties

[136]Given the conclusions I have reached as to the ambit of the other contractual duties relied upon by the claimant in [120 - 123] above I am satisfied that no other contractual duties have been breached by the defendant in this case.

[6]Breach of statutory duty under the Electrical Equipment (Safety) Regulations 1994

[137]As I have noted it is now common ground that the 1994 Regulations apply in this case. I should also note that the 1994 Regulations have since been replaced by the Electrical Equipment (Safety) Regulations 2016 but not with retrospective effect.

[138]In Howmet Ltd v Economy Devices Ltd

[2014] EWHC 3933 (TCC)

(upheld on appeal at

[2016] EWCA Civ 847

) Edwards-Stuart J. had to consider a claim brought under the Consumer Protection Act 1987 (“the 1987 Act”) and the 1994 Regulations in a fire case. He found for the claimant on the issue of breach, although he found for the defendant on causation. He succinctly stated the basis of the claim under the 1994 Regulations at [219-222] as follows, which I gratefully adopt:

“219. Howmet’s claim for breach of statutory duty is based on regulation 14(1) of the Electrical Equipment (Safety) Regulations 1994 (“the 1994 Regulations”). That imposes a statutory duty not to supply electrical equipment in respect of which the requirements of regulations 5(1) and 9(1) of the regulations have not been satisfied. Regulation 5(1) concerns safety and regulation 9(1) requires products to carry a CE mark. 220. Regulation 5(1) provides that electrical equipment shall be safe. Section 41(1) of the 1987 Act makes the contravention of any obligation imposed by safety regulations actionable in civil proceedings. It is common ground that the thermolevel falls within the voltage thresholds in regulation 4. 221. The definition of “safe” is to be found in section 19(1) of the Consumer Protection Act 1987. This provides that: “‘safe’, in relation to any goods, means such that there is no risk, or no risk apart from one reduced to a minimum, that any of the following will (whether immediately or after a definite or indefinite period) cause the death of, or any personal injury to, any person whatsoever, that is to say- (a) the goods; (b) the keeping, use or consumption of the goods; ... (e) reliance on the accuracy of any measurement, calculation or other reading made by or by means of the goods, and ‘unsafe’ shall be construed accordingly.” 222. By Regulation 3(1) of the 1994 Regulations the reference to risk in that subsection is to be construed as including a reference to any risk of damage to property.” “‘safe’, in relation to any goods, means such that there is no risk, or no risk apart from one reduced to a minimum, that any of the following will (whether immediately or after a definite or indefinite period) cause the death of, or any personal injury to, any person whatsoever, that is to say- (a) the goods; (b) the keeping, use or consumption of the goods; ... (e) reliance on the accuracy of any measurement, calculation or other reading made by or by means of the goods, and ‘unsafe’ shall be construed accordingly.”

[139]It is important to note that the cause of action for breach of the 1994 Regulations is a strict one, in the sense that once the claimant proves that the defendant has supplied electrical equipment which is unsafe and that the fire started as a result of that electrical equipment being unsafe then liability follows. There is a defence of due diligence available to a defendant in criminal proceedings (s.39(1) 1987 Act) but that does not apply to civil claims.

[140]In the same way as in relation to the claim under the 1982 Act the question arises whether or not the statutory duty not to supply non-conforming electrical equipment is a once-and-for all duty at the time of first provision or an ongoing duty which subsists without reference to the length of the provision. This is unlikely to be an issue in the vast majority of cases, since the definition of safety includes reference to the risk of death, injury or damage from the keeping, use or consumption of the goods after a “definite or indefinite” period (see the definition in reg. 3 of the 1994 Regulations and s.19 of the 1987 Act). It is clear therefore that a breach of reg. 14 could occur where some event occurred well after the date of supply which demonstrated that such a risk was present as at the date of the initial supply.

[141]If however it is relevant to determine the specific question which arises in this case, then in my view on a proper construction of the 1994 Regulations there is a continuing obligation in a case of a continuing provision. I reach that conclusion for the following reasons.

[142]First, I accept in the defendant’s favour that the claimant cannot sidestep this argument by contending that there is a separate safety duty under reg. 5 independent of the supply duty under reg. 14. It is clear in my judgment that the only relevant obligation imposed on the defendant under the 1994 Regulations was the obligation imposed by reg. 14 not to supply electrical equipment which was not safe (reg. 5) or affixed with a CE marking (reg. 9). Although Mr Davie submitted that reg. 5 imposed a free-standing obligation I have no doubt that this is not correct.

[143]Second, I accept that the definition of supply (reg. 3) is not immediately helpful, stating as it does simply that “supply … includes offering to supply, agreeing to supply, exposing for supply and possessing for supply, and cognate expressions shall be construed accordingly”.

[144]Third, I note however that the extended definition of “safe” in reg. 3 specifically excludes “any risk arising from the improper installation or maintenance of the electrical equipment in question or from the use of the equipment in applications for which it is not made”. It might be argued that since the obverse of this exclusion is that risks arising notwithstanding proper maintenance are included it is a continuing obligation.

[145]Fourth, the only other potentially relevant regulation is reg. 12, entitled “Secondhand and hired equipment”, which provides that:

“12. Regulations 9(1), 10 and 11 shall not apply in relation to electrical equipment which— (a) has previously been supplied to any end user; or (b) is supplied solely by virtue of its being hired out whether in connection with the supply of other goods and services or otherwise provided that it satisfies the provisions of sub-paragraph (a) above.” (a) has previously been supplied to any end user; or (b) is supplied solely by virtue of its being hired out whether in connection with the supply of other goods and services or otherwise provided that it satisfies the provisions of sub-paragraph (a) above.”

[146]The effect of this regulation is to exclude the obligations in respect of CE marking, EC written declarations of conformity and internal production control records in relation to second hand equipment (see (a)) and hired equipment if it has previously been supplied (see (b)). It follows that the safety obligation in reg. 5 still applies to such equipment. Whilst this still does not answer the precise question whether or not in such cases the safety obligation in relation to such electrical equipment arises only at the point of first supply or continues throughout the period of hire, it does provide a strong indication that the obligation to supply safe electrical equipment is a continuing obligation throughout the economic life of the equipment in question.

[147]I have also considered whether any assistance is to be gained from the Low Voltage Directive (73/23/EEC), with which the 1994 Regulations were enacted to comply.

[148]Article 2 directs Member States to take measures “… to ensure that electrical equipment may be placed on the market only if, having been constructed in accordance with good engineering practice in safety matters in force in the Community, it does not endanger the safety of persons, domestic animals or property when properly installed and maintained and used in applications for which it was made” (emphasis added).

[149]Whilst this assists at a relatively high level in focussing attention on the act of supplying as equating to the act of placing on the market, I do not consider that it provides any real assistance to me in interpreting the Regulations.

[150]Mr Mitchell invited me to apply the relevant provisions of the Consumer Protection Act 1987 (“the 1987 Act”), which by s.11 provides the authorisation for the Secretary of State to make safety regulations including the 1994 Regulations and which by s.41 permits a person affected by breach of obligations imposed by safety regulations to bring civil proceedings. S.46 defines supplying goods as including hiring out, lending, or providing the goods in exchange for non-monetary consideration.

[151]Significantly, s.46(8) provides that:

“Where any goods have at any time been supplied by being hired out or lent to any person, neither a continuation or renewal of the hire or loan (whether on the same or different terms) nor any transaction for the transfer after that time of any interest in the goods to the person to whom they were hired or lent shall be treated for the purposes of this Act as a further supply of the goods to that person.”

[152]Again although this provision does not directly resolve the issue, because it does not state in terms that there is no continuing supply during the continuation of the hiring or lending, nonetheless in my view it may be inferred from this provision that it is not a continuing obligation in such cases since otherwise the rationale for seeking to restrict the application of the 1987 Act to the initial supply would not exist.

[153]However, Mr Davie responded by noting that the definition of “supply” in the 1994 Regulations, unlike the definition of “safe”, does not expressly incorporate or even refer to the definition of “supply” in the 1987 Act, nor is there any more general provision in the Regulations to the effect that the 1987 Act and the 1994 Regulations were to be interpreted consistently with each other. He submitted that since the definition of “supply” in the 1987 Act had relevance for a number of purposes, different to and wider than the purpose in the 1994 Regulations, there was no warrant for reading in that definition to the definition in the 1994 Regulations.

[154]In my view Mr Davie’s submissions in this respect have force and I consider that it would not be right to read over the definition in the 1987 Act to that in the 1994 Regulations.

[155]On balance I prefer the argument, derived from the definition of safe in reg. 3 and from reg. 12, that there is a continuing obligation where the risk arises from the continued supply of the electrical equipment in question.

[156]So far as breach is concerned, having concluded that the fire was caused by an electrical fault in the drinks vending machine which led to a flaming fire developing in the machine it is clear in my judgment that there was a risk of damage to property arising out of the machine or its keeping or use, so that it was not safe and so that there was a breach of reg. 14 in that the machine was supplied when it was not safe. That is clearly so on the basis that there was a continuing supply. On balance I would also consider that this was so even if – contrary to my view as expressed above – there was no continuing supply. In my view, notwithstanding the time lapse from initial supply to fire, it can still be said that there was a breach as at the initial supply, given that the risk of damage was in relation to the essential state of the drinks vending machine as it was initially supplied to the claimant. Given that the definition of safety includes reference to the risk of death, injury or damage from the keeping, use or consumption of the goods after a “definite or indefinite” period and given the extended definition of “safe” in reg. 3, which specifically excludes “any risk arising from the improper installation or maintenance of the electrical equipment in question” in my view it may be concluded that equipment of this type supplied under a contract with a full maintenance obligation was not safe when supplied if it fails due to electrical fault even after 13 years.

[157]The further question is whether this conclusion is negated because it may be said to be a risk arising from the improper maintenance of the machine. On balance I do not think that it is, even if I was to find that either that the electrical fault was caused by water leakage not identified by Mr White or Mr Anderson or that it would have been discovered by proper PAT, because in either case I do not think that it can be said to be a risk arising from improper maintenance, as opposed to a risk arising from other causes which was not picked up by proper maintenance.

[158]In closing submissions Mr Mitchell contended that the defendant could rely upon reg. 6 which provides that:

“Electrical equipment which satisfies the safety provisions of harmonised standards shall be taken to comply with the requirements of regulation 5(1) above unless there are reasonable grounds for suspecting that the electrical equipment does not so comply.”

[159]However in my judgment that deeming provision can only apply where it is affirmatively shown that the electrical equipment does satisfy the relevant harmonised standards. It is not enough simply to prove that the electrical equipment complies with the CE marking requirements of reg. 9 or that a written declaration of conformity has been drawn up in accordance with reg. 10.

[160]It follows, I am satisfied that the claimant has made out its case that the defendant breached reg. 14 of the 1994 Regulations.

[7]Causation

[161]In my view it is important to consider the case in causation in contract and in tort separately from breach of statutory duty. That is because in my judgment the principles applicable to causation in claims for breach of the statutory duty imposed by Part 1 of the 1987 Act (the product liability duty, where there are statutory defences available to a defendant which are not available in claims under the 1994 Regulations) are equally applicable to claims for breach of the 1994 Regulations. In the conjoined appeals of Ide v ATB Sales Ltd and Lexus Financial Services v Russell

[2008] EWCA Civ 424

Thomas LJ, having considered the approach to causation in a claim in negligence, then went on to consider the position in relation to a claim under Part 1 of the 1987 Act and said this at [7]:

“The application of this approach by a court in considering a claim under the Consumer Protection Act 1987 in respect of a defective product can often be simpler. Under ss.2 and 3 of the Act if a person is injured by a product, his claim succeeds if he establishes there is a defect in the product and that defect caused the loss unless the defendant can rely on one of the statutory defences. In determining whether the loss or injury has been caused by a defect or by some other cause, although the process of reasoning may involve an explanation of how the defect was caused, the task of the court is simply to determine whether the loss was caused by the defect and not by another cause. As is apparent from the first of the appeals, that distinction is important and can make the task of the court a simpler one, as no doubt Parliament intended.”

[162]In this case, therefore, given that the claimant has established in my judgment that the drinks vending machine was not safe because it suffered from an incendive electrical fault which caused the fire in question, the claimant has established its case on causation under the 1994 Regulations both in fact and in law.

[163]In case I am wrong in that conclusion I will also address the issue of causation in fact and in law in relation to the claims for breach of contract and negligence and, on the assumption that the same causative connection is required to establish a claim under the 1994 Regulations, under those Regulations.

[164]The argument which the claimant might face is that unless it can be demonstrated that either:(a) the incendive electrical fault was caused by water leakage which ought to have been identified and remedied had a proper inspection been undertaken by Mr White or Mr Anderson; or

(b) the incendive electrical fault – whether caused by water leakage or otherwise – was not identified before the fire due to the failure to carry out proper maintenance, then the claimant is unable to establish a causative connection between the breach and the loss.

[165]In my judgment there are two separate but related answers to that argument.

[166]The first is a similar point to that made in section 4.4 at [117] above, which is that it is unlikely that it was pure coincidence that the fire started on 23 December 2009 due to non-water related incendive electrical fault when in the week preceding there had been two unidentified reports of water leaks which had not been conclusively identified or repaired, in circumstances where it is established that there was a risk of water leakage coming into contact with electrical components and causing an incendive electrical fault and that in such case that could cause a fire to start in the way that this fire did start. In such circumstances the court is entitled to draw and I do in this case draw a common sense conclusion on the balance of probabilities that there is a clear and direct causal connection between the defendant’s breach and the fire. In short, I am able to and do reach the conclusion on the balance of probabilities that there was a leak which Mr White or Mr Anderson could and should have seen had they conducted a more thorough examination and which would have been such that they could and should have realised that unless and until it was remedied there was a risk to the electrical components, so that the machine should not be used and the machine disconnected from the power supply until that leak was remedied. Insofar as water was already discernible as having played on any electrical components at those times that also ought to have been observed and remedial steps taken pending which the machine should have been disconnected from the mains supply. In such circumstances the fire would have been avoided either because at the time of the fire the necessary repairs had been undertaken or because it would not have been mains powered. Furthermore I am also able to and do reach a robust conclusion that a properly conducted inspection at the point when Mr Anderson attended would on the balance of probabilities have picked up an existing or potential fault, either by the full visual inspection mandated at that time or by the electrical PAT, where the latter would on the balance of probabilities have revealed an insulation resistance fault, and with the same consequence.

[167]The second is to adopt the approach of Toulson LJ in Drake v Harbour 121 Con. LR 18 (2008) relied upon by Mr Davie, to the following effect:

“27. The extent to which “positive or scientific proof of causation” is required must be a matter of judgment in each case and depends on the evidence as a whole. There is also a significant difference between, on the one hand, relying on inference to establish both breach of duty and causation of loss and, on the other hand, relying on inference to find a causal connection between proven breach of duty and ensuing loss. 28. In the absence of any positive evidence of breach of duty, merely to show that a claimant's loss was consistent with breach of duty by the defendant would not prove breach of duty if it would also be consistent with a credible non-negligent explanation. But where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism. That is not a principle of law nor does it involve an alteration in the burden of proof; rather, it is a matter of applying common sense. The court must consider any alternative theories of causation advanced by the defendant before reaching its conclusion about where the probability lies. If it concludes that the only alternative suggestions put forward by the defendant are on balance improbable, that is likely to fortify the court's conclusion that it is legitimate to infer that the loss was caused by the proven negligence.”

[168]Here I am satisfied that:(a) the defendant did breach its maintenance duties as regards the drinks vending machine, both in relation to failing to take proper steps to investigate the source of the water leakage and also in relation to failing to undertake a proper visual inspection and PAT in relation to possible damage to the electrical components whether due to water or age or otherwise;

(b) the fire was caused by incendive electrical fault in the drinks vending machine which is likely to have resulted from contact with water or from a failure to identify a fault, whether due to water or age or otherwise. In the circumstances, and in the absence of any positive case put forward by the defendant as to causation in these circumstances (such as, for example, the fault might have arisen spontaneously due to some event between the time of Mr Anderson’s attendance and the fire, such as attack by mice gaining access to the drinks vending machine) the court is entitled to draw the inference that the fire was on the balance of probabilities caused by one or other of those two proven breaches.

[8]Conclusions

[169]In the circumstances I am satisfied that the claimant has made out its case in relation to breach, causation and loss, and is entitled to damages in the agreed amount of £265,008.75. I will leave over any questions in relation to interest and cost until this judgment is handed down.

[170]I thank all those involved for the efficient preparation for and conduct of the trial, including counsel for the excellence of their presentation of their respective client’s cases.

Cited in 1 later judgment

Wilson & Ors v Beko Plc (Rev 1) 2019