Drake v Harbour and another

JurisdictionEngland & Wales
JudgeLord Justice Longmore,Lord Justice Toulson,Lord Justice Waller
Judgment Date31 January 2008
Neutral Citation[2008] EWCA Civ 25
Docket NumberCase No: A1/2007/1836
CourtCourt of Appeal (Civil Division)
Date31 January 2008
Between:
Ilda Drake
Respondent
and
Eric Anthony Harbour
Appellant

[2008] EWCA Civ 25

Before:

Vice President of The Court of Appeal, Civil Division,

The Right Honourable Lord Justice Waller

The Right Honourable Lord Justice Longmore

And The Right Honourable Lord Justice Toulson

Case No: A1/2007/1836

HT 06 386

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONTRUCTION COURT

HIS HONOUR JUDGE DAVID WILCOX

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Mark James (instructed by Mayo Wynne Baxter Llp) for the Appellant

Mr Adrian Hughes QC & Mr Michael Davie (instructed by Beachcroft Llp) for the Respondent

Hearing dates : Tuesday 22 nd January 2008

Lord Justice Longmore

Lord Justice Longmore:

1

Mrs Drake, a widow now aged 93, has a bungalow at 69 Northwood Avenue, Saltdean, East Sussex. Her home needed extensive electrical rewiring since some of the wiring was pre – 1950, as were some of the fittings and junction boxes. She decided to visit friends in North Wales while the work was being carried out. When she returned a large part of the roof and some of the house had been damaged by fire.

2

Mrs Drake had engaged the first defendant Mr Harbour to undertake the rewiring work. Mr Harbour is an electrician who was nearing retirement. He had industrial experience and had undergone a time served apprenticeship. Because he had an injured knee he engaged the second defendant, Mr White, to assist him. Mr White had a similar background training and experience and was able to undertake work requiring a degree of suppleness not enjoyed by Mr Harbour.

3

In the early hours of 27 th June 2002 the catastrophic fire occurred, starting in the loft. The fire brigade were on the scene by 3.30 a.m. The building had been left secure by Mr Harbour when he and Mr White had left the building at approximately 4.30 p.m. on 26 th June 2002.

4

The first task undertaken by the defendants had been to disconnect the consumer unit and all of the circuits from the electrical supply. The consumer unit was removed from the kitchen cupboard leaving in place the electricity company's cut out meter equipment and two Henley junction boxes. Mr Harbour connected a four gang extension lead to the Henley junction boxes to provide a temporary supply to the fridge freezer, his tools and also a festoon cable fitted up to provide temporary lighting in the loft. A second four gang extension lead was connected to the first. It was from that second lead that there were plug connections for the fridge and for the kettle.

5

The second stage of work involved stripping the existing electrical cables out of the building (mainly the loft) and installing new electrical cables.

6

The loft was not completely floored. Access to the loft was through a hatchway in the kitchen ceiling. From the access were three short tongue and groove pieces of wood, which led to some chip boarding in the middle of the loft area. The roof timbers at the apex were approximately 8 ft above the ceiling rafters below. The roof was a simple A frame, so that the space at the eaves where the roof timbers met the ceiling timbers was very constricted. It was in these locations from which old cabling was removed and in which new cable was installed. Mr White worked in the loft. In the installation process he fed new cable down to Mr Harbour below in the kitchen. Mr Harbour also assisted operations in the loft by supplying tools and materials to Mr White, and in doing so the upper part of his torso was in the loft and he was able to see, hear and sense what was going on.

7

In order that Mr White should have some light to work by in the loft it was necessary to provide some temporary lighting. It was, therefore, around the loft, at about shoulder height, that the run of festoon cable was fixed, into which had been fitted eight operative light sockets and bulbs.

8

This festoon cable comprised a robust outer insulation layer and within, in separate sheaths of insulation, were two conductive inner cables. The cable was fixed to the roof timbers using white plastic fixings through which a pin was hammered to the roof timbers, causing the U-shaped fixing to trap the cable against the timbers.

9

The light sockets with the bulb holders were in two parts. The part with the bulb socket had two sharp prongs and screwed into a base plate on the opposite face of the cable. When the two parts are screwed together the prongs are forced through the outer insulation and inner insulation of the two inner cores in such a manner that they are offset to each other, and connected to the current. Because the cable is located in specially designed seating, the cable should not deform or move in this process. According to the expert evidence the use of festoon lighting is common in the construction and electrical industries. Properly assembled it affords a safe and effective means of temporary lighting for work places when operations such as rewiring and fitting out are taking place. The use of such lighting, given that it is properly assembled, accords with good practice and is safe. Even, were it to be the case, that it was inadvertently left alive in the loft overnight it would be just as safe as leaving a domestic light on all night. It might be wasteful but it would be safe.

10

The judge was able to rule out certain possible causes of the fire e.g.

i) a lead lamp plugged into the second four gang extension lead and used for close work in the eaves of the loft;

ii) although it would be dangerous to leave the festoon cable plugged in, if at the time of departure for the day there had been a “fishy” smell in the loft (which might thus be associated with the defendants' own equipment), any such fishy smell had dissipated before they left and there was no danger (in itself) in leaving the festoon cable plugged in;

iii) carelessly discarded cigarette stubs or other extraneous human action;

iv) any fault in the bungalow's existing wiring; or

v) damage to the festoon cable while the festoon cable was being fixed to the rafters in the loft.

11

He was further able positively to hold that the seat of the fire was in the loft, that some arcing occurred in the festoon cable about 3 1/2 metres away from the plug and that the fire was therefore caused initially by the fact that the festoon lights were inadvertently left plugged in. As I have said, there was nothing unsafe in that on its own; there must have been some co-operative cause. Both defendants must have felt uneasy about that because they never revealed to those investigating the fire at the time that there was a festoon cable present at the site at all. Mrs Drake, her expert and her legal advisers did not become aware that a festoon cable had been fitted until statements of factual and expert witnesses were exchanged on 31 st January 2005. Moreover, Mr Harbour asserted in evidence that the festoon cable was new at the time when it was fitted up on 26 th June 2002. The judge held, however, that it was not new and that Mr Harbour had been persuaded, by the fact that his liability insurance had run out, as the judge put it, “to gild the lily”.

12

An important feature of the case was that the cable did not come ready fitted with light sockets; they had to be fitted. Insofar as they had to be fitted onto a cable that had (as the judge found) been used before, it would be necessary to check that the insulation had not been unacceptably damaged by any previous fitting of light sockets and, in any event, to avoid placing the sockets in any place on the cable where they had previously been used. It was very unlikely, said the claimant, that such examination did take place since Mr Harbour thought, wrongly, that the cable was a new cable. In paragraph 46 of his judgment the judge held, positively, that Mr Harbour did not examine the cable before attaching the light sockets. Before us, Mr James for Mr Harbour was constrained to accept that that was negligence on Mr Harbour's part.

13

As to causation the judge decided that the maxim “res ipsa loquitur” applied since the defendants were in sole control of the bungalow and its roof space when the fire broke out. The defendants, therefore, had an evidential burden to discharge. The position on the evidence was that no causation inconsistent with the defendants' negligence had been established as showing an operative cause which was

“… at least as likely as that...

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