Euro Pools Plc V. Clydeside Steel Fabrications Limited
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young |
| Date | 17 January 2003 |
| Docket Number | 166/00 |
| Court | Court of Session |
| Published date | 17 January 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| 166/00
| OPINION OF LORD DRUMMOND YOUNG in the cause EURO POOLS PLC Pursuers; against CLYDESIDE STEEL FABRICATIONS LIMITED Defenders: ________________ |
Pursuers: Buchanan; Semple Fraser
Defenders: Bell; Bennett & Robertson
17 January 2003
[1]The pursuers have raised an action against the defenders in which they claim damages for breach of contract. The defenders have tabled a plea to the relevancy of the pursuers' averments, and seek to have that plea upheld in respect of certain of the pursuers' averments relating to computation of loss.
[2]The pursuers are suppliers and installers of swimming pool water management systems for large public swimming pools. They make the following general averments. They design and install machinery and pipework for the circulation, pumping, heating, filtering, dosing and treating of water in such pools. They do so as a specialist sub-contractor in construction contracts for the building of large public leisure centres and swimming pools. An invariable part of such a pool system since Victorian times has been the filters, of which each system often has more than one. These are apparatus designed to remove from the water used in the swimming pool the detritus that falls into it during use. As such, they are essential to the proper safe and hygienic operation of any public swimming pool. The filters almost invariably take the form of large steel tanks shaped like upright cylinders, rounded at top and bottom. These are often over two metres in height and are almost as broad as they are tall. They are consequently very bulky, and frequently have to be installed before the plant room at a new leisure centre has been built, the plant room and pool system pipework then being constructed around them. Their removal once the pool is in operation is a very major task, and consequently they are normally expected to have a working life in everyday use of about forty years. Nevertheless, the non-corrosive lining of the cylinder is renewed approximately every fifteen years. Inside the tank thick layers of gravel and sand are placed as filter media. In ordinary use, water from the swimming pool is pumped into the tank from the top and passes through the filter media in order to remove impurities. The tank is pressurised in use. From time to time the filter media themselves become saturated with trapped matter and require to be cleaned. This is done by use of a "backwash" facility, whereby water from the swimming pool is shut off from the filter tank and an alternative supply of water is injected into the tank from the bottom, allowing waste matter to be washed out of the media and disposed of through a backwash drain. Thereafter normal use is restarted. Consequently the filter tanks are almost constantly full of pressurised water once the pool has been commissioned. That water is almost invariably warm and chlorinated. Moreover, during the backwash procedure, the filter media are washed against the internal walls. Because the filter tanks are made of steel, it is vital that they should be protected internally from the corrosive effects of the warm chlorinated water and the backwash procedure. If that is not done, the steel will quickly corrode and will fail completely.
[3]In relation to the events that gave rise to the present action, the pursuers make the following averments. In June 1995 and March 1996 they entered into sub-contracts for the installation of filtration systems for swimming pools being constructed at leisure centres at Burntisland and at East Molesey, Surrey. In each case, the sub-contract provided that the pursuers were obliged to rectify any defects in their installation, including the filter tanks, arising during the period of twelve months from commissioning of the swimming pool systems. In the case of the Burntisland contract, the pursuers further undertook to indemnify the main contractor against any claim arising from any default or omission attributable to them. In the case of the East Molesey contract, they gave collateral warranties that the works that they carried out, including the filters, were fit for the purposes set out in the subcontract and for normal purposes, and that all workmanship, manufacture and fabrication would be to the highest standards available. In connection with each of these contracts, it was agreed between the pursuers and the defenders that the defenders should supply the filter tanks for the filtration systems. These were to be shot-blasted and lined internally with high build epoxy as an anti-corrosive lining. Thereafter the defenders manufactured the tanks, which were in due course delivered and installed. The pursuers aver that the contracts were contracts of sale, and are accordingly subject to sections 14 (2) and 14 (3) of the Sale of Goods Act. They further aver that in each of the contracts between them and the defenders they left the details of the design and application of the linings of the tanks to the defenders, as experts in the manufacture and supply of steel fabrications, and that the defenders selected the materials to be applied to form the linings and the method of application.
[4]The pursuers then aver that, some two or three months after commissioning of the pool filter installations at Burntisland, it was discovered that the protective linings of the tank had failed and that the walls of the tank were subject to widespread corrosion. The pursuers were instructed to make good those faults. Representatives of the pursuers and the defenders inspected the filters. The defenders disputed that there was any corrosion, and consequently the pursuers' managing director examined the filters himself. He found that the tank walls were subject to widespread corrosion. The pursuers further instructed a company known as Fenwick Inspection Services Limited to inspect the tanks with a view to obtaining their advice on the remedial works required. Ultimately the pursuers required to rectify the defects. At about the same time it was discovered that the tanks installed at the swimming pool in East Molesey were also subject to corrosion, as the protective linings had failed. Once again the pursuers were instructed to make good the defects. Once again the pursuers inspected the filters and instructed Fenwick Inspection Services Limited to inspect the tanks with a view to obtaining advice on remedial works. The pursuers aver that they suffered loss in consequence of the tanks' being defective, and that such loss was caused by the defenders' breach of contract.
[5]The pursuers then make averments of loss. They state that in due course they arranged for the necessary remedial works to be carried out, principally by specialist contractors, Tyneside Filtration and Engineering Services Limited. The pursuers aver, however, that some of the work involved in investigating, decommissioning and recommissioning the filters was carried out by their own employees, who were diverted from other contracts for the purpose. The pursuers aver that they had a very small staff, amounting to about six or seven employees in total, and that they required to take members of staff off their normal duties on other remunerative contracts and cause them to travel to the respective sites to carry out the remedial work in stages. They then required to pay overtime to the staff so that they could complete their normal duties outside normal working hours.
[6]Subsequently, the pursuers make more specific averments relating to the losses claimed. They state that, on 7 January 1998, their site engineer, Mr Neil McClure, attended at the Burntisland leisure centre to investigate the complaint about the tanks there; six hours of his time were used in doing so and 108 miles were travelled by him. In respect of that visit, the pursuers claim £33 per hour and 45p per mile travelled, a total of £246. On 14 January 1998, the pursuers aver, their managing director attended a meeting in Burntisland to discuss the complaints; that occupied five hours of his time and he travelled 108 miles. The pursuers claim £55 per hour and 60p per mile travelled in respect of that visit, a total of £339.80. The steel filters were inspected by Fenwick Inspection Services Limited, at a cost of £576.40. The steel filters were rectified by Tyneside Filtration and Engineering Services Limited at a cost of £5,610. Another of the pursuers' engineers, Mr Alan Murphy, was engaged for six hours in recommissioning the steel filters, and travelled 108 miles for that purpose; the pursuers claim £33 per hour and 45p per mile, a total of £246.60. They further aver that their managing director required to deal with numerous telephone calls and substantial correspondence in organising and co-ordinating the repairs; they estimate that that took 20 hours of his time, which is claimed at £55 per hour, a total of £1,100. The total claimed in respect of the Burntisland leisure centre is accordingly £8,119.40.
[7]In respect of the swimming pool at East Molesey, the pursuers aver that their managing director attended a meeting on 5 June 1998 to discuss the complaints received; that took 20 hours of his time, and he travelled 808 miles. That is claimed at £55 per hour and 60p per mile travelled, a total of £1,584.80. An independent inspection of the steel filters was carried out by Fenwick Inspection Services Limited, at a cost of £350. The steel filters were rectified by Tyneside Filtration and Engineering Services Limited at a cost of £5,610. To allow part of the swimming pool to remain operational during remedial works, one of the pursuers' engineers, Mr Alan Murphy, required to modify pipework; that took 32 hours of his time, and he travelled 808 miles. That is claimed at £33 per hour and 45p per mile, a total of £1,419.60. Materials for that task cost £930.97. The same engineer recommissioned the filters; that took 16 hours of his time and he travelled 808...
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