Harbutt's ‘Plasticine’Harbutt's Ltd v Wayne Tank and Pump Company Ltd

JurisdictionEngland & Wales
Judgment Date05 December 1969
Judgment citation (vLex)[1969] EWCA Civ J1205-1
Date05 December 1969
CourtCourt of Appeal (Civil Division)
Harbutts Plasticine Limited
Plaintiffs Respondents
Wayne Tank and Fuel Company Limited
Defendants Appellants

[1969] EWCA Civ J1205-1


The Master of the Rolls (Lord Denning)

Lord Justice Widgery and

Lord Justice Cross.

In The Supreme Court of Judicature

The Court of Appeal

Appeal of defendants from judgment of Mr. Justice John Stephenson London, dated November 8th, 1968.

Mr. MARVEN EVERETT, Q.C., and Mr. CHARLES WHITEY (instructed by Messrs. Barlow Lyde & Gilbert) appeared on behalf of the Appellant Defendants.

Mr. JOHN MAY, Q.C, and Mr. MICHAEL TURNER (instructed by Messrs. E. P. Rugg & Co., agents for Messrs. Wansbroughs, Robinson, Taylor and Taylor, Bristol) appeared on behalf of the Respondent Plaintiffs.


During the night of 5th/6th February, 1963, an old mill at Bathampton in Somerset went up in flames. It was on the banks of the Kennet and Avon Canal. It was owned by a company which made plasticine there. It was completely gutted by the fire. The owners claimed on their insurance company, who in a few weeks made a payment of £50,000 to the Plasticine Company, followed by another £40,000 a few months later, and later further sums. The owners built a new factory on the site and started once again to make plasticine there. Meanwhile the insurance company investigated the cause of the fire. They were advised that it was due to the fault of the Company Wayne Tank and Fuel Company which had been installing new equipment in the mill. So the insurance company used the name of the plasticine Company and sued the Wayne Company for damages. The Wayne Company said it was not their faults but if it was, they said their liability was limited by the conditions of the contract. The Plasticine Company, in reply, said that the Wayne Company had been guilty of a fundamental breach of contract and were, therefore, not entitled to rely on the limitation clauses.


The Judge heard the case for some weeks. His findings of fact have been accepted by the parties. I will summarise them. One of the main ingredients of plasticine is a greasy wax called stearine. It has the consistency of an ordinary wax candle. It melts at 90°F. It softens by the heat of the hand (98.4°F). It becomes liquid at from 120°F. to 160°F. (that is, the temperature of warm water which does not boil till 212°[".). It is very inflammable at high temperatures.


Up till 1961 the stearine was brought by road tankers from Yorkshire to Somerset. The stearine was in liquid form (130° to 135°F.) in insulated tankers. On reaching the Somerset factory it was run off into big drums, where it solidified. The drums were stored and, when needed, single drums were taken from the store and the stearine melted. Then men took the liquid stearine in buckets to the mixing machines.


In 1961 Mr. Harmsworth of the plasticine Company had a bright idea. He suggested that the stearine should be kept liquid throughout. It should be pumped straight from the road tankers into special storage tanks fitted with heating apparatus which would keep the stearine liquid: and then carried from those tanks by a heated pipeline to the mixing machine. At the end of the heated pipe there was to be a nozzle (like a petrol-pump nozzle) to control the amount of stearine going into the mixing machine.


The Wayne Company were interested in this idea. They are experts in conveying liquids from one point to another. (They instal most of the petrol-umps in the country.) They made a design. There were to be two new storage tanks. They were to be of mild steel fitted with heaters (steam coils for the daytime and Immersion heaters for the night time) and lined With a plastic called lithcote to stop corrosion. The pipeline was to be made of a plastic material called durapipe. Around it there was to be wrapped a heating tape, threaded with wire, along which a current would be passed so as to heat the pipe (rather like an electric blanket). A thermostat was to be fitted on to the pipe so as to control the temperature.


On the 31st October, 1961, the ayne Company submitted to the Plasticine Company a specification which contained these words;-


"Pipelines will be in durapipe………………


we will electrically trace the delivery pipework




Net, subject to conditions attached.


This was supplemented by an amendment that:


"The electrical loading for tracing the pipes will remain switched on throughout the twenty-four hours: (So the pipe was to be heated for twenty-four hours a day, seven days a week.)


The total price of the contract was afterwards increased to £2,330. 18s.0d.


On the 2nd January, 1962, the Plasticine Company ordered the work. The Wayne Company installed it. There were many delays, but on the evening of the 5th February, 1963, it was ready for testing. The storage tanks had been installed. The pipelines had been electrically traced with the heating tape. (The tape was quite narrow and wrapped round the pipe in a long spiral with about five inches gap from one point of the tape to the next.) A thermostat had seen put on the pipe. The stearine was in the new storage tanks ready to be sent down the pipeline. But it was a very cold day and the stearine was solid. Two of "Wayne's men, named Duncan and Hudson, were there. It was too late to test that evening. So about 4 p.m. Duncan switched on the heating tape, thinking that, if it was left on all night, it would heat up the solid stearine and turn it liquid so that it would flow into the pipe. Then the Installation should be ready for testing next morning. Duncan, before he left, looked in to Plasticine Company's Mr. Harmsworth and told him; Everything is connected and ready for our testing in the morning if you tell us on the phone that the temperature is high enough".


So everybody left on the evening of the 5th February, with the heating tape switched on, believing that it would have melted the stearine by the morning, so that the test could be done. Early next morning, between 5 a.m. and 6 a.m. flames were seen coming from the building. It was very fierce. The fire brigade could not stop it. Great damage was done.


The Judge found that the cause of the fire was that the durapipe became distorted under heat. The thermostat did not work. The durapipe sagged. Cracks appeared in it. Stearine escaped and became ignited. The fire spread rapidly.


The Judge found that it was the fault of the Wayne Tank Company in these respects:-


Firts it was a major blunder to use durapipe at all. That is made of plastic. It is of low thermal conductivity, which means that heat passes very slowly through it: in contrast to steel, which is of high thermal conductivity. In addition,durapipe softens under heat. It distorts at 187°. The manufacturers stated this in their literature (which the defendants saw). Seeing that the stearine (in order to flow along the pipe) had to be maintained at 120°F, to 160°F.f "the margin of safety", said the Judge, "was dangerously small".


Second, it was a great mistake to marry electric heating tape on to a plastic pipe. The defendants had often used heating tape on metal pipes, but never before on a plastic pipe thermostat is effective on a metal pipe, but not on durapipe. The heat is conducted so slowly from inside to outside of the durapipe that the temperature on the outer side of the pipe is no guide to the temperature of the stearine inside. The heat is also conducted so slowly along the pipe that the temperature at one point (just under the tape) is very different from the temperature further along the pipe (away from the tape). If the thermostat was placed on the pipe at a point away from the tape, it would show a low temperature, whereas, at a point directly under the tape, the temperature might be; dangerously high. This was a serious defect. It made the thermostat useless.


Thirds it was a mistake for the defendants to switch on the heating tape on the evening of the 5th February, 1963, and to leave it unattended throughout the night. If it had been switched on during the daytime and a watch kept on it, the sagging of the pipe would have become apparent before the fire broke out; and the heater would have been switched off.


The Judge said that there was a simple way of avoiding all trouble. The pipe should have been made of stainless steel. That does not corrode. It is of high thermal conductivity. It does not melt. The heat can be controlled by a thermostat.


The Judge summarised his conclusions in these words:-


"In breach of their contract the defendants designed, supplied and erected a system which was thoroughly I need not abstain from sawing wholly- unsuitable for its purpose, incapable of carrying it out unless drastically altered, and certain to result not only in its own destruction but in considerablefurther destruction and damage……… the supply of the useless and dangerous durapipe, coupled with the useless thermostat was a breach of the basic purpose which might be described as total, going to the root of the contract."


That is a plain finding that the defendants were guilty of a fundamental breach.




Prima facie, therefore, the defendants are liable in damages for breach of contract damages which the Judge has assessed at £146,581. But the defendants say that their liability is limited to only £2,330 by reason of a condition of the contract. The contract was in writing and incorporated a set of printed conditions. The condition relied upon by the defendants is condition 15 (which deals with the liability of the defendants for accidents and damage before the installation has been taken over by the plaintiffs which is, of course, this case). But I must set out conditions 13 and 16 too.


Clause 13 provides. "Time of taking over. The plant shall be deemed to have been taken over by you when erection...

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