Hi-Lite Electrical Ltd v Wolseley Uk Ltd Dab Pumps Spa (Third Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Technology and Construction Court)
JudgeMr Justice Ramsey
Judgment Date31 August 2011
Neutral Citation[2011] EWHC 2153 (TCC)
Date31 August 2011
Docket NumberCase No: HT-11-158

[2011] EWHC 2153 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mr. Justice Ramsey

Case No: HT-11-158

Between:
Hi-Lite Electrical Limited
Claimant
and
Wolseley Uk Limited
Defendant

and

Dab Pumps Spa
Third Party

Philip Shepherd QC and Tom Montagu-Smith (instructed by Fox Hartley) for the Claimant

Neil Moody QC (instructed by Kennedys) for the Defendant

Charles Dougherty (instructed by DWF LLP) for the Third Party

Mr Justice Ramsey

Introduction

1

These proceedings arise out of a fire which occurred in the early hours of the morning of 24 January 2006 in a hair salon and health spa operated by Obsession Hair and Day Spa Limited ("Obsession") in the Mailbox in Birmingham. It is common ground in these proceedings that the fire originated in a submersible Jet W300 pump ("the Pump") in a sump in the colour dispensary of the hairdressing salon.

2

There have already been proceedings between Obsession and the electrical contractor who installed the Pump, Hi-Lite Electrical Limited ("Hi-Lite"), in the Birmingham District Registry ("the Birmingham Proceedings") leading to a judgment dated 11 December 2008 in which His Honour Judge McKenna, sitting as a Judge of the High Court, found Hi-Lite liable to Obsession in contract for losses which Obsession suffered as a result of the fire. By a further judgment dated 8 November 2010 he assessed those losses at £847,171, inclusive of interest and held that if Hi-Lite had been liable to Obsession in tort the quantum, would have been £2,578,123. On 7 February 2011 Obsession was granted permission to appeal against the dismissal of its claim in negligence and also as to the quantification of the claim.

3

Hi-Lite have commenced these proceedings against Wolseley (UK) Limited ("Wolseley") who traded under the name "Pipe Center" and operated stores which sold pipes, valves, fittings and associated plumbing products. Wolseley sold the Pump to Hi-Lite. In turn Wolseley has brought third party proceedings against DAB Pumps SpA, formerly Leader Group Pumps SpA ("Leader"), which is an Italian company which manufactured Jet W300 pumps and supplied the Pump to Wolseley.

4

In these proceedings Hi-Lite seeks a declaration that Wolseley is liable for the fire and that Wolseley should indemnify Hi-Lite for any sums for which Hi-Lite is liable to Obsession. Wolseley denies liability and, in turn, seeks to pass on any claim to Leader.

Background

5

A drainage sump and submersible pump were installed in Obsession's salon in Birmingham in about 2001. Initially a Jung pump was installed to pump the effluent from a number of washbasins and a dishwasher into the main drains. A filter was located upstream of the sump in the pipework leading to the sump to prevent debris from entering the sump.

6

In July 2005 Mr Christopher Leadbrook, who worked for the company carrying out maintenance at the salon, replaced the Jung pump with a DAB Nova 180 Pump. Hi-Lite was subsequently engaged by Obsession to carry out maintenance work at the salon from about July 2005. At some stage, apparently when carrying out maintenance of the lighting installation, one of Hi-Lite's employees, Mr Anthony Fletcher, replaced the fixed float arm which had become detached from the Nova 180 pump.

7

On about 22 November 2005 the Nova 180 pump failed and the sump flooded. Hi-Lite was called out and Mr Fletcher attended and found the pump and sump covered in a mixture of "gunk and hair" and he found rubber gloves, a towel and a knife in the sump. He emptied the sump and concluded that the Nova 180 pump rotor had seized and that pump could not be repaired.

8

The next morning, 23 November 2005, Mr Fletcher visited Wolseley's Pipe Center branch at Digbeth with another Hi-Lite employee, Mr Wayne Brown and purchased a Jet W300 pump for some £99.68 plus VAT.

9

Mr Fletcher returned to the salon and, together with Mr Brown, he set about installing the Pump in the sump at the salon.

10

The Pump had a mains cable attached to it. There was also a switch which floats on the end of a flexible cable attached to the Pump. This switched the Pump on when the water rose to a particular high level and switched it off when the water has been pumped out to a lower level. The length of the flexible cable could be adjusted to set the depth of water at which pumping should commence and cease. Whilst it is agreed that the fire started in the cable connecting the float switch to the Pump, the cause of the fire in that length of cable is not agreed and forms the essential issue to be determined in this case. The fire took place on 24 January 2006, some 9 weeks after the installation of the Pump.

Court Proceedings

11

In the Birmingham Proceedings the central issue, as expressed by Judge McKenna at paragraph 7 of his December 2008 Judgment, was whether Obsession could prove, on the balance of probabilities, that the Pump was the cause of the fire rather than, for example, carelessly discarded smoker's materials or deliberate ignition by an intruder. In those proceedings, Judge McKenna heard evidence from witnesses called by Obsession who have not been called in these proceedings, in addition to witnesses from Hi-Lite including Mr Fletcher and Mr Brown who were called in these proceedings.

12

Expert evidence was also called in the Birmingham Proceedings. Obsession relied on the evidence of Mr Stephen Braund, an associate with Hawkins and Associates Limited who had a degree in electrical and electronic engineering and was a member of the Institution of Electrical Engineers. Hi-Lite relied on the evidence of Dr Richard Lipczynski who also had a degree in electrical and electronic engineering and was a member of the Institution of Electrical Engineers. He was a partner in Geoffrey Hunt and Partners.

13

Mr Braund came to the conclusion that the fire was probably caused by an incendive electrical fault in the Pump. Specifically, he considered the fire most likely to have been caused by the failure of the cable that connected the float switch to the main body of the Pump and he relied on evidence of electrical arcing damage on the relevant wires, 130mm from the point from where the cable was connected to the limit switch. Mr Braund's view, as set out in paragraph 70 of the December 2008 Judgment, was that "the continual moving up and down of the float in the tank would have led to the fracturing of the wires inside the flex which was likely to have caused electrical in-line arcing to occur inside the flex when the motor was required to operate which in turn was likely to have ignited the insulation of the flex or other nearby combustible/flammable materials."

14

Dr Lipczynski disagreed with Mr Braund's analysis. He considered that the position of the arcing on the wires of the cable float switch strongly suggested that both the live and neutral conductors had sustained arc damage very close to where the float switch's cable had been clipped to the Pump. He considered that the point where arcing occurred was at the point where the cable would flex. In his opinion radiant heat or fire attack on that cable would be highly likely to destroy cable insulation and cause conductors to touch and arc at the point where the cable insulation was under mechanical stress, that is, at the point he referred to. As a result he believed that the evidence of arcing observed on the live and neutral conductors of the float switch cable had resulted from external fire attack on that cable. In other words, Dr Lipczynski considered that the damage to the cable was caused by an external fire rather than being the cause of the fire itself. Both experts were however agreed that the fire almost certainly started in the colour dispensary. That was where the sump with the Pump was located.

15

Both experts carried out tests to simulate the behaviour of the float switch rising as water came into the sump and falling as water was then pumped out. On the basis of Mr Braund's test, in particular test 5, his view was that if the free cable length of the float had been shortened to 3cm, it could lead to fracturing within the relevant time frame between installation of the Pump and the fire. His view, as summarised at paragraph 87 of the December 2008 judgment, was that "failure of a live wire is likely to cause the pump to run intermittently at first, causing the cable insulation to burn and carbonise and the pump then to run continuously. Burning is likely to break through the outer sheath of the cable and the burning of the wires will continue as long as the electricity supply remains live causing nearby combustible materials, including the plastic parts of the pump and cable insulation to ignite as damage spreads along the float cable."

16

Dr Lipczynski criticised Mr Braund's tests as being unrealistic and not being representative of the conditions experienced for a number of reasons, including the fact that the electrical load was grossly in excess of the 300 watts of the Pump and, except for test 5, the cable was different from the cable fitted to the Pump.

17

Having heard his evidence, Judge McKenna concluded that Mr Fletcher must have shortened the float cable significantly below the 10cm stipulated in the instructions in an attempt to get the Pump to operate without the switch fouling the sides of the sump to such an extent that it would not work reliably. Judge McKenna said that shortening of the float cable to 3cm was consistent with the point of the fracture being no more that 30mm from the edge of the plastic moulded strain relief. It was also...

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