Howmet Ltd v Economy Devices Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Sir Robert Akenhead,Lady Justice Arden |
| Judgment Date | 31 August 2016 |
| Neutral Citation | [2016] EWCA Civ 847 |
| Docket Number | Case No: A1/2015/0179 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 August 2016 |
[2016] EWCA Civ 847
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Queen's Bench Division Technology and Construction Court
Mr Justice Edwards-Stuart
HT11366
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Jackson
and
Sir Robert Akenhead
Case No: A1/2015/0179
Ben Quiney QC & James Sharpe (instructed by Reynolds Porter Chamberlain LLP) for the Appellant
Andrew Bartlett QC & Alexander Antelme QC (instructed by Weightmans LLP) for the Respondent
Hearing dates: Tuesday 12th, Wednesday 13th & Thursday 14th July 2016
Approved Judgment
This judgment is in eight parts, namely:
| Part 1: Introduction | Paragraphs 2 – 14 |
| Part 2: The Facts | Paragraphs 15 – 32 |
| Part 3: The present proceedings | Paragraphs 33 – 48 |
| Part 4: The appeal to the Court of Appeal | Paragraphs 49 – 52 |
| Part 5: What did Howmet know about the condition of the thermolevel on tank 6 during the week before the fire? | Paragraphs 53 – 74 |
| Part 6: Howmet's claim in negligence against the manufacturer. | Paragraphs 75 – 101 |
| Part 7: Howmet's claim for breach of statutory duty. | Paragraphs 102 – 105 |
| Part 8: Conclusion | Paragraphs 106 – 108 |
This is an appeal by the owners of a factory which suffered fire damage against a judgment dismissing their action. The owners are claiming damages against the manufacturers of a device which, they say, should have prevented the fire from occurring. This takes us back to the basic principles of the law of tort and in particular to Donoghue v Stevenson [1932] AC 562, which is almost the first case that any law student studies.
The principal issues in this appeal are whether, at the date of the fire, the manufacturers owed any continuing duty to the factory owners and whether the manufacturers' breaches of duty caused the loss.
The claimant in the litigation and appellant before this court is Howmet Limited, to which I shall refer as "Howmet". The defendant in the litigation and respondent before this court is Economy Devices Limited, to which I shall refer to as "EDL".
Other parties who will feature in the narrative are Electrochemical Supplies Limited ("ECS") and MJD Supplies Limited ("MJD"). At the material time ECS designed, manufactured and supplied industrial plant and equipment. MJD designed and supplied electrical and electronic systems.
References in this judgment to "day…, page…" relate to the transcript of the trial. References to "appeal day…, page…" are references to the transcript of the three day hearing in the Court of Appeal.
I shall refer to the Law Reform (Contributory Negligence) Act 1945 as "the 1945 Act". I shall refer to the Consumer Protection Act 1987 as "the 1987 Act".
Section 11 of the 1987 Act empowers the Secretary of State to make regulations for the purpose of securing that goods put into general circulation are safe. Section 19 of the 1987 Act defines "safe" as follows:
"19. ……"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;
(c) the assembly of any of the goods which are, or are to be, supplied unassembled;
(d) any emission or leakage from the goods or, as a result of the keeping, use or consumption of the goods, from anything else; or
(e) reliance on the accuracy of any measurement, calculation or other reading made by of by means of the goods,
and…"unsafe" shall be construed accordingly."
Section 41(1) of the 1987 Act provides:
"(1) An obligation imposed by safety regulations shall be a duty owed to any person who may be affected by a contravention of the obligation and, subject to any provision to the contrary in the regulations and to the defences and other incidents applying to actions for breach of statutory duty, a contravention of any such obligation shall be actionable accordingly."
Pursuant to section 11 of the 1987 Act, the Secretary of State made the Electrical Equipment (Safety) Regulations 1994, to which I shall refer as "the 1994 Regulations".
Regulation 3 of the 1984 Regulations provides:
"3 – (1) In these Regulations –
"the 1987 Act" means the Consumer Protection Act 1987; …
"safe" has the same meaning as in section 19(1) of the 1987 Act, except that, for the purpose of these Regulations, the references in that subsection to "risk" shall be construed as including references to any risk of –
(a) death or injury to domestic animals; and
(b) damage to property;
and as excluding 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."
Regulation 5 of the 1994 Regulations provides:
"5. (1) Electrical equipment shall be –
(a) safe;"
Regulation 9 of the 1994 Regulations provides:
"9. (1) Subject to regulation 12, the manufacturer of electrical equipment or his authorised representative shall affix to all electrical equipment to which these Regulations apply (or to their packaging, instruction sheet or guarantee certificate) in a visible, easily legible and indelible form the CE marking as shown in Schedule 1 by way of confirmation that the electrical equipment conforms with all the requirements of these Regulations which relate to it."
After these introductory remarks, I must now turn to the facts.
Part 2 – The Facts
Howmet manufacture turbine aerofoils and other precision components for the aerospace industry. One of their factories is at Exeter. I attach as Appendix 1 to this judgment a chart showing Howmet's management structure at the Exeter factory, as it was in the period December 2006 to February 2007.
One stage of the manufacturing process is to dip metal castings into a series of tanks in order to expose the grain. The first tank contains ferric acid heated to 80°C. Subsequent tanks contain various liquids, including hot and cold water. The line of tanks into which the castings are dipped sequentially is called a "grain etch line" or "GEL".
In 2005 Howmet decided to replace the GEL at its Exeter factory. Howmet engaged ECS as main contractor to design, supply and install the GEL. ECS engaged MJD as subcontractor to carry out the electrical work. ECS and MJD duly carried out the work during 2005 and 2006. They installed a GEL comprising 8 separate tanks, with a hoist above them to transfer metal castings from one tank to the next.
The tanks in the GEL were manufactured from (or coated with) polypropylene, in order to resist the corrosive effects of chemicals within the tanks. Polypropylene is inflammable. Five of the tanks were heated and these constituted a fire risk. This was because the heaters situated within them were coated with PTFE (polypropylene) and could ignite if the liquid levels fell.
In order to avert the risk of fires, ECS and MJD installed a device called a thermolevel on each of the five heated tanks. A thermolevel comprises two elements. There is a probe which is dipped into the tank. There is also a control box which is connected to the probe by an electric cable.
The thermolevel has two functions. First, it monitors the temperature of the liquid in which it is immersed. Secondly, it contains a level sensor. If the liquid in the tank drops below a specified level, the thermolevel automatically switches off the heater. This second function is important. If the heater remains on when the tank is empty or nearly empty, the polypropylene is likely to catch fire.
I attach as Appendix 2 a photograph of a thermolevel manufactured by EDL. The principal controls can be accessed by opening the glass door at the front. There is, however, a separate control which can only be accessed if you unscrew the front plate. This is a deep set blue knob which you can rotate with the aid of a Phillips screwdriver. The blue knob adjusts the potentiometer. The potentiometer tunes the probe into the control unit to enable the device to operate to detect a drop in level at which the level sensor is triggered. If the potentiometer is incorrectly adjusted, the level sensor will not work effectively. Finally, a second cable (which is not shown in the photograph at Appendix 2) runs from the bottom of the control box to the main electricity supply.
EDL were a company based in Shrewsbury which designed and manufactured thermolevels. In 2006 MJD purchased thermolevels from EDL and installed them on Howmet's grain etch line.
During the installation process MJD made a number of modifications to the thermolevels. One modification was to add an alarm which would sound if the liquid level dropped and the heater was cutting out. Another modification was to extend the cable by which the thermolevel was plugged into the main electricity supply. The connection between the original cable of the thermolevel and the extension cable took the form of a plug and socket. I will refer to these items as "the extension plug and socket".
The section of the GEL which is the subject matter of this litigation is tank number 6. This was a hot rinse tank. There was an immersion heater attached to the tank to heat the water. There was a thermolevel attached to the tank, which performed the two functions previously described.
ECS completed their work in the autumn of...
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