Medivance Instruments Ltd v Gaslane Pipework Services Ltd and Another
| Jurisdiction | England & Wales |
| Judgment Date | 18 April 2002 |
| Neutral Citation | [2002] EWCA Civ 500 |
| Docket Number | A2/2001/0561 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 April 2002 |
[2002] EWCA Civ 500
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE PHILIP PRICE QC—Sitting as a High Court Judge)
Lord Justice Thorpe
Lord Justice Mance and
Mr Justice Neuberger
A2/2001/0561
GEOFFREY BROWN (instructed by Plexus-Law of London EC4A 1AF) appeared for the appellant
ANDREW BARTLETT QC and ANDREW BURNS (instructed by Davies Arnold Cooper of London EC4Y 8DD) appeared for the first respondent)
GRAHAM EKLUND (instructed by Davies Lavery of London EC3M 4BY) appeared for the second respondent)
NEUBERGER J:
This is an appeal brought by Medivance Instruments Limited with the permission of Clarke LJ, from a decision of His Honour Judge Philip Price QC. In a reserved judgment given on 10 th January 2001, he dismissed its claim for damages against Gaslane Pipework Services Limited ("Gaslane") and Vulcana Gas Appliances Limited ("Vulcana").
The Facts
The claim arose out of a fire which broke out shortly after 6 a.m. on 19 th December 1994 in the small parts and packing area ("the packing area") in the appellant's factory in Harlesden, NorthWest London. The appellant occupied the factory in connection with its business of manufacturing x-ray and other equipment, and supplying such equipment to medical, dental and veterinary practices. The fire, which caused substantial damage to the factory and its contents, resulted from the ignition of one or more cardboard boxes which the Judge found had been left very close to the front grill of a heater in the packing store. The heater, which was a Vulcana Temcana 20C Heater ("the Heater") had been designed and manufactured by Vulcana, who had supplied it to Gaslane, who in turn had sold it to, and installed it for, the appellant.
The Judge described the Heater as:
"A room sealed fan-assisted heater with a balanced flue. It is fired by natural gas… It stands on the floor. …The ambient room air is drawn into the right side… by a fan and is blown over the heat exchanger surface before discharging into the room through the front grill…"
The Heater was 915mm wide, 834mm high and 372mm deep. The Judge explained that the Heater included:
"An overheat thermostat… which operates at about 95°C to cut off the power… to prevent appliance over-heat in the event of the failure of the fan. That shuts down the gas valves to the burner."
If the outlet grill at the front of such a Heater is obstructed, it will lead to an increase from the temperature at which it usually operates, namely around 100°C, to a higher temperature, the precise level of which will depend upon the nature, size and proximity of the obstruction. Without an obstruction, the temperature at the front of the Heater is far too low to lead to the igniting of nearby cardboard. However, the rise in temperature resulting from an obstruction of the outlet grill at the front of the Heater can be sufficient to set fire to cardboard, at least where the obstruction itself is made of cardboard.
Vulcana had been manufacturing heaters since 1968, and each of their models, including the Heater, had been tested and certified by British Gas. Most, possibly all, of the heaters which the appellant had installed in the factory had been manufactured by Vulcana.
In August 1993, the appellant approached Vulcana about extending the heating in the factory. The following month, Mr Bold, Vulcana's sales agent, inspected the factory and saw the existing heaters in place. He assessed what he thought was needed to heat the packing area, and recommended that the appellant purchase a Vulcana Kestrel 250 Heater for the packing area. Around the same time, Mr Wybrow, Gaslane's contract manager, visited the factory and gave the appellant a quotation for carrying out Mr Bold's recommendation.
Mr Buckland, the appellant's production director, expressed a preference for a type of heater whose style was closer to that which the appellant had elsewhere in the factory. In light of this, on 13 th September 1993, Mr Whybrow produced a quotation for installing the Heater, which was essentially an updated version of Vulcana heaters which the appellant had elsewhere in the factory. This quotation was accepted by the appellant, and the Heater was installed by Gaslane on, or at any rate by, 13 th November 1993. There were no problems with the Heater until the fire which took place some 13 months later.
The instructions issued by Vulcana with the Heater, which were duly passed on by Gaslane to the appellant when the Heater was installed, included this warning:
"Do not cover or obstruct any parts of the heater with clothes or other materials. No article should be placed within 600mm of the front of the heater."
The instructions also included this recommendation:
"While this appliance meets the required Safety Standards, additional guarding is recommended to give full protection to young children, the elderly or the infirm."
Around the heaters which had already been installed in the factory, Mr Buckland's predecessor had placed crosshatched markings on the floor for a distance of 300mm. Mr Buckland explained that this was to prevent items being placed within 300mm of those heaters, and, more specifically, within 300mm of the front. Mr Buckland did not arrange for such crosshatched markings around the Heater in the present case. This was because the Heater had been installed virtually abutting a walkway which was marked on the ground with tape. Mr Buckland took the view that the extent of this marked walkway would be enough, in light of the appellant's standing instructions to all its staff not to place anything in the walkways for safety reasons, and of the knowledge of the staff of the need to keep the front of any heater clear of obstructions. Mr Buckland said that he had emphasised to the appellant's supervisors and staff the warning in the instructions which accompanied the various heaters manufactured by Vulcana. The evidence established that the installation of the Heater was effected by Gaslane in accordance with Vulcana's instructions, save possibly in one respect which had no bearing on the cause of the fire.
The day before the fire occurred, there had been what the Judge called "significant upheaval" in the packing area, involving a major reorganisation whereby a number of substantial racks and an inspection table were moved, and there was a large amount of re-stacking and removal of goods and containers. The disruption was exacerbated by deliveries and rubbish collection taking place on the same day. By the time the factory closed on 18 th December, the state of the packing area was, according to the Judge, "chaotic", not least, it would appear, because the reorganisation work had not been finished. Unfortunately, one of the consequences of this upheaval was that the walkway markings on the floor of the packing area were no longer apparent or appropriate.
Having considered the factual and expert evidence, including photographs taken by the Fire Brigade and by the appellant's loss adjusters, the Judge described the explanation of the fire put forward on behalf of the appellant. This involved expansion of the packaging material on a shelf, which in turn resulted in causing a container falling from the shelf and to land in front of the heater. The Judge rejected that explanation and concluded that, when the factory closed on 18 th December "one or more cardboard containers had been left on the floor hard up against or very close to" the front grill of the Heater. Accordingly, when the Heater started up at 6 a.m. on the morning of 19 th December 1994, the blockage of the front grill, caused by the cardboard containers, resulted in the temperature rising to such a level that the containers ignited, and this led to the fire.
Outline of the issues
The appellant argues that Gaslane was in breach of:
i) Its contractual duty to provide a heater of merchantable quality;
ii) Its contractual duty to provide a heater which was fit for the purpose for which it was known to be required, namely for use in the packing area of the appellant's factory;
iii) Its contractual duty to provide a heater which was suitable and safe for such use;
iv) Its contractual and tortious duties to exercise reasonable skill and care in considering the appellant's heating requirements in the packing area, and making proposals in relation thereto;
v) Its implied representation as to the suitability and safety of the Heater.
As to Vulcana, the appellant contends that it was in breach of its tortious duties to the appellant:
i) To ensure that the heater it recommended and supplied through Gaslane, was suitable and/or safe for installation and use in the appellant's packing area;
ii) To ensure that Gaslane quoted for a suitable heater, and to give appropriate consideration to the suitability of the Heater;
iii) To ensure that any heater supplied by Gaslane would be safe and suitable for use in the appellant's packing area;
iv) As designer and manufacturer of the Heater, to ensure that it was suitable and safe for use in buildings and conditions in which it could be expected to be installed.
The appellant's case in contract against Gaslane relies in part on the provisions of section 14 of the Sale of Goods Act 1979 ("section 14"), which applies in this case in its original, unamended form. So far as relevant, section 14 provides as follows:
"…
(2) Where the seller sells...
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