Michael Nulty Deceased and Others v Milton Keynes Borough Council
Jurisdiction | England & Wales |
Judge | Lord Justice Toulson,Lord Justice Beatson,Lord Justice Longmore |
Judgment Date | 24 January 2013 |
Neutral Citation | [2013] EWCA Civ 15 |
Docket Number | Case No: A1/2012/0459 |
Court | Court of Appeal (Civil Division) |
Date | 24 January 2013 |
[2013] EWCA Civ 15
Lord Justice Longmore
Lord Justice Toulson
and
Lord Justice Beatson
Case No: A1/2012/0459
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TECHNOLOGY AND CONSTRUCTION COURT
Edwards-Stuart J
HT 09 273
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Graham Eklund QC and Mr Nigel Lewers (instructed by Berrymans Lace Mawer LLP) for the Appellants
Mr Andrew Rigney QC and Mr Richard Sage (instructed by Fishburns LLP) for the Respondent
Hearing dates: 4-6 December 2012
On Saturday 2 April 2005 a fire occurred at a recycling centre near Milton Keynes owned by the respondent ("the council"). The fire brigade was called and attended to it, but in the early hours of the following morning there was a fresh outbreak of fire at the premises. Proceedings were brought by the council against Mr Michael Nulty, a self employed electrical engineer who was working at the premises at the time of the first fire. He sadly died before the action came to trial.
At the time of the incident Mr Nulty was insured against professional liability by the National Insurance & Guarantee Corporation Limited ("NIG"), but it disclaimed any liability to indemnify him on the ground of failure to give prompt notification of the circumstances which gave rise to the claim, and it issued proceedings against Mr Nulty's estate and the council for a declaration that it had no liability under the policy.
The council's action and NIG's action were heard together by Edwards-Stuart J. The council limited its claim against the estate to £2 million, which was the limit of indemnity under the policy. NIG defended the council's claim, without prejudice to its denial of liability to provide indemnity under the policy.
Edwards-Stuart J handed down judgment on 3 November 2011 [2011] EWHC 2847 (TCC). It is an impressive judgment. The judge considered the facts in great detail and his analysis is closely reasoned. The judgment ran to 285 paragraphs. The judge found that the second fire resulted from a failure properly to extinguish the first fire and he found against NIG on the issue of coverage under the policy. There is no appeal against those findings. As to the cause of the fire, various possibilities were canvassed at the trial but the judge eliminated all but two possible candidates. Either it was caused by a cigarette end discarded by Mr Nulty or it was caused by arcing from a disused electric cable which had been left live and in a dangerous condition.
The judge concluded that neither cause, viewed on its own, seemed likely but that the arcing explanation was no more than a remote possibility and it was very much less likely than the discarded cigarette end explanation. He found that the council had discharged the burden of proving that Mr Nulty caused the fire and gave judgment for the council.
NIG appeals on the grounds that the judge erred in law in his approach to the question of causation, and that he erred in fact in overstating the improbability of the arcing theory and underestimating the improbability of the discarded cigarette end theory. Neither party suggested that if the court were to find that the judge erred in his approach to the law the case should be sent for a retrial. Both agreed that the court had the necessary material in those circumstances to reach its own decision on the facts and that this would be preferable to incurring the time and expense of a retrial.
The facts in outline
The processing area of the recycling centre contained two large baling machines. One was for commercial waste and the other was for domestic waste. There had been a third baler, known as the Boa baler after the manufacturer's name, but it had been removed in 1996 when a previous operator left the site. However, the electric cable that supplied it had been left in place and, worse still, at the time of the fire it was live, although that fact was not appreciated by anybody at the time. It had been left coiled beside the domestic baler, and insulating tape had been put over the uninsulated ends of the conductors.
Examination after the fire revealed that two of the coils had suffered arcing which had resulted in copper strands being severed. Less severe arcing had occurred at a third place, resulting in minor pitting to two strands. It was NIG's case that arcing of the Boa cable was the probable cause of the fire or at least was no less likely than a discarded cigarette end. The council's case was that arcing of the Boa cable was exceedingly unlikely to have been the cause of the fire, rather than a result of it, and that a discarded cigarette end was a far more likely explanation. Basing himself primarily on his evaluation of the expert witnesses, the judge preferred the council's case.
Each baler had a control panel located beside it. The electricity supply to the control panels came from a distribution board (DB 1) in a switch room, set into an office block, to which there was access from the processing area. The supply to DB 1 came from a main distribution board, which served the whole building and was in an area known as the plastics area or PLYSU. The PLYSU area was adjacent to the processing area but on the opposite side from the office block containing the switch room which housed DB 1. The judge attached to his judgment two plans showing the layout of the building, the balers, their control panels, the switch room and the PLYSU distribution board. The fire broke out in the area behind the domestic baler control panel.
Mr Nulty had often been called in by the council to do work at the premises and he was well familiar with them. At the time of the fire he had been an electrical engineer for nearly 30 years. At one stage in his life he had been trained as a fire fighter, and he had worked for a time on an irregular basis for the fire service when the demands of his business as an electrician allowed him to do so.
Two or three days before the fire, the domestic baler had developed an oil leak in the feed pipe to the hydraulic ram. An engineer was called in, but he did not arrive until the morning of the fire. At about 3am that day there was a power cut, which resulted in the centre having no electricity. The shift workers were sent home, because they could not carry on working in the dark, and for the same reason they did not clear up the debris on the processing floor as would usually have happened during the last part of the shift. So there was waste scattered all over the floor.
The operations manager, Mr Aylmer, was told about the power cut and he called in the electricity supply company. The engineer who had been called in to repair the oil leak on the domestic baler arrived and left before electricians came from the electricity company to restore power to the building. A forklift truck was brought up to the domestic baler and parked so that its headlights could be used to enable the engineer attending to the oil leak to see what he was doing. He repaired the leak and left the premises by about 11.00hrs.
Electricians from the local supply company arrived about 11.45hrs and left shortly after 13.00hrs after restoring power. They found that the cause of the power cut was a fault in the control panel of the commercial baler, which it was not their responsibility to repair.
Mr Nulty had been asked to attend the premises that day to deal with another matter, but on his arrival at about 12.30hrs he was asked to deal with the fault in the commercial baler control panel as a matter of urgency. Because it was more important for the commercial baler to be working than the domestic baler, he set about replacing the damaged parts on the commercial baler control panel with parts taken from the domestic baler control panel. The work took him the best part of 3 hours. From about 14.00hrs he was the only person working in the building.
Mr Nulty began by isolating the control panels for the two balers, using the control panel isolator switches, so that he could work on them safely. After completing the repairs to the commercial baler control panel he switched on the local isolator for that panel, but found that there was no electricity. He went to DB 1 and found that the circuit breaker, or MCCB, supplying the commercial baler had tripped. He switched it back on, but there was still no supply.
Mr Nulty then went to the main distribution board in the PLYSU area, where he found that the MCCB supplying DB 1 had tripped. He switched it on and returned to DB 1, where he switched on the MCCB for the commercial baler. This restored the supply. The supply to the domestic baler remained live, but it was isolated at its own control panel.
By then it was approaching 15.20hrs. The judge was able to make that finding because there were outdoor CCTV cameras which showed Mr Nulty at that time walking to the gate. There had been some problem with the gate and Mr Nulty had been asked to help the security guard to fix it. At 15.37hrs he was seen walking away from the gate. Shortly before 15.42hrs he was seen walking towards the canteen. At 15.55hrs the fire alarm was activated. Mr Nulty heard it from the canteen and immediately went to the scene. As he entered the building he saw fire around the rear of the domestic baler. He used his mobile phone to call the fire brigade and set about himself trying to extinguish...
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