Muirhead v Industrial Tank Specialities Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROBERT GOFF,LORD JUSTICE NOURSE,LORD JUSTICE O'CONNOR |
| Judgment Date | 31 July 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0731-13 |
| Docket Number | 85/0503 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1985 |
[1985] EWCA Civ J0731-13
IN THE SUPREME CCURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
From: Mr Justice Kenneth Jones
(Q.B.D., Middlesborough)
Royal Courts of Justice
Lord Justice O'Connor,
Lord Justice Robert Goff
and
Lord Justice Nourse
85/0503
and
MR PIERS ASHWORTH, Q.C., and MR B. LOWE (instructed by Messrs Hadaway & Hadaway, Newcastle-upon-Tyne) appeared on behalf of the Appellants (Third Defendants)
MR ROBIN STEWART, Q.C., and MR M.E. HEYWOOD (instructed by Messrs Crutes, Newcastle-upon-Tyne) appeared on behalf of the Respondent (Plaintiff).
There is before the court an appeal by Leroy Somer Electrical Motors Ltd., the Third Defendants in the action, against a decision of Mr Justice Kenneth Jones in which he determined the issue of liability as between the plaintiff, Robert Muirhead, and the Third Defendants in favour of the plaintiff.
The matter has arisen in the following way the Respondent (the plaintiff in the action) carries on business as a wholesale fish merchant in Sunderland. He conceived a plan for expanding his trade in lobsters by storing lobsters bought in during the summer season, when the price is low, and then reselling them on the Christmas market when the price is high. He therefore decided to install a large tank in which the lobsters were to be stored. Sea water was to be collected, filtered and pumped into the storage tank; the water had then to be re-circulated in order to oxygenate it. For that purpose seven pumps were needed—three to pump the water into the header tank and filters and four to pump water into the main tank.
The tank and pumps were installed by the first defendants, Industrial Tank Specialities Ltd. (ITS). ITS is a subsidiary of Purley Pools Ltd. The pumps were supplied by a company called ITT Marlow (which is a subsidiary of the American multi-national company ITT) through an English subsidiary called ITT (UK) Ltd. (the second defendants). ITT (UK) did not supply the pumps direct to ITS. The chain of sales of the pumps consisted of sales by ITT (UK) to a company called Kafco (U.K.) Ltd; then by Kafco to Purley Pools; then by Purley Pools to ITS; and then finally, as part of the installation, by ITS to the respondent. Each, pump consisted of an impeller driven by an electric motor, the motor being manufactured in France by very substantial manufacturers of electrical equipment called Leroy Somer. They supplied the motors to ITT Marlow through their English subsidiary Leroy Somer Electrical Motors Ltd. (the appellants); but for the purposes of the action the appellants were treated as the manufacturers of the electric motors. In fact the complete pump units were assembled by the appellants for ITT Marlow in this country at Skelmersdale, and were then despatched by the appellants direct to Purley Pools, though the contractual chain of sales was as I have already indicated.
The installation of the large tank and pumps was carried out by ITS at the respondent's premises in Sunderland in July and August 1979 The pumps were required to run for 24—hours a day. Within at most a few days the electric motors driving the pumps started to cut out, probably one or two at a time. Furthermore, the installation incorporated devices called starter contacts, the effect of which was that, if a pump cut out, the starter contact also cut out and had to be manually re-set. If (as often happened) pumps cut out at night, this was not discovered immediately and so time would elapse before the starter devices were re-set and the pumps re-started. Pumps cut out very frequently; a local electrician gave evidence that, between August and December 1979, he was called in by the respondent practically every day to get the pumps going again. On one occasion the re-circulation of the water was affected, and the respondent lost his whole stock of lobsters in the tank. It appears that the tank was very fully stocked with lobsters which, being semi-refrigerated, were incapable of movement though alive; and the evidence was that, with the tank completely full of lobsters, if the re-circulation and oxygenation of the water in the tank failed the lobsters would begin to die within about 48 minutes and all the lobsters would probably be dead within an hour and a half. The judge described this as a remarkable feature of the operation of the plant.
When things began to go wrong the respondent consulted ITS's representative, a Mr Glazier; he telephoned ITS practically every day. Mr Glazier told him that the problem would resolve itself; but, when it did not do so, the pumps were sent back to the suppliers, who arranged for the motors to be re-wound. This work was done on all seven pumps between February and May 1980. The motors were reinstated; but within half an hour they started to cut out again. In August 1980, in consultation with ITS, the respondent had the pumps replaced with different pumps made by different manufacturers. Thereafter the plant operated satisfactorily, but in the meanwhile the respondent had lost not only his whole stock of lobsters stored in the tank but also the profits which he had expected to derive from the installation.
So the respondent commenced proceedings, claiming damages from ITS as first defendants, ITT (UK) Ltd. as second defendants, and the appellants Leroy Somer Electrical Motors Ltd. as third defendants. He obtained judgment against ITS; but they have gone into liquidation, and so the judgment against them has not been satisfied. The action therefore proceeded against ITT (UK) and the appellants. An order was made that the issue of liability should be tried first. Since there was no contractual relationship between the respondent and either ITT (UK) or the appellants his claim against both was founded in the tort of negligence.
There was no doubt that the cause of the trouble lay in the electric motors in the pumps; and, at the trial of the issue of liability, ITT (UK) made common cause with the respondent in laying the blame on the appellants. Much time was occupied at the trial in investigating the precise cause of the trouble, and the judge criticised the appellants for exploring "every point which they considered available for their defence whether it was good, bad or indifferent". But, in the end, the cause was identified by the judge, without any doubt, and proved to be very simple. I quote from the judgment (at page 6):
"Within the United Kingdom the voltage range is 220 to 240 volts; by the Electricity Supply Legislation a variation of plus or minus 6% is allowed and so a top voltage of 254.4 volts is permissible. I further accept the evidence of Mr Calvert and Mr Dinley that in practice voltages in the U.K. do go as high as 254 volts, according to Mr Dinley's experience, or 252 volts according to Mr Calvert's experience, and that this is most likely to happen near to the sub-station (the plaintiff's premises were only 177 yards away from the sub-station) and/or at night. Thus, when used in the United Kingdom these motors manufactured by Leroy Somer were liable to cut out at the higher voltage and this was obviously what was happening in the plaintiff's installation. Put another way—the plaintiff's pumps cut out because the electric motors were defective in the U.K. in that they were not suitable for use on the U.K. voltage range".
Having identified the cause of the trouble the judge had to consider whether, in consequence, the appellants were liable to the respondent in negligence. It is right that I should record that, in his pleaded case, the respondent had claimed damages under the following seven heads:
| (a) cost of pumps | £4,284.46 and VAT thereon |
| (b) additional labour in boiling and refrigerating salvaged dead lobsters, estimated: | £500.00 |
| (c) additional costs of electrical engineers to attend to pumps, Estimated: | £500.00 |
| (d) additional working time and labour for attendance upon pumps to check, correct tripping out, etc., estimated: | £1,500.00 |
| (e) loss of interest on capital deployed and/or loss of availability of working capital | to be quantified |
| (f) loss of profit on intended sales, estimated: | £127,375.00 |
| (g) Loss of lobsters at cost, estimated: | £11,000.00 |
The judges conclusion was expressed by him as follows (at page 24):
"The heads of damage of which the plaintiff complains at para.6 of the statement of claim represent damage suffered by the plaintiff as a result of the third defendants' negligence. The third defendants ought reasonably to have foreseen that as a result of their negligence the plaintiff would suffer damage of the type set out in heads (a) to (g) and the plaintiff is therefore entitled to recover compensation for the actual damage which he can prove he has suffered under those heads. The actual damage will be that suffered in the period immediately following the installation of the pump units containing the third defendants' motor, and continuing thereafter until the new installation was made in August of 1980. There was some suggestion that the plaintiff should have got in touch with the motor manufacturers sooner than he did but, having regard to the evidence, I aa unable to hold that he acted in any way unreasonably in the steps which he took through Mr Beatty, ITS and ITT to trace this basically simple fault of which the third defendants ought to have known but about which they were still arguing with the second defendants in 1981".
The judge held that there was no breach of duty by ITT (UK). He therefore...
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