Red Star Pub Company (wrii) Limited & Others Against Scottish Power Limited
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2016] CSOH 100 |
| Court | Court of Session |
| Docket Number | A683/10 |
| Published date | 14 July 2016 |
| Date | 14 July 2016 |
| Year | 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 100
A683/10
OPINION OF LORD BOYD OF DUNCANSBY
In the cause
RED STAR PUB COMPANY (WRII) LIMITED & OTHERS
Pursuer;
against
SCOTTISH POWER LIMITED
Defender:
Pursuer: Moynihan QC, Bennett; BLM
Defender: Hanretty QC, Middleton; Brodies LLP
14 July 2016
[1] In the early hours of the morning of 12 October 2005 a fire broke out in the tenement building situated at 25-31 Waterloo Street, 78 to 82 Wellington Street and 12 Wellington Lane, Glasgow. The fire caused considerable damage to the tenement which required to be demolished.
[2] A few days earlier in the afternoon of Thursday 6 October 2005 a man entered the unoccupied premises known as Rabbie Burns Tavern on the corner of Waterloo Street and Wellington Street in Glasgow. He climbed the stairs to the first floor and removed a sink from behind the bar. He made his way back downstairs exiting onto the street carrying the sink. He was arrested shortly afterwards by police officers. The removal of the sink caused water to flood down into the ground floor premises known as Archie’s Bar. One of the issues in this case is whether or not the two events are connected.
The parties
[3] There are 11 pursuers. The first pursuer is a limited company who own and lease public houses. They are part of the Scottish & Newcastle group of companies. They were at the material time the proprietor of the public house known as Archie’s Bar which was situated on the ground floor and basement of the tenement. The eleventh pursuer was the tenant of Archie’s Bar. The other pursuers were all proprietors of individual properties within the tenement. The defenders are Scottish Power Limited who supplied electricity to the tenement.
The case for the pursuers
[4] The pursuers allege that the fire was an electrical fault. It either started in the defenders’ equipment as a result of water ingress or it started as a result of a fault in either the defenders’ or consumers’ electrical equipment. In either case the pursuers say that in exercise of their duty of care the defenders ought to have cut the cable supplying electricity to the tenement. If they had done they say that the fire would not have occurred. The defenders accept that they owed a duty of care but deny any liability.
Damages
[5] The parties agreed the question of damages in the event of liability being established and subject to pleas of contributory negligence by the first and eleventh pursuers as at 26 May 2015 as follows:
“(a) first pursuers: £894,588;
(b) second pursuers: £777,420;
(c) third pursuer: £25,950;
(d) fourth pursuer: £25,950;
(e) fifth pursuers: £167,868;
(f) sixth pursuer: £196,500;
(g) seventh pursuers: £95,826;
(h) eighth pursuers: £135,078;
(i) ninth pursuer: £46,542; and
(j) tenth pursuers: £61,278.”
[6] Interest is to run at the rate of 4% a year from 26 May 2015 to the date of decree and at 8% per annum from that date until payment.
[7] The parties also agreed that the defenders should be assoilzied from the eleventh conclusion of the summons.
Description of the tenement
[8] Waterloo Street is situated in the centre of Glasgow. It runs east to west. At the east end is Central station. Wellington Street runs north to south. The tenement was a typical Glasgow stone tenement built sometime in the nineteenth century. It faced north onto Waterloo Street. To the east and abutting it was a red sandstone building known as Waterloo Chambers. To the west was Wellington Street. To the south was Wellington Street Lane. Not including the basement the tenement was four storeys high. There was some confusion in the evidence as to whether some of the other properties were occupied and if so whether any were residential. Nothing turns on this point. The tenement was an L shape with the two legs of the L fronting Waterloo Street and Wellington Street. However there was a single storey extension to the rear of the premises bounded by Wellington Street Lane on the south and Waterloo Chambers to the east. Accordingly at ground level the building formed a rectangle.
[9] The principal premises within the tenement were licensed premises known as Archie’s Bar. It was situated on the ground and basement of the tenement. The main entrance was on Waterloo Street but it also had a frontage and an entrance on Wellington Street. Another licensed premises, Rabbie Burns Tavern occupied a substantial part, if not the whole, of the first floor. Entrance to Rabbie Burns Tavern was taken from the ground floor on the corner of Waterloo Street and Wellington Street in the north east corner of the tenement. As indicated above these premises were vacant at the time of these events. The ground floor of Archie’s Bar formed an L shape around the ground floor entrance of Rabbie Burns Tavern. Archie’s Bar extended to the rear of the tenement into the single storey extension on Wellington Street Lane. There was also a fire exit in the lane which served the basement. Between the fire exit and the corner of Wellington Street Lane and Wellington Street there was a beer hatch. It was situated at ground level. There were a number of vents beside the beer hatch also at ground level. In particular there were two situated between the beer hatch and the corner of the building at Wellington Street Lane and Wellington Street.
[10] The main bar in Archie’s Bar was on the ground floor. There were two distinct parts to it. The eastern part extended from the door at Waterloo Street to the rear at Wellington Street Lane. Entry could be taken from the street into a small hall or lobby. From there one could turn slightly left and through into the bar or go straight ahead downstairs to the basement. On the ground floor level there was a seating area towards the front, then the bar and beyond a food collection area and toilets. These facilities were at the Wellington Street Lane end of the premises. Together these formed what witnesses refer to as the “Waterloo Street side”.
[11] The other, and greater, part of the ground floor bar was situated in the south west of the ground floor of the tenement. This was referred to as the “Wellington Street side”. Access could be taken either from the Waterloo Street side or directly from Wellington Street. Separate toilets served this side. It was possible to operate each side separately. Indeed during refurbishment in 2003 the Waterloo Street side had been open while the Wellington Street side was closed for some 10 weeks.
[12] In the basement there was a function room with a bar. Beyond that was a kitchen which was underneath the extension in the south east corner. To the west of that was a corridor (sometimes referred to as the “kitchen walkway”) and beyond that was a chiller and a corridor leading to an office and then into a bottle store and beer cellar. The bottle store was a corridor which ran south along the Wellington Street frontage and then turned east along Wellington Street Lane thus forming another L shape. At the end of the corridor was a door on the left hand side leading into the beer cellar. Opposite on the right hand side was the beer hatch.
The electrical equipment
[13] The main electrical equipment was in the basement on the southern wall extending from the south west corner along towards the beer hatch. A photograph taken before the fire shows a bank of electrical equipment. It appears that some of the equipment may have been redundant at the time of the incident. The supplier’s main cable entered from Wellington Street near the corner with Wellington Street Lane. From there it went into a cable head (sometimes called a “cut out”) and which was fused. From there a number of cables, known as tails, went through a metering panel into the customers main switch. The main cable into the premises, cable head, tails and metering panel were all the property of the defenders. All the other electrical equipment in the premises belonged to the customer. The cable head and metering panel were on the extreme right of the wall, that is in the south west corner. The customer’s equipment was to the left. It appears that the metering panel and the cable head were both mounted on wooden boards fixed directly to the wall. The cable head was above the metering panel. The customer’s equipment on the other hand was mounted on wooden boards which stood proud of the wall.
[14] The cable head is believed to have been destroyed in the fire. The pursuers produced one which was generally accepted to be very similar to the one in Archie’s Bar. The cable entered one of three portholes in the bottom of the cable head. In this case it is accepted that it entered the right hand porthole. The cable has four conductors. Three terminate in three phases – red, yellow and blue. The fourth terminates and is earthed in a mutual block on the right hand side. The cable head contains three fuses – one for each phase. At the top of each fuse is a terminal. The tails are attached to the terminals. The tails exit the cable head through the top.
[15] The fuses are separated by a barrier made of paxolin which is a type of phenolic material. The purpose of the barrier is to ensure that if there is a flashover protection is given to the other phases. It is an insulator. However according to Stephen Braund, an expert fire investigator, it has its weaknesses. Under high temperature it can degrade. It can burn or be carbonised and turn into a conductor of electricity. Carbonisation is the formation of material based on paper or phenol when degraded by heat or fire.
[16] The terminals are screwed into blocks of insulation made of Bakelite. It has similar properties to paxolin. It is also a good insulator if clean and dry. However once it begins to deteriorate it can be damaged. That may in turn lead to carbonisation and allow for discharges across potentials. Insulation is required to provide a barrier between the earthed case and any of the live terminals.
[17] Any...
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