Six Continents Retail Ltd v Carford Catering Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE LAWS,LORD JUSTICE BUXTON,THE VICE-CHANCELLOR
Judgment Date05 November 2003
Neutral Citation[2003] EWCA Civ 1790
CourtCourt of Appeal (Civil Division)
Docket NumberA1/2003/1825 (A)
Date05 November 2003
Six Continents Retail LTD
Appellants/Claimants
and
Carford Catering LTD First Defendants And Part 20 Defendants/first Respondents
and
R Bristoll LTD Second Defendants And Part 20
Claimants/Second Respondents

[2003] EWCA Civ 1790

Before:

The Vice-chancellor

Sir Andrew Morritt

Lord Justice Buxton

Lord Justice Laws

A1/2003/1825 (A)

A1/2003/1825

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM TECHNOLOGY AND CONSTRUCTION COURT

BIRMINGHAM DISTRICT REGISTRY

(HER HONOUR JUDGE KIRKHAM)

MR STEPHEN BOWLES QC (instructed by Eaton Ryan Taylor of Birmingham) appeared on behalf of the Appellants

MR G SAMPSON (instructed by Beachcroft Wansbroughs of Birmingham) appeared on behalf of the First Respondents

The Second Respondent was not represented and did not attend

LORD JUSTICE LAWS
1

This is an appeal brought with permission granted by Lord Justice Potter on 16 September 2003 against the decision of Her Honour Judge Kirkham, sitting in the Technology and Construction Court at Birmingham on 29 July 2003, when she dismissed the appellants' claim for damages against the respondent.

2

The appellants were owners and operators of the Timberdine Restaurant in Broomhall, Worcestershire. It was what was called a Harvester restaurant. On 9 March 1997 there was a fire at the restaurant. It began behind a gas fire chicken rotisserie in a timber stud partition wall to which the rotisserie had been fixed. The fire caused property damage reflected in the sum of £54,974.39 in due course agreed between the parties as the appropriate quantum of damage subject to interest. The trial before Her Honour Judge Kirkham and this appeal have been concerned only with the issue of liability arising in the action.

3

In 1996 the appellants undertook works of refurbishment in the restaurant to turn it into a Harvester restaurant. They engaged architects, and a contractor, Stan Randell & Co. The appellants had adopted templates which had been produced for the design of kitchens intended to be used in Harvester restaurants. These had been designed by a firm called Advance Catering Equipment and had been adapted to suit the Timberdine building by the appellants' architects Symms Revill.

4

The respondents and first defendants in the action, Carford Catering Equipment Ltd, were engaged by the appellants as project managers for the design and installation of the kitchen catering equipment. I must deal in due course with the relevant provisions of the contract between the appellants and the respondents. The appellants specified the kitchen equipment they wanted and identified the supplier. The respondents prepared the necessary documents to order the equipment. It included a Libra spit roast rotisserie to be supplied by R Bristoll Designs Ltd who were to become the second defendants in the action. The rotisserie was delivered to the restaurant and the respondents arranged for its installation, in which activity Bristoll were not involved. It could be table mounted or hung on wall brackets. It was decided that it should be hung. It was delivered in July 1996. The respondents thereafter arranged for it to be hung on wall brackets which were fixed to a wall designed by the architects. That was a timber stud wall faced with plywood; the plywood was then tiled.

5

Practical completion took place on 12 August 1996 and the restaurant opened for business on 15 September 1996. This type of rotisserie had been installed in a number of Harvester restaurants. During 1996 Mr Bristoll of R Bristoll Designs Ltd became aware of a recurring problem with the rotisserie burners. Apparently they were failing to generate sufficient distribution of heat. This could be dealt with by means of a modest modification. At the beginning of January 1997 Mr Bristoll received a call from the respondents requiring Bristoll under the terms of the contractual warranty issued by them to investigate a complaint from the Timberdine Restaurant relating to the rotisserie there. It was concerned with the problem with which Mr Bristoll was by then familiar, that of insufficient heat distribution.

6

Mr Bristoll himself was not qualified or registered to undertake work on the rotisserie. He went to the Timberdine Restaurant on 7 January 1997 accompanied by Mr Soley, a gas engineer from Acorn Catering Equipment who were registered gas engineers recommended by the respondents. At the premises Mr Bristoll and Mr Soley together lifted the rotisserie off the wall. It was apparent to them that three tiles on the wall behind the rotisserie had fallen and become wedged behind the unit. These three tiles were left in the kitchen. Mr Soley carried out the necessary modification to the burners and then tested the rotisserie. He and Mr Bristoll lifted it back on to the wall brackets. The whole job only took about an hour. At the trial there was to be a contested issue of fact as to whether there were visible signs of burning when Mr Bristoll and Mr Soley took the unit off the wall on 7 January 1997. Mr Bristoll said there were not. Mr Soley had said in a witness statement that there were. The judge found that there were not (paragraph 35 of her judgment). There is no challenge to that finding.

7

On the same day, 7 January 1997, Mr Bristoll sent a fax message to Mr Richard Weller who at the time was the respondents' contract manager. That message included the following:

"The spit roast unit is mounted on a partition wall (not solid) and 3 tiles between and just above the 2 wall brackets had come away from the wall —we do not know whether this was due to a) deflection of the wall due to the weight of the unit —or b) heat effect from the burners.

If it was heat we recommend fitting a stainless sheet at the back of the unit to prevent a fire risk. Note —We did not replace these tiles."

8

On 21 January 1997 Mr Weller wrote to Mr White who was a project manager at the appellants' construction department. The letter included this:

"Please find enclosed a copy of the engineer's report after a recent service call at the above house on the spit roaster."

I interpolate, that is reference to the fax of 7 January.

"Could you please advise us what action, if any, you wish us/the builders to take."

Mr White's evidence was that he did not see this letter but I understand it to be undisputed that the appellants received it. They did not however reply to it or give any instructions whether to the respondents or anyone else in response to what it said.

9

There are one or two further events I should describe before coming to the fire. There was a three-months defects review meeting held on 5 February 1997 and attended by Mr White, Mr Humber of the respondents and representatives of Stan Randell and Symms Revill. An action list was drawn up which included a requirement to re-fix loose tiles behind the rotisserie. At some point, as the judge recorded, someone placed kitchen foil at the back of the rotisserie. The judge found (at paragraph 30) that the three tiles were replaced and the foil added at some time between the defects meeting on 5 February 1997 and the fire.

10

The fire took place on 9 March 1997, beginning in the timber stud wall on which the rotisserie was hung. The judge went into the issue of the cause of the fire in some detail. She noted (at paragraph 15) the undisputed fact that Bristoll had -

"15 ….. supplied installation and servicing instructions [which] provided that -

'under no circumstances must the unit be fixed directly on to a combustible or heat sensitive surface."

She referred also (paragraph 16) to guidance contained in what was called Approved Document J issued pursuant to building regulations and concerning the fitting of heat producing appliances. Paragraph 3–20 of that document was potentially material to the facts of this case. It provided that the back of the appliance should be separated from any combustible surface by (a) a shield of non-combustible material at least 25mm thick or (b) an air space of at least 75mm. The rotisserie at the Timberline was fixed to the wall with a gap of only 25mm and without any shield of non-combustible material.

11

The judge referred to evidence as to the possibility that there had been a minor gas leak in the pipework which had burned a hole in the wall. She recounted testimony given by the single joint expert Mr Anderson of the well known firm of Burgoynes. Her conclusion as to what I would call factual causation was as follows (at paragraph 32):

"32 Mr Anderson's starting point is that the heat from the rotisserie caused the fire. It appears that the heat was causing tiles to become detached before 7 January 1997. After that date, the heat output increased, because the burners had been adjusted in order to increase the heat. At some point thereafter, foil was added. That further increased the heat from the unit. And at some point a gas leak had also caused the temperature to increase. But Mr Anderson cannot quantify the effect of the additional factors. I conclude that, whilst these additional factors were significant, there was a risk of fire by reason of the way in which the rotisserie had been fixed to a combustible wall and without the necessary clearance or heat shield. Had the unit been mounted with the required clearance, there would have been a significant reduction in the amount of heat applied to the wall. It seems to me likely that the heat generated by the rotisserie was the cause of the fire."

12

The appellants brought proceedings against the respondents in contract and in negligence and, by amendment, added Bristoll as second defendants. The case against Bristoll was to...

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