Smith and Others v South Eastern Power Networks Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 17 September 2012 |
| Neutral Citation | [2012] EWHC 2541 (TCC) |
| Docket Number | Case Nos: HT-10-95, HT-10-210, HT-10-??, |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 17 September 2012 |
[2012] EWHC 2541 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Akenhead
Case Nos: HT-10-95, HT-10-210, HT-10-??,
HT-10-427 and HT-11-163
Michael Kent QC, Simon Howarth and Jack Macaulay (instructed by DAC Beachcrofts LLP) for the Claimant
Paul Reed QC and Sarah McCann (instructed by Greenwoods) for the Defendants
Hearing dates: 1,2, 8–10, 14–17 and 29 May 2012
These five Claims are for damages for negligence said to relate to fires in five sets of premises, all of which started as a result of "resistive heating" emanating in what are called "cut-out assemblies". Where mains power is brought by cable into premises, it first goes into a cut-out assembly which is in effect a junction box with one or more fuses in it; from that cut-out assembly, cables are then run to the electrical meter, where the amount of electricity consumed in the premises is measured and from where the electricity passes into the premises. Since the privatisation of the electrical industry, responsibility is now divided between distributors (responsible for the bringing of power into premises and for the cut-out assemblies) and the suppliers (who charge the customers for electricity supply and who are responsible for the meters). The five Claims are in the nature of "test cases", albeit that they do not amount to Group litigation, and the overriding general issue relates to the scope and extent in practice of the tortious responsibility of the Defendant distributors, whilst there are also major issues on causation in the five cases. The duty of care owed by the distributors is, properly, admitted. The scope of the dispute involves a determination of what, if anything, the Defendants should have done by way of inspection, maintenance, replacement or monitoring of the cut-out assemblies. The generic liability issues have acquired the acronym "RIMISSE" which stands for "Repair, Installation, Maintenance and Inspection of Supply Side Equipment".
The Court was originally asked to try more than these five cases but for various reasons this trial has been concerned with no more than the five cases. However, there are up to 8 (and possibly more) other cases in which the parties will be extremely interested in the outcome.
The Facts of the Five Cases
I will deal with the facts of each of the five cases in the order in which the Claims were issued. It is common ground that all the fires started in or immediately around the cut-out assemblies as a result of "resistive heating", which results in very high temperatures which then cause ignition of anything which is close by and flammable.
The Smith Case
Mr Paul Smith and Mrs Bennington were the freehold owners of 1–3, Queen Street, 1b-1c Park Terrace East, Horsham, West Sussex. The ground floor was leased out as a showroom and workshop whilst the top floor contained three flats. Messrs (Andrew) Smith and Durrant trading as the Horsham Piano Centre ran a business from this property making and selling pianos and were consumers of electricity from what is now South Eastern Power Networks PLC ("South Eastern Power"), the distributor of electricity and, as such, the successor of previous distributors. The cut-out assembly was located in the electrical cupboard to the front of the property on the ground floor.
On 16 February 2007, a meter reader (engaged by South Eastern Power) attended the property to take a reading from the electricity meter but did not note or report any fault or deficiency. At 17:45 hours on the same day, Messrs (Andrew) Smith and Durrant left the property, turning off all the peak rate electrical equipment including lights and the fridge. However there were eight off peak electrical night storage radiators which were drawing electricity.
At approximately 7 am the following morning (17 February 2007), the paperboy noticed fire through the front windows. At 7.09 the Fire Service was called and duly attended, putting out the fire. The property suffered severe fire damage particularly around the electrical cupboard but there was severe smoke damage through the entire ground floor and some smoke contamination of one of the flats.
The fire started in the cut-out assembly but the experts are agreed that it is not clear whether this was in the incoming or outgoing terminal fuse blade connections. The experts do agree that it is likely that there would have been visible evidence to the meter reader of a possible impending conflagration on the day preceding the fire but, if the resistive heating fault had developed at the incoming terminal (on the underside of the cut-out assembly), it would have been obscured from view by the cable box enclosure and visible signs of failure might not have been apparent. The cut-out assembly was probably manufactured sometime before the 1980s.
The Shaheen Case
Mrs Shaheen owned the freehold of 26 Dicey Avenue, London NW2 where she lived with her husband and two children. London Power Networks PLC ("London Power") was the power distributor (or more accurately the statutory successor to the previous organisation with responsibility for power distribution). The electricity supply equipment was located in the study and it housed both London Power's cut-out assembly and the meter equipment. The cut-out assembly was installed in 1962.
The meter reader (not employed by London Power) visited to read the meter on 13 December 2006. Nothing untoward was noted or reported.
On 26 December 2006 at about 2.55 pm the electricity supply at this property failed. Mrs Shaheen went into the hallway and found that it was filled with smoke emanating from the study. Unsurprisingly she evacuated the property with her daughters and called the Fire Service who arrived at about 3 pm and put out the fire. The fire was caused by resistive heating at the outgoing terminal connection of the cut-out assembly. It is unclear whether or not there would have been visible evidence of any resistive heating fault at the time when the meter reader visited.
The Rice Case
Mr and the late Mrs Rice were the owners and occupiers of Sapphire Kennels, Headcorn Road, Sutton Valence, in Kent. The premises comprises two parts, one, a five bedroom detached bungalow, in which they lived and the other part a range of single story outbuildings which comprised the kennels. The bungalow and the kennels had separate supplies of electricity but both supplies were invoiced to a business account and paid for on a business tariff. South Eastern was the power distributor. The meter had been read on 16 April 2006, some seven months before the fire.
On the evening or 4 November 2006 Mr and Mrs Rice were in the bungalow watching television in the living room and at approximately 21.40 they noticed sparks coming from the electrical equipment which was in a unit in the front left-hand corner of the living room; a fire broke out. Although Mr Rice tried to extinguish the fire he was unable to do so and all the occupants were evacuated. The fire brigade arrived and extinguished the fire. There was extensive damage to the bungalow but no damage to the kennels. The fire was caused by resistive heating at the cut-out assembly on the incoming terminal or fuse blade connection. It is unlikely that relevant visible evidence of impending failure would have been apparent to the meter reader some seven months before. It is unclear what the age of the cut-out assembly was albeit it might date back to the 1960s or 1970s.
The Surtees Case
Mr and Mrs Surtees were the freehold owners and occupiers of residential premises at 44, Withdean Road, Brighton. The electricity equipment was in the garage. South Eastern was the power distributor. There are no service records available to indicate how old the cut-out assembly was but the service cable bringing power in is thought to have been at least 30 years old. On 3 February 2009, a meter reader attended the installation. It is common ground that it is unlikely that visible evidence of any impending problem would have been visible at the time because the failing connection was at the incoming side and damage would most probably have been hidden from view by the cable box enclosure.
On 8 February 2009, early in the morning at about 6.20 am, Mr Surtees noticed fire emanating mostly from that equipment in particular in the vicinity of the cut-out assembly. The fire was caused by resistive heating at the cut-out assembly connection on the incoming terminal or fuse blade connection. There was extensive and substantial damage to the house and the garage.
The Mead Case
Mrs Mead is the owner of retail premises at 5, Eld Lane, Colchester, Essex, which were let to Monsoon Holdings Ltd for retail purposes. Eastern Power Networks Plc ("Eastern Power") was the power distributor. There was an electricity supply cupboard within the premises. The cut-out assembly was installed in 1975. The meter was read some six weeks before the fire on 23 September 2004. It is unlikely that visible evidence would have been apparent to the meter reader at that time because the connection which failed ultimately was at the incoming side and any damage would most probably have been hidden from view by the cable box enclosure.
On 13 November 2004 the premises...
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