Stoke-on-Trent College v Pelican Rouge Coffee Solutions Group Ltd
| Jurisdiction | England & Wales |
| Judge | Stephen Davies,His Honour Judge |
| Judgment Date | 09 November 2017 |
| Neutral Citation | [2017] EWHC 2829 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: B90MA096 |
| Date | 09 November 2017 |
[2017] EWHC 2829 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
TECHONOLOGY AND CONSTRUCTION COURT
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
His Honour Judge Stephen Davies
SITTING AS A JUDGE OF THE HIGH COURT
Case No: B90MA096
Michael Davie QC (instructed by Clyde & Co LLP, Manchester) for the Claimant
Jonathan Mitchell (instructed by Kennedys Law LLP, Sheffield) for the Defendant
Hearing dates: 9, 10, 11, 12, 17 October 2017
Draft judgment circulated: 2 November 2017
Contents
| 1 | Introduction | 1 – 4 |
| 2 | The witnesses | 5 – 10 |
| 3 | The facts: | 11 |
| 3.1 | The site | 12 – 20 |
| 3.2 | The relationship between the parties | 21 – 33 |
| 3.3 | The drinks vending machine | 34 – 43 |
| 3.4 | Maintenance visits in December 2009 | 44 – 64 |
| 3.5 | The fire – the CCTV and other evidence | 65 – 86 |
| 4 | The cause of the fire: | |
| 4.1 | The competing causes | 87 – 90 |
| 4.2 | The defendant's criticisms of the claimant's case | 91 – 107 |
| 4.3 | The claimant's criticisms of the defendant's case | 108 – 112 |
| 4.4 | Cause of the fire – discussion and conclusions | 113 – 118 |
| 5 | Breach of the contractual duties owed by the defendant to the claimant – discussion and conclusions | 119 – 123 |
| 5.1 | Breach of contractual duty of care | 124 – 130 |
| 5.2 | Breach of contractual duty to supply goods of satisfactory quality | 131 – 135 |
| 5.3 | Breach of other contractual duties | 136 |
| 6 | Breach of statutory duty under the Electrical Equipment (Safety) Regulations 1994 | 137 – 160 |
| 7 | Causation | 161 – 168 |
| 8 | Conclusions | 169 – 170 |
Introduction
This is a fire damage case where the principal issue is whether a fire which occurred in the early hours of 23 December 2009 at the Stoke on Trent College Taylor Building started in a drinks vending machine (" drinks vending machine") located in an alcove in a reception area in that building or in a closed ceiling void channel (" ceiling void") directly above the drinks vending machine. If the fire started in the drinks vending machine then the claimant says that the defendant, as the supplier, operator and maintainer of the drinks vending machine, is liable for the fire for breach of contractual, statutory or tortious duty. If the fire started in the ceiling void then there is no question of the defendant bearing any responsibility for the fire.
Each possible fire seat is propounded by a highly competent and experienced expert fire investigator. Each of those two experts has been subjected to skilful cross-examination by counsel for the other party, who have also each submitted persuasive written and oral submissions in support of the cases advanced by their respective clients. I must now decide whether or not the claimant has satisfied me that it is more likely than not that the fire started in the drinks vending machine and, if so, whether the defendant is legally liable for that fire. The quantum of the claim has been agreed, subject to liability, in the sum of £265,008.75.
In making my decision I must have regard to the factual evidence submitted by the parties, to the expert evidence and to the documentary evidence. Perhaps the most important documentary evidence is from a CCTV camera located in a room adjacent to the reception area, which the defendant's expert Mr Jones described in the joint statement of experts as a "game changer". The experts fundamentally disagree as to the conclusions to be drawn from that CCTV evidence and I must, therefore, decide whose analysis of the CCTV evidence is the more plausible.
If I find for the claimant as regards the seat of the fire, then I must go on to consider whether or not it has established that the defendant was in breach of contractual, statutory or tortious duty owed to the claimant and also whether or not the fire was caused by any such proven breach. If I am satisfied that the fire was caused by a lack of proper maintenance by the defendant, then these issues are relatively straightforward. If, however, I am satisfied that the fire began in the drinks vending machine but that there was no lack of proper maintenance then questions arise as to: (i) the nature and extent of the contractual obligations owed by the defendant, including those said to be owed under the Supply of Goods and Services Act 1982 (" 1982 Act"); and (ii) the nature and extent of the statutory obligations owed by the defendant under the Electrical Equipment (Safety) Regulations 1994 (" 1994 Regulations").
The witnesses
The claimant called five factual witnesses. They were all clearly honest and reliable within the limits of their recollection concerning events going back 8 years. Their evidence was not of critical importance, with the potential exception of one piece of evidence from one witness, Mr Tunnicliffe, until recently the claimant's site manager. His evidence included his recollection that shortly after the fire one of the defendant's engineers, who he had never previously met and cannot identify, attended to inspect the remains of the drinks vending machine and commented that a solenoid had stuck, causing the boiler to continue to be operated even after the water had achieved the desired temperature, which had caused the fire. There was no other evidence, documentary or oral, from either side which corroborated that there was such a visit, let alone that this was believed to be the cause of the fire by anyone at the time, and it had not been mentioned by Mr Tunnicliffe at the time to anyone else who could corroborate him. Neither expert supported this as a possible cause of the fire, which is not surprising since: (a) the evidence from the defendant's witness Mr Ryles is that there was a failsafe device to isolate the boiler circuit to prevent overheating in such circumstances; (b) the experts found no evidence of any damage to the heater on their joint inspection. In the circumstances, I am confident either that the visit and the conversation did not happen and that Mr Tunnicliffe is simply wrong about this or, if it did happen, it can only have been a chance attendance and observation by an unqualified service operator upon whose opinion no weight can be attached.
The defendant called three factual witnesses. Again, they were all in my view clearly honest and reliable within the limits of their recollection. Only one, Mr Anderson, had been directly involved with the drinks vending machine the subject of the case, since he had attended to investigate a reported leak in the drinks vending machine on the day of the fire. I accept Mr Davie's criticism that all three appeared to have had their witness statements drafted for them so that, at least in some respects, they read rather more favourably to the defendant's case than the oral evidence which they gave under cross-examination. I do not consider that any of the witnesses is personally at fault in this respect or that this materially affects my view as to their essential credibility.
As I have said both parties called highly competent and experienced fire investigation experts; the claimant called Mr Braund and the defendant called Mr Jones, who are both electrical engineers by qualification and initial occupation and also both vastly experienced in fire investigations. Unlike Mr Jones Mr Braund has no formal qualifications in fire investigation recounted on his CV and Mr Braund also has lesser length of experience in fire investigation, but I do not regard either factor as diminishing his expertise or enhancing that of Mr Jones to any significant degree; I am satisfied that they are both equally expert in the field. Mr Braund had attended the site the day after the fire and taken a number of photographs whereas Mr Jones did not have the opportunity of attending until a later stage after remedial works had been undertaken, although he had been able to view the photographs taken by Mr Braund. They had both undertaken inspections of the damaged drinks vending machine. Mr Jones had examined an equivalent undamaged version of the machine and taken photographs, which Mr Braund had been able to examine. They had both produced initial reports before proceedings had been issued and, as directed by the court, had held joint discussions and produced a joint statement before producing supplemental reports in relation to the matters in issue. There had also been a further exchange of letters addressing a further point raised by Mr Jones shortly before trial.
Both experts were, as I have already said, cross-examined in detail and with skill. The essential criticism made of Mr Braund by Mr Mitchell for the defendant was that he had arrived at the conclusion very early on in his investigation that the fire had started in the drinks vending machine, which had led to his adopting a blinkered approach to his investigations and his considerations. The essential criticism made of Mr Jones by Mr Davie QC for the claimant was that he was over willing to propound theories without sufficient evidence or deliberation behind them and over reliant upon his own assessment of how a fire would behave in particular circumstances when, as argued by Mr Davie fires were liable to develop unpredictably.
Mr Braund gave evidence in what I would describe as a very careful and precise manner. As he said at one point in his cross-examination he was unwilling to come up with elaborate theories without good physical evidence. I was not persuaded that his investigation had been inadequate in all of the circumstances or that he had adopted a blinkered approach. In contrast Mr Jones was far more willing to give explanations for what he believed had...
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