Trebor Bassett Holdings Ltd and Another v Adt Fire and Security Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Coulson |
| Judgment Date | 22 July 2011 |
| Neutral Citation | [2011] EWHC 1936 (TCC) |
| Docket Number | Case No: HT-09-267 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 22 July 2011 |
[2011] EWHC 1936 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Coulson
Case No: HT-09-267
Mr Roger ter Haar QC & Mr Ben Quiney (instructed by Beachcroft LLP) for the Claimants
Mr Nicholas Dennys QC & Ms Dominique Rawley (instructed by Eversheds) for the Defendant
Hearing dates: 7, 8, 9, 10, 11, 14, 15, 16, 17, 21, 22, 23 & 24 March, 5, 6 & 7 April, 5 th July 2011
A: INTRODUCTION
The catastrophic fire which destroyed the claimants' 1 large confectionery factory in Pontefract on the evening of 8 June 2005 came as something of a surprise to everyone involved. It was thought by those present, and by the Fire Brigade when they first arrived, that the earlier fire which had broken out in the 'oil pop' popcorn production area had been satisfactorily extinguished. But it soon became apparent that this was incorrect, and 40 minutes after the alarm was sounded, the fire was so well-set that the Fire Brigade decided that it could not be aggressively fought.
That the development of the fire was unexpected has one significant consequence for this litigation: it means that, as the fire experts agreed, each of the three different theories as to how the fire spread was neither obvious nor straightforward. Repeatedly in the evidence, each of the competing theories as to fire spread was described as no more that merely possible, and the experts spent much of their time arguing for one theory or another on the basis that their favoured theory was less improbable than the alternatives.
Ironically, an analysis of the events surrounding the original contract between the claimants and the defendant for the supply of a CO2 fire suppression system for the popcorn machinery (but not the 'oil pop' production area as a whole); the events at the time of the installation of that system and thereafter; and the wider evidence as to the health and safety regime at the factory, and the claimants' fire prevention measures in particular, leads inexorably to the conclusion that, whilst the occurrence of this particular fire on this particular evening might have been surprising, the fact that a large fire originated in the 'oil pop' popcorn production area, and went on to destroy most of the claimants' huge factory building in a very short time, was all too predictable. The size of the damages claim in these proceedings, put at over £100 million, only increases the sense of missed opportunity that hangs over the whole story.
The building that was largely destroyed in the fire was called the New Manufacturing Unit ('NMU') located at Ferrybridge Road, Pontefract, in West Yorkshire. These premises were regularly referred to as 'Monkhill', although that was also the name by which the second claimant was commonly known. At the site there were two production buildings, an old manufacturing unit dating from the 1920s, and the NMU. The NMU had originally been built in 1989 but, in 1997, it was the subject of a major extension. It is common ground that the fire started in the extension to the NMU, in a part which, when it was built, was called Production Area B but which, until 2003, was apparently just used for storage.
In 2003, the claimants decided to move their existing 'oil pop' popcorn production facility in Leeds to Production Area B in the extension of the NMU. Both budget and timetable were tight. The existing popcorn production unit was protected in Leeds by
a wet chemical system over the cooking pans (where the popcorn was heated in oil so that it 'popped'), and a CO2 suppression system in the elevator, which carried the popcorn in buckets up and across part of the factory so that it could be dropped into a hopper (also covered by the CO2 suppression system), from which the sleeves of popcorn were then filled manuallyBecause ADT, the defendant, already provided fire protection systems at the NMU, they were engaged by the second claimant (whom I shall call "Monkhill") to provide the wet chemical system and the CO2 suppression system for the two new 'oil pop' popcorn production lines at the NMU. The contract was agreed in September 2003. There is a dispute over the relevant terms and conditions. There is no dispute that the CO2 element of the contract was worth a total of about £9,000 for the two lines.
The CO2 suppression system was installed in October/November 2003. Production started before the system had been fully tested and commissioned. Commissioning was completed in December 2003. Although, in early 2004, an additional fire detection system supplied by the defendant, known as VESDA, was considered by the claimants as a way of minimising the risk that burning popcorn might get onto the conveyor from the pans, it was not ultimately proceeded with. Similarly, one significant recommendation made by the claimants' own Group Risk Department (both before and after the contract between the parties), for the installation of sprinklers into the NMU, was not followed, whilst a critical assumption about the existence of fire segregation turned out to be entirely misplaced. These errors and omissions form an important part of this case.
During 2004, changes were made to both the hopper and the elevator. The defendant had some limited involvement in those changes. There were also other events, including a fire in the hopper in June 2004, on which the defendant now relies in these proceedings, not least to support its allegations of a break in the chain of causation. Generally, very few of the operatives in the 'oil pop' popcorn production area were aware that the CO2 suppression system protecting the elevator and the hopper could be manually activated, and even fewer knew how that manual activation was to be triggered.
On the evening of 8 June 2005, an operative, Alan Hardcastle, was filling the large plastic containers, known as sleeves, at the C Line hopper. He suddenly became aware that the sleeve that he was filling was melting because of the burning popcorn within it. He raised the alarm. The shift manager, Dave Carter, ran across to the C Line hopper and went up the ladder to the gantry. He looked down into the hopper and saw that the popcorn was on fire. Flames were coming to the top of the hopper. He shouted for the fire hose and the conveyor was switched off. He doused the hopper with water and, within a few seconds, he put out the fire.
Meanwhile, following a procedure which the operatives had used before (and which had been approved by the managers), Mr Hardcastle released some of the burning popcorn from the bottom of the hopper. It is estimated that a total of about three sleeves of burning popcorn were deposited on the floor before the hatch jammed, which may have been as much as 180 litres of popcorn altogether. The operatives then endeavoured to stamp out the burning popcorn on the factory floor. When the fire alarm sounded, the operatives thought that the fire had been put out, and they left the 'oil pop' production area, went into the next door packaging hall, and exited the NMU.
When the Fire Brigade arrived, they were told that the fire had been put out. There was then a curious episode, explored in greater detail below, in which the Fire Brigade did not immediately begin the fire-fighting operation, but instead sought a key to a door that led into the back of the 'oil pop' area. This involved a security guard being called and, so it appears on the CCTV footage, potentially valuable time was lost. At about 8.52pm, it became apparent that there was a serious fire, and smoke could be seen venting at the eaves on the south wall of the NMU. Very shortly thereafter, at about 9.08pm, it became apparent that the fire had taken such a firm hold that the Fire Brigade would adopt only a defensive attitude towards it. In essence, this meant that the fire was fought from the outside only, allowing it to rage through the empty NMU but keeping it away from any adjoining buildings. In consequence, the whole building, and the machinery within, was destroyed.
There are three basic alternatives to explain the rapid spread of the fire. The defendant puts forward two different theories. One is that the operatives failed to put out the burning popcorn by stamping it out on the floor, and that pieces of burning popcorn, which had been released from the hopper and not extinguished, set fire to boxes and other combustible material in the 'oil pop' production area. The fire then spread to the south wall where combustible materials were tightly packed on racking. The other theory put forward by the defendant is that, unbeknownst to him, Mr Hardcastle had already put some smouldering popcorn into a sleeve which had then been put in a box and moved towards the south wall. This theory postulates that, just after the operatives left the building, the smouldering popcorn in the filled sleeve ignited and set fire to the box and subsequently the other combustible material on the south wall.
The claimants' theory as to the spread of fire is that, before Mr Carter reached the gantry and put the fire out with the hose, the flames in the hopper had extended upwards, beyond the top of the hopper, and ignited one of the buckets in the C Line elevator. It is then said that the fire spread through the plastic components of the C Line elevator, with molten plastic dripping out of...
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