United Marine Aggregates Ltd v G M Welding & Engineering Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice McFarlane,Lord Justice Rix |
| Judgment Date | 14 May 2013 |
| Neutral Citation | [2013] EWCA Civ 516 |
| Docket Number | Case No: A1/2012/1173 & A1/2012/0960 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 2013 |
[2013] EWCA Civ 516
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHOLOGY AND CONSTRUCTION COURT
Mr Justice Edwards-Stuart
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Lord Justice Tomlinson
and
Lord Justice McFarlane
Case No: A1/2012/1173 & A1/2012/0960
and
Ronald Walker QC (instructed by Fisher Scoggings Waters LLP) for the Appellant
Stuart Hornett (instructed by Lefevre LLP) for the Respondent
Philip Shepherd QC (instructed by Kennedys Law LLP) for the Part 20 Defendant
Hearing date : 21 January 2013
Approved Judgment
The Appellant, United Marine Aggregates Limited, Claimant at trial, to which I shall refer hereafter as "UMA", owns a large aggregate processing plant on the Thames near Greenwich. On Sunday 3 February 2008 fire broke out in a part of the plant known as the screening house. The first sign of the fire was smoke observed at about 09.50 emanating from the top of the screening house. Earlier that morning two employees of the Respondent, GM Welding and Engineering Limited, Defendant at trial, to which I shall refer hereafter as "GM", had been carrying out hot works in the screening house. In fact the relevant hot work had started shortly before 08.00 and had been completed shortly before 08.15. Shortly before 09.30 the two employees of GM, Messrs Smith and Percival, left the screening house to go for breakfast. It was whilst they were at breakfast just off the site that the fire manifested itself. It caused extensive damage.
The Appellant alleged at trial that the fire was caused by breaches of contractual and tortious duty owed by GM. GM in turn sought an indemnity from its public liability insurers, Novae Syndicates Limited, to which I shall refer hereafter as "Novae".
After an eight day trial confined to the issue of liability the judge held in favour of GM that it had not been in breach of duty. It had done its work properly and carefully and taken the agreed precautions against the risk of fire. To the extent that it may have departed in one respect from the agreed precautions, which UMA had failed to prove, the departure was not causative of the fire. The fire broke out in a manner and in circumstances which were not reasonably foreseeable.
UMA's claim accordingly failed. GM had no need of an indemnity from its insurers, although that claim too would have failed had GM had need of it because GM was in breach of a warranty in its insurance cover as to the manner in which combustible materials in the immediate vicinity of hot work should be covered and protected whilst the hot work was being carried out. That failure did not also amount to a breach of the duty owed to UMA – the adjacent combustible materials were during the hot work covered in the contractually agreed manner, by water sprayed carefully at high pressure. However the fact that a fire occurred demonstrates that the lining of the underpan was not both covered and protected at all times and thus that the warranty was broken.
UMA appeals against the judge's decision. Novae appeals against the judge's decision to award it only 50% of its costs.
The judgment of the judge below, Edwards-Stuart J sitting in the Technology and Construction Court, is careful, detailed and comprehensive. It runs to 60 single spaced pages and 303 paragraphs. It is quite unnecessary in order to dispose of this appeal to attempt to replicate that detail. The curious will find the judge's full account at [2012] EWHC 779 (TCC).
The relevant work was being carried out in and to a container in the screening house known as the top box. The top box is a rectangular container. It contains two further large steel vibrating containers known as screens through which aggregate of a particular size passes into the underpan below. The screens are braced by transverse steel support tubes which are secured to the structure by bolts which pass through steel flange plates welded to the ends of the tubes. The tubes are prone to substantial stress in service and from time to time require routine maintenance. The most common form of failure takes the form of cracks which propagate outwards from the bolt holes in the flanges. These cracks must from to time be "vee-ed out" and then repaired by welding. In order to do this the bolts have first to be removed. Using a small angle grinder a groove is then cut along the line of the crack which is then filled by welding.
It is the removal of the nuts from the bolts securing the flanges which was here the relevant hot work. The nuts were on the outside of the container. They were cut off by Mr Smith using an oxy-propane cutting torch. Oxy-propane cutting produces "spatter". Spatter consists of globules of molten steel with temperatures of the order of 1500°C. They can travel up to 10 metres. If the technique being used is "washing" rather than "lancing", the globules will be fewer in number but they will be larger and they will not travel so far. The technique being used here was washing, but there was opportunity for the spatter to pass through a gap in the side of the container below the nuts into the underpan beneath the screen. The underpan is lined with a combustible rubber lining material. The rubber lining is in turn attached to the steelwork by a combustible mastic sealant. At the top of the underpan, below the level of the nuts and at the bottom of the gap through which the spatter could pass, there is an exposed narrow band of mastic. This is just below a steel strip welded to the long side of the container at an angle of about 45 degrees to the vertical side.
The judge found that the fire was caused by a globule of molten steel, spatter, from the oxy-propane cutting which penetrated the band of mastic to which I have just referred. The hot globule went through the mastic band and penetrated some way into the interior of the lining. There it started a smouldering fire.
The whole working area around the screen was hosed down before any hot work started. Whilst Mr Smith was carrying out his cutting work water from a high pressure hose was continuously directed into the side of the underpan on which he was working. The judge was satisfied that Mr Smith, who he found to be a conscientious and highly competent craftsman of integrity, would have deployed the hose in the most effective manner for the work that he was doing at the time. It was work that he had done many times before. After the work was completed the area was again thoroughly hosed down. The judge expressly found that "the hosing down of the lining of the underpan by Mr Smith was carried out with reasonable care, as he had done it on many previous occasions."
Mr Smith and Mr Percival checked the area carefully both visually and using their sense of smell. They remained in the area of the underpan for at least one hour after the hot cutting had finished and one of them probably for about one and a quarter hours, in order to check for any signs of a fire. By the time that Mr Smith and Mr Percival left the area of the underpan, probably shortly before 09.30, there was no visible fire in the underpan and there was no reasonably detectable smell of burning.
The judge found that it was reasonably foreseeable that a molten globule of steel might avoid the water and hit and penetrate the horizontal band of mastic that protected the top of the lining just below the steel strip that was fixed to the top of the side of the underpan. However he went on to find that it was not reasonably foreseeable that a globule of molten metal might penetrate sufficiently far into the lining so as to start a smouldering fire that would not be extinguished when the underpan was hosed down on completion of the work and would not be detected by its smell when the area was being checked for signs of fire. The judge also found that it was not reasonably foreseeable that a fire might in this way be caused which could smoulder unseen and undetectable within the lining for about one and a half hours or more and then make the transition into a visible flaming fire.
The judge had evidence in the shape of a recommendation by the Fire Protection Agency that in relation to work such as was here being undertaken a fire watch should continue for at least thirty minutes after the hot work is completed, with further checks at regular intervals up to sixty minutes after completion. As it happens, this recommendation was effectively incorporated into the insurer's warranty in this case. The judge concluded that in order to meet the rare and unforeseeable situation which had here arisen a fire watch would have been required of considerably longer duration than that recommended.
The contractual provisions to which GM were obliged to adhere whilst doing this work, the UMA Hot Work Procedure, included the following:-
2.2 All sources of fuel within a 10M radius shall be removed where possible. Any which cannot be removed shall be adequately protected from heat and sparks.
2.3 Where it is not possible to remove sources of fuel, e.g. conveyor belt, wooden walkways, rubber decks or chute linings, etc, these should be protected by spreading non-flammable dust, fire blankets, covering with steel plates, etc, where possible the area should be damped down using water.
2.4 Where it is not possible to protect such items, extreme care and attention are required whilst carrying out...
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...v GM Welding & Engineering Ltd [2012] EWHC 779 (TCC) at [201]–[202], per Edwards-Stuart J (appeal allowed in part, on other grounds [2013] EWCA Civ 516). See also Grace Electrical Engineering Pte Ltd v EQ Insurance Co Ltd [2016] SGHC 233. 171 Aspen Insurance v Sangster & Annand Ltd (2018) 3......