In January 2006, there was a fire at a hair salon and health spa operated by Obsession Hair and Day Spa Limited. It was common ground that the fire had originated in a submersible Jet W300 pump in a sump in the colour dispensary of the hairdressing salon. There had already been proceedings between Obsession and Hi-Lite, the electrical contractor who had installed the pump, in which Hi-Lite had been held liable in contract to Obsession for the losses it had incurred due to the fire. These were assessed at £847,171 plus interest. The judge had also found that if Hi-Lite had been liable in tort, the damages, would have been £2,578,123. Obsession was granted leave to appeal against the dismissal of its claim in negligence and the quantification of the claim.
Wolseley, which traded under the name "Pipe Center [sic]" had sold the pump to Hi-Lite. DAB Pumps, formerly Leader, was an Italian company which had manufactured the pump and had supplied it to Wolseley. Hi-Lite sought a declaration that Wolseley was liable for the fire and that Wolseley should indemnify it for any sums for which it was liable to Obsession. Wolseley denied liability and, in turn, sought to pass on any claim to Leader.
Whilst it was common ground that the fire started in the cable connecting the float switch to the Pump, there was a difference of opinion about the cause of the fire in that length of cable and this was the essential issue to be determined in this case. Hi-Lite's case was that the pump was not of satisfactory quality for the purposes of section 14(2) of the Sale of Goods Act 1979 because a pump should not catch fire within 9 weeks of installation. Wolseley and Leader contended that the fire was a result of damage to the float switch cable which had been caused either in installation or in service. Hi-Lite responded by saying that Wolseley and Leader had not established that such damage had occurred and that it was more likely that there was damage to the float switch cable in the manufacturing process when the float switch and strain relief was moulded onto that cable.
There was then an argument about the effect of Hi-Lite not fitting an RCD as part of the installation of the Pump. If the fire were caused by a defect in the float switch cable for which Wolseley and Leader were responsible, they contended that Hi-Lite should have fitted an RCD and that the fire developed in a manner which would have caused the RCD to trip and isolate the cable from the power supply before the cable ignited. Hi-Lite, on the other hand, argued that the fire developed in such a way which meant that the cable would have caught fire without the RCD tripping so that the RCD would not have prevented the fire.
Wolseley and Leader also submitted that, if the fire were caused by a defect in the float switch cable for which they were responsible, damages arising from a fire were too remote because damage by fire was not in the contemplation of the parties as the likely result of the cable being defective. Hi-Lite submitted that property damage is sufficient and that damages for fire were recoverable.
The judge concluded that the fire at the Obsession salon had been caused by a fatigue failure of the float switch cable which, on the balance of probabilities, had been damaged by Obsession's staff had used sharp tools to clean hair and other debris from the pump located in the sump. Consequently, Wolseley had no liability to Hi-Lite for that damage, or for the subsequent fire and, in turn, Leader also had no liability to Wolseley based on those facts.
Hi-Lite failed to carry out the installation properly because they had failed to provide an RCD when installing the pump. If they had fitted an RCD, on the balance of probabilities, the fire would not have started before the RCD had tripped because of leakage from the "go" or "return" conductors and the "earth" conductor.
If Wolseley had been liable as Hi-Lite had alleged for a manufacturing defect in the pump which caused the fire, its liability to Hi-Lite for damages would not be reduced or avoided by arguments based on the failure by Hi-Lite to install an RCD. The causative effect of Wolseley's breach of section 14(2) of the Sale of Goods Act 1979 would not have been affected by the failure to fit the RCD. Further, the judge did not consider that the fire or the damages which Hi-Lite had to pay Obsession would have been too remote. Any negligence by Hi-Lite would not give rise to any apportionment as between Wolseley and Hi-Lite.
Hi-Lite Electrical Ltd. v Wolseley UK Ltd. and DAB Pumps S.A., [2011] EWHC 2153 (TCC)
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