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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Trebor Bassett Holdings Ltd & Anor v ADT Fire and Security Plc  EWCA Civ 1158 (23 August 2012)
Cite as:  EWCA Civ 1158
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT
Mr Justice Coulson
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE TOMLINSON
|(1) Trebor Bassett Holdings Limited
(2) The Cadbury UK Partnership
(formerly known as The Cadbury Trebor Bassett partnership t/a Monkhill Confectionery)
|- and -|
|ADT Fire and Security plc||Respondent|
Nicholas Dennys QC and Dominique Rawley QC (instructed by Eversheds LLP) for the Respondent
Hearing dates : 4,5 July 2012
Crown Copyright ©
Lord Justice Tomlinson:
The facts in outline
"249. There were two 'oil pop' production lines in the former Production Area B. They were known as the C Line and the D Line. Each consisted of 12 cooking pans, arranged in 6 pairs. The popcorn was heated over naked flames in these pans using soya oil. Once the corn reached a certain temperature it 'popped', turning itself inside out in the process.
250. Once the popcorn in the pan had popped, it was tipped onto a conveyor. If one or more pieces of popcorn were flaming on the conveyor at that point, there was no fire detection or suppression system in place to deal with it; the system relied on the operatives to see the burning piece, knock it off the conveyor, and stamp it out on the floor.
251. The popcorn was then carried along the conveyor to the rotary dosing drum, which was used to apply savoury coatings to the popcorn. There was some debate as to whether the dosing drum would cool the popcorn. It seems to me that it might have had that effect, but that was not its principal purpose. After the popcorn had been through the dosing drum, it passed along the conveyor and into what was known as the boot of the elevator.
252. Within the elevator were a series of plastic buckets, 151 in all, which were driven by a plastic chain. The popcorn was tipped off the conveyor and into these buckets. Almost immediately, the buckets swung vertically upwards to rise some 12 feet into the air. The elevator was enclosed in this vertical section. The buckets then turned horizontally and ran across the remainder of old Production Area B at ceiling level. The evidence was that the buckets, which had thin rims or lips, overlapped, so as to minimise the amount of popcorn falling out into the elevator itself.
253. As already noted, the Gough elevator carried on horizontally through the wall that separated old Production Area B from the Packaging Hall. The popcorn for the retail trade was dropped from the buckets into a retail bagging machine, which looked rather like a carousel, in the Packaging Hall. The popcorn for the cinema trade came back in the buckets along the elevator and returned into the 'oil pop' production area, and was then deposited into a hopper. When the buckets reached the relevant point in the conveyor, they were tipped into a position that was slightly greater than vertical, so that the contents of the bucket fell down the chute and into the hopper below. The chute was surrounded by a skirt, and there were also two inspection hatches, or lids. The evidence was that the buckets remained vertical for no more than 1 or 2 seconds. They then returned to the horizontal position and continued on their journey back down the horizontal section of the conveyor to collect a fresh load of popcorn."
"The probes were set at 100oC at Leeds, "so all we did was replicate what they had in Leeds on the conveyor in Pontefract. So the decision to put that probe in there, the type of probe and the operation temperature of that probe was my decision, based on what they had at Leeds."" [Judgment paragraph 100]
Of course, the nature of the duty or obligation assumed by ADT falls in the first instance to be determined by reference to the terms of the written contract to which I shall shortly refer. Insofar as Cadbury seeks the implication of a statutory term as to fitness for purpose, the circumstances in which the contract was concluded are relevant to the question whether it either relied or could reasonably have relied upon the skill of ADT in carrying out the design of the system. The judge was as critical of ADT's role in the commission and design process as he was of that played by Cadbury. A design was produced on very limited information and was never the subject of review or subsequent checking. The judge recorded that "the Claimants' haphazard approach at the outset was not picked up by the Defendant, and was compounded by the Defendant's own rather cavalier attitude to what they were being asked to do." [Judgment paragraph 113]. In consequence, as the judge found, ADT failed "to appreciate just how significant was the risk of a deep-seated fire in the hopper." (Judgment at paragraph 140.)
The contract and its formation
"This Quotation is based on the attached Proposal and General Specification Notes and where appropriate Enquiry Specification and Tender Drawings provided. Unless and until other terms and conditions have been agreed in writing ADT Fire and Security Standard Terms and Conditions as detailed in our Commercial Agreement shall apply."
There was attached to the quotation both a Schedule of Equipment and "Specification for a CO2 Fire Fighting System." ADT's Standard Terms and Conditions, normally printed on the back of its Commercial Agreement, were neither enclosed with nor attached to the quotation. No Commercial Agreement was sent with the quotation.
Hazard: Elevator and Hopper arrangements
For the protection of the above hazard, we propose the design, supply, delivery, installation, testing and commissioning of a CO2 Fire Fighting System.
ADT Fire and Security CO2 fire fighting systems are designed, manufactured and installed to suit the specific requirements of the risks to be protected and comply generally with the requirements of BS5306 Part 4.
CO2 extinguishes fires by reducing the oxygen to a level that does not support combustion and by cooling."
It was agreed that these proposals were in ADT's standard form of wording and were typically used in ADT's specifications.
There was then what was called a 'Summary of Calculations' identifying the volume of the areas to be protected and setting out the quantity of CO2 required to protect it.
The specification went on to say:
The CO2 Fire Fighting System is designed, manufactured and installed to suit the specific requirements of the hazard to be protected.
The complete system consists of one or more storage containers coupled to a system of pipework of discharge nozzles specifically sized using a hydraulic flow calculation program designed to ensure discharge of the design quantity within a specified period of time…
Total Flooding systems are generally for the protection of enclosed hazards. Nozzles would be designed to flood the entire hazard enclosure with CO2 to develop an even concentration.
An appropriate number of discharge nozzles will be provided to ensure adequate distribution of CO2 within the hazard area…
HOLDING TIME – Total Flooding Systems
The design concentration of CO2 should be held long enough to ensure complete extinguishment. The holding time will vary with the gas tightness of the enclosure. The required holding time may vary between one and in excess of twenty minutes depending on the hazard involved.
Openings or ventilation ducts/forced air handling must be closed or shut down automatically before or in conjunction with the discharge.
All doors should open outwards and be fitted with self closing devices. Doors and windows should be in the closed position prior to the CO2 system discharging. Any penetrations through the walls, ceiling and floor of the protected area(s) for cables, pipes etc should be suitably sealed.
It is difficult to calculate accurately the leakage rate from any particular enclosure without full scale discharge tests, however a technique has been developed known as the Room Integrity or Door Fan Pressurisation Test which can provide an enclosure retention time prediction.
Where self-closing doors, dampers or shutters are required to reduce the loss of CO2, the client shall supply and install these items and ADT will install, at an additional cost if not included within our proposal, the necessary pressure-operated trips to control their release…"
Finally, the specification dealt with testing, commissioning and maintenance. Under the heading 'Tests' it said:
"On completion of the order, a test will be made to prove the correct function of the equipment installed. This would exclude any gas discharge. All parties concerned are invited to attend and witness the tests. Acceptance certifications will be signed as a record that the installation has met with your satisfaction. All such tests will be carried out during normal working hours."
"CO2 Fire suppression system. As per your quotation dated 28/8/03.
Systems to be fitted to:-
3 Hoppers 50% Payment"
The delivery date was 25 September 2003. The payments were to be made in two stages of £4,504.50 each. Finally, at the bottom of the Purchase Order, the following printed words could be found:
"This is subject to Monkhill standard terms & conditions already supplied, unless otherwise agreed. Additional copies available on request."
It is common ground that these terms and conditions were not included with the Purchase Order, which assumed that they had been "already supplied".
In the context of these conditions:
. . .
(d) the word "Goods" means the article or things specified in the Purchase Order (including their packaging materials, containers and accompanying pallets) " and the word "Services" means the work described in the Purchase Order.
. . .
(j) "Specifications" means any specification and/or stipulation contained in or annexed to the Purchase Order (or supplied by the Buyer separately in writing referred to in the Purchase order and signed by an authorised representative of the Buyer.)
. . .
3. Qualities and Defects
(a) All Goods supplied and/or Services carried out shall be of good quality and subject to the Buyer's approval and in particular must meet the governing Specification and CTB Standards but without limitation would also be as required by law in respect of title, quantity, quality, purpose or description . . ."
The fire in June 2005
"8. 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.
9. 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.
10. 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.
11. 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.
. . .
371. On the evening of 8 June 2005, the 'oil pop' production area was working normally. Mr Norton was working six pans on the C Line. Mr Hardcastle was at the hatch of the C Line hopper, bagging the popcorn into sleeves. There were a number of made-up boxes close to the bottom of the hopper, but not more than about half a dozen. There was a pallet truck in the vicinity on which there were boxes containing completed sleeves. Mr Carter was doing some paperwork close to the south wall of the 'oil pop' production area.
372. There was nothing particularly unusual in the condition of the elevator and hopper. Although, since the elevator had been enlarged, the old lid for the hopper could no longer be used, there was a skirt arrangement at the top of the hopper which operated as a rough and ready enclosure. I also find on the evidence of Mr Carter that at least one of the two inspection hatches was in place, and probably both. The top of the hopper was therefore enclosed, save for the opening into the elevator.
373. Mr Carter was the fire marshal. He told me that he felt qualified to tackle any fire that might arise. Mr Challinor, who was the senior fire marshal in the NMU at the time, was not based in the 'oil pop' production area. Furthermore, he was unlikely to have been of very much assistance in the event of a fire, because on his own evidence he had had no training in evacuation procedures, and had also had no training in detailed matters such as the manual activation of the CO2 suppression system. To that extent, therefore, Mr Challinor was the senior fire marshal in name only.
374. At about 8:30 pm, there was a commotion at the C Line hopper and it seems that somebody shouted 'Fire!' and whilst filling a sleeve with popcorn from the hatch at the bottom of the hopper, Mr Hardcastle became aware that the sleeve in his hands was melting. Mr Carter looked up and saw what he described as 'smouldering' popcorn in the 'melting' bag. Mr Carter was adamant that the popcorn in Mr Hardcastle's sleeve was not flaming. At most, it appears that the popcorn might have been smoking. I again accept Mr Carter's evidence.
375. Mr Carter got up from where he was sitting and ran towards the hopper. Mr Norton thought that he or someone else shouted "the hopper's gone up". As Mr Carter climbed the gantry, Mr Norton pressed the emergency stop button and the C Line conveyor came to a halt. Mr Norton looked towards the top of the hopper, where he could see orange flames reflected in the underside of either the elevator or the ceiling panels (he was not sure which). Those orange flames were the flames in the hopper.
376. Mr Carter had noticed, as he moved towards the gantry, a wisp of smoke at the bottom of the hopper, and also at the top of the hopper. When he climbed the gantry and looked inside, he could see the same flames which were in the reflection that Mr Norton had seen. Mr Carter told me, and I find, that he saw flames across the surface of the corn in the hopper, which he said was about a quarter full. The flames were coming up to the top of the hopper but, at the time that he was looking, those flames were not rising above the hopper or reaching up into the elevator. He confirmed that, as he leaned in to look, the flames 'were not singeing his eyebrows'. Mr Norton also said that he did not see flames coming out of the top of the hopper.
377. Mr Carter shouted for the fire hose. He said that he was used to using the fire hose in the hopper because that was the way in which the hopper was cleaned out on a Friday during its weekly clean. Mr Norton heard the shout for the hose. Mr Carter told me that he switched the hose on when it got to the top of the gantry and he put the hose on full to drown the fire in the hopper. He said that within a few seconds, the fire had gone out. A lot of water came out of the fire hose, and there was a good deal of steam which was drawn up into the elevator.
378. Shortly after this, the fire alarm went off. There is an issue as to whether the fire alarm was activated as a result of steam and/or smoke passing through the C Line elevator into the Packaging Hall, or around the gap in the wall between old Production Area B and the Packaging Hall. Either way, it appears that it was the fire alarm in the Packaging Hall that was first activated.
379. Whilst Mr Carter was dealing with the fire in the hopper, the other operatives were dealing with the burning popcorn at the dispatch chute. They endeavoured to stamp out the smouldering/smoking popcorn from the sleeve that had begun to melt in Mr Hardcastle's hands. In addition, in accordance with the approved procedure, and as had happened during the fire the previous year, the operators opened the chute to release further burning/smouldering popcorn from the hopper in order to put that material out on the floor in the same way. The evidence as to this came from Mr Norton and the various interview notes with Mr Hardcastle. Although there is a lack of clarity as to the precise quantity of popcorn that was emptied out onto the floor, the most reliable estimate would appear to be a total of 3 sleeves' worth of popcorn (the one that was burning in Mr Hardcastle's hands, and two more). Mr Hardcastle said that, after dropping the first sleeve, he managed to press the handle (ie to release the popcorn) twice more. On that basis, a large amount of popcorn, possibly as much as 180 litres (3 x 60 litres), almost all of which would have been burning, was discharged over the floor of the production area. Even on the claimants' case, it was 150 litres of popcorn. A fire extinguisher was also used to try and put out this popcorn.
380. The operatives moved the made-up boxes away from the bottom of the hopper. Mr Carter thought they had been moved a few feet out of the way. Mr Norton said that they were moved away from the hopper towards the east wall, "just into open space, so they weren't near anything…away from the other cardboard." Again, his evidence would appear to suggest that the boxes were moved only a few feet. That was also the recollection of Mr Kear, who thought the boxes were moved 4 or 5 feet.
381. Generally, it would seem that Mr Carter and the other operatives acted coolly on discovering the fire and, particularly in Mr Carter's case, with a good deal of personal bravery. But, as Mr Kear said, everything happened very fast. He said, and I accept, that it was 'quite a confusing scene'. He memorably described it as "just a big dash and a big panic".
382. Mr Carter and the other operatives then left the 'oil pop' production area. They left through the plastic door in the wall and went into the Packaging Hall. That was immediately next to the roller shutter door which, on the evidence, had been hit by a forklift truck some weeks earlier and was jammed in a half closed position. As they left, the men thought that they had put out the fire in the hopper (using the hose) and on the floor of the production area (by stamping). Whilst in evidence Mr Carter was confident that he had put the fire out, it seems that there was a lingering doubt about it. I note that in a number of the interviews, those who were there queried whether or not the fire had in fact been extinguished. Thus Mr Bray told WYFRS that the operatives "were not sure if the fire was out"; he told Ms Irving that Mr Carter said that he did not think that he had put it out; and he told Mr Siddons that "the oil pop lads were flustered…and weren't quite sure they had put it out".
383. The fire alarm had gone off at 8:33 pm. Just over a minute later, the operatives left the NMU. At 8.35 pm, the defendant notified the Fire Service of the fire alarm activation. At 8:36 pm, when the operatives from the 'oil pop' production area were already outside at their muster station, Mr Bray went into the NMU building and looked at the fire alarm display board. He left the building immediately afterwards. It seems that he went back again a couple of minutes later but returned within 30 seconds. At 8:41 pm, he went into the NMU building for a third time but was again outside by 8:43 pm, when the first fire appliance arrived. It seems that these repeated visits were to check the main control panel. The second fire appliance arrived at 8:44 pm and the fire crews entered the building. At that stage, there was no external sign of any fire at all, and Mr Carter explained to the fire fighters that he thought that the fire had been put out.
384. At 8:46 pm, smoke became visible for the first time above the roof of the NMU. It seems that that smoke was blown from the 'oil pop' canopy extraction fans. At about the same time, Mr Bray and some of the fire men went into the Packaging Hall. Much more smoke was apparent. A point arises as to the type of smoke it was.
385. There was then a rather puzzling delay. It appears that the fire fighters wanted to enter the 'oil pop' area through the small door in the northern section of the east wall of the NMU extension, tucked away in the corner of old Production Area B, furthest from the seat of the fire. That door was locked, and there was a delay whilst a security guard was summoned to unlock the door. During the same period, there was also some time lost whilst the firemen offloaded and laid out the hoses.
386. At 8:52 pm, heavy white smoke was seen venting from the eaves on the south elevation. This is the south wall of the 'oil pop' production area. I find that the presence of this smoke at that location meant that, just 22 minutes after the fire had started, the integrity of Mr Caldicott's fondly-imagined 'fire box' had already been breached.
387. For the next few minutes, the fire fighters continued to lay out their hoses. Further fire fighting vehicles were requested. However, it is not clear whether any attempt had been made at this point to try and fight the fire. Although one report produced by WYFRS suggested that the first water onto the building was at 8:55 pm, that time is contradicted by other evidence, also from WYFRS, which suggests that, as late as 9:08 pm, no such equipment was yet in use. There is no CCTV footage of water going onto the fire before that time. Taking into account all the circumstances, it seems to me unlikely that any water was used to fight the fire until 9:13 pm, when the WYFRS incident log finally reports "1 large jet and 2 BA use".
388. By the time the water was on to the building at 9:13 pm, the WYFRS had already decided that they would operate in defensive mode only. That decision had been taken at 9:08 pm, once it became clear that no lives were at risk. It meant that the fire would be fought from outside the building only, with the priority on controlling the fire and ensuring that it did not spread to other buildings. It appears that this decision was taken because of the hold that the fire had taken on the NMU in the 38 minutes since the sleeve melted in Mr Hardcastle's hand. How and why the fire had spread so quickly is addressed in detail in Section J below."
The judge's findings as to how the fire spread from the pans to the hopper, from the hopper to the floor and from the floor to the rest of the building
"446. . . . This theory postulated that there was one sleeve of smouldering popcorn which was dropped or fell out of Mr Hardcastle's hand, spreading burning popcorn onto the floor. The operatives then added to that by discharging two further sleeves' worth of popcorn (a total of up to 180 litres) onto the floor, in order to put out the burning popcorn by stamping on it. This theory suggests that, with this large volume of popcorn on the floor, spread and scattered across a wide area, it was not all stamped out and that, when and shortly after the men left the 'oil pop' production area, the smouldering/flaming popcorn on the floor set fire to other combustible materials and thereby caused the fire to spread."
The judge found that there was sufficient combustible material, including the boxes and the pallet truck, to carry the fire to the south wall, all within the necessary time frame, particularly given the widespread displacement caused by stamping – judgment paragraph 454.
"494. . . . it seems to me that I have to approach the allegations of breach in the knowledge that, at the time of Mr Carter's intervention, there was smouldering, burning popcorn at the bottom of the hopper, and flaming popcorn all across the top of the hopper, which flames were large enough to extend to the top of that hopper. That was not only a potentially very dangerous situation, which required immediate intervention, but it was also something which, it might be thought, a properly-designed, automatic fire suppression system in the hopper ought to have dealt with. Instinctively, therefore, it seems to me that there is, and always was, a case for the defendant to answer. I stress that that cannot affect the burden of proof, which remains on the claimants throughout. But the critical question remains: if the automatic suppression system had been properly designed, commissioned, and installed, how was it that the hopper contained a large mass of burning and flaming popcorn which had not been extinguished?"
The judge's finding as to ADT's breach of contract (and tortious duty)
"13. Implied term about care and skill
In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill."
It was, unsurprisingly, common ground at trial that such a term fell to be implied into the contract.
"495. As set out in paragraphs 216-217 above, the defendant was obliged to take reasonable skill and care in designing this system. I have already said that I consider this design obligation to be central, because it was that which required the defendant to sit down and work out how a fire in the hopper might be dealt with by a CO2 suppression system. It seems to me that, given the size of the hopper, the designer would have thought that there was at least a risk of a deep-seated fire in the hopper and one which needed to be suppressed before quantities of burning popcorn were discharged from the bottom and/or before the fire spread, either to the elevator, or in some other way, outside the hopper.
496. I have concluded that the defendant failed to comply with this design obligation. I have concluded that the highly developed fire in the hopper at 8:30 pm on 8 June 2005 was not one which a properly-designed automatic suppression system should have allowed to develop to such an extent. The system should have been designed to ensure that the risk of burning popcorn being discharged from the dispatch chute was minimised (even if it could not be eliminated altogether), and that any fire with flames that were rising to the top of the hopper, and had spread across its whole surface area, together with burning popcorn at the bottom of the hopper, was a fire which should have been extinguished. The defendant was in breach of contract for failing to design a system which met those reasonable requirements.
. . .
531. I have already set out in Section L2 the general evidence from Mr Jackman which has persuaded me that my initial impression was correct, and that a fire in the hopper that produced large flames at the top, and smouldering popcorn at the bottom, was a fire which a reasonable CO2 system should have been designed to avoid. Although the expert evidence as to the precise deficiencies in the design which led to that situation was somewhat haphazard, I have concluded that particular problems lay with the way in which the defendant approached the design (and the inadequate information on which it acted); the failure to identify the nature of the fire risk being designed against; and (particularly) the type and the location of the sensor in the hopper. The evidence was that the temperature of the flames at the top of the hopper, being in excess of 100°C, should have activated the system within, at most, 2 ½ minutes. In fact, due to the deficiencies that I have noted, the fire in the hopper burned for much longer than that without automatically triggering the system.
. . .
536. My initial impression was that this fire was just the sort of developed, extensive fire which the automatic CO2 suppression system in the hopper was designed to put out. That view was confirmed by the answers that Mr Jackman, the defendant's expert on fire suppression systems, provided in his cross-examination by Mr ter Haar. In the light of those answers, it seems to me clear that, on any view, the defendant was in breach of contract."
"518. The choice of the particular sensor and the location of that sensor in the hopper were both fundamental matters of design. It seems to me that, probably following on from the decision to do a design on admittedly inadequate information, and the failure to design for a deep-seated fire in the hopper, the defendant did not properly consider the type and the appropriate location of the sensor in the hopper. The sensor was the critical piece of equipment if a fire in the hopper was to be satisfactorily detected and extinguished by the CO2 suppression system. But, on the evidence, I find that insufficient consideration was given to choosing the most appropriate sensor and placing it in the best location within the hopper.
519. That both the type and the location of the sensor were inadequate can be demonstrated by the fact that, despite the flames which Mr Carter could see coming up to the top of the hopper when he stood on the gantry, and which Mr Norton could see reflected in the elevator or the ceiling, the automatic system was not triggered. There cannot be any doubt that the temperature in those flames was more than 100°C (the temperature that the sensor was set at). So why had the system not been activated? There seemed to be two particular reasons for that.
520. First, the type of sensor that was chosen did not have a particularly fast reaction time (RTI) which, given the risk of a deep-seated fire in the hopper (as opposed to the elevator), I consider that it should have had. Secondly, the sensor was located very much to one side of the hopper. Thus the flames, which naturally concentrated in the middle of the hopper, and which, up to a point, may have given rise to some form of chimney effect into the opening of the elevator above, would have been slow to be detected by the single sensor off to one side of the hopper. I expand on those two design failures below.
521. The type of sensor was an Olsen 54B. Although this was a detector that had been used for this kind of system in the past, the evidence was that this had a relatively slow RTI. It was thermally insensitive. Although Mr Stephens would not necessarily have used one of these kinds of detectors at all, he was critical of the decision to use the Olsen sensor in the hopper. When other kinds of sensors were put to Mr Stephens, he made plain that he would have in fact used an infra-red detector to stop the elevator (which was not in fact very different from the VESDA system). However, that was not to be taken (as the defendant maintains in its closing submissions) that Mr Stephens was in some way giving the Olsen sensor a clean bill of health; on the contrary, he was critical of all such sensors, and therefore would certainly not have countenanced using a sensor that was thermally insensitive.
522. It seemed to me that the biggest single difficulty was in relation to the location of the sensor. Mr Stephens said:
"I think the problem with the detector in the hopper is it is actually almost in the corner, which is not going to be one of the locations where you will get the highest velocities and highest gas temperatures."
I find that this evidence was not only unchallenged but unchallengeable (indeed, I note that the issue as to location was not really addressed in the defendant's closing submissions, despite the fact that it featured early on in the claimants' closing submissions, at paragraph 10). It was perfectly possible that a deep-seated fire could start in the hopper and not be detected by the sensor because it was not located in a centralised position, where the flames and heat would be at their highest. That seems to me to be a singular deficiency in the design of this system.
523. This was also a point that was revisited with Mr Stephens in his re-examination. Although he said that he thought that the position of the sensor in the hopper was better than the position of the sensor in the elevator, he thought that the problem with the sensor in the hopper was that it was away from the place where the hot gases would build up. He said "that if you had a perfectly sealed hopper, the fire is still going to burn because you will get the hot gases going up through the elevator. And my opinion is that it will draw in air from the elevator down into the hopper at the same time. So you will have hot fire gases going up from the hopper and at the same time you will have air coming back down into the hopper from the elevator." The difficulty was that the sensor was located away from the central area where the hot gases rose and the air came down.
524. I accept Mr Stephens' evidence as to the inadequate location of the sensor. It seems to me that the combination of a sensor that was itself slow to react, with a location to the side of the hopper, out of the way of the likely area of flaming, created the problem on 8 June 2005: a flaming fire at the top of the hopper which the single sensor simply did not pick up so as to trigger the CO2 suppression system. That failure can also be linked back to the defendant's failure to go about the design in the way that Mr Jackman said that he would have expected (paragraphs 509-513), and the different approaches as to the type of fire (paragraphs 514-517). The failure to locate a more reactive sensor closer to the central part of the hopper was the principal cause the failure of the automatic suppression system on 8 June 2005."
The issues on the appeal
i) The representations in the Specification became a term of the contract once formed. The judge found that the "risks" which the system was designed to address was a developed fire (i.e. not just a burning piece of popcorn or two) in the hopper or the elevator which might escape the enclosure and, because of its developed nature, prove difficult to extinguish – judgment paragraph 240. He also found that the system did not in fact meet that risk as it manifested itself in this case. He should therefore have found that ADT was in breach of a contractual term to the effect that the system was designed to suit the risk. The system was simply not in accordance with the specification. The obligation to supply a system meeting the specification is absolute and it is irrelevant to the establishment of the breach to consider why the specification was not met (Grounds of Appeal 7-9).
ii) The same passage in the Specification imports a requirement to comply generally with BS5306 Part 4. That part of the Standard distinguishes between surface fires and deep-seated fires and prescribes for each different requirements for such matters as rates of application and quantity of CO2. Since the judge found that the design of the system was here inadequate to deal with a deep-seated fire, he should have found that ADT had failed in its obligation to comply generally with the requirements of BS5306 Part 4 (Grounds of Appeal 3 and 4).
iii) Clause 3(a) of Cadbury's Terms and Conditions required that the goods supplied should be of good quality. Cadbury contracted to buy a fire suppression system. For the purposes of Clause 3(a) the system should be regarded as the goods supplied and the system was not of good quality (Grounds of Appeal 5 and 6).
iv) The judge should have characterised the contract between Cadbury and ADT for the supply of a fire suppression system as one for the supply of services pursuant to which goods were also to be supplied. In such circumstances there was pursuant to s.4(2) of the Supply of Goods and Services Act 1982 an implied condition that the goods supplied, i.e. the system, were to be of satisfactory quality. Further, the judge's findings showed that there was a purpose for which the system was acquired, the extinction of a developed, extensive fire in the hopper or elevator, which was jointly understood by the parties. In such circumstances s.4(4) of the 1982 Act imported into the contract an implied condition that the goods supplied are reasonably fit for that purpose. The goods supplied, i.e. the system were/was neither of satisfactory quality nor reasonably fit for the understood purpose. (Grounds of Appeal 10 and 11.)
The success of any of these arguments would have led the judge to find breaches of contract of a nature which precluded the application of the 1945 Act because the relevant contractual duty would extend beyond the tortious duty also owed.
"215. It is worth identifying at the outset the nature of the contract between the parties. It was a contract in which the defendant was to supply to the claimants a system designed to suppress fire in the elevator and/or hopper. That system was made up of various pieces of equipment, such as the sensors and the nozzles, as well as the fire alarm panels and the electrical wiring. But what made it a system (as opposed to a random selection of equipment) was the design: the pulling together of all the relevant information into a designed system that used CO2 to suppress fire in the elevator or hopper. Accordingly, the most important element of the workscope was that done by the defendant's designers: the decision to use a particular piece of equipment in a particular place, with the intention of achieving a particular effect."
I agree with this approach.
i) the judge was wrong to regard Robinson v Graves (1935) QB 579 as precluding the characterisation of this contract as one to supply goods as well as services and
ii) the judge was wrong to regard the implied condition as to fitness for purpose as not arising because no particular purpose for requiring the goods was indicated by Cadbury to ADT and/or as negatived by s.4(5) of the 1982 Act because there was no reliance by Cadbury on the skill or judgment of ADT.
I will however just indicate that in my view Mr ter Haar was right in the first of these points but wrong in the second. Robinson v Graves was concerned with the question whether a contract to paint a portrait was unenforceable for want of a written note or memorandum at a time when that was a requirement for an enforceable contract for the sale of any goods of value of £10 or upwards – Sale of Goods Act 1983 s.4(1). The case tells one little about how a modern contract for the supply of services pursuant to which goods will also be supplied should be characterised. In fairness the judge I think recognised this at paragraph 219 of his judgment, although in my view he erred in thinking that because what mattered most here was the design there was no room for the implication of the statutory terms even as regards the goods or materials to be supplied. As to the second point, my reasons for agreeing with the judge that this point, had it arisen, should be resolved against Cadbury will for the most part sufficiently appear from my discussion of the argument concerning the construction and effect of the contractual specification. I would just add this in the statutory context. Mr ter Haar was I think right to remind us that in Grant v Australian Knitting Mills (1936) AC 85 at 99 Lord Wright observed that "reliance will seldom be express: it will usually arise by implication from the circumstances." I note too that in the Hardwick Game Farm case, (1969) 2 AC 31 at 82/83 Lord Reid observed that "It can only be in unusual circumstances that a buyer does not rely in part at least on the skill or judgment of the manufacturer, or that a manufacturer is entitled to assume that the buyer is not relying on him at least to some extent." Key however to the enquiry is in my view a further observation of Lord Steyn in Slater v Finning, to which Mr ter Haar also drew our attention, at page 486 to the effect that ". . . if the buyer's purpose is insufficiently communicated, the buyer cannot reasonably rely on the seller's skill or judgment to ensure that the goods answer that purpose." It is here in my judgment that Cadbury's case runs into difficulty, not just in relation to s.4(4) and 4(5) of the 1982 Act but also in relation to its attempt to spell out of the Specification some guarantee or assumption of strict liability in respect of the performance of the system.
"229. The remaining issue is whether or not the first three paragraphs of the Specification (paragraph 107 above) amounted to a warranty or guarantee that the CO2 suppression system would meet the risk of fire. It is, I think, the claimants' case that this warranty or guarantee cuts across the implied terms, particularly the implied term as to reasonable skill and care, and imposed an absolute obligation on the defendant to design a system which prevented fire.
230. For a whole series of different reasons, I have concluded that this argument, although undoubtedly ingenious, does not stand up to proper scrutiny, and I find that there was no such warranty or guarantee. I reject it under two broad heads: the proper definition of the word 'risks' in the specification, having regard to the background to the contract, and generally, as a matter of construction.
232. I take first the definition of the word 'risks' used in the specification (paragraph 107 above). That was not a word that the parties defined in their contractual or post-contractual exchanges. It was not really a matter to which they devoted any attention at all until shortly before the trial, when it suddenly loomed large as an important element of the claimants' warranty/guarantee case. However, the background to the contract provides some assistance in identifying and interpreting 'the risks' referred to in the specification.
232. It is the claimants' pleaded case that 'the risks' were the occurrence and spread of fire: any fire in the hopper and/or elevator, of any kind, from any source. That was exemplified by the second reply to the defendant's request for further information where, at reply B, in answer to that very question, the claimants said:
"The risk that the CO2 fire suppression system was supposed to guard against was the occurrence and spread of fire. The whole point was that the CO2 suppression system would automatically activate to extinguish or control a fire in either the hopper and/or Gough Elevator. It failed to either activate within a reasonable time and/or suppress/extinguish the fire sufficiently or at all."
233. In my view, the suggestion that the risk referred to in the specification was the occurrence and spread of any fire cannot be sustained. On the contrary, the CO2 system depended on the occurrence of a fire in order to operate at all: there had to be a fire in order to cause the sensors to be activated and the CO2 suppression machinery to be triggered. The CO2 suppression system did not prevent a fire from starting: it was instead designed to put it out. Thus the risk cannot have been the occurrence of fire; on the contrary, the CO2 system presupposed that there would be a fire before it could be activated.
234. In the claimants' closing submissions, Mr ter Haar refined his analysis still further, and instead argued that the 'risk' referred to was the risk of the fire getting out of the hopper or elevator. Although that case was not at the time pleaded, it seems to me to be a rather more thoughtful attempt to define the word 'risk', as used in the specification. But I have concluded that it is still not a persuasive submission.
235. First, I find that nobody, on either side, thought for a moment that if, for example, one piece of popcorn was passing through the system and caught fire somewhere between the pan and the hopper, and then dropped straight through the hopper and into the bagging hatch, the CO2 suppression system would or should have been triggered. One flaming or smoking piece of popcorn would not (and was not intended to) have triggered the system, because the flame from one piece of popcorn would not have reached the necessary temperature in order to activate the sensor.
236. Secondly, there was the clear evidence from Mr Hamilton that he was aware that the sensors could not necessarily respond to every fire. I refer in particular to the note at Bundle R/310 in which, during a post-fire interview, Mr Hamilton said that he knew that the sensors in the system at Leeds may not have been sensitive and that "we expect to have to put out small fires manually", a point he also accepted in cross-examination (Transcript Day 5/24).
237. Thirdly, there was the evidence (paragraphs 70-72 and 76 above) that Mr Hamilton (and everyone else at the claimants) was aware that the only truly reliable way to deal with the risk of fire in the 'oil pop' production area was with the use of sprinklers. He knew that the CO2 system would not necessarily deal with all fires, including fires escaping from the elevator and hopper, and was aware of that from the outset of his involvement (because he knew that there was a CO2 system at Leeds and that this did not prevent the outbreak of fires there).
238. Fourthly, and perhaps most significantly of all on this point, it must be remembered that this was a system that was designed to provide, in the alternative to an automatic operation, a manual system, whereby the release of the CO2 could be triggered manually. The immediate question that arises is: how would an operative have realised that the CO2 system needed to be triggered manually unless and until he or she was aware of a fire, and how would he or she become aware of a fire in the hopper or the elevator, in circumstances where both were wholly enclosed? The answer, of course, is that he or she would have become aware of the fire, and the need for the manual activation, only when the fire escaped either the hopper or the elevator. Thus the very existence of the manual activation system negated the suggestion that the defendant warranted that the system would suppress all fires before they escaped the hopper or the elevator.
239. Finally on this point, I note that the specification also uses the word "hazard" but this, too, cannot be read as a reference to the spread of fire. Indeed, the hazard appears to be defined by the specification itself as simply the area – the "elevator and hopper arrangements" – to be covered by the CO2 system.
240. Taking into account the background to this contract, and the information available to both parties at the time that it was made, it seems to me that the 'risks' which the system was designed to address was a developed fire (ie not just a burning piece of popcorn or two) in the hopper or the elevator which might escape the enclosure and, because of its developed nature, prove difficult to extinguish. The mere fact that fire escaped from the enclosure would not necessarily mean that the defendant had failed to comply with its obligations under the contract. But if the design failed to address the risk that a fire would build up in the enclosure and then escape, such that it might no longer be possible for the claimants to control it, it might point to a failure by the defendant to exercise reasonable skill and care in the design.
ii) Construction Generally
241. I also reject the warranty/guarantee argument as a matter of broader construction. It seems to me that the first three paragraphs have to be read in the context of the specification as a whole. That document, read as a whole, was plainly not providing any kind of warranty or guarantee, but explaining the various assumptions that had been made as to the design and the various matters, such as openings, which were in any event beyond the defendant's control. In such circumstances, it seems to me that the words in the first three paragraphs cannot be taken out of context and then transformed into some form of strict liability provision.
242. In addition, the fact that the system had been designed "to suit the specific requirements of the risks to be protected" (to use the words of the specification) does not mean that the system was guaranteed to eliminate those risks every time. It was designed, manufactured and installed with those risks in mind, but the obligation as to design was to take reasonable skill and care and there was nothing in these words to impose upon the defendant a more onerous obligation. A design intended 'to suit the specific requirements of the risks' may or may not be done with reasonable skill and care, but it was not a promise that the design would eliminate all risks. A promise that a particular risk will be eliminated must say so in clear terms. The specification did not do so.
243. If there was any doubt about that last point, I note that the words in the specification go on to say that the system was designed, manufactured and installed to "comply generally with the requirements of BS 5306 Part 4." That was a non-specific and general obligation to comply generally with requirements which are, in this British Standard, often set out by way of recommendation rather than obligation. That is again entirely consistent with the exercise by the defendant of reasonable skill and care and inconsistent with a guarantee or warranty.
244. For all these reasons, I do not consider that the words in the specification amounted to a warranty or a guarantee. What they do is to provide the benchmark against which the obligations as to reasonable skill and care and good quality are to be measured."
"Valuable too are the observations of Lord Denning MR in Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners  1 WLR 1095, 1100 which I now quote in full:
"Apply this to the employment of a professional man. The law does not usually imply a warranty that he will achieve the desired result, but only a term that he will use reasonable care and skill. The surgeon does not warrant that he will cure the patient. Nor does the solicitor warrant that he will win the case."
Lord Denning thought, and I respectfully agree with him, that a professional man is not usually regarded as warranting that he will achieve the desired result. Indeed, it seems that that would not fit well with the universal warranty of reasonable care and skill, which tends to affirm the inexactness of the science which is professed. I do not intend to go beyond the case of a doctor. Of all sciences medicine is one of the least exact. In my view a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms. The defendant did not do that in the present case."
Of course medicine is not the same as fire suppression, but it is in my judgment for present purposes sufficiently analogous. The success of an attempt to suppress a developed fire will depend upon an infinite number of variables, most beyond the control of the supplier of a fire suppression system. Most properly informed people would I think regard a guarantee of success as in this context extravagant. The specification does not expressly say that a guarantee of success is given and in my judgment it is neither necessary nor appropriate to construe it in that way. One does not ordinarily expect that a contractor will do more than exercise reasonable skill and care in order to bring about a certain result and one selects a reputable contractor, experienced and perhaps specialised in the field, in the expectation that the exercise of reasonable skill and care by him may bring about a better result than the exercise of reasonable skill and care by someone less experienced or specialised. Ordinarily however one would not expect that the obligation of a supplier of services, whether he be a surgeon or a fire suppression system supplier, would extend beyond the exercise of reasonable skill and care and one would, or in my view should, look askance at a supplier who undertakes to bring about a certain result in circumstances where it is well-known that the forces of nature are unpredictable. One would for example be slow to read the warranties in a shipbuilding contract as involving a guarantee that the ship, when constructed, will be unsinkable.
"The specific breaches of contract did not occur during the latter stages of the contract, namely at the time of the installation of the equipment and its commissioning. What went wrong in this case was the original design and specification of the CO2 suppression system insofar as it related to the hopper. No or insufficient thought was given to the risk that there could be a deep-seated fire in the hopper which, the longer it burned, could spread both downwards, towards the dispatch chute, and upwards, to the top of the hopper and over into the elevator, as well as threatening the integrity of the hopper itself. The system was dependant upon one single sensor, which did not provide a quick RTI, and which was located away from the central part of the hopper where, on the expert evidence, the flames were likely to be strongest. A different sort of sensor, in a more centralised position, was vital if the large volume of popcorn in the hopper was not to create a very real risk of a significant and deep-seated fire."
In earlier passages at paragraphs 517 and 518 the judge said:-
"517. . . .The system did not suppress a smouldering fire in the hopper, as it should have done, because the system had not been specifically designed to deal with a deep-seated fire in the hopper.
d) Type and Location of Sensor
518. The choice of the particular sensor and the location of that sensor in the hopper were both fundamental matters of design. It seems to me that, probably following on from the decision to do a design on admittedly inadequate information, and the failure to design for a deep-seated fire in the hopper, the defendant did not properly consider the type and the appropriate location of the sensor in the hopper. The sensor was the critical piece of equipment if a fire in the hopper was to be satisfactorily detected and extinguished by the CO2 suppression system. But, on the evidence, I find that insufficient consideration was given to choosing the most appropriate sensor and placing it in the best location within the hopper.
These are failings in exercising reasonable skill and care which manifested themselves in a failure properly to address the particular problems posed here by a deep-seated fire.
"267. The third kind of fire was when burning popcorn entered the enclosed elevator, or caught fire somewhere that it could not be seen. That happened in November 2003 (paragraph 144 above). It happened again in June 2004, when a fire occurred in one of the hoppers. Both Mr Carter and Mr Norton were there on that occasion. Mr Norton said that the burning popcorn became apparent when it was emptied out of the hopper onto the floor. He thought that the operatives had put the burning popcorn out using two CO2 fire extinguishers and the fire hose, "just to make sure". He was asked whether standard procedure when faced with a hopper fire would be to empty the hopper. He said:
"It depends how bad it was because – and how full it was, because you have got to think if it were, say, quarter full, half full, there were a lot of popcorn there, so if we were chucking it on the floor, it would have just spread and gone everywhere. If it were only a little bit of popcorn you could just set it out and contain it."
268. In my judgment, this was an important event. It demonstrated beyond any doubt that the CO2 suppression system would not necessarily be triggered automatically by flaming popcorn entering the elevator or the hopper. Even more importantly, it demonstrated that popcorn could burn undetected in the hopper and only be discovered when it was discharged.
269. It does not appear that the claimants were particularly concerned about the hopper fire in 2004. There was very little report documentation relating to that fire. There were no corrective action notices or any health and safety follow-up at all. If nothing else, the absence of any such follow-up material demonstrates that no-one at the claimants believed that the CO2 suppression system would definitely, and in every case, ensure that fire could not escape from the elevator or the hopper. Had anyone have been of that view, then they would have expressed their surprise and concern after the fire in June 2004, and the defendant would have been asked to explain what had gone wrong."
"550. It was the defendant's primary case on causation that, in accordance with the Court of Appeal decision in Schering, they were not liable for any of the damage caused by the fire. The argument ran as follows. There had been a fire in the hopper in June 2004. As a result, the claimants knew that the defendant's automatic fire suppression system did not work but failed to do anything about it. Accordingly, there was a break in the chain of causation which meant that, a year later, the defendant was not liable for the consequences of the fire.
551. It seems to me that, if I had upheld the claimants' argument as to the warranty/guarantee, and found that there was a term of this contract that the defendant had warranted that no fire would ever escape from the hopper, then the defendant's argument of a complete break in the chain of causation would have had considerable force. Indeed, it would then be impossible to distinguish this case from that of Schering because, on this assumption, the claimants would have known in June 2004 that the CO2 suppression system was not providing the guaranteed situation (whereby no burning popcorn escaped the hopper), and they would have had plenty of time (far longer than the plaintiffs in Schering) to do something about the breach before the fire in June 2005.
552. In his closing submissions, Mr ter Haar complained about this argument and said that, had it been properly pleaded, then further investigation would have been carried out in relation to the fire in June 2004. I do not accept that submission. Evidence was adduced from the claimants' own witnesses about the fire in 2004, and evidence and records relating to all the fires in the NMU following the moving of the 'oil pop' process to that facility were disclosed. No additional documents or other material was identified as being relevant to the fire in June 2004 but somehow missing or otherwise not disclosed. I am therefore satisfied that the argument is open to the defendant. I am also satisfied that, if the defendant had provided the warranty or guarantee alleged by the claimants, the fire in June 2004 would have demonstrated to the claimants that the defendant was manifestly in breach, and their failure to act would have broken the chain of causation in its entirety.
553. But, for the reasons given in paragraphs 229-244 above, I have concluded that there was no such warranty or guarantee. In my judgment, the defendant was obliged to exercise reasonable skill and care in the design of the fire suppression system, but provided no warranty or guarantee that burning popcorn would never escape from the hopper. If that analysis is right, then the fact that there was a hopper fire in June 2004 would not necessarily have alerted the claimants to the possibility that the defendant was in breach of contract. I accept that the claimants ought to have investigated that hopper fire more thoroughly than they did, and this may have led to modifications to the system, but I cannot find that, in circumstances where there was no guarantee that burning popcorn would not escape from the hopper in certain circumstances, the claimants' failure to do anything about the earlier fire broke the chain of causation.
554. Indeed, I consider that the dearth of contemporaneous material indicates that the claimants were unfazed by the hopper fire in June 2004, and that only demonstrates still further my conclusion that at no time did the claimants ever believe that the CO2 suppression system provided any sort of guarantee or warranty at all. If anyone within the claimants' management at Monkhill had thought for a moment that there was such a warranty, then they would have reacted very differently to the June 2004 hopper fire. As it was, it appears that they considered the hopper fire to be unremarkable, which was only consistent with the conclusion that the contract between the parties contained no warranty or guarantee of the sort so vigorously contended for by the claimants in their closing submissions. Thus, in the light of the contractual obligations that I have found, this contention that the fire in June 2004 broke the chain of causation must fail."
"Monkhill ought not [to] have rejected the VESDA system because it knew, inter alia from the June 2004 hopper fire incident, that there was a risk of smouldering popcorn causing hopper fires and that there was a risk that burning or smouldering popcorn would be let out of the bottom of the hopper before being detected or extinguished by the CO2 system."
Taken alone, that would not suffice. The VESDA system was "an early fire detection system" and this was an allegation of contributory negligence. However the also newly introduced paragraph 66A of the Defence said this:-
"For the avoidance of doubt, it is denied the Defendant caused the Claimants to incur the losses set out in paragraph 42 of the Amended Particulars of Claim, such losses not being admitted, as alleged or at all. If the Claimants have suffered any of the losses alleged, those losses were caused by the acts or omissions of the Claimants as set out in paragraph 62 above."
This does I think cover the ground, albeit Mr Dennys was gracious enough to acknowledge that it could be said that it was not sufficiently made clear that ADT relied upon the June 2004 incident as alone breaking the chain of causation, not simply as one in a series of triggers to that conclusion. However, there remains the question whether the significance attached to the June 2004 fire by the judge was justified by the evidence and whether, more particularly, his findings go far enough to attribute knowledge at an appropriate level within Cadbury's management to impress Cadbury with corporate knowledge of what had occurred. Such knowledge would, as it seems to me, be necessary however the principle enunciated in Schering Agrochemicals v Resibel NVSA is to be understood – [unreported, Hobhouse J, 4 June 1991; CA (Civil Division) transcript No 1298 of 1992.]
"Q. Now, can I just get some impression as to the frequency of other types of pan fires. Before leaving that, I think there was also a hopper fire in about June 2004, wasn't there, do you recall that?
A. I think so.
Q. Was that one dealt with in the same way?
It is very easy to be critical after the event, and one should never lose sight of the shifting dynamics of a complex trial about technical matters. That said, I have no doubt that had Mr Dennys appreciated at the time the importance which this point might subsequently assume, he would have ensured that the foundation for his later submission was more impressive than a tentative assent to a tentative leading question. It is also right to say that certain of the witnesses appear to attribute the incident to a period before the CO2 system was operative. The evidence fixing the fire at June 2004 comes principally from one of the operatives, Mr Norton, to whom the judge refers at paragraph 267. He was not asked whether this incident demonstrated to him that the system was ineffective or even unreliable. It is plain that the incident did not bring home to Mr Carter, the shift supervisor, that the fire suppression system was ineffective. The judge found that in June 2005 Mr Carter thought that the system had failed and that he would have expected it to activate automatically – see paragraph 558 of his judgment. There is no finding that Mr Carter made any report to management about the June 2004 fire. There was some totally inconclusive evidence from a Miss Priestley, a Cadbury Line Manager, from which it emerged that if the incident had been reported to her and if she had investigated it that investigation might not have generated a written record or report.
"561. The defendant's third causation argument concerns the stamping out of the popcorn by the operatives. They maintain in their closing submissions that it was not foreseeable that once burning popcorn had been detected, the operatives would empty out more burning popcorn from the hopper on to the floor in an attempt to stamp it out. Again, it is said that this broke the chain of causation.
562. I reject that submission for a number of reasons. First, it assumes that the fire was caused by the burning popcorn deliberately discharged from the hopper (which, on this hypothesis, was unforeseeable), as opposed to the burning popcorn that was discharged into Mr Hardcastle's sleeve (which I find was the foreseeable consequence of the defendant's breach of contract). I cannot make that distinction; on the evidence, the fire might have been caused by either or both, so the defendant cannot show a break in the chain of causation anyway.
563. Secondly, I reject that submission for much the same reasons as I have rejected the previous submission in relation to the absence of training as to the manual operation of the system. To the extent that the discharge of further popcorn was simply a manifestation of the failure to train the men in the proper use of the CO2 system, the reasoning above applies again. To the extent that the defendant now maintains that they could not have foreseen that, with burning popcorn released inadvertently from the chute, the operatives would deliberately let out more, it seems to me that the argument is unsustainable. It must have been foreseeable that, if burning popcorn was released inadvertently from the hopper, so as to alert the operatives to the existence of a developed fire in the hopper without the CO2 system having gone off, burning popcorn might then be deliberately released in order that it could be extinguished.
564. Further and in any event, for the reasons noted in paragraphs 557 and 558 above, it is not appropriate to criticise the operatives in the 'rush and the panic' of the situation, particularly in circumstances where, as here, that situation had been created by the defendant's breach of contract. It is not therefore possible to say in the circumstances that the stamping out of the burning popcorn broke the chain of causation. Accordingly the defendant's third causation argument is also rejected."
". . .Mr Carter's answers to the subsequent questionnaire, dated April 2005, revealed that it was his understanding that, in the case of a serious fire, he would break the glass to activate the overall fire alarm system (not the CO2 system) and that if there was a small fire, he would empty out the hopper contents using the chute at the bottom and put out the contents on the floor of the factory. In that event, he said, he would use the CO2 extinguisher. He later reiterated that he was not aware that it was dangerous to be around CO2. "
To similar effect was Ms Clough at paragraph 336:-
"Ms Clough, who was a trainer at Monkhill, gave evidence about the approved fire procedures actually in place for the different kinds of fire. She said that if there was a small hopper fire, the approved procedure was to open the chute, let the burning popcorn drop to the floor and stamp out the fire. If it was more serious, it was left to the CO2 system to put it out. The judgment as to whether the hopper fire was serious or not was to be made by the team leader or the supervisor. She said that she had not been involved in training the operatives in the event that the CO2 system failed to discharge."
I do not think that the evidence went so far as to support the notion that the Cadbury trained response to a situation such as that which confronted Mr Hardcastle was to empty further burning material onto the floor and to attempt to stamp it out.
Lord Justice Richards :
The Chancellor of the High Court :